Joint Committee on Statutory Instruments Twelfth Report


TWELFTH REPORT


FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.[1]

1. The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

2. Memoranda from the Department for Transport, Local Government and the Regions in connection with the Merchant Shipping (Domestic Passenger Ships) (Safety Management Code) Regulations 2001 (S.I. 2001/3209) are printed in Appendix 1.

3. A memorandum from the Department for Transport, Local Government and the Regions in connection with the Motor Vehicles (Driving Licences) (Amendment) (No. 5) Regulations 2001 (S.I. 2001/3486) is printed in Appendix 2.

4. A memorandum from HM Treasury in connection with the Financial Services and Markets Act 2000 (Law Applicable to Contracts of Insurance) (Amendment) Regulations 2001 (S.I. 2001/3542) is printed in Appendix 3.

EDUCATION (SPECIAL EDUCATIONAL NEEDS) (ENGLAND) (CONSOLIDATION) REGULATIONS 2001 (S.I. 2001/3455)

5. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two respects.

6. Paragraph (1) of regulation 6 provides that paragraph (2) (which requires a local education authority to send copies of the notice of their decision to make an assessment) applies where [(b)] no notice has been given in relation to a particular assessment under section 323 or 329A(3), and under section 323(4) or 329A(7) the authority give notice to a child's parent of their decision to make an assessment. It was not immediately obvious to the Committee why the italicised words had been included and whether they were intended to deal with the case where section 328(2) or 329(1) applies. Nor, in relation to the reference to section 329A(3) and (7), was it clear to the Committee how the authority could decide to make an assessment without first serving notice on the child's parent under section 329A(3). In a memorandum printed in Appendix 4, the Department for Education and Skills confirm that the italicised words are meant to deal with the situation where section 328(2) or 329(1) applies and agree that the drafting could have been made clearer on this point. In the Committee's view the failure to do so constitutes defective drafting. The Department also confirm that under section 329A the authority cannot undertake an assessment without first serving the notice required by subsection (3). It follows that regulation 6(1) is defectively drafted in this respect also in that it proceeds on the basis that the authority can give notice of their decision to make an assessment without first serving the notice required by subsection (3). The Committee accordingly reports regulation 6(1) for defective drafting, acknowledged by the Department, and recommends that the errors be corrected at the first convenient opportunity.

LITIGANTS IN PERSON (COSTS AND EXPENSES) (MAGISTRATES' COURTS) ORDER 2001 (S.I. 2001/3438)

7. The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in two respects.

8. Section 1(1) of the Litigants in Person (Costs and Expenses) Act 1975 allows a litigant in person in civil proceedings in certain courts or tribunals in whose favour an order for costs has been made to recover (subject to rules of court) sums in respect of the work done, and expenses and losses incurred, by him in connection with the proceedings. Article 2 extends the scope of the Act to include magistrates' courts in England and Wales. Article 3 provides that in section 1 of the 1975 Act the expression "rules of court", in relation to magistrates' courts, means rules made under section 144 of the Magistrates' Courts Act 1980. It was not clear to the Committee why that article had been included, since the expression "rules of court" is defined in Schedule 1 to the Interpretation Act 1978 as meaning, in relation to any court, rules made by the authority having power to make rules or orders regulating the practice and procedure of that court. Nor was it clear to the Committee how section 1(4)(c) of the 1975 Act, which is cited in the recital of powers, authorised the inclusion of article 3, since that subsection does not apply to courts, as opposed to tribunals, and therefore does not confer power to define "rules of court" in section 1(1) of that Act in relating to magistrates' courts. In a memorandum printed in Appendix 5, the Lord Chancellor's Department accept that article 3 should not have been included, and that section 1(4)(c) should not have been cited in the recital of powers. The Committee accordingly reports this instrument for defective drafting, acknowledged by the Department.

CARRIAGE OF EXPLOSIVES BY RAIL REGULATIONS (NORTHERN IRELAND) 2001 (S.R. 2001/387)

9. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

10. Regulation 22(1) contains a general saving for "any provisions imposed by the Communities". The Committee asked the Northern Ireland Office to explain the need for this general saving, and drew attention to its Third Report (Session 1997-98) in which it reported a similar provision in another instrument (S.I. 1997/553) for defective drafting on the basis that such a saving was unnecessary as the generality of the words conferring the power must be regarded as impliedly restricted so as to exclude an exercise of the power which is not consistent with the United Kingdom's obligations under the Community legal order. In a memorandum printed in Appendix 6, the Department accept that the words in question are unnecessary, and indicate that they will avoid the use of such words in future instruments. The Committee reports regulation 22(1) for defective drafting, acknowledged by the Department.


1   The Orders of Reference of the Committee are set out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back


 
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