Joint Committee on Statutory Instruments Fifteenth Report


FIFTEENTH 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 Privy Council Office in connection with the General Medical Council (Registration (Fees) (Amendment) Regulations) Order of Council 2001 (S.I. 2001/3668) are printed in Appendix 1.

SEEDS (NATIONAL LISTS OF VARIETIES) REGULATIONS 2001 (S.I. 2001/3510)

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

4 Paragraph (5) of regulation 9 of this instrument confers power on the relevant governmental authorities in specified circumstances to vary, suspend or revoke an arrangement made by them for the carrying out of official measures, whilst paragraph (6) of that regulation appears to confer a general power to vary, suspend or revoke an arrangement by giving written notice to the person with whom the arrangement is made. The intended relationship between these two paragraphs was not clear to the Committee.

5 The Department of Environment, Food and Rural Affairs, in a memorandum printed at Appendix 2, explains that paragraph (5) is intended to confer the power, in the specified circumstances, to vary, suspend or revoke an arrangement and that paragraph (6) is intended to specify the manner in which the power must be exercised. The Department acknowledges that there is some duplication, that the two paragraphs could readily have been combined and that the drafting is defective. The Committee accordingly reports the Regulations for defective drafting, acknowledged by the Department.

FINANCIAL SERVICES AND MARKETS ACT 2000 (SAVINGS, MODIFICATIONS AND CONSEQUENTIAL PROVISIONS) (REHABILITATION OF OFFENDERS) (SCOTLAND) ORDER 2001 (S.I. 2001/3640)

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

7 Article 2(2) of this Order substitutes, for section 95(2) of the Banking Act 1987, a provision which states (so far as is relevant) that: "Nothing in section 4(1) ¼shall prevent the determination in any proceeding (including proceedings on appeal to any court) arising out of any relevant decision of the Authority ¼ relating to a person's previous convictions for any such offence as is mentioned in subsection (1) or the circumstances ancillary thereto". As drafted, this provision does not make sense.

8 The Treasury, in a memorandum printed at Appendix 3, state that some words were accidentally omitted from the substituted text ("of any issue" should have been included after "the Authority"). The Committee accordingly reports this Order for defective drafting, acknowledged by the Department.

FIREMEN'S PENSION SCHEME (PENSION SHARING) ORDER 2001 (S.I. 2001/3691)

9 The Committee draws the special attention of both Houses to this Order on the grounds that there has been a failure to comply with proper procedures in respect of it and the Explanatory Note is incomplete.

10 This Order contains no provision specifying when it comes into force. It therefore came into force as soon as it was made on 13 November 2001, 9 days before it was laid before Parliament on 22 November 2001. In a memorandum printed in Appendix 4, the Department for Transport, Local Government and the Regions explains that the omission of a commencement provision was an unintended error, and acknowledges that there has consequently been a contravention of:

  • the 21 day rule contained in paragraph 5.21 of Statutory Instrument Practice, which requires that instruments subject to negative procedure should normally not be brought into force until 21 days after laying.

11 The Committee accordingly reports this Order for an unjustified delay in giving the notifications required by section 4(1) of the Statutory Instruments Act 1946 and an unjustified breach of the 21 day rule.

12 Article 1 of this Order provides that it has effect as from 1 December 2000, but the Explanatory Note does not cite the authority in the enabling Act for this retrospective application, as required by paragraph 2.75 of Statutory Instrument Practice. The Department acknowledges this omission, which it undertakes to rectify when the Order is published in the Annual Volume. The Committee accordingly reports this Order on the ground that its Explanatory Note is incomplete.

NATIONAL HEALTH SERVICE (GENERAL OPHTHALMIC SERVICES) AMENDMENT (NO. 2) REGULATIONS 2001 (S.I. 2001/3739)

NATIONAL HEALTH SERVICE (GENERAL MEDICAL SERVICES SUPPLEMENTARY LIST) REGULATIONS 2001 (S.I. 2001/3740)

NATIONAL HEALTH SERVICE (GENERAL DENTAL SERVICES) AMENDMENT (NO. 6) REGULATIONS 2001 (S.I. 2001/3741)

NATIONAL HEALTH SERVICE (GENERAL MEDICAL SERVICES) AMENDMENT (NO. 4) REGULATIONS 2001 (S.I. 2001/3742)

13 The Committee draws the special attention of both Houses to these Regulations on the ground that their drafting falls below the standard which may reasonably be expected in legislation.

14 It appeared to the Committee that the drafting of these Regulations was defective in many respects and insufficiently precise, or simply ungrammatical, in a number of others. In a memorandum which is printed in Appendix 5 the Department of Health apologise for the large number of errors identified by the Committee, accept most of the Committee's specific comments on the Regulations and undertake to amend them, where the meaning is unclear, at the first available opportunity. The Department explain that these Regulations form part of a group of eight inter-related instruments which are intended to improve the protection of the public in the light of gaps identified by the case of Dr. Shipman. The Department therefore wished to introduce them as quickly as possible. The Department also explain that they have a robust system for ensuring the quality of instruments produced by them but that in this case the combination of the volume and complexity of the instruments, the tight timetable for their introduction, work on the National Health Service and Health Professions Bill and the unexpected - and unavoidable - absences of the relevant departmental draftsmen at critical periods meant that the normal internal scrutiny was not as effective as it should have been.

15 The Committee acknowledges the particular difficulties faced by the Department and the desirability of early legislation, and notes the quality control arrangements which the Department normally applies. It nevertheless maintains its view that in this case the drafting of the Regulations was not of the standard reasonably to be expected, and it so reports.


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


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2002
Prepared 29 January 2002