Joint Committee on Statutory Instruments Eighteenth Report


EIGHTEENTH 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. A memorandum from the Department of Health in connection with the Road Traffic (NHS Charges) Amendment Regulations 2001 (S.I. 2001/4030) is printed in Appendix 1.

3. A memorandum from the Department for Environment, Food and Rural Affairs in connection with the Radioactive Substances (Clocks and Watches) (England and Wales) Regulations 2001 (S.I. 2001/4005) is printed in Appendix 2.

Children's Homes Regulations 2001 (S.I. 2001/3967)

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

5. The Committee asked the Department of Health to explain the reference, in paragraph (5) of regulation 17, to paragraph (7), given that that regulation does not contain a paragraph with that numbering. In a memorandum printed in Appendix 3, the Department states that the reference to paragraph (7) is an error which will be corrected at the first available opportunity. The Committee accordingly reports regulation 17(5) for defective drafting, acknowledged by the Department.

6. Paragraph (1) of regulation 41 makes a failure to comply with the provisions of regulations 4 to 38 an offence. Paragraphs (2) and (3) preclude the Commission from bringing proceedings in respect of an offence unless: (a) it has given notice to the person specifying in what respect he has failed or is failing to comply with the requirements of those regulations, what action he should take so as to comply with those regulations, and the period within which he should take that action; (b) the period so specified has expired; and (c) he fails to comply with the regulation in question. In its Sixteenth Report for this Session, the Committee reported similar provisions in other Regulations (S.I. 2001/ 3965, 3968 and 3969) for defective drafting on the basis that (as accepted by the Department) they could not appropriately apply in respect of a failure to comply with a provision which requires the specified action to be taken by a specified day or period: once the specified day or period has passed without the person taking the requisite action, he can no longer fully comply with the regulations requiring that action to be taken. The same issue arises in relation to the application of regulation 41(2) and (3) of the present Regulations to a failure to comply with the provisions of regulations which require action to be taken within a specified period (regulations 5(b), 17(3)(b) and (4), 33(3) and 37(5)), or "forthwith" (regulation 10) or "without delay" (regulation 30(1)). The Department has indicated that it does not wish to add anything further to its earlier memorandum (printed as Appendix 6 of the Sixteenth Report). The Committee reports regulation 41 for defective drafting, acknowledged by the Department, and considers that the Department should correct the defects at the first available opportunity.

Special Educational Needs Tribunal (Time Limits) (Wales) Regulations 2001 (S.I. 2001/3982)

7. The Committee draws the special attention of both Houses to these Regulations on the ground that they are of doubtful vires in two respects.

8. Regulation 3(3) provides that the period within which the local education authority must comply with the orders of the Tribunal is to begin on the day after the issue of the order in question. The Committee asked the Department for Education and Skills what provision in the Education Act 1996 authorises this regulation, given that section 336A(1) of the Act requires the authority to comply with the Tribunal's Order before the end of the prescribed period "beginning with the date on which it is made". In a memorandum printed in Appendix 4, the Department, whilst acknowledging that "it might have been preferable" to have adopted the wording of section 336A(1), submits that regulation 3(3) is not inconsistent with the authority conferred by that section, since its purpose is to determine the end of the period of compliance with the Tribunal's order and in practice this has been achieved. In the Committee's view, this submission is misconceived, since section 336A(1) expressly requires the prescribed period for compliance with the Tribunal's Order to begin with the date on which it is made. The Committee accordingly reports regulation 3(3) for doubtful vires.

9. Paragraph (4) of regulation 3 provides that the local education authority need not comply with the time limits mentioned in paragraph (2) if it is impractical to do so because of certain specified circumstances. No specific period is prescribed for compliance in those circumstances. The Committee asked the Department to indicate the period within which the authority must comply with the Tribunal's order in those circumstances, given that section 336A(1) requires compliance "before the end of the prescribed period". A similar point arises in relation to regulation 4(3). The Department explains that regulations 3(4) and 4(3) reflect the fact that there will be circumstances where the authority will not be able to comply with the order within the prescribed period because of matters outside their control. In such circumstances it was considered inappropriate to specify a prescribed period since the circumstances justifying the exception may continue indefinitely. It submits that the duty to comply with the order will nevertheless continue notwithstanding that no prescribed period has been imposed and that whether the authority has failed unreasonably to comply with an order will depend on the particular circumstances of the case.

10. The Committee disagrees with the Department's views, since section 336A(1) clearly requires compliance with the Tribunal's order before the end of the prescribed period , and section 326A(4) requires the authority to take certain action before the end of that period. In contrast to paragraph 3(3) and (4) of Schedule 26 to the 1996 Act, sections 336A(1) and 326A(4) do not contemplate that there will be no specific end of the period for compliance or taking the requisite action where the circumstances mentioned in regulations 3(4) and 4(3) arise. In the Committee's view this does not necessarily mean that the original time limits will have to be complied with even if it would be impractical to do so: a possible way of meeting the requirements of sections 336A(1) and 326A(4) would be to include a provision in the Regulations for extending (and further extending) the time limits by a specified period. The Committee also notes that the fact that similar provisions in earlier instruments (mentioned in the Department's memorandum) have not given rise to practical difficulty is not germane to the question whether they are authorised by the Act. The Committee considers that S.I. 1994/1047 is not in point as the powers under which it was made differ in a material way from the present case. The Committee reports regulations 3(4) and 4(3) for doubtful vires.

Misuse of Drugs Regulations 2001 (S.I. 2001/3998)

11. The Committee draws the special attention of both Houses to these Regulations on the ground that in one respect they are drafted in an unnecessarily referential way, and are defectively drafted in another respect.

12. Regulation 2(1) defines "document" as having the same meaning as in Part I of the Civil Evidence Act 1968. However, Part I of the 1968 Act has been repealed by the Civil Evidence Act 1995. The Committee asked the Home Office for an explanation as to why the regulation, instead of setting out the definition in full, defines that expression by reference to repealed legislation. In a memorandum printed in Appendix 5, the Department accepts the points made by the Committee and apologises for the fact that in consolidating the previous Regulations, the reference to the 1968 Act was not updated and expanded. They undertake to correct this defect at the earliest convenient opportunity. The Committee reports the definition of "document" in regulation 2(1) on the ground that it is drafted in an unnecessarily referential manner.

13. Regulation 6(7)(c) confers an exemption on "a person engaged in the business of the Post Office when acting in the course of that business" from the prohibitions in the Act on supplying controlled drugs to another, or being in possession of such drugs. The Home Office acknowledges that this provision should have been updated to reflect the changes made by the Postal Services Act 2000, and undertakes to correct the defect at the earliest convenient opportunity. The Committee therefore reports regulation 6(7)(c) for defective drafting, acknowledged by the Department.

Education Standards Fund (England) (Amendment) Regulations 2001 (S.I. 2001/3994)

14. The Committee draws the special attention of both Houses to these Regulations on the ground that they do not comply with proper legislative practice in one respect.

15. Regulation 3 provides that, in regulation 5 of the principal Regulations, for "5(a) and 6(a), (c) and (d)" there shall be substituted "5(a) and (c) and 6(a), (c) and (d)". Since the italicised and underlined words are the same, the Committee asked for an explanation of the purpose of, and need for, the substitution in this particular respect. In a memorandum printed in Appendix 6, the Department for Education and Skills acknowledges that the substitution, to the extent that it contains the underlined words, is unnecessary and serves no purpose. The Committee therefore reports regulation 3 for failure to comply with proper legislative practice.


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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