Joint Committee on Statutory Instruments First Report


FIRST REPORT


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

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 Lord Chancellor's Department in connection with the Appointment of Queen's Counsel Fees Order 2002 (S.I. 2002/2037) is printed in Appendix 1.

EDUCATION (GRANTS) (MUSIC, BALLET AND CHOIR SCHOOLS) (AMENDMENT) (ENGLAND) REGULATIONS 2002 (S.I. 2002/2004)

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

4. Regulation 2 amends regulation 5 of the Education (Grants) (Music, Ballet and Choir Schools) (England) Regulations 2001 (S.I. 2001/2743), paragraph (1) of which provides that the Secretary of State may pay schools grant "in respect of their expenditure in operating the Scheme" (described in Schedule 1 to the 2001 Regulations) under which participating independent schools are required to pay grants and remit fees in respect of pupils who attend those schools pursuant to the Scheme ("aided pupils"). Regulation 5(2) of the 2001 Regulations, subject to one limitation which is immaterial here, states that the amount of grant paid to each school in respect of any school year shall equal the aggregate of the fees and charges for that year remitted by them and the grants made by them to the parents of aided pupils for that year in accordance with the Scheme.

5. Regulation 5 of the 2001 Regulations thus confers power on the Secretary of State to pay grant, and specifies the amount of the grant which is to be paid.

6. The amendments made by this instrument make paragraph (2) of regulation 5 subject to a new paragraph (4), which provides that "expenditure in operating the Scheme" in paragraph (1) shall include the aggregate of expenditure under paragraph (2) and also additional expenditure. This additional expenditure is expenditure in connection with the organisation of summer schools and other activities for the purpose of: (a) enabling pupils (whether or not they attend a participating school) who might not otherwise be able to do so to benefit from the education and training provided by the school, and (b) attracting new pupils to the school. Paragraph (2) is not, however, amended to specify what, if any additional grant may be paid in respect of such expenditure.

7. It appeared to the Committee that, given the clear wording of regulation 5(2), which specifies the amount of grant to be paid, the amendment making that paragraph subject to the extended definition of the expression "expenditure in operating the Scheme" in paragraph (1) could not serve to allow grant to be paid in respect of any additional expenditure.

8. The Committee also considered it unsatisfactory for the new paragraph (4) to have extended the meaning of "expenditure incurred in operating the Scheme" so as to include expenditure which, although incurred by schools participating in the Scheme, is incurred in carrying out activities which may be considered ancillary to the Scheme but do not arise from the Scheme's operation. The Committee raised these points with the Department for Education and Skills.

9. In a memorandum printed at Appendix 2, the Department argues that, as paragraph (2) of regulation 5 is made expressly subject to the new paragraph (4), the former does not prevent the payment of grant in respect of the new category of additional expenditure. As already indicated, the Committee does not accept that this amendment is adequate to increase the amount of grant specified by paragraph (2) as the amount to be paid. If the Department were correct, paragraph (2) (even before amendment) would serve no purpose, as grant would already be payable in respect of expenditure in operating the Scheme but not specified in paragraph (2), such as the administrative costs of remitting fees and charges and paying grants. The Department's intention would better have been served by conferring a separate power to pay grants in respect of the additional expenditure described in paragraph (4).

10. The Department also states that it does not consider the summer schools referred to in paragraph (4) to be separate from the Scheme, on the grounds that they are similar in purpose to the Scheme and aim to extend it by encouraging more children to apply to it. This does not seem to the Committee to meet its point. It considers it unsatisfactory to extend the definition of "expenditure in operating the Scheme" to include additional categories of expenditure which are not aptly described by that expression. For this reason too a separate power should, in the Committee's view, have been conferred.

11. The Committee accordingly reports regulation 2 for defective drafting.

IMMIGRATION SERVICES COMMISSIONER (REGISTRATION FEE) ORDER 2002 (S.I. 2002/2011)

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

13. This Order prescribes the fees payable on making an application for registration or continued registration with the Immigration Services Commissioner under Part V of the Immigration and Asylum Act 1999.

14. Article 3 provides that the fee payable for registration or for continued registration is to be determined by reference to the number of relevant advisers in respect of the applicant "at the date of his application for registration". Fees for registration are higher than those for continued registration. The Order does not make it clear whether, on an application for continued registration, the fee is to be based on the number of relevant advisers at the date of the original application for registration or at the date of the application for continued registration.

15. The Home Office, in a memorandum printed at Appendix 3, argues that the relevant date is that on which the application for continued registration is made. It also asserts that article 3(b) would be extraneous if the words did not bear this meaning, since only one calculation of the number of advisers (i.e. at the date of registration) would be required. The Committee does not accept this assertion. Article 3(b) provides that the fee for continued registration is that set out in column 3 of the table, which is lower than the corresponding fee for initial registration set out in column 2. As the figures in both columns vary according to the number of advisers at the date of application for registration, the ambiguity remains, and the Committee therefore reports article 3 for defective drafting.

ELECTRONIC COMMERCE (EC DIRECTIVE) REGULATIONS 2002 (S.I. 2002/2013)

16. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted and require elucidation.

17. These Regulations apply to activities and, in particular, to requirements which apply to activities, in the field of electronic commerce. Regulation 3(2) provides that the Regulations shall not apply "in relation to any Act passed on or after the date these Regulations are made or in exercise of a power to legislate after that date". The Committee asked the Department of Trade and Industry to explain the intended effect of this provision. In a memorandum printed at Appendix 4, the Department explains that the policy is that the Regulations should not have prospective effect on future legislation, concedes that regulation 3(2) is not at present grammatically correct, and suggests an amendment to rectify this which it proposes to bring forward as soon as possible.

18. In the Committee's view, regulation 3(2) (apart from the omission of relevant words) is drafted in an unnecessarily obscure way. The Department's intention would be adequately met by simply referring to subordinate legislation made after the date of the Regulations, and it suggests that the amendment simplify the wording of the provision accordingly. The Committee reports regulation 3(2) for defective drafting, acknowledged by the Department.

19. Regulation 4(6) provides that, to the extent that anything in the Regulations creates any new criminal offence, such offence shall not be punishable with penalties greater than those specified. As there is no provision in the Regulations which expressly creates an offence, the Department was asked to identify the provisions which do so. The Department explains that regulation 4(1) may have the effect of creating new offences, as it applies the law of the United Kingdom to activities of UK­based service providers which would otherwise be regarded as being carried on outside the UK and therefore not subject to UK law. Regulation 4(6) is intended to ensure compliance with paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972 (which limits the penalties which may be imposed by regulations creating new offences under section 2(2) of that Act). The Committee accordingly reports regulation 4(6) as calling for the elucidation provided in the Department's memorandum.

MERCHANT SHIPPING (MEDICAL EXAMINATION) REGULATIONS 2002 (S.I. 2002/2055)

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

21. Regulation 2(1) defines expressions used in these Regulations. The definition of "pleasure vessel" refers to a person's "immediate family", which in turn is defined as meaning "in relation to an individual, the husband or wife of the individual, and a relative of the individual or the individual's husband or wife, and a brother, sister, ancestor or lineal descendant of that individual or that individual's husband or wife".

22. In response to the Committee's enquiry as to the intended meaning of the underlined words, the Department for Transport, in a memorandum printed at Appendix 5, states that they were included in error as the intended effect is achieved without them and undertakes to amend the Regulations as soon as possible. The Committee accordingly reports regulation 2(1) for defective drafting, acknowledged by the Department.

EDUCATION (TEACHER STUDENT LOANS) (REPAYMENT ETC.) REGULATIONS 2002 (S.I. 2002/2086)

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

  

24. These Regulations provide for the reduction or repayment by the Secretary of State of amounts owed by certain teachers in respect of student loans. Regulation 3 specifies the criteria to be satisfied in order to be eligible for reduction or repayment, one of which is that the person must be in eligible employment. A person who is eligible must apply to the Secretary of State in accordance with regulation 8. Regulation 8(5) requires the Secretary of State, if satisfied that an applicant is eligible, to so notify him "and thenceforth the applicant shall be an 'eligible teacher' for the purposes of these Regulations". Regulation 2(1) defines "eligible teacher" as meaning a person whom the Secretary of State has determined is eligible for repayment or reduction of amounts in respect of loans in accordance with these Regulations. Regulation 9(3) provides for the Secretary of State to determine in certain circumstances (which are immaterial here) that an eligible teacher shall no longer be eligible under the Regulations.

25. Regulation 6, which is headed "Allowable breaks from eligible employment", provides for a person who has ceased to be "an eligible teacher" to become eligible where he recommences eligible employment. Given that, according to regulation 8(5), once the Secretary of State notifies an applicant that he is eligible the latter becomes, and remains, an eligible teacher, the Committee asked the Department for Education and Skills to explain the circumstances in which a person can cease to be an eligible teacher and whether regulation 6 should have referred instead to a person who has ceased to be in eligible employment. In a further memorandum printed at Appendix 6, the Department asserts that a person can cease to be an eligible teacher if he ceases to be eligible under regulation 3. This would occur, for instance, where the person ceases to be in eligible employment, and therefore the Department considers that the wording of regulation 6 is correct. In the Committee's view, however, this argument is misconceived. Regulation 3 specifies the criteria which must be fulfilled for a person to be eligible under the Regulations, but does not specify whether or when a person is to be treated as being or not being an eligible teacher; those matters are dealt with in regulations 8(5) and 9(3).

26. The Committee also asked the Department to explain how regulation 8(5) is intended to operate where an eligible teacher recommences eligible employment, its concern being that, as the Regulations do not provide that a person ceases to be an eligible teacher when he ceases eligible employment, the purpose of the Secretary of State making a fresh determination and making him an eligible teacher again was unclear. For the reasons given above, the Department asserts that such a person will have ceased to be an eligible teacher by virtue of regulation 3. As already stated the Committee disagrees with the premise.

27. It is clear from the Department's response that the intention is that a person who has been notified under regulation 8(5) that he is eligible should be an eligible teacher for so long as he remains eligible under regulation 3. If at any time he ceases to be eligible he ceases to be an eligible teacher. The Regulations do not say this, and are therefore defectively drafted.

28. Regulation 8(1) to (3) requires an applicant, or a person returning to eligible employment following a break, to complete an application in such form as the Secretary of State may require and to submit it to him no later than a date specified by him. Regulation 8(6) requires an eligible teacher, for the purpose of demonstrating his eligibility, to complete and submit to the Secretary of State an application in such form as he may require not later than a date specified by him. It was not clear to the Committee what other application an eligible teacher might make under the Regulations. The Department explains that the purpose of regulation 8(6) is to provide a procedure for a periodic review of continued eligibility. Each year an eligible teacher will be sent a form setting out his relevant details, and he must confirm the details and provide particulars of any changes. In the Committee's view, the wording of regulation 8(6) does not adequately reflect this intention. The use of the expression "application" suggests that the teacher is applying for something, but there is no provision for the Secretary of State to renew his determination of eligibility, or to determine anything else that the teacher might wish to apply for. Given regulation 9(2), the Committee doubts whether any separate provision is needed for this purpose.


29. For the above reasons, the Committee reports these Regulations for defective drafting.

PACKAGING LABELLING AND CARRIAGE OF RADIOACTIVE MATERIALS BY RAIL REGULATIONS 2002 (S.I. 2002/2099)

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

31. These Regulations implement a Community directive which imposes requirements with regard to the transport of dangerous goods by rail, insofar as it relates to radioactive material. Regulation 27 confers a power on the Health and Safety Executive to grant exemptions from all or any of the requirements or prohibitions imposed by the Regulations if it is satisfied that neither the health and safety of persons who are likely to be affected by the exemption nor the environment will be prejudiced in consequence of it. This general power is incompatible with the requirements of the directive. A similar issue arose in relation to the Chemicals (Hazard Information and Packaging for Supply) Regulations 2002 (S.I. 2002/1689) (see the Committee's 39th Report).

32. In a memorandum printed at Appendix 7, the Department for Transport explains that, as with that instrument, the power is intended to be limited to the granting of exemptions which are compatible with the directive and concedes that this is not clear on the face of the regulation, which it undertakes to amend when a suitable opportunity arises. The Committee accordingly reports regulation 27 for defective drafting, acknowledged by the Department.



 
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