Joint Committee on Statutory Instruments Fourth Report


FOURTH 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 Department of Trade and Industry in connection with the Insolvency (Amendment) (No. 2) Rules 2002 (S.I. 2002/2712) is printed in Appendix 1.

GENETICALLY MODIFIED ORGANISMS (DELIBERATE RELEASE) REGULATIONS 2002 (S.I. 2002/2443)

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

4. Regulation 21(2) provides that the Secretary of State must not grant or refuse consent to release genetically modified organisms before the end of the period of 60 days beginning with the day on which the application was received. It appeared to the Committee that this provision was inconsistent with two provisions in regulation 20. Regulation 20 requires the Secretary of State, following receipt of an application for consent to: [(b)] invite any person by means of a request placed on the register to make representations to her relating to any risks of damage being caused to the environment by the release before the end of a period to be specified which shall not be less than 60 days from the date the application was received by her; and [(f)] take into account any representations made to her before the end of the period specified in accordance with paragraph (b) and any comments made by competent authorities of other States following the circulation to them by the Commission of a summary of the application. The Committee asked the Department of Environment, Food and Rural Affairs to explain the inclusion of the underlined words in regulation 21(2), given the two provisions in regulation 20 mentioned above, and suggested that regulation 21(2) should have been to the effect that the Secretary of State must not grant or refuse consent before the end of the latest date on which the representations and comments mentioned in regulation 20(f) can be made.

5. In memoranda printed in Appendix 2, the Department explains that regulation 21(2) is intended to assist the reader by specifying the minimum period of days which must elapse before the Secretary of State can make her decision following receipt of an application for consent, and that this period is calculated by reference to the time limit for submission of representations set out in regulation 20(b) and by reference to the requirement under regulation 20(f) for the Secretary of State to take into account those representations and any comments made by member States. The Department suggests that regulation 21(2), as currently drafted, has the same effect as the approach suggested by the Committee. The Committee disagrees with this view. The underlined words are misleading in that they suggest that the Secretary of State can grant or refuse consent after the end of the period of 60 days, but before the expiry of any longer time limit which may have been specified under regulation 20(b) and before the Secretary of State can take into account (under regulation 20(f)) any representations and comments received after the end of the 60 day period. Since (as the Department acknowledges) the intended effect of regulation 21(2) is that the Secretary of State should not be able to grant or refuse consent before the end of the latest date on which the representations and comments can be made, the Committee considers that provision to be defectively drafted in not making this clear. The Committee reports accordingly.

TOWN AND COUNTRY PLANNING (ENFORCEMENT NOTICES AND APPEALS) (ENGLAND) REGULATIONS 2002 (S.I. 2002/2682)

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

7. In a case where an appeal has been made to the Secretary of State against an enforcement notice issued by a local planning authority, regulation 9(2) requires the authority to submit to the Secretary of State and any person on whom a copy of the enforcement notice has been served a statement indicating the submissions the authority intends to put forward on the appeal (including a summary of the authority's response to each of the grounds of the appeal) within 6 weeks of the "starting date". This expression is defined, in regulation 9(3), as meaning the later of the two following dates:(a) the date of the Secretary of State's written notice under regulation 10 to the appellant and the authority that he has received all the documents required to enable him to entertain the appeal; (b) the date of the Secretary of State's written notice informing the appellant and the authority that an inquiry or hearing is to be held. It was not clear to the Committee why (a) had been included in the definition of "starting date", and how regulation 9(2) was intended to operate, given that regulation 10 suggests that the Secretary of State's notice under regulation 10 cannot be given before he has received the authority's statement.

8. In a memorandum printed in Appendix 3, the Office of the Deputy Prime Minister explains that the reason for the inclusion of (a) in the definition of "starting date" in regulation 9(3) is that a trigger date is required for those instances where the appeal is to be dealt with by the written representation procedure. The Department also states that the local planning authority's statement referred to in regulation 9(2) is not one of the documents required by the Secretary of State to enable him to entertain the appeal and is therefore not a document in respect of which the Secretary of State must serve a notice under regulation 10. That notice is intended to relate to the receipt by the Secretary of State of the documents referred to in regulations 6 and 8. Regulation 6 requires a person who makes an appeal to the Secretary of State against an enforcement notice to submit to the Secretary of State a written statement specifying the grounds of his appeal and setting out the facts on which he proposes to rely in support of each of those grounds; and, if such a statement is not included with the appeal, the appellant must deliver it the Secretary of State not later than 14 days from the date on which the Secretary of State sends him a notice requiring him to do so. Regulation 8 requires the local planning authority, upon receipt of a notification from the Secretary of State that an appeal has been made, to send to the Secretary of State (within 14 days from the date of that notification) a certified copy of the enforcement notice and a list of the names and addresses of the persons on whom a copy of the notice has been served.

9. However, the Committee notes that regulation 10 does not indicate that the Secretary of State's notice under that provision relates only to the receipt of the documents referred to in regulations 6 and 8. As drafted, regulation 10 can reasonably be construed as relating also to the receipt of the local planning authority's statement mentioned in regulation 9(2). This would mean that there would be no scope for the application of (a) in the definition of "starting date", since the circular effect of that provision and regulation 10 would be that the local planning authority must send the statement to the Secretary of State within six weeks of the Secretary of State's notice under regulation 10 but that notice can only be given after the Secretary of State has received the documents referred to in regulations 6 and 8 and the authority's statement. Since regulation 10 is intended to relate only to the receipt of the documents mentioned in regulations 6 and 8, this should have been made clear in that provision. In the Committee's view, this failure to do so constitutes defective drafting, and it reports accordingly.


 
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Prepared 17 December 2002