Joint Committee On Statutory Intruments Sixth Report


SIXTH 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. Memoranda from the Department for Work and Pensions in connection with the Control of Lead at Work Regulations 2002 (S.I. 2002/2676) are printed in Appendix 1.

3. A memorandum from the Department of Health in connection with the National Health Service (Local Pharmaceutical Services Etc.) Regulations 2002 (S.I. 2002/2861) is printed in Appendix 2.

STATUTORY PATERNITY PAY AND STATUTORY ADOPTION PAY (PERSONS ABROAD AND MARINERS) REGULATIONS 2002 (S.I. 2002/2821)

4. The Committee draws the special attention of both Houses to these Regulations on the ground that they contain unnecessarily referential legislation.

5. Paragraph (1) of regulation 8 provides that, in that regulation, the expressions "foreign-going ship", "home-trade ship" and "mariner" have the same meaning as in Case C of Part 9 of the Contributions Regulations. The Committee asked the Department of Trade and Industry to explain why this provision, instead of referring the reader to the Contributions Regulations, did not set out the definitions in full. In a memorandum printed in Appendix 3, the Department explains that the decision to incorporate definitions by reference was based on a number of considerations: the length of the definitions in question, that regulation 8 is only relevant to one group of employees to whom the instrument applies, that the Contributions Regulations would be readily accessible to users of the present instrument, that regulation 8 is in the same terms as a provision in an earlier instrument, and that incorporation by reference has the advantage that, if the provision referred to in the Contributions Regulations were to be revoked and replaced by a new provision, it would be unnecessary to amend regulation 8.

6. The Committee notes that the definitions (which are appended to the Department's memorandum) consists of a single short sentence and two paragraphs, neither of which are lengthy. The Committee is not persuaded that the degree of brevity secured by the method of referential drafting outweighs the inconvenience to the reader of having to refer to another instrument solely for the purpose of finding out what the expressions mean. Nor does it think that the other considerations mentioned by the Department justify causing the reader the inconvenience of having to consult two instruments. The Committee accordingly reports regulation 8(1) on the ground that the definitions contained in it are drafted in an unnecessarily referential manner.

TSE (ENGLAND) (AMENDMENT) (NO. 2) REGULATIONS 2002 (S.I. 2002/2860)

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

8. Paragraph (1) of new regulation 29B (inserted by regulation 2(3)) makes provision for the case where an inspector has reasonable grounds for supposing that any TSE susceptible animal (that is, an animal which is capable of being infected by transmissible spongiform encephalopathies) has been fed mammalian meat and bone meal or mammalian protein in breach of the Regulations. In such a case, he may serve a notice on the owner or person in charge of the animal requiring him to: (a) slaughter and dispose of the animal within 28 days of the date of the notice and in such manner as the notice provides; or (b) keep the animal in such manner as the notice provides. Paragraph (2) requires the notice to specify that representations from the owner or person in charge of the animal may be made to the Secretary of State within 21 days of date of the notice, and paragraph (3) requires the Secretary of State after considering any such representations to either withdraw or confirm the notice. Paragraph (4) provides that if a person on whom a notice is served under paragraph (1) fails to comply with the requirements of the notice, an inspector may carry out or cause to be carried out those requirements at the expense of the recipient of the notice. The Committee asked the Department for Environment, Food and Rural Affairs to explain why, given the provisions in paragraphs (2) and (3), paragraph (4) does not indicate that the inspector's power to carry out the requirements of the notice can only be exercised after the recipient of the notice has been informed of the Secretary of State's decision to confirm the notice. Paragraph (4), as drafted, appeared to have the effect that the inspector could cause the animal to be slaughtered after 28 days from the date of his notice, even though the case was under consideration by the Secretary of State and she had not yet confirmed the inspector's notice.

9. In memoranda printed in Appendix 4, the Department submits that in such a case it is implicit that the inspector would not cause the animal to be slaughtered until the Secretary of State had confirmed the notice. It also states that, in relation to the case where the inspector's notice requires the owner or person in charge to keep the animal in such manner as the notice provides, the inspector may well have to carry out the requirements of the notice before the expiry of the 21 day period for making representations: for example, if the owner or person in charge moves the animal immediately, in contravention of the notice, the inspector will have to ensure that the notice is complied with even though the 21 day period for making representations has not expired.

10. The Committee disagrees with the Department's view that, where the notice relates to the slaughter of the animal, it is implicit that the inspector cannot cause the animal to be slaughtered until the Secretary of State has confirmed the notice - and for two reasons. First, regulations 7(3) and 82(3) of the principal Regulations, which the Committee drew to the Department's attention, expressly state that the power to slaughter animals conferred by those regulations can only be exercised after service of the notice to confirm the intended slaughter. The omission of a similar requirement in new regulation 29B suggests that the inspector's power to cause the animal to be slaughtered can be exercised after 28 days of his notice, even though that notice has not been confirmed by the Secretary of State. Secondly, as indicated above, in relation to the case where the inspector's notice requires the owner or person in charge of the animal to be kept in such manner as the notice provides, the intended effect of regulation 29B(4) is that the inspector may exercise his power to carry out the requirements of the notice before the period for making representations has expired and therefore before the Secretary of State has decided to confirm the notice. There is nothing in new regulation 29B to indicate that a different result is intended in relation to the case where the inspector's notice relates to the slaughter of an animal. The Department's approach would mean that the same provision (new regulation 29B(4)) would be interpreted in two different ways, depending on whether the notice was given under paragraph (1)(a) or (b), and even though that provision provides no indication that this difference was intended. In the Committee's view, since the intention is that the inspector's power to cause the animal to be slaughtered can only be exercised after the Secretary of State has confirmed the notice, this should have been expressly stated. The Committee accordingly reports new regulation 29B for defective drafting.


 
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