Joint Committee on Statutory Instruments Fifteenth Report


FIFTEENTH 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 Ministry of Defence in connection with the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Amendment Order 2003 (S.I. 2003/434) is printed at Appendix 1.

3. A memorandum from the Department for Environment, Food and Rural Affairs in connection with the Feedingstuffs (Zootechnical Products) (Amendment) Regulations 2003 (S.I. 2003/545), and the Medicated Feedingstuffs (Amendment) Regulations 2003 (S.I. 2003/546), and a memorandum in connection with the Medicated Feedingstuffs (Amendment) (Scotland, England and Wales) Regulations 2003 (S.I. 2003/752) are printed at Appendix 2.

DRAFT CODE OF PRACTICE ON TIME OFF FOR TRADE UNION DUTIES AND ACTIVITIES (INCLUDING GUIDANCE ON TIME OFF FOR UNION LEARNING REPRESENTATIVES)

4. The Committee draws the special attention of both Houses to this draft Code on the ground that elucidation is required about the extent to which it contains all the practical guidance it is required to contain.

5. Section 199(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act") requires the Advisory, Conciliation and Arbitration Service ("ACAS") to provide, in one or more Codes of Practice, practical guidance on certain specified matters, including the time off to be permitted by an employer to a trade union member in accordance with section 170 of the 1992 Act (section 199(2)(b)).

6. Section 199(3) of the 1992 Act provides that the guidance on that matter shall include guidance on the question whether, and the circumstances in which, a trade union member is to be permitted to take time off under section 170 for trade union activities connected with industrial action.

7. The Committee asked the Department of Trade and Industry which provisions of the draft Code were intended to meet that requirement imposed by section 199(3).

8. In a memorandum printed at Appendix 3, the Department pointed to paragraph 49 which, so far as relevant reads:

"Employers and unions have a responsibility to use agreed procedures to settle problems and avoid industrial action. Time off may therefore be permitted for this purpose particularly where there is a dispute. There is no right to time off for trade union activities which themselves consist of industrial action".

9. The Department also pointed to paragraphs 30 and 32 of the draft Code. So far as relevant, they read:

"30. The activities of a trade union member can be, for example: attending workplace meetings to discuss and vote on the outcome of negotiations with the employer ¼

32. There is no right to time off for trade union activities which themselves consist of industrial action."

10. Both the final quoted sentence of paragraph 49 and the whole of paragraph 32 appear in bold type in the draft Code. Paragraph 5 of the draft Code makes it clear that items in bold type are a summary of the relevant statutory provisions and do not form part of the practical guidance, which is in ordinary type.

11. Accordingly, the required practical guidance on the question whether, and the circumstances in which, a trade union member is to be permitted to take time off under section 170 for trade union activities connected with industrial action is to be found in just two sentences of paragraph 49; and paragraph 30 gives an example of the sort of activity for which time off may be permitted. The Committee is prepared to accept that this is sufficient to meet the relevant statutory requirement in section 199(3). But as the Code does not itself indicate (by means of footnotes, specific headings or other explanatory material) which of its provisions are intended to meet that requirement, the Committee reports the draft Code for the elucidation provided.

EAST SUSSEX HOSPITALS NATIONAL HEALTH SERVICE TRUST (ESTABLISHMENT) AND THE EASTBOURNE HOSPITALS NATIONAL HEALTH SERVICE TRUST AND HASTINGS AND ROTHER NATIONAL HEALTH SERVICE TRUST (DISSOLUTION) ORDER 2002 (S.I. 2003/216)

12. The Committee draws the special attention of both Houses to this Order on the ground that there has been a serious breach of the Statutory Instruments Act in respect of it.

13. This Order (which is not required to be laid before Parliament) established the East Sussex Hospitals National Health Service Trust in the place of two former NHS trusts, which the Order dissolved. The Order was made on 25 March 2002 and came into force on 1 April 2002. It was not registered and printed until February 2003, following which copies were supplied to the Committee as required by Statutory Instrument Practice.

14. Section 2(1) of the Statutory Instruments Act 1946 requires a statutory instrument to be sent to the Queen's Printer of Acts of Parliament and numbered immediately after it is made, and copies of it to be printed and sold as soon as possible.

15. The Department of Health, in a memorandum printed at Appendix 4, apologises for the delay of almost a year. It states that the delay was the result of an administrative error at a time when there was a high volume of Statutory Instruments to process, and undertakes to take steps to ensure that the error does not happen again.

16. The Committee is prepared to assume that those directly affected by this Order would have been fully aware that it had been made and brought into force. It is fortuitous that the Order imposes no obligations on anyone but the new Trust. Nevertheless, the Committee is concerned that instances of failure to process instruments promptly and properly, in accordance with the 1946 Act and Statutory Instrument Practice, appear to be occurring too frequently. It therefore reminds all departments of the need to ensure that adequate systems are put in place and monitored to avoid similar failures.

17. The Committee therefore reports this Order for the serious delay in numbering and printing it, contrary to the requirements of the Statutory Instruments Act 1946.


 
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