1BInstruments
reported
At its meeting on 9 February 2011 the Committee
scrutinised a number of Instruments in accordance with Standing
Orders. It was agreed that the special attention of both Houses
should be drawn to four of those considered. The Instruments and
the grounds for reporting them are given below. The relevant Departmental
memoranda are published as appendices to this report.
S.I. 2010/2955: Reported
for requiring elucidation and failure to conform with proper legislative
practice
Family Procedure Rules 2010 (S.I. 2010/2955)
1.1 The Committee draws the special attention
of both Houses to these Rules on the ground that in one respect
they call for elucidation and that (to a more limited extent)
they do not conform with proper legislative practice.
1.2 The Explanatory Note to these Rules states
that they provide a new code of procedure for family proceedings
in the High Court, county courts and magistrates' courts, and
replace existing rules of court for family proceedings, the principal
rules being the Family Proceedings Rules 1991, the Family Procedure
(Adoption) Rules 2005 and, in so far as they relate to family
proceedings, the Family Proceedings Courts (Children Act 1989)
Rules 1991, the Family Proceedings (Matrimonial Proceedings etc)
Rules 1991, and rules relating to the reciprocal enforcement of
maintenance orders, in particular the Magistrates' Courts (Reciprocal
Enforcement of Maintenance Orders) Rules 1974. The expressions
"principal" and "in particular" indicate that
the list is less than comprehensive.
1.3 The Rules contain no provisions revoking
legislative provisions that they are intended to replace, which
is what one would normally expect to see where an instrument replaces
earlier ones. The Committee asked the Ministry of Justice why
that was so.
1.4 In a memorandum printed at Appendix 1, the
Department (which identifies precedents for its approach) argues,
firstly, that the existing rules are revoked by operation of law
arising from the repeal of powers under which the existing rules
were made and secondly that the proposition in rules 1.1 and 2.1
that the new Rules are a new procedural code and apply to family
proceedings in the High Court, a county court and a magistrates'
court also implies the necessary revocation of previous provisions.
1.5 The Committee accepts that (in the absence
of application of section 17(2)(b) of the Interpretation Act 1978,
which is taken on trust for the purposes of this Report) the Department's
first argument alone disposes of any need for express revocation
of the Family Proceedings Rules 1991, the Family Proceedings Courts
(Children Act 1989) Rules 1991, the Family Proceedings (Matrimonial
Proceedings) Rules 1991 and the Magistrates' Courts (Reciprocal
Enforcement of Maintenance Orders) Rules 1974 (in the case of
the last three instruments the enabling power is amended to exclude
family proceedings rather than repealed). It notes, however, that
the powers under which the Family Procedure (Adoption) Rules 2005
were made are largely included amongst the powers under which
these Rules are made, and that there may be other relevant provisions
not addressed in the memorandum.
1.6 The Department also explains that section
76(8) of the Courts Act 2003 provides that these Rules may, instead
of making provision for a particular matter, provide for such
provision to be made by directions. Rule 36.1 of these Rules provides
for a Practice Direction (36A) to provide for the extent to which
the new Rules will apply to proceedings commenced before the Rules
come into force. The Department also states that the particular
Practice Direction, which comes into force on the same day as
these Rules, preserves the existing rules for transitional cases
only. It lists the "previous rules"(including the Family
Procedure (Adoption) Rules 2005) and specifies that they no longer
apply except in limited transitional circumstances. Given section
76(8), rules 1.1, 2.1 and 36.1, and the statement as to the Practice
Direction, the Committee accepts the Department's argument both
as to the power to achieve necessary revocations in Practice Directions
and the efficacy of the particular Practice Direction in the effective
removal from application of the 2005 Rules subject only to limited
transitional saving.
1.7 That, however, leaves two further points
on which the Committee is not satisfied. Firstly, the lack of
comprehensiveness in the list of provisions to be replaced leads
to the conclusion that there may be unidentified provisions the
continued application of which remains uncertain. Secondly, the
absence of the standard means of establishing an audit trail of
what legislation is or is not in force (see Statutory Instrument
Practice, paragraph 2.6.2) appears in the Committee's view to
call for justification beyond the identification of precedents.
The Committee accordingly reports these Rules for requiring
the elucidation largely provided in the Department's memorandum
and (except in so far as repeal or equivalent amendment of enabling
powers is relevant) for failure to comply with proper legislative
practice.
S.I. 2010/2960: Reported
for unexpected use and defective drafting
Timeshare, Holiday Products, Resale and Exchange
Contracts Regulations 2010
(S.I. 2010/2960)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they make
an unexpectedly narrow use of the enabling power in one respect
and are defectively drafted in another.
2.2 The Regulations are made under section 2(2)
of the European Communities Act 1972. Regulations 12(2) and 14(1)
and (2) impose duties on traders relating to provision of information
before entering into, or when advertising, certain contracts relating
to timeshares. The Regulations do not specify a sanction for breach
of these duties, and the Committee asked what sanction was intended
for breach of those duties and how the intention was achieved.
In a memorandum printed at Appendix 2, the Department say "The
sanction is in the Consumer Protection from Unfair Trading Regulations
2008 and this has been highlighted in the Explanatory Note".
Part 2 of the 2008 Regulations imposes a number of broad obligations
enforced by a series of criminal offences. The Committee accepts
that breach of the obligations under regulations 12(2) and 14(1)
and (2) might amount to the commission of an offence under the
2008 Regulations; but in the absence of express provision linking
the two instruments the Committee does not accept that it is clear
that every breach of these Regulations will necessarily fall to
be enforceable under the 2008 Regulations. Indeed, if the duties
imposed by regulations 12(2) and 14(1) and (2) were so clearly
implicit in the duties imposed by the 2008 Regulations that breach
would necessarily amount to the commission of an offence under
the 2008 Regulations, regulations 12(2) and 14(1) and (2) would
be open to question on the grounds of serving no legislative purpose.
As things stand they appear to some extent at least arguably to
impose duties without providing either an effective method of
enforcement or any other legal consequence of breach. The Committee
accordingly reports regulations 12(2) and 14(1) and (2) for making
an unexpectedly narrow use of the enabling power.
2.3 Paragraph 5 of Schedule 6 to these Regulations
amends the Consumer Credit (Agreements) Regulations 1983, and
introduces a reference to agreements under these Regulations that
cannot be cancelled by the debtor. The Committee asked what was
intended to be caught by the reference in the amendment to agreements
that are not capable of being "cancelled by the debtor"
under these Regulations. In its memorandum, the Department says:
"The Department acknowledges that there are no credit agreements
to which the Regulations are relevant which cannot be cancelled
under the Regulations. The reference to the Timeshare Act 1992
in paragraph 23 of Schedule 1 to the Consumer Credit (Agreements)
Regulations 1983 should have been omitted rather than being replaced
with a reference to the Regulations. The Department regrets this
error and will amend the Consumer Credit (Agreements) Regulations
1983 at the next available opportunity." The Committee
accordingly reports paragraph 5 of Schedule 6 for defective drafting,
acknowledged by the Department.
S.I. 2010/2978: Reported
for defective drafting
Iran (United Nations Sanctions) (Amendment)
Order 2010 (S.I. 2010/2978)
3.1 The Committee draws the special attention
of both Houses to this Order on the ground that it is defectively
drafted.
3.2 This Order amends the Iran (United Nations
Sanctions) Order 2009. Article 8 states that article 5 of the
2009 Order is renumbered to become article 5A and the general
heading "General" is deleted. Article 9 provides "Delete
article 5 and insert a new article 5 in its place which reads
as follows -", but the new article which follows is numbered
"5A".
3.3 In a memorandum printed at Appendix 3, the
Foreign and Commonwealth Office states that article 8 was intended
to retain article 5 of the 2009 Order and merely to delete the
heading "General", and that article 9 was intended to
insert a new article 5A but not to delete anything.
3.4 Article 16(2) substitutes new paragraphs
(1) and (2) of article 12 of the 2009 Order. The new paragraph
(1) refers to an offence under article 5A(1). The Department states
that (on the assumption that article 5A is that inserted by article
9) the reference to article 5A(1) is correct. However, although
paragraph (1) of article 5A imposes a prohibition, it is paragraph
(3) of that article which makes a contravention of the prohibition
an offence. Accordingly, article 12(1) should have referred to
an offence under article 5A(3).
3.5 The Department accepts that the new paragraph
(2) of article 12 should have referred to an offence under article
5 and not merely to an offence under article 5(2), as both paragraphs
of that article create offences.
3.6 The Department apologises for the errors
which it has acknowledged, explains that the correct procedure
was not followed, and undertakes to correct the errors at the
first available opportunity. The Committee accordingly reports
articles 8, 9 and 16(2) for defective drafting, mostly acknowledged
by the Department.
S.I. 2010/3035: Reported
for defective drafting
Motor Fuel (Composition and Content) and Merchant
Shipping (Prevention of Air Pollution from Ships) (Amendment)
Regulations 2010 (S.I. 2010/3035)
4.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
4.2 Part 2 of these Regulations amends the Motor
Fuel (Composition and Content) Regulations 1999. Regulation 3(4)
amends the definition of "motor fuel" in regulation
2 so that it means (a) petrol, (b) diesel fuel, (c) gas oil, or
(d) other liquid fuel. In this context it is clear that "other"
has its normal meaning and that "other liquid fuel"
means liquid fuel which is not petrol, diesel fuel or gas oil.
4.3 Regulation 3(5) amends the definition of
"sell" in regulation 2 so that it now reads:
"sell" means -
(a) in relation to motor fuel which is petrol
or diesel fuel, to sell by retail at a filling station;
(b) in relation to motor fuel which is gas
oil or other liquid fuel, to sell to a person for use by that
person,
And cognate expressions are to be construed accordingly."
4.4 Regulation 7 substitutes new regulations
5A to 5C for the existing regulation 5A, which imposed restrictions
on the sale of gas oil. New regulation 5B is headed "Restrictions
on the distribution of gas oil and other liquid fuel", and
imposes various restrictions which are expressed as applying to
"gas oil or other liquid fuel" New regulation 5C, which
creates offences in respect of regulations 5A and 5B, is expressed
in similar terms.
4.5 It appeared to the Committee that it was
likely that the drafter had intended "other liquid fuel"
in the definition of "sell" and in new regulation 5B
to have the same meaning as in the definition of "motor fuel",
rather than the meaning it would naturally be given it its context
(namely, any liquid fuel other than gas oil). The Committee asked
the Department for Transport which meaning was intended and how
that intention was achieved by the Regulations.
4.6 In a memorandum printed at Appendix 4, the
Department explains that "other liquid fuel" is intended
to mean, wherever used, the same as it means in the definition
of "motor fuel". It also states its belief that this
intention is clear in the definition of "sell" and unambiguous
in regulations 5B and 5C. In the case of the former, it claims
that if the expression had its natural meaning paragraph (b) of
the definition would both conflict with and repeat paragraph (a).
In the case of the latter, it claims that it is clear from the
structure of the 1999 Regulations as amended that regulations
3 to 5 apply only to petrol and diesel fuel and that regulation
5B applies only to motor fuel other than petrol and diesel fuel,
and that any other interpretation would lead to clear overlap
and needless repetition between these provisions.
4.7 The Committee does not share the Department's
confidence as to the clarity of these provisions. The definition
of "sell" is capable of making sense if the other meaning
is applied, and paragraphs (a) and (b) are not expressed to be
mutually exclusive. Similarly, regulations 5B and 5C as well as
regulation 3 to 5 are capable of applying to petrol and diesel
fuel, as the Department appears to accept in the final paragraph
of its memorandum. It is true that there might be some resulting
unnecessary repetition, but sadly this Committee is fully aware
that needless repetition is not unknown in statutory instruments,
nor is it safe to rely on the structure of a statutory instrument
alone to give an everyday expression a meaning other than its
natural one. It follows in the Committee's view that the Department's
preferred interpretation is a tenable one rather than a secure
one.
4.8 The use of the expression "gas oil or
other liquid fuel" to mean something other than any liquid
fuel including gas oil, without making the intended meaning clear
to the reader, gives rise to ambiguity that could have been straightforwardly
avoided, for example by the insertion of a definition of "other
liquid fuel". The Committee accordingly reports regulations
3(5) and 7 for defective drafting.
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