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 Land Registration
Fees Order 1999 (S.I. 1999/2254) is printed in Appendix 1
to this report.
3. A Memorandum from the Lord
Chancellor's Department in connection with the Court of Protection
(Enduring Powers of Attorney) (Amendment) Rules 1999 (S.I. 1999/2505)
is printed in Appendix 2 to this report.
4. A Memorandum from the Ministry
of Agriculture, Fisheries and Food in connection with the Agricultural
Holdings (Units of Production) (England) Order 1999 (S.I. 1999/2230)
is printed in Appendix 3 to this report.
1999 (S.I. 1999/2426).
5. The Committee draws the special
attention of both Houses to this Order on the ground that it is
6. The purpose of this Order
is to provide for the replacement of a number of Magistrates'
Courts Committee with a single Committee, to be known as the Greater
Manchester Magistrates' Courts Committee. The Committee asked
the Lord Chancellor's Department to explain how the provisions
of the schedule to the Order, where they apply (with modifications)
or disapply the Constitution Regulations (defined in paragraph
1) of the schedule as the Regulations of 1994, will operate given
that the 1994 Regulations have been revoked and replaced by S.I.
1999/2395 (the new Constitution Regulations).
7. The Lord Chancellor's Department
explain, in the Memorandum printed in Appendix 4, that the Order
was made on the 26th August 1999 whereas the new Constitution
Regulations were made five days later and it was accordingly impossible
to draft the Amalgamation Order in such a way as to refer to the
new Constitution Regulations. The Memorandum explains that, under
section 17(2)(a) of the Interpretation Act 1978, which provides
that an Act which repeals or re-enacts a previous enactment, references
to the enactment so repealed are to be construed as references
to the provision re-enacted. Section 23 of the same Act provides
that these provisions generally apply to subordinate legislation
as well. The Department accordingly relied on the provisions of
the Interpretation Act in this case.
8. The Committee accepts that,
as a matter of drafting practice, it is proper to rely upon the
above provisions of the Interpretation Act in such situations.
The Committee also accept that readers of the Order will face
no substantial difficulty in identifying the corresponding new
Regulations. The Committee nevertheless reports the Order, for
the elucidation provided in the Memorandum, because, in the Committee's
view, it would have been better had the Department drafted the
Order in terms of the new Regulations. In the Committee's view,
it would have been possible to do so (with any necessary transitional
adaptations) in the timetable outlined by the Department thus
making this Order readily comprehensible to the reader.
1999 (S.I. 1999/2259)
9. The Committee draws the special
attention of both Houses to the above regulations on the ground
that they are defectively drafted, as acknowledged in the Memorandum
from the Department for Education and Employment printed in Appendix
10. Regulation 6 (2) (c) deals
with voting on any decision of a school organisation committee
in relation to consent "under paragraph 8 of the modified
schedule 6 to the Act to the withdrawal of proposals". The
Committee asked the Deparment to identify the provision, given
that paragraph 8 relates to schools in Wales. The Memorandum admits
the error and indicates that the reference should have been to
paragraph 3 (8).
1999 (S.I. 1999/2263).
1999 (S.I. 1999/2270).
11. The Committee drawns the
special attention of both Houses to the above two Regulations
on the ground that they make unexpected use of the power under
which they are made.
12. Both Regulations are made
under section 22 of the Teaching and Higher Education Act 1998
and provide for grants to be made to students in connection with
attendance at certain higher education institutions and courses.
In both cases, Regulation 3 (2) of the Regulations imposes a limit
on the number of students eligible for support in each twelve-month
period. The Committee asked the Department for Education and Employment
what provision of section 22 of the 1998 Act authorises the imposition
of such limit. In the Memoranda printed in Appendix 6, the Department
cited section 22 (1) of the Act as follows: "Regulations
shall make provision authorising or requiring the Secretary of
State to make grants or loans". It was the Department's view
that these words allowed the support to be either mandatory or
discretionary and that the Regulations may accordingly confer
on the Secretary of State a discretion to provide support by way
of grants and loans to some students on a particular course or
at a particular institution, but not to all such students. They
inferred from this that Regulations may authorise the Secretary
of State to provide support to a specified number of eligible
students and indicated that discretion must be exercised by reference
to merit, as set out in regulation 3 of the Regulations.
13. The Committee considered
carefully whether these limbs of the Department's explanation
satisfactorily followed in logic. The Committee considered in
particular whether the word "authorise" in the Act,
if it did indeed provide a discretion, was also sufficient to
allow the imposition of a limit on numbers. It is the Committee's
view that the Department's explanation overlooks the structure
and wording of the section under which the Regulations are made.
Section 22 clearly contemplates both eligible students and designated
courses; and, given the designated courses and the criteria for
eligibility, the section provides that grant either shall or may
be given. The Committee accordingly questioned whether the power
authorised the imposition of a limit on numbers as an aspect of
eligibility. In the Committee's view it is plain from subsection
2(a) that eligibility is a criterion referable to the individual
student. A limit on numbers is an extraneous factor, as it is
not related to an individual student.
14. It is the Committee's view
that, had the Regulations assumed the determination of who is
an eligible student without reference to a limit and accordingly
authorised the Secretary of State to make grant on that basis,
it would have been proper for the Secretary of State's discretion
to be exercised by reference to student numbers and, therefore,
their aggregate cost to public funds. Because the Regulations
are, however, framed instead by incorporating a limit into the
determination of eligibilty they do, in the Committee's view,
make an unexpected use of the power.
1999 (S.I. 1999/2267)
15. The Committee draws the
special attention of both Houses to these Regulations on the ground
that they are in two places defectively drafted, as acknowledged
in the Memorandum from the Department for Education and Employment
printed in Appendix 7.
16. The Committee asked the
Department which provisions of the 1989 Regulations containing
a definition of "Maintained School" were to be replaced
by the new definition in Regulation 7 (a). The Department indicate
that the reference is to Regulation 2 of the Education (National
Curriculum) (Temporary Exceptions for Individual Pupils) Regulations
1989 (S.I. 1989/1181).
17. The Committee also asked
the Department to explain the reference, in Regulation 10 (2),
to "a determination for the purposes of Section 56 (2) of
the 1998 Act", notice of which has been given "under
sub-section 4 (of that section)". The Department admitted
that the reference should have been to sub-section (3). The Department
has undertaken to amend to correct these two errors.
1999 (S.I. 1999/2205).
18. The Committee draws the
special attention of both Houses to these Regulations on the ground
that they are defectively drafted as admitted by the Department
of the Environment, Transport and the Regions in the Memorandum
printed in Appendix 8.
19. The Committee asked the
Department why Regulation 3 (2) applies (among others) Regulation
2 (Interpretation) to non-United Kingdom ships while in United
Kingdom waters, given that Regulation 2 itself applies for all
purposes. The Department accept that this provision is unncessary.
1 The Orders of Reference of the Committee are set
out in the First Report, Session 1998-99 (HL Paper 4; HC 50-i). Back