Memorandum by the Lord
1999 (S.I. 1999/2426)
1. The Committee considered
the above instrument ("the amalgamation order") at its
meeting of 26th October 1999 and has requested a memorandum on
the following point:
how the provisions of the Schedule, where they apply (with modifications)
or disapply the Constitution Regulations (defined in paragraph
1 as those of 1994), will operate now those (1994) Regulations
have been revoked and replaced by S.I. 1999/2395."
2. The amalgamation order was
made on 26th August 1999. S.I. 1999/2395 ("the new constitution
regulations") was made on 31st August 1999 and came into
force on 27th September 1999. It was therefore impossible to draft
the amalgamation order in such a way as to refer to the new constitution
3. The Lord Chancellor's Department
refers the Committee to section 17(2)(a) of the Interpretation
Act 1978, which provides that "Where an Act repeals and re-enacts,
with or without modification, a previous enactment then, unless
the contrary intention appears, any reference in any other enactment
to the enactment so repealed shall be construed as a reference
to the provision re-enacted;", and to section 23 of the same
Act, which provides that the provisions of that Act (with certain
exceptions not relevant to the present question) apply to subordinate
legislation as they do to Acts, and that "enactment"
includes an enactment comprised in subordinate legislation.
4. The new constitution regulations
are closely based on the 1994 regulations, but contain some additional
provisions, such as the requirement for selection panels to state
selection criteria for membership of magistrates' courts committees
(regulation 6(2)). For each provision of the 1994 regulations,
except for those relating solely to the selection of the first
committees following the coming into force of those regulations,
it is possible to identify the corresponding provision in the
new constitution regulations.
5. Accordingly, whenever the
amalgamation order speaks of things to be done on or after 27th
September 1999, any reference to a provision of the 1994 regulations
is to be construed as a reference to the corresponding provision
of the new constitution regulations. Similarly references to "the
Constitution Regulations" generally are to be construed as
references to the new constitution regulations. Paragraph 5(5)
of the Schedule to the amalgamation order provides that "the
Constitution Regulations" shall apply to the transferee committee
"subject to paragraph 4 above and to the preceding sub-paragraphs
of this paragraph". New provisions of the new constitution
regulations will therefore apply except where the timetable of
the amalgamation makes this impossible.
6. The only instance of this
of which the Department is aware is in connection with regulation
7(b) of the new constitution regulations. This requires a candidate
to give written notice of matters which might support his candidature,
including how he meets the selection criteria. The establishment
of selection criteria is the duty of the selection panel.
(1) In the general
case, this must be done by 31st December of the year preceding
that to which his candidature relates; but the selection panel
which is to perform the selection does not come into existence
until 1st January. The notice of candidature must therefore refer
to selection criteria established by a selection panel prior to
that which is to perform the selection.
(2) In the case described
in the amalgamation order, the reference to 31st December is to
be read as a reference to the day preceding the first appointed
day (paragraph 5(5)(c) of the Schedule to the order). Similarly
the selection panel comes into existence not on 1st January but
on the first appointed day. However, the selection panel that
comes into existence on the first appointed day is the first selection
panel for the amalgamated area; until that time there was no selection
panel, and therefore no selection criteria for the notice of candidature
to refer to.
7. To meet this situation, it
is submitted that the relevant part of regulation 7(a) must be
construed as meaning "the selection criteria (if any)".
The new selection panel is nevertheless bound to establish selection
criteria as soon as possible after it comes into existence and
a reasonable time before it selects the members of the committee.
Candidates are then at liberty to forward further particulars,
explaining how they meet the selection criteria.
28th October 1999