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
2. A memorandum by the Home Office in connection
with the Immigration (Designation of Travel Bans) Order 2000 (S.I. 2000/2724)
is printed in Appendix 1.
3. A memorandum by the Department of Health in connection
with the Specified Risk Material (Amendment) (England) Regulations
2000 (S.I. 2000/2672) is printed in Appendix 2.
4. A memorandum by the Department of Trade and Industry
in connection with the Dual-Use Items (Export Control) Regulations
2000 (S.I. 2000/2620) is printed in Appendix 3.
5. The Committee draws the special attention of both
Houses to these Regulations on the ground that there was a procedural
defect in their laying.
6. These regulations amend the Animals and Animal
Products (Import and Export) (England and Wales) Regulations 2000
the purpose of which is to ensure the effective application in
England and Wales of Commission Decision 2000/528/EC laying down
measures to prevent the spread of classical swine fever.
7. It is in the nature of such protective measures
that they are subject to amendment at short notice, whether to
relax or intensify restrictions which they impose, depending on
the spread of the disease to which they relate.
8. On 12 September 2000 the Commission adopted an
amending Decision which extended the period of application of
its original Decision from 15 September to 15 October 2000. These
Regulations therefore had to be in force by 15 September 2000
at the latest.
9. The Regulations were in fact made on 14 September
2000 and expressed to come into force on the following day. As
they were laid before Parliament on 15 September, the day on which
they came into force, it follows that they came into force before
they were laid (because a statutory instrument comes into force
at the beginning of the relevant day but is laid in the course
of the day, during business hours).
10. In those circumstances the proviso to section
4(1) of the Statutory Instruments Act 1946 required the Ministry
of Agriculture, Fisheries and Food to send a notification to the
Lord Chancellor and the Speaker.
11. The Committee noticed that no such notification
had been received and asked why. The Department in its memorandum
printed in Appendix 4 apologised for overlooking this requirement
in the haste with which the instrument had had to be drafted and
12. The Committee accordingly reports these Regulations
for failure to comply with the procedural requirement of the proviso
to section 4(1) of the 1946 Act acknowledged by the Department.
2000 (S.I. 2000/2820)
13. The Committee draws the special attention of
both Houses to this Order on the ground that it is defectively
14. This Order is one of a series by which the Secretary
of State for Health has established Primary Care Trusts for the
purpose of, inter alia, exercising functions in relation
to the provision of general medical services. This particular
Order establishes the area of the Harlow Primary Care Trust, deals
with its membership and makes transitional arrangements for the
period before the Trust becomes operational on 1 April 2001.
15. In common with certain other Orders in this series
this Order contains a definition of a term "establishment
date" which is not otherwise used in the Order. The Committee
asked the Department of Health to explain why it did so.
16. The Department's memorandum printed in Appendix
5 acknowledges, and apologises for, the error which a letter from
the Committee had drawn to its attention in relation to a number
of other Orders on 1 November 2000 and explains that, because
this Order was made on 13 October before that letter was received,
it could not act upon it in this case. It does, however, promise
to take steps to ensure that the same error does not appear in
future such Orders.
17. The Committee accordingly reports article 1(2)
of this Order for defective drafting acknowledged by the Department.
2000 (S.I. 2000/2821)
18. The Committee draws the special attention of
both Houses to this Order on the ground that it is defectively
19. This Order brings into force section 16(2) of
the Adoption (Intercountry Aspects) Act 1999. It does so by specifying
"16th of October" as the appointed day for that purpose.
It does not, however, specify any year. The Committee asked the
Department of Health to explain why it did not do so. The Department's
memorandum printed in Appendix 6 argues that it is implicit (presumably
from the date on which the Order was made) that the intended day
is 16 October 2000, as is confirmed by the Explanatory Note.
20. Failure to specify a commencement date unambiguously
may render it impossible to ascertain with certainty the date
on which a provision is to come into force thus rendering the
Order in question ineffective.
21. In this case the Committee accepts that the intended
date can be ascertained with sufficient certainty in the circumstances.
It therefore accepts that the Order works, despite the omission
of any reference in the operative article to the year 2000.
22. This, however, does not justify the failure fully
to specify the appointed day in the Order and the Committee accordingly
reports article 2 of this Order for defective drafting acknowledged
by the Department.
2000 (S.I. 2000/2821)
23. The Committee draws the special attention of
both Houses to these Regulations on the grounds that they are
defectively drafted, contain unjustified referential legislation,
and are not drafted in accordance with proper legislative practice.
24. Regulation 1(2) defines "the court"
as having the same meaning as in section 66(1) of the Arbitration
Act 1996. It was not clear to the Committee what that expression
meant in that section, and why (instead of referring the reader
to the Act) the meaning was not set out in full in that regulation.
Section 66(1) refers to enforcement proceedings by the leave of
"the court" without defining this term. However, section
105(1) provides that, in that Act, "the court" means
the High Court or a county court, "subject to the following
provisions" of the section; and subsection (2) empowers the
Lord Chancellor by order to make provision allocating proceedings
under the Act to the High Court or to county courts. In a memorandum
printed in Appendix 7, the Department of Health explain that in
section 66(1) "the court" means the High Court or any
county court, since the effect of the High Court and County Courts
(Allocation of Proceedings) Order 1996 (S.I. 1996/3215) is
that enforcement proceedings under section 66 may be commenced
in the High Court or any county court. The Department acknowledge,
however, that it would have been preferable to have set out the
definition in the Regulations instead of referring to the 1996
Act. In the Committee's view, the definition of "the court"
in regulation 1(2), in addition to being drafted in unnecessarily
referential manner, is also defectively drafted, since it is not
apparent what that expression means in section 66(1) without reference
to the 1996 Order. The Department also concede that, since the
expression is only mentioned in paragraph (8) of regulation 32,
it would have been preferable to place the definition in that
regulation. Accordingly, in this respect the Committee reports
the instrument for failure to comply with proper drafting practice.
Indeed, as the Department accept, regulation 32(8) could appropriately
have referred to a county court (which is defined in regulation
1(2)) instead of "the court", given that a costs order
cannot exceed a total of £500 in relation to an application.
This substitution would of course have removed the need for defining
"the court". The Committee reports the definition of
"the court" in regulation 1(2) as being an unjustified
piece of legislation by reference, and also on the grounds that
it is defectively drafted and is not drafted in accordance with
proper legislative practice.
25. Paragraph (4)(b) of regulation 8 requires the
Secretary of the Tribunal to notify the parties without delay
of the President's decision to refuse leave and to provide them
with a copy of the reasons. The Department accept that this provision
is unnecessary, given that it overlaps with paragraph (5) which
requires the Secretary to notify the parties without delay of
the President's decisions and, if he has refused leave, of his
reasons for doing so. Accordingly, the Committee reports regulation
8(4)(b) for defective drafting, acknowledged by the Department.
26. Regulation 30(2)(a) provides that an application
for review of the Tribunal's decision must be made not later than
ten working days after the date on which the decision was sent
to the parties. It was not clear to the Committee when this period
would begin to run if a copy of the decision was not sent to the
parties on the same day. The Department explain that the intended
effect is that the application by either party must be made not
later than ten working days after the date on which the decision
was sent to the second party. However, in the Committee's view,
the drafting is not effective to achieve this purpose, since a
party will not know whether the decision was sent to both parties
on the same day and will therefore not know for certain when the
period ends. The Department accept, however, that (as suggested
by the Committee) the provision would be improved if it provided
that an application by a party must be made not later than ten
working days after the date in which a copy of the document was
sent to him. The Committee reports regulation 30(2) for defective
27. The Department indicate that they intend to amend
the Regulations at a suitable opportunity to take account of the
points raised by the Committee on regulations 8(4)(b) and 30(2).
Given that the Department accepts that it would be desirable to
improve regulation 32(8) by providing simply that a costs order
may be enforced in any county court (thus obviating the need for
defining "the court" in regulation 1(2)), the Committee
expects that this aspect should also be dealt with at the same
2000 (S.I. 2000/2532)
28. The Committee draws the special attention of
both Houses to these Regulations on the ground that they require
29. These Regulations, which for the most part re-enact
1985 Regulations of the same title as subsequently amended, deal
with the inspection of plans and building work. Under the parent
Act (the Building Act 1984) responsibility for carrying out inspections
to ensure compliance with building regulations may be entrusted
to an approved inspector instead of to the local authority.
30. Regulation 4 of these Regulations enable the
Secretary of State to designate a body for the purpose of approving
inspectors. Where there is no designated body, regulation 3(2)
provides for the Secretary of State to carry out this function.
Regulation 6(4) permits, but does not require, a designated body
or the Secretary of State to withdraw an approval in the case
of a person who is convicted of an offence under section 57 of
the Building Act 1984. This section creates offences of knowingly
or recklessly giving notices or certificates under the Act which
contain statements which are false or misleading. The seriousness
of these offences is indicated by the option given to the prosecution
to proceed in the Crown Court where the maximum penalty on conviction
is an unlimited fine or a term of imprisonment for up to two years
31. The Committee was surprised that in these circumstances
withdrawal of an inspector's approval was not made mandatory and
asked the Department of the Environment, Transport and the Regions
to explain in what circumstances it was contemplated that, not
withstanding the conviction of an inspector, his approval would
not be withdrawn.
32. The Department's memorandum printed in Appendix
8 gives, by way of illustration, three circumstances in which
in its view approval might properly not be withdrawn in the case
of an inspector's conviction.
33. Two concern cases in which the commission of
the offence was due to the act of a subordinate and appropriate
steps have been taken to prevent a repetition of the offence.
The third concerns a case in which the offence is not thought
to be sufficiently serious to warrant withdrawal of approval (because
the statement in question was made recklessly rather than knowingly
or was false in only a limited number of particulars).
34. The Committee, mindful that these are for the
most part consolidating Regulations, accordingly reports them
to the House as requiring elucidation which has been given by
the Department in its memorandum.
2000 (S.I. 2000/2546)
35. The Committee draws the special attention of
both Houses to these Regulations on the ground that they are defectively
36. These Regulations prescribe various forms to
be used in connection with the enforcement of fixed penalty offences.
Section 88(2) of the Act under which they are made, the Road Traffic
Offenders Act 1988, requires the Secretary of State to consult
with representative organisations before making them.
37. Because the recital of powers makes no mention
of any such consultations the Committee asked the Home Office
whether they had been undertaken and, if so, why they were not
mentioned in the recital of powers as required by paragraph 2.26
of Statutory Instrument Practice.
38. The Department's memorandum printed in Appendix
9 confirms that it did indeed consult with representative organisations
and accepts that this should have been recited in the preamble
to these Regulations.
39. The Committee accordingly reports the Regulations
for defective drafting of the preamble acknowledged by the Department.
2000 (S.I. 2000/2688)
40. The Committee draws the special attention of
both Houses to these Regulations on the ground that they are defectively
41. These Regulations, which reproduce with amendments
similar Regulations made in 1994, prohibit railway undertakings
from operating, or permitting the operation of, a train or station
unless the relevant undertaking has submitted to the Health and
Safety Executive ("the Executive") a safety case acceptable
to the Executive.
42. Regulation 5(2) requires an operator of a train
or station to submit his safety case simultaneously to the Executive
and to the controller of the relevant railway infrastructure.
Where the operator and the infrastructure controller agree to
modify the safety case, regulation 5(4)(a) requires the latter
to send the modified case to the Executive. Regulation 5(7)(c)
then provides that, where the Executive accepts a safety case
which differs from that submitted by the operator under regulation
5(2), or, where paragraph (3)(a) applies, under that paragraph,
the Executive must notify the infrastructure controller of the
changes made. As the reference to paragraph (3)(a) appeared to
make no sense, the Committee asked the Department of the Environment,
Transport and the Regions whether the reference should have been
to paragraph (4)(a). The Department, in its memorandum printed
in Appendix 10, confirms that the reference should have been to
paragraph (4)(a) and undertakes to amend regulation 5(7)(c). The
Committee accordingly reports regulation 5(7)(c) for defective
drafting acknowledged by the Department.
43. Regulation 17(1) and (3) permit the Executive,
or as the case may be the Secretary of State for Defence, to grant
exemptions from the requirements or prohibitions imposed by these
Regulations subject, in both cases, to any Community obligation
of the United Kingdom.
44. As the Committee observed in its Third Report
(Session 1997-98), such a general saving is unnecessary as the
generality of the words conferring the power to grant exemptions
must be regarded as implicitly restricted so as to exclude an
exercise of this power inconsistently with the United Kingdom's
45. The Committee therefore asked the Department
to explain why this general saving had been included. The Department's
memorandum acknowledges that it was included by reason of oversight,
for which it apologises. The Committee accordingly reports these
Regulations for defective drafting of regulation 17(1) and (3)
acknowledged by the Department.
1 The Orders of Reference of the Committee are set
out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back