Memorandum from the Lord Chancellor's
2001 (S.I. 2001/1077)
1. The Lord Chancellor's Department submits this
memorandum in response to the request dated 2 May 2001 on the
points set out below.
(1) As drafted, article 8(2)(b)(ii)
is inconsistent with article 8(2)(c). Is article 8(2)(b) intended
to apply for the purpose only of determining the period for which
a hearing continues as referred to in article 8(2)(a)?
2. It is correct that article 8(2)(b) applies in
order to determine the period for which the hearing continues
for the purposes of article 8(2)(a), but in addition article 8(2)(c)
makes provision for the situation where a hearing in fact continues
after 5 pm and concludes on the same day. The Department acknowledges
that the relationship between article 8(2)(b)(ii) and 8(2)(c)
could have been clearer, but considers that any apparent contradiction
is clearly resolved by construing the word "continues"
in article 8(2)(c) as meaning continues in fact. This is
supported by the use of the word "concludes", rather
than "ends", in that article, in the same sense as it
is used in article 8(2)(b)(ii).
(2) Article 9(6) requires
the Regional Director, when considering a claim for a special
issue payment in relation to functions F1 and F4, to consider
certain matters. Is it intended that a payment must be made if
he considers that those matters apply or does he retain a discretion
whether to allow such a payment? Why does the article not make
the position clear (contrast articles 9(4) and 16(4)?
3. Under article 9(6) the Regional Director has a
discretion, in relation to claims made under article 9(5), only
as to whether he considers that the work in question was reasonably
carried out and, in respect of the special issues mentioned, whether
the issue was of substance and relevant. If, in his discretion,
these matters are satisfied, the claim must be allowed. The Department
took the view that it was not necessary expressly to state that
no further discretion was retained.
3 May 2001