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 from the Ministry of Defence in connection
with the Naval, Military and Air Forces Etc. (Disablement and
Death) Service Pensions Amendment Order 2003 (S.I. 2003/434)
is printed at Appendix 1.
3. A memorandum from the Department for Environment,
Food and Rural Affairs in connection with the Feedingstuffs (Zootechnical
Products) (Amendment) Regulations 2003 (S.I. 2003/545), and
the Medicated Feedingstuffs (Amendment) Regulations 2003 (S.I. 2003/546),
and a memorandum in connection with the Medicated Feedingstuffs
(Amendment) (Scotland, England and Wales) Regulations 2003 (S.I. 2003/752)
are printed at Appendix 2.
4. The Committee draws the special attention of
both Houses to this draft Code on the ground that elucidation
is required about the extent to which it contains all the practical
guidance it is required to contain.
5. Section 199(2) of the Trade Union and Labour Relations
(Consolidation) Act 1992 ("the 1992 Act") requires the
Advisory, Conciliation and Arbitration Service ("ACAS")
to provide, in one or more Codes of Practice, practical guidance
on certain specified matters, including the time off to be permitted
by an employer to a trade union member in accordance with section
170 of the 1992 Act (section 199(2)(b)).
6. Section 199(3) of the 1992 Act provides that the
guidance on that matter shall include guidance on the question
whether, and the circumstances in which, a trade union member
is to be permitted to take time off under section 170 for trade
union activities connected with industrial action.
7. The Committee asked the Department of Trade and
Industry which provisions of the draft Code were intended to meet
that requirement imposed by section 199(3).
8. In a memorandum printed at Appendix 3, the Department
pointed to paragraph 49 which, so far as relevant reads:
"Employers and unions have a responsibility
to use agreed procedures to settle problems and avoid industrial
action. Time off may therefore be permitted for this purpose particularly
where there is a dispute. There is no right to time off for trade
union activities which themselves consist of industrial action".
9. The Department also pointed to paragraphs 30 and
32 of the draft Code. So far as relevant, they read:
"30. The activities of a trade union member
can be, for example: attending workplace meetings to discuss and
vote on the outcome of negotiations with the employer ¼
32. There is no right to time off for trade union
activities which themselves consist of industrial action."
10. Both the final quoted sentence of paragraph 49
and the whole of paragraph 32 appear in bold type in the draft
Code. Paragraph 5 of the draft Code makes it clear that items
in bold type are a summary of the relevant statutory provisions
and do not form part of the practical guidance, which is in ordinary
11. Accordingly, the required practical guidance
on the question whether, and the circumstances in which, a trade
union member is to be permitted to take time off under section
170 for trade union activities connected with industrial action
is to be found in just two sentences of paragraph 49; and paragraph
30 gives an example of the sort of activity for which time off
may be permitted. The Committee is prepared to accept that this
is sufficient to meet the relevant statutory requirement in section
199(3). But as the Code does not itself indicate (by means of
footnotes, specific headings or other explanatory material) which
of its provisions are intended to meet that requirement, the
Committee reports the draft Code for the elucidation provided.
2002 (S.I. 2003/216)
12. The Committee draws the special attention
of both Houses to this Order on the ground that there has been
a serious breach of the Statutory Instruments Act in respect of
13. This Order (which is not required to be laid
before Parliament) established the East Sussex Hospitals National
Health Service Trust in the place of two former NHS trusts, which
the Order dissolved. The Order was made on 25 March 2002 and came
into force on 1 April 2002. It was not registered and printed
until February 2003, following which copies were supplied to the
Committee as required by Statutory Instrument Practice.
14. Section 2(1) of the Statutory Instruments Act
1946 requires a statutory instrument to be sent to the Queen's
Printer of Acts of Parliament and numbered immediately after it
is made, and copies of it to be printed and sold as soon as possible.
15. The Department of Health, in a memorandum printed
at Appendix 4, apologises for the delay of almost a year. It states
that the delay was the result of an administrative error at a
time when there was a high volume of Statutory Instruments to
process, and undertakes to take steps to ensure that the error
does not happen again.
16. The Committee is prepared to assume that those
directly affected by this Order would have been fully aware that
it had been made and brought into force. It is fortuitous that
the Order imposes no obligations on anyone but the new Trust.
Nevertheless, the Committee is concerned that instances of
failure to process instruments promptly and properly, in accordance
with the 1946 Act and Statutory Instrument Practice, appear
to be occurring too frequently. It therefore reminds all departments
of the need to ensure that adequate systems are put in place and
monitored to avoid similar failures.
17. The Committee therefore reports this Order
for the serious delay in numbering and printing it, contrary to
the requirements of the Statutory Instruments Act 1946.