TWELFTH REPORT |
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.
1997 (S.I. 1997/1972)
2. The Committee draws the special attention of both Houses
to these Regulations on the ground that they are defectively drafted.
Paragraph 7 of the Schedule to these Regulations provides
that "a person who is the spouse of an EEA migrant worker
who - (a) is installed in the United Kingdom with his spouse"
is a person who has a connection with the United Kingdom. The
Committee asked the Department whether it is (i) the EEA migrant
worker or (ii) the spouse of that worker who must comply with
the requirement in sub-paragraph (a). The Department for Education
and Employment reply in a memorandum printed in Appendix I that
the intention is that the spouse of the worker must comply
with the requirement. The Department accept that the drafting
is not as clear as it might be, and undertake to amend the paragraph
when amending Regulations are next made. The Committee reports
paragraph 7 of the Schedule to the Regulations for defective drafting,
acknowledged by the Department.
REGULATIONS 1997 (S.I. 1997/1968)
3. The Committee draws the special attention of both Houses
to these Regulations on the grounds that they require elucidation
in two places.
These Regulations prescribe arrangements for pupils who are
eligible to continue to hold assisted places at independent schools
in England and Wales by virtue of section 2 of the Education (Schools)
Act 1997. The rules for determining the amount of remission of
fees are contained in regulations 10 to 13, 15 and 16 (and the
Schedules). Regulation 14 requires the school to determine remission
questions for each school year (or, in certain circumstances,
part of a school year). Regulation 11(5) provides that regulations
11, 12 and 13 "shall have effect notwithstanding anything
in regulation 14 or any other provision of these Regulations".
The Committee asked the Department firstly to explain why
regulations 11, 12 and 13 are to "have effect notwithstanding
anything in regulation 14". In a memorandum printed in Appendix
II the Department for Education and Employment explain that regulation
14 provides that schools must determine "remission questions"
for every assisted place holder for each whole school year, or
in some circumstances for each part year. However, regulations
11 to 13 place certain restrictions on the amount of fee remission
to which parents of assisted pupils would otherwise be entitled.
Regulation 11(5) is intended to ensure that, where any restriction
is applicable in the case of an assisted pupil, the duty imposed
on his school by regulation 14 to determine remission questions
would not invariably arise. The Committee accepts that, in such
case, regulation 14 must be read subject to the remission rules
which override that regulation.
The Committee asked the Department secondly what provisions
could be contemplated by the reference in regulation 11(5) to
"any other provision of these Regulations". The Department
reply in their memorandum that this provision could bring in regulation
16, which provides that fees are to be remitted in accordance
in Schedule 2 but which might not apply in a case where one of
the restrictions on the remission of fees specified in regulations
11 to 13 had effect. The Committee reports regulation 11(5) as
requiring the elucidation provided in two respects.
REGULATIONS 1997 (S.I. 1997/1886)
4. The Committee draws the special attention of both Houses
to these Regulations on the grounds that they are defectively
drafted in two respects.
Regulation 3(1) modifies the British Telecommunications and
Kingston Licences by incorporating provisions as set out in Schedule
1. The Committee asked the Department to explain the effect of
regulation 3(2), which deems that "the modifications . .
. shall have effect as if they were made under section 12 of the
Act [the Telecommunications Act 1984] by the Director" that
is, the Director General of Fair Trading. The Department explain
in a memorandum printed in Appendix III that regulation 3(2) ensures
that the modifications made by these Regulations (which are made
under section 2(2) of the European Communities Act 1972) have
effect within the scheme of the 1984 Act. The intention is that
the modifications made by these Regulations may be amended by
the Director under sections 12 to 15 of the 1984 Act, without
the need for any further regulations. The Committee considers
that treating the modifications as if made under section 12, without
more, is an inadequate way of indicating the consequences which
are to follow. If words such as "and accordingly may be modified
by him under that section" had been added the intention would
have been clear. The Committee therefore reports the provision
for defective drafting.
Regulation 5(3) disapplies regulations made under section
27A of the 1984 Act "in relation to any relevant Licensee
in so far as that power is exercisable in respect of the target
indicators for services to which the Voice Telephony Directive
applies". The Committee asked the Department whether any
such regulations are in force for any of the relevant licences,
and secondly what is the intended effect for any future regulations.
The Department reply that there are no regulations currently in
force for any relevant license. They state that the intended effect
in respect of future regulations is that none could be made which
were capable of having effect in relation to the target indicators
for services to which the Voice Telephony Directive applies, and
that that limitation would cease automatically on repeal of that
Directive. The provision is, in the Committee's view, objectionable
on two grounds. First, it is ineffective: regulations made now
cannot inhibit the future exercise of a power when the power itself
has not been restricted in its scope. Secondly, it is unnecessary:
future regulations under section 27A of the 1984 Act should simply
not be made which conflict with the Directive. The Committee notes,
incidentally, the Department's remark (in paragraph 5) that regulation
5(3) was also intended to secure that there was no partial repeal
of section 27A. The Committee wishes to emphasise that enacting
regulation 5(3) could not have the effect of partially repealing
a provision of an Act of Parliament. The Committee reports regulation
5(3) for defective drafting.
1997 (S.I. 1997/1640)
REGULATIONS 1997 (S.I. 1997/1641)
5. The Committee draws the special attention of both Houses
to the St Mary's Music School (Aided Places) Amendment Regulations
1997 on the ground that they are defectively drafted and to the
Education (Assisted Places) (Scotland) Amendment Regulations 1997
on the grounds that they are defectively drafted and that their
form is defective.
Both of these Regulations amend, in regulation 2, the definition
of "parents" contained in the principal Regulations
of 1995. The new definition is the same in both cases, and is
set out in sub-paragraphs (b) to (e). The Committee asked whether
the words "in the ordinary case" in sub-paragraph (a)
are intended to indicate a case not dealt with by any of sub-paragraphs
(b) to (e). The Scottish Office Education and Industry Department
reply in the two memoranda printed in Appendix IV that the words
are intended to indicate the case of a child who has a father
or mother (or the survivor of them) and is not dealt with by any
of sub-paragraphs (b) to (e). The Committee considers that, since
"the ordinary case" has no natural meaning and the cases
described in sub-paragraph (b) and (c) are also cases of a child
who has a father or mother, sub-paragraph (a) ought to have been
drafted in terms excluding the application of any of the sub-paragraphs
that follow it. The Committee therefore reports regulation 2 of
each of these Regulations for defective drafting.
The Committee also asked the Department why, in the Education
(Assisted Places) (Scotland) Amendment Regulations 1997, new Schedule
2 to the 1995 Regulations was printed on page 4 and not page 3.
This means that the instrument takes up 6 pages rather than 4,
and is consequently more expensive than it need have been. The
Department say in their memorandum that they have no control over
the printing of an instrument and that it is a matter for the
Stationery Office. As Her Majesty's Stationery Office say, however, in a
letter (and draft circular for Departments) communicated to the
Committee, the ultimate responsibility for the page content of
statutory instruments rests with the Department: it is for the
Department to give correct instructions as to layout when they
return the press proof to the printer. It is the Committee's view
that that correctly states the responsibilities attaching to the
printing of statutory instruments. The Committee accordingly reports
the Regulations as being defective in form in that they contain
blank space which ought to have been utilised to carry the text
which followed on the next page.
The Committee takes this occasion to remind Departments of
their responsibility as regards printing as indicated above.
ORDER 1997 (S.I. 1997/1962)
6. The Committee draws the special attention of both Houses
to this Order on the ground that it is defectively drafted.
Article 1(3) provides that any reference to a Community reference
is "to that instrument and any amendment of such instrument
as may exist on the date this Order is made". The
Committee asked the Department whether this is intended to refer
to the adoption, the publication, or the entry into force of any
such instruments or amendments. The Ministry of Agriculture, Fisheries
and Food reply in the memorandum printed in Appendix V that article
1(3) is intended to refer to amendments which are in force
on the date the Order is made. They accept that this could
be made more explicit and state that it will be "borne in
mind" for future Orders. The Committee considers that the
words used are unacceptably imprecise and ought to be amended,
and reports article 1(3) for defective drafting, acknowledged
by the Department.
1997 (S.I. 1997/1984)
7. The Committee draws the special attention of both Houses
to this Order on the ground that it is defectively drafted.
By article 3(1) and Schedule 1 Part III a rent officer must
give notice to the local authority of his determination of a reference
rent within "the relevant period", which in a case where
he requires further information is not to begin until he receives
the information. Article 5 enables the rent officer to ask the
authority for further information and disapplies, until he receives
that information, the provisions imposing on him a duty to make
and give notice of his determination. The Committee asked the
Department to explain why the second limb of article 5 is necessary.
The Department of the Environment, Transport and the Regions reply
in a memorandum printed in Appendix VI that, while they agree
that this provision "is not strictly necessary", they
consider that it "helps users of the legislation". The
Committee has already reported this Session on a similar provision
contained in S.I. 1997/778
which (contrary to the Department's contention) it finds indistinguishable
from the provisions of the present Order. The Committee accordingly
restates its conclusion that this duplicated provision is unnecessary
and as such is likely to be a source of confusion, not of illumination,
to attentive readers of the instrument. The Committee reports
the second limb of article 5 for defective drafting.
REGULATIONS 1997 (S.I. 1997/1966)
8. The Committee draws the special attention of both Houses
to these Regulations on the grounds that they are defectively
drafted in two places.
Regulation 4(1)(a) prescribes a period during which the Chief
Inspector is to secure that certain primary and secondary schools
are inspected. The period begins on 1 September 1994; before
the Regulations came into force. The Committee asked the Department
to explain the effect of imposing this duty in relation to the
period between 1 September 1994 and 1 September 1997 when the
Regulations came into force. The Department for Education and
Employment explain in a memorandum printed in Appendix VII that
these Regulations consolidate the Education (School Inspection)
(No. 2) Regulations 1993 as amended and that regulation 4(1)(a)
repeats the whole of the period including the period mentioned
in the previous Regulations. They contend that "it is clear"
that a school which was inspected between 1 September 1994 and
1 September 1997 need only be inspected once in that period and
that a school which was not inspected in that period must be inspected
before 1 August 1999. The Committee considers that the provision
reveals a fundamental misunderstanding of the legislative situation
which arises on a consolidation and in particular the ineffectiveness
(without express statutory authority) of a purported retrospective
imposition of a duty by the successor instrument. Until revoked,
the 1993 Regulations imposed this duty on the Chief Inspector
and all that these Regulations could do was to impose the duty
for the future, whilst making provision excluding the new duty
where it had been discharged during the period regulated by the
1993 Regulations. The Committee reports regulation 4(1)(a) for
The Committee asked the same question in respect of the requirement
imposed by regulation 12(1)(b) (denominational schools). The Department
give the same answer in their memorandum as for regulation 4(1)(a):
the Committee reports regulation 12(1)(b) for defective drafting.
1997 (S.I. 1997/1888)
9. The Committee draws the special attention of both Houses
to these Regulations on the ground that they require elucidation
which shows that the provision in question is defectively drafted.
Regulation 7(2) inserts into the National Health Service
Pension Scheme Regulations 1995 a definition of "Doctors'
Retainer Scheme" as having "the same meaning as given
at paragraph 39 of the Statement" referred to. The Committee
asked the Department to state what this definition is and why
the text of it was not set out in the Regulations. The Department
of Health attach the definition (in paragraph 39 of the Statement)
to their memorandum, which is printed in Appendix VIII. They state
that they thought it preferable to define the term by reference
because the full definition was very long in comparison with the
other definitions in the 1995 Regulations, and consider that this
will not inconvenience the principal users of the Regulations
(officers of the Department's NHS Pensions Agency). The Committee
accepts the Department's view of the balance of convenience to
users in this case. The text of the Statement shows, however,
that the definition in regulation 7(2) is wrong in suggesting
that "Doctors' Retainer Scheme" set out in paragraph
39 of the Statement gives a meaning to that expression.
It only describes the Scheme and this is the word which
should have been used in the definition. The Committee reports
regulation 7(2) of the present Regulations as requiring the elucidation
provided by the Department's memorandum which shows that the provision
in question is defectively drafted.
1996 (PART IV) (ALLOCATION
ORDER 1997 (S.I. 1997/1896)
10. The Committee draws the special attention of both Houses
to this Order on the ground that it requires elucidation.
Article 4(1) provides that, subject to certain specified
provisions (including paragraph 1 of Schedule 7 to the 1996 Act)
proceedings under Part IV of that Act may be commenced in a county
court or in a family proceedings court. The Committee asked the
Department to explain the significance of the reference to paragraph
1 of Schedule 7 to the 1996 Act (which contains only definitions
of expressions used in that Schedule). The Department explain
in the memorandum printed in Appendix IX that section 53 of the
1996 Act and Schedule 7 give the courts power to transfer certain
tenancies in the context of proceedings under Part IV of the Act.
Paragraph 1 of Schedule 7 includes a definition of "the court"
as "not [including] a magistrates' court". In other
words, magistrates' courts do not have jurisdiction to make orders
under Schedule 7. Paragraph 1 of Schedule 7 was included in article
4(1) to draw attention to the limitations on the broad choice
of venue for commencing proceedings otherwise provided by article
4(1). The Committee reports article 4(1) as requiring the elucidation
provided by the Department's memorandum.
1 * The Orders of Reference of the Committee are set
out in the First Report, Session 1997-98 (HL Paper 4; HC 33-i). Back
2 See Rent
Officers (Housing Renewal Grants Functions) Order 1997 (S.I. 1997/778):
Fourth Report, Session 1997-98, paragraph 8. Back