SIXTEENTH 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.
2. A memorandum by the Department of the Environment, Transport
and the Regions in connection with the Local Authorities (Armorial
Bearings) (No. 2) Order 1997 (S.I. 1997/2618) is printed
in Appendix I to this Report.
3. A memorandum by the Solicitor's Office on behalf of the
Registrar General of Births, Deaths and Marriages for Scotland
in connection with the Registration of Births, Still-births, Deaths
and Marriages (Prescription of Forms) (Scotland) Regulations 1997
(S.I. 1997/2348) and the Marriage (Prescription of Forms)
(Scotland) Regulations 1997 (S.I. 1997/2349) is printed in
Appendix II to this Report.
4. A memorandum by the Scottish Office in connection with
the Surface Waters (Shellfish) (Classification) (Scotland) Regulations
1997 (S.I. 1997/2470) is printed in Appendix III to this
Report.Registration of Marriages (Amendment) Regulations 1997
5. The Committee draws the special attention of both Houses
to these Regulations on the ground that they are defectively drafted.
These Regulations amend the Registration of Marriages Regulations
1986 and the Registration of Marriages (Welsh Language) Regulations
1986. They substitute new prescribed forms for notice of marriage
without licence, notice of marriage with licence, certificate
for marriage, certificate and licence for marriage and instructions
for the solemnisation of a marriage in a registered building without
the presence of a registrar, in both English and Welsh.
It seemed to the Committee that in several places the Welsh
language forms, contained in Schedule 2, failed to reflect accurately
the English language forms, and so the Committee asked the Office
for National Statistics several specific questions on the accuracy
of the Welsh translation (printed in Appendix IV). For example,
firstly, the English version of paragraph 5 of Form 8 (Schedule
2) states that "it is essential to the validity of the marriage"
that each of the parties makes a declaration in one of the following
forms "(c) by replying `I am' to the question put to them
successively `Are you [name] free lawfully to marry [name].'"
A translation of the words "put to them successively"
is not included in the Welsh version of the form. Secondly, the
English version of paragraph 8 of the same form refers to a "certified
copy" of an entry in the marriage register books, whereas
the Welsh version refers only to a "copy". The Department's
memorandum, also printed in Appendix IV, referred back to previous
regulations to explain all except one of the discrepancies outlined
in the Committee's memorandum, and did little to justify them.
Because the Department had failed to justify the apparent discrepancies,
and considering that the Welsh and English versions of the forms
now have equal legal effect, the Committee decided to call the
Department to give oral evidence on the Regulations. The transcript
is printed in Appendix IV. At the meeting, the Department conceded
that there were discrepancies between the Welsh and the English
language versions of the Regulations (Question 6), in particular
in relation to the two paragraphs described above (Questions 16
and 24 respectively), and they admitted that some of these discrepancies
might cast doubt on the validity of a marriage (Question 18).
The Department stated that they hoped to correct the errors in
translation "during the next year" (Question 28) and
to look generally at the correctness of the Welsh language versions
of these forms (Question 26). The Committee concludes that, as
the English and Welsh language versions of the Regulations do
not correspond in the respects mentioned above, the Regulations
are in these respects defectively drafted, which is accepted by
IRELAND) 1997 (S.R. 1997/474)
6. The Committee draws the special attention of both Houses
to these Regulations on the grounds that they are defectively
drafted in three respects.
These Regulations impose requirements and prohibitions with
regard to the carriage of explosives by road. Regulation 3(3)(a)
disapplies certain regulations in relation to vehicles exempt
from excise duty under section 7(1) of the Vehicle Excise and
Registration Act 1994. The Committee asked the Northern Ireland
Office whether the reference should be to section 5(1) of that
Act. In their memorandum, printed in Appendix V, the Department
admit that regulation 3(3)(a) should refer to section 5(1) of
the 1994 Act. The Committee reports regulation 3(3)(a) for defective
drafting, acknowledged by the Department.
Regulation 11(1) states that the Secretary of State "shall
approve the document entitled `Approved Requirements for the Construction
of Vehicles intended for the Carriage of Explosives by Road',
which is published by the Health and Safety Commission. It shall
contain [certain requirements and explanatory notes]". The
Committee asked the Department to explain whether the document
referred to existed when the Regulations came into force; whether
the opening words are meant to express the Secretary of State's
approval of the document; and to explain the purpose and effect
of the words "it shall contain". The Department respond
that the document did exist when the Regulations came into force
and that the opening words are, as the Committee suggest, meant
to express the Secretary of State's approval of the document.
They accept that the words "it shall contain" conflict
with the words "shall approve the document" elsewhere
in the provision. The Committee considers that as currently drafted
the provision fails to express the intention of the Department,
which would have been better expressed by a provision such as
"the Secretary of State approves the document [title etc.],
which contains [certain requirements and explanatory notes]".
Paragraph 6(a) of Schedule 9 amends Schedule 2 to the Classification
and Labelling of Explosives Regulations (Northern Ireland) 1991.
It includes the words "Some articles, such as detonators
for blasting, detonator assemblies for blasting and primers, cap-type".
The Committee asked the Department what articles are comprised
by the words "some articles". The Department reply that
"some articles" relates to all articles classified in
Compatibility Group B which do not contain primary explosives,
and that the list in the paragraph gives "examples of what
might fall into Compatibility Group B". The Committee considers
that the provision itself should have specified the articles it
covered. The Committee wishes to emphasise that it is contrary
to the nature of a legislative instrument that it should be drafted
merely suggestively, as by prescribing examples. The Committee
reports paragraph 6(a) of Schedule 9 for defective drafting.
IRELAND) 1997 (S.R. 1997/475)
7. The Committee draws the special attention of both Houses
to these Regulations on the grounds that they are defectively
drafted in 6 places.
In regulation 1(1), the definition of "the Council Directive"
includes a provision that "any reference in these Regulations
to anything done under the Directive shall have effect notwithstanding
any subsequent revocation of the Directive". The Committee
asked the Northern Ireland Office to identify the regulations
which refer to things done under the Directive. The Department
reply in a memorandum printed in Appendix VI that the relevant
regulations are 4(8) and 5(1). However, regulation 4(8) refers
to a certificate issued under national provisions giving effect
to specified Directives and regulation 5(1) refers to a certificate
issued by the appropriate national authority of a Member State.
Neither provision, therefore, refers to a thing done under the
Directive, as distinct from national law. The Committee reports
regulation 1(1) for defective drafting.
Regulation 1(6) begins with a saving for the generality of
"regulation 2(4)". The Committee asked the Department
to confirm the reference. They reply that the reference should
be to regulation 2(2). The Committee reports regulation 1(6) for
defective drafting, acknowledged by the Department.
Regulation 4(1) is made subject to "paragraphs (2) and
(9) and regulation 5". The Committee asked the Department
whether this reference is correct. The Department admit that the
reference should be to paragraph (2) (of regulation 4) and regulation
5. The Committee reports regulation 4(1) for defective drafting,
acknowledged by the Department.
Regulation 4(2) requires a vocational training certificate
to be appropriate to the carriage of explosives in packages "in
the case of the carriage of explosives referred to in regulation
2(1)". The Committee asked the Department to explain, given
that regulation 2(1) defines the scope of application of the Regulations,
the purpose and effect of the quoted words. The Department accept
in their memorandum that the words are superfluous. The Committee
wishes to point out that the words are not only superfluous but
subversive of the general proposition in regulation 2(1) and reports
regulation 4(2) for defective drafting, acknowledged by the Department.
Regulation 4(5) and Schedule 3 requires training to cover
"at least [the] subjects specified in Schedule 3". The
Committee asked the Department to explain what coverage is meant
by "etc." in sub-paragraph (d) of that Schedule. The
Department state that the wording is taken from Council Directive
94/55/EC. The Committee restates that it does not consider that
copying-out from Directives excuses Departments from a duty to
be specific in making legislation, and so reports Schedule 3 for
In relation to existing training certificates, regulation
5(1) provides an alternative means of compliance with regulation
4(1). The Committee asked the Department to explain the purpose
and effect of the provision, given that compliance by this means
ceased not later than 1 July 1997 (sub-paragraphs (a) and (b))
and the Regulations do not come into force until 1 December 1997.
The Department reply that compliance by this mechanism should
cease by 1 December 1997, and not 1 July 1997. The Committee reports
regulation 5(1) for defective drafting in respect of the mistake
over the date.
The Department state in their memorandum that they will bring
forward new regulations to address the points made by the Committee
with reference to regulation 1(6), regulation 4(2) and regulation
1997 (S.I. 1997/2673)
8. The Committee draws the special attention of both Houses
to this Scheme on the grounds that it requires elucidation in
The Scheme enables the appropriate Minister to pay to any
person satisfying certain conditions a grant of 50% of the eligible
expenditure which has been incurred by that person in carrying
out a proposal related to the development of the food industries
in the United Kingdom. Paragraph 5(1) authorises applications
for a grant to be made by associations or partnerships, but then
states that the Minister may indicate that he will also accept
applications from individuals or bodies corporate. The Committee
asked the Ministry of Agriculture, Fisheries and Food to explain
by what means the Minister will publicise any such indication.
The Department reply in the memorandum printed in Appendix VII
that any decision to make such an indication will be communicated
by scheme literature and perhaps by seminars and meetings with
trade associations. They add that they did not think it necessary
to include an express requirement for the decision to be publicised
as appropriate practices for the promotion of business support
are well established. In the circumstances, the Committee accepts
that communication with the industry by these means is sufficient
publication of the Minister's decisions on the matter and accordingly
reports paragraph 5(1) for the elucidation provided by the Department.
In Schedule 1, paragraph 4 specifies as one of the considerations
to which the appropriate Minister will have regard "the quality
of the application and of any plan for the application
of its objectives and for the dissemination of key information
to the relevant parts of the food industry". The Committee
asked the Department to explain the considerations intended to
be covered by this paragraph, in particular in relation to the
two italicised words. The Department state in relation to the
word "quality" that their policy intention was to attract
a wide range of applications, and that this provision is intended
to permit a broadly based assessment of the reasoning and justification
presented within an application for grant. "Quality"
is not therefore given any more precise definition. As regards
the term "application", the Department explain that
it is intended that consideration of any plan for the application
of the objectives of a project, that is, for their application
to the relevant parts of the industry, would permit the appropriate
Minister to assess the value of the intended mechanism for enabling
the benefits realised by the project to be directed to the sector
of the food industry at which the project was aimed. The Committee
reports paragraph 4 of Schedule 1 to the Scheme as requiring the
elucidation provided by the Department's memorandum.
Paragraph 6 of Schedule 1 specifies as a consideration for
priority "any additional benefits that would accrue from
. . . grant". The Committee asked the Department to explain
the sort of benefits contemplated, and the persons to be benefited.
The Department explain that the benefits envisaged are those which
are additional to the benefits specified in paragraph 1 of Schedule
1. The planned scheme literature will identify these as customer
satisfaction, scope for increased employment and environmental
considerations. Each of these involves an incidental benefit to
classes of persons not directly involved in the industry, but,
given that any proposal could have an impact on them, the Department
consider that these benefits were within the range of factors
which could be considered relevant. The Committee reports paragraph
6 of Schedule 1 as requiring the elucidation provided by the Department's
Paragraph 2 of Schedule 2 provides that "National Insurance
costs of employers, pension costs and contributions to health
care" are items eligible for payments of grant under the
scheme. The Committee asked the Department to explain what social
security contributions are meant to be indicated by the words
"National Insurance costs", and what kinds of expenditure
are meant to be covered by the words "contributions to health
care". The Department explain that the social security contributions
intended to be covered by the first phrase are those for which
an employer is liable under Part I of the Social Security Contributions
and Benefits Act 1992, and that the expenditure intended to be
covered by the second phrase is financial contributions to caring
for the health of those concerned, including payments of medical
fees and health insurance. The Committee accepts that the intended
coverage of "National Insurance costs" is ascertainable
in the context of the 1992 legislation and the Department's explanation
and is also satisfied as to the coverage of "contributions
to health care" as explained by their memorandum. The Committee
reports paragraph 2 of Schedule 2 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