Joint Committee on Statutory Instruments Nineteenth 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 Ministry of Agriculture, Fisheries and Food in connection with the Beef Bones Regulations 1997 (S.I. 1997/2959) is printed in Appendix I to this Report.

  3. Two memoranda by the Foreign and Commonwealth Office in connection with the State Immunity (Merchant Shipping) Order 1997 (S.I. 1997/2591) are printed in Appendix II to this Report.

  4. A memorandum by the Department for Education and Employment in connection with the Education (School Performance Information) (England) (Amendment) (No. 3) Regulations 1997 (S.I. 1997/2816) is printed in Appendix III to this Report.


  5. The Committee draws the special attention of both Houses to these Regulations on the ground that they are of dubious vires.

  These Regulations are made under section 6(3) of the Local Government Act 1988. Part I of that Act requires certain work of local (and other) authorities to be put out to competition. Section 6 prohibits an authority from carrying out functional work unless specified procedures for competitive tendering are followed. The section becomes applicable to such work only if the work is of a description prescribed by regulations under subsection (3). By an amendment to the section (made by the Local Government Act 1992) such regulations may describe work by reference to a specified proportion of work of a particular description. In other words, the restriction on doing work without putting it out for competitive tender may be one which applies only to a proportion of work specified in regulations rather than all the work.

  The "specified proportion" of the functional work regulated by the Regulations being amended (which is subject to the restriction in section 6 of the 1988 Act) is defined in the substituted definitions in regulations 3(2)(c), 4(2)(b), 6(2)(b), 7(2)(b) and 8(2)(b) of the amending Regulations as an amount equal to the amount produced by the formula set out in those definitions. The Committee asked the Department of the Environment, Transport and the Regions whether the formulae are capable in any circumstances of producing a negative amount and, if so, whether the effect is to disapply section 6 of the 1988 Act.

  The Department's memorandum, printed in Appendix IV, confirms that the formulae are capable of producing a negative or nil amount. However, the Department state that their intention is not to disapply section 6 of the 1988 Act. They rely on the Welsh Office's submission, as set out in that Department's memorandum to the Joint Committee on S.I. 1997/1699**[2], that the fact that the formulae are capable of producing a negative or nil amount does not necessarily mean that section 6 of the 1998 Act is disapplied. The Department add that it is Ministers' intention to introduce legislation at the earliest opportunity to replace the competitive tendering regime and to repeal the relevant Part of the 1988 Act. However, in the meantime, having regard to the Committee's conclusions in its 11th Report (which was published after the present instrument was laid) "the Department is considering how it may be possible, under existing powers, appropriately to amend the formulae so as to meet the Committee's concerns".

  The Committee has already reported three similar earlier instruments***[3] on the ground that they may be ultra vires as, in effect, the section 6 power was being used to disapply the prohibition on carrying out prescribed work without putting it out to competitive tender. The Committee was of the view that since "proportion" means a portion, division or part of a whole (Oxford English Dictionary), that expression cannot (in the absence of any express indication to the contrary) be regarded as including a nil amount. The Committee also noted (in its 11th and 17th Reports, Session 1997-98) that this view was supported by the fact that section 13(4) of the 1988 Act regards "proportion" as part of a greater whole and that at least one legislative provision (section 28A(4) of the Pensions Act 1993) expressly states that a prescribed proportion or percentage may be nil, where that is the intention of Parliament.

  In relation to these Regulations (S.I. 1997/2732), the Department have not put forward any new points in support of the view that a formula which is capable of producing a specified proportion of work which is nil does not have the effect of disapplying section 6 of the 1988 Act. That effect is contrary to the very purpose for which section 6(3) was enacted. The Committee concludes that the rules in the formulae for determining the specified proportion of work appear to be ultra vires.


  6. The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation. New regulation F11(7) (inserted by regulation 3) defines "the material date" as "the date on which the police authority is asked to provide the calculation of the restitution payment". The Committee asked the Home Office whether this definition is intended to refer to the notice which may be given by a policeman to a police authority under new regulation F11(2); and, if so, whether the definition refers to the date on which the notice is given or to the date on which the authority receives the notice. The Department reply in the memorandum printed in Appendix V that the definition does not refer to the notice given under new regulation F11(2) but to a request for calculation of a restitution payment, which will normally be made by the personal pension provider. They add that the definition is intended to refer to the date when a request for a calculation of a restitution payment is received by the police authority. The Committee reports the definition of "the material date" in new regulation F11(7) as requiring the elucidation provided by the Home Office.

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 Appendix to 11th Report, Session 1997-98. Back

*** 3   S.I. 1997/197 (16th Report, Session 1996-97); S.I. 1997/1699 (11th Report, Session 1997-98); S.I. 1997/2649 (17th Report, Session 1997-98). Back

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