Joint Committee on Statutory Instruments Thirty-Seventh 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. Two memoranda by the Department of the Environment for Northern Ireland in connection with the Ports (Levy on Disposals of Land, etc.) (Amendment) Order (Northern Ireland) 1998 (S.R. 1998/148) are printed in Appendix I to this Report.

  3. A memorandum by the Home Office in connection with the Secure Training Centres (Escorts) (Amendment) Rules 1998 (S.I. 1998/1343) and a letter by the Home Secretary dated 21st May are printed in Appendix II to this Report. The Rules were amended by the Department in response to concerns raised by the Committee[2], and the Committee thanks the Department for the commendable speed with which they have acted.


  4. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in two places.

  Regulation 8(1), which makes the offences specified triable either way (ie. summarily or on indictment), expresses the penalty for summary conviction as a fine not exceeding level 5 on the standard scale and as regards conviction on indictment imposes a limit on the fine of the statutory maximum. In the memorandum printed in Appendix III, the Ministry of Agriculture, Fisheries and Food accept that the maximum fine on summary conviction should have been expressed in terms of the statutory maximum, and that the words limiting the fine on conviction on indictment should have been omitted. They undertake to correct the errors at the first appropriate opportunity. The Committee reports regulation 8(1) for defective drafting, acknowledged by the Department.

  Paragraph 15 of the Schedule to the Regulations (on the retention of records of events such as the use of fertilisers on fields) provides that "any record ... shall be retained for a period of 5 years after the latest event recorded therein". The Committee asked the Department whether it was intended that the entry of each new event should have the effect of prolonging the period of retention for earlier entries of events which come to be more than 5 years old. The Department reply that they did not intend that the entry of new events should prolong the requirement to keep a record of events which were more than 5 years old. The Committee considers, however, that the paragraph as currently drafted does not achieve the intention of the Department: that intention would have been implemented by words such as "Any record of an event made for the purposes of paragraph 14 shall be retained for a period of 5 years beginning with the date of the event." The Committee reports paragraph 15 of the Schedule to the Regulations for defective drafting.

  The Committee also notes that, in the draft farmer guidelines booklet relating to this instrument, the requirement to retain records set out in paragraph 15 is only mentioned in Annex 7 (in the notes for a sample "Field Record Sheet", which the farmer is not required to use if he has an alternative means of recording events). The Committee considers that this requirement (breach of which is an offence) should have been drawn to the attention of the reader in the main part of the booklet.


  5. The Committee draws the special attention of both Houses to these Regulations on the ground that they do not accord with proper legislative practice.

  Regulation 5(6) states "Regulation 15 deals with circumstances in which contributions will be refunded to members who are not transferring members, and regulation 16 makes provision for a former holder of the office of the Lord Chancellor". The Committee asked the Lord Chancellor's Department what (if any) legal effect the provision has and, if it is merely explanatory, why it is included in the Regulations and not in the Explanatory Note. The Department accept in the memorandum printed in Appendix IV that regulation 5(6) is merely explanatory and has no legal effect. The provision was included to assist the reader by explaining the scheme of the regulations immediately before the operative regulations themselves. The Committee does not consider that this can justify the inclusion in a statutory instrument of material which lacks any legislative content and therefore reports regulation 5(6) on the ground that it is not in accord with proper legislative practice. The Committee, noting that there have been several recent examples of the practice, takes this opportunity to restate its view that non-legislative material should not be included in statutory instruments[3].

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 the Committee's 31st Report of this Session (HL Paper 97, HC-xxxi) on the Secure Training Centres (Escorts) Rules 1998 (S.I. 1998/473). Back

3   See also paragraph 3 of the Committee's 32nd Report this Session (HL Paper 100, HC-xxxii). Back

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