Select Committee on Joint Committee on Statutory Instruments Forty-Third 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 Home Office in connection with the Prison (Amendment) (No. 2) Rules 1998 (S.I. 1998/1544) is printed in Appendix I to this Report.


  3. The Committee draws the special attention of both Houses to these Regulations on the grounds that in one respect they do not accord with good legislative practice, in one respect they require elucidation and in another respect they impose a charge on the public revenues.

  Regulation 21(2) provides that "the parties shall abide by a decision taken in accordance with" the procedures provided for in paragraph (1), which obliges the Director General of Telecommunications to "ensure that procedures are in place to address [certain] situations". The Committee asked the Department of Trade and Industry to explain why paragraph (1) does not contain a reference to decisions, or any description of the nature of the procedures which it stipulates are to be put in place. The Department explain in a memorandum printed in Appendix II that the regulations should be seen in the context of the Telecommunications Act 1984, and that the Director already deals with complaints under section 49 of that Act. The procedures set up under regulation 21(1) will establish a framework for dealing with complaints under section 49. This seems to the Committee to miss the point that the reference in paragraph (2) to "a decision, taken in accordance with [the] procedures" mentioned in paragraph (1) is unsupported by any reference in paragraph (1) to decisions being taken or by whom or to the resolution of disputes requiring the decisions. Paragraph (1) could, in the Committee's view, easily have been expanded to make express some of the above elements that underlie the remaining provisions of this regulation. At the least it could, instead of merely copying out Article 13(1) of Directive 98/10/EC, have said something like "The Director shall ensure that procedures of his are in place for the resolution of disputes in situations where:". The Committee reports regulation 21(1) on the ground that it does not accord with good legislative practice.

  Regulations 34 and 35 deal with the discontinuation of a service when subscribers have failed to pay their bills. Both provide that the subscriber must be warned before a service is discontinued. Regulation 35 relates to "systemless service providers" and requires measures to be taken by the Director to ensure that warning of any service interruption or disconnection is given by the providers of the service and imposes a duty on service providers to comply with the measures of the Director. The Committee asked the Department to explain why regulation 34, which relates to "public operators", does not impose a duty on them to give a like warning (but merely speaks of the authorisation of measures). The Department explain that, in the case of public operators, their licences under the 1984 Act impose on them the duty outlined in regulation 35 for systemless service providers. The Committee recognises that this is a satisfactory explanation, but suggests that it might have been more helpful to the reader if regulation 34 referred to the Director's and the Secretary of State's function of issuing licences and attaching conditions under the Act, and not simply to "their functions under Part II and sections 47 to 49 of the Act". The Committee reports regulation 34 as requiring the elucidation provided by the Department.

  Regulation 40(1) extends the charge on the public revenues of expenditure of the Director under the 1984 Act to expenditure in consequence of his functions under the Regulations. The Committee asked the Department whether the expenditure would be significant. The Department inform the Committee that an additional £300,000 may be required to carry out additional work caused by the introduction of the Regulations over the first twelve months of their operation, and so the Committee reports regulation 40(1) on the ground that it imposes a charge on the public revenues.


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

  Regulation 3(1) provides that, subject to paragraph (3), a person in pensionable employment may elect to pay additional voluntary contributions. Sub-paragraph (3) provides that an election shall not have effect if the person making it "(a) is on leave of absence from work on the date on which the notice of such an election is received by the Secretary of State; (b) is not receiving tax relief under section 594(1) of the" Income and Corporation Taxes Act 1988 [etc.]. The Committee asked the Scottish Office Pensions Agency whether sub-paragraphs (a) and (b) are intended to apply alternatively or cumulatively. They explain in a memorandum printed in Appendix III that the sub-paragraphs are intended to apply alternatively, and contend in effect that the word "or" is unnecessary in this context. The Committee does not consider that it would necessarily be apparent to an inexpert reader of the Regulations that the provisions are intended to apply alternatively. The insertion of the word "or" at the end of (a), as is usual in such contexts, would have removed any uncertainty. The Committee reports regulation 3(3) for defective drafting in this respect.

  The Committee also asked the Department whether regulation 3(3)(a) is intended to apply in all circumstances, for example even where the person making the election is away on a single day's leave when the notice is received. The Department reply that sub-paragraph (a) is only intended to apply where the employee is excused from performing his normal contractual obligations, in particular long term sick leave and unpaid leave of absence and not to holidays or other periods of leave normally allowed under contract. The Committee considers that "leave of absence" is not an expression which clearly distinguishes between these cases and does not achieve the intention of the Department, and so reports it for defective drafting in this respect also.

  Regulation 3(7) provides that, for the purposes of paragraphs (1) and (6), an election is to have effect from the date on which the election is accepted by the Secretary of State. No provision is made, however, to ensure that the date of the Secretary of State's acceptance is communicated to the person who made the election. The Department explain that administrative procedures, rather than the Regulations, provide for all such decisions to be notified to the person concerned. The Committee does not consider that it is sufficient in this situation where the employee's financial arrangements will be affected by the Secretary of State's decision to rely on administrative procedures alone, and reports regulation 3(7) for defective drafting.


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

  Regulation 4(2) provides for a fine "not exceeding the statutory maximum" for offences under paragraph 2(a) of the Schedule (non-compliance with requests for information). Given that this offence is triable only summarily and therefore falls within the system of levels on a standard scale established by sections 37 and 40 of the Criminal Justice Act 1982, the Committee asked HM Treasury to explain why the fine is not described as one "not exceeding level 5 on the standard scale". In the memorandum printed in Appendix IV the Department admit that the fine should be so described, and say that they will make an appropriate amendment when the Regulations are next amended (which is likely to be in the near future). The Committee reports regulation 4(2) for defective drafting, acknowledged by the Department.

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

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