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
for Education and Employment in connection with the European Communities
(Recognition of Professional Qualifications) (Second General System)
(Amendment) Regulations 1999 (S.I. 1999/67) is printed in
Appendix I to this Report.
3. A memorandum by the Department
of the Environment, Transport and the Regions in connection with
the Asbestos (Licensing) (Amendment) Regulations 1998 (S.I. 1998/3233)
is printed in Appendix II to this Report.
1998 (S.I. 1998/3199)
4. The Committee draws the
special attention of both Houses to this Order on the ground that
it is defectively drafted.
5. Articles 4(1) and 5(3)
subject their provisions to Schedule 4 (exemptions) paragraph
(8). In the memorandum printed in Appendix III the Lord Chancellor's
Department admit that the reference should be to paragraph (9),
not (8), and propose to correct the mistake at the next convenient
opportunity. Accordingly the Committee reports articles 4(1) and
5(3) for defective drafting, acknowledged by the Department.
1998 (S.I. 1998/2505)
6. The Committee draws the
special attention of both Houses to these Rules on the ground
that they are defectively drafted.
7. Rule 6(1) of the Exchange
of Securities (General) Rules 1979 is amended by rule 5(a) of
the present Rules to refer to paragraph (4) of that rule 6. HM
Treasury admit in the memorandum printed in Appendix IV that the
reference should actually be to the new paragraph (1A) of rule
6, and say that they will correct the reference when the Rules
are next amended. The Committee reports rule 5(a) of the present
Rules as being defectively drafted, acknowledged by the Department.
1999 (S.I. 1999/2)
8. The Committee draws the
special attention of both Houses to these Regulations on the ground
that they are defectively drafted.
9. Regulation 26(1) (Savings)
refers to "the requirements of paragraph 5 of Schedule 2
to the 1996 Regulations" (playing fields). The Committee
asked the Department for Education and Employment whether the
reference to paragraph 2 ought to be to paragraph 3. In the memorandum
printed in Appendix V the Department accept that the reference
should be to paragraph 3 and say, despite the fact that in their
opinion the meaning of regulation 26(1) is still clear, that they
will correct the mistake the next time the Regulations are amended.
The Committee reports regulation 26(1) for defective drafting,
acknowledged by the Department.
1998 (S.I. 1998/3170)
10. The Committee draws
the special attention of both Houses to these Regulations on the
grounds that they are defectively drafted in two respects.
11. Regulation 2(2) provides
that expressions used in both the Regulations and in Directive
97/66/EC shall have the same meaning in the Regulations as they
do in the Directive "except where the context otherwise requires".
The Committee asked the Department of Trade and Industry to explain
where the context of the Regulations requires otherwise. The Department
say in the memorandum printed in Appendix VI that the Directive
contains a number of provisions which refer to "lines",
and that in the Directive the expression is intended to mean any
link over which a call is transmitted, whether or not that link
is a line within the natural meaning of that expression (that
is, a line in the physical sense). The Department thought it helpful
to make explicit that "line" in the Regulations has
the wider meaning it has in the Directive, and they point to regulation
2(3) as effecting this. The Committee do not think that this is
a satisfactory explanation. If the purpose of regulation 2(3)
is to ensure that "lines" has the same meaning that
it does in the Directive, and not its natural meaning, then this
is achieved by regulation 2(2), without the words "except
where the context otherwise requires". It is by no means
clear that regulation 2(3) is effective to produce this result
by a different route. But, in any event, the words of exception
run counter to incorporating the wider Directive meaning.
If regulation 2(3) is to serve its intended purpose, it must,
in drafting terms, be expressed as being without prejudice to
regulation 2(2) (as a parallel provision) with no words of exception
in regulation 2(2). The Committee reports regulation 2(2) and
(3) for defective drafting.
12. Regulation 4(1) provides
that a consent or notification, "so long as it remains in
force, shall have effect according to its tenor".
The Committee asked the Department to explain the purpose and
effect of, and the necessity for, the underlined words. The Department
explain that the words were included to ensure that a notification
only has effect until it is withdrawn or otherwise ceases to be
in force. The Committee notes that no provision is made for a
notification to state its duration and regards this as natural
in the context, whilst also noting that words in regulations 7(4)
and 9(4) ("for the time being") acknowledge that a notice
can be withdrawn. In other words, there is no risk of indefinite
duration. In the Committee's view, if a notification is silent
about its duration, the words referring to its tenor have nothing
to attach themselves to. And if a notification does contain
a statement about its duration, this very statement would achieve
its effect without needing a provision in the regulations giving
the statement effect. The Committee reports regulation 4(1) for
1 The Orders of Reference of the Committee are set
out in the First Report, Session 1998-99 (HL Paper 4; HC 50-i). Back