Joint Committee on Statutory Instruments Thirtieth Report


Memorandum by the Lord Chancellor's Department


AMALGAMATION ORDER 1999 (S.I. 1999/2426)

  1. The Committee considered the above instrument ("the amalgamation order") at its meeting of 26th October 1999 and has requested a memorandum on the following point:

        "Explain how the provisions of the Schedule, where they apply (with modifications) or disapply the Constitution Regulations (defined in paragraph 1 as those of 1994), will operate now those (1994) Regulations have been revoked and replaced by S.I. 1999/2395."

  2. The amalgamation order was made on 26th August 1999. S.I. 1999/2395 ("the new constitution regulations") was made on 31st August 1999 and came into force on 27th September 1999. It was therefore impossible to draft the amalgamation order in such a way as to refer to the new constitution regulations.

  3. The Lord Chancellor's Department refers the Committee to section 17(2)(a) of the Interpretation Act 1978, which provides that "Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears, any reference in any other enactment to the enactment so repealed shall be construed as a reference to the provision re-enacted;", and to section 23 of the same Act, which provides that the provisions of that Act (with certain exceptions not relevant to the present question) apply to subordinate legislation as they do to Acts, and that "enactment" includes an enactment comprised in subordinate legislation.

  4. The new constitution regulations are closely based on the 1994 regulations, but contain some additional provisions, such as the requirement for selection panels to state selection criteria for membership of magistrates' courts committees (regulation 6(2)). For each provision of the 1994 regulations, except for those relating solely to the selection of the first committees following the coming into force of those regulations, it is possible to identify the corresponding provision in the new constitution regulations.

  5. Accordingly, whenever the amalgamation order speaks of things to be done on or after 27th September 1999, any reference to a provision of the 1994 regulations is to be construed as a reference to the corresponding provision of the new constitution regulations. Similarly references to "the Constitution Regulations" generally are to be construed as references to the new constitution regulations. Paragraph 5(5) of the Schedule to the amalgamation order provides that "the Constitution Regulations" shall apply to the transferee committee "subject to paragraph 4 above and to the preceding sub-paragraphs of this paragraph". New provisions of the new constitution regulations will therefore apply except where the timetable of the amalgamation makes this impossible.

  6. The only instance of this of which the Department is aware is in connection with regulation 7(b) of the new constitution regulations. This requires a candidate to give written notice of matters which might support his candidature, including how he meets the selection criteria. The establishment of selection criteria is the duty of the selection panel.

    (1)  In the general case, this must be done by 31st December of the year preceding that to which his candidature relates; but the selection panel which is to perform the selection does not come into existence until 1st January. The notice of candidature must therefore refer to selection criteria established by a selection panel prior to that which is to perform the selection.

    (2)  In the case described in the amalgamation order, the reference to 31st December is to be read as a reference to the day preceding the first appointed day (paragraph 5(5)(c) of the Schedule to the order). Similarly the selection panel comes into existence not on 1st January but on the first appointed day. However, the selection panel that comes into existence on the first appointed day is the first selection panel for the amalgamated area; until that time there was no selection panel, and therefore no selection criteria for the notice of candidature to refer to.

  7. To meet this situation, it is submitted that the relevant part of regulation 7(a) must be construed as meaning "the selection criteria (if any)". The new selection panel is nevertheless bound to establish selection criteria as soon as possible after it comes into existence and a reasonable time before it selects the members of the committee. Candidates are then at liberty to forward further particulars, explaining how they meet the selection criteria.

28th October 1999

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