Joint Committee on Statutory Instruments Twenty-Fourth Report


Second Memorandum by the Home Office



  1. The Committee has requested a further memorandum in respect of the above instruments on the following points:

      (1)  Given that the powers to make these regulations are to establish procedures for the handling of complaints, explain why regulation 28 applies other regulations rather than setting out the substance of the other regulations in these Regulations.

      (2)  With reference to the paragraph on page 3 of the Department's Memorandum of 8 June 1999 beginning "By virtue of regulation 28 as construed in accordance with paragraph 1 of Schedule 8 to the 1996 Act",

        (a)  identify the provision in paragraph 1 which is relied on to translate the reference to section 81 into a reference to section 99 of the 1984 Act; and

        (b)  explain why reference was not made directly to the regulations made under section 99 of the 1984 Act (as well as to regulations under section 81 of the 1996 consolidating Act).

  2. On the first point, regulation 28 in Part III, as inserted by regulation 5 of each of the above instruments, makes the equivalent provision, in relation to seconded police members, to the provision made by regulation 12 in Part I of, respectively, the National Crime Squad (Complaints) Regulations 1998 and the NCIS (Complaints) Regulations 1998 in relation to senior police members. Although it would have been equally possible in each case to set out in full the procedures established by virtue of Chapter I of Part IV of the Police Act 1996, that would have considerably lengthened the regulations made under section 83 or, as the case may be, section 39 of the Police Act 1997. It is submitted that the alternative method, that of legislating by reference to other regulations, is permissible even in the absence of express authority to do so in the primary legislation containing the enabling power. As indicated in the first memorandum dated 8th June, sections 83 and 39 require the provision made to be similar, or to correspond, to the provision made by or by virtue of Chapter I of Part IV. There is therefore no choice but to establish, by one or other of the methods described above, the full procedure established by the regulations referred to in that memorandum. In view of the number of instruments concerned, and the varying Parliamentary procedures applicable to those instruments, it is considered preferable in this instance to use the method chosen and to legislate by reference. The express modifications set out in regulation 28 also enable the user to identify with ease the differences between the standard procedures and those applicable to NCS and NCIS.

  3. On the second point:

      (a)  the provisions relied on are sub-paragraphs (2) and (3)(a) of paragraph 1 of Schedule 8; and

      (b)  in due course regulations will be made under section 81 of the 1996 Act and it was considered preferable not to refer to regulations which will be replaced.

29th June 1999

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