Joint Committee on Statutory Instruments Second 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.

ORDER 2001 (S.I. 2001/1077)

2. The Committee draws this Order to the attention of both Houses on the ground that it is defectively drafted in two respects.

3. The Order introduces a new system for the payment of graduated fees for counsel for work in family proceedings. Sub-paragraph (a) of article 8(2) provides for a unit fee to be paid for each period of 2.5 hours or less for which a relevant court hearing continues. Sub-paragraph (b) sets out rules for calculating the duration of such a hearing and, in sub-paragraph (ii), provides that a hearing ends at 5.00 pm (if not concluded earlier). Sub-paragraph (c), however, provides for an additional payment where a hearing continues after 5.00 pm. As sub-paragraphs (b) and (c) appeared to the Committee to be inconsistent, it asked the Lord Chancellor's Department whether sub-paragraph (b) is intended to apply for the purposes only of calculating the duration of a hearing under sub-paragraph (a).

4. In its memorandum, printed in Appendix 1, the Department confirms that that is the intention. It acknowledges that the relationship between sub-paragraphs (b) and (c) could have been clearer but contends that the article, when correctly read, clearly conveys the intended meaning.

5. The Committee has no difficulty with the Department's interpretation of the article, but does not consider that it removes the apparent conflict between the requirement in article 8(2)(b)(ii) to treat a hearing as ending at 5.00 pm, even if the hearing in fact continues beyond then, and the provision in article 8(2)(c) for additional payments where the hearing does so continue. In the Committee's view the intended meaning would have been clear had article 8(2)(b) begun with the words "for the purposes of sub-paragraph (a)". It accordingly reports article 8(2)(b) for defective drafting.

6. Paragraph (5) of article 9 permits counsel, in specified circumstances, to include in a claim for payment a claim for a special issue payment. Paragraph (6) requires the officer dealing with the claim to consider whether the work was reasonably carried out and, in certain cases, whether the special issue was of substance and relevant to the case. But it does not say whether, if the officer is satisfied about those matters, the claim must be paid or whether he retains a discretion to refuse payment. On the other hand, articles 9(4) and 16(4), which deal with other special payments, make the position clear (in the former case that a payment must be made and, in the latter, that the officer retains a discretion).

7. In its memorandum the Department says that the intention under article 9(6) is to require payment if the officer is satisfied of the specified matters, and that it was not thought necessary to state this expressly.

8. In the Committee's view it is important that the Order should leave no doubt as to the right of counsel to a payment, where that is the intended result. Given the contrasting wording of articles 9(4) and 16(4), the Committee considers that the intended effect of article 9(6) is not sufficiently clear and therefore reports that provision for defective drafting.

REGULATIONS 2001 (S.I. 2001/1117)

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

10. These Regulations provide for, and regulate the payment of, grants and Community aid for investment and activities approved by the Minister of Agriculture, Fisheries and Food which are eligible for Community financial support. Regulation 17(1) makes it an offence punishable on summary conviction by a fine not exceeding the statutory maximum knowingly or recklessly to furnish under the Regulations information which is materially false or misleading or to produce under the Regulations a document which is materially false or misleading. As the expression "the statutory maximum" applies only to summary conviction for offences triable either summarily or on indictment, the Committee asked the Department whether the expression "level 5 on the standard scale" should not have been used.

11. The Department in its memorandum, which is printed in Appendix 2, acknowledges that regulation 17(1) should have referred to level 5 on the standard scale and proposes to amend the Regulations accordingly. The Department contends, however, that the expression "statutory maximum", as defined in Schedule 1 to the Interpretation Act 1978, applies to offences triable only summarily as well as to offences triable either way, and that, as the amount of the fine for level 5 on the standard scale is currently the same as the statutory maximum, the Regulations will have the intended effect. The Committee is not persuaded of this. Schedule 1 to the Interpretation Act 1978 defines "statutory maximum" (in relation to England and Wales) as the prescribed sum within the meaning of section 32 of the Magistrates' Courts Act 1980. That section concerns only offences triable either way. It therefore seems to the Committee that the definition of "statutory maximum" in the Interpretation Act 1978 is to be read as applying only to such offences, and that a reference to the "statutory maximum" in subordinate legislation which creates a summary offence is defectively drafted. Furthermore, as there is no guarantee that the amounts of the statutory maximum and level 5 on the standard scale will continue to coincide, if the former were to exceed the latter these Regulations, being ones made under section 2(2) of the European Communities Act 1972, would exceed the powers conferred by that section. The Committee therefore reports regulation 17(1) for defective drafting.


12. The Committee draws this Order to the attention of both Houses on the grounds that its drafting is defective and, in one respect, does not conform to proper drafting practice.

13. This Order gives effect to a scheme prepared by ACAS providing for arbitration of unfair dismissal disputes which have been, or could be, referred to an employment tribunal. Paragraph 95 of the Scheme requires an arbitrator, in deciding whether a dismissal was unfair, to have regard to any provision of Part X of the Employment Rights Act 1996 requiring a particular dismissal to be regarded as unfair or any other legislative provision so requiring for the purposes of that Act. The Committee asked the Department of Trade and Industry whether "or" really meant "and".

14. The Department, in its memorandum printed in Appendix 3, observes that as, in making an award under the Scheme, an arbitrator must identify the reason, or (if more than one) the principal reason, for any particular dismissal, there can be only one legislative provision requiring the dismissal for that reason to be regarded as unfair. The use of "or" therefore achieves the intended effect: but the Department agrees that, on balance, "and" is preferable. The Committee notes that the requirement to identify the reason, or the principal reason, for a dismissal applies to the formulation of the award itself. But in deciding the case, and thus before coming to prepare the award, the arbitrator will have had to establish all the reasons for the dismissal; and in doing so will need to have regard to any legislative provision requiring the particular dismissal to be regarded as unfair. The Committee therefore considers that paragraph 95(i) and (ii) of the Scheme should be linked by "and", not "or", and reports the paragraph for defective drafting, effectively acknowledged by the Department.

15. Paragraph 101 of the Scheme (in Part XVIII, which deals with awards) requires the arbitrator in every case to explain to the employee what orders for reinstatement or re-engagement may be made and in what circumstances they may be granted, and to ask the employee whether he or she wishes the arbitrator to make such an award (paragraph 101(ii)). It appeared to the Committee that the italicised words could only be relevant where the arbitrator finds that the dismissal is unfair and that it is therefore inappropriate to apply that requirement in every case. If, as appeared to be the case, these requirements are intended to apply during the hearing - and thus before the arbitrator has decided whether the dismissal was unfair - it seemed to the Committee that they should have been included in Part XV of the Scheme (Outline of the Procedure at the Hearing).

16. The Department in its memorandum confirms, as the Committee supposed, that its intention is for these requirements to apply in every case and to be met during the hearing. It maintains that it is implicit that the requirement in paragraph 101(ii) applies only where the finding is that the dismissal was unfair, and that as the requirement concerns both the procedure at hearings and the making of awards, it sits equally well in either section of the Scheme. The Committee accepts that, in principle, it is implicit that the requirement in paragraph 101(ii) applies only where the finding is that the dismissal was unfair. But the contrast with the opening words of the very next paragraph raises the question whether or not similar words are to be implied in paragraph 101(ii). It would have been a simple matter to have included them there to make the position clear. The Committee accordingly reports paragraph 101(ii) for defective drafting.

17. The Committee also considers that, as the requirements in paragraph 101 are intended to apply during the hearing and before the arbitrator has reached a decision as to the whether the dismissal was unfair, the paragraph logically belongs in Part XV of the Scheme. Even if the paragraph were thought to be equally relevant to two Parts of the Scheme, it would still have been more logical to place it where it first arises. The Committee therefore reports paragraph 101 on the ground that its inclusion in Part XVIII of the Scheme does not conform to proper drafting practice.


18. The Committee draws these Regulations to the attention of both Houses on the grounds that their drafting is defective and, in one respect, does not conform to proper drafting practice.

19. These Regulations set out the qualifications required for appointment to the Police Service of Northern Ireland and arrangements for the recruitment of police (and reserve) trainees.

20. Paragraph (1) of regulation 4 (in Part II of the Regulations, which is headed Recruitment) deals with the appointment of a police recruitment agent. His role is to ascertain whether applicants are qualified for appointment; and the following regulations particularise his functions in this regard. Paragraph (2) addresses a quite unrelated matter. It specifies that police reserve trainees (if appointed) are to be appointed to serve as part-time members of the Police Service of Northern Ireland Reserve. The Committee asked the Northern Ireland Office to explain the inclusion of paragraph (2) in regulation 4.

21. The Department in its memorandum, printed in Appendix 4, emphasises the importance of the provision and the desirability of including it in the Regulations. It also acknowledges that the paragraph does not entirely fit in regulation 4 and might have been better as a free-standing provision. The Committee shares this view. In its view it is not in accordance with proper drafting practice to include completely unrelated matters in one regulation (the more so when its heading misleadingly refers to only one of the matters contained in it). In the Committee's view the requirement contained in regulation 4(2) - particularly in view of its acknowledged importance - should have been included as a free-standing provision in Part III of the Regulations. The Committee therefore reports that provision on the ground that its inclusion in regulation 4 is not in accordance with proper drafting practice, which the Department effectively acknowledges.

22. Regulation 9(2) requires the recruitment agent to ensure that lay assessors "are involved in assessing candidates for appointment" as trainees. The Committee was unable to ascertain with any confidence the intended effect of regulation 9(2), particularly in view of the absence of a provision equivalent to regulation 10(2) (which states that independent community observers shall not be involved in assessing the suitability of candidates under Part III of the Regulations), and sought clarification from the Department.

23. The Department's memorandum throws little further light on the matter. It provides no concrete explanation of the role to be played by lay assessors - contenting itself with substituting one indeterminate term for another - and confusingly asserts that, although lay assessors are expected to play a part in assessing the performance of candidates at interviews (which appears to be relevant to assessing suitability under Part III rather than ascertaining the largely factual matters relating to whether a person qualifies to be a candidate under Part II), they have no role in assessing the suitability of candidates for appointment because the recruitment agent has no such role. The Committee assumes from this that the intention is to require the recruitment agent to appoint lay assessors to assist him in the carrying out of his functions. But in its view regulation 9(2) does not clearly convey this and is therefore defectively drafted; and it reports regulation 9(2) accordingly.

The Orders of Reference of the Committee are set out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back

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