Joint Committee on Statutory Instruments Second Report


Memorandum from the Lord Chancellor's Department


ORDER 2001 (S.I. 2001/1077)

1. The Lord Chancellor's Department submits this memorandum in response to the request dated 2 May 2001 on the points set out below.

    (1)  As drafted, article 8(2)(b)(ii) is inconsistent with article 8(2)(c). Is article 8(2)(b) intended to apply for the purpose only of determining the period for which a hearing continues as referred to in article 8(2)(a)?

2. It is correct that article 8(2)(b) applies in order to determine the period for which the hearing continues for the purposes of article 8(2)(a), but in addition article 8(2)(c) makes provision for the situation where a hearing in fact continues after 5 pm and concludes on the same day. The Department acknowledges that the relationship between article 8(2)(b)(ii) and 8(2)(c) could have been clearer, but considers that any apparent contradiction is clearly resolved by construing the word "continues" in article 8(2)(c) as meaning continues in fact. This is supported by the use of the word "concludes", rather than "ends", in that article, in the same sense as it is used in article 8(2)(b)(ii).

    (2)  Article 9(6) requires the Regional Director, when considering a claim for a special issue payment in relation to functions F1 and F4, to consider certain matters. Is it intended that a payment must be made if he considers that those matters apply or does he retain a discretion whether to allow such a payment? Why does the article not make the position clear (contrast articles 9(4) and 16(4)?

3. Under article 9(6) the Regional Director has a discretion, in relation to claims made under article 9(5), only as to whether he considers that the work in question was reasonably carried out and, in respect of the special issues mentioned, whether the issue was of substance and relevant. If, in his discretion, these matters are satisfied, the claim must be allowed. The Department took the view that it was not necessary expressly to state that no further discretion was retained.

3 May 2001

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