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
2. A memorandum from the Ministry of Agriculture,
Fisheries and Food in connection with the Waddeton Fishery Order
2001 (S.I. 2001/1380) is printed in Appendix 1.
2001 (S.I. 2001/880)
3. The Committee draws these Regulations to the
attention of both Houses on the ground that in two respects they
are defectively drafted.
4. The Regulations implement as regards Great Britain
Directive 98/8 of the European Parliament and the Council concerning
the placing on the market and use of biocidal products.
5. Regulation 8(5) prohibits the use of certain biocidal
products unless the product is used "in a manner which involves
the rational application of a combination of physical, biological,
chemical or other measures as appropriate to limit the use of
biocidal products to the minimum necessary for the effective control
of target organisms". Schedule 11 makes failure to comply
with this duty an offence. The Committee asked the Department
of the Environment, Transport and the Regions to explain how a
person subject to this duty can be expected to establish, with
sufficient certainty to avoid criminal liability, that he has
met this requirement.
6. The Department in its memorandum, printed in Appendix
2, refers to the facts that the Directive requires the United
Kingdom to prescribe that biocidal products are to be "properly
used" and that the Directive defines that expression in the
terms of regulation 8(5) set out above, and adds that where appropriate
the United Kingdom is obliged to make provision to enforce duties
imposed by directives. The Department also says that it is working
with industry to produce guidance on this issue.
7. In the Committee's view it is not consistent with
United Kingdom legislative practice to attach a criminal sanction
to such an imprecise duty. The Department was not required to
make a breach of regulation 8(5) an offence. If it wished to provide
a criminal sanction for breach of the requirement that biocidal
products be properly used, it should, in the Committee's view,
have formulated for that purpose one or more obligations in sufficiently
precise terms. The Committee, whilst welcoming the Department's
intention to produce guidance (which the Committee trusts will,
unlike regulation 8(5), be in plain English) notes that such guidance
was apparently not available when the Regulations came into force.
In any event, the Committee does not consider that guidance (which
will not be an authoritative interpretation of the scope of
the obligation imposed by regulation 8(5)) would have the effect
of curing the lack of precision in the formulation of that provision.
The Committee therefore reports regulation 8(5) for defective
8. The Committee had a similar concern over regulation
25(6). This requires the holder of an authorisation under the
Regulations and a new applicant for authorisation to "take
all reasonable steps to reach agreement on the sharing of information"
to avoid unnecessary animal testing. Failure to comply is again
made an offence. The Department's memorandum simply asserts
without argument that it is appropriate to attach the sanction
in this case and gives examples of two obvious failures to comply
with the duty. But it gives no indication as to what (if any)
further steps must be taken to avoid criminal liability. In
the Committee's view, regulation 25(6) is not consistent with
the United Kingdom's traditional legislative practice of precision
in the formulation of criminal offences, and it reports that provision
for defective drafting.
2001 (S.I. 2001/1170)
2001 (S.I. 2001/1171)
9. The Committee draws these Regulations to the
attention of both Houses on the ground that they make an unexpected
use of the enabling power.
10. These Regulations re-enact with amendments similarly
entitled 1993 Regulations. Rule 14(3)(a) (set out in Schedule
1 to the Regulations) sets a limit of £10,000 on the amount
of expenses which a tribunal may award against a party who has
acted unreasonably in bringing or conducting proceedings. The
limit was previously set at £500. In view of this sharp increase,
the Committee asked the Department of Trade and Industry for an
11. In the Committee's view the Department's memorandum,
printed in Appendix 3, makes a convincing case for making the
increase. However, in view of its magnitude, the Committee
considers that it should be drawn to the attention of both Houses
and reports rule 14(3)(a) accordingly.
2001 (S.I. 2001/1268)
12. The Committee draws these Regulations to the
attention of both Houses on the ground that they require elucidation.
13. These Regulations require the General Teaching
Council for England to establish Investigating Committees, Professional
Conduct Committees and Professional Competence Committees and
set out their respective functions. Investigating Committees are
to investigate cases of alleged or apparent professional misconduct
or incompetence on the part of teachers registered with the Council.
If the Investigating Committee decides that the teacher has a
case to answer, it must refer the case to a Professional Conduct
or Professional Competence Committee. Subject to what follows,
where a case is referred to either of those Committees, the Committee
must determine the case. Regulation 17(1) permits either of those
Committees to refer cases to the other, and regulation 17(2) allows
both Committees to refer a case to an Investigating Committee.
We asked the Department for Education and Employment to explain
the purpose of this latter provision, given that the Regulations
provide for an Investigating Committee to refer a case to a Professional
Conduct or Professional Competence Committee after investigating
the matter and determining that the teacher has a case to answer.
14. In its memorandum, printed in Appendix 4, the
Department explains that the intention is to enable a Professional
Conduct or Professional Competence Committee to require further
investigation of a particular aspect of a case or of new facts
or issues which emerge in the course of the consideration of a
case, so that the Committee can take proper account of those matters
in determining the case. If a Committee could not do this, their
ability to take all relevant issues into account might be inhibited,
or they might have to dismiss a case which, on grounds of fairness,
could not be reopened later. In the Committee's view regulation
17(2) requires the elucidation provided by the Department's memorandum
and it reports that provision accordingly.
2001 (S.I. 2001/1324)
2001 (S.I. 2001/1325)
2001 (S.I. 2001/1326)
15. The Committee draws these Instruments to the
attention of both Houses on the ground that they defectively drafted.
16. These instruments, which came into force on 2
July 2001, amend their respective parent instruments in respect
of the criteria to be applied by a rent officer in determining
a single room rent. New article 3A, inserted by article 3(2) of
S.I. 2001/1325 and 1326, provides that a determination of a single
room rent made by a rent officer before 2 July 2001 shall cease
to have effect on the day before 2 July 2001 and the rent
officer must make a new determination. A similar provision is
contained in regulation 2(2) of S.I. 2001/1324. The Committee
asked the Department of Social Security to explain why the italicised
words were included and, if the provisions were intended to have
a retrospective effect, what authorised such provision.
17. In its memorandum, printed in Appendix 5, the
Department acknowledges that these provisions are defectively
drafted and states that it is taking steps to correct them. The
Committee accordingly reports these provisions for defective drafting,
acknowledged by the Department.
1 The Orders of Reference of the Committee are set
out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back