Joint Committee on Statutory Instruments Fifth 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.


2. The Committee draws the special attention of both Houses to these Regulations on the grounds that they do not comply with proper legislative practice and are, in two respects, defectively drafted.

3. Regulation 1 deals with citation and commencement, regulation 3 is an interpretation provision, and regulation 4 specifies the complaints and other matters to which the Regulations apply. Regulation 2, however, amends earlier instruments. The proper practice, as explained in paragraph 2.28 of Statutory Instrument Practice, is for the formal provisions dealing with citation, commencement and interpretation to be put at the beginning of the instrument.

4. In a memorandum printed in the Appendix, the Northern Ireland Office agrees that regulation 2 has been mistakenly put in the wrong place.

5. The Committee therefore reports this instrument on the ground that the arrangement of the regulations does not comply with proper legislative practice, as acknowledged by the Department.

6. Regulation 2 amends earlier instruments which provide for the appointment of an investigating officer to investigate a complaint against a police officer, a senior officer or a part-time member of the Royal Ulster Constabulary Reserve. Paragraphs (1)(c), (1)(f) and (2)(c) amend those instruments by inserting in each a paragraph which provides that their provisions are without prejudice to the powers of the Ombudsman to approve the officer appointed to investigate a complaint referred to him under section 57(3) or to appoint an investigating officer of the Ombudsman to investigate a complaint under section 56(1) of the Police (Northern Ireland) Act 1998. The Committee asked the Department to explain the need for the new paragraphs, given that they purport to preserve the effect of primary legislation, and why they had been included, given that the Department had acknowledged, in its memorandum to the Committee in connection with the Royal Ulster Constabulary (Conduct) Regulations 2000 (S.R. 2000/315), that an identical provision in that instrument was unnecessary and would be removed. (Committee's 3rd Report, Session 2000-2001)

7. The Department, in its memorandum, accepts that the provisions are strictly unnecessary, but explains that they follow similar provisions in the regulations being amended to the effect that those regulations are without prejudice to the powers of the Independent Commission for Police Complaints under Article 9 of the Police (Northern Ireland) Order 1987.

8. Whilst the Committee understands why the new paragraphs were inserted, they are, as the Department accepts, unnecessary. The Committee reports regulation 2(1) and (2) for defective drafting, acknowledged by the Department.

9. Paragraph (4) of regulations 6 and 9 provides that, in specified circumstances the Ombudsman may investigate a complaint by applying section 54(3) of the 1998 Act. Section 54(3) empowers the Ombudsman (in the case of a complaint other than a serious complaint) as he thinks fit to: (a) formally investigate the complaint in accordance with section 56; or (b) refer the complaint to the Chief Constable for formal investigation by a police officer in accordance with section 57.

10. It appeared to the Committee that the words "he may investigate it by applying section 54(3)" were ambiguous, as they might mean either that the Ombudsman may investigate the complaint in accordance with section 56, or that he may exercise the discretion conferred by section 54(3). In response to the Committee's request for clarification, the Department explains that the former meaning is intended.

11. In the Committee's view, the reference to section 54(3) is defective not only in that it suggests that the Ombudsman may refer the complaint to the Chief Constable for investigation, but also in that it is needlessly referential. As the intention is that the Ombudsman should formally investigate the complaint in accordance with section 56, regulations 6(4) and 9(4) could, and should, have said so.

12. Accordingly the Committee reports regulations 6(4) and 9(4) for defective drafting.

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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