NINTH REPORT
FROM
THE
JOINT
COMMITTEE
OF
BOTH
HOUSES
APPOINTED
TO
SCRUTINISE
STATUTORY
INSTRUMENTS,
ETC.[1]
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. A memorandum from the Department for Transport,
Local Government and the Regions in connection with the Motor
Vehicles (Driving Licences) (Amendment) (No. 4) Regulations 2001
(S.I. 2001/2779) is printed in Appendix 1.
LICENSED CONVEYANCERS' DISCIPLINE AND APPEALS COMMITTEE
(PROCEDURE) RULES APPROVAL ORDER 2001 (S.I. 2001/2797)
3. The Committee draws the special attention of
both Houses to this Order on the ground that it is defectively
drafted.
4. This Order gives effect to the Licensed Conveyancers'
Discipline and Appeals Committee (Procedure) Rules 2001, which
are set out in the Schedule to the Order.
5. Rule 1(2) provides that the previous (1987) Rules
shall cease to have effect on 30 September 2001 "save as
provided for in these Rules or otherwise where the same still
subsist or are capable of subsisting". Nowhere in the Rules
does it provide for the 1987 Rules to continue to have effect,
and it was not clear to the Committee how those Rules, once revoked,
could still subsist or be capable of subsisting. In a memorandum
submitted by the Lord Chancellor's Department, which is printed
in Appendix 2, the Council for Licensed Conveyancers accepts that
the words quoted above are incapable of applying and are therefore
superfluous.
6. Rule 2(2) states that the Interpretation Act 1978
applies to the Rules as it applies to an Act of Parliament. Section
23(1) of that Act expressly provides for its application to subordinate
legislation, which is defined in section 21(1) to include rules
made under an Act. So, as the Council accept, rule 2(2) is unnecessary.
7. The Committee accordingly reports rules 1(2)
and 2(2) for defective drafting, acknowledged by the Council for
Licensed Conveyancers.
SOCIAL SECURITY (JOBCENTRE PLUS INTERVIEWS) REGULATIONS
2001 (S.I. 2001/3210)
8. The Committee draws the special attention of
both Houses to these Regulations on the ground that they are defectively
drafted.
9. These Regulations impose a requirement on persons
living in certain areas who claim, or are entitled to, certain
benefits to take part in a work-focused interview.
10. Regulation 6(2) allows an officer to determine,
in the case of any particular person, that the requirement to
take part in an interview is not to apply at the normal time.
Where he does so, regulation 6(3) requires him also to determine
at the same time at what time the requirement to take part in
an interview is to apply. Regulation 6(4) provides that, "where
an interview has been deferred in accordance with this regulation",
a claimant must be treated as having complied with any requirement
to take part in an interview until [(a)] a determination has been
made that the claimant is to take part in an interview.
11. As regulation 6(4) cannot apply unless the determination
required by regulation 6(3) has been made, the Committee asked
the Department for Work and Pensions to explain whether this was
the determination referred to in regulation 6(4)(a). In a memorandum
printed at Appendix 3, the Department state that regulation 6(4)(a)
ensures that the claimant is treated as having complied with the
requirement, if the officer who made the determination under regulation
6(2) fails to make one under regulation 6(3), until a determination
as envisaged by that provision is actually made. The Committee
does not accept this argument. If no determination is made as
required by regulation 6(3), the interview will not be deferred
"in accordance with" regulation 6, so regulation 6(4)
will not apply in any event. The Committee therefore reports
regulation 6(4) for defective drafting.
12. Regulation 11 sets out the consequences of a
failure without good cause to take part in an interview when requested
to do so. Paragraphs (2) and (12) refer to the date on which "the
decision" was made (or notified). Paragraph (13) defines
"the decision" for these purposes as "the decision
that the person failed without good cause to take part in an interview".
Nowhere in the Regulations is there any requirement for anyone
to make such a decision, and it appeared to the Committee that
express provision to that effect ought to have been included.
In its memorandum, the Department accepts that there is no express
provision in the Regulations, but states that such a requirement
follows necessarily from the Regulations and the enabling legislation.
However, although section 2B(2)(b) of the Social Security Administration
Act 1992 refers to such a decision, it does so in terms of "a
decision made under regulations under section 2A". The Act
therefore envisages that the Regulations will provide for such
decisions to be made. As the Regulations do not do this, the
Committee reports them for defective drafting.
ROYAL ULSTER CONSTABULARY RESERVE (FULL-TIME) (APPOINTMENT
AND CONDITIONS OF SERVICE) (AMENDMENT) REGULATIONS 2001 (S.R. 2001/80)
13. The Committee draws the special attention
of both Houses to this instrument on the grounds that there have
been unjustifiable delays in laying it before Parliament and in
notifying the Lord Chancellor and the Speaker of the House of
Commons that it came into force before it was laid, and on the
ground that there has been a failure to comply with Statutory
Instrument Practice.
14. This instrument was made on 19 February 2001,
came into force on 16 March 2001 but was not laid before Parliament
until 22 March 2001. The Committee asked the Northern Ireland
Office to explain
- the reason for the substantial delay in laying
the instrument and why it was not laid before it came into force;
- whether the Department had notified the Lord
Chancellor and the Speaker that the instrument had been brought
into force before laying, as required by the proviso to section
4(1) of the Statutory Instruments Act 1946; and
- the reason for breaching the 21 day rule (that
instruments subject to negative procedure should normally not
be brought into force until 21 days after laying) and why this
had not been explained to the Committee, as required by paragraph
5.22 of Statutory Instrument Practice.
15. In a memorandum, dated 2 November 2001, which
is printed in Appendix 4, the Department acknowledges, and expresses
its regret for, these errors, stating that all of these procedural
requirements had been overlooked but that the requisite notification
to the Lord Chancellor and the Speaker was sent on 11 May 2001.
It and the Home Office (which undertakes the laying of instruments
for the Department) recognise that what occurred in this case
(and in a previous case, reported by the Committee in paragraphs
13 to 16 of its 15th report for the session 2000-2001)
was unacceptable.
16. The Northern Ireland Office also refers to a
new system it has put in place to avoid similar failures in future
(to which it referred in a memorandum to the Committee dated 9
April 2001, printed in Appendix 5 to the above report). The Committee
notes, however, that it has taken the Department several months
to submit a memorandum in response to the Committee's questions
on this instrument (the Committee had occasion to make a similar
comment in its 8th report for the present session in respect of
another instrument made by the Department).
17. Given the new system referred to by the Department,
the Committee finds these delays disquieting. It expects the Department
to ensure that procedural irregularities in the handling of instruments
and memoranda to the Committee will not recur. The Committee reports
this instrument for
- an unjustifiable delay in laying it before
Parliament;
- an unjustifiable delay in notifying the Lord
Chancellor and the Speaker that it came into force before it was
laid; and
- failure to provide an explanation for breaching
the 21 day rule.
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
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