Joint Committee on Statutory Instruments Ninth 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. 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.


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.


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.


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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