Joint Committee on Statutory Instruments Twenty-First 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 ground that they are defectively drafted and make an unexpectedly limited use of the enabling power.

3. These Regulations amend the Home Energy Efficiency Scheme (England) Regulations 2000, which permit the making of grants for the improvement of energy efficiency in dwellings occupied by certain classes of person.

4. Regulation 3(a) adds to the classes of person who may apply for grant a person who is, or is living with a spouse who is, "a person in respect of whom a maternity certificate (as provided for in regulation 2 of the Social Security (Medical Evidence) Regulations 1976 and regulation 2 of the Statutory Maternity Pay (Medical Evidence) Regulations 1987) has been given". Such a certificate is given by a doctor or registered midwife and confirms that the person either can be expected to be confined in a specified week not more than 14 weeks ahead, or has given birth on a specified date. As it seemed unlikely to have been the intention that eligibility for grant should continue indefinitely after childbirth, the Committee asked the Department for Environment, Food and Rural Affairs to explain the intended effect of this provision.

5. In a memorandum printed in Appendix 1, the Department states that the provision is intended to apply only where the person in question is pregnant at the time that the application for a grant is made and asserts that this is reasonably clear in the context, but acknowledges that the drafting is not as clear as it could be and states that it intends to amend the provision at the earliest opportunity. The Committee does not agree that the intended meaning is reasonably clear, particularly given the fact that a maternity certificate may sometimes be issued after the birth. The Regulations should have referred to a woman who is pregnant and who has been given a maternity certificate in respect of that pregnancy. The Committee accordingly reports regulation 3(a) for defective drafting.

6. Regulation 6 of the 2000 Regulations prescribes the maximum amount of grant that may be paid. Different maxima are prescribed in respect of grants under regulation 4(1)(a) to (c). Although these Regulations insert regulation 4(1)(d), they do not prescribe the maximum amount of grants under that provision. The Department states that this was due to an oversight, and that the Regulations will be amended at the earliest opportunity. The Committee reports the Regulations for making an unexpectedly limited use of the enabling power.


7. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted.

8. Paragraph (1) of regulation 5 of these Regulations prohibits the dispatch of animals of the bovine, ovine, caprine or porcine species, but paragraph (3) disapplies that prohibition in the case of bovine or porcine animals, "without prejudice to" Council Directive 64/432/EEC and Council Decision 98/256/EC. The Committee asked the Department for Environment, Food and Rural Affairs why regulation 5 purports to impose a prohibition in respect of bovine and porcine animals which it then immediately disapplies and why paragraph (3) is expressed to be without prejudice to Council legislation which is addressed only to the member States and does not therefore impose obligations on persons subject to the requirements of the Regulations.

9. In its second memorandum, which is printed in Appendix 2, the Department states that the Regulations reflect as far as possible the wording and structure of the Commission Decisions which they implement. The Department accepts that this resulted in an apparent conflict between paragraphs (1) and (3) of regulation 5 in relation to porcine animals (the export of bovine animals remaining prohibited because of Council Decision 98/256/EC, concerning safeguards against the spread of BSE), that the intended result could have been more elegantly produced but that this would have taken time and the Department wished to allow trade to re-start without delay. The Department adds that regulation 5(3) is without prejudice to the Council legislation referred to because the latter's requirements need to be applied to the resumption of bovine and porcine exports and the effect is incapable of misinterpretation.

10. The Committee does not find this reasoning persuasive. In our view, it was not appropriate simply to reproduce substantially the wording of the amending Commission Decision, as regulation 5(3) does. This resulted in a confusing and unnecessary conflict between paragraphs (1) and (3) of regulation 5. It also involved inappropriate and unnecessary references to the two Council instruments. The Regulations, as domestic legislation, cannot affect the operation of those instruments and to that extent it was unnecessary for regulation 5(3) to be expressed as without prejudice to them. It was also inappropriate to purport to qualify the effect of domestic Regulations by reference to Community legislation of a kind which cannot impose obligations on those subject to the requirements of the Regulations. To do so is particularly inappropriate in a provision breach of which is made an offence.

11. The Committee acknowledges the desirability of lifting the export restriction speedily but is not persuaded that it would have been difficult to achieve this without adopting the course chosen by the Department. Had regulation 5(1) simply prohibited the dispatch of ovine and caprine animals there would have been no need for paragraph (3), as any other relevant controls would clearly have remained unaffected.

12. Regulation 5(3) also refers to "the Foot-And-Mouth Disease Order" without an identifying year. The Department acknowledges that this should have read "the Foot-And-Mouth Disease Order 1983". The Committee reports regulation 5(3) for defective drafting in the above respects.

1   The Orders of Reference of the Committee are set out in the First Report, Session 2001-02 (HL Paper l; HC l-i). Back

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