Joint Committee on Statutory Instruments Twenty-Third 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 notes that the practice of providing with all affirmative instruments an explanatory memorandum to Parliament, as announced by the Leader of the House of Commons in a written answer to that House of 1 February this year, is now well established. We welcome this innovation, which has significantly improved the comprehensibility of instruments laid before Parliament.


3. The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unexpectedly limited use of the enabling power.

4. These Regulations make detailed provisions in relation to applications for criminal record certificates and enhanced criminal record certificates under Part V of the Police Act 1997.

5. Section 118 of the Act allows the Secretary of State to refuse to issue a certificate unless the application is supported by such evidence of identity as he may require, and, in subsection (2), unless the applicant (a) has his fingerprints taken at such place and in such manner as may be prescribed, and (b) pays the prescribed fee to such person as may be prescribed. Subsection (4) requires that regulations prescribing a fee for this purpose shall make provision for a refund where a new certificate is issued to replace an inaccurate one. Regulation 11 of this instrument deals with the procedure for taking fingerprints but nowhere do the Regulations prescribe a fee in that respect; nor do they provide for a refund as required by section 118(4).

6. It appeared to the Committee that section 118(2) envisages that, where the place and manner of taking fingerprints are prescribed, a fee for this purpose must also be prescribed (the words "unless the applicant...(b) pays the prescribed fee" are to be contrasted with "pays any fee that is payable" used elsewhere in Part V).

7. In a memorandum printed at Appendix 1, the Home Office explains that where fingerprints are required because the Secretary of State cannot be sure of an applicant's identity it is not considered appropriate, as a matter of policy, to charge a fee, and where an inaccurate certificate is replaced the costs of collecting a fee and administering a refund are considered disproportionate and it is preferable not to prescribe any fee. In the Committee's view, however, the Act clearly supposes that where the place and manner of taking fingerprints are prescribed under section 118(2)(a) a fee will be prescribed under paragraph (b) and accordingly reports the Regulations on the ground that they make an unexpectedly limited use of the enabling power.


8. The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted.

9. Article 2(1) defines various expressions used in the Order "unless the context otherwise requires". In a memorandum printed at Appendix 2, the Department for Environment, Food and Rural Affairs accepts that the cited words are superfluous, and the Committee accordingly reports article 2(1) for defective drafting, acknowledged by the Department.

1   The Orders of Reference of the Committee are set out in the First Report, Session 2001-02 (HL Paper 7; HC 135-i). Back

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