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
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
1997 (CRIMINAL RECORDS)
REGULATIONS 2002 (S.I. 2002/233)
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
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.
2002 (S.I. 2002/240)
8. The Committee draws the special attention
of both Houses to this Order on the ground that it is defectively
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