Instruments reported
The Committee has considered the following instruments,
and has determined that the special attention of both Houses should
be drawn to them on the grounds specified.
1 S.I.
2003/2772: elucidation
NHSU (Establishment and Constitution) Order 2003
(S.I. 2003/2772)
1.1 The Committee draws the special attention
of both Houses to this Order on the ground that it requires elucidation.
1.2 This Order establishes a Special Health Authority
called NHSU. Article 4 provides that NHSU shall consist of a chairman,
not more than 10 members who are not officers of NHSU, and 5 members
who are officers of NHSU including the chief executive and the
director of planning and resources. Regulation 2(1) of the NHSU
Regulations 2003 (S.I. 2003/2773) provides for the chairman
and non-officer members to be appointed by the Secretary of State.
The Committee asked the Department of Health how and by whom the
three remaining officer members are to be appointed.
1.3 In a memorandum printed at Appendix 1, the Department
refers to provisions relating to the employment of officers
by the Authority, as opposed to the appointment of officers as
members of the Authority. It adds that the appointment of the
chief executive and other officers is a matter for the other appointed
members of the authority, but it was unclear to the Committee
whether this was a reference to their appointment as officers
or their appointment as members. In a further memorandum, the
Department states that the officer members are to be appointed
to membership by the chairman and non-officer members. It refers
again to the provisions of the National Health Service Act 1977
which relate to the employment of officers, and suggests that
it is implicit that the appointment to membership of officers
other than the chief executive and director of planning and resources
is a matter for the chairman and non-officer members. The Committee
does not share the Department's view that this is implicit, but
accepts that it is most unlikely that the Department's intention
will not be achieved in practice.
1.4 The Department states that it is considering
how clarity could be improved in future cases of this nature.
The Committee would observe that the simplest way of improving
clarity would be for the relevant regulations to provide expressly
for the appointment of the officer members.
1.5 The Committee accordingly reports this Order
as requiring the elucidation provided in the Department's memoranda.
2 S.I.
2003/2905: defective drafting and elucidation
Air Navigation (Amendment) (No. 2) Order 2003
(S.I. 2003/2905)
2.1 The Committee draws the special attention
of both Houses to this Order on the ground that it is defectively
drafted and, in one respect, requires elucidation.
2.2 This Order amends the Air Navigation Order 2000
(S.I. 2000/1562). Paragraph (1) of article 34A, inserted
by article 3(1), requires the operator of an aircraft registered
in the United Kingdom flying for the purpose of public transport
to establish and maintain an accident prevention and flight safety
programme. Failure to comply with this requirement is an offence,
but the Order does not explain what such a programme must contain.
2.3 In a memorandum printed at Appendix 2, the Department
for Transport explains that this requirement derives from the
Chicago Convention (on International Civil Aviation), that the
International Civil Aviation Organisation's ("ICAO")
Accident Prevention Manual provides details of the accident prevention
measures expected of an operator, and that the Civil Aviation
Authority has explained to operators that further information
on the content of such a programme is available. Operators have
in fact complied with the ICAO standard for a number of years.
The Department also explains that an operator must submit its
Operations Manual to the Civil Aviation Authority for approval,
that the Authority may require changes to be made to a manual
and that by this means the Authority can ensure that programmes
(which are a constituent part of a manual) meet the ICAO requirements.
The Committee accordingly reports article 34A(1) as requiring
the elucidation provided in the Department's memorandum.
2.4 Paragraph (2) of article 34A requires certain
operators to include a flight data monitoring programme as part
of their accident prevention and flight safety programme. Paragraph
(3) states that the sole objective of such a programme shall be
the prevention of accidents and incidents, and that it shall not
be its purpose to apportion blame or liability. The words "such
a programme" can be read as referring to either of the programmes
mentioned in paragraph (2). The Department explains that the reference
is intended to be to the accident prevention and flight safety
programme. The Committee considers that article 34A(3) should
have avoided any doubt as to the programme to which it applies
and therefore reports it for defective drafting.
2.5 Article 94A, inserted by article 4(2), provides
that a licence (that is, an air traffic controller licence or
a student air traffic controller licence) shall entitle the holder
to perform the functions specified in Section 1 of Part A of Schedule
9 under the heading "Privileges". The Department acknowledges
that, as Section 1 of Part A applies to air traffic controller
licences and Section 2 applies to student air traffic controller
licences, the reference to Section 1 only is inappropriate. The
Committee accordingly reports article 94A for defective drafting,
acknowledged by the Department.
2.6 Paragraph 1(2) of Part A of Schedule 9, as substituted
by article 5(2), provides that subject to paragraphs (b) and
(c), the holder of the licence shall be entitled to perform
the functions specified in paragraphs (a) to (c). Paragraph (b)
duplicates the provisions of article 94A(b). The Department admits
that neither the italicised words nor paragraph (b) should have
been included. The Committee accordingly reports paragraph
1(2) of Part A of Schedule 9 for defective drafting, acknowledged
by the Department, and notes the Department's undertaking to correct
the acknowledged errors at the earliest opportunity.
3 S.I.
2003/3027: defective drafting and failure to comply with Statutory
Instrument Practice
Motor Cars (Driving Instruction) (Amendment) Regulations
2003 (S.I. 2003/3027)
3.1 The Committee draws the special attention
of both Houses to these Regulations on the grounds that they fail
to comply with Statutory Instrument Practice
and are defectively drafted.
3.2 These Regulations
correct an error in an amendment made by the Motor Cars (Driving
Instruction) (Amendment) Regulations 2002, which the Committee
reported in its 3rd Report of Session 2002-03. In a memorandum
printed at Appendix 3, the Department for Transport acknowledges
that the instrument should have been made available free of charge
to purchasers of the 2002 instrument, and should have borne an
italic headnote to that effect, as required by paragraphs 3.4.11
and 12 of Statutory Instrument Practice. The Department
regrets this error and is making appropriate arrangements. The
Committee therefore reports these Regulations for a failure to
comply with Statutory Instrument Practice.
3.3 Regulations 3 and 4 respectively insert regulations
3(4A) and 5(7A) in the Motor Cars (Driving Instruction) Regulations
1989. In each of those provisions, sub-paragraph (b) refers to
a person having passed "the examination". In the 1989
Regulations, as amended, "the examination" includes
both practical tests and a written examination. The Department
agrees that the references to "the examination" should
have been to "the written examination". The Committee
accordingly reports regulations 3(4A)(b) and 5(7A)(b) for defective
drafting, acknowledged by the Department.
4 S.I.
2003/3075: elucidation
Money Laundering Regulations 2003 (S.I. 2003/3075)
4.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they require
elucidation.
4.2 Regulation 28(1) refers to the Financial Action
Task Force. No explanation is given in the instrument or its Explanatory
Note as to the identity of this body. In a memorandum printed
at Appendix 4, the Treasury explains that the Task Force is an
inter-governmental body established by the G-7 Summit held in
Paris in 1989 with the purpose of developing policies to combat
money laundering and terrorist financing. The Committee reports
regulation 28(1) as requiring the elucidation provided by the
Department's memorandum.
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