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
Water Act 2003 (Commencement No. 2,
Transitional Provisions and Savings) Order 2004: defective drafting
Water Act 2003 (Commencement No. 2, Transitional
Provisions and Savings) Order 2004
(S.I. 2004/2528)
1.1 The Committee draws the special attention
of both Houses to this Order on the ground that it is defectively
drafted.
1.2 Paragraphs (m), (n), (p) and (q) of article 2
of this Order, which was made by the Secretary of State, provide
that sections 77, 78 and 80 and part of section 86 of the Water
Act 2003 come into force on 1 October 2004. Section 105 of that
Act confers power to commence sections 77, 78, 80 and 86 on the
Secretary of State in relation to England, and on the National
Assembly in relation to Wales. The Order does not state that these
sections are brought into force in relation to England only.
1.3 In a memorandum printed at Appendix 1, the Department
for Environment, Food and Rural Affairs states that it was intended
that the provisions in question should be brought into force in
relation to England only. The Department states that, given its
uncertainty whether subsection (4) of section 12A of the Reservoirs
Act 1975 (inserted by section 77 of the 2003 Act) was capable
of having effect in relation to England separately from its effect
in relation to Wales, it was considered appropriate that the Order
should remain silent as to application, and leave it to the reader
to ascertain the effect of the Order from the provisions of the
Act, guided by a footnote as to scope of the commencement power.
1.4 Subsections (1) to (3) of the new section 12A
confer on the Secretary of State a power to give directions to
the undertakers of a large raised reservoir. By virtue of section
100(1) of the 2003 Act (commenced by this Order), that power (when
commenced in relation to Wales) is exercisable by the Assembly
in relation to Wales. Subsection (4) confers a power on the Secretary
of State, where no direction has been given by the Assembly in
relation to a reservoir in Wales and it appears to him that it
is necessary or expedient in the interests of public safety in
England that such a direction be given, to give a direction in
relation to that reservoir. Given the terms and purpose of subsection
(4), it might therefore be expected that the commencement of this
provision should be a matter for the Secretary of State.
1.5 Be that as it may, the Committee considers the
Department's argument to be misguided. Sections 77, 78, 80 and
the relevant part of section 86 of the 2003 Act amend provisions
in other primary legislation. The intention is to commence those
amendments in relation to England only. The fact that there may
be some difficulty in ascertaining the effect of doing this in
respect of one provision of one of the amendments hardly justifies
a failure to make the intended limitation clear in respect of
the remaining amendments (and limiting the commencement of section
77 of the 2003 Act in this way would not, in the Committee's view,
increase any doubt there may be about the effect of section 12A(4)
of the Reservoirs Act 1975). Accordingly, the Committee considers
that the intention to limit the application of the commencement
of those sections to England should have been made clear in the
substance of the Order.
1.6 The failure to do so is liable to mislead the
reader into believing that sections 77, 78, 80 and the relevant
part of section 86 are in force in relation to Wales. The Committee
accordingly reports article 2 of this Order for defective drafting.
2
Service Charges (Consultation Requirements)
(Amendment) (England) Regulations 2004: defective drafting
Service Charges (Consultation Requirements) (Amendment)
(England) Regulations 2004
(S.I. 2004/2665)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted.
2.2 These Regulations amend regulation 4 of the Service
Charges (Consultation Requirements) (England) Regulations 2003
by inserting a paragraph (3A). That paragraph contains, in two
places, the words "date November 2004". The same
phrase appears in the second paragraph of the Explanatory Note.
In a memorandum printed at Appendix 2, the Office of the Deputy
Prime Minister states that "date November" should
in each case have read "8th November" and that it is
arranging for an amending instrument to be made as soon as possible.
The Committee accordingly reports these Regulations for defective
drafting, acknowledged by the Department.
| 
