Joint Committee on Statutory Instruments

Joint Committee on Statutory Instruments First Special Report

Departmental Returns, 2003

1. The role of the Joint Committee on Statutory Instruments is to examine almost every general (i.e. not local) statutory instrument. We deal with more than 1,500 such instruments every year.[1] The Joint Committee may draw the special attention of each House to an instrument on one or more of the following grounds:

· that it imposes a charge on the public revenues or contains provisions requiring payments to be made to the Exchequer or any government department or to any local or public authority in consideration of any licence or consent or of any services to be rendered, or prescribes the amount of any such charge or payment;

· that it is made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts, either at all times or after the expiration of a specific period;

· that it purports to have retrospective effect where the parent statute confers no express authority so to provide;

· that there appears to have been unjustifiable delay in the publication or in the laying of it before Parliament;

· that there appears to have been unjustifiable delay in sending a notification under the proviso to section 4(1) of the Statutory Instruments Act 1946, where an instrument has come into operation before it has been laid before Parliament;

· that there appears to be a doubt whether it is intra vires or that it appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made;

· that for any special reason its form or purport calls for elucidation;

· that its drafting appears to be defective;

or on any other ground which does not impinge on its merits or on the policy behind it, and to report its decision with the reasons thereof in any particular case.

2. The most common reasons for reporting instruments are set out in the tables below. They include defects in the drafting of an instrument; doubt whether it falls within the powers or vires it purports to exercise; that it makes an unusual or unexpected use of those powers; that it requires elucidation; or that its explanatory note is not sufficiently complete or clear to explain the instrument. Of the other defaults which are reported, a common one is a failure to observe the 21-day rule (which provides that an instrument subject to the negative resolution procedure shall in normal circumstances not come into force until 21 days after it has been laid before Parliament), or to provide sufficient justification for its breach.

3. In April 2004 Departments were asked to prepare returns setting out, in tabular form, the action taken on instruments which the Committee had drawn to the special attention of both Houses in the calendar year 2003. They were also asked to provide updating information on instruments reported in 2002 and earlier in respect of which the Committee considered action remained outstanding. An extract from the request to Departments in 2004 is printed at Annex 1. The information provided by Departments is reproduced in the Appendices to this Report.[2]

4. Departments were asked to provide information which was correct to 1 May 2004. In certain cases Departments have subsequently acted to amend instruments. Where this has happened the tables concerned have been updated by means of a footnote.

5. Four tables have been prepared, which provide a digest of the information received from Departments. These are included at Annex 2.[3]

· Table 1 shows the number of instruments on which points had been reported by the Committee in 2003 on different grounds, and the number of instruments which had not been dealt with by Departments by 1 October 2004. In addition, the number of cases where Departments have disagreed with the Committee is shown;

· Table 2 shows the number of instruments in respect of which points had been reported in 2002 and previous years on which points were outstanding at the end of 2002, and the number of these on which points were still outstanding on 1 October 2004;

· Table 3 provides, for instruments reported in 2003, the number of instruments on which points were reported and outstanding by Department, and the number of cases of disagreement;

· Table 4 shows, by Department, the number of instruments reported in 2002 or earlier on which points were outstanding at the end of 2003 and the number of these on which points were still outstanding on 1 October 2004.

6. It should be noted that the number of instruments made by each Department varies considerably, as does their length and complexity, so the number of instruments on which points have been reported cannot necessarily be taken as an indication of the Department's performance in this field. Similarly, the number of instruments outstanding against any one Department takes no account of the fact that certain types of instrument tend to be replaced and revoked regularly, which will affect the speed at which corrections can be made. It should also be noted that more than one point may be taken on an instrument: several points may be taken on one ground, and points may be taken on a number of grounds.

7. Annex 3 to this Report lists those instruments which were reported in 2003. It also lists those instruments not reported by the Committee but in respect of which memoranda were requested and published.

Instruments on which action remains outstanding

8. The Committee has been monitoring the performance of Departments in implementing its recommendations since the beginning of the 1997 calendar year. The Committee considers that it is now appropriate to take further action in respect of several of those recommendations on which action still remains outstanding. In the request sent to Departments sent in April 2004, we noted that we reserved the right to draw to the attention of both House instances where Departments had repeatedly failed to take corrective action on instruments in response to a Committee report.

9. Ministers are responsible for the good order of the secondary legislation made in their departments. It is this Committee's function to examine such legislation, on behalf of Parliament, and to draw to the special attention of both Houses matters arising on it which fall within the Committee's reporting grounds, having given the Department concerned an opportunity to explain the matter, usually by means of a memorandum.

10. Sometimes there will be honest differences of opinion between this Committee and the Department concerned. In such cases the Committee will draw its concerns to the attention of Parliament, to whom the Minister concerned is responsible for the exercise of his delegated powers.

11. Where the Department accepts a point which the Committee has raised—for example, when it recognises an error in the drafting of an instrument—it will often give an undertaking to correct the defect in the instrument in its memorandum to the Committee.

12. The Committee expects that errors in instruments which it considers warrant correction should be corrected as soon as possible, by the issue of an amending instrument if necessary. It has frequently recommended the early correction of defects in instruments. In other cases, the Committee has accepted Departmental undertakings to correct them "at an early opportunity" or "when a suitable opportunity presents itself", often by the inclusion of an amending provision in a subsequent instrument.

13. Details of the number of instruments on which the Committee considers action remains outstanding are given in the tables at Annex 2. Details of all such instruments are given in the Appendices.

14. Where the Committee has received undertakings to amend instruments "at an early opportunity" or "at the first available opportunity", it expects them to be fulfilled within a reasonable space of time. It is not acceptable that defects requiring correction should remain in legislation indefinitely. The Committee has this year decided to review the action taken as a result of its reports. In certain cases it considers that there has been an unacceptable delay in the remedying of defects. We have therefore decided to draw these cases to the attention of both Houses. These instruments are set out below. We will return next year to any items that still remain to be acted upon.

DEPARTMENT FOR CONSTITUTIONAL AFFAIRS

S.I. 2001/855: Criminal Defence Service (Funding) Order

15. The Committee reported this instrument on 1 May 2001.[4] It identified several defects in the internal cross-referencing in the Order, which the Department acknowledged and undertook to put right when an amending order was made in the near future.

16. The defects in paragraph 12 of Schedule 1 to the Order were corrected by the Criminal Defence Service (Funding) (Amendment No. 3) Order 2001.[5] The defect in paragraph 1 of Part 2 of Schedule 2 to the Order was not corrected at the same time. The Department acknowledged in its return for the calendar year 2003 that it omitted to take a further opportunity to remedy the remaining defect when the Criminal Defence Service (Funding) (Amendment) Order 2003 was made.[6] It has undertaken to make an amendment when the Order is next amended.

17. The Committee draws to the attention of both Houses the Department's failure to take an available opportunity to amend the Order.

DEPARTMENT FOR EDUCATION AND SKILLS

S.I. 2002/1458: Disability Discrimination (Educational Institutions) (Alteration of Leasehold Premises) Regulations 2002

18. The Committee reported this instrument for defective drafting on 9 July 2002.[7] It noted that the Regulations contain numerous references to Schedule 6 to the Disability Discrimination Act 1995. The Department admitted that these references should have been to Schedule 4 to that Act and, in its memorandum, undertook to remake the Regulations promptly.

19. In its returns submitted for the calendar years 2002 and 2003, the Department indicates that "no suitable opportunity has arisen" to amend the Regulations. Since the Department's undertaking was to remake the Regulations promptly, the Committee considers that this reason is unacceptable. The Committee draws to the attention of both Houses the Department's continued failure to fulfil its original undertaking to the Committee to remake the Regulations promptly.

S.I. 2003/1934: Education (Provision of Information by Independent Schools) (England) Regulations 2003

20. The Committee reported these Regulations for an unexpected use of the enabling power on 4 November 2003.[8] Regulation 8(1) requires the proprietor of an independent school who has ceased to use a person's services on certain specified grounds to report the facts of the case and provide certain information that is available to him in relation to such a person to the Secretary of State. Breach of the provision is an offence, but no specific period for compliance with the requirement is given. The Department has accepted that it would be desirable to include a specific period for compliance, and undertook to amend the Regulations at the earliest opportunity.

21. Given the period of time which has elapsed since the Department's undertaking, and the fact that the Regulations remain unamended, the Committee draws to the attention of both Houses the Department's delay in fulfilling its undertaking.

DEPARTMENT OF TRADE AND INDUSTRY

S.I. 1999/360: Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999

22. The Committee reported this instrument on 23 March 1999.[9] Two of the Regulations were defectively drafted, in that they included erroneous cross-references to other parts of the instrument. The Department acknowledged the errors and undertook to correct them "at the earliest opportunity".

23. In the Department's return for the calendar year 2001—three years after the instrument was reported—it indicated that it did not propose to make further regulations to correct a cross-reference, but instead undertook to incorporate a correction into an amending instrument "as and when" one was required. It states that it is still awaiting an opportunity to amend the instrument.

24. In the Committee's view the Department should by now have fulfilled its earlier undertaking to correct the errors. The Committee draws to the attention of both Houses the Department's continued failure to fulfil its original undertaking to the Committee.

DEPARTMENT FOR WORK AND PENSIONS

S.I 2000/2831: Genetically Modified Organisms (Contained Use) Regulations 2000

25. The Committee reported this instrument on 12 December 2000.[10] The Regulations were found to be defectively drafted in four respects, failed to conform to proper drafting practice in another and also made an unexpected use of the enabling power. The Department then responsible (the Department for Environment, Transport and the Regions), in its memorandum to the Committee, undertook to correct one aspect of the drafting "at the earliest opportunity".[11] The Committee considers that its other criticisms of the drafting of these Regulations should also be addressed. The Department's return for the calendar year 2000 indicated that amending Regulations were anticipated to be made "by the end of October 2001".[12]

26. In the return for the calendar year 2001, the Department indicated that the responsible body (the Health and Safety Executive) then anticipated that the amending Regulations would be made in the Spring of 2003. In the return for 2002, the date for amending regulations had been further delayed, to Spring 2004. In the latest return, the responsible Department (now the Department for Work and Pensions) states that the Health and Safety Executive expects amending regulations to be made by summer 2005.

27. The Committee accepts that there may have been delays in the drafting of other substantive provisions of the amending regulations which have been occasioned by factors beyond the control of the Executive. It nevertheless considers that there has been an unnecessary delay in making the requisite corrections to the existing Regulations. The Committee therefore draws to the attention of both Houses the continued failure to remove the defects identified in its report.

S.I. 2001/880: Biocidal Products Regulations 2001

28. The Committee reported this instrument on 17 July 2001.[13] It noted that the Regulations, which implement as regards Great Britain, Directive 98/8 of the European Parliament and the Council concerning the placing on the market of certain biocidal products contained two requirements, the breach of which would attract a criminal sanction. In the Committee's view the requirements were not formulated with sufficient precision to enable a person to establish that he had met the requirement. It considered that regulations 8(5) and 25(6) were not consistent with the United Kingdom's traditional legislative practice of precision in the formulation of criminal offences, and reported both for defective drafting.

29. The Health and Safety Executive, which, via the Department for Work and Pensions, is responsible for the legislation, has stated in successive returns that it has not yet determined how to meet the Committee's concerns while also fully implementing the relevant Directive. The Committee is conscious of the difficulties which sometimes arise in the transposition of EU Directives but considers the present position unacceptable. The Committee draws to the attention of both Houses the continued failure to remove the defects identified in its report.

FOOD STANDARDS AGENCY

S.I. 2000/656: Food Standards Act 1999 (Transitional and Consequential Provisions and Savings) (England and Wales) Regulations 2000

30. The Committee reported this instrument on 18 April 2000.[14] It makes provision for the transfer of functions to the Food Standards Agency. The Committee noted that paragraph 3 of Part VIII of Schedule 4 was defectively drafted, inserting the words "the Agency" after the words "the Minister" in regulation 5(2) of the Fresh Meat (Beef Controls) (No. 2) Regulations 1996.[15] The Department acknowledged the drafting error in its memorandum and undertook to correct the error "shortly". The Food Standards Agency's returns for the calendar years 1999 and 2000 both indicated that the correction was awaiting the implementation of substantive amendments to the 1996 Regulations.

31. Over four years have elapsed since the date of the Committee's report. The Committee draws to the attention of both Houses the Department's continued failure to fulfil its undertaking to make the correction shortly.

HOME OFFICE

S.I. 1998/474: Criminal Justice and Public Order Act (Suspension of Custody Officer Certificate) Regulations 1998

32. The Committee reported this instrument on 7 April 1998.[16] It considered that Regulation 2(a)(i) was defectively drafted, since it did not spell out the nature of an allegation which would have to be made against a custody officer in order for an escort monitor to suspend the officer's Custody Officer Certificate. The Home Office explained in its memorandum[17] that the provision was meant to cover any allegation of "misconduct or abuse of position by officers." Given the sanction which attached to the provision, the Committee considered that the nature of the allegation envisaged should have been spelt out in the regulation itself.

33. In returns submitted for the calendar years 1998, 1999 and 2003 the Department has explained that it is "awaiting an opportunity to amend" the instrument. In the Committee's view, the Department should by now have amended the instrument. The Committee draws to the attention of both Houses the continued failure to remove the defect identified in its report.

S.I. 1998/636: NCIS (Discipline) (Senior Police Members) Regulations 1998

34. The Committee reported this instrument on 28 May 1998.[18] In common with the National Crime Squad (Discipline) (Senior Police Members) Regulations 1998[19], the instrument was found to be defectively drafted in three respects. The Home Office in its memorandum[20] apologised for the oversights which led to two of the drafting errors, and undertook to correct both instruments "at the next opportunity".

35. S.I. 1998/637 was revoked by the Police (Conduct) (Senior Officers) (Amendment) Regulations 2003,[21] dated 14 October 2003, which have subsequently been revoked by the Police (Conduct) Regulations 2004,[22] dated 8 March 2004.

36. No similar provision has been made to revoke or correct S.I. 1998/636. In its return for the calendar year 1999, the Home Office stated that regulations were in preparation and expected to be made during 2000. The amending regulations have still not materialised. Since over six years have elapsed since the Committee's original report, the Committee draws to the attention of both Houses the Department's continued failure to fulfil its undertaking to correct S.I. 1998/636.

S.I. 1998/1941: Firearms Rules 1998

37. The Committee reported this instrument on 10 November 1998.[23] It noted a discrepancy between the requirement in rule 5(4)(ii), requiring the holder of a firearm certificate to inform the police within seven days of the theft, loss or destruction of a the certificate or the theft, loss or destruction of any shotgun to which the certificate relates, and the form of words on the shotgun certificate form, set out in Part II of Schedule II to the Rules, which requires the holder of a certificate to inform the police of any of the events listed above without undue delay. The Home Office admitted that the wording of the certificate should be amended to require notification within seven days.[24] It undertook to amend the condition "at the next appropriate opportunity" and indicated that in the meantime guidance had been issued to police forces to amend all shotgun certificates issued to ensure that condition 2 correctly reflected rule 5(4)(ii).

38. In its return for the calendar year 1999, the Department indicated that an opportunity to amend the Rules was likely to occur in the course of 2000. The instrument nevertheless remains unamended, and the Committee draws to the attention of both Houses the Department's continued failure to fulfil its undertaking to correct the instrument.

NORTHERN IRELAND OFFICE

S.R. 1997/469: Control of Pesticides (Amendment) Regulations (Northern Ireland) 1997
S.R. 1997/470: Plant Protection Products (Basic Conditions) Regulations (Northern Ireland) 1977

39. The Committee reported both instruments on 16 December 1997.[25] S.R. 1997/469 amends the Control of Pesticides Regulations (Northern Ireland) 1987 and S.R. 1997/470 supplements the Plant Protection Products Regulations (Northern Ireland) 1995. Both instruments substitute a new Schedule 1 in the respective Regulations. The Department of Agriculture for Northern Ireland accepted that paragraph 1(1) of each Schedule could have been better expressed. The Committee considered that the wording of those paragraphs 1(1) was very different from the intention expressed, and therefore reported both paragraphs for defective drafting.

40. In successive annual returns the Department has indicated that amending regulations will be made as soon as possible after regulations amending the appropriate legislation for England and Wales have been made. The Committee considers that correction of the defect in each instrument is not dependent upon the making of regulations for England and Wales. The Committee is concerned that these defects have been present for seven years. It therefore draws to the attention of both Houses the continued failure to remove the defects identified in its report.

S.R. 2000/314: Police and Criminal Evidence (Application to Police Ombudsman) Order (Northern Ireland) 2000

41. The Committee reported this instrument on 12 December 2000.[26] Article 3(1) of the Order provides for certain provisions of the Police and Criminal Evidence (Northern Ireland) Order 1989 to apply to investigations conducted by officers of the Police Ombudsman. The provisions concerned are those which relate to the investigation of offences conducted by police officers or to persons detained by the police (emphasis added).

42. The Northern Ireland Office acknowledged that the reference to persons detained by the police was incorrect, and undertook to amend the Order accordingly.[27] It also acknowledged and undertook to correct two other drafting points identified by the Committee.

43. The Order has not yet been amended, although the Department indicates, in its return for the calendar year 2003, that it intends to make the Police Service of Northern Ireland (Conduct etc.) (Amendment) Regulations later in 2004. The Committee draws the inference that this amending instrument is intended to make the necessary amendments to existing secondary legislation governing the conduct of policing in Northern Ireland. The Committee draws to the attention of both Houses the delay in correcting the acknowledged defects in this instrument.

S.R. 2000/315: Royal Ulster Constabulary (Conduct) Regulations 2000

S.R. 2000/316: Royal Ulster Constabulary (Unsatisfactory Performance) Regulations 2000

S.R. 2000/317: Royal Ulster Constabulary (Appeals) Regulations

S.R. 2000/319: Royal Ulster Constabulary (Complaints) (Informal Resolution) Regulations 2000

S.R. 2000/320: Royal Ulster Constabulary (Conduct) (Senior Officers) Regulations 2000

44. The Committee reported these five instruments on 16 January 2001.[28] In total the Committee identified 26 separate instances of defective drafting, and one case where an instrument required elucidation, and reported the instruments accordingly.

45. The Department indicated in its return for the calendar year 2002 that partial amendments had been made to S.R. 2000/315, 316, 317 and 320 by the Police Service of Northern Ireland (Conduct) Regulations 2003,[29] and stated that its intention was to revisit each of the regulations in 2004 and make further amendments. Its return for the calendar year 2003 indicates that the Police Service of Northern Ireland (Conduct etc.) (Amendment) Regulations are to be made later in 2004. The Committee draws to the attention of both Houses the delay in correcting the defects in these instruments.

S.R. 2001/140: Police (Recruitment) (Northern Ireland) Regulations 2001

46. The Committee reported this instrument on 10 July 2001.[30] It reported the drafting of regulation 4(2) as not being in accordance with proper drafting practice, a defect effectively acknowledged by the Department. It also reported regulation 9(2) for defective drafting, since it failed clearly convey its intended purpose.

47. In its annual returns for the calendar years 2000 and 2001 the Department has indicated that it is awaiting the opportunity to amend the instrument "in the next Session or as soon thereafter as practicable." The return for 2003 indicates that the Department is still awaiting the opportunity to amend. The Committee draws to the attention of both Houses the delay in correcting the defects in this instrument.

S.R. 2002/147: Explosives (Fireworks) Regulations (Northern Ireland) 2002

48. The Committee reported this instrument on 11 June 2002.[31] It noted that regulation 4(2), as drafted, imposed a free-standing prohibition on the possession of certain types of firework, where the Department's intention in drafting the provision was to limit the types of firework whose possession, purchase, sale, acquisition, handling or use was authorised by a licence. It therefore reported the provision for defective drafting. The Committee also reported the instrument for two further subsidiary drafting defects.

49. The Department, in its returns for the calendar years 2002 and 2003, indicates that it is awaiting the opportunity to amend the instrument. The Committee considers that amending action should by now have taken place, and draws the continuing delay to the attention of both Houses.

PRIVY COUNCIL OFFICE

S.I. 2000/3290: General Chiropractic Council (Professional Conduct Committee) Rules Order of Council 2000
S.I. 2000/3291: General Chiropractic Council (Health Committee) Rules Order of Council 2000

50. The Committee reported both instruments on 27 February 2001.[32] Both approve rules made by the General Chiropractic Council laying down procedures to be followed by, respectively, the Professional Conduct Committee and the Health Committee in considering allegations as to a chiropractor's conduct, competence or medical fitness to practice.

51. The Committee noted that rule 16(2) in the Schedule to each instrument consisted of a sentence of 11 lines, containing several propositions, in a form which was difficult to follow and to understand and that a provision of rule 16(2) was ambiguously drafted.

52. In a memorandum submitted by the Privy Council Office,[33] the General Chiropractic Council undertook to amend the provision "at a suitable opportunity." Three years have elapsed since that undertaking. In its return for the calendar year 2003 the Privy Council Office states that the date for any amending instrument is not known. The Committee draws to the attention of both Houses the continuing delay in amending these Rules.

1 Both general and local Statutory Instruments are numbered in the same sequence, according to calendar year. In recent years the highest reference numbers issued have been 3114 (1997), 3321 (1998), 3491 (1999), 3412 (2000), 4150 (2001), 3267 (2002), and 3367 (2003). The House of Commons Sessional Returns give figures for the numbers of Statutory Instruments considered by the Joint Committee on Statutory Instruments in each parliamentary session. Recent figures are 2,466 (1997-98 - a long post-election session), 1,697 (1998-99), 1,263 (1999-2000), 1,788 (2000-01), and 1,451 (2002-03). The Joint Committee on Statutory Instruments does not consider local instruments. Back

2 The information provided by Departments has in some cases been amended for the sake of consistency. Back

3 The basis on which the figures in the tables have been compiled differs from that used in previous reports. The change is explained more fully in the note to Annex 2. Back

4 15th Report, Session 2000-01 Back

5 S.I. 2001/3341, dated 8 March 2001 Back

6 S.I. 2003/642, dated 7 March 2003 Back

7 35th Report, Session 2001-02 Back

8 30th Report, Session 2002-03 Back

9 13th Report, Session 1998-99 Back

10 1st Report, Session 2000-01 Back

11 Ibid., Appendix 5 Back

12 See Appendix 7A Back