4 S.R.
2004/3: defective drafting and failure to comply with proper drafting
practice
Police Service of Northern Ireland Reserve (Part-Time)
Regulations 2004 (S.R. 2004/3)
4.1 The Committee draws the special attention
of both Houses to these Regulations on the grounds that they fail
to accord with proper drafting practice and are defectively drafted.
4.2 Regulation 2(2) states that nothing in these
Regulations shall be construed as authorising pay or allowances
payable to any person to be reduced retrospectively. Regulation
17(1) provides for the pay of members to be determined by the
Secretary of State, and regulation 17(2) states that such a determination
may be made with retrospective effect, "but nothing in this
paragraph shall be construed as authorising the pay payable to
any person to be reduced retrospectively". In a memorandum
printed at Appendix 4, the Northern Ireland Office acknowledges
that the quoted words are otiose and undertakes to remove them
when the Regulations are next amended. The Committee accordingly
reports regulation 17(2) for defective drafting, acknowledged
by the Department.
4.3 Regulation 6(1) prohibits the imposition by the
Northern Ireland Policing Board or the Chief Constable of restrictions
on the private life of members other than those designed to secure
the proper exercise of the functions of a member, except such
as may temporarily be necessary or such as may be approved by
the Secretary of State. The Committee asked the Department
what sort of restrictions were envisaged to be imposed by virtue
of the italicised words and, given that they will be not be designed
to secure the proper exercise of the functions of a member, how
their inclusion was compatible with Article 8 of the European
Convention on Human Rights.
4.4 In its memorandum, the Department gives as an
example of a restriction which may be temporarily necessary one
which would prevent a part-time officer from socialising in a
particular location because of the threat assessment reached by
the Chief Constable in respect of that location. The Department
believes that, where its imposition is a proportionate response
in the particular circumstances, such a restriction would be justified
under article 8(2) of the Convention as being in the interests
of protecting the safety of police officers, in the interests
of public safety and for the prevention of disorder and crime.
4.5 The Committee accepts that the italicised words
authorise the imposition of restrictions which are compatible
with article 8. Its concern is, however, that they appear also
to authorise restrictions which are not compatible, given that
they create broad exceptions to a power which is expressly limited
to a purpose which conforms to the requirements of article 8.
In that context the Committee considers that the failure to
specify the purpose or purposes for which the excepted powers
in regulation 6(1) may be used does not accord with proper drafting
practice. It reports accordingly.
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