Royal Parks Regulations 2010 etc - Statutory Instruments Joint Committee Contents


Instruments reported



At its meeting on 24 March 2010 the Committee scrutinised a number of Instruments in accordance with Standing Orders. It was agreed that the special attention of both Houses should be drawn to four of those considered. The Instruments and the grounds for reporting them are given below. The relevant Departmental memoranda are published as appendices to this report.

1 Draft S.I: Reported for defective drafting.

Royal Parks and Other Open Spaces (Amendment) etc. Regulations 2010 (Draft S.I.)


1.1 The Committee draws the special attention of both Houses to these draft Regulations on the ground that they are defectively drafted in two respects.

1.2 Regulation 1 of this draft instrument deals with preliminaries, regulation 2 amends the Royal Parks and Other Open Spaces Regulations 1997, regulation 3 amends Regulations relating to Greenwich Park, regulation 4 amends regulations relating to Hyde Park and The Regent's Park, regulation 5 contains provision as to parking charges in respect of Bushy Park and Richmond Park, regulation 6 provides for excess charges to be payable where there is a breach of regulation 5, regulation 7, which is headed "Exemptions", prescribes three circumstances under which no parking charge is payable, and regulation 8 contains provisions relating to regulations 5, 6 and 7.

1.3 Regulation 7 (unlike regulations 6 and 8) is not expressed to relate solely to parking charges payable under regulation 5. In a memorandum printed at Appendix 1, the Department for Culture, Media and Sport suggests that it was not necessary to specify the application of regulation 7 which, in its view, must refer to the only charges imposed by a free-standing provision, namely regulation 5. The Committee does not agree. The powers under which this instrument would be made are capable of applying to numerous parks and open spaces, and there is nothing in the draft to indicate that regulation 7 applies only to Bushy Park and Richmond Park. The Committee accordingly reports regulation 7 for defective drafting.

1.4 Paragraph (1) of regulation 5 provides that a parking charge is payable in respect of a vehicle parked in Bushy Park or Richmond Park at any time between 08:30 hours and 18:30 hours (or the time at which the Park in question closes if that is earlier). Paragraphs (2) and (3) set out amount of charge (per 30 or 15 minutes respectively) and a maximum charge. Paragraph (4) provides that the charge shall be paid to the Secretary of State (or to a person authorised by him to receive such a charge on his behalf) by the person who parked the vehicle in the park. Paragraph (5) permits the Secretary of State (or authorised person) to refuse to accept a payment made other than by such means as are described in a notice exhibited in or at a parking place as means by which payment may be made.

1.5 The Committee asked how it is intended to be established that a contravention of regulation 5 has occurred, given that regulation 5 does not specify when a charge is payable. (The regulations imposing parking charges in other Royal Parks impose an obligation, not to pay a parking charge, but to display a parking permit, for which a charge must be paid.) Regulation 8(2) confers powers on the court where, on any proceedings for a contravention of regulation 5, it is proved that any part of the amount which has become due has not been paid.

1.6 The Department considers that it is implicit in the wording of regulation 5(1) that the obligation to pay the charge is triggered by the act of parking a vehicle in a parking place in the Park in question. It states that the payment for the anticipated duration of the vehicle's stay must be made forthwith once the vehicle is parked and any additional payment must be made forthwith if the car remains parked after the initial paid period expires, and that the administrative arrangements for operation of the scheme, including the various means by which the charge can be paid, will be described in a notice exhibited by or on behalf of the Secretary of State at the relevant car park, as described in regulation 5(5).

1.7 The italicised words above, quoted from the Department's memorandum, suggest that the Department is simply assuming that the Regulations achieve what it wants them to achieve. Regulation 5(5) refers only to the means of payment and is entirely silent as to when payment must be made. It is arguable that a person could park a vehicle in Richmond Park every day for a year and pay the year's charges annually in arrears without contravening regulation 5. More likely is the situation where a person pays for 30 minutes' parking but does not return to the vehicle until 2 hours later. As long as that person pays the outstanding amount at some time there will be no contravention of regulation 5. Regulation 5(5) is not drafted widely enough to give any legal force to "administrative arrangements for the operation of the scheme" (other than as to the means of payment) set out in a notice.

1.8 The Committee therefore considers regulation 5 to be more or less unenforceable, and accordingly reports it for defective drafting.

2 S.I 2010/330: Reported for defective drafting.

Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Chemical Agents) Regulations 2010 (S.I. 2010/330)


2.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two respects.

2.2 The enabling powers for these Regulations include paragraph 1A of Schedule 2 to the European Communities Act 1972, which permits subordinate legislation which makes provision for a purpose mentioned in section 2(2) of that Act to make express provision for a reference in that legislation to a provision of a Community instrument to be construed as a reference to that provision as amended from time to time where it appears to the person making that legislation that it is necessary or expedient for the reference to be so construed.

2.3 The preamble to the Regulations recites that it appears to the Secretary of State that it is expedient for certain references to provisions of Council Directive 98/24/EC to be construed as references to those provisions as amended from time to time.

2.4 Regulation 2(1) includes a definition of "national occupational exposure limit value" which refers to limit values established in two different Commission Directives as amended from time to time.

2.5 In a memorandum printed at Appendix 2, the Department for Transport acknowledges that the preamble to the Regulations should have included a reference to the two Commission Directives. The Committee accordingly reports the preamble to the Regulations for defective drafting, acknowledged by the Department.

2.6 Regulation 11(6)(b) as drafted appears to comprise a condition without an obligation for it to fasten on. The Department, in its memorandum, explains what it should have said and undertakes to make an amending instrument at the earliest opportunity. The Committee accordingly reports regulation 11(6)(b) for defective drafting, acknowledged by the Department.

3 S.I 2010/333: Reported for defective drafting.

Notification of Conventional Tower Cranes Regulations 2010 (S.I. 2010/333)


3.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

3.2 These Regulations, which are made under the Health and Safety at Work etc. Act 1974, impose obligations on employers in respect of conventional tower cranes (as defined in the Regulations).

3.3 Regulation 3(4) states that the requirements imposed by the Regulations on an employer do not apply to a person in respect of a conventional tower crane supplied by way of sale, agreement for sale or hire-purchase agreement. Literally, this would mean that the requirements apply only in respect of a crane used by its manufacturer (or given away by or stolen from the manufacturer).

3.4 In a memorandum printed at Appendix 3, the Department for Work and Pensions explains that, in an attempt to introduce gender-neutral drafting, the words "by him" which in similar legislation followed the word "supplied" were omitted, but inadvertently the words "by that person" were not inserted in their place. The Department made a correcting instrument (S.I. 2010/811), to be issued free of charge to purchasers of this instrument, on 16 March.

3.5 The Committee accordingly reports regulation 3(4) for defective drafting, acknowledged by the Department, and commends the Department for the swift action it has taken to correct the error.

4 S.I 2010/345: Reported for defective drafting.

Armed Forces (Redundancy, Resettlement and Gratuity Earnings Schemes) Order 2010 (S.I. 2010/345)


4.1 The Committee draws the special attention to this Order on the ground that it is defectively drafted in two respects.

4.2 Article 26 provides for the case where a person serving under a short service commission qualifies and opts for their service to be commuted as reckonable service under the Superannuation Act 1972 or the Superannuation (Northern Ireland) Order 1972. The heading to article 26 reads "Commuting service for teachers' or NHS pension", and the Explanatory Note also suggests that the article applies only in respect of teachers' or NHS pensions. The 1972 Act and 1972 Order, however, apply to other public sector pensions as well.

4.3 In a memorandum printed at Appendix 4, the Ministry of Defence explains that article 26 is intended to apply in relation only to teachers' or NHS pensions and accepts that it would have been clearer to have identified the pension schemes more precisely. Implicit in the Department's response is the assumption that a legislative provision and its heading can be read together to determine the scope of the provision in question. In the Committee's view, although headings provide a useful guide to the reader as to the subject matter of a provision, it is the provision itself that should state clearly what it means. The Committee accordingly reports article 26 for defective drafting, acknowledged to a degree by the Department.

4.4 Article 36 deals with the obligation to repay resettlement grant in two cases. Paragraph (1) requires a person to repay the relevant fraction of the amount paid where, within 121 days of the person's service ceasing, that person rejoins the armed forces except in certain circumstances. Paragraph (2) states that, subject to paragraph (1), no refund is payable where the break in service is more than 121 days. Paragraph (2) cannot be subject to paragraph (1) as both are free-standing and mutually compatible. Paragraph (3) requires a person to repay the full amount paid where, within 30 days of service ceasing, that person rejoins the armed forces in certain circumstances Paragraph (4) states that, subject to paragraph (3), no repayment is required where the break of service is at least 30 days. The Committee assumes that this was intended to refer to a repayment under paragraph (3) and not under paragraph (1), although the instrument does not make this clear. Whether or not that was the intention, the words of subjection are again superfluous.

4.5 In its memorandum, the Department accepts that the drafting of article 36 is not as it should be, and suggests that the removal of the words "subject to paragraph (1)" (or (3)) would resolve the problem. The Committee disagrees with this analysis. Although the words of subjection ought indeed to be omitted, paragraph (2) serves no purpose, as there would be no question of a repayment being required unless such a requirement were specified. If the break in service exceeds 121 days then no repayment is required, with or without paragraph (2). Paragraph (4) is not only unnecessary but is also incompatible with paragraph (1). If no repayment is required where the break in service is at least 30 days, what is the relevance of the 121 day period?

4.6 In the Committee's opinion, the appropriate amendment for the Department to make is simply to omit paragraphs (2) and (4).

4.7 Paragraph (5) of article 36 defines "the relevant fraction" (for the purposes of paragraph (1)). The Department acknowledges that the formula is somewhat repetitive and therefore could be confusing. (In fact, the instrument defines "a" (the numerator in the formula) and "the numerator" in different ways, each of which gives a different result.)

4.8 The Committee accordingly reports article 36 for defective drafting, largely acknowledged by the Department.

4.9 The Department made a further instrument (S.I. 2010/832) on 17 March, which replaces this one, remedies the errors identified above and is to be issued free of charge to purchasers of this instrument, and the Committee commends the Department for the swift action it has taken.


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2010
Prepared 30 March 2010