4 S.I.
2009/2543: Reported for defective drafting
Business Rate Supplements (Transfers to Revenue
Accounts) (England) Regulations 2009 (S.I. 2009/2543)
4.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in several respects.
4.2 In a memorandum printed at Appendix 4, the Department
for Communities and local Government acknowledges that the date
"2010" in paragraph 3(1) of Schedule 1 should be "2011".
4.3 Paragraph 1 of Schedule 2, states that "final
return", except in the expressions "revised provisional
return" and "varied provisional return", means
the return required by paragraph 7(1). The Department acknowledges
that the inclusion of the italicised words is a drafting error:
they should have appeared in the definition of "provisional
return".
4.4 Paragraph 5 of Schedule 2 deals with the situation
where provisional amounts transferable by billing authorities
to relevant levying authorities fall to be adjusted. Sub-paragraph
(2) requires a billing authority to submit to the relevant levying
authority a return setting out: (a) the amount it has transferred
from its collection fund to the relevant levying authority's revenue
account during the year concerned; (b) the total amount it expects
to transfer from its collection fund to the relevant levying authority's
revenue account during the year concerned; and (c) the amount
of the difference. Sub-paragraph (7) states what is to happen
"if the amount referred to in sub-paragraph (2)(c) is greater
than zero" but, read literally, that amount could be either
(a) minus (b) or (b) minus (a). The Department does not consider
that, if paragraph 5 is read as a whole and in context, there
will be any uncertainty as to the meaning. Sub-paragraphs (7),
(8) and (9) of paragraph 5 are intended to deal with the three
possible cases: where (b) is greater than (a), where the amounts
are equal, and where (a) is greater than (b) respectively.
4.5 The Committee would agree that there is unlikely
to be a serious risk of confusion among authorities as to what
is intended but the lack of clarity is something to be avoided
and, as the Department has indicated its willingness to clarify
the provision, the Committee encourages it to do so. The Department
may wish to consider using in sub-paragraph (7) wording similar
to that used in sub-paragraphs (8) and (9): "If the total
amount calculated under sub-paragraph (3) is greater than the
aggregate of the instalments the billing authority has paid to
the relevant levying authority in the relevant year". The
relationship between the three sub-paragraphs would then be completely
clear.
4.6 Finally, the Department acknowledges that paragraph
10(1)(b) of Schedule 2 contains an erroneous repetition of a phrase.
4.7 The Department undertakes to make the necessary
amendments before April 2010.
4.8 The Committee reports the above provisions
for defective drafting, largely acknowledged by the Department.
| 
