Drawing special attention to four statutory instruments - Statutory Instruments Joint Committee Contents

1BInstruments reported

At its meeting on 9 February 2011 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.

S.I. 2010/2955: Reported for requiring elucidation and failure to conform with proper legislative practice

Family Procedure Rules 2010 (S.I. 2010/2955)

1.1  The Committee draws the special attention of both Houses to these Rules on the ground that in one respect they call for elucidation and that (to a more limited extent) they do not conform with proper legislative practice.

1.2  The Explanatory Note to these Rules states that they provide a new code of procedure for family proceedings in the High Court, county courts and magistrates' courts, and replace existing rules of court for family proceedings, the principal rules being the Family Proceedings Rules 1991, the Family Procedure (Adoption) Rules 2005 and, in so far as they relate to family proceedings, the Family Proceedings Courts (Children Act 1989) Rules 1991, the Family Proceedings (Matrimonial Proceedings etc) Rules 1991, and rules relating to the reciprocal enforcement of maintenance orders, in particular the Magistrates' Courts (Reciprocal Enforcement of Maintenance Orders) Rules 1974. The expressions "principal" and "in particular" indicate that the list is less than comprehensive.

1.3  The Rules contain no provisions revoking legislative provisions that they are intended to replace, which is what one would normally expect to see where an instrument replaces earlier ones. The Committee asked the Ministry of Justice why that was so.

1.4  In a memorandum printed at Appendix 1, the Department (which identifies precedents for its approach) argues, firstly, that the existing rules are revoked by operation of law arising from the repeal of powers under which the existing rules were made and secondly that the proposition in rules 1.1 and 2.1 that the new Rules are a new procedural code and apply to family proceedings in the High Court, a county court and a magistrates' court also implies the necessary revocation of previous provisions.

1.5  The Committee accepts that (in the absence of application of section 17(2)(b) of the Interpretation Act 1978, which is taken on trust for the purposes of this Report) the Department's first argument alone disposes of any need for express revocation of the Family Proceedings Rules 1991, the Family Proceedings Courts (Children Act 1989) Rules 1991, the Family Proceedings (Matrimonial Proceedings) Rules 1991 and the Magistrates' Courts (Reciprocal Enforcement of Maintenance Orders) Rules 1974 (in the case of the last three instruments the enabling power is amended to exclude family proceedings rather than repealed). It notes, however, that the powers under which the Family Procedure (Adoption) Rules 2005 were made are largely included amongst the powers under which these Rules are made, and that there may be other relevant provisions not addressed in the memorandum.

1.6  The Department also explains that section 76(8) of the Courts Act 2003 provides that these Rules may, instead of making provision for a particular matter, provide for such provision to be made by directions. Rule 36.1 of these Rules provides for a Practice Direction (36A) to provide for the extent to which the new Rules will apply to proceedings commenced before the Rules come into force. The Department also states that the particular Practice Direction, which comes into force on the same day as these Rules, preserves the existing rules for transitional cases only. It lists the "previous rules"(including the Family Procedure (Adoption) Rules 2005) and specifies that they no longer apply except in limited transitional circumstances. Given section 76(8), rules 1.1, 2.1 and 36.1, and the statement as to the Practice Direction, the Committee accepts the Department's argument both as to the power to achieve necessary revocations in Practice Directions and the efficacy of the particular Practice Direction in the effective removal from application of the 2005 Rules subject only to limited transitional saving.

1.7  That, however, leaves two further points on which the Committee is not satisfied. Firstly, the lack of comprehensiveness in the list of provisions to be replaced leads to the conclusion that there may be unidentified provisions the continued application of which remains uncertain. Secondly, the absence of the standard means of establishing an audit trail of what legislation is or is not in force (see Statutory Instrument Practice, paragraph 2.6.2) appears in the Committee's view to call for justification beyond the identification of precedents. The Committee accordingly reports these Rules for requiring the elucidation largely provided in the Department's memorandum and (except in so far as repeal or equivalent amendment of enabling powers is relevant) for failure to comply with proper legislative practice.

S.I. 2010/2960: Reported for unexpected use and defective drafting

Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010
(S.I. 2010/2960)

2.1  The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unexpectedly narrow use of the enabling power in one respect and are defectively drafted in another.

2.2  The Regulations are made under section 2(2) of the European Communities Act 1972. Regulations 12(2) and 14(1) and (2) impose duties on traders relating to provision of information before entering into, or when advertising, certain contracts relating to timeshares. The Regulations do not specify a sanction for breach of these duties, and the Committee asked what sanction was intended for breach of those duties and how the intention was achieved. In a memorandum printed at Appendix 2, the Department say "The sanction is in the Consumer Protection from Unfair Trading Regulations 2008 and this has been highlighted in the Explanatory Note". Part 2 of the 2008 Regulations imposes a number of broad obligations enforced by a series of criminal offences. The Committee accepts that breach of the obligations under regulations 12(2) and 14(1) and (2) might amount to the commission of an offence under the 2008 Regulations; but in the absence of express provision linking the two instruments the Committee does not accept that it is clear that every breach of these Regulations will necessarily fall to be enforceable under the 2008 Regulations. Indeed, if the duties imposed by regulations 12(2) and 14(1) and (2) were so clearly implicit in the duties imposed by the 2008 Regulations that breach would necessarily amount to the commission of an offence under the 2008 Regulations, regulations 12(2) and 14(1) and (2) would be open to question on the grounds of serving no legislative purpose. As things stand they appear to some extent at least arguably to impose duties without providing either an effective method of enforcement or any other legal consequence of breach. The Committee accordingly reports regulations 12(2) and 14(1) and (2) for making an unexpectedly narrow use of the enabling power.

2.3  Paragraph 5 of Schedule 6 to these Regulations amends the Consumer Credit (Agreements) Regulations 1983, and introduces a reference to agreements under these Regulations that cannot be cancelled by the debtor. The Committee asked what was intended to be caught by the reference in the amendment to agreements that are not capable of being "cancelled by the debtor" under these Regulations. In its memorandum, the Department says: "The Department acknowledges that there are no credit agreements to which the Regulations are relevant which cannot be cancelled under the Regulations. The reference to the Timeshare Act 1992 in paragraph 23 of Schedule 1 to the Consumer Credit (Agreements) Regulations 1983 should have been omitted rather than being replaced with a reference to the Regulations. The Department regrets this error and will amend the Consumer Credit (Agreements) Regulations 1983 at the next available opportunity." The Committee accordingly reports paragraph 5 of Schedule 6 for defective drafting, acknowledged by the Department.

S.I. 2010/2978: Reported for defective drafting

Iran (United Nations Sanctions) (Amendment) Order 2010 (S.I. 2010/2978)

3.1  The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted.

3.2  This Order amends the Iran (United Nations Sanctions) Order 2009. Article 8 states that article 5 of the 2009 Order is renumbered to become article 5A and the general heading "General" is deleted. Article 9 provides "Delete article 5 and insert a new article 5 in its place which reads as follows -", but the new article which follows is numbered "5A".

3.3  In a memorandum printed at Appendix 3, the Foreign and Commonwealth Office states that article 8 was intended to retain article 5 of the 2009 Order and merely to delete the heading "General", and that article 9 was intended to insert a new article 5A but not to delete anything.

3.4  Article 16(2) substitutes new paragraphs (1) and (2) of article 12 of the 2009 Order. The new paragraph (1) refers to an offence under article 5A(1). The Department states that (on the assumption that article 5A is that inserted by article 9) the reference to article 5A(1) is correct. However, although paragraph (1) of article 5A imposes a prohibition, it is paragraph (3) of that article which makes a contravention of the prohibition an offence. Accordingly, article 12(1) should have referred to an offence under article 5A(3).

3.5  The Department accepts that the new paragraph (2) of article 12 should have referred to an offence under article 5 and not merely to an offence under article 5(2), as both paragraphs of that article create offences.

3.6  The Department apologises for the errors which it has acknowledged, explains that the correct procedure was not followed, and undertakes to correct the errors at the first available opportunity. The Committee accordingly reports articles 8, 9 and 16(2) for defective drafting, mostly acknowledged by the Department.

S.I. 2010/3035: Reported for defective drafting

Motor Fuel (Composition and Content) and Merchant Shipping (Prevention of Air Pollution from Ships) (Amendment) Regulations 2010 (S.I. 2010/3035)

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

4.2  Part 2 of these Regulations amends the Motor Fuel (Composition and Content) Regulations 1999. Regulation 3(4) amends the definition of "motor fuel" in regulation 2 so that it means (a) petrol, (b) diesel fuel, (c) gas oil, or (d) other liquid fuel. In this context it is clear that "other" has its normal meaning and that "other liquid fuel" means liquid fuel which is not petrol, diesel fuel or gas oil.

4.3  Regulation 3(5) amends the definition of "sell" in regulation 2 so that it now reads:

"sell" means -

(a)  in relation to motor fuel which is petrol or diesel fuel, to sell by retail at a filling station;

(b)  in relation to motor fuel which is gas oil or other liquid fuel, to sell to a person for use by that person,

And cognate expressions are to be construed accordingly."

4.4  Regulation 7 substitutes new regulations 5A to 5C for the existing regulation 5A, which imposed restrictions on the sale of gas oil. New regulation 5B is headed "Restrictions on the distribution of gas oil and other liquid fuel", and imposes various restrictions which are expressed as applying to "gas oil or other liquid fuel" New regulation 5C, which creates offences in respect of regulations 5A and 5B, is expressed in similar terms.

4.5  It appeared to the Committee that it was likely that the drafter had intended "other liquid fuel" in the definition of "sell" and in new regulation 5B to have the same meaning as in the definition of "motor fuel", rather than the meaning it would naturally be given it its context (namely, any liquid fuel other than gas oil). The Committee asked the Department for Transport which meaning was intended and how that intention was achieved by the Regulations.

4.6  In a memorandum printed at Appendix 4, the Department explains that "other liquid fuel" is intended to mean, wherever used, the same as it means in the definition of "motor fuel". It also states its belief that this intention is clear in the definition of "sell" and unambiguous in regulations 5B and 5C. In the case of the former, it claims that if the expression had its natural meaning paragraph (b) of the definition would both conflict with and repeat paragraph (a). In the case of the latter, it claims that it is clear from the structure of the 1999 Regulations as amended that regulations 3 to 5 apply only to petrol and diesel fuel and that regulation 5B applies only to motor fuel other than petrol and diesel fuel, and that any other interpretation would lead to clear overlap and needless repetition between these provisions.

4.7  The Committee does not share the Department's confidence as to the clarity of these provisions. The definition of "sell" is capable of making sense if the other meaning is applied, and paragraphs (a) and (b) are not expressed to be mutually exclusive. Similarly, regulations 5B and 5C as well as regulation 3 to 5 are capable of applying to petrol and diesel fuel, as the Department appears to accept in the final paragraph of its memorandum. It is true that there might be some resulting unnecessary repetition, but sadly this Committee is fully aware that needless repetition is not unknown in statutory instruments, nor is it safe to rely on the structure of a statutory instrument alone to give an everyday expression a meaning other than its natural one. It follows in the Committee's view that the Department's preferred interpretation is a tenable one rather than a secure one.

4.8  The use of the expression "gas oil or other liquid fuel" to mean something other than any liquid fuel including gas oil, without making the intended meaning clear to the reader, gives rise to ambiguity that could have been straightforwardly avoided, for example by the insertion of a definition of "other liquid fuel". The Committee accordingly reports regulations 3(5) and 7 for defective drafting.

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