Instruments
reported
At its meeting on 15 June 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 six 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
S.I. 2011/917: Reported for defective
drafting
Jobseeker's Allowance (Employment, Skills and
Enterprise Scheme) Regulations 2011 (S.I 2011/917)
1.1 The
Committee draws the special attention of both Houses to these
Regulations on the ground that they are defectively drafted in
three respects.
1.2 These Regulations make provision for the introduction
of the Employment, Skills and Enterprise Scheme in which claimants
may be required to participate as a condition for entitlement
to certain benefits.
1.3 Regulations
9 and 10 amend S.I. 1996/207 by introducing provisions numbered
in a way which means that the non-textual modifications previously
made to that instrument by S.I. 2010/1222 (to introduce the Work
for Your Benefit Pilot Scheme) need to be amended. But the Regulations
do not include any such amendments. The Department for Work and
Pensions in a memorandum printed at Appendix 1 acknowledges that
there is an error in this respect. The
Committee accordingly reports regulations 9 and 10 for defective
drafting, acknowledged by the Department.
1.4 Regulation 11(4) amends S.I. 1996/2890 in a manner
that assumes (wrongly) that non-textual modifications made to
that instrument by S.I. 2010/1222 were textual amendments. In
the memorandum the Department accepts that it would have been
preferable had the drafting recognised that S.I. 2010/1222 proceeded
by non-textual modification rather than textual amendment. The
Committee accordingly reports regulation 11(4) for defective drafting,
acknowledged in principle by the Department.
1.5 Regulation 17 inserts into regulation
7 of S.I. 1999/991 a paragraph (8ZB) which, because it is widely
drafted, renders unnecessary the non-textual modification of that
regulation by S.I.
2010/1222 which treats a paragraph (8ZA) as being inserted in
regulation 7. Regulation
17 also assumes
(wrongly) that that non-textual modification was a textual amendment.
In addition the
regulation includes an unnecessary paragraph (a) and, in the text
of the paragraph (8ZB) that it inserts, a repetition of the words
"in regulation": the Department in the memorandum accepts
that those last two slips were made. The Committee accordingly
reports regulation 17 for defective drafting, acknowledged in
part by the Department.
2
S.I. 2011/992: Reported for defective
drafting
Child Trust Funds (Amendment No. 2) Regulations
2011 (S.I 2011/992)
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 These Regulations amend regulation 10 of S.I.
2004/1450 which imposes on account providers obligations to provide
annual statements in relation to child trust funds ("annual
statements") and statements when child trust funds are transferred
to a different provider ("transfer statements").
2.3 Regulation
2(5) amends various provisions of paragraph (4) of regulation
10 by substituting references to "the relevant date"
for the existing references to "the statement date".
Paragraph (4) applies both to annual statements and to transfer
statements. The notion of a "relevant date" is defined
in the paragraph (2A) added to regulation 10 by regulation 2(2)
in the context of annual statements. But it is nowhere defined
in relation to transfer statements. In a memorandum printed at
Appendix 2 it is asserted by Her Majesty's Revenue and Customs
that, in the context of transfer statements, "the relevant
date" can only sensibly be construed as meaning "the
transfer date". But the Regulations do not contain anything
to confer that meaning on the term in relation to transfer statements.
The Committee accordingly
reports regulation 2(5) for defective drafting.
2.4 The
paragraph (6) substituted in regulation 10 by regulation 2(8)
provides a relaxation of the requirement to produce an annual
statement where one of two conditions is met "at a relevant
date". Paragraph (2A) defines a "relevant date"
in relation to an annual statement as a date not later than 12
months after a previous defined event (namely the opening of the
account or the production of the most recent statement). It would
appear surprising if paragraph (6) were intended to apply if either
of the conditions in it were met on any date not later than 12
months after the previous defined event: that would mean (for
instance) that, if no subscriptions were made to the child trust
fund on the very next day after the previous defined event, there
would in many cases be no requirement for an annual statement
to be produced. The Committee therefore suspected that paragraph
(6) wrongly assumed that a "relevant date" was the date
12 months after the previous defined event and not (as is in fact
the case) any date after it. Paragraph 4 of the memorandum explains
that flexibility in the date is in fact intended but fails to
address the surprising potential outcome indicated above. The
Committee is therefore of the view that a limit on flexibility
was inadvertently omitted. The
Committee accordingly reports regulation 2(8) for defective drafting.
3
S.I. 2011/1000: Reported for defective
drafting
Social Security (Contributions) (Amendment
No. 4) Regulations 2011 (S.I 2011/1000)
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 amend Part 5 of Schedule 3
to S.I. 2001/1004 under which childcare vouchers are in certain
circumstances disregarded for the purposes of liability to Class
1 national insurance contributions.
3.3 Paragraph 7 of Part 5 of Schedule 3, as amended
by regulation 4, covers employees who joined a childcare voucher
scheme before 6 April 2011 and the new paragraph 7A inserted in
Part 5 by regulation 5 covers employees who join such a scheme
on or after that date. But an employee who has ceased to be employed
by the employer or who goes through a continuous period of 52
weeks without receiving vouchers is excluded from paragraph 7
as a result of the amendment made by regulation 4(b). So if an
employee joined a childcare voucher scheme before 6 April 2011
but either ceased to be employed by the employer before that date
(even if subsequently re-employed) or went through a continuous
period of 52 weeks without receiving vouchers (before or after
that date) the employee appears to be covered by neither paragraph
7 nor paragraph 7A.
3.4 In a memorandum printed at Appendix 3 it is accepted
by Her Majesty's Revenue and Customs that there is a lacuna in
the case of an employee who joined a scheme before 6 April 2011
and who, for a continuous period of 52 weeks ending before that
date, was not in receipt of vouchers, and implicitly accepted
that the position in relation to those re-employed is arguable
rather than clear.
3.5 The Committee accordingly
reports these Regulations for defective drafting, acknowledged
in part by the Department.
4
S.I. 2011/1007: Reported for defective
drafting
Residential Property Tribunal Procedures and
Fees (England) Regulations 2011 (S.I 2011/1007)
4.1 The
Committee draws the special attention of both Houses to these
Regulations on the ground that they are defectively drafted in
four respects.
4.2 These Regulations make procedural provision for
residential property tribunals.
4.3 Regulation
6(1) requires that an application must "contain the following
particulars ... (h) be dated and signed; (i) the documents specified
in sub-paragraph (2) ...". The Committee asked the Department
for Communities and Local Government to comment on the apparent
mismatch between the introductory words of regulation 6(1) and
the content of sub-paragraphs (h) and (i). In a memorandum printed
at Appendix 4 the Department says "we accept that 'be dated
and signed' do not naturally follow from the words 'contain the
following particulars' in the chapeaus, but we consider the requirements
are clear." The Department defends sub-paragraph (h) on the
grounds that "the particulars of an application include appended
documentation". The Department adds that, since these regulations
largely replicate earlier legislation, the Department "decided
not to change tried and tested provisions where there had been
no reported concerns with those provisions". The Committee
notes that the Department accepts that sub-paragraph (h) is ungrammatical;
and the Committee considers that, despite the Department's defence,
an application does not contain documents appended to it; rather
it is accompanied by them. The Committee accepts that these errors
are minor and do not obscure the meaning, but it is troubled by
the suggestion that mismatches should be over-looked on the grounds
that they repeat errors made in the past and are not likely to
cause trouble in the future. Such an approach undervalues the
attention to grammatical and linguistic accuracy needed for legislation.
The Committee accordingly
reports regulation 6(1) for defective drafting, acknowledged in
part by the Department.
4.4 Exactly
the same points arise on regulation 6(3)(e) and (f), and the Committee
accordingly reports regulation 6(3) for defective drafting, acknowledged
in part by the Department.
4.5 Regulation 7(1) deals with a particular class
of application and requires a copy of a court order to be appended,
"in addition to complying with the requirements contained
in regulation 6(1)" for general applications. Regulation
7(2) then allows the tribunal to "dispense with or relax
any of the requirements mentioned in paragraph (1)". The
Committee asked the Department to explain what is meant by "any
of the requirements" and what scope there is for relaxation
rather than dispensation. In the memorandum the Department states
that "any of the requirements" includes a reference
to the general requirements in regulation 6(1), and explains how
those might be relaxed. Regulation 6 already contains power to
dispense with or relax requirements, so there is no need for regulation
7 to include power to dispense with or relax requirements under
regulation 6; it needs to address only the single additional requirement
that it itself imposes. The Committee might have overlooked this
defect if it were mere harmless superfluity; but since the conditions
for dispensation and relaxation specified in regulation 6(4) are
different from those specified in regulation 7(2), the result
of the Department's assertion that the intention of regulation
7(2) is to apply to requirements under regulation 6 as well as
under regulation 7 is to result in substantive uncertainty as
to which set of conditions is to apply. The Committee accordingly
reports regulation 7(2) for defective drafting.
4.6 Regulation 36(4), which deals with the terms
on which applications may be withdrawn, suspends the effect of
withdrawal until "... the tribunal has invited the parties
to the proceedings ... to make representations to it as to whether
any payment by way of compensation, damages, costs or reimbursement
of fees should be repaid to any party ...". Based on comparison
with other provisions of the Regulations, the Committee asked
the Department to explain the use of the word "repaid".
In the memorandum the Department accepts that the use of the word
"repaid" creates an unintended suggestion that it is
restricted to sums already paid. The Department adds that since
the "error is obvious and small scale, and ... the nature
of the correction is obvious", they propose to issue a correction
slip. The Committee notes that the Department acknowledges that
"repaid" has a meaning that was not intended, but considers
that it is presently open to a reader to argue that regulation
36(4) has a clear and limited effect. It follows that while the
Committee agrees that the error is small scale, it is not obvious
and, if the Department wishes to remove that argument, it should
do so by making an amending instrument. The Committee accordingly
reports regulation 7(2) for defective drafting, acknowledged by
the Department.
5
S.I. 2011/1040: Reported for defective
drafting
Traffic Signs (Amendment) Regulations and General
Directions 2011 (S.I 2011/1040)
5.1 The
Committee draws the special attention of both Houses to these
Regulations and Directions on the ground the preamble is defectively
drafted.
5.2 The Regulations and Directions amend S.I. 2002/3113,
in particular in relation to pedestrian crossing facilities with
portable traffic lights of the sort used at road works. The Regulations
are expressed to be made under sections 64(1), (2) and (3) of
the Road Traffic Regulation Act 1984 ("the 1984 Act")
and the Directions under section 65(1) of the 1984 Act.
5.3 S.I. 1999/1750
requires the Secretary of State to undertake consultation with
the Scottish Ministers before exercising the powers in sections
64(1)(a) and 65(1) of the 1984 Act. The preamble does not indicate
that such consultation was undertaken. In a memorandum printed
at Appendix 5 the Department for Transport indicates that such
consultation was in fact undertaken. But the preamble should have
referred to the consultation given that it is a precondition to
the valid exercise of the powers in sections 64(1)(a) and 65(1)
of the 1984 Act that consultation with the Scottish Ministers
has been undertaken.
5.4 Section 65(1A) of
the 1984 Act is the authority for paragraph 12 of Part 2 of the
instrument; but that provision is not cited in the preamble. It
is mentioned in footnote (b) on page 1 but without any explanation
of its significance. In the memorandum
the Department asserts that it is sufficient to mention subsection
(1A) of section 65 in a footnote rather than in the preamble because
it is not a freestanding power but merely elucidates the power
conferred by subsection (1) of that section 65. The Committee
accepts that, where an ancillary power is linked to a main one,
there is a degree of flexibility as to whether the ancillary power
should be identified in the preamble or in a footnote but considers
that, if the latter is chosen, the link to the main power needs
to be clear. The Department accepts in the memorandum that the
significance of section 65(1A) could have been made clearer in
the footnote.
5.5 The Committee accordingly reports the
preamble for defective drafting, acknowledged in part by the Department.
6
S.I. 2011/1042: Reported for defective
drafting
Freedom of Information (Removal of References
to Public Authorities) Order 2011 (S.I 2011/1042)
6.1 The Committee draws
the special attention of both Houses to this Order on the ground
that it requires the elucidation provided by the Department's
memorandum.
6.2 This Order
removes specified bodies from the list of bodies to which the
Freedom of Information Act 2000 applies. The removal is effected
under a power to remove references to bodies that have ceased
to exist. The Explanatory Memorandum accompanying the instrument
indicated, however, that one of the listed bodies had not yet
ceased to exist. The Committee asked the Department to identify
that body and explain the circumstances of its removal from the
list in the 2000 Act. In a memorandum printed at Appendix 6, the
Ministry of Justice explains that the body referred to is the
Office of Government Commerce, that it had in fact ceased to exist
before this Order was made, and that the Explanatory Memorandum
was "intended to indicate that although OGC had ceased to
exist as a body, its work will continue to be carried out by ERG
within the Cabinet Office". The
Committee accordingly reports this Order as requiring elucidation,
provided by the Department's memorandum.
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