Instruments reported
At its meeting on 2 November 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 ten 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. 2011/1610: Reported for defective
drafting
Airports Slot Allocation (Amendment) Regulations
2011 (S.I. 2011/1610)
1.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
1.2 The Regulations make temporary amendments of
the Airports Slot Allocation Regulations 2006 (S.I. 2006/2665)
("the 2006 Regulations"). The amendments are aimed at
enabling additional coordination of the allocation of airport
slots to cope with the increase in demand on airports in the south-east
of England which it is anticipated will be caused by the 2012
Olympic Games.
1.3 Regulation 4 makes provision for the Secretary
of State to appoint a coordinator for an airport designated as
a coordinated airport by reason of the Games. Paragraph (e) of
regulation 4 inserts paragraph (9A) into regulation 4 of the 2006
Regulations. The inserted paragraph (9A) makes provision for the
withdrawal of a coordinator's appointment if the Secretary of
State is satisfied that a breach of paragraph (4) or (5) of regulation
4 has occurred. Paragraph (4) of regulation 4 of the 2006 Regulations
provides that a person shall not be appointed as a coordinator
unless the Secretary of State is satisfied that conditions as
to impartiality and independence are met.
1.4 The Committee asked the Department for Transport
to explain the intended meaning of the words "a breach of
paragraph (4) .... has occurred" and how effect is given
to that intention. In a memorandum printed at Appendix 1, the
Department explains that the intention is that a coordinator's
appointment may be terminated if the requirements of impartiality
and independence are no longer satisfied. It also points out that
a parallel mechanism was used to similar effect in paragraph (6)
of regulation 4 of the 2006 Regulations without comment from the
Committee.
1.5 The Committee considers that paragraph (4) of
regulation 4 of the 2006 Regulations, read literally, does not
impose continuing requirements of impartiality and independence.
Its view of that paragraph (4) is that it is a prohibition on
the making of an appointment if the Secretary of State is not
satisfied that those requirements are satisfied. As such there
can be no question of a "breach" of paragraph (4) occurring
after an appointment is made. The test which paragraph (9A) provides
is to be applied in deciding whether to withdraw an appointment
is therefore inaccurately constructed: the test should be whether
the Secretary of State remains satisfied that the requirements
of impartiality and independence are met. If, in consequence of
this Report, the Department were to amend paragraph (9A), it would
be consistent to amend paragraph (6) similarly.
1.6 The Committee accordingly reports regulation
4(e) for defective drafting.
2
S.I. 2011/1627: Reported for defective
drafting
Education (Non-Maintained Special Schools)
(England) Regulations 2011 (S.I. 2011/1627)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
2.2 The Regulations make provision for the approval
of non-maintained special schools by the Secretary of State, and
set out the requirements which must be met for a school to continue
to be approved as a non-maintained special school.
2.3 Paragraph 26(6) of the Schedule to the Regulations
begins by setting out alternative conditions, but fails to say
what is to happen where either condition is met. The Committee
therefore asked the Department for Education to explain the paragraph.
In a memorandum printed at Appendix 2, the Department explains
that the following words were omitted from the end of the paragraph
in error: "a school lunch must be provided for the pupil
free of charge and, where milk is provided for the pupil, it must
be provided free of charge.". The Department also indicates
that it will make regulations to correct the omission at the earliest
possible opportunity.
2.4 The Committee accordingly reports paragraph
26(6) of the Schedule for defective drafting, acknowledged by
the Department.
3
S.I. 2011/1681: Reported for defective
drafting
Turks and Caicos Islands Constitution Order
2011 (S.I. 2011/1681)
3.1 The Committee draws the special attention
of both Houses to this Order on the ground it is defectively drafted
in two related respects.
3.2 The Order establishes a new constitution for
the Turks and Caicos Islands which is set out in Schedule 2 to
the Order. Section 4 of the Order provides that Schedule 2 is
to have effect from a day appointed by the Governor (defined by
the Order as "the appointed day") but goes on to provide
that the Governor may provide for the commencement of any provisions
of the new constitution to be delayed until a later day appointed
by him. Section 3 provides that the instruments providing for
the existing constitution are to be revoked on the appointed day.
Section 5 makes provision for existing laws to have effect on
and after the appointed day as if made under the new constitution
and to be construed so as to conform with it.
3.3 The Committee asked the Foreign and Commonwealth
Office to explain how sections 3 and 5 are intended to operate
if the coming into force of the new constitution is deferred under
section 4 and how effect is given to that intention. In a memorandum
printed at Appendix 3, the Department explains that there is no
intention that the commencement of the entire constitution be
delayed and that sections 3 and 5 therefore correctly refer to
the appointed day.
3.4 The Committee considers that, because it is possible
that the commencement of a provision of the new constitution might
be delayed under section 4, the revocation of a provision of the
old constitution superseded by it should be similarly delayed.
And, as drafted, section 3 does not allow for that. Similarly,
if the commencement of a provision of the new constitution under
which laws are to have effect is delayed until after the appointed
day it will not be appropriate to provide for existing laws to
be treated as having effect as if made under that provision from
the appointed day. Nor will it be appropriate for existing laws
to be construed so as to conform with that provision of the new
constitution from the appointed day. But that is what section
5 provides.
3.5 The Committee accordingly reports sections
3 and 5 for defective drafting.
4
S.I. 2011/1691: Reported for requiring
elucidation
Consular Fees (Amendment) Order 2011 (S.I. 2011/1691)
4.1 The Committee draws the special attention
of both Houses to this Order on the ground that its form calls
for elucidation in one respect.
4.2 The Order amends the Consular Fees Order 2011,
so that delivery costs, which were previously included within
"direct costs", are now charged separately.
4.3 Article 2 charges a fee for "Arranging delivery
of a passport for an application made abroad for a 32 or 48 page
passport and if the application is successful, delivering the
passport". The Committee asked the Home Office what costs
are incurred for "arranging delivery of a passport"
in a case where the application for a passport is unsuccessful.
In a memorandum printed at Appendix 4, the Department explains
that in those relatively rare cases the fee is justifiable by
reference to contributing to the overall costs of the infrastructure
required for delivery of passports (and adds that the cost of
refunding money in an unsuccessful case would probably exceed
the amount of the refund). The Committee accepts that explanation
of the intention and effect, but considers that it would have
been preferable if the description of the fee in the heading had
made it clearer that it included a share of general costs for
arrangements in connection with delivery services, thus
making it evident that delivery will not be required where an
application is unsuccessful.
4.4 The Committee accordingly reports article
2 as requiring elucidation, provided in the Department's memorandum
as amplified in this Report.
5
S.I. 2011/1709: Reported for requiring
elucidation, failure to comply with proper drafting practice and
defective drafting
Criminal Procedure Rules 2011 (S.I. 2011/1709)
5.1 The Committee draws the special attention
of both Houses to these Rules on the grounds that they require
elucidation in one respect, that they fail to comply with proper
drafting practice in two respects and that they are defectively
drafted in two respects.
5.2 The Rules were made by the Criminal Procedure
Rule Committee and allowed by the Lord Chancellor. They are a
general and wide-ranging code for the procedure of the criminal
courts. They consolidate the Criminal Procedure Rules 2010 (S.I. 2010/60)
as amended, and make some additional amendments. A number of questions
relating to the Rules were sent to the Ministry of Justice, and
a memorandum from the Department in response is printed, together
with an accompanying letter from the deputy chairman of that Committee,
at Appendix 5.
5.3 Before the Committee comments on the issues raised
in its specific questions (other than those satisfactorily answered
in the Department's memorandum), it is necessary to focus on two
elements of general significance in the memorandum.
5.4 Firstly, a helpful context section introduces
the memorandum. It sets out the enabling power and implicitly
underlies a number of explanations as to why, in the Department's
view, rules of court made under that power should be assessed
by the Committee according to criteria different from those used
in assessing instruments where rights can be conferred and obligations
imposed that are not purely procedural. The Committee's approach
is that the context section clearly justifies the presentation
of extensive explanatory material with the Rules but not the presentational
merging of material that has a legal effect with material that
does not do so.
5.5 Secondly, a number of responses include references
to precedents on which the Committee did not comment in the past.
The Committee is always grateful for references to other legislative
provisions that give context to the instrument under consideration
or suggest necessary or desirable elements of consistency between
instruments. As a general rule, however, the Committee is clear
that the fact that a drafting formula is used in one instrument
on which the Committee does not comment, for whatever reason,
neither automatically justifies the use of that formula in another
instrument nor constrains the Committee in considering a later
instrument (even one which effectively replicates the first).
Accordingly the Department's references to precedents are not
addressed when the specific responses are considered below.
5.6 It is now necessary to turn to the issues specifically
raised in the Committee's questions.
5.7 The first such issue is a general one. The Rules
contain a number of "empty Parts", in the sense that
the numbering of the Parts is not consecutive but leaves gaps
that could be filled by later insertion of additional material.
The 2010 Rules had taken the same approach, which was criticised
by the Committee in its 11th Report of Session 2009-10. The Committee
therefore asked the Department whether new issues arose in relation
to the 2011 Rules that affected the question of the inclusion
of empty Parts. In its memorandum the Department restates the
Rule Committee's reasoning in adopting empty Parts, and reinforces
its arguments by attaching and summarising the accompanying letter.
There is one issue that is not directly addressed—the suggestion
of the Committee in relation to the 2010 Rules that preservation
of familiar numeration could have been maintained by amending
rather than consolidating instruments, with consolidation (maintaining
the existing numbering) being published unofficially. The accompanying
letter (last paragraph but four) appears to assume that the Committee
had suggested re-numeration in unofficial consolidations, which
was not the case. Nonetheless the Committee accepts that, had
the formal amendment and unofficial consolidation approach been
taken in 2010, blank provisions would not have disappeared, for
previous rules of court also contained them. It follows that the
Committee accepts that—pending consolidation with numeration
in order and no blank provisions—the approach taken now
does not create difficulties anew. The Committee accordingly
reports the empty provisions in these Rules as requiring the elucidation
set out in the Department's memorandum and the accompanying letter,
as amplified in this paragraph.
5.8 The next issue relates to rule 2.4, which introduces
a glossary of terms as follows: "The glossary at the end
of the Rules is a guide to the meaning of certain legal expressions
used in them." The Committee asked whether the glossary is
intended to have legal effect, why the expression "guide"
is used if the glossary is intended to have legal effect, and
why it and its introducing provision are not in the italic form
used elsewhere in the Rules for notes if it is not intended to
have legal effect. In its memorandum, the Department states that
the glossary is not intended to have legal effect, that legal
definitions are confined to rule 2.2 and other express defining
provisions, and that while interpolated notes appear in italic
type to differentiate them clearly and immediately from the surrounding
operative text, the glossary follows, and "is clearly and
visually distinct from, the operative text of the Rules"
and consequently requires no italicisation. This explanation clarifies
the Rule Committee's intention, but not why the glossary is introduced
by what is presented in the form of an operative provision. The
Committee accordingly reports rule 2.4 as failing to comply with
proper drafting practice.
5.9 The next issue relates to rule 4.2, which provides:
"Where a document may be served by electronic means, the
general rule is that the person serving it will use that method."
The Committee asked for an explanation of the intention of the
proposition of a "general rule" in rule 4.2, in the
absence of specified criteria by reference to which the generality
is to be departed from. The Committee also questioned the use
of "will" in rules 5.8(5), 5.8(7), 62.8(3), 62.10(3),
73(7)(3) and 75(4)(a). In its memorandum, the Department states
that "As a matter of ordinary English usage (a) 'will' expresses
the future tense and incorporates 'a strong intention or assertion
about the future' or 'a probability or expectation' (Concise Oxford
Dictionary), but does not itself import obligation; and (b) 'as
a general rule' connotes 'usually, but not always'. In the Committee's
opinion, legislative language requires greater precision than
is necessary or appropriate for many kinds of communication that
follow "ordinary English usage". Citizens to whom rules
are relevant are entitled to know whether a legislative proposition
imposes an obligation or not, and to be given criteria by reference
to judge when a general obligation does not apply. While the criteria
and explanations provided by the Department's memorandum helpfully
explain the intention, the reader of the Rules themselves is entitled
to have that intention given clear effect by the legislative language
and presentation. Given the extensive use of italicised explanatory
material that is not presented as operative, the Committee is
not persuaded that material not intended to be obligatory could
not be presented similarly. Accordingly, the Committee reports
rules 4.2, 5.8(5), 5.8(7), 62.8(3), 62.10(3), 73(7)(3) and 75(4)(a)
for failing to comply with proper drafting practice.
5.10 The next issue relates to rule 4.10(2)(c), which
permits service "at a correspondent DX". The Committee
asked for an explanation of the reference to a "correspondent
DX". In its memorandum, the Department states that "'Correspondent',
as a matter of ordinary English, means one who regularly corresponds
with another. Thus a 'correspondent DX' is a document exchange
which regularly sends documents to, and receives documents from,
the document exchange at which the addressee, in accordance with
rule 4.5, has indicated that he or she has a DX box." The
Committee does not accept that "correspondent" necessarily
carries a connotation of regularity, nor, more importantly, that
in the legislative context it gives sufficient indication of what
degree of regularity is sufficient. If the key criterion is whether
the addressee has indicated possession of a DX box, that could
have been provided for expressly and simply. The Committee
accordingly reports rule 4.10(2)(c) for defective drafting.
5.11 The final issue relates to the Glossary, which
defines "advance information", a term which does not
appear in the Rules. The Committee asked the Department to explain
its presence. In its memorandum, the Department acknowledges that
the definition was included in error, along with two others ('in
camera' and 'evidence in chief'), and states that it will undertake
to invite the Rule Committee to amend the Glossary at the first
available opportunity. The Committee assumes that the Department's
reference to amendment is intended to be read as a reference to
the issue of a correction slip, given the Department's statement
that the Glossary is without legal effect. The Committee is also
grateful to the Department for having identified the two additional
defects. The Committee accordingly reports the Glossary for
defective drafting, acknowledged by the Department.
6
S.I. 2011/1734: Reported for requiring
elucidation and defective drafting
Court Funds Rules 2011 (S.I. 2011/1734)
6.1 The Committee draws the special attention
of both Houses to these Rules on the grounds that they require
elucidation in two respects and that they are defectively drafted
in one respect.
6.2 The Rules govern the way in which funds are paid
into, dealt with in and paid out of court.
6.3 Rule 10 requires the Accountant General to refuse
to accept deposits on grounds of non-compliance with the rules
or where "there is any other good reason to do so".
The Committee asked the Ministry of Justice to explain the additional
ground. In a memorandum printed at Appendix 6, the Department
gives examples that fall outside "obvious non-compliance
with the Rules" in which a deposit might be expected to be
refused, but not why refusal in such cases is phrased in terms
of a duty rather than a discretion. The Committee accordingly
reports rule 10 as requiring elucidation, partly but not fully
provided by the Department's memorandum.
6.4 Rule 34 prohibits the Accountant General from
making payments in certain specified cases and if "there
is any other good reason". The Committee asked the Department
to explain the additional ground. In its memorandum, the Department
gives examples that fall outside the specified cases but not why
non-payment in such cases is phrased in terms of a prohibition
rather than a discretion. The Committee accordingly reports
rule 34 as requiring elucidation, partly but not fully provided
by the Department's memorandum.
6.5 The Committee also questioned whether there is
a missing word "not" in rule 34(d). In its memorandum,
the Department accepts that there is and undertakes to consider
how to correct the provision. The Committee accordingly reports
rule 34(d) for defective drafting, acknowledged by the Department.
7
S.I. 2011/1848: Reported for defective
drafting
Defence and Security Public Contracts Regulations
2011 (S.I. 2011/1848)
7.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in five respects
7.2 The Regulations implement Directive 2009/81/EC
of the European Parliament and Council of 13 July 2009 on the
coordination of procedures for the award of certain works contracts,
supply contracts and service contracts in the field of defence
and security (OJ No L 216, 20.8.2009, p.76-136). In particular,
they specify the procedures to be followed in relation to the
award of such contracts by public bodies called contracting authorities
and by utilities.
7.3 In regulation 2, which requires periodic reviews
of the operation of the Regulations, the Committee observed a
contrast between the use of "must" in regulation 2(1)
and (3) and the use of "will" in regulation 2(2). The
Committee asked the Ministry of Defence to explain the contrast.
In a memorandum printed at Appendix 7, the Department says "The
wording of regulation 2 precisely follows that of the Government's
template review provision to be inserted, adapted as necessary,
in secondary legislation implementing EU obligations as part of
the Government's policy on the 'sunsetting' and review of regulation.
We understand that there is no intended contrast by the use of
the words "must" and "will" in these paragraphs
and that both words were intended by the Government to have the
same mandatory effect." The Committee take this opportunity
to observe that the use of a template or standard-form provision
is not a valid explanation for a defect in the drafting of an
instrument, whether because it produces internal inconsistency
by reference to other provisions of the instrument or whether
there is an inconsistency or other defect in the template or standard
form itself. In this case, since the Department acknowledges that
the same meaning was intended in each place, the same expression
should have been used: this is a standard expectation for legislative
drafting, designed to allow the courts to operate the presumption
that a change of legislative language signals a change of intended
meaning. The Committee accordingly reports regulation 2 for
defective drafting.
7.4 Regulation 3 defines "disabled person"
in the following terms: ""disabled person" means
any person recognised as disabled within the meaning of the Equality
Act 2010 and "disabled persons" is to be interpreted
accordingly". The Committee asked the Department to explain
the intention of the words and "disabled persons" is
to be interpreted accordingly;". In its memorandum, the Department
explains that the Regulations follow the approach, and where possible
language, of the Public Contracts Regulations 2006 (SI 2006/5)
and the Public Contracts (Scotland) Regulations 2006 (SSI 2006/1),
because of close similarities in the EU legislation which each
implements. The Department amplifies its aim as follows: "Therefore,
to avoid confusion and maintain a consistent approach to implementation,
the general approach was for these Regulations, wherever possible,
to mirror the provisions of the 2006 Regulations. The definition
of "disabled person" in regulation 3(1) of these Regulations
is identical to that in regulation 3(1) of the Public Contracts
Regulations 2006. However, the Department accepts that, but for
the interests of maintaining consistency with the 2006 Regulations
described above, the phrase referred to would not have been necessary."
The Committee acknowledges the utility of consistency between
instruments on cognate matters which require to be construed in
a consistent way. In the Committee's view, however, there is a
difference between ensuring substantive consistency and perpetuating
a technical error; if the definition had been drafted in the manner
that the Department acknowledges is appropriate, the Committee
does not believe that anyone would be misled as a result of a
minor technical difference of language between three sets of regulations.
If the Department disagreed, it would have been open to it, of
course, to take steps within Government to have the other two
sets of Regulations corrected to remove what they acknowledge
to have been an error. The Committee accordingly reports regulation
3(1) for defective drafting, in effect acknowledged by the Department.
7.5 Regulation 7(1)(g) defines "land" in
terms which appear to add nothing to the definition in the Interpretation
Act 1978. The Committee therefore asked the Department to explain
the purpose of the provision. In its memorandum, the Department
states: "Again, regulation 7(1)(g) of these Regulations is
identical to regulation 6(2)(e) of the Public Contracts Regulations
2006. However, having regard to the Interpretation Act 1978, the
Department accepts that, but for the interests of maintaining
consistency with the 2006 Regulations described above, the phrase
referred to would not have been necessary." As the memorandum
implies, the issue of principle here is the same as in relation
to regulation 3(1), and the Committee's reasoning is the same.
The Committee accordingly reports regulation 7(1)(g) for defective
drafting, in effect acknowledged by the Department.
7.6 Regulation 12(1) defines "recognised bodies"
in the following terms: ""recognised bodies" means
test and calibration laboratories and certification and inspection
bodies which comply with applicable European standards and "recognised
body" shall be interpreted accordingly;". The Committee
asked the Department to explain why it was thought necessary to
include the phrase "and "recognised body" shall
be interpreted accordingly". In its memorandum, the Department
states: "The definition of "recognised bodies"
in regulation 12(1) of these Regulations is identical to that
in regulation 9(1) of the Public Contracts Regulations 2006. However,
the Department accepts that but for the interests of maintaining
consistency with the 2006 Regulations described above, the phrase
referred to would not have been necessary." As the memorandum
implies, the issue of principle here is the same as in relation
to regulation 3(1), and the Committee's reasoning is the same.
The Committee accordingly reports regulation 12(1) for defective
drafting, in effect acknowledged by the Department.
7.7 Regulation 21(19) defines "values"
in paragraphs (5)(b), (8)(b), (10)(d), (13)(b) and (15)(b) as
including price. Since prices as well as values are expressly
mentioned in the paragraphs referred to in regulation 21(19),
the Committee asked the Department to explain the purpose of that
provision. In its memorandum, the Department says "The same
formulation is used in regulation 21(19) of the Public Contracts
Regulations 2006."; it goes on to explain why both values
and prices require to be mentioned expressly. The Committee does
not dispute that, but does dispute the need to duplicate effect
by having an inclusive definition in regulation 21(19) as well
as express mention of price and value in each relevant place.
The Committee accordingly reports regulation 21(19) for defective
drafting.
8
S.I. 2011/2055: Reported for requiring
elucidation
Infrastructure Planning (Changes to, and Revocation
of, Development Consent Orders) Regulations 2011 (S.I. 2011/2055)
8.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they require
elucidation in two identical respects.
8.2 The Planning Act 2008 (c.29) ("the Act")
established the Infrastructure Planning Commission and gave it
the function of making orders consenting to development which
is or forms part of a nationally significant infrastructure project
(within the meaning given by section 14 of the Act). The Act made
provision concerning changes to, and revocations of, development
consent orders and the Regulations contain provisions about applications
for such changes or revocations. Regulations 14 and 36 require
applicants for a change or revocation to publish a notice and
both contain (in paragraph (4) of regulation 14 and paragraph
(6)(d) of regulation 36) special requirements about the display
and publication of notices in the case of an application involving
a development consisting of or including a "linear scheme".
Neither the Regulations nor the Act define "linear scheme".
8.3 The Committee asked the Department for Communities
and Local Government to explain the meaning of the term "linear
scheme" and why it is not defined. In a memorandum printed
at Appendix 8, the Department asserts that it is clear which of
the descriptions of projects listed in section 14 of the Act are
"linear schemes", that the meaning is clear from the
context ("exceeding five kilometres"), that the term
has been used without definition in other identified regulations
concerning nationally significant infrastructure projects and
that the phrase is generally understood by those involved in such
projects.
8.4 The Committee considers that, because an applicant
is subject to special requirements if the application involves
a development consisting of or including a "linear scheme",
it is important for applicants to be able readily to establish
if their applications do so relate. The Committee therefore considers
that it would have been desirable for the Regulations to have
included a definition of the term "linear scheme". The
Committee considers that the phrase "exceeding five kilometres"
is not needed to clarify the meaning of the word "linear"
and appears to be of no assistance in clarifying what "scheme"
means. The Committee does not consider that previous use of the
term without definition militates against its conclusion: it notes
that in one of the two uses identified in a previous instrument
the context is somewhat clearer than here. The Committee is content
to take it on trust that the term is in fact widely understood
but, even if it is, it is not inevitable that every person responsible
for dealing with the procedural requirements relating to an application
will be aware of its meaning. If (as the Department claims) it
is clear which of the varieties of development listed in section
14 of the Act constitute "linear schemes" it would have
been be easy for the Department to have included a definition
cross-referring to the relevant portions of that section.
8.5 The Committee accordingly reports regulations
14 and 36 as requiring elucidation largely but not completely
provided in the Department's memorandum.
9
S.I. 2011/2132: Reported for defective
drafting
Plant Protection Products (Fees and Charges)
Regulations 2011 (S.I. 2011/2132)
9.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in three related respects.
9.2 The Regulations include a charging regime in
relation to persons who hold an authorisation for placing plant
protection products on the market ("authorisation holders").
Regulation 8 provides the method of calculating amounts that authorisation
holders are liable to pay under regulations 5 and 6 in respect
of the costs incurred by the competent authorities in administering
the regulatory regime relating to such products. The charge that
an authorisation holder is liable to pay is a specified percentage
of the authorisation holder's annual turnover. The percentage
is arrived at by multiplying by 100 a fraction of which the numerator
is the total costs incurred by the competent authority in the
liability period and the denominator is the aggregate of the annual
turnover of all authorisation holders.
9.3 The liability period is defined (by regulation
2(1)) as "the period between 1 April in any year and 31 March
in the following year"; and "annual turnover" is
defined (in regulation 8(6)) as the amount derived from sales
"in the financial year ending between the 1st
October and 30th September the following year, the
latter date being in the calendar year in which the liability
period starts".
9.4 The Committee asked the Department for Environment,
Food and Rural Affairs to explain how the amounts which authorisation
holders are liable to pay in accordance with regulation 8 are
intended to be calculated and to demonstrate how effect is given
to that intention, commenting (in particular) on how a "financial
year" is identified and on which financial year is relevant
to any particular liability period.
9.5 In a memorandum printed at Appendix 9, the Department
explains that the competent authority must work out its costs
in a liability period (to arrive at the nominator in the fraction)
and the aggregate of the turnover of each authorisation holder
by reference to its annual sales in the relevant financial year
(to arrive at the denominator). The memorandum does not explain
what is meant by "financial year" but does give an example
showing how one ascertains the financial year that is relevant
in relation to any particular liability period. It explains that
it is the financial year that ends in 12 month period ending with
30th September (though the memorandum erroneously refers
to 31st September) in the calendar year in which the
liability period starts. It appears implicit that a financial
year for any authorisation holder is a matter of choice for that
authorisation holder.
9.6 The Committee remains concerned about the drafting
of the definition of "annual turnover" in regulation
8(6) and the associated definition of "liability period"
in regulation 2(1). Firstly, regulation 8(6) does not contain
a definition of the notion of "financial year" which
is used in the definition of "annual turnover". There
is no indication of how to establish what is an authorisation
holder's financial year, whether it is a company or a natural
person. Secondly, the Committee also finds the words in the definition
of "annual turnover" which tie the financial year to
the liability period difficult to follow and, although it finds
helpful the example included in paragraph 5 of the memorandum,
it considers that that definition could be made to work unambiguously
by relating it to an authorisation holder and then clarifying
the link with the liability period. Thirdly, the Committee considers
that, by referring to the period "between" 1 April and
31 March, the definition of liability period in regulation 2(1),
read literally, raises a question as to whether or not the liability
period includes either or both of those dates.
9.7 The Committee accordingly reports regulation
8(6) (and the connected definition of "liability period"
in regulation 2(1)) for defective drafting.
10
S.I. 2011/2225: Reported for defective
drafting
Excise Goods (Holding, Movement and Duty Point)
(Amendment) Regulations 2011 (S.I. 2011/2225)
10.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
10.2 The Regulations amend the Excise Goods (Holding,
Movement and Duty Point) Regulations 2010 (S.I. 2010/593)
("the 2010 Regulations"). Regulation 10 amends regulation
62 of the 2010 Regulations by substituting paragraphs (2) to (2E)
for the existing paragraph (2). The new paragraph (2) permits
the movement of alcoholic liquors, without payment of duty or
the cover of an electronic administrative document, from and to
"the premises referred to in paragraphs (2A) to (2E)".
Paragraphs (2A) to (2D) do nothing but specify premises but, while
sub-paragraph (a) of paragraph (2E) specifies premises, sub-paragraph
(b) of that paragraph contains the proposition that the person
who is registered or licensed in relation to the premises or the
authorised warehousekeeper (on the one hand) ("A") and
the producer or manufacturer of the alcoholic liquor (on the other)
("B") are persons who, for the purposes of value added
tax, are members of the same group.
10.3 The Committee asked Her Majesty's Revenue and
Customs for an explanation of how paragraph (2E) is intended to
work and how that intention is achieved. In a memorandum printed
at Appendix 10, the Department states that the intention is that
movement is to be allowed to or from the premises mentioned in
paragraph (a) of paragraph (2E) only if A and B are members of
the same group.
10.4 The Committee considers that the construction
of paragraph (2E) does not clearly yield that construction. The
inserted provisions should have stated clearly that the premises
specified in paragraph (a) of paragraph (2E) are premises that
count for the purposes of paragraph (2) only if a condition is
satisfied and then gone on separately to state that condition.
As paragraph (2E) is drafted, the indenting appears manifestly
awry and the significance of the proposition in sub-paragraph
(b) is not made clear.
10.5 The Committee accordingly reports regulation
10 for defective drafting.
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