2 S.I.
2011/2552: Reported for defective drafting
Armed Forces And Reserve Forces (Compensation
Scheme) (Amendment) Order 2011 (S.I. 2011/2552)
2.1 The Committee draws the special attention
of both Houses to this Order on the ground that it is defectively
drafted in one respect.
2.2 The Order amends the Armed Forces and Reserve
Forces (Compensation Scheme) Order 2011 ("the principal Order").
Article 9(1)(b)(i) substitutes a new version of item 17 in Table
8 in Part 1 of Schedule 3 to the principal Order. In the substituted
text there is a marker for a note which elaborates the meaning
of "shoulder" in that text and elsewhere in the Table.
The note itself is presented as a standard page footnote as if
it were a purely referential note relating to the text of the
amending Order.
2.3 The Committee asked the Ministry of Defence to
explain why the footnote is presented in that way, rather as a
note to be added to Table 8 by way of substantive amendment. In
a memorandum printed at Appendix 2, the Department states that
the footnote was drafted on the advice of the Department's medical
adviser "in keeping with other footnotes in Tables 1-9 of
Part 1 of Schedule 3" and goes on to say that the substantive
text is that contained in article 9(1)(b)(i) and that "footnotes
are explanatory".
2.4 The Committee considers that the Department's
response fails to acknowledge the need to avoid presentational
confusion of efficacious legislative provisions with other material.
It seems inescapable from the content of the note that the amplification
of the term "shoulder" is sufficiently substantive to
count as either an extension of the term or a clarification of
doubt as to its meaning. A number of the Tables in Part 1 of Schedule
3 to the principal Order already contain links to lettered notes
amplifying notions contained in the text of the Tables, with the
notes in question being distinguished from lettered footnotes
of a purely referential nature by being placed in mid-page at
the foot of the Tables themselves rather than at the foot of the
page: see Tables 2, 3, 5, 6 and 7. If the treatment of this amplification
was indeed to be "in keeping" with what is done in those
Tables it would have been cast as an additional lettered note
to be added to the asterisked notes at the foot of Table 8 and
not as a referential footnote.
2.5 The Committee accordingly reports article
9(1)(b)(i) for defective drafting.
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