Instruments reported
At its meeting on 1 February 2012 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 three 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. 2011/2933: Reported for defective
drafting
Environmental Permitting (England and Wales)
(Amendment) (No.2) Regulations 2011 (S.I. 2011/2933)
1.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in three related respects.
1.2 The Regulations amend the Environmental Permitting
(England and Wales) Regulations 2010 (S.I.2010/675) ("the
2010 Regulations") in order to transpose Directive 2009/126/EC
("the 2009 Directive") which deals with refuelling at
larger existing petrol stations and most new ones with a view
to controlling emissions from vapours displaced from vehicle tanks
when they are being filled with petrol. To effect transposition
of the 2009 Directive the Regulations (among other things) increase
the range of service stations subject to control by the system
of permits in the 2010 Regulations.
1.3 Regulation 2 amends Part B of Section 1.2 of
Part 2 of Schedule 1 to the 2010 Regulations. Regulation 2(2)
(in sub-paragraph (a)) substitutes new versions of paragraphs
(d) and (e) which define two categories of motor vehicle refuelling
activities subject to control and (in sub-paragraph (b)) adds
two new such categories (in new paragraphs (f) and (g)). Paragraph
(d) covers existing service stations and paragraphs (e) and (f)
cover new service stations. Regulation 2(3)(a) substitutes a new
definition of "new service station".
1.4 The new version of paragraph (d) covers refuelling
at existing service stations if the throughput of petrol is in
excess of 3000 cubic metres in any 12 month period. The previous
version of paragraph (d) covers refuelling at existing service
stations if the throughput of petrol in any 12 month period "is,
or is likely to be," 3500 cubic metres or more. The Committee
asked the Department for Environment, Food and Rural Affairs to
explain the gap which the omission of the words ", or is
likely to be," apparently leaves between the time when the
previous version of paragraph (d) ceases to operate in relation
to an existing service station (apparently the start of 2012)
and the time when the substituted version begins to operate in
relation to it (apparently the first moment after the start of
2012 that the specified petrol throughput is actually met). In
a memorandum printed at Appendix 2, the Department states that
in practice a decision needs to be made prior to the start of
any year whether a service station needs a permit and that one
does not wait to judge actual output and then arrange for a retrospective
permit. The Committee agrees with the Department that this is
a sensible practical approach. But the Committee does not understand
how that explains the omission. Surely the inclusion of words
like ", or is likely to be," would underpin the intended
approach. The previous version of paragraph (d), the previous
and new versions of paragraph (e) and the new paragraph (f) all
contain words about likelihood or intention. As they are presumably
each intended to work in exactly the same way, the new paragraph
(d) should have contained something similar. Further, the Committee
does not think that it is sufficient justification to point (as
the Department's memorandum does) to the absence of any similar
words in the requirement found in paragraph 3 of Article 3 of
the 2009 Directive (on which the new paragraph (d) is based) .
Looked at in the context of the remainder of that Article, it
seems highly likely that intended throughput (as well as actual
throughput) should be treated as being covered by that paragraph,
so as not to leave the type of gap in legal control that arises
from a literal reading of the Regulations. The Committee accordingly
reports Regulation 2(2)(a) for defective drafting.
1.5 The Committee also asked the Department to explain
the contrast between ", or is intended to be," in the
substituted version of paragraph (e) and ", or is likely
to be," in the new paragraph (f). In its memorandum the Department
concedes that the former formulation should be used consistently
in both places. While arguing that the application of either formulation
results in practice in the assessment as to whether or not a permit
is required being determined by the operator's estimate of throughput,
it suggests that the former phrase is to be preferred as being
"subjective" whereas the latter is objective. The Committee
agrees that a consistent approach should have been adopted and
notes that relevant provisions of Article 3 of the 2009 Directive
consistently use the phrase "intended throughput" as
opposed to "likely throughput". In the light of that
the Committee accepts the Department's view on which of the alternative
formulations is to be preferred. The Committee accordingly
reports Regulation 2(2)(b) for defective drafting, acknowledged
in principle by the Department.
1.6 Finally, the Committee questioned the terms of
the new definition of "new service station" which is
substituted by Regulation 2(3)(a). The Committee was concerned
that the new definition appeared to have the effect that a service
station put into operation on 31 December 2009 without a prior
planning permission is not a new service station while not being
an existing service station either. In its memorandum the Department
accepts that there is an error here though it asserts that, because
a new service station will in practice need planning permission,
it is not one of practical significance. The Department nevertheless
undertakes to remedy the error. The Committee welcomes that undertaking.
The Committee is, however, concerned that the remedy suggested
by the Department (of inserting the words "other than an
existing service station" into the definition of "new
service station") might not be the appropriate one. The problem
identified by the Committee is not one of overlap between the
definitions but of there being a case that falls within neither
of them. The Committee accordingly reports Regulation 2(3)(a)
for defective drafting, acknowledged by the Department.
2
S.I. 2011/2947: Reported for defective
drafting
Parole Board Rules 2011 (S.I. 2011/2947)
2.1 The Committee draws the special attention
of both Houses to these Rules on the ground that they are defectively
drafted in three respects.
2.2 The Rules set out the procedure to be adopted
by the Parole Board when dealing with cases referred to it by
the Secretary of State.
2.3 Rule 5(4) requires Parole Board panels dealing
with life sentences and sentences during Her Majesty's pleasure
to "consist of or include a sitting or retired judge".
Having regard to the variety of officers whose title nowadays
includes the word "judge", the Committee invited the
Ministry of Justice to explain what classes of judicial office
are intended to be referred to by the word "judge".
In a memorandum printed at Appendix 3, the Department says: "Currently
the Parole Board predominately appoints circuit judges as judicial
members and the Parole Board Rules 2011 have been drafted so that
only persons conventionally regarded as judges, as opposed to
other judicial office holders such as magistrates and lay members
of tribunals, may sit on an oral panel under rule 5. However,
the precise judicial office held by the judge is not circumscribed
and is not considered material." The Committee is not persuaded
that this is a convincing approach. The use of the term "judge"
without any further definition is susceptible of two partly inconsistent
interpretations—the Department's preference (a person conventionally
regarded as a judge) or, alternately, any person so described
in statute, such as district judges (magistrates' courts), who
it seems are not intended to be appointed, despite their title.
The Department's proposition that further precision was not considered
material implies that resolution of the doubt arising from that
partial inconsistency was either impossible or undesirable, notwithstanding
that it should have been manageable to define the term "judge"
sufficiently to achieve the Department's policy unambiguously.
The Committee accordingly reports rule 5(4) for defective drafting.
2.4 Rule 8(1) allows the Secretary of State to withhold
"any information or report from the prisoner and their representative"
on various specified grounds, including national security. Rule
8(3) provides that, if the Secretary of State has withheld information
from the prisoner, it must be served on the prisoner's representative.
The Committee asked the Department to explain the relationship
between the two propositions. In its memorandum the Department
says: "The drafting intention was that the Secretary of State
should be able to withhold information and reports either from
the prisoner (but disclose them to the prisoner's representative)
or from the prisoner and his representative, subject to any direction
otherwise in accordance with rule 8(3). We recognise that the
drafting does not properly achieve this and will seek to amend
this rule at a convenient time." The Committee accordingly
reports rule 8(1) and (3) for defective drafting, acknowledged
by the Department.
2.5 In a number of places in the Schedules to the
Rules, dealing with information and reports to be submitted to
the Board in different cases, the Rules refer to "the index
offence". This not being a defined term in the Rules or their
parent Act, the Committee asked the Department what it means and
how readers are expected to understand the intended meaning. In
its memorandum the Department says: "The index offence is
the offence for which the offender received the sentence which
is being considered by the Parole Board. The Ministry of Justice
approach is not to define terms which the intended reader will
understand (and which can only be understood in one sense). The
term 'index offence' will be familiar to anybody who has to interact
with the Parole Board. Accordingly, the Ministry does not believe
it is necessary to define this term." The Committee agrees
that in choosing language for the drafting of an instrument it
is appropriate and desirable to consider the principal target
audience of the instrument; and that may lead to the adoption
of trade jargon in appropriate cases. However, unless the subject
matter of an instrument is so technical or specialist that by
its nature it is bound to be impenetrable to those not intimately
involved in the subject area, it is undesirable to draft in language
that in effect excludes the reader without specialist knowledge
from understanding the effect of legislation that is addressed
to citizens at large. In this case, and having regard to the Department's
explanation of what the expression is intended to mean, the Committee
is not convinced that it would not have been possible to make
clear what is meant by an "index offence" for the benefit
of readers whose interest in the Rules is occasional or peripheral.
The Committee accordingly reports paragraph 4(e) and (k) of
Part B of Schedule 1 and paragraph 3 of Part B of Schedule 2 for
defective drafting.
3
S.I. 2011/2962: Reported for defective
drafting
NHS Foundation Trusts (Trust Funds: Appointment
of Trustees) Amendment Order 2011 (S.I. 2011/2962)
3.1 The Committee draws the special attention
of both Houses to this Order on the ground that it is defectively
drafted in one respect.
3.2 The Order amends the NHS Foundation Trusts (Trust
Funds: Appointment of Trustees) Order 2007 (S.I. 2007/1766)
("the Appointment Order") which provides for the appointment
by the Appointments Commission of trustees to hold property for
the purposes of NHS foundation trusts.
3.3 Article 3 amends article 2 of the Appointment
Order by inserting a paragraph (3) that requires the Appointments
Commission to appoint as trustee for the Royal Brompton and Harefield
NHS Foundation Trust—the sole foundation trust specified
in (the new) Schedule 2 to the Appointment Order added by article
7 of this Order—a named company numbered 7795583. Article
5 of this Order inserts into the Appointment Order a new article
3A which provides (in paragraph (1)) that a company may not be
appointed as trustee for any other foundation trust and (in paragraph
(2)) that, where a company is appointed as a trustee, its appointment
is to be subject to a number of conditions which must be included
in the company's constitution. Some of the conditions relate to
the character of the company or its memorandum and articles; others
to action to be taken by it or its directors.
3.4 The Committee asked the Department of Health
how these various provisions are intended to relate to each other
and how that intention is achieved. The Committee was concerned
in particular that the proposition in new article 3A(2) of the
Appointment Order did not sit easily with those in new articles
2(3) and 3A(1) of that Order. In a memorandum printed at Appendix
4, the Department states that the proposition in article 3A(2)
applies where a company is appointed as trustee "which will,
in fact, be where [the Appointment Commission] appoints a company
as trustee for the Royal Brompton and Harefield NHS Foundation
Trust in accordance with its duty to do so under article 2(3)".
3.5 The Committee, while now appreciating the Department's
intention, nonetheless considers that the approach taken by the
Department is inappropriate. Assuming there is no actual inconsistency
in the provisions (that is, that the constitution of the company
specified in new Schedule 2 includes the provisions specified
in new article 3A(2)), all that needs to be achieved is achieved
by new article 2(3) and new Schedule 2 alone. The provisions specified
in new article 3A(2) have no present effect and appear either
to be superfluous or to operate as a misguided attempt to constrain
the Secretary of State in possible future amendments of the Order.
The Committee accordingly reports article 5 for defective drafting.
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