Instruments reported
At its meeting on 29 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 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.
1
S.I. 2011/2914: Reported for defective
drafting
Local Authorities (Referendums) (Petitions)
(England) Regulations 2011 (S.I. 2011/2914)
1.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in two respects.
1.2 The Regulations revoke and re-enact with
changes provisions in the Local Authorities (Referendums) (Petitions
and Directions) (England) Regulations 2000 (S.I. 2000/2852)
concerning petitions for a referendum under the Local Government
Act 2000 ("the 2000 Act") about proposals for a change
in the form of governance of a local authority.
1.3 Regulation 6(1) provides that a local authority
"shall hold a referendum ... where they receive a valid petition
(but shall not be required to hold ... a referendum where they
receive a petition which is not a valid petition)". The Committee
was concerned that the words in parenthesis appeared to be unnecessary
and asked the Department for Communities and Local Government
to explain what the words achieve that would not be achieved by
silence. In a memorandum printed at Appendix 1, the Department
states that the words "while not strictly necessary, ....
provide local authorities with certainty that .... unless a petition
[is valid] .... they are not required to hold a governance referendum".
The Committee considers that, as the words imposing the duty to
hold a referendum impose the duty only where there is a "valid
petition", the additional parenthetical words do not add
anything to clarify the scope of the duty and so are unnecessary.
The Department's memorandum, however, goes on to say that "it
would .... be open to a local authority should it wish having
considered an invalid petition, to resolve to hold a .... referendum".
The Committee is not clear whether the Department is seeking to
justify the inclusion of the parenthetical words as clarifying
that point. But if that was the reason for their inclusion, the
proposition that they make, which addresses the local authority's
duty (and not their power) to hold a referendum, is not the right
one to achieve it. The Committee accordingly reports regulation
6(1) for defective drafting, acknowledged in part by the Department.
1.4 Regulation 19 makes provision about what
happens if the result of a referendum is to reject the proposals
that were the subject of the referendum. Paragraph (a) provides
that the local authority may not implement the proposals; and
paragraph (b) provides that they shall continue to operate their
existing form of governance arrangements. The Committee was concerned
about paragraph (b) for two reasons. First, the Committee was
unclear under what authority paragraph (b) was made and, second,
it wondered for how long that paragraph was intended to apply
and how effect was given to that intention. The Committee therefore
asked the Department about these two issues. In its memorandum
the Department states (on the first issue) that paragraph (b)
was included by virtue of section 9MC(2)(j) of the 2000 Act which
provides that provision may be included about the action which
must be taken by a local authority after a referendum. On the
second issue it states (in paragraph 12) that paragraph (b) will
have effect until the local authority changes the form of its
governance arrangements in the future. The Committee is content
that section 9MC(2)(j) provides the authority for paragraph (b).
But it is concerned that there is a risk that, as the proposition
in paragraph (b) is of unlimited application, it could be argued
to secure that a rejection in a referendum of proposals for change
has the effect that the local authority's existing form of governance
arrangements continue indefinitely. The Committee therefore considers
that paragraph (b) is not merely unnecessary (as duplicating paragraph
(a)) but raises a doubt about the effect of a referendum in which
proposals are rejected. As it does not clearly deliver its intended
effect as described in paragraph 12 of the memorandum it should
not have been included. The Committee accordingly reports regulation
19(b) for defective drafting.
2
S.I. 2011/2936: Reported for requiring
elucidation
Wine Regulations 2011 (S.I. 2011/2936)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they require
elucidation in one respect.
2.2 The Regulations implement various items of
European Union legislation about the marketing of wine and related
products. Regulation 9 covers the issue of warrants to permit
entry to premises for the purposes of enforcing relevant EU legislation,
and paragraph (1) accordingly allows a warrant to authorise "the
authorised officer" to enter premises: but, although the
term "authorised officer" is defined in regulation 2(2),
no particular authorised officer has yet been referred to in regulation
9. The Committee accordingly asked the Department for Environment,
Food and Rural Affairs to explain which authorised officer is
referred to. The Committee hoped to establish whether the reference
to a particular officer was intentional, or whether warrants are
intended to be executable by any authorised officer (as one might
have inferred from the opening words of the regulation, had it
not been for the reference to "the authorised officer").
In a memorandum printed at Appendix 2, the Department demonstrate
an expectation that a particular authorised officer will be named
in the warrant, who is likely to be (but need not be) the officer
on the basis of whose information the warrant is issued. That
appears to be a reasonable interpretation, but use of the expression
"an authorised officer", rather than "the authorised
officer", would have avoided the doubt that gave rise to
the question. The Committee accordingly reports regulation
9 as calling for the elucidation provided in the Department's
memorandum as amplified in this Report.
3
S.I. 2011/2975: Reported for defective
drafting
South Gloucestershire and Stroud College (Government)
Regulations 2011 (S.I. 2011/2975)
3.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in three related respects.
3.2 The Regulations set out (in Schedule 1) the
instrument of government and (in Schedule 2) the articles of government
for the newly-constituted South Gloucestershire and Stroud College,
a further education corporation.
3.3 Clause 13(1) of Schedule 1 (which provides
for the quorum at meetings of the corporation) refers to "LSC
members" of the corporation. Schedule 1 contains no definition
of that term. Articles 6(2) and 19 of Schedule 2 (which make provision
about the corporation's audit committee and financial matters)
refer to "the LSC". Schedule 2 contains no definition
of that term.
3.4 The Committee asked the Department for Business,
Innovation and Skills to explain these references. In a memorandum
printed at Appendix 3, the Department states that the reference
to "LSC members" should be to "CE members"
(which builds on a definition in Schedule 1), and that the two
references to "the LSC" should be to "the CE"
(which is defined in Schedule 2).
3.5 The Committee accordingly reports Schedules
1 and 2 for defective drafting, acknowledged by the Department.
4
S.I. 2011/3103: Reported for failure
to comply with proper drafting practice and requiring elucidation
Civil Procedure (Amendment No. 4) Rules 2011
(S.I. 2011/3103)
4.1 The Committee draws the special attention
of both Houses to these Rules on the ground that they fail to
comply with proper drafting practice in various related respects
and that in the same respects they require elucidation.
4.2 The Rules amend the Civil Procedure Rules
1998. The new provisions inserted into those Rules by rules 4(b),
5(b), 6(b), 7(b) and 9(c) all include propositions that the court
"will" (in certain circumstances) transfer a claim or
application. The provision inserted by rule 9(d)(ii) includes
the proposition that the court "will" serve a notice
or questionnaire. The provisions inserted by rule 7(c)(iv) and
(d)(iii) state that proceedings "will" be transferred.
Rules 7(c)(i) and (v) and (d)(i) substitute "will" for
"must" in various provisions of the Civil Procedure
Rules 1998: the first of the provisions now states that proceedings
will be transferred automatically, the second that the court will
give notice and the third that proceedings will be transferred.
4.3 The Committee was concerned about the meaning
of the word "will" in these various contexts. The use
of the word "will" in similar contexts was a matter
which the Committee raised in its 31st Report of this Session
in relation to the Criminal Procedure Rules 2011 (S.I 2011/1709):
see the comments in paragraph 5.9 of that Report. In the light
of that, the Committee asked the Ministry of Justice to explain
what "will" is intended to mean in each context in which
it is employed in the Rules, and how effect is given to that intention,
and for an explanation of why the Explanatory Memorandum indicates
that there are no matters of interest to the Committee.
4.4 In a memorandum printed at Appendix 4, the
Department states that the use of "will" is intended
to denote that something is to happen automatically. It also states
that the word is used to denote a "non-discretionary"
function in circumstances where there is no sanction for failure
to comply. Further, the Department comments that, because regular
use of the term "will" in amendments of the Civil Procedure
Rules 1998 has previously passed without comment by the Committee,
it did not consider it necessary to draw the Committee's attention
to its use on this occasion but undertakes to draw the Committee's
attention to its use in the future should the Committee consider
that it should do so.
4.5 The Committee accepts that in some of the
contexts in which the word "will" is used in the Rules
it does indeed appear to be intended to denote an automatic outcome
and that in other contexts it seems to be intended to impose a
duty. But the Committee considers that the word "will"
is not the most apt term to achieve either of those objectives.
Legislative provisions do not commonly indicate automatic outcome
by use of the word "will"; and duties are more usually
connoted by use of the word "must" or "shall".
And if a legislative provision imposes a duty that is not absolute
it invariably qualifies it so as to indicate the circumstances
in which it does (or does not) apply. The Committee considers
that use of the same term to indicate automatic outcome (in some
cases) and a duty (in others) is particularly confusing. Users
of legislation are entitled to language which makes it absolutely
clear that a provision is specifying automatic outcome or is imposing
a duty and, in the case of a duty not intended to be absolute,
to be given criteria by reference to which it can be judged when
the duty does and does not apply.
4.6 Because of the Committee's concerns about
the use of the term "will" in these and in previous
Rules, the Committee would be grateful if its attention could
be drawn to any similar use of the term in the future, with such
explanations as the Department sees fit. Elsewhere in the Report
referred to above the Committee has printed material the submission
of which enabled it to modify an approach previously taken (see
paragraph 5.7 of that Report). In this case the use of the term
"will", commented on by the Committee fairly recently
in this Session and indeed more recently than any precedent relied
on in the Department's memorandum, was not covered anywhere in
the Explanatory Memorandum, even though the Explanatory Memorandum
came from the Department that was itself responsible for allowing
the previous Rules in which the term was used. It is therefore
surprising that no attempt was made in the Explanatory Memorandum
to engage with the Committee by identifying the point at issue
and seeking to justify the usage in question.
4.7 The Committee accordingly reports rules
4, 5, 6, 7 and 9 for failing to comply with proper drafting practice
and for requiring elucidation not completely provided in the Department's
memorandum.
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