INSTRUMENTS
REPORTED
AT ITS
MEETING ON
16 JANUARY 2013 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. 2012/2748: REPORTED
FOR DEFECTIVE
DRAFTING
IRAQ
(UNITED NATIONS
SANCTIONS) (OVERSEAS
TERRITORIES) (AMENDMENT)
ORDER 2012 (S.I. 2012/2748)
1.1 THE COMMITTEE
DRAWS THE
SPECIAL ATTENTION
OF BOTH
HOUSES TO
THIS ORDER
ON THE
GROUND THAT
IT IS
DEFECTIVELY DRAFTED
IN ONE
RESPECT.
1.2 The Order consolidates the provisions applying
in overseas territories to give effect to asset-freezing provisions
imposed by the United Nations in relation to Iraq. Article 5 creates
an offence of making funds available to a designated person and
paragraph (2) of that article provides that it is subject to articles
9 and 11: article 9 provides an exception for making certain credits
to a frozen account and article 11 provides for the granting of
licences authorising activities that would otherwise be offences.
Article 6 creates an offence of making funds available for the
benefit of a designated person. Paragraph (3) of that article
provides that it is subject to article 5, as well as to articles
9 and 11. The Committee asked the Foreign and Commonwealth Office
to explain what is intended by making article 6 subject to article
5 and how the intention is achieved.
1.3 In a memorandum printed at Appendix 1, the
Department states that the reference to article 5 in article 6(3)
is a typographical error that is both small scale and obvious
on the face of the Order and that it proposes to take steps to
rectify the error by correction slip to have the reference removed.
1.4 The Committee accepts that sufficiently small
scale and obvious errors are, by application of the reasoning
in the decision of the House of Lords in Inco Europe Ltd v
First Choice Distribution [2000] 1 W.L.R. 586, rectifiable
by correction slip; notes that the decision whether to proceed
in that manner falls to the SI Registrar (on application of the
responsible Department); and does not routinely report errors
that clearly can be so rectified. On this occasion, however, the
reason why the reference to article 5 was questioned was that
there could have been a reason for its inclusion other than obvious
error - namely to seek to ensure that any activity that (without
the reference) would come within both article 6 and article 5
should come within article 5 only. The Committee recognises the
possibility of being persuaded that such an explanation of the
inclusion of the reference is so implausible that it should be
discounted, but - in the absence of argument on the point - the
Committee is not yet convinced that this is a case of the sort
that it would regard as clearly suitable to be addressed by the
issue of a correction slip. Rather, as it has no further function
in relation to this Order, it invites the Department to consider
the point with the SI Registrar and proceed either by amendment
or by correction slip, depending on the conclusion that they reach.
1.5 THE COMMITTEE
ACCORDINGLY REPORTS
ARTICLE 6(3) FOR
DEFECTIVE DRAFTING,
ACKNOWLEDGED IN
PRINCIPLE BY
THE DEPARTMENT.
2
S.I. 2012/2813: REPORTED
FOR DEFECTIVE
DRAFTING AND
DOUBTFUL VIRES
LEGAL
AID, SENTENCING
AND PUNISHMENT
OF OFFENDERS
ACT 2012 (CHILDREN
ACT 1989) (CHILDREN
REMANDED TO
YOUTH DETENTION
ACCOMMODATION) REGULATIONS
2012 (S.I. 2012/2813)
2.1 THE COMMITTEE
DRAWS THE
SPECIAL ATTENTION
OF BOTH
HOUSES TO
THESE REGULATIONS
ON THE
GROUNDS THAT
THEY ARE
DEFECTIVELY DRAFTED
IN ONE
RESPECT AND
THAT THERE
IS DOUBT
AS TO
WHETHER THEY
ARE INTRA
VIRES IN
ONE RESPECT.
2.2 The Regulations (made under sections 104(2)
and 106 of the Legal Aid, Sentencing and Punishment of Offenders
Act 2012 ("the 2012 Act")) make provision for certain
duties of local authorities under the Children Act 1989 not to
apply in relation to certain children.
2.3 Regulation 2(c) accordingly provides that
subsections (2) to (8) of section 23 of the Children Act 1989
- provisions that in principle require placing of children in
families or specified types of accommodation - do not apply in
relation to a child remanded to youth detention accommodation.
Regulation 4 provides that, notwithstanding that, those provisions
continue to have effect for the purpose of making regulations
under section 23. The Committee did not understand the intended
purpose of regulation 4 and asked the Department for Education
to explain it.
2.4 In a memorandum printed at Appendix 2, the
Department states that the purpose of regulation 4 is to ensure
that regulations made under section 23 can be made in relation
to children remanded to youth detention accommodation. The Committee
does not understand from that response what, in conceptual terms,
the Department is seeking to achieve: the response does not address
the point that the enabling powers in section 23 are intimately
bound up with the substantive provision made by that section.
The first enabling power (in subsection (2)(a)) is a power to
create exceptions from the obligation that a child be placed with
a family, relative or other suitable person. If that obligation
is no longer to apply to children remanded to youth detention
accommodation, how can there be any need to create for such children
an exception from it? Subsection (6) raises a similar issue. The
power in subsection (2)(f)(ii) is to specify matters with which
the arrangements that may be made for a child must comply. If
children remanded to youth detention accommodation are not covered
by section 23, what scope is there for specifying matters in their
case? Similarly, subsection (5) provides that a child may be allowed
to live with a person specified in subsection (4) only in accordance
with regulations. If that proposition does not in itself apply
to a child remanded to youth detention accommodation, how can
the power to make regulations? The Committee therefore, while
unsure of the result that the Department is seeking to achieve,
considers that the combination of regulation 2(c) and regulation
4 is necessarily misconceived. It is possible that regulation
4 is otiose; it is equally possible that regulation 2(c) is cast
too wide. THE COMMITTEE
ACCORDINGLY REPORTS
REGULATIONS 2(C)
AND 4 IN
COMBINATION FOR
DEFECTIVE DRAFTING.
2.5 Regulation 5 provides that paragraph 21 of
Schedule 2 to the Children Act 1989 does not apply to a child
remanded to local authority accommodation. The Committee was unclear
why provision about children remanded to local authority accommodation
(as opposed to youth detention accommodation) is made in the Regulations.
Section 104(2) of the 2012 Act provides for the making of provision
removing the application of, or applying with modifications, provisions
relating to children looked after by a local authority to children
treated as so looked after by Chapter 3 of Part 3 of that Act.
Section 104(1) provides that children remanded to youth detention
accommodation are to be treated as so looked after. The Committee
asked the Department to explain why, in the light of section 104(1),
it considers that it has authority to include the provision made
by regulation 5.
2.6 The Department's memorandum states that children
looked after as a result of being remanded to local authority
accommodation in accordance with section 91(3) of the 2012 Act
are covered by subsection (2) of section 104 of that Act. The
Department considers that the power in that subsection is not
confined to children referred to in subsection (1) of that section
and that this is evidenced by the words "treated as looked
after ...by virtue of this Chapter" in subsection
(2). The Committee accepts in principle that that power might
extend beyond section 104(1) cases but is not persuaded that that
is in fact so in relation to the specific situation addressed;
there is certainly no proposition like section 104(1) in section
91. Children remanded in accordance with section 91(3) may or
may not be children looked after by a local authority. If they
are, they are so looked after (and do not need to be treated as
being so looked after). If they are not so looked after, it would
require a legislative proposition to treat them as being so looked
after and the Committee could not discover such a proposition.
The Committee is concerned that, in the absence of a proposition
of that sort, section 104(2) does not apply to them. THE
COMMITTEE ACCORDINGLY
REPORTS REGULATION
5 ON THE
GROUND THAT
THERE IS
DOUBT AS
TO WHETHER
IT IS
INTRA VIRES.
3
S.I. 2012/2840: REPORTED
FOR DEFECTIVE
DRAFTING
CUSTOMS
(INSPECTIONS BY
HER MAJESTY'S
INSPECTORS OF
CONSTABULARY AND
THE SCOTTISH
INSPECTORS) REGULATIONS
2012 (S.I. 2012/2840)
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 The Regulations provide for oversight of
premises used to detain people for customs purposes, and of transportation
to and from those premises. Regulation 2 defines "the Act"
to cover the Borders, Citizenship and Immigration Act 2009; but
that expression does not appear elsewhere in the Regulations,
and the Committee accordingly asked the Home Office to explain
regulation 2.
3.3 In a memorandum printed at Appendix 3, the
Department accepts that regulation 2 is unnecessary, apologises
for the error and states an intention to correct the instrument
in due course. THE COMMITTEE
ACCORDINGLY REPORTS
REGULATION 2 FOR
DEFECTIVE DRAFTING,
ACKNOWLEDGED BY
THE DEPARTMENT.
4
S.I. 2012/2862: REPORTED
FOR DEFECTIVE
DRAFTING
OIL
STOCKING ORDER
2012 (S.I. 2012/2862)
4.1 THE COMMITTEE
DRAWS THE
SPECIAL ATTENTION
OF BOTH
HOUSES TO
THIS ORDER
ON THE
GROUND THAT
IT IS
DEFECTIVELY DRAFTED
IN ONE
RESPECT.
4.2 The Order partly implements Council Directive
2009/119/EC ("the Directive") which imposes on member
States an obligation to maintain minimum stocks of crude oil and
petroleum products. Article 3 seeks to define when crude oil,
or biofuel or additives, are part of a person's United Kingdom
stock. The person in question is denoted as "P" and
"P" is defined in article 2 as a person who has been
given a direction to create or maintain a level of fuel stocks.
4.3 In sub-paragraph (e) of paragraph (1), and
paragraph (d) of paragraph (2), of article 3 ("the provisions
in question") there is provision that oil (or biofuel or
additive) is not P's United Kingdom stock if it is the United
Kingdom stock of another person. The Committee wondered how those
provisions are intended to operate to determine to which of a
number of persons are to be taken to have any oil (or biofuel
or additive) as part of its United Kingdom stock given that the
definition of P in article 2 refers to a person who has been
given a direction and that it is apparent that more than one
person can be given a direction. It therefore asked the Department
of Energy and Climate Change to provide an explanation.
4.4 In a memorandum printed at Appendix 4, the
Department states that it does not consider that (even without
the provisions in question) it would be possible for oil (or biofuel
or additives) to be part of the United Kingdom stock of more than
one person. It considers that the requirement (imposed by article
3(1)(d) and (2)(c)) that the oil (or biofuel or additive) be available
to, and physically accessible to, P at all times would alone prevent
that result. But the Department goes on to say that, because the
Directive states (in Annex III) that "no quantity may be
counted as stock more than once", it felt obliged to include
the provisions in question. The memorandum, however, states that,
as it is it not currently possible to predict the circumstances
where the provisions in question may operate, the Department has
no view on which of a number of competing persons should have
oil (or biofuel or additives) treated as part of its United Kingdom
stock.
4.5 The Committee notes that there appears to
be a surface inconsistency between the argument that a given situation
cannot arise and the indifference of the Department to the outcome
if it arises. The Committee further considers that, if a provision
is included in legislation, it should always be drafted so as
to resolve effectively the issue that it purports to address.
The fact that a provision is included to implement a provision
of EU law is no excuse for the provision being defectively drafted.
Although the provisions in question do secure that, as the Directive
requires, "no quantity of stock may be counted more than
once" they do not work in the context of the provisions of
the implementing instrument which requires oil (or biofuel or
additives) to form part of a particular person's United Kingdom
stock. As they fail to provide a mechanism for allocating oil
(or biofuel or additives) to the United Kingdom stock of one of
a number of competing persons, the Committee considers them to
be inadequately drafted.
4.6 THE COMMITTEE
ACCORDINGLY REPORTS
ARTICLE 3 FOR
DEFECTIVE DRAFTING.
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