Instruments reported
At its meeting on 23 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 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. 2012/2690: Reported
for doubtful vires
Community Radio (Guernsey) Order 2012 (S.I. 2012/2690)
1.1 The Committee draws the special attention
of both Houses to this Order on the ground that there appears
to be a doubt whether it is intra vires.
1.2 This Order in Council, which was made on 7 November
2012, purports to be made under section 262(1), (3) and (4) of
the Communications Act 2003. As at that date, section 262 conferred
power on the Secretary of State to make orders but conferred no
power for an Order in Council to be made.
1.3 On 7 November 2012 the Communications (Bailiwick
of Guernsey) (Amendment) Order 2012 was made; it amended the Communications
(Bailiwick of Guernsey) Order 2003 with the effect that section
262 applied to Guernsey with further modifications (it already
applied with one modification by virtue of the 2003 Order). In
particular, the further modified section provided for Orders in
Council to be made rather than for the Secretary of State to make
orders. That amendment Order came into force on 5 December 2012.
1.4 In a memorandum printed at Appendix 1, the Department
for Culture, Media and Sport acknowledges that the power to make
this Order in Council did not exist until 5 December 2012, and
states that it will arrange to revoke this Order and re-make it
at a future Privy Council meeting.
1.5 The Department also refers to a requirement for
the affirmative resolution procedure to apply to orders under
section 262. The Committee would like to make clear that this
requirement would not in any event have applied in respect of
an order relating to Guernsey because paragraph 50 of Schedule
2 to the 2003 Order already omitted this requirement from that
section as it applied to Guernsey.
1.6 The Committee accordingly reports this Order
for doubtful vires, acknowledged by the Department.
2 S.I. 2012/2885 and
2886: Reported for defective drafting
Council Tax Reduction Schemes (Prescribed Requirements)
(England) Regulations 2012 (S.I. 2012/2885)
Council Tax Reduction Schemes (Default Scheme)
(England) Regulations 2012 (S.I. 2012/2886)
2.1 The Committee draws the special attention
of both Houses to these instruments on the ground that they are
defectively drafted in several respects.
2.2 S.I. 2012/2885 (referred to in this report as
"the Regulations") prescribes requirements which must
or must not be included in a council tax reduction scheme under
section 13A of the Local Government Finance Act 1982. S.I. 2012/2886
sets out in the Schedule to the Regulations a scheme (referred
to in this report as "the Scheme") which will apply
by default where a billing authority does not make a scheme of
its own by 31 January 2013.
2.3 Paragraph 2(1) of the Scheme includes a definition
of "applicable amount". Sub-paragraph (b) of the definition
refers to the amount calculated in accordance with (i) paragraph
26 and Schedule 3; or (ii) paragraph 28, as the case may be. In
a memorandum printed at Appendix 2, the Department for Communities
and Local Government acknowledges that this sub-paragraph should
have included as a further option the amount calculated in accordance
with paragraph 27 and Schedule 3, and undertakes to amend the
Scheme. The Committee accordingly reports paragraph 2(1) of
the Scheme for defective drafting, acknowledged by the Department.
2.4 Regulation 3 of the Regulations, and paragraph
3(2) of the Scheme, define what is meant by a "pensioner"
and a "person who is not a pensioner". The Department
confirms that the two definitions were intended to be mutually
exclusive and acknowledges that in each case the word "and"
should have been used in one place instead of "or" to
achieve that intended effect. The Department undertakes to make
the necessary amendments. The Committee accordingly reports
regulation 3 of the Regulations and paragraph 3(2) of the Scheme
for defective drafting, acknowledged by the Department.
2.5 Paragraph 6(2) of Schedule 1 to the Regulations,
and paragraphs 25(2) and 26(2) of the Scheme, each define "additional
spouse" (in the context of a polygamous marriage) as "a
spouse by the party to the marriage who is additional to the party
to the marriage". The Committee found this definition impossible
to understand and asked the Department to explain it. The Department
explains what it is intended to mean and opines that the intended
meaning is clear, but it does not address the fact that the words
used do not themselves make anything clear. The Department states
that the definition has been taken from a precedent, regulation
12 of the Council Tax Benefit (Persons who have attained the qualifying
age for state pension credit) Regulations 2006 (S.I. 2006/216),
and it is not aware of the definition having caused any difficulty.
The Department further states that it did not wish to depart
from the wording of a provision which is familiar to those working
in the area of council tax.
2.6 The Committee is surprised at the Department's
observations. The original text of regulation 12 of S.I. 2006/216
provides a definition (in paragraph (6)) which reads, so far as
is relevant, that ""additional spouse" means a
spouse of either party to the marriage who is additional to the
other party to the marriage" - a definition that appears
to the Committee to be conceptually and linguistically clear.
In the current version that appears on the Lexis website regulation
12(6) is indicated as revoked and regulation 12(5) is indicated
as using the definition that the Department seeks to justify,
but the Committee's check of the provisions that the website editors
use to support their conclusion has not led to the conclusion
that any such changes have been made. The Committee therefore
wonders whether the Department and others working in the area
of council tax may, through over-reliance on a commercial source,
be operating on a false assumption as to what the current text
of the precedent is. Even if the Committee's check turns out to
be inaccurate, the expression "a spouse by the party to the
marriage" is meaningless on its own, let alone combined with
"who is additional to the party to the marriage". The
Committee accordingly reports paragraph 6(2) of Schedule 1 to
the Regulations, and paragraphs 25(2) and 26(2) of the Scheme,
for defective drafting.
2.7 Paragraph 73(1) of the Scheme defines "academic
year" as the period of twelve months beginning on 1 January,
1 April, 1 July or 1 September according to whether the course
in question begins in the winter, the spring, the summer or the
autumn respectively. The Committee asked the Department to identify
the start and end dates of the winter, the spring, the summer
and the autumn.
2.8 The Department explains that it intends winter
to mean the period December to February, spring the period March
to May, summer the period June to August and autumn the period
September to November. It asserts that the intention is achieved
because those are the dictionary definitions of the seasons. The
Committee does not know what dictionaries are available to the
Department, but it notes the following definitions of winter:
- The fourth and coldest season of the year, between autumn
and spring; in the northern hemisphere frequently regarded as
comprising December, January and February, or (astronomy)
reckoned from the winter solstice to the vernal equinox. (Shorter
Oxford English Dictionary, 5th Edition)
- The coldest season of the year, between autumn and spring
[with similar wording in relation to astronomy]. (Collins English
Dictionary, 6th Edition)
- The cold season of the year, being approximately from
December to February in the northern hemisphere; in the astronomical
year, the period of time between the winter solstice and the vernal
equinox. (The Chambers Dictionary, 12th Edition)
2.9 The other seasons are defined in similarly imprecise
terms.
2.10 The Committee accordingly does not accept the
Department's assertion, considers that the definition of "academic
year" lacks the necessary precision, and accordingly reports
paragraph 73(1) of the Scheme for defective drafting.
2.11 Finally, the Department acknowledges that paragraph
9(1) of Schedule 8 to the Regulations, and paragraph 115(1) of
the Scheme should each have been expressed as being subject to
sub-paragraphs (3) and (9) and not (3), (6) and (7). The Committee
accordingly reports paragraph 9(1) of Schedule 8 to the Regulations,
and paragraph 115(1) of the Scheme for defective drafting, acknowledged
by the Department.
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