Instruments
reported
At its meeting on 6 February 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 six 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. 2012/3064: Reported
for failure to comply with Statutory Instrument Practice
Al-Qaida (United Nations Measures)
(Overseas Territories) (Amendment) Order 2012 (S.I. 2012/3064)
1.1 The Committee draws the special
attention of both Houses to this Order on the ground that it fails
to comply with Statutory Instrument Practice.
1.2 The sole function of this Order
is to correct errors in S.I. 2012/1757. In a memorandum printed
at Appendix 1, the Foreign and Commonwealth Office acknowledges
that this Order should have been made available free of charge
to all known recipients of the earlier instrument, and should
have borne an italic headnote to that effect, in accordance with
paragraphs 3.4.11 and 3.4.14 of Statutory Instrument Practice.
The memorandum explains the arrangements being made to rectify
the position. The Committee accordingly reports this Order
for a failure to comply with Statutory Instrument Practice,
acknowledged by the Department.
2 S.I. 2012/3065, 3066,
3067 and 3068: Reported for failure to comply with proper drafting
practice
Somalia (Sanctions) (Overseas
Territories) Order 2012 (S.I. 2012/3065)
Democratic People's Republic of
Korea (Sanctions) (Overseas Territories) Order 2012 (S.I. 2012/3066)
Côte d'Ivoire (Sanctions)
(Overseas Territories) Order 2012 (S.I. 2012/3067)
Guinea-Bissau (Sanctions) (Overseas
Territories) Order 2012 (S.I. 2012/3068)
2.1 The Committee draws the special
attention of both Houses to these Orders on the ground that in
one respect they fail to comply with proper drafting practice.
2.2 Articles 4, 7, 8 and 9 of S.I. 2012/3065
each provide that certain activities constitute an offence. Each
article is expressed to be subject to article 10. Article 10(2)
provides that a person is not guilty of an offence under article
4 or 7 to 9 in respect of anything done by the person under the
authority of a licence granted by the Governor. Article 11 provides
that a person is not guilty of an offence under article 4 or 7
to 9 in respect of anything done by that person (a) outside the
territory and (b) under the authority of a licence granted in
accordance with any provisions of the law in force in the place
where it is done corresponding to the provisions of this Order.
The Committee asked the Foreign and Commonwealth Office why articles
4 and 7 to 9 are not expressed to be subject to article 11 as
well as article 10.
2.3 In a memorandum printed at Appendix
2, the Department explains that the Order follows the model of
a similar order which was made in November last year and had been
drafted with the assistance of Parliamentary Counsel. It explains
that licences issued under article 10 are likely to be the principal
focus of interest for users of the instrument which is why article
10 was mentioned by cross-reference in the earlier provisions,
and that it was not thought necessary to draw attention in the
same way to article 11. It also points out that article 11 has
effect notwithstanding the absence of a cross-reference to it
in the earlier articles.
2.4 The Committee agrees that article
11 has effect with or without a reference to it in article 4,
7, 8 or 9, and observes that this applies equally to article 10.
As the Department acknowledges, drawing attention to both licensing
provisions nonetheless has the merit of consistency, and it is
content to follow that approach in future cases. Internal consistency
is an inherent characteristic of proper legislative drafting.
In this case each of the four articles should have referred to
both articles 10 and 11 though it would also have been acceptable
had they referred to neither. Identical issues arise in respect
of the equivalent provisions of S.I.s 2012/3066, 2012/3067 and
2012/3068.
2.5 The Committee accordingly reports
these Order for a failure to comply with proper drafting practice,
acknowledged in principle by the Department.
3 S.I. 2012/3152: Reported
for defective drafting
Merchant Shipping (Carriage of
Passengers by Sea) Regulations 2012 (S.I. 2012/3152)
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 These Regulations, which support
the operation of Regulation (EC) 392/2009 of the European Parliament
and of the Council on the liability of carriers or passengers
by sea in the event of accidents, require passenger ships entering
or leaving a port in the United Kingdom to have insurance in force,
and a certificate complying with the provisions of regulation
6.
3.3 Paragraph (1) of regulation 6 sets
out the form of the certificate that is required, and paragraph
(2) states that the certificate must be -
(a) if the ship is a United Kingdom
ship, a certificate issued by the Secretary of State;
(b) if the ship is registered in
a State Party [a country in respect of which the Athens Convention
is in force] (other than the United Kingdom), a certificate issued
by or under the authority of the government of that State Party;
(c) if the ship is registered in
a country which is not a State Party, a certificate issued by
the Secretary of State or under the authority of any State Party;
(d) if the ship is registered in
a country which is not a State Party but which is a Member State,
a certificate issued by, or under the authority of, that Member
State.
3.4 There is an apparent conflict between
sub-paragraphs (c) and (d) in the case of a ship which is registered
in a Member State which is not a State Party. The former requires
the certificate to have been issued either by the Secretary of
State or under the authority of any State Party, but the latter
requires the certificate to have been issued by or under the authority
of the Member State. The Committee asked the Department for Transport
to explain this apparent conflict.
3.5 In a memorandum printed at Appendix
3, the Department asserts that there is no conflict. The Committee
understands it to state that sub-paragraph (c) would apply to
ships registered in Member States which have not yet ratified
the Athens Convention, and that sub-paragraph (d) also permits
certificates issued by such a Member State to be accepted. If
this understanding is correct, the intention is that a certificate
in respect of such a ship will satisfy the requirements of regulation
6 if it is issued by, or under the authority of the Member State
in question, by the Secretary of State, or under the authority
of any State Party.
3.6 As drafted, regulation 6(2) does
not achieve that effect. Sub-paragraph (c), which applies in the
case of a ship which is registered in a country which is not a
State Party (whether or not it is a Member State), requires
the certificate to be issued by the Secretary of State or under
the authority of any State Party. Sub-paragraph (d) (which is
more specific than sub-paragraph (c) but does not purport to override
it) requires the certificate to be issued by or under the
authority of the Member State. The natural meaning of this is
that in such cases two certificates would be required. That is
clearly not the intention. It would not have been difficult to
have drafted regulation 6(2) to make the position clear.
3.7 The Committee accordingly reports
regulation 6(2) for defective drafting.
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