Instruments reported
At its meeting on 4 July 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 10 of those considered. The Instruments and the grounds
for reporting them are given below. The relevant Departmental
memoranda are published as the appendices to this report.
1 S.I. 2012/936: Reported
for defective drafting
Postal Services (Universal Postal Service)
Order 2012 (S.I. 2012/936)
1.1 The Committee draws the special attention
of both Houses to this Order on the ground that it is defectively
drafted in three respects.
1.2 The Order is made by the Office of Communications
("OFCOM") and specifies the services that are to constitute
the universal postal service and the standards with which those
services are to comply.
1.3 Article 2 defines various terms for the purposes
of the Order. One of the definitions is of the term "Act"
which is a term that is not used elsewhere in the Order. Another
is a definition of the phrase "eligible items" which
is used only in paragraphs 3 and 4 of Schedule 2 to the Order
where it is defined (by paragraph 2 of that Schedule) for the
purposes of those paragraphs. The Committee therefore asked OFCOM
to explain why those definitions were included in article 2. In
a memorandum printed at Appendix 1, OFCOM acknowledges that the
inclusion of the definitions of "Act" and "eligible
items" in article 2 is unnecessary and undertakes to remove
both of the definitions at the earliest available opportunity.
The Committee accordingly reports article 2 for defective drafting
in both those respects, acknowledged by the Department.
1.4 Article 3(1) provides that "routing times"
are to be arrived at in accordance with a specified formula. A
"routing time" is the target maximum time for conveying
postal packets from the access point to the delivery point in
the provision of a postal service. The specified formula is D
+ n, where "D" is the deemed date of collection and
"n" is the number of working days between D and the
delivery date (a number that varies according to the service provided).
Article 2 defines "working day" as any day which is
not a Sunday or a public holiday. The notion of "public holiday"
is not defined. The Committee was concerned about cases in which
items might be conveyed between two different parts of the United
Kingdom over a period that included a day that is a public holiday
in one of those parts but not the other, and therefore asked OFCOM
to explain the intended policy and how effect had been given to
that intention. In its memorandum OFCOM states that the policy
intention is that a day that is a public holiday in any part of
the United Kingdom is to be regarded as a public holiday for the
purposes of article 3(1) (whether or not it is a public holiday
in any other part). It considers that a court "may"
interpret the provisions in line with this policy intention but
accepts that the policy could have been delivered more clearly
by different drafting and undertakes to put the matter right by
amendment. The Committee accordingly reports article 3 for
defective drafting, acknowledged by the Department.
2 S.I. 2012/937: Reported
for failure to comply with proper legislative practice
Early Years Foundation Stage (Learning and
Development Requirements) (Amendment) Order 2012 (S.I. 2012/937)
2.1 The Committee draws the special attention
of both Houses to this Order on the grounds that it fails to comply
with proper legislative practice in one respect.
2.2 This Order amends the Early Years Foundation
Stage (Learning and Development Requirements) Order 2007 which
specifies the learning and development requirements that early
years providers must secure in providing early years provision.
The 2007 Order also gives legal effect to the learning and development
requirements in the Statutory Framework for the Early Years Foundation
Stage ("the Document"). Article 3 of the Order replaces
the reference to the previous version of the Document with a reference
to the new version, and it states that the new version is to be
found "on the website of the Department for Education".
No further information on how to obtain access to the Document
is provided.
2.3 The Committee asked the Department for Education
how a reader without access to the internet would be able to obtain
access to the document referred to in the amendment made by article
3, and how that reader was expected to discover how to do so.
In a memorandum printed at Appendix 2, the Department states
that it "considers that all readers will have access to the
internet either directly at work or at home or indirectly through
a library or other publicly available internet access facility",
and observes that "Government Departments are increasingly
making documents available on the internet rather than supplying
hard copies". The Department goes on to explain the variety
of ways by which it has undertaken to publicise the new arrangements,
and adds that "many of the voluntary community sector organisations
such as the National Childminding Association are printing packs
which include the document and supporting materials at a fee to
cover costs only". Finally the Department notes that readers
could "contact their childcare providers, local authorities
or the Department for more information".
2.4 The Committee accepts that the Department has
gone to considerable trouble to make appropriate arrangements
to publicise the new document. As a matter of legislative practice,
however, the Committee believes that it is important that any
reader of legislation that refers to another document should be
offered a method of acquiring access to that document that does
not assume access to the internet. Not every household has access
to the internet (in August 2011 the Office for National Statistics
concluded that 5.7 million households did not), nor does every
household have easy access to libraries that do, and legislation
should be careful not to appear to exclude those without internet
access. Given the amount of help that the Department's memorandum
explains is to be available, it would have been a relatively simple
matter to include in a footnote or in the Explanatory Note an
address at which the document could be inspected or from which
a copy could be obtained. Accordingly, the Committee reports
article 3 for failure to comply with proper legislative practice.
3 S.I. 2012/938: Reported
for failure to comply with proper legislative practice and defective
drafting
Early Years Foundation Stage (Welfare Requirements)
Regulations 2012 (S.I. 2012/938)
3.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they fail
to comply with proper legislative practice in one respect and
are defectively drafted in another respect.
3.2 The Regulations, which are made under the Childcare
Act 2006 ("the 2006 Act"), make provision about the
welfare requirements imposed on early years providers.
3.3 Regulation 2 contains definitions for the purposes
of the Regulations. It defines "the Document" as "the
Document entitled "Statutory Framework for the Early Years
Foundation Stage" published by the Secretary of State on
27th March 2012 on the website of the Department for Education".
The Committee considered that this definition raised issues identical
to those raised by the amendment made by article 3 of S.I. 2012/937
and accordingly asked the Department for Education an equivalent
question to that asked by the Committee in relation to that instrument.
In a memorandum printed at Appendix 3, the Department responded
in the same terms as those of its response to that question. The
Committee accordingly reports regulation 2 on the ground that
it fails to comply with proper legislative practice.
3.4 Subsection (2)(b) of section 40 of the 2006 Act
imposes a duty on early years providers to whom that section applies
to comply with the welfare requirements - a term falling to be
set out in regulations (sections 39 and 43). Paragraph (1) of
regulation 3 provides that regulations 7 to 9 specify welfare
requirements: those regulations make provision for a prohibition
on the use of corporal punishment and require the provision of
information about certain events and disqualification. Paragraph
(2) of regulation 3 in effect specifies the provisions of Section
3 of the Document as the welfare requirements and paragraph (3)
of regulation 3 provides that providers to whom section 40 applies
must have regard to Section 3 in securing that the early years
provision they provide complies with the welfare requirements.
3.5 The Committee was not sure exactly how the provisions
of section 40(2)(b) and of each paragraph of regulation 3 fitted
together and asked the Department for Education to identify in
relation to each of the paragraphs of regulation 3 the requirements
(if any) that they impose that were not imposed by another of
those paragraphs or by section 40.
3.6 In a thorough memorandum printed at Appendix
3, the Department explains that section 40 imposes the duty to
comply with the welfare requirements. It further explains that
regulation 3(1) specifies three welfare requirements which it
was considered should be stated explicitly on the face of the
Regulations (because they are important and because two of them
attract criminal sanctions) while regulation 3(2) specifies by
reference to Section 3 of the Document all of the welfare requirements
(including those three), which the memorandum lists. The Department
justifies the overlap between paragraphs (1) and (2) of regulation
3 by stating that it is aware that most early years providers
refer only to the Document. Finally, it explains that regulation
3(3) requires providers to have regard to those provisions in
Section 3 of the Document that are not themselves welfare requirements
but are matters to which early years providers are to have regard
(see section 44 of the 2006 Act) in securing that their provision
complies with the welfare requirements: the memorandum also lists
those matters.
3.7 The Committee, while appreciating the detail
in the memorandum, considers that the drafting overvalues presentation
and undervalues the need for legislation to set out requirements
precisely without overlaps. Section 3 of the Document, which clearly
needs to be considered as an essential part of the legislation,
does not in terms separate the matters covered by regulation 3(2)
from those covered by regulation 3(3), though it could have done
so. The Committee considers it desirable for a Department relying
on an external document as a legislative building block to ensure
that the external document is sufficiently precise for its purpose.
Failing that, the Committee expects the Regulations to use the
text to compensate for any imprecision, which it could have done
in this case by express clarity on which elements of Section 3
were covered by regulation 3(2) and which were covered by regulation
3(3). As regulation 3 is drafted, however, the division between
the two is not clear. In addition, regulation 3(1) appears wholly
subsumed by regulation 3(2). The Committee accordingly reports
regulation 3 on the ground that it is defectively drafted.
4 S.I. 2012/947: Reported
for defective drafting
Quality Standards for Green Bananas (England
and Wales) Regulations 2012 (S.I. 2012/947)
4.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
4.2 The Regulations provide for the enforcement in
England and Wales of EU marketing standards for bananas at the
unripe green stage. Regulation 4(f), as read with regulation
5, makes it a summary offence for a person to fail to cooperate
with officers responsible for enforcement, "without reasonable
excuse, proof of which lies on that person". The Committee
asked the Department for Environment, Food and Rural Affairs what
the words "proof of which lies on that person" add to
the effect of section 101 of the Magistrates' Courts Act 1980,
which applies to summary offences and requires defendants to prove
any excuse on which they rely. In a memorandum printed at Appendix
4, the Department accepts that the words add nothing to section
101, thanks the Committee for identifying the duplication and
undertakes to amend the provision at the next appropriate opportunity.
The Committee accordingly reports regulation 4(f) for defective
drafting, acknowledged by the Department.
5 S.I. 2012/953: Reported
for breach of the 21 day rule and S.I. 2012/954: Reported for
breach of the 21 day rule and defective drafting
Firefighters' Pension Scheme (Amendment) (England)
Order 2012 (S.I. 2012/953)
Firefighters' Pension Scheme (England) (Amendment) Order 2012
(S.I. 2012/954)
5.1 The Committee draws the special attention
of both Houses to these Orders on the ground of failure to observe
the 21-day rule and, in the case of S.I. 2012/954, on the ground
that it is defectively drafted in one respect.
5.2 These Orders make similar amendments of two schemes
for firefighters' pensions. The first amends the Firefighters'
Pension Scheme (set out in Schedule 2 to the Firemen's Pension
Scheme Order 1992) as it has effect in England; the second amends
the New Firefighters' Pension Scheme (England) set out in Schedule
1 to the Firefighters' Pension Scheme (England) Order 2006. In
each case, the purpose of the amendment is to provide a different
rate for pension contributions payable by members of the scheme,
increasing according to the amount of pensionable pay which the
member receives.
5.3 Both Orders were laid before Parliament on 29
March 2012 and came into force on 1 April 2012. The Explanatory
Memorandum covering both Orders drew the attention of the Committee
to the breach without adding an explanation. The Committee accordingly
asked the Department for Communities and Local Government to explain
why the 21-day rule had not been complied with. In a single memorandum
dealing with both Orders and printed at Appendix 5, the Department
repeats its apology and explains that "the necessary consideration
of the statutory consultation responses and the considerations
following the recommendation to change the rate of increase of
the contribution rate were not able to be completed in time to
observe the 21 day rule"; the Department adds that it did
consider postponing commencement until after 1 April but concluded
that "to do so would either diminish the yield [to the schemes]
further, or would require higher contribution rates than are necessary
to recoup the lost yield from missed months". The Committee
accepts that it would have been inconvenient to postpone commencement
but observes that the problem arose because insufficient time
was allowed for consideration within Government of the responses
to consultation. The 21-day rule exists, in part, as one component
of the machinery for protecting citizens from sudden changes in
the law, and it should not in principle be set aside because the
Government leaves insufficient time to consider its policy in
the light of representations received. The Committee accordingly
reports both Orders for failure to observe the 21-day rule.
5.4 Article 3 of S.I. 2012/954 makes the transition
from fixed to variable contributions by removing the words "at
the rate of 8.5% of his pensionable pay for the time being"
and substituting "at the rate of his pensionable pay for
the time being, specified in the Table in Annex A1". Clearly
the literal meaning of this phrase (that the whole of "his
pensionable pay" is to be paid into the pension scheme) does
not match what must be intended, as is clear from the Table which
sets out percentages of pay that are to be contributed to the
scheme. The Committee accordingly asked the Department to confirm
that there are words missing from article 3. In its memorandum
the Department confirms that the substituted words could usefully
have included a reference to "percentage" and undertakes
to amend the provision at the earliest convenient opportunity.
The Committee accordingly reports article 3 of S.I. 2012/954
for defective drafting, acknowledged by the Department.
6 S.I. 2012/985: Reported
for requiring elucidation
M1 Motorway (Junctions 10 to 13) (Actively
Managed Hard Shoulder and Variable Speed Limits) Regulations 2012
(S.I. 2012/985)
6.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they require
elucidation in one respect.
6.2 The Regulations introduce variable speed limits
to the M1 Motorway from junctions 10 to 13 and on associated slip
roads. Regulation 4(2), which imposes the variable limit, replicates
the wording of regulation 3(2) of the M25 Motorway (Junctions
2 to 3) (Variable Speed Limits) Regulations 2012 (S.I. 2012/104),
which the Committee reported for defective drafting in its forty-third
Report of last Session, published on 14 March 2012. The Committee
asked the Department for Transport whether, and (if so) why, the
complexity of varying the S.I. 2012/104 wording to wording likely
to be acceptable to the Committee was a factor in the Department's
decision to follow the S.I. 2012/104 wording. In a memorandum
printed at Appendix 6, the Department confirms that it was mindful
of the risk that adopting a new form of words in response to the
Committee's concerns without careful consideration could replace
one problem with another, and that the Department "wanted
to consider the Committee's comments in depth, and to reach a
settled view itself of the current drafting, with a view to reaching
a decision and a way forward that would be legally robust".
The Committee accepts that in the circumstances this is a
proper way of proceeding, and accordingly reports the Regulations
as requiring the elucidation provided by the Department's memorandum.
7 S.I. 2012/1034: Reported
for defective drafting and failure to comply with proper legislative
practice
School Governance (Constitution) (England)
Regulations 2012 (S.I. 2012/1034)
7.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in three respects and fail to comply with
proper legislative practice in one respect.
7.2 The Regulations set out the arrangements for
the constitution of governing bodies of maintained schools (including
nursery schools) in England. Regulation 14 imposes some additional
requirements for foundation and voluntary schools, and paragraph
(6) provides that "in calculating the number of governors
required in order to comply with this regulation, the number is
to be rounded up or down to the nearest whole number." The
Committee asked the Department for Education to explain the circumstances
in which the rule in regulation 14(6) would be applied and how
it would work in those circumstances. In a memorandum printed
at Appendix 7, the Department states that regulation 14(6) is
redundant "since there will be no requirement to round the
number or governors up or down to the nearest whole number in
order to comply with the regulation", and undertakes to remove
it in due course. The Committee accordingly reports regulation
14(6) for defective drafting, acknowledged by the Department.
7.3 Paragraphs 10 and 11 of Schedule 1 set out lists
of persons who may be appointed for specified purposes; sub-paragraph
(2) of each paragraph appears intended to provide that the lists
are in order of preference, so that an appointment may not be
made in reliance on a later entry in the list if someone is available
to be appointed in reliance on an earlier entry. The two sub-paragraphs,
however, only prevent reliance on an entry in the list if someone
could be appointed under "the sub-paragraph which immediately
precedes" it. The Committee asked the Department whether
this was what was intended. In its memorandum the Department
admits that the drafting has not achieved the intention and undertakes
to amend it in due course. When it comes to amend, it will be
desirable for the Department to focus on accuracy not only in
structure but also in nomenclature, for in addition to unintended
effect the present text describes as sub-paragraphs divisions
that are in fact paragraphs (see Statutory Instrument Practice,
paragraph 1.5.7 and Table A). The Committee accordingly reports
paragraphs 10 and 11 of Schedule 1 for defective drafting, acknowledged
by the Department.
7.4 Paragraph 16 of Schedule 4 requires a person
who is a governor or prospective governor to inform the clerk
to the governing body if he or she is or becomes disqualified.
The Committee asked the Department what sanction or other method
of enforcement is available for this duty. In its memorandum
the Department states that no "method of enforcement is necessary
or practicable" in respect of the duty, but justifies it
on the grounds that "it is important to ensure that governors
remain under a continuing obligation to disclose any disqualification".
The Committee believes that it is a fundamental principle of
legislation that a duty must be capable of being enforced by some
means (which need not always be an express sanction). Legislation
is not the place for the expression of hopes or requests. Accordingly
the Committee reports paragraph 16 of Schedule 4 for failure to
comply with proper legislative practice.
8 S.I. 2012/1035: Reported
for defective drafting
School Governance (Federations) (England) Regulations
2012 (S.I. 2012/1035)
8.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in two connected respects.
8.2 The Regulations make provision about federations
of maintained schools in England.
8.3 Paragraphs 9 and 10 of Schedule 2 set out lists
of persons who may be appointed for specified purposes; sub-paragraph
(2) of each paragraph appears intended to provide that the lists
are in order of preference, so that an appointment may not be
made in reliance on a later entry in the list if someone is available
to be appointed in reliance on an earlier entry. The two sub-paragraphs,
however, only prevent reliance on an entry in the list if someone
could be appointed under "the sub-paragraph which immediately
precedes" it. The Committee asked the Department for Education
whether this was what was intended. In a memorandum printed at
Appendix 8, the Department admits that the drafting has not achieved
the intention and undertakes to amend it in due course. When it
comes to amend, it will be desirable for the Department to focus
on accuracy not only in structure but also in nomenclature, for
in addition to unintended effect the present text describes as
sub-paragraphs divisions that are in fact paragraphs (see Statutory
Instrument Practice, paragraph 1.5.7 and Table A). The
Committee accordingly reports paragraphs 9 and 10 of Schedule
2 for defective drafting, acknowledged by the Department.
9 S.I. 2012/1102: Reported
for defective drafting
Textile Products (Labelling and Fibre Composition)
Regulations 2012 (S.I. 2012/1102)
9.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
9.2 The Regulations, which came into force on 8 May
2012, set out the enforcement provisions for Regulation (EU) No.
1007/2011 of the European Parliament and of the Council of 27
September 2011 on textile fibres and related labelling and marking
of the fibre composition of textile products (the "EU Regulation").
The EU Regulation replaced existing Directives in this area and
the Regulations revoke regulations which had implemented those
Directives ("the revoked regulations").
9.3 Regulation 5 creates an offence of making a product
available on the market in the United Kingdom in breach of the
EU Regulation. Regulation 2(2) provides that that offence is not
committed in respect of a product which was placed on the market
in the United Kingdom before 8 May 2012, and continues to be made
available on that market until 9 November 2014, if it complies
with the revoked regulations.
9.4 The Committee wondered why no similar protection
was given to those who placed products which comply with the revoked
regulations on the market before 8 May 2012 but ceased to make
them available at the end of a continuous period ending before
9 November 2014. The Committee therefore asked the Department
for Business, Innovation and Skills to provide an explanation.
9.5 In a memorandum printed at Appendix 9, the Department
acknowledges that regulation 2(2) can literally be read as not
affording protection from prosecution in the circumstances identified
by the Committee. But the Department goes on to say that, as that
would be absurd, it considers that a court would construe regulation
2(2) as giving protection in those circumstances, and the memorandum
sets out a text showing how the Department expects the provision
to be construed. The Committee considers that placing reliance
on such an expectation is no substitute for clear and unambiguous
drafting. Furthermore the confidence of the Department as to how
the provision would be read by a court appears to be misplaced,
for its suggested substitute text appears not to require a continuous
period of marketing, and that leaves the Committee in doubt as
to whether the overall structure used is satisfactory. It is therefore
disappointed that the Department does not intend to amend regulation
2(2). Neither the Department's undertaking to produce guidance
as to the intended meaning of regulation 2(2) nor its belief that
the circumstances identified by the Committee are likely to be
unusual justify leaving regulation 2(2) saying something different
from what it is intended to mean. The Committee accordingly
reports regulation 2(2) for defective drafting, acknowledged by
the Department.
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