Twenty-sixth Report of Session 2010-12

HL Paper 176 HC 354-xxvi

Published on 12 July 2011 by authority of the House of Lords

and the House of Commons London: The Stationery Office Limited

£0.00

House of Lords House of Commons

Joint Committee on Statutory Instruments

Twenty-sixth Report of Session 2010-12 Drawing special attention to:

Tractor etc (EC Type-Approval) (Amendment) Regulations 2011 (S.I. 2011/1279) Occupational Pension Schemes (Contracting-out) Amendment Regulations 2011 (S.I. 2011/1294) Investment Bank Special Administration (England and Wales) Rules 2011 (S.I. 2011/1301) Armed Forces Pension Scheme 2005 (Amendment) Order 2011 (S.I. 2011/1364) Immigration Services Commissioner (Application Fee) Order 2011 (S.I. 2011/1366) Ordered by the House of Lords to be printed 6 July 2011 Ordered by the House of Commons to be printed 6 July 2011

Joint Committee on Statutory Instruments

Current membership

House of Lords Baroness Berridge (Conservative) Lord Clinton-Davis (Labour) Baroness Eccles of Moulton (Conservative) Lord Kennedy (Labour) Earl of Mar and Kellie (Liberal Democrat) Lord Rees-Mogg (Crossbench) Baroness Stern (Crossbench)

House of Commons Mr George Mudie MP (Labour, Leeds East) (Chairman) Mr Robert Buckland MP (Conservative, South Swindon) Michael Ellis MP (Conservative, Northampton North) John Hemming MP (Liberal Democrat, Birmingham, Yardley) Mr Ian Liddell-Grainger MP (Conservative, Bridgwater and West Somerset) Toby Perkins MP (Labour, Chesterfield)

Powers The full constitution and powers of the Committee are set out in House of Commons Standing Order No. 151 and House of Lords Standing Order No. 74, available on the Internet via Hwww.parliament.uk/jcsiH. Remit The Joint Committee on Statutory Instruments (JCSI) is appointed to consider statutory instruments made in exercise of powers granted by Act of Parliament. Instruments not laid before Parliament are included within the Committee's remit; but local instruments and instruments made by devolved administrations are not considered by JCSI unless they are required to be laid before Parliament. The role of the JCSI, whose membership is drawn from both Houses of Parliament, is to assess the technical qualities of each instrument that falls within its remit and to decide whether to draw the special attention of each House to any instrument on one or more of the following grounds:

i. that it imposes, or sets the amount of, a charge on public revenue or that it requires payment for a licence, consent or service to be made to the Exchequer, a government department or a public or local authority, or sets the amount of the payment;

ii. that its parent legislation says that it cannot be challenged in the courts; iii. that it appears to have retrospective effect without the express authority of the parent

legislation; iv. that there appears to have been unjustifiable delay in publishing it or laying it before

Parliament; v. that there appears to have been unjustifiable delay in sending a notification under the proviso

to section 4(1) of the Statutory Instruments Act 1946, where the instrument has come into force before it has been laid;

vi. that there appears to be doubt about whether there is power to make it or that it appears to make an unusual or unexpected use of the power to make;

vii. that its form or meaning needs to be explained; viii. that its drafting appears to be defective; ix. any other ground which does not go to its merits or the policy behind it.

The Committee usually meets weekly when Parliament is sitting. Publications The reports of the Committee are published by The Stationery Office by Order of both Houses. All publications of the Committee are on the Internet at Hwww.parliament.uk/ Hjcsi. Committee staff The current staff of the Committee are John Whatley (Commons Clerk), Kath Kavanagh (Lords Clerk) and Jennifer Steele (Committee Assistant). Advisory Counsel: Peter Davis, Peter Brooksbank, Philip Davies and Daniel Greenberg (Commons); Allan Roberts, Nicholas Beach and Peter Milledge (Lords). Contacts All correspondence should be addressed to the Clerk of the Joint Committee on Statutory Instruments, 7 Millbank, London SW1P 3JA. The telephone number for general inquiries is: 020 7219 2026; the Committee's email address is: [email protected].

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Contents

Report Page

Instruments reported 2 1 S.I. 2011/1279: Reported for defective drafting 2 2 S.I. 2011/1294: Reported for defective drafting 2 3 S.I. 2011/1301: Reported for defective drafting 3 4 S.I. 2011/1364: Reported for defective drafting 3 5 S.I. 2011/1366: Reported for defective drafting 4

Instruments not reported 6

Annex 6

Appendix 1 8 S.I. 2011/1279: memorandum from the Department for Transport 8

Appendix 2 9 S.I. 2011/1294: memorandum from the Department for Work and Pensions 9

Appendix 3 9 S.I. 2011/1301: memorandum from HM Treasury 9

Appendix 4 10 S.I. 2011/1364: memorandum from the Ministry of Defence 10

Appendix 5 12 S.I. 2011/1366: memorandum from the Home Office 12

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Instruments reported

At its meeting on 6 July 2010 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 five 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. 2011/1279: Reported for defective drafting

Tractor etc (EC Type-Approval) (Amendment) Regulations 2011 (S.I. 2011/1279)

1.1 The Committee reports these Regulations for defective drafting in one respect.

1.2 Regulation 4 inserts a new regulation 15 in the Tractor etc (EC Type-Approval) Regulations 2005. Paragraph (1) of the new regulation 15 requires the Secretary of State to carry out a review of those Regulations before the end of each review period, to set out the conclusions of the review in a report, and to publish the report. Paragraph (5) provides that, if a report under the regulation is laid before Parliament before the last day of the review period to which it relates, the following review period is to begin with the day on which that report is laid. The new regulation 15 makes no other references to the laying of a report.

1.3 In a memorandum printed at Appendix 1, the Department for Transport acknowledges that the reference to the report being laid should have been a reference to the report being published, and states that it will rectify the error at the earliest convenient opportunity. The Committee accordingly reports regulation 4 for defective drafting, acknowledged by the Department.


Occupational Pension Schemes (Contracting-out) Amendment Regulations 2011 (S.I. 2011/1294)

2.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two related respects.

2.2 Regulation 2(3) amends the Occupational Pension Schemes (Contracting-out) Regulations 1996 by inserting a new Schedule 3. Paragraph 4 of the Schedule requires the actuary, on certifying a scheme as specified, to “inform the scheme” in relation to availability of guidance and to inform the employer that it should provide a copy of the completed certificate “to the scheme”.

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2.3 In a memorandum printed at Appendix 2, the Department for Work and Pensions agrees that the requirement to inform, and provide a copy to, “the scheme” is insufficiently precise, as a pension scheme does not itself have legal personality. The phrase “the trustees or managers of the scheme” should have been used instead. The Department undertakes to correct the error at a convenient moment. The Committee accordingly reports paragraph 4 of the new Schedule 3 for defective drafting, acknowledged by the Department.


Investment Bank Special Administration (England and Wales) Rules 2011 (S.I. 2011/1301)

3.1 The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted in five related respects.

3.2 In a memorandum printed at Appendix 3, HM Treasury acknowledges that five cross-references in these rules are incorrect, and states that it intends to issue a correction slip to correct all of them. The memorandum includes no explanation of the appropriateness of use of a correction slip for these instances.

3.3 Even so, the Committee accepts that, in the case of the three references in rule 4(1) and the reference in rule 137(1), the test for the acceptability of the use of a correction slip is satisfied – the error is small in scale and is obviously an error, and it is equally obvious what the correct text should be. However, it does not consider that the error in rule 103 satisfies the test. The Department states that the reference to the information required by rule 308 should be to the information required by rule 313. The latter applies only to information which is required to be sent to the registrar of companies, but there is nothing in rule 103 to limit its application to information so provided. The Committee therefore considers that an amending instrument should be made to rectify this error and that it is matter of choice for the Department whether to rectify the other errors in such an instrument or by a correction slip.

3.4 The Committee accordingly reports these Rules for defective drafting, acknowledged by the Department.


Armed Forces Pension Scheme 2005 (Amendment) Order 2011 (S.I. 2011/1364)

4.1 The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in two related respects.

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4.2 Article 2(4) amends rule D.2 of the rules set out in Schedule 1 to the Armed Forces Pension Scheme Order 2005. Sub-paragraph (a) inserts the words “or, in the case of a member who is within paragraph (7) of this rule, the member attains pension age” in rule D.2(1); sub-paragraph (b) inserts the words “or, in the case of a member who is within paragraph (7) of this rule, attaining pension age” in rule D.2(2); and sub-paragraph (c) inserts a new rule D.2(7). Paragraphs (1), (2) and (7) of the rule D.2 as amended are helpfully set out in the memorandum from the Ministry of Defence printed at Appendix 4.

4.3 The effect of the amendments to rule D.2(1) and (2) is that a member who is within paragraph (7) of that rule and attains pension age is entitled to benefits, but the first condition for a member to be within paragraph (7) includes the requirement that the member has not yet attained the pension age. It is clearly not possible for a person both to fall within paragraph (7) and to attain pension age.

4.4 In its memorandum, the Department explains the intended effect of the amendments, and suggests that, “on any purposive construction”, the intention is met by the amendments. It states that it will amend the provision “if it is demonstrated that the provision is being misinterpreted in its application” but (subject to that) there is no indication of intention to amend the provision even next time the 2005 Order is amended.

4.5 The Committee accepts that a court, faced with two irreconcilable propositions as here, is bound to seek to interpret them sensibly and so is likely to adopt the Department's intended interpretation, but it is surprised by the implication that it is acceptable not only to use words which, read literally, fail to express the intended effect but also to leave them in the legislation indefinitely. Adjustment should be straightforward — for example, had paragraph (7) stated, so far as relevant, that a member was within that paragraph if under pension age at the time of ceasing to be in service, the rule would have been clear. The Committee accordingly reports article 2(4) for defective drafting.


Immigration Services Commissioner (Application Fee) Order 2011 (S.I. 2011/1366)

5.1 The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.

5.2 This Order specifies the fees to be paid to the Immigration Service Commissioner on making an application for registration or continued registration under Part V of the Immigration and Asylum Act 1999. Article 2 defines “registration” as meaning registration under section 84(2)(a) or (b) or (ba) of the 1999 Act. Although paragraph (a) of section 84(2) provides for registration, paragraphs (b) and (ba) do not.

5.3 In a memorandum printed at Appendix 5, the Home Office accepts that the Order includes “meaningless, and legally ineffective” reference to section 84(2)(b) and (ba), and undertakes to delete these references when the replacement to this Order is drafted (next year).

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5.4 The Committee accordingly reports article 2 for defective drafting, acknowledged by the Department.

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Instruments not reported

At its meeting on 6 July 2011 the Committee considered the Instruments set out in the Annex to this Report, none of which were required to be reported to both Houses.

Annex

Draft Instruments requiring affirmative approval

Draft S.I. Construction Contracts (England) Exclusion Order 2011

Draft S.I. Equality Act 2010 (Specific Duties) Regulations 2011

Draft S.I. First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011

Draft S.I. Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment) (England) Regulations 2011

Instruments subject to annulment

S.I. 2011/1405 Overseas Territories (Change of Name) (No. 3) Order 2011

S.I. 2011/1493 Justices of the Peace (Training and Development Committee) (Amendment) Rules 2011

S.I. 2011/1494 Youth Courts (Constitution of Committees and Right to Preside) (Amendment) Rules 2011

S.I. 2011/1495 Family Proceedings Courts (Constitution of Committees and Right to Preside) (Amendment) Rules 2011

S.I. 2011/1497 Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 2011

S.I. 2011/1499 Safety of Sports Grounds (Designation) (No. 2) Order 2011

S.I. 2011/1500 School Governance (Contracts) (England) (Revocation) Regulations 2011

S.I. 2011/1517 Plastic Kitchenware (Conditions on Imports from China) (England) Regulations 2011

Instruments not subject to Parliamentary proceedings laid before Parliament

S.I. 2011/1403 Overseas Territories (Change of Name) Order 2011




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Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. 2011/1505 Pollution Prevention and Control (Designation of Directives) (England and Wales) Order 2011

S.I. 2011/1507 Wireless Telegraphy (Mobile Spectrum Trading) Regulations 2011

S.I. 2011/1518 Nottingham Healthcare National Health Service Trust (Establishment) (Amendment) Order 2011

S.I. 2011/1519 Shropshire Community Health National Health Service Trust (Establishment) Order 2011

S.I. 2011/1520 Worcestershire Health and Care National Health Service Trust (Establishment) and the Worcestershire Mental Health Partnership National Health Service Trust (Dissolution) Order 2011

S.I. 2011/1521 Royal Hospital of St Bartholomew, the Royal London Hospital and London Chest Hospital National Health Service Trust (Establishment) Amendment Order 2011

S.I. 2011/1542 Distress for Rent (Amendment) Rules 2011

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Appendix 1

S.I. 2011/1279: memorandum from the Department for Transport

Tractor etc (EC Type-Approval) (Amendment) Regulations 2011 (S.I. 2011/1279)

By a letter dated 22nd June 2011 the Committee has asked for a memorandum on the following:

With reference to new paragraph (5) of regulation 15 of the 2005 Regulations (which contains two paragraphs numbered (3) and none numbered (2)), inserted by regulation 4, explain the reference to a report under that regulation being laid before Parliament (as opposed to being published), given that regulation 15 does not require a report to be so laid but requires it to be published.

The numbering of the paragraphs has already been corrected in the printed version. Although the draft of regulation 15(1) was changed so as to refer to the publication of the report rather than the laying of the report before Parliament (following a change of policy while the instrument was in preparation), the corresponding change to regulation 15(5) was overlooked. The Department will rectify this oversight at the earliest convenient opportunity. This may well present itself in the wake of a proposed EU Regulation on the type approval of tractors which was announced by the European Commission on 23rd July 2010 and which could lead to the substantial amendment or even revocation of the 2005 Regulations. The Department is grateful to the Committee for its observation and for pointing out the error, which the Department acknowledges. Department for Transport 28th June 2011

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Appendix 2

S.I. 2011/1294: memorandum from the Department for Work and Pensions

Occupational Pension Schemes (Contracting-out) Amendment Regulations 2011 (S.I. 2011/1294)

1. In its letter to the Department of 22nd June 2011, the Joint Committee requested a memorandum on the following point:

“In relation to paragraph 4 of new Schedule 3 to the 1996 Regulations

(added by the Schedule), what is intended by the phrases “inform ... the scheme” and “provide a copy ... to the scheme”, and how is the intention made clear?”

2. The Department’s response to the Committee’s point is outlined below. 3. The Department agrees that the requirement to inform, and provide a copy to, “the

scheme” in paragraph 4 of new Schedule 3 to the 1996 Regulations, as inserted by SI 2011/1294, is insufficiently precise, as a pension scheme does not itself have legal personality. The policy intention is to require the actuary to inform the trustees or managers of the scheme of the matters listed in sub-paragraphs (a) to (c) of paragraph 4, and the paragraph should therefore read “inform …the trustees or managers of the scheme” and “provide a copy … to the trustees or managers of the scheme”.

4. The Department thanks the Committee for its observations and undertakes to

correct this error at a convenient moment. Department for Work and Pensions 28th June 2011

Appendix 3

S.I. 2011/1301: memorandum from HM Treasury

Investment Bank Special Administration (England and Wales) Rules 2011 (S.I. 2011/1301)

1. By letter dated 22 June 2011, the Committee sought a memorandum on the following points:

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“The following cross-references appear to be incorrect: (a) the reference to rules 300, 301 and 304 in the definition of “standard contents” in rule 4(1); (b) the reference to rule 308 in rule 103; (c) the reference to rule 146 in rule 137(1). What should these references be?”

2. The Treasury agrees that these cross-references are incorrect. The reference in

paragraph (a) of the definition of “standard contents” in rule 4(1) of the Rules should be to rules 305 and 306 and the reference in paragraph (b) of that definition should be to rules 309 and 310. The reference in rule 103 should be to rule 313. The reference in rule 137(1) should be to rule 144. The Treasury apologises for these errors, and intends to issue a correction slip to correct all these cross-references. HM Treasury 27 June 2011

Appendix 4

S.I. 2011/1364: memorandum from the Ministry of Defence

Armed Forces Pension Scheme 2005 (Amendment) Order 2011 (S.I. 2011/1364)

1. The Joint Committee on Statutory Instruments requested a memorandum in response to the following point made in relation to the above mentioned instrument.

'In relation to article 2(4), explain how a member can be within paragraph (7) of rule D.2 of the 2005 Scheme rules when that person attains pension age and, consequently, how the amendments to paragraphs(1) and (2) of that rule are intended to operate.'

2. Rule D.2 as amended by the Order, in so far as it is relevant to the point made by the Committee, will provide as follows: D.2 Retirement before reaching pension age (1) A member who ceases to be in service by virtue of which he is eligible to be an active member of the Scheme before reaching pension age is entitled to a pension for life and a

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lump sum if the member attains pension benefit age or, in the case of a member who is within paragraph (7) of this rule, the member attains pension age and either— (a) he has at least two years' qualifying service, or (b) he is entitled to short service benefit by virtue of section 71 of the Pension Schemes Act 1993 (basic principles as to short service benefit) because of a transfer value payment having been accepted by the Scheme under Part F (transfers). (2) The pension and the lump sum become payable immediately on the member attaining pension benefit age or, in the case of a member who is within paragraph (7) of this rule, attaining pension age. (7) A member is within this paragraph if the member satisfies the following two conditions— (a) the first condition is that the member has attained at least 54 years and 274 days of age but not yet the pension age; and (b) the second condition is that the Scheme administrator is satisfied that the member intends either— (i) to enter civilian employment which would not be available if the member continued in service until pension age; or (ii) to undertake a course of full time education, or a training course, which starts before the time at which the member reaches pension age. 3. The intended effect of article 2(4) (as stated in the Explanatory Note) is to amend rule D.2 to enable a member to retire up to three months before reaching pension age (55) in order to take up a job in civilian employment or to undertake a course of full time education or a training course and to receive the pension and lump sum on attaining the pension age. 4. The Department's view is that, on any purposive construction, the intention is met by the amendments made by article 2(4). A member who, when their service ceases before reaching pension age of 55, satisfies the conditions of paragraph (7) (including the one concerning the pension age not yet having being reached) will receive their pension on attaining that age. 5. However, the Department regularly reviews the operation of the Pension Scheme rules in light of changes in pensions policy and, if it is demonstrated that the provision is being misinterpreted in its application, it will be amended. Ministry of Defence 28 June 2011

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Appendix 5

S.I. 2011/1366: memorandum from the Home Office

Immigration Services Commissioner (Application Fee) Order 2011 (S.I. 2011/1366)

1. This Explanatory Memorandum has been prepared by the Home Office and the UK Border Agency at the request of the Joint Committee on Statutory Instruments (“the Committee”) in a letter dated 22 June 2011.

2. The Committee has requested information from the Home Office on the following point: “Explain the reference, in the definition of “registration” in article 2, to registration under section 84(2)(b) or (ba)”.

3. "Registration" means being registered with the Immigration Services Commissioner under section 84(2)(a) of the 1999 Act. This means that the provider of immigration services must have been assessed by the Commissioner as competent to give immigration advice and services. This Order sets a fee for that assessment.

4. We recognise that the wording of the Order includes meaningless, and legally ineffective, reference to 84(2)(b) and (ba). There is no registration under these two provisions. The language of this Order follows the language used in article 2 of the previous Order, the Immigration Services Commissioner (Registration Fee) Order 2004 (SI 2004/802) which also included a meaningless reference to section 84(2)(b). The Home Office undertakes to revisit this wording and to delete these meaningless references when the replacement to this Order is drafted.

5. The application fees will be reviewed annually and it is our intention to make a new replacement SI next year.

Home Office 28 June 2011

Documents

Twenty-sixth Report of Session 2010-12