Twenty-Ninth Report of Session 2007–08

House of Lords House of Commons Joint Committee on Statutory Instruments Twenty-ninth Report of Session 2007–08

Drawing special attention to: South Staffordshire College (Government) Regulations 2008 (S.I. 2008/1734) Rochdale Sixth Form College (Government) Regulations 2008 (S.I. 2008/1790) Gambling (Operating Licence and Single-Machine Permit Fees) (Amendment) Regulations 2008 (S.I. 2008/1803) Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 (S.I. 2008/1900)

Ordered by The House of Lords to be printed 29 October 2008 Ordered by The House of Commons to be printed 29 October 2008

HL Paper 188 HC 38-xxix Published on 3 November 2008 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited £0.00

Joint Committee on Statutory Instruments

Current membership House of Lords House of Commons Lord Campbell of Alloway (Conservative) David Maclean MP (Conservative, Penrith and The Border) Lord Dykes (Liberal Democrat) (Chairman) Baroness Jones of Whitchurch (Labour) Dr Roberta Blackman-Woods MP (Labour, City of Durham) Lord Kimball (Conservative) Mr Peter Bone MP (Conservative, Wellingborough) Countess of Mar (Crossbench) Michael Jabez Foster MP (Labour, Hastings and Rye) Lord Walpole (Crossbench) Mr David Kidney MP (Labour, Stafford) David Simpson MP (Democratic Unionist, Upper Bann)

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 www.parliament.uk/jcsi.

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 available on the Internet from www.parliament.uk/jcsi.

Committee staff The current staff of the Committee are John Whatley (Commons Clerk), Kath Kavanagh (Lords Clerk) and Jacqueline Cooksey (Committee Secretary). Advisory Counsel: Peter Davis, Peter Brooksbank and Christine Cogger (Commons); Allan Roberts and Peter Milledge (Lords).

Contacts All correspondence should be addressed to the Clerk of the Joint Committee on Statutory Instruments, Delegated Legislation Office, 7 Millbank, London SW1P 3JA. The telephone number for general inquiries is: 020 7219 2830; the Committee's email address is: [email protected].

Contents

Report Page

Instruments reported 2 1 S.I. 2008/1734 and S.I. 2008/1790: reported for requiring elucidation 2 2 S.I. 2008/1803: reported for defective drafting 3 3 S.I. 2008/1900: reported for defective drafting 3

Instruments not reported 4

Annex 5

Appendix 1 9 S.I. 2008/1734 and S.I. 2008/1790: memorandum from the Department for Innovation, Universities and Skills 9

Appendix 2 10 S.I. 2008/1803: memorandum from the Department for Culture, Media and Sport 10

Appendix 3 12 S.I. 2008/1900: memorandum from the Department of Health 12

Instruments reported

At its meeting on 29 October 2008 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. Relevant Departmental memoranda are published as appendices to this report.

1 S.I. 2008/1734 and S.I. 2008/1790: reported for requiring elucidation

South Staffordshire College (Government) Regulations 2008 (S.I. 2008/1734) and Rochdale Sixth Form College (Government) Regulations 2008 (S.I. 2008/1790)

1.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they call for elucidation in one respect.

1.2 Schedule 1 to these Regulations sets out the Instrument of Government of the further education corporation concerned. Clause 7 of the Instrument of Government deals with the appointment of the Clerk to the Corporation. Clause 7(5) is identically worded in both cases and provides that “The Clerk may also be a member of staff at the institution”.

1.3 In a memorandum printed at Appendix 1 the Department for Innovation, Universities and Skills states that this provision does not change the legal position and explains its motivation in making express provision in clause 7(5)—i.e. (as a result of specific consultation) to put the matter beyond doubt for members and Clerks of the colleges who are the anticipated readers of the instrument. The Department therefore considers that the provision should remain.

1.4 The Committee accepts that the elimination of doubt that might otherwise arise in forensic terms is an entirely normal element of drafting. Nonetheless it is concerned (given the Department’s omission to include any argument on interpretation that might otherwise arguably be asserted) that the provision in question might well have been included not to allay such a doubt but to provide an explanation so as to reduce a risk of misreading that might otherwise arise. In general, the Committee considers that inclusion of explanatory material as a substantive provision obscures the distinct nature of legislation, leaving it difficult to know where to draw the line. Clarification can readily be given by other means such as separate guidance. Even so, given the combination of the background and the residual possibility that there might otherwise remain a doubt on interpretation that has not been explored by the Department, the Committee is content with survival of the provision and reports clause 7(5) of the Instrument of Government in Schedule 1 to these Regulations as calling for elucidation, largely but not wholly provided in the Department’s memorandum.

2 S.I. 2008/1803: reported for defective drafting

Gambling (Operating Licence and Single-Machine Permit Fees) (Amendment) Regulations 2008 (S.I. 2008/1803)

2.1 The Committee draws the special attention of both Houses to these Regulations on the ground that Schedules 1 and 4 are defectively drafted.

2.2 Schedules 1 and 4 list various types of operating licence and assign them into different categories. The assignment is made by reference to the range into which the number or amount of the unit of division authorised by the licence falls. For example, in Schedule 1, an existing casino operating licence with an annual gross gaming yield of up to £5 million falls within category A; if the annual gross gaming yield is greater than £250 million, the licence falls within category E. Some of the specified categories clearly overlap. For example, in Schedule 1 an existing casino operating licence with an annual gross gaming yield of “£5 million or greater, up to and including £25 million” falls within Category B; Category C is “£25 million or greater, up to and including £100 million”. There are similar overlaps in some of the categories in Schedule 4.

2.3 Schedules 2, 3, 5 and 6 specify the amount of the fee payable in respect of each type of licence by reference to the category of licence in each case. In some cases where a licence straddles two categories, Schedules 2, 3, 5 and 6 specify different levels of fee for the categories concerned. Examples are given in the table which appears in Appendix 2. In a memorandum printed at that Appendix the Department for Culture, Media and Sport accepts that in such cases the Regulations do not make clear which level of fee should apply. The Department apologises for the errors (and correctly identifies a further one) and accepts that they must be rectified. It has obtained confirmation from the Gambling Commission (the body with responsibility for determining applications for operating licences) that the uncertainty in interpretation arising from the errors has not had an impact on any applications it has processed. The Department intends to lay an amending instrument as soon as possible. The Committee reports Schedules 1 and 4 for defective drafting, acknowledged by the Department. 3 S.I. 2008/1900: reported for defective drafting

Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 (S.I. 2008/1900)

3.1 The Committee draws the special attention of both Houses to this Order on the ground that article 1(1) is defectively drafted.

3.2 Article 1(1) provides for the Order (which commences specified provisions of the Mental Health Act 2007) to come into force on 3 November 2008 immediately after the coming into force of the Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 and immediately before the coming into force of the Transfer of Tribunal Functions Order 2008 (“the Transfer Order”). The Transfer Order is subject to the affirmative resolution procedure. A draft of the Order was laid before Parliament on 4 June 2008 but had not

received Parliamentary approval when the present Order was made on 17 July. Moreover, the draft laid for approval (which if made comes into force on 3 November 2008) contains nothing to displace sections 4(a) and 23 of the Interpretation Act 1978.

3.3 In a memorandum printed at Appendix 3 the Department of Health admits that article 1(1) of the present Order is defectively drafted in so far as it provides for it to come into force on 3 November 2008 immediately before the Transfer Order. If the Transfer Order is made in the same terms as the draft laid before Parliament, there will be no moment on 3 November 2008 before which that Order is not in force. The Department explains its motivation—concern that, without the desired sequence of coming into force, particular textual amendments recording transfers of function to be effected by the Transfer Order might not validly be achieved—but then concludes that a court, taking the instruments together, will nonetheless regard those amendments as brought about. The Committee, without needing to reach a conclusion on that, notes what appears to be a tacit assumption on the part of the Department—ie that the enabling power for the Transfer Order would not extend to amendment of provisions not yet in force—and comments that such an assumption appears over-cautious: see in particular section 38 of the Tribunals, Courts and Enforcement Act 2007, one of the powers quoted, which refers to amendment of enactments “whenever passed” (Committee’s italics). If the Committee’s observation is correct, that must be helpful to the preferred conclusion of the Department, as it would lead to the amendments being achieved, even if the admittedly ineffective wording in article 1(1) of the present Order were treated as struck out.

3.4 The Department also accepts that at the time of the making of this Order there could have been no certainty that the draft Transfer Order would receive approval. The Department explains that it wanted to make this Order as soon as possible, rather than waiting for the Transfer Order to be made, so as to give practitioners the time to become familiar with the key transitional provisions set out in the Order; the Department decided it was better, if necessary, to make an amending Order omitting the reference to the Transfer Order. The Committee does not consider this to be a satisfactory way of proceeding. Given that there was neither authority to make an order in the terms of the draft Transfer Order nor certainty that authority would be obtained, Article 1(1) of the present Order is defective in providing for its commencement to be linked to the coming into force of the Transfer Order. The appropriate course of action would have been to delay making the present Order until the making of the affirmative instrument, but to lay a draft of the present Order before Parliament to publicise its provisions, as part of the Explanatory Memorandum required when the draft Transfer Order was laid. The Committee reports article 1(1) for defective drafting, acknowledged in part by the Department.

Instruments not reported

The Committee considered the Instruments set out in the Annex to this Report, none of which were required to be reported to the respective Houses.

Annex

Instruments to which the Committee does not draw the special attention of both Houses

● denotes that the written evidence submitted in connection with the instrument is printed with this Report ○ denotes written evidence has been submitted but not printed

Draft instruments requiring affirmative approval

Draft S.I. Legal Services Act 2007 (Functions of a Designated Regulator) Order 2008 Draft S.I. Youth Justice Board for England and Wales (Amendment) Order 2008

Instruments subject to annulment

S.I. 2008/2160 Armed Forces and Reserve Forces (Compensation Scheme) (Amendment No. 2) Order 2008 S.I. 2008/2161 Enterprise Act 2002 (Bodies Designated to make Super-complaints) (Amendment) Order 2008 S.I. 2008/2163 Crime and Disorder Act 1998 (Responsible Authorities) Order 2008 S.I. 2008/2164 Batteries and Accumulators (Placing on the Market) Regulations 2008 S.I. 2008/2165 Merchant Shipping and Fishing Vessels (Provision and Use of Work Equipment) (Amendment) Regulations 2008 S.I. 2008/2166 Merchant Shipping and Fishing Vessels (Lifting Operations and Lifting Equipment) (Amendment) Regulations 2008 S.I. 2008/2173 Cosmetic Products (Safety) (Amendment) Regulations 2008 S.I. 2008/2175 Crossrail (Fees for Requests for Planning Approval) Regulations 2008 S.I. 2008/2176 Local Government (Structural Changes) (Transfer of Functions, Property, Rights and Liabilities) Regulations 2008 S.I. 2008/2177 Traffic Signs (Amendment) Regulations and General Directions 2008 S.I. 2008/2178 Civil Procedure (Amendment) Rules 2008 S.I. 2008/2250 Health and Social Care Act 2008 (Consequential Amendments and Transitory Provisions) Order 2008 S.I. 2008/2251 National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2008 S.I. 2008/2252 Care Quality Commission (Membership) Regulations 2008 S.I. 2008/2262 A1(M) Motorway and the M62 Motorway (Holmfield Interchange Link Roads) (Speed Limit) Regulations 2008 S.I. 2008/2265 Social Fund (Applications and Miscellaneous Provisions) Regulations 2008 S.I. 2008/2266 Vehicle Excise Duty (Immobilisation, Removal and Disposal of Vehicles) (Amendment) Regulations 2008 S.I. 2008/2299 Housing Benefit and Council Tax Benefit (Amendment) Regulations 2008 S.I. 2008/2300 Trade Marks (Amendment) Rules 2008

S.I. 2008/2301 Pensions Act 2007 (Actuarial Guidance) (Consequential Provisions) Order 2008 S.I. 2008/2323 Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) (Amendment) Regulations 2008 S.I. 2008/2332 Valuation for Rating (Plant and Machinery) (England) (Amendment) Regulations 2008 S.I. 2008/2333 Non-Domestic Rating (Communications Hereditaments) (Valuation, Alteration of Lists and Appeals and Material Day) (England) Regulations 2008 S.I. 2008/2334 Building (Electronic Communications) Order 2008 S.I. 2008/2337 Chemicals (Hazard Information and Packaging for Supply) (Amendment) Regulations 2008 S.I. 2008/2341 Legal Services Act 2007 (Transitional, Savings and Consequential Provisions) (Scotland) Order 2008 S.I. 2008/2342 Smoke Control Areas (Authorised Fuels) (England) (Amendment) Regulations 2008 S.I. 2008/2343 Smoke Control Areas (Exempted Fireplaces) (England) (No. 2) Order 2008 S.I. 2008/2344 Civil Enforcement of Parking Contraventions (County of Buckinghamshire) (District of Wycombe) Designation Order 2008 S.I. 2008/2345 Housing (Approval of a Code of Management Practice) (Student Accommodation) (England) Order 2008 S.I. 2008/2346 Houses in Multiple Occupation (Specified Educational Establishments) (England) Regulations 2008 S.I. 2008/2347 Sea Fishing (Recovery Measures) Order 2008 S.I. 2008/2352 Private and Voluntary Health Care (England) Amendment Regulations 2008 S.I. 2008/2353 Serious Crime Act 2007 (Specified Anti-fraud Organisations) Order 2008 S.I. 2008/2356 Wildlife and Countryside Act 1981 (Variation of Schedule 4) (England) Order 2008 S.I. 2008/2357 Wildlife and Countryside (Registration and Ringing of Certain Captive Birds) (Amendment) (England) Regulations 2008 S.I. 2008/2366 Channel Tunnel (International Arrangements) (Amendment) Order 2008 S.I. 2008/2367 Removal and Disposal of Vehicles (Traffic Officers) (England) Regulations 2008 S.I. 2008/2368 Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) (Amendment) Regulations 2008 S.I. 2008/2372 Sale of Registration Marks (Amendment) Regulations 2008 S.I. 2008/2424 Social Security (Miscellaneous Amendments) (No. 4) Regulations 2008 S.I. 2008/2425 Local Government Pension Scheme (Miscellaneous) Regulations 2008 S.I. 2008/2430 Criminal Defence Service (Recovery of Defence Costs Orders) (Amendment) Regulations 2008 S.I. 2008/2446 Family Proceedings (Amendment) Rules 2008 S.I. 2008/2447 Family Procedure (Adoption) (Amendment) Rules 2008

S.I. 2008/2448 Costs in Criminal Cases (General) (Amendment) Regulations 2008 S.I. 2008/2507 Student Fees (Amounts) (England) (Amendment) Regulations 2008 S.I. 2008/2553 Nursing and Midwifery Council (Constitution) Order 2008 S.I. 2008/2554 General Medical Council (Constitution) Order 2008 S.I. 2008/2558 National Information Governance Board Regulations 2008 S.I. 2008/2560 Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2008 S.I. 2008/2561 Mental Health Act 2007 (Commencement No. 8 and Transitional Provisions) Order 2008 S.I. 2008/2566 Cosmetic Products (Safety) (Amendment No. 2) Regulations 2008 S.I. 2008/2567 Civil Enforcement of Parking Contraventions (The County Council of Durham) (Durham District) Designation Order 2008 S.I. 2008/2569 Social Fund Cold Weather Payments (General) Amendment Regulations 2008 S.I. 2008/2570 Pesticides (Maximum Residue Levels) (England and Wales) Regulations 2008 S.I. 2008/2593 National Health Service (Charges for Drugs and Appliances) Amendment Regulations 2008 S.I. 2008/2598 Genetically Modified Organisms (England) (Amendments) Regulations 2008 S.I. 2008/2599 Hydrocarbon Oil and Bioblend (Private Pleasure-flying and Private Pleasure Craft) (Payment of Rebate etc.) Regulations 2008 S.I. 2008/2600 Hydrocarbon Oil (Supply of Rebated Heavy Oil) (Payment of Rebate) Regulations 2008 S.I. 2008/2624 Social Security (Contributions) (Amendment No. 5) Regulations 2008 S.I. 2008/2639 Statutory Auditors and Third Country Auditors (Amendment) (No. 2) Regulations 2008 S.I. 2008/2644 Heritable Bank plc Transfer of Certain Rights and Liabilities Order 2008 S.I. 2008/2648 Veterinary Medicines (Amendment) Regulations 2008 S.I. 2008/2666 Transfer of Rights and Liabilities to ING Order 2008 S.I. 2008/2667 Social Security (Miscellaneous Amendments) (No. 5) Regulations 2008 S.I. 2008/2673 Financial Services and Markets Act 2000 (Consequential Amendments) (Taxes) Order 2008 S.I. 2008/2674 Kaupthing Singer & Friedlander Limited Transfer of Certain Rights and Liabilities Order 2008 S.I. 2008/2680 Legal Services Act 2007 (Prescribed Charity) Order 2008

Instruments not subject to Parliamentary proceedings laid before Parliament

S.I. 2008/2638 Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2008

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. 2008/2157 Offshore Installations (Safety Zones) (No.2) Order 2008 S.I. 2008/2261 Childcare Act 2006 (Commencement No. 5 and Savings and Transitional Provisions) Order 2008 S.I. 2008/2302 Finance Act 1998, Schedule 2 (Assessments in Respect of Drawback) (Appointed Day) Order 2008 S.I. 2008/2355 Postal Services (Consumer Complaints Handling Standards) Regulations 2008 S.I. 2008/2358 Housing and Regeneration Act 2008 (Commencement No. 1 and Transitional Provision) Order 2008 S.I. 2008/2376 Electricity (Applications for Licences, Modifications of an Area and Extensions and Restrictions of Licences) Regulations 2008 S.I. 2008/2556 Health Care and Associated Professions (Miscellaneous Amendments) Order 2008 (Commencement No. 1) Order of Council 2008 S.I. 2008/2597 Constitutional Reform Act 2005 (Commencement No. 10) Order 2008

Appendix 1

S.I. 2008/1734 and S.I. 2008/1790: memorandum from the Department for Innovation, Universities and Skills

South Staffordshire College (Government) Regulations 2008 (S.I. 2008/1734) and Rochdale Sixth Form College (Government) Regulations 2008 (S.I. 2008/1790)

1. The Committee has requested the Department to submit a memorandum on the point reproduced below in relation to the above instruments. The Department’s response is as follows:

What in terms of legal effect is added by clause 7(5) of the Instrument of Government in Schedule 1?

2. The Instrument of Government sets out the provisions for the constitution of a further education corporation. Clause 7(5) provides that a Clerk may also be “a member of staff”; “staff” is defined in Article 1 as “all staff who have a contract of employment with the institution”. Clerks are office-holders to whom specific functions and responsibilities have been assigned under the Instrument and Articles of Government of a further education corporation. Whilst many Clerks are appointed through clerking companies, others may be employees of the institution, with roles and duties assigned to them in this capacity, as well as in the role of Clerk. It is therefore important to make it clear to those using the Instrument and Articles that the office of Clerk may be held by an employee of the institution. The Department accepts that this provision does not change the legal position but it does offer clarification which is important to users.

3. Before finalising the current standard Instrument and Articles, which contain this provision, the Department consulted widely within the sector and particular consideration was given to the wording of this clause. The purpose behind clause 7(5) is to put the matter beyond doubt for the members and Clerks of the colleges, who are the anticipated readers of the Instrument and Articles.

4. The Department therefore considers that this provision should remain, in order to make it explicit that it is permissible for the Clerk to be employed by the corporation as a member of staff, as well as holding the position of Clerk.

Department for Innovation, Universities and Skills 21 October 2008

Appendix 2

S.I. 2008/1803: memorandum from the Department for Culture, Media and Sport

Gambling (Operating Licence and Single-Machine Permit Fees) (Amendment) Regulations 2008 (S.I. 2008/1803)

This memorandum is in response to the Committee’s request dated 15th October 2008.

2. The Committee has asked:

See the table below:

Type of licence (Schedule 1) Annual gross gaming yield Application fee (Schedule 2) Annual fee (Schedule 3)

Existing casino operating £25 million £10,277 or £20,566? £21,752 or £69,572? licence Type of licence (Schedule 4) Annual gross gambling yield Application fee (Schedule 5) Annual fee (Schedule 6) Casino operating licence £200 million £20,580 or £30,148? £69,658 or £110,820? Bingo operating licence £200 million £17,130 or £20,580? £69,658 or £110,820? General betting (standard) £200 million £17,130 or £20,580? £69,658 or £110,820? operating licence Pool betting operating £200 million £69,658 or £110,820? licence Betting intermediary £200 million £17,130 or £20,580? £69,658 or £110,820? operating licence

Where alternative fees are specified in the third or fourth column—

(a) which of them is intended to be payable, and

(b) is that intention made clear and (if so) how?

3. The Department’s response is as follows.

4. The Department accepts that the tables in Schedules 1 and 4 to the Regulations contain errors, and that the resulting overlap in certain fee categories has caused uncertainty. The Department is grateful to the Committee for drawing its attention to the issue, and considers it most unfortunate that the error slipped through the process of drafting, checking and proof-reading by the Department, its lawyers and the Gambling Commission. The Department apologises for this oversight.

5. The Department accepts that the errors must be rectified. The Department has obtained confirmation from the Gambling Commission (the body with responsibility for determining applications for operating licences) that the uncertainty in interpretation arising from the errors has not had an impact on any applications it has processed.

6. The Department has prepared a draft amending instrument to rectify the errors. The Department, moreover, undertook a further review of the tables in Schedules 1 and to the Regulations and itself identified one further error. This error appears in the table in Schedule 1 in respect of:

(a) Existing casino operating licence; and

(b) Categories C and D.

The fee categories overlap in the same manner as those identified by the Committee. The amending instrument also rectifies this error. The Department intends the lay the amending instrument as soon as possible.

Department for Culture, Media and Sport 22 October 2008

Appendix 3

S.I. 2008/1900: memorandum from the Department of Health

Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 (S.I. 2008/1900)

1. In its letter to the Department of 15th October 2008, the Joint Committee requested a memorandum on the following points:

Why does the commencement provision in article 1(1) state that the Order is to come into force on 3rd November 2008 immediately before the Transfer of Tribunal Functions Order 2008, given that—

(a) the draft of that Order laid for approval (which if made comes into force on 3rd November 2008) contains nothing to displace sections 4(a) and 23(1) of the Interpretation Act 1978, and

(b) at the time of the making of this Order there could have been no certainty that the draft would receive approval?

2. The Department’s response to the Committee’s points is outlined below.

3. The Department admits that the instrument is defectively drafted. The Transfer of Tribunal Functions Order 2008 (“the Transfer Order”) does not refer to our Order and provide that the Transfer Order will come into force immediately after the Order instead of at the beginning of the day. The Department therefore agrees with the Committee that the provisions in section 4(a) and 23(1) of the Interpretation Act 1978 are not therefore displaced.

4. The Department hoped to achieve the effect of bringing the Order into force immediately before the Transfer Order by providing for that in the Order itself. The Department did this because one effect of the Transfer Order is to replace references in the Mental Health Act 1983 (“the 1983 Act”) to Mental Health Review Tribunals with references to the First-tier Tribunal (see article 3 and Schedule 1 to the Transfer Order). The Order commences sections 37 and (in part) 38 of the Mental Health Act 2007 (“the 2007 Act”). These sections amend provisions in the 1983 Act and those amendments include references to Mental Health Review Tribunals. These references are to be replaced with ones to the First-tier Tribunal by the Transfer Order. The Department wanted it to be clear that the Order comes into force first so that there could be no doubt that the Transfer Order operates to replace those references with ones to the First-tier Tribunal.

5. The Department wanted to make the Order as soon as possible, rather than waiting for the Transfer Order to be made, so as to give practitioners the time to become familiar with the key transitional provisions set out in the Order. These provisions are essential to the coming into force on 3rd November of most of the 2007 Act and regulations made under it. The Department also wanted to lay the Order before the summer recess.

6. The Department accepts that at the time of making the Order, there was no certainty that the Transfer Order would receive approval. However, for the reasons set out above, the Department did not want to delay making the Order. The Department decided that it was better, if necessary, to make an amending Order omitting the reference to the Transfer Order. In that way practitioners would still have access to the transitional provisions and be able to prepare themselves for the coming into force date.

7. The Department apologises to the Committee and accepts the Order is defectively drafted. It thinks however that the intention of the Order is clear and that a court would give effect to this so as to replace the references to Mental Health Review Tribunals in the 1983 Act as amended by the provisions commenced by this Order.

Department of Health October 2008