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House of Lords House of Commons Joint Committee on Statutory Instruments Ninth Report of Session 2012-13 Drawing special attention to: Sustainable Communities Regulations 2012 (S.I. 2012/1523) Plant Protection Products (Sustainable Use) Regulations 2012 (S.I. 2012/1657) Green Deal (Disclosure) Regulations 2012 (S.I. 2012/1660) Green Deal (Acknowledgment) Regulations 2012 (S.I. 2012/1661) Pension Protection Fund (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/1688) Criminal Procedure Rules 2012 (S.I. 2012/1726) Merchant Shipping (Accident Reporting and Investigation) Regulations 2012 (S.I. 2012/1743) Consumer Credit (Total Charge for Credit) (Amendment) Regulations 2012 (S.I. 2012/1745) Al-Qaida (United Nations Measures) (Overseas Territories) Order 2012 (S.I. 2012/1757) Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) (Amendment) Order 2012 (S.I. 2012/1769) National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2012 (S.I. 2012/1868) National Health Service (Pharmaceutical Services) Regulations 2012 (S.I. 2012/1909) Human Medicines Regulations 2012 (S.I. 2012/1916) Ordered by the House of Lords to be printed 31 October 2012 Ordered by the House of Commons to be printed 31 October 2012 HL Paper 56 HC 135-ix Published on 8 November 2012 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 Clinton-Davis (Labour) Mr George Mudie MP (Labour, Leeds East) (Chairman) Lord Geddes (Conservative) Mr Robert Buckland MP (Conservative, South Swindon) Lord Kennedy (Labour) Michael Ellis MP (Conservative, Northampton North) Earl of Mar and Kellie (Liberal Democrat) John Hemming MP (Liberal Democrat, Birmingham, Yardley) Lord Rees-Mogg (Crossbench) Mr Ian Liddell-Grainger MP (Conservative, Bridgwater and West Lord Selkirk (Conservative) Somerset) Baroness Stern (Crossbench) 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 www.parliament.uk/jcsiH .H 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 www.parliament.uk/H jcsi.H Committee staff The current staff of the Committee are Charlotte Littleboy (Commons Clerk), Jane White (Lords Clerk) and Liz Booth (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]. 1 Contents Report Page Instruments reported 3 1 S.I. 2012/1523: Reported for unexpected use of the enabling power 3 2 S.I. 2012/1657: Reported for requiring elucidation 4 3 S.I. 2012/1660 and 1661: Reported for failure to comply with accepted legislative practice 5 4 S.I. 2012/1688: Reported for doubt as to whether they are intra vires 6 5 S.I. 2012/1726: Reported for requiring elucidation 7 6 S.I. 2012/1743: Reported for defective drafting 8 7 S.I. 2012/1745: Reported for failure to comply with proper drafting practice 8 8 S.I. 2012/1757: Reported for defective drafting 9 9 S.I. 2012/1769: Reported for defective drafting 10 10 S.I. 2012/1868: Reported for defective drafting and failure to comply with proper drafting practice 11 11 S.I. 2012/1909: Reported for defective drafting 12 12 S.I. 2012/1916: Reported for defective drafting 13 Instruments not reported 16 Annex 16 Appendix 1 20 S.I. 2012/1523: memorandum from the Department for Communities and Local Government 20 Appendix 2 21 S.I. 2012/1657: memorandum from the Department for Environment, Food and Rural Affairs 21 Appendix 3 22 S.I. 2012/1660 and 1661: memorandum from the Department of Energy and Climate Change 22 Appendix 4 24 S.I. 2012/1688: memorandum from the Department for Work and Pensions 24 Appendix 5 25 S.I. 2012/1726: memorandum from the Ministry of Justice 25 Appendix 6 26 S.I. 2012/1743: memorandum from the Department for Transport 26 Appendix 7 27 S.I. 2012/1745: memorandum from the Department for Business, Innovation and Skills27 Appendix 8 28 2 S.I. 2012/1757: memorandum from the Foreign and Commonwealth Office 28 Appendix 9 29 S.I. 2012/1769: memorandum from the Home Office 29 Appendix 10 30 S.I. 2012/1868: memorandum from HM Revenue and Customs 30 Appendix 11 31 S.I. 2012/1909: memorandum from the Department of Health 31 Appendix 12 32 S.I. 2012/1916: memorandum from the Department of Health 32 Appendix 13 34 S.I. 2012/1761: memorandum from the Foreign and Commonwealth Office 34 3 Instruments reported At its meeting on 31 October 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 12 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. 2012/1523: Reported for unexpected use of the enabling power Sustainable Communities Regulations 2012 (S.I. 2012/1523) 1.1 The Committee draws the special attention of both Houses to these Regulations on the grounds that there is a doubt whether they are intra vires in one respect and that they make an unexpected use of the enabling power in a related respect. 1.2 The Regulations govern the process for dealing with sustainability proposals submitted by local authorities in response to an invitation issued by the Secretary of State under section 5A of the Sustainable Communities Act 2007. 1.3 Regulation 5 requires the Secretary of State to appoint a person to whom rejected proposals may be submitted by a local authority. The Committee asked the Department for Communities and Local Government to identify the vires for regulation 5, having regard, in particular, to the facts that regulation 5(1) imposes a duty and that regulation 5(3) appears to create an appeal or further reference mechanism. 1.4 In a memorandum printed at Appendix 1, the Department asserts that “section 5B(3)(g) and (h) of the Sustainable Communities Act 2007 together with the generality of section 5B(1) and the power to make incidental and supplementary provision in section 5D(1) is sufficient vires for regulation 5”. 1.5 Section 5B(3)(g) allows regulations to enable the Secretary of State to appoint a person to advise, while section 5B(3)(h) allows regulations to enable the Secretary of State to “specify one or more persons who must be consulted, and with whom the Secretary of State must try to reach agreement, before making a decision in relation to a proposal”. Neither of these provisions in terms allows regulations to require (as opposed to permit) the appointment of such a person or to provide for the person so appointed to be involved in reconsideration of the Secretary of State’s decision after it has been made. 1.6 As to regulation 5(3), the Department in its memorandum asserts that it “does not provide for an appeal mechanism” but is “a mechanism which will enable local authorities to ask the Secretary of State to reconsider his decision in cases where the selector considers that the proposals should be re-submitted to the Secretary of State for re-consideration”. The Department adds that “regulation 5(3) either falls within the generality of section 5B(1) or is incidental and supplementary provision to the role of the selector as set out in regulation 5 and 6”.
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