Twenty-Eighth Report of Session 2006–07

House of Lords House of Commons Joint Committee on Statutory Instruments Twenty-eighth Report of Session 2006–07

Drawing special attention to: European Grouping of Territorial Cooperation Regulations 2007 (S.I. 2007/1949) Gas (Applications for Licences and Extensions and Restrictions of Licences) Regulations 2007 (S.I. 2007/1971) Electricity (Applications for Licences, Modifications of an Area and Extensions and Restrictions of Licences) Regulations 2007 (S.I. 2007/1972) Heather and Grass etc. Burning (England) Regulations 2007 (S.I. 2007/2003) Social Security (Contributions) (Amendment No. 5) Regulations 2007 (S.I. 2007/2068) Criminal Procedure (Amendment No. 2) Rules 2007 (S.I. 2007/2317)

Ordered by The House of Lords to be printed 24 October 2007 Ordered by The House of Commons to be printed 24 October 2007

HL Paper 191 HC 82-xxviii Published on 29 October 2007 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 Earl Attlee (Conservative) David Maclean MP (Conservative, Penrith and The Border) Lord Dykes (Liberal Democrat) (Chairman) Baroness Gale (Labour) Dr Roberta Blackman-Woods MP (Labour, City of Durham) Lord Gould of Brookwood (Labour) Mr Peter Bone MP (Conservative, Wellingborough) Lord Kimball (Conservative) Michael Jabez Foster MP (Labour, Hastings and Rye) Countess of Mar (Crossbench) Mr David Kidney MP (Labour, Stafford) Lord Walpole (Crossbench) Mr John MacDougall MP (Labour, Central Fife) 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. or on 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 Mick Hillyard (Commons Clerk), Kath Kavanagh (Lords Clerk) and Jacqueline Cooksey (Committee Secretary). Advisory Counsel: Peter Davis, Peter Brooksbank and Christine Cogger (Commons) 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 e–mail address is: [email protected].

Contents

Report Page

Instruments reported 2 1 S.I. 2007/1949: reported for defective drafting 2 2 S.I. 2007/1971: reported for defective drafting 3 3 S.I. 2007/1972: reported for defective drafting 4 4 S.I. 2007/2003: reported for unexpectedly limited use of the enabling power 5 5 S.I. 2007/2068: reported for defective drafting 6 6 S.I. 2007/2317: reported for doubtful vires 6

Instruments not reported 8

Annex 9

Appendix 1 12 S.I. 2007/1949: memorandum from the Department for Business, Enterprise and Regulatory Reform 12

Appendix 2 13 S.I. 2007/1971: memorandum from the Office of the Gas and Electricity Markets Authority 13

Appendix 3 14 S.I. 2007/1972: memorandum from the Office of the Gas and Electricity Markets Authority 14

Appendix 4 15 S.I. 2007/2003: memorandum from the Department for Environment, Food and Rural Affairs 15

Appendix 5 16 S.I. 2007/2068: memorandum from HM Revenue and Customs 16

Appendix 6 17 S.I. 2007/2317: memorandum from the Ministry of Justice 17

Instruments reported

At the Committee’s meeting on 24 October 2007, it scrutinised a number of instruments and decided to draw the special attention of both Houses to six of them in accordance with its Standing Orders. The Instruments and the grounds for reporting them are given below. Relevant Departmental memoranda are published as appendices to this report. 1 S.I. 2007/1949: reported for defective drafting

European Grouping of Territorial Cooperation Regulations 2007 (S.I. 2007/1949)

1.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

1.2 These Regulations make provision supplementing Regulation (EC) No 1082/2006, which provides for the creation of a new form of body corporate: the European grouping of territorial cooperation (“EGTC”). An EGTC is a body whose members comprise public bodies from more than one Member State.

1.3 Regulation 8 of this instrument provides that a UK EGTC may not be formed with a member which has limited liability. “UK EGTC” is defined in regulation 2(1) as an EGTC which has its registered office in the United Kingdom

1.4 Regulation 4(1) requires the statutes of a UK EGTC to be published in the London, Edinburgh or Belfast Gazette according to whether its registered office is in England and Wales, Scotland or Northern Ireland. Regulation 4(2) states that “this regulation is subject to regulation 8”.

1.5 In a memorandum printed at Appendix 1, the Department for Business, Enterprise and Regulatory Reform states that the process of formation of a UK EGTC includes the essential step of publication of statutes in the Gazette under regulation 4, and since statutes of a UK EGTC with a member which has limited liability may not be published under regulation 4 because of regulation 8, regulation 4 is subject to regulation 8.

1.6 The Committee cannot agree. What the Department appears to ignore is the fact that there can, by definition, be no such thing as a UK EGTC one of whose members has limited liability. Regulation 8 is a free-standing provision which limits the range of bodies which may become a UK EGTC, but it does not in any way qualify the publication requirements of regulation 4(1), which only apply if a body is in fact a UK EGTC. Regulation 4(1) is therefore not subject to regulation 8, and regulation 4(2) is otiose. The Committee accordingly reports the inclusion of regulation 4(2) for defective drafting.

2 S.I. 2007/1971: reported for defective drafting

Gas (Applications for Licences and Extensions and Restrictions of Licences) Regulations 2007 (S.I. 2007/1971)

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

2.2 Regulation 3(3)(a) of this instrument provides that, unless the context otherwise requires, any reference to a numbered regulation or Schedule is a reference to the regulation or Schedule bearing that number in these Regulations.

2.3 In a memorandum printed at Appendix 2, the Office of the Gas and Electricity Markets Authority (“Ofgem”) acknowledges that there is no reference to a numbered regulation in the text of the instrument and that the inclusion of “any reference to a numbered regulation” is superfluous, and undertakes to amend regulation 3(3)(a) at the next opportunity. It points out that there is a reference in a footnote to the instrument to Schedule 6 of the Utilities Act 2000, but the Committee notes that there is no reference to a numbered Schedule in the text of the instrument. Regulation 3(3)(a) as a whole is therefore otiose and ought not to have been included, and the Committee accordingly reports regulation 3(3)(a) for defective drafting, acknowledged in part by Ofgem.

2.4 The Committee would also observe that both sub-paragraphs (a) and (b) (which provides that, unless the context otherwise requires, any reference to a numbered paragraph is a reference to the paragraph bearing that number in the regulation in which the reference appears) of regulation 3(3) merely restate what is a generally accepted principle of statutory interpretation. Although such provisions used to be common, it is now proper drafting practice to avoid them except where otherwise ambiguity would be manifest. Thus, even if there had been a reference to a numbered regulation or Schedule in this instrument, it would not have been necessary to include regulation 3(3).

2.5 Schedule 1 prescribes the form of an application for a licence, an application for an extension of a licence, or an application for a restriction of a licence under the Gas Act 1986. Schedule 2 contains instructions to an applicant to provide certain information and documents. In both Schedules various footnotes appear. Some of these are substantive notes directed to the applicant (for example, explaining the meaning of expressions used, or stating the circumstances in which an application may not be made) and others are the usual referential footnotes (citing year and chapter number of an Act referred to) of the kind used in statutory instruments to assist the reader of the instrument.

2.6 The substantive notes should be included in the text of the Schedules, as they are either instructions to the applicant or guidance to him. It is unhelpful to an applicant for these to be treated as mere footnotes as if they have no legislative effect. Ofgem accepts that the presentation of the footnotes does not make the necessary distinction and undertakes to correct this when the instrument is next amended. The Committee accordingly reports Schedules 1 and 2 for defective drafting, acknowledged by Ofgem.

3 S.I. 2007/1972: reported for defective drafting

Electricity (Applications for Licences, Modifications of an Area and Extensions and Restrictions of Licences) Regulations 2007 (S.I. 2007/1972)

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

3.2 Regulation 3(3)(a) of this instrument provides that, unless the context otherwise requires, any reference to a numbered regulation or Schedule is a reference to the regulation or Schedule bearing that number in these Regulations.

3.3 In a memorandum printed at Appendix 3, the Office of the Gas and Electricity Markets Authority (“Ofgem”) acknowledges that there is no reference to a numbered regulation in the text of the instrument, and that the inclusion of “any reference to a numbered regulation” is superfluous, and undertakes to amend regulation 3(3)(a) at the next opportunity. The Committee accordingly reports regulation 3(3)(a) for defective drafting, acknowledged by Ofgem.

3.4 The Committee would also observe that both sub-paragraphs (a) and (b) (which provides that, unless the context otherwise requires, any reference to a numbered paragraph is a reference to the paragraph bearing that number in the regulation in which the reference appears) of regulation 3(3) merely restate what is a generally accepted principle of statutory interpretation. Although such provisions used to be common, it is now proper drafting practice to avoid them except where otherwise ambiguity would be manifest. Thus, even if there had been a reference to a numbered regulation in this instrument, it would not have been necessary to include regulation 3(3).

3.5 Schedule 1 prescribes the form of an application for a licence or an application for a modification of a licence under the Electricity Act 1989. Schedule 2 contains instructions to an applicant to provide certain information and documents. In both Schedules various footnotes appear. Some of these are substantive notes directed to the applicant (for example, explaining the meaning of expressions used, or stating the circumstances in which an application may not be made) and others are the usual referential footnotes (citing year and chapter number of an Act referred to) of the kind used in statutory instruments to assist the reader of the instrument.

3.6 The substantive notes should be included in the text of the Schedules, as they are either instructions to the applicant or guidance to him. It is unhelpful to an applicant for these to be treated as mere footnotes as if they have no legislative effect. Ofgem, whose memorandum responds to, but does not include the text of, the Committee’s relevant question1, accepts that the presentation of the footnotes does not make the necessary distinction and undertakes to correct this when the instrument is next amended. The Committee accordingly reports Schedules 1 and 2 for defective drafting, acknowledged by Ofgem.

1 An abbreviated text runs as follows: ‘Why does the presentation of the footnotes to the Schedules fail to distinguish between those that are substantive ... and those that are referential ...?’

4 S.I. 2007/2003: reported for unexpectedly limited use of the enabling power

Heather and Grass etc. Burning (England) Regulations 2007 (S.I. 2007/2003)

4.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they appear to make an unexpectedly limited use of the enabling power in one respect.

4.2 Regulation 6 prohibits the burning of specified vegetation in specified circumstances except under and in accordance with a licence issued by Natural England under regulation 7. Regulation 7 deals with applications for such licences and the circumstances in which a licence may be granted. Paragraph (4) of regulation 7 states that, if Natural England proposes not to issue a licence, to issue a licence in respect of only part of the land to which the application relates, or to issue a licence subject to conditions, it shall notify the applicant in writing of its proposed decision and of the reasons for it.

4.3 The Regulations are silent as to what happens next, so there is no indication as to whether the applicant is entitled to ask Natural England to change its mind and to have that request considered and, if so, the period that would be left open for the request to be made.

4.4 In a memorandum printed at Appendix 4, the Department for Environment, Food and Rural Affairs states that the omission of a requirement for Natural England not to make its decision until a specified time after giving its notification, and of any specified period within which the applicant may make representations to Natural England, was deliberate and for reasons of policy. It states that applicants can still make representations to Natural England, that Natural England must act reasonably in considering these representations, and that applicants can take judicial review proceedings if they feel sufficiently aggrieved.

4.5 The Committee accepts that administrative law imposes an obligation on public authorities to act reasonably. However in this case the failure to specify intervening steps in any way leaves it unclear to any prospective applicant whether (in the circumstances) the notice invites representations or merely gives the applicant an unspecified time to prepare for an inevitable decision, as an extra over the right to challenge it once made. It also builds in uncertainty as to when a period for bringing judicial review would start and thus end. The imposition of a requirement to give notice of a proposed decision, combined with a total absence of any indication of how or when that decision may be made, appears to be an unexpectedly limited use of the enabling power, and the Committee reports accordingly.

5 S.I. 2007/2068: reported for defective drafting

Social Security (Contributions) (Amendment No. 5) Regulations 2007 (S.I. 2007/2068)

5.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are each defectively drafted in one respect.

5.2 Regulation 2 inserts a new Part 3A into Schedule 4 to the Social Security (Contributions) Regulations 2001. Paragraph 29F provides for a specified amount to be paid to HM Revenue and Customs and sub-paragraph (3) of that paragraph provides that, in certain cases, the specified amount carries interest from the reckonable date until the date on which payment is made. The expression “the reckonable date” is not explained.

5.3 In a memorandum printed at Appendix 5, HM Revenue and Customs state that the omission of a definition was an oversight, and undertakes to correct it in a subsequent instrument. The Committee accordingly reports these Regulations for defective drafting, acknowledged by the Department. 6 S.I. 2007/2317: reported for doubtful vires

Criminal Procedure (Amendment No. 2) Rules 2007 (S.I. 2007/2317)

6.1 The Committee draws the special attention of the House to these Rules on the ground that there appears to be a doubt as to whether they are intra vires.

6.2 The Rules were made under section 69 of the Courts Act 2003 by the Criminal Procedure Rule Committee. The procedure for making them is set out in section 72 in that Act. As an essential part of the procedure before 22 August 2007 they had to be allowed by the Lord Chancellor ‘with the concurrence of the Secretary of State’ - see section 72(3). By virtue of Schedule 1 to the Interpretation Act 1978 a function vested in ‘the Secretary of State’ can be exercised by any Secretary of State.

6.3 Two features thus distinguish functions vested in ‘the Secretary of State’ from those vested in specific Secretaries of State or other named Ministers of the Crown. Both features are largely convenient to a government in enabling it to avoid the Parliamentary scrutiny that legislation involves. The first is that, as a matter of routine machinery, responsibility for the functions can be entrusted to any Secretary of State by administrative means. The second is that the entrusting is, as a matter of law, not exclusive; the fact that in practice no other Secretary of State generally exercises them is a matter of internal government arrangement rather than law, and it remains legally possible for any other Secretary of State to exercise them, thus providing additional flexibility (e.g. in the case of absence or incapacity of the Secretary of State routinely entrusted with the function).

6.4 The Rules were allowed on 26 July 2007 by Jack Straw MP signing them as Lord Chancellor and Secretary of State for Justice. Reasons for that approach were set out in the Ministry of Justice’s original (voluntary) memorandum at Appendix 6. The 2003 need for concurrence rested in the separation of responsibility for policy on criminal law, then entrusted to the Home Office, from that on court administration, then entrusted to the Lord Chancellor’s Department. Responsibility for policy on criminal law was, before these

Rules were allowed, removed from the Home Office and entrusted to the Ministry of Justice, and an announcement in Parliament to that effect was made by the Prime Minister on 29 March 2007. Accordingly, before allowing the Rules, Jack Straw MP considered the matter as required by both his separate offices.

6.5 In routine machinery of government terms that was wholly understandable. However it was, in literal terms, incompatible with a provision that required ‘concurrence’, which, according to the most applicable dictionary definition (‘agreement, assent’), calls for separate persons rather than a single person acting in more than one capacity. If each separate office that person held had been a ‘corporation sole’ (i.e. recognised in law as a separate legal entity), legal separation would have been achieved; but that process had not been completed at the time the Rules were allowed. The Committee accordingly asked the Ministry how formal compliance, which in the Committee’s view could have been achieved by the concurrence of a separate Secretary of State, had been achieved in this case.

6.6 In anticipation of, and response to, the Committee’s question, the Ministry, in both in its original and its second memorandum (also at Appendix 6), argues for a purposive rather than literal interpretation of section 72(3), on the following basis. The underlying purpose of that provision (demonstrated in the Explanatory Notes to the Courts Act 2003) was recognition of the separation of policy responsibilities at the time; it follows that, once those responsibilities become vested in one person holding two offices, the underlying purpose had to be met by that single person acting in pursuance of both areas of policy responsibility. On that basis it would be ‘inappropriate’ to ask any other office holder to carry out the function of concurring. Accordingly it is wrong to conclude that concurrence of any other Secretary of State would have secured compliance with section 72(3).

6.7 That last point, in the Committee’s view, cannot be upheld. The Ministry’s second memorandum itself recognises absence (by reason of ill-health or otherwise) as providing scope for the concurrence of a separate Secretary of State. It follows that its concept of what is appropriate cannot be legally based. So far as constitutional propriety is concerned, the Ministry’s argument appears in the Committee’s view to rest on the large assumption that convenience to government is a constitutional principle. An alternative argument is that a government, with the benefit of the flexibility involved in powers being vested in ‘the Secretary of State’, is subject to the occasional burden carried by the same flexibility - in this case the slight inconvenience that involvement of a different Secretary of State is apt not only where the routinely entrusted Secretary of State is absent but also where the routinely entrusted Secretary of State does not (yet) have the legal capacity to carry out the function in question. As from 22 August 2007, the requirement of concurrence was abolished by the Secretary of State for Justice Order 2007 (SI 2007/2128).

6.8 It follows, in the Committee’s view, that while the Department’s argument for a purposive approach is respectably tenable, it is insecure; in contrast involvement of another Secretary of State as the concurring Minister would have been legally secure. Accordingly the Committee reports these Rules on the ground that there appears to be a doubt as to whether they are intra vires.

Instruments not reported

The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

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. Armed Forces (Redress of Individual Grievances) Regulations 2007 Draft S.I. Armed Forces (Service Complaints Commissioner) Regulations 2007 Draft S.I. Legislative and Regulatory Reform (Regulatory Functions) Order 2007

Instruments subject to annulment

S.I. 2007/2607 Companies Act 2006 (Commencement No. 4 and Commencement No. 3 (Amendment)) Order 2007 S.I. 2007/2684 Road Traffic (Permitted Parking Area and Special Parking Area) (County of Worcestershire) (District of Wyre Forest) Order 2007 ○ S.I. 2007/2712 Import and Export Restrictions (Foot-and-Mouth Disease) (No.3) Regulations 2007 S.I. 2007/2741 Haringey Sixth Form Centre (Governing Body) Order 2007 S.I. 2007/2742 County of Durham and Darlington National Health Service Foundation Trust (Transfer of Trust Property) Order 2007 S.I. 2007/2743 Lincolnshire Partnership National Health Service Trust (Transfer of Trust Property) Order 2007 S.I. 2007/2744 Portsmouth City Teaching Primary Care Trust (Transfer of Trust Property) Order 2007 S.I. 2007/2745 Surrey and Sussex Healthcare National Health Service Trust (Transfer of Trust Property) Order 2007 S.I. 2007/2746 South Downs Health National Health Service Trust (Transfer of Trust Property) Order 2007 S.I. 2007/2751 Police Federation (Amendment) Regulations 2007 S.I. 2007/27822 Education (Recognition of School Teachers’ Professional Qualifications) (England) (Consequential Provisions) Regulations 2007 S.I. 2007/2784 Fire and Rescue Services (England) (Amendment) Order 2007 S.I. 2007/2785 Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007 S.I. 2007/2786 Plastic Materials and Articles in Contact with Food (Lid Gaskets) (England) Regulations 2007 S.I. 2007/2790 Materials and Articles in Contact with Food (England) Regulations 2007 S.I. 2007/2796 Medical Act 1983 Amendments (Further Transitional Provisions) Order of Council 2007

2 As published the title wrongly refers to this S.I. as “Education (Recognition of School Teachers’ Professional Qualifications) (Consequential Provisions) (England) Regulations 2007”

S.I. 2007/2797 Road Traffic (Permitted Parking Area and Special Parking Area) (County of Staffordshire) (Newcastle-under-Lyme and Stafford) Order 2007 S.I. 2007/2800 Family Proceedings Fees (Amendment) (No.2) (Amendment) Order 2007 S.I. 2007/2801 Civil Proceedings Fees (Amendment) (No.2) (Amendment) Order 2007 S.I. 2007/2826 Companies (Tables A to F) (Amendment) (No. 2) Regulations 2007 S.I. 2007/2837 Road Traffic (Permitted Parking Area and Special Parking Area) (County of Gloucestershire) (Cheltenham, Cotswold, Gloucester, Stroud and Tewkesbury) Order 2007 S.I. 2007/2838 Bus Lane Contraventions (Approved Local Authorities) (England) (Amendment) (No. 7) Order 2007 S.I. 2007/2868 Housing Benefit (Local Housing Allowance and Information Sharing) Amendment Regulations 2007 S.I. 2007/2869 Housing Benefit (State Pension Credit) (Local Housing Allowance and Information Sharing) Amendment Regulations 2007 S.I. 2007/2870 Housing Benefit (Local Housing Allowance, Miscellaneous and Consequential) Amendment Regulations 2007 S.I. 2007/2875 Social Security (Attendance Allowance and Disability Living Allowance) (Amendment) Regulations 2007 S.I. 2007/2877 Castle Hill Primary School (Change to School Session Times) Order 2007 S.I. 2007/2904 Community Drivers’ Hours and Working Time (Foot-and-Mouth Disease) (Temporary Exception) Regulations 2007 S.I. 2007/2905 Social Security (Contributions) (Amendment No. 9) Regulations 2007 S.I. 2007/2907 Channel Tunnel (International Arrangements) (Amendment) Order 2007 S.I. 2007/2908 Channel Tunnel (Miscellaneous Provisions) (Amendment) Order 2007 S.I. 2007/2911 Social Security (Claims and Information) Regulations 2007 S.I. 2007/2932 Markets in Financial Instruments Directive (Consequential Amendments) Regulations 2007 S.I. 2007/2936 Criminal Defence Service (General) (No. 2) (Amendment No. 2) Regulations 2007 S.I. 2007/2937 Criminal Defence Service (Financial Eligibility) (Amendment No. 2) Regulations 2007

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. 2007/2687 Education (Listed Bodies) (England) Order 2007 S.I. 2007/2688 Education (Recognised Bodies) (England) Order 2007 S.I. 2007/2708 Spring Traps Approval (Variation) (England) Order 2007 S.I. 2007/2711 Animal Welfare Act 2006 (Commencement No. 2 and Saving and Transitional Provisions) (England) Order 2007 S.I. 2007/2717 Childcare Act 2006 (Commencement No. 3 and Transitional Provision) Order 2007 S.I. 2007/2755 Imperial College Healthcare National Health Service Trust (Establishment) and the Hammersmith Hospitals National Health Service Trust and the St Mary's National Health Service Trust (Dissolution) Order 2007 S.I. 2007/2756 Staffordshire Ambulance Service National Health Service Trust (Dissolution) 2007

S.I. 2007/2798 Mental Health Act 2007 (Commencement No. 3) Order 2007 S.I. 2007/2799 Concessionary Bus Travel Act 2007 (Commencement and Transitional Provisions) Order 2007 S.I. 2007/2802 Designation of Schools Having a Religious Character (Independent Schools) (England) (No. 2) Order 2007 ○ S.I. 2007/2808 Bluetongue (Amendment) (No. 2) Order 2007 ○ S.I. 2007/2809 Movement of Animals (Restrictions) (England) (Amendment) Order 2007 S.I. 2007/2819 Welfare Reform Act 2007 Commencement (No. 3) Order 2007 S.I. 2007/2872 Welfare Reform Act 2007 (Commencement No.4, and Savings and Transitional Provisions) Order 2007 S.I. 2007/2878 Returning Officers (Parliamentary Constituencies) (England) Order 2007 S.I. 2007/2901 Finance Act 2006 (Climate Change Levy: Amendments and Transitional Savings in Consequence of Abolition of Half-rate Supplies) (Appointed Day) Order 2007 S.I. 2007/2902 Finance Act 2007 (Climate Change Levy: Reduced-rate Supplies etc) (Appointed Day) Order 2007 S.I. 2007/2913 Armed Forces Act 2006 (Commencement No. 2) Order 2007 S.I. 2007/2920 Channel Tunnel Rail Link (Nomination) (Amendment) Order 2007

Appendix 1

S.I. 2007/1949: memorandum from the Department for Business, Enterprise and Regulatory Reform

European Grouping of Territorial Cooperation Regulations 2007 (S.I. 2007/1949)

The Committee has asked the Department for Business, Enterprise and Regulatory Reform for a memorandum on the following point:

Regulation 4(2) states that regulation 4 is subject to regulation 8. Explain how the latter qualifies the former.

1. Article 5(1) of Regulation (EC) No 1082/2006 of the European Parliament and of the Council on a European grouping of territorial cooperation3 (“EC Regulation”) provides that an EGTC’s statutes are to be registered or published in accordance with the applicable national law in the Member State where the EGTC has its registered office.

2. Regulation 4(1) of the European Grouping of Territorial Cooperation Regulations 2007 (“EGTC Regulations”) provides that an EGTC’s statutes are to be published in the London, Edinburgh or Belfast Gazette.

3. The final sub-paragraph of Article 12(2) of the EC Regulation enables the UK to prohibit a UK EGTC from registering in the UK if any of its members have unlimited liability.

4. This option is exercised by the inclusion of regulation 8 of the EGTC Regulations, which provides that a UK EGTC may not be formed with a member which has limited liability. The process of formation includes the essential step of publication of statutes in the Gazette under regulation 4. Since, therefore, statutes of a UK EGTC with a member which has limited liability may not be published under regulation 4 because of regulation 8, regulation 4 is subject to regulation 8.

Department for Business, Enterprise and Regulatory Reform

3 O.J. No L210, 31.7.2006, p.19.

Appendix 2

S.I. 2007/1971: memorandum from the Office of the Gas and Electricity Markets Authority

Gas (Applications for Licences and Extensions and Restrictions of Licences) Regulations 2007 (S.I. 2007/1971)

1. This memorandum has been prepared by the Office of the Gas and Electricity Markets (“Ofgem”) in response to the Joint Committee’s letter of 10 October 2007 which requested a memorandum on the following points:

(1) In relation to regulation 3(3)(a), where is any numbered regulation referred to in the text of the instrument……?

2. Ofgem notes that there is no reference to any numbered regulation in the text of the Gas (Applications for Licences and Extensions and Restrictions of Licences) Regulations 2007 (S.I. 2007/1971) (“the instrument”). Accordingly, the inclusion of “any reference to a numbered regulation” in regulation 3(3)(a) is superfluous. We note that this does not affect the operation of the instrument. We thank you for drawing this to our attention and the Gas and Electricity Markets Authority (“the Authority”) will amend regulation 3(3)(a) of the instrument at the next opportunity.

(1) ….. and where does the context require a numbered Schedule to mean anything other than the meaning given?

3. There is one place in the instrument where the context requires a numbered Schedule to mean anything other than the meaning given in regulation 3(3)(a). Regulation 6(2)(a) contains a reference to footnote (a) at the bottom of page three of the instrument. This footnote refers to “schedule 6 of the Utilities Act 2000”.

(2) Why does the presentation of the footnotes to the Schedules fail to distinguish between those that are substantive (e.g. footnote (b) to Schedule 1, paragraph 3) from those that are referential (e.g. footnote (a) to Schedule 1, paragraph 5)?

4. Ofgem accepts that the presentation of the footnotes in the instrument does not distinguish between footnotes that are substantive and those that are referential. Ofgem is grateful to the Committee for pointing this out and the Authority will make amendments to the Schedules to effect this change when the instrument is next amended.

Ofgem, CA division, 15 October 2007

Appendix 3

S.I. 2007/1972: memorandum from the Office of the Gas and Electricity Markets Authority

Electricity (Applications for Licences, Modifications of an Area and Extensions and Restrictions of Licences) Regulations 2007 (S.I. 2007/1972)

1. This memorandum has been prepared by the Office of the Gas and Electricity Markets Authority (“Ofgem”) in response to the Joint Committee’s letter of 10 October 2007 which requested a memorandum on the following points:

(1) In relation to regulation 3(3)(a), where is any numbered regulation referred to in the text of the instrument?

2. Ofgem notes that there is no reference to any numbered regulation in the text of the Electricity (Applications for Licences, Modifications of an Area and Extensions and Restrictions of Licences) Regulations 2007 (S.I. 2007/1972) (“the instrument”). Accordingly, the inclusion of “any reference to a numbered regulation” in regulation 3(3)(a) is superfluous. We note that this does not affect the operation of the instrument. We thank you for drawing this to our attention and the Gas and Electricity Markets Authority (“the Authority”) will amend regulation 3(3)(a) of the instrument at the next opportunity.

3. Ofgem accepts that the presentation of the footnotes in the instrument does not distinguish between footnotes that are substantive and those that are referential. Ofgem is grateful to the Committee for pointing this out and the Authority will make amendments to the Schedules to effect this change when the instrument is next amended.

Ofgem, CA division 15 October 2007

Appendix 4

S.I. 2007/2003: memorandum from the Department for Environment, Food and Rural Affairs

Heather and Grass etc. Burning (England) Regulations 2007 (S.I. 2007/2003)

1. The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following points:

If Natural England notifies an applicant that it proposes to take any action described in regulation 7(4),

(a) how long in advance of the action should that notice be given;

(b) what period (if any) is to be available for the applicant to persuade Natural England to act otherwise than it proposes;

2. As to (a), no period is specified in the instrument as to how long, in advance of the decision, notice must be given. In any particular case the length of the period will depend on the facts of the case.

3. As to (b), no statutory period is available for the applicant to persuade Natural England to act otherwise than it proposes.

4. As to (c), the Regulations are silent on these points for policy reasons:

(i) In the case of (a), the Department has maintained the position as it was in regulation 7(6) of the Heather and Grass etc. (Burning) Regulations 1986 (SI 1986/428) (“the 1986 Regulations”).

(ii) In the case of (b), the Department decided to remove the time-consuming and costly “appointed person” regime found in regulation 7(6) to (9) of the 1986 Regulations. Applicants can still make representations to Natural England concerning their decisions. Natural England must act reasonably in considering these representations. And applicants can take judicial review proceedings if they feel sufficiently aggrieved.

Department for Environment, Food and Rural Affairs 16th October 2007

Appendix 5

S.I. 2007/2068: memorandum from HM Revenue and Customs

The Social Security (Contributions) (Amendment No. 5) Regulations 2007 (S.I. 2007/2068)

In a letter dated 10th October 2007, the Clerk to the Joint Committee asked the following question:

What is the meaning of “the reckonable date” in the new paragraph 29F(3), and where is this explained?

Paragraph 29F(3) relates to the payment of interest where a specified amount comprising National Insurance contributions is paid late. Paragraph 17 of Schedule 4 to the Social Security (Contributions) Regulations 2001 (S.I. 2001/1004) relates to interest on overdue earnings related contributions or Class 1B contributions. Paragraph 17(1) prescribes that contributions paid late carry interest from “the reckonable date”. Paragraph 17(3)(b)(i) defines reckonable date in relation to an earnings related contribution as “the 14th day or, if payment was made by an approved method of electronic communications in respect of earnings paid after 5th April 2004, the 17th day after the end of the year in respect of which it was due”.

The Department had intended the definition in paragraph 17(3)(b)(i) to apply for the purpose of paragraph 29F(3). It is accepted that that definition applies only for the purposes of paragraph 17 but the extension of the definition to the new paragraph was overlooked. The Department apologises for the error and will include amendments to deal with it in a subsequent instrument, which will also make other changes to the régime for managed service companies.

HM Revenue and Customs 15th October 2007

Appendix 6

S.I. 2007/2317: memorandum from the Ministry of Justice

Criminal Procedure (Amendment No. 2) Rules 2007 (S.I. 2007/2317)

1. This memorandum is volunteered by the Ministry of Justice to enlarge on the information contained in paragraph 3 of the Explanatory Memorandum to this statutory instrument.

2. This statutory instrument is made according to the procedure for which section 72 of the Courts Act 2003 provides.

By subsection (2):

‘Rules made by the Criminal Procedure Rule Committee must be (a) signed by a majority of the members of the Committee, and (b) submitted to the Lord Chancellor.

By subsection (3):

‘The Lord Chancellor may, with the concurrence of the Secretary of State, allow or disallow rules so made.’

By subsection (5):

‘Rules so made and allowed by the Lord Chancellor (a) come into force on such day as the Lord Chancellor directs, and (b) are to be contained in a statutory instrument to which the Statutory Instruments Act 1946 (c. 36) applies as if the instrument contained rules made by a Minister of the Crown.’

3. The Explanatory Notes to the Courts Act 2003 describe as follows the reason for the requirement for concurrence imposed by subsection (3):

‘The agreement of the Secretary of State is necessary as he bears responsibility for criminal policy, while the Lord Chancellor is responsible for the administration of the courts.’

4. The function of the Secretary of State under subsection (3) formerly was assigned to the Home Secretary. On 29th March, 2007, the Prime Minister announced (Hansard 29 Mar 2007 Column 134WS and Column 135WS) the reassignment of that responsibility:

‘The Ministry of Justice will be responsible for policy on the overall criminal, civil, family and administrative justice system, including sentencing policy, as well as the courts, tribunals, legal aid and constitutional reform. It will help to bring together management of the criminal justice system, meaning that once a suspect has been

charged their journey through the courts, and if necessary prison and probation, can be managed seamlessly.’

5. The offices of Lord Chancellor and of Secretary of State for Justice are distinct offices of state but held by the same Minister, the Rt Hon Jack Straw MP. There is no rule of law that prohibits the holding of more than one office of state by a single Minister. In his capacity as Lord Chancellor the Minister has allowed the rules contained in this statutory instrument. In his distinct capacity as Secretary of State for Justice he has concurred in the exercise of that function. In the view of the Ministry of Justice the purpose of a provision ostensibly requiring the involvement of two Ministers, such as section 72(3) of the Courts Act 2003, is to ensure that there are taken into account the responsibilities and interests of each relevant office of state. In this case:

a) in his capacity as Lord Chancellor, the Minister took into account explicitly -

(i) the statutory objective for the making of criminal procedure rules (‘Any power to make or alter Criminal Procedure Rules is to be exercised with a view to securing that (a) the criminal justice system is accessible, fair and efficient, and (b) the rules are both simple and simply expressed’: section 69(4), Courts Act 2003),

(ii) the duty imposed on the Lord Chancellor to ensure that there is an efficient and effective system to support the carrying on of the business of the courts (section 1(1), Courts Act 2003), and

(iii) the representative constitution of the Committee and the extent of its consultation; and

b) in his capacity as Secretary of State for Justice, he took into account explicitly the overall framework of criminal law and policy.

6. The Secretary of State for Justice Order 2007, S.I. No. 2128 (which comes into force on 22nd August, 2007) transfers the function of concurrence under section 72(3) of the Courts Act 2003 to the Lord Chancellor and, as a consequence of that, amends section 72(3) to remove the reference to the Secretary of State. Accordingly, all functions under section 72(3) will be vested in the Lord Chancellor who, in the process of considering whether to allow rules, will continue to take account of criminal law and policy matters.

Ministry of Justice 8th August, 2007

Second Memorandum:

1. The Committee has requested a memorandum on the following points: Given - (a) the applicable dictionary definition of “concurrence” as used in section 72(3) of the Courts Act 2003 (“agreement, assent”), (b) the necessary implication that it calls for separate persons, and (c) the absence in the Department’s voluntary memorandum of any indication of the status of the office of either the Secretary of State for Justice or the Lord Chancellor as a corporation sole (thus establishing that separation), how does the Department consider that formal compliance with section 72(3) (which could have been achieved by obtaining the concurrence of a different Secretary of State) has been achieved here ? 2. The office of Lord Chancellor has been treated as having the status in law of a quasi corporation sole since time immemorial: see Halsbury’s Laws of England, volume 9(2), paragraph 1102. The office of Secretary of State for Justice was incorporated as a corporation sole by article 3 of the Secretary of State for Justice Order 2007, S.I. 2007/2128. However, at all times material to the making of the Criminal Procedure (Amendment No. 2) Rules 2007 both offices were held by the same person, namely the Rt. Hon. Jack Straw MP.

3. The Ministry respectfully disagrees with the Committee’s suggestions - a) that the requirement for concurrence in section 72(3) of the Courts Act 2003 necessarily implies the participation of separate persons, and b) that in the circumstances of this particular statutory instrument the concurrence of a different Secretary of State would have secured compliance with that section.

4. The Ministry relies upon and repeats the analysis set out at paragraph 5 of its first (voluntary) memorandum, against the background recited at paragraphs 2, 3 and 4 of that memorandum. Where distinct responsibilities and interests are assigned to an office of state that is not vacant and the holder of that office is available to undertake those responsibilities and safeguard those interests (not being absent by reason of ill- health or otherwise), then in our view it is the obligation of that office holder, and of no other, to do so. It follows that it would be inappropriate to ask the holder of any other office to carry out that function. That principle in our view applies in respect of each such office held by an individual who holds more than one office. What matters is not that the offices of state participating in the decision under section 72(3) of the Courts Act 2003 should have separate identities in law, or separate individual occupants, but that the responsibilities and interests that attach to each should be taken into account: that being what we understand to have been Parliament’s intention in enacting that provision.

Ministry of Justice, 15th October, 2007