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Twelfth Report of Session 2009-10

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Twelfth Report of Session 2009-10 House of Lords House of Commons Joint Committee on Statutory Instruments Twelfth Report of Session 2009-10 Drawing special attention to: Royal Parks and Other Open Spaces (Amendment) etc. Regulations 2010 (Draft S.I.) Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Chemical Agents) Regulations 2010 (S.I. 2010/330) Notification of Conventional Tower Cranes Regulations 2010 (S.I. 2010/333) Armed Forces (Redundancy, Resettlement and Gratuity Earnings Schemes) Order 2010 (S.I. 2010/345) Ordered by the House of Lords to be printed 24 March 2010 Ordered by the House of Commons to be printed 24 March 2010 HL Paper 105 HC 3-xii Published on 30 March 2010 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) (Chairman) Lord Clinton-Davis (Labour) Dr Roberta Blackman-Woods MP (Labour, City of Durham) Baroness Jones of Whitchurch (Labour) Mr Peter Bone MP (Conservative, Wellingborough) Lord Kimball (Conservative) Mr Nigel Dodds MP (Democratic Unionist, Belfast North) Countess of Mar (Crossbench) Jeff Ennis MP (Labour, Barnsley East and Mexborough) Earl of Mar and Kellie (Liberal Democrat) Judy Mallaber MP (Labour, Amber Valley) Lord Walpole (Crossbench) Chris Ruane MP (Labour, Vale of Clwyd) 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 on the Internet at www.parliament.uk/jcsi. 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 and Christine Cogger (Commons); Allan Roberts, Peter Milledge and Nicholas Beach (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 2026; the Committee's email address is: [email protected]. 1 Contents Report Page Instruments reported 2 1 Draft S.I: Reported for defective drafting. 2 2 S.I 2010/330: Reported for defective drafting. 3 3 S.I 2010/333: Reported for defective drafting. 4 4 S.I 2010/345: Reported for defective drafting. 5 Instruments not reported 7 Annex 7 Appendix 1 12 1 Draft S.I: memorandum from the Department for Culture, Media and Sport 12 Appendix 2 13 2 S.I. 2010/330: memorandum from the Department for Transport 13 Appendix 3 15 3 S.I. 2010/333: memorandum from the Department of Health/Department for Work and Pensions 15 Appendix 4 16 4 S.I. 2010/345: memorandum from the Ministry of Defence 16 2 Instruments reported At its meeting on 24 March 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 four 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 Draft S.I: Reported for defective drafting. Royal Parks and Other Open Spaces (Amendment) etc. Regulations 2010 (Draft S.I.) 1.1 The Committee draws the special attention of both Houses to these draft Regulations on the ground that they are defectively drafted in two respects. 1.2 Regulation 1 of this draft instrument deals with preliminaries, regulation 2 amends the Royal Parks and Other Open Spaces Regulations 1997, regulation 3 amends Regulations relating to Greenwich Park, regulation 4 amends regulations relating to Hyde Park and The Regent’s Park, regulation 5 contains provision as to parking charges in respect of Bushy Park and Richmond Park, regulation 6 provides for excess charges to be payable where there is a breach of regulation 5, regulation 7, which is headed “Exemptions”, prescribes three circumstances under which no parking charge is payable, and regulation 8 contains provisions relating to regulations 5, 6 and 7. 1.3 Regulation 7 (unlike regulations 6 and 8) is not expressed to relate solely to parking charges payable under regulation 5. In a memorandum printed at Appendix 1, the Department for Culture, Media and Sport suggests that it was not necessary to specify the application of regulation 7 which, in its view, must refer to the only charges imposed by a free-standing provision, namely regulation 5. The Committee does not agree. The powers under which this instrument would be made are capable of applying to numerous parks and open spaces, and there is nothing in the draft to indicate that regulation 7 applies only to Bushy Park and Richmond Park. The Committee accordingly reports regulation 7 for defective drafting. 1.4 Paragraph (1) of regulation 5 provides that a parking charge is payable in respect of a vehicle parked in Bushy Park or Richmond Park at any time between 08:30 hours and 18:30 hours (or the time at which the Park in question closes if that is earlier). Paragraphs (2) and (3) set out amount of charge (per 30 or 15 minutes respectively) and a maximum charge. Paragraph (4) provides that the charge shall be paid to the Secretary of State (or to a person authorised by him to receive such a charge on his behalf) by the person who parked the vehicle in the park. Paragraph (5) permits the Secretary of State (or authorised person) to refuse to accept a payment made other than by such means as are described in a notice exhibited in or at a parking place as means by which payment may be made. 1.5 The Committee asked how it is intended to be established that a contravention of regulation 5 has occurred, given that regulation 5 does not specify when a charge is payable. (The regulations imposing parking charges in other Royal Parks impose an obligation, not to pay a parking charge, but to display a parking permit, for which a charge 3 must be paid.) Regulation 8(2) confers powers on the court where, on any proceedings for a contravention of regulation 5, it is proved that any part of the amount which has become due has not been paid. 1.6 The Department considers that it is implicit in the wording of regulation 5(1) that the obligation to pay the charge is triggered by the act of parking a vehicle in a parking place in the Park in question. It states that the payment for the anticipated duration of the vehicle’s stay must be made forthwith once the vehicle is parked and any additional payment must be made forthwith if the car remains parked after the initial paid period expires, and that the administrative arrangements for operation of the scheme, including the various means by which the charge can be paid, will be described in a notice exhibited by or on behalf of the Secretary of State at the relevant car park, as described in regulation 5(5). 1.7 The italicised words above, quoted from the Department’s memorandum, suggest that the Department is simply assuming that the Regulations achieve what it wants them to achieve. Regulation 5(5) refers only to the means of payment and is entirely silent as to when payment must be made. It is arguable that a person could park a vehicle in Richmond Park every day for a year and pay the year’s charges annually in arrears without contravening regulation 5.
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