House of Lords House of Commons Joint Committee on Statutory Instruments Thirty-first Report of Session 2007–08 Drawing special attention to: Tax Credits (Miscellaneous Amendments) (No. 2) Regulations 2008 (S.I. 2008/2169) Town and Country Planning (Trees) (Amendment) (England) Regulations 2008 (S.I. 2008/2260) Gas and Electricity Regulated Providers (Redress Scheme) Order 2008 (S.I. 2008/2268) Zoonoses and Animal By-Products (Fees) (England) Regulations 2008 (S.I. 2008/2270) Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment No.2) Regulations 2008 (S.I. 2008/2363) Ordered by The House of Lords to be printed 12 November 2008 Ordered by The House of Commons to be printed 12 November 2008 HL Paper 196 HC 38-xxxi Published on 17 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]. 1 Contents Report Page Instruments reported 2 1 S.I. 2008/2169: reported for defective drafting and an unjustified breach of the 21- day rule 2 2 S.I. 2008/2260: reported for defective drafting 3 3 S.I. 2008/2268: reported for defective drafting 3 4 S.I. 2008/2270: reported for defective drafting 5 5 S.I. 2008/2363: reported for failure to accord with proper legislative practice 5 Instruments not reported 6 Annex 7 Appendix 1 8 S.I. 2008/2169: memorandum from Her Majesty’s Revenue and Customs 8 Appendix 2 10 S.I. 2008/2260: memorandum from the Department for Communities and Local Government 10 Appendix 3 11 S.I. 2008/2268: memorandum from the Department For Business, Enterprise and Regulatory Reform 11 Appendix 4 12 S.I. 2008/2270: memorandum from the Department for Environment, Food and Rural Affairs 12 Appendix 5 13 S.I. 2008/2363: memorandum from the Department for Communities and Local Government 13 2 Instruments reported At its meeting on 12 November 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 five 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. 2008/2169: reported for defective drafting and an unjustified breach of the 21-day rule Tax Credits (Miscellaneous Amendments) (No. 2) Regulations 2008 (S.I. 2008/2169) 1.1 The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in one respect and that there was an unjustified breach of the 21 day rule. 1.2 Regulation 2(3) inserts new paragraph (2B) into regulation 14 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002. That new paragraph provides that “Care provided for a child in England is not registered or approved care under paragraph (2)(a)(iii)” in two specified circumstances. In a memorandum printed at Appendix 1 HM Revenue and Customs acknowledges that the words “registered or approved” are not appropriate, regrets their inclusion though those words could be argued not to alter the effect of the provision and states that they will be omitted by an amending instrument. The Committee reports regulation 2(3) for defective drafting, acknowledged by the Department. 1.3 The Regulations breach the 21 day rule mentioned in section 4.13 of Statutory Instrument Practice, which requires that instruments subject to annulment should not normally be brought into force until at least 21 days after laying. In its memorandum and its earlier Explanatory Memorandum (a relevant extract of which is also printed at Appendix 1) the Department explains that the Regulations had to come into force on 1 September 2008 to coincide with the implementation of Part 3 of the Childcare Act 2006 and that the fact that the Regulations were laid on 14 August 2008 resulted from lengthy consultation with the Department for Children, Schools and Families on a number of issues and the need for approval of a connected instrument by Parliamentary Counsel. The Committee does not regard consultation within Government, taken alone, as an adequate reason for breach of the rule and therefore asked what factors (if any) apart from discussions within Government contributed to it. In its response the Department accepted that there were none. The Committee accordingly reports the Regulations for an unjustified breach of the 21 day rule. 3 2 S.I. 2008/2260: reported for defective drafting Town and Country Planning (Trees) (Amendment) (England) Regulations 2008 (S.I. 2008/2260) 2.1 The Committee draws the special attention of both Houses to these Regulations on the ground that regulation 5 is defectively drafted in one respect. 2.2 Regulation 1 provides for the Regulations to come into force on 1 October 2008 and to apply in relation to applications and appeals made on or after that date. Regulation 5 substitutes a new Part 4 in the Town and Country Planning (Trees) Regulations 1999. New regulation 11(1) in that Part provides that Part 4 applies in relation to certain types of appeal “where that appeal is made on or after the date on which these Regulations come into force” (Committee’s italics). New regulation 11(1) forms part of the text of the 1999 Regulations; those Regulations came into force on 2 August 1999. 2.3 In a memorandum printed at Appendix 2 the Department for Communities and Local Government explains that the intended date for the application of new Part 4 was 1 October 2008. The Department accepts that the drafting of new regulation 11(1) does not reflect this and states that it will amend the Regulations at the earliest opportunity to clarify that only appeals made on or after that date will be subject to the new Part 4 procedures. The Committee points out that it was strictly unnecessary for new regulation 11(1) to make any provision as to the date, given regulation 1 of the present Regulations, and would invite the Department, unless it can justify the apparent retrospection of including 1 October 2008 in an instrument made now, to amend the Regulations simply to delete the quoted text. The Committee reports regulation 5 of these Regulations for defective drafting, acknowledged by the Department. 3 S.I. 2008/2268: reported for defective drafting Gas and Electricity Regulated Providers (Redress Scheme) Order 2008 (S.I.