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]. 1 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 2 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. 3 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.