Naval Medical Compassionate Fund (Amendment) Order 2008 (S.I. 2008/1488

1.1 The Committee draws the special attention of both Houses to this Order on the grounds that its structure does not conform to proper legislative practice, and that it and its explanatory note are defectively drafted in one respect each.

1.2 This Order amends the Standing Orders and Regulations for the Constitution and Government of the Naval Medical Compassionate Fund ("the Rules"). The Rules were approved by Order in Council in 1915 (S.R & O. 1915/769) made under section 1 of the Naval Medical Compassionate Fund Act 1915. Prior to this Order, the Rules had been amended by eight orders made between 1919 and 2005. Some of these orders were expressed as amending the 1915 Order, others simply as amending the Rules. In either case, it was only the Rules that were intended to be amended textually.

1.3 The 1915 Order consists largely of a preamble which recites that the Lords Commissioners of the Admiralty had submitted a memorial dated 18 July 1915 and quotes in full that memorial. The Memorial explains the statutory background (including a recital of the provisions of section 1 of the 1915 Act) and contains a humble submission for approval of the Rules, which are themselves set out in the memorial. The quotation is followed by what nowadays would be described as the operative provisions of the Order, which state that His Majesty approves what is contained in the memorial: that is, the Rules.

1.4 The effect of this Order is to replace all the remaining provisions of the Rules with new ones. The Committee asked the Ministry of Defence why the Order did not simply revoke and replace the 1915 Order. In a memorandum printed at Appendix 1, the Department states that it was felt that it would be helpful to retain the preamble to the 1915 Order. The Committee finds this response surprising. That preamble contains what is in effect a commentary on the legislative background and the humble submission - particulars that are not now normally expected in subordinate legislation - and the text of the Rules (the location of which is similarly unexpected). One would expect now to see the preamble confined to essential material, to see title, commencement, interpretation (if needed) and approval in the operative part and to see the matters being approved in a Schedule to the Order. Given that amending orders have on some occasions purported to amend the Rules by amending the 1915 Order itself but on others purported to amend the Rules themselves, it is at least arguable that there can be no certainty as to what the preamble to the 1915 Order now says. Furthermore the humble submission seeking approval of the original 1915 Rules is clearly unrelated to later amending Rules (a point appreciated in the first of the previous amending orders though not subsequently), yet the survival of the preamble carries with it the survival of that particular submission.

1.5 There are also practical considerations. An audit trail of legislation made in 1915 and amended numerous times is not easy. The Committee has located only one publication aiming to set out the full text of the 1915 Order as it was before this Order was made, and that publication (a commercial one) appears inadvertently to omit the "operative provisions" referred to above.

1.6 In the Committee's view, the correct thing to do would have been to revoke and replace the 1915 Order. That would have enabled the Rules to be set out in an instrument which conforms to modern drafting practice, with the Rules set out in a new Schedule rather than in a surviving lengthy and at least partly inapt preamble. More importantly, it would have made the Rules easily accessible to all whether by means of the printed instrument or the OPSI website. The Committee therefore reports the structure of this Order for failure to conform to proper legislative practice.

1.7 The Committee has two further concerns, neither of which would have arisen if a wholly new Order had been made. The Order purports to substitute new articles for articles 3 and 10 of the Rules, despite the fact that those articles have been revoked in 1991. Also, the explanatory note to the Order refers parenthetically to numbered articles where the numbers refer not to the provisions of this Order but to the provisions of the Rules as amended by this Order. The Department acknowledges these defects in drafting. The Committee accordingly reports the Order and its explanatory note for defective drafting, acknowledged by the Department.

Civil Enforcement of Parking Contraventions (The Borough Council of Dudley) Designation Order 2008 (S.I. 2008/1518)

2.1 The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted.

2.2 This Order is made in exercise of powers to designate all or part of a local authority's area as a civil enforcement area for parking contraventions and as a special enforcement area. In the Order, however, the Secretary of State designates the Borough Council of Dudley as a civil enforcement area and a special enforcement area.

2.3 In a memorandum printed at Appendix 2, the Department for Transport acknowledges that the Order was defectively drafted in that it was intended to designate the council's area and not the council itself. A new Order revoking and replacing this one was made and laid before Parliament within 2 days of the Department receiving the Committee's question.

2.4 The Committee accordingly reports this Order for defective drafting, acknowledged by the Department, and commends the Department for the speed with which it has rectified the error.