Joint Committee on Statutory Instruments Thirty-Ninth Report


THIRTY-NINTH REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.

ORDERED TO REPORT:

  1. 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.

BOLTON SIXTH FORM COLLEGE (GOVERNMENT) REGULATIONS 1998 (S.I. 1998/1332)

  2. The Committee draws the special attention of both Houses to these Regulations on the grounds that in one respect they are of dubious vires.

  These Regulations are made under section 20 of, and Schedule 4 to, the Further and Higher Education Act 1992. Under the Act each further education institution is "conducted" by a corporation established for that purpose with an instrument of government and articles of government. These Regulations prescribe both instruments and articles for the corporation established to conduct Bolton College (which has a principal as its head). Section 20(2)(a) requires the articles of government to comply with the requirements of Schedule 4 to the Act. Paragraph 5 of that Schedule provides that "an instrument [of government or articles of government] may provide for the delegation of functions of the corporation to officers or committees" of the corporation. There is no provision which expressly authorises delegation to the principal of the college. Article 4(1) of Schedule 2 to these Regulations authorises the corporation to delegate certain of its functions to the principal. The Committee has already reported similar provisions in several other instruments for being of dubious vires because the 1992 Act does not expressly authorise the delegation of the corporation's functions to the principal of the college[1]. In the light of these earlier reports and the principle that "express enactment shuts the door to further implication" (Whiteman v Sadler (1910), A.C. 514, 527 per Lord Dunedin), the Committee asked the Department to justify the delegation of functions to the principal. The Committee also asked why the Department does not agree with the view that if Parliament had intended to authorise delegation to the principal, it would have expressly said so, as it did in sections 125(2)(b) and 152(5)(b) of the Education Reform Act 1988.

  In the second of the memoranda printed in Appendix I the Department argue that paragraph 5 of Schedule 4 to the 1992 Act is concerned with the internal management of the corporation and does not touch upon the issue of delegation to employees or agents. They contend that it would be impractical for day-to-day decisions to be made by the corporation in its corporate assembly or its officers: "in the Department's view it is therefore implicit that the corporation can delegate functions to servants and agents, including the principal, through whom it must transact business". In relation to the Committee's second point, that where Parliament intends to authorise delegation to the principal it says so expressly, as it did in the Education Reform Act 1988, the Department assert that the board of governors would have an implied power to delegate in the manner envisaged by those provisions even if those provisions had not been included, "given that it cannot have been the intention [of Parliament] that the board of governors should take every decision in relation to the institution".

  The Committee considers that there is a crucial distinction between, on the one hand, a corporation having to act by means of its members and employees, and, on the other hand, the true delegation of its functions to others than itself. No statute need confer the first facility. But express statutory provision is needed if functions entrusted to one body (the corporation itself) are, by delegation, to be discharged by a committee or an officer (or indeed by anyone else). Hence it follows that paragraph 5 does not concern itself with the way the corporation as such discharges its functions but actually enables true delegation to take place. The power in article 4(1) of Schedule 2 to the Regulations is a power to delegate certain of the functions of the corporation to the principal. There is no provision in the parent statute expressly authorising the corporation to delegate any of its functions to the principal, nor can such authorisation be implied, given that the express provision on delegation in paragraph 5 of Schedule 4 of the 1992 Act specifically authorises delegation only to committees or officers of the corporation. Such an implication would be inconsistent with the principle of statutory interpretation that express enactment shuts the door to further implication. The Committee considers that the Department's argument concerning the Education Reform Act 1988, that the board of governors would have an implied power to delegate functions to the principal even in the absence of sections 125(2)(b) and 152(5)(b), is unsatisfactory: it would mean that Parliament had enacted otiose provisions in the 1988 Act. The Committee accordingly reports article 4(1) of Schedule 2 to the Regulations because it may not be intra vires.

RAILWAYS REGULATIONS 1998 (S.I. 1998/1340)

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

  Regulation 21(2) amends the Railways Act 1993 by inserting a new subsection (1A) "after subsection (1)", but it does not identify the relevant section. The Committee asked the Department whether the quoted words ought to have read "after subsection (1) of section 6". In their memorandum (printed in Appendix II) the Department admit that regulation 21(2) should indeed refer to subsection (1) of section 6, and say that they will make an amending instrument to come into force on the same day as these Regulations which will be issued free of charge[2]. The Committee reports regulation 21(2) for defective drafting, acknowledged by the Department.


1   See the Committee's 1st Report, Session 1996-97 (HL Paper 3; HC 29-i); 9th and 21st Reports, Session 1995-96 (HL Paper 40; HC 34-ix and HL Paper 82; HC 34-xxi respectively); and 26th and 28th Reports, Session 1994-95 (HL Paper 104; HC 8-xxvi and HL Paper 99; HC 8-xxviii respectively). Back

2   The amending instrument - the Railways (Amendment) Regulations 1998 (S.I. 1998/1519) - was made on 22nd June, and did indeed come into force on the same day as the principal regulations (27 June). Back


 
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