Joint Committee on Statutory Instruments Sixth Report



SIXTH REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.[1]

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.

  2. A memorandum by the Department of Trade and Industry in connection with the Industry Act 1975 (Prohibition and Vesting Order) Regulations 1998 (S.I. 1998/3035) is printed in Appendix I to this Report.

  3. A memorandum by the Department of Trade and Industry in connection with the Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) (Amendment) Regulations 1998 (S.I. 1998/3050) is printed in Appendix II to this Report.

  4. A memorandum by the Lord Chancellor's Department in connection with the Legal Aid in Criminal and Care Proceedings (Costs) (Amendment) (No. 4) Regulations 1998 (S.I. 1998/3154) is printed in Appendix III to this Report.

  5. A memorandum by the Home Office in connection with the Indictments (Procedure) (Modification) Rules 1998 (S.I. 1998/3045) is printed in Appendix IV to this Report.


SCOTTISH FURTHER EDUCATION FUNDING COUNCIL (ESTABLISHMENT) (SCOTLAND) ORDER 1998 (S.I. 1998/2887)

  6. The Committee draws the special attention of both Houses to this Order on the ground that it is of doubtful vires.

  7. This Order is made under section 7 and paragraph 10 of Schedule 1 to the Further and Higher Education (Scotland) Act 1992. The Act sets up both the Scottish Further Education Funding Council, and the Scottish Higher Education Funding Council. The Act contains express provision which allows the Scottish Higher Education Funding Council to delegate its functions. There is no corresponding provision which allows the Scottish Further Education Funding Council to do so. This instrument deals with the Scottish Further Education Funding Council, to which no power of delegation has been given. Yet article 15 of this Order allows the Council to "authorise the chairman, the chief officer or any committee of the Council to exercise such of their functions as they may determine". The Committee asked the Department to state the authority on which article 15 was included.

  8. In the memorandum printed in Appendix V the Department make three points. First, they contend that the delegation of functions is authorised by paragraph 10 of Schedule 1 of the Act, which allows the Order to make necessary or expedient additional provision about the Council's "proceedings". The Committee does not accept that a general provision such as this can be taken to provide authority to delegate functions. Secondly, the Department state that in practice the Council could not function effectively without delegation of this kind. The Committee does not accept this either. Effective functioning of the Council can be secured according to the common law principle that allows any corporation (statutory or otherwise) to act by means of its organs, officers or employees. This is to be clearly distinguished from the power to delegate functions, which makes the function in question that of the delegate. Thirdly, the Department hold that the fact that the Act specifically allows the Scottish Higher Education Funding Council to delegate functions does not suggest that that power is withheld from the Scottish Further Education Funding Council. The Committee disagrees. Parliament made a clear distinction in the Act, giving power to one Council to delegate and withholding such power from the other. Parliament must be taken not to have intended to give the same powers to both Councils. The Committee therefore rejects the explanations offered by the Department, and reports the Order on the ground that there is doubt as to the vires of article 15.


FRENCHAY HEALTHCARE NATIONAL HEALTH SERVICE TRUST (ESTABLISHMENT) AMENDMENT ORDER 1998 (S.I. 1998/2993)

  9. The Committee draws the special attention of both Houses to this Order on the ground that it is not drafted in accordance with proper legislative practice.

  10. This Order is made partly in exercise of section 5(1) of the National Health Service and Community Care Act 1990. New article 3(2)(d) (inserted into the original Order by article 2 of the present Order) provides that one of the functions of the Trust will be to manage, pursuant to section 5(1)(b) of the Act, "services provided from the premises specified in Part IV of the Schedule to this Order". However, Part IV of the Schedule to this Order lists the relevant premises as "None". Given that there are no premises to be included in Part IV of the Schedule, new article 3(2)(d) appears to have no legislative content. The Department explain in the memorandum printed in Appendix VI that this policy intention only became apparent at proof-reading stage, and that "the decision was taken that it would be easier to write "none" in Schedule IV than to make a significant amendment to the body of the Order". The Committee considers that new article 3(2)(d) and Part IV of the Schedule should then have been removed. The current drafting is inconsistent with proper legislative practice, and the Committee therefore reports the Order on that ground.


NORTH STAFFORDSHIRE COMBINED HEALTHCARE NATIONAL HEALTH SERVICE TRUST (ESTABLISHMENT) AMENDMENT ORDER 1998 (S.I. 1998/2972)

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

  12. New article 3(2)(b) (inserted into the original Order by article 2 of the present Order) provides for the Trust to "provide and manage pursuant to sanction 5(1)(b) of the Act, and at Hilton Road site". This does not appear to make any sense. In the memorandum printed in Appendix VII the Department of Health confirm that there is a mistake; the second "and" should in fact read "land". They undertake to issue a corrective Order, free of charge. The Committee reports the Order as being defectively drafted, acknowledged by the Department.


1  The Orders of Reference of the Committee are set out in the First Report, Session 1998-99 (HL Paper 4; HC 50-i). Back

 
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