Joint Committee on Statutory Instruments Twentieth 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 Privy Council Office in connection with the Judicial Committee (Devolution Issues) Rules Order 1999 (S.I. 1999/665) is printed in Appendix I to this Report.

  3. A memorandum by the Welsh Office in connection with the Land in Care Scheme (Tir Gofal) (Wales) Regulations 1999 (S.I. 1999/1176) is printed in Appendix II to this Report.


  4. The Committee draws the special attention of both Houses to this Order on the grounds that it is defectively drafted in two places.

  5. The Scottish Office accept, in response to questions by the Committee, that there are two incorrect references (memorandum printed in Appendix III). The reference in article 1(2) to section 8 of the Scotland Act 1998 should be to section 9; and the reference in article 3(1)(b) to section 7 of that Act should be to section 8. The Department say that they will make an amending Order to correct the mistakes as soon as possible. The Committee reports both articles for defective drafting, acknowledged by the Department.


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

  7. There is nothing in the opening words of regulation 13(2) to indicate who is to be responsible for compliance with the requirements of sub-paragraphs (a) to (c). The Committee therefore asked the Ministry of Agriculture, Fisheries and Food who the responsible person is intended to be. The Department reply in the memorandum printed in Appendix IV that the person responsible for compliance is intended to be the operator of "the establishment" referred to in the opening words of regulation 13(2), and admit that an express reference to this effect should have been made in the provision. They say that they will seek to amend the Regulations in so far as they apply to England to include such a reference at the earliest possible opportunity. The Committee reports regulation 13(2) for defective drafting, acknowledged by the Department.


  8. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are of dubious vires as regards the provision made for the delegation of the corporation's function to the principal of the college. The Committee has reported on this subject several times before[2], and the following paragraphs summarise the arguments made on these previous occasions.

  9. The 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 Harrow College (which has a principal as its head). Paragraph 5 of Schedule 4 to the 1992 Act provides that an instrument of government or articles of government "may provide for the delegation of functions of the corporation to officers or committees". There is no provision which expressly authorises delegation to the principal. Article 5(1) of Schedule 2 to both of these instruments authorises the delegation of certain functions by the corporation to the principal. The Committee reported the instruments referred to in the footnote for being of dubious vires, on the ground, essentially, that since Schedule 4 conferred a power of delegation restricted to delegation to officers and committees it must be assumed that Parliament did not intend to confer such a power as regards the principal, unlike in the cases of the institutions provided for in sections 125(2)(b) and 152(5)(b) of the Education Reform Act 1988.

  10. The Department for Education and Employment indicated to the Committee that they stand by the arguments they have made previously, and did not wish to take up their right to respond in writing to any points raised by the Committee. These arguments are summarised below. The Department said that paragraph 5 of Schedule 4 to the 1992 Act is concerned with the internal management of the corporation and not with delegation, and that the corporation would have an implied power to delegate to the principal because Parliament cannot have intended the board of governors to take every decision in relation to the institution.

  11. The Committee remains unconvinced by these arguments. The power in article 5(1) of Schedule 2 to each of these Regulations is not concerned with the corporation's internal management: there is no need for a statute to express the common law principle that a corporation must, by its artificial nature, act through its human instruments. Paragraph 5(1) confers a true power to delegate functions; and it cannot be taken that there is an implicit power in the 1992 Act because paragraph 5 of Schedule 4 makes specific provision on delegation: to committees or officers of the corporation, and not to the principal.

  12. The Committee recalls that the Baroness Blackstone, Minister of State, Department for Education and Employment, wrote to the Committee on 19 March 1999 in relation to a similar instrument and said that "on balance the powers in Schedule 4 ... are wide enough to enable the Articles of Government of a further education corporation to delegate powers to the Principal..." [but] "...the issue is far from clear and we intend to put the matter beyond doubt by amendment of the Further and Higher Education Act 1992 at the next legislative opportunity" (the Minister's letter is printed in Appendix V). The Committee considers that such an opportunity should now be found promptly, and again reports article 5(1) of Schedule 2 to the Regulations for being of dubious vires.

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

2   See the 14th Report, Session 1998-99 (HL Paper 46; HC 50-xiv); 39th Report, Session 1997-98 (HL Paper 125, HC 33-xxxix); 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

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