Joint Committee on Statutory Instruments Thirty-Third Report



APPENDIX 7

Memorandum by the Department of Health

PROTECTION OF CHILDREN ACT TRIBUNAL REGULATIONS 2000 (S.I. 2000/2619)

1. The Committee has asked the Department for a memorandum on the following points:

    "(1)  Regulation 1(2) defines "the court" as having the same meaning as in section 66(1) of the Arbitration Act 1996. Explain—

      (a)  the meaning of that expression in that section, and why the Regulations (instead of referring the reader to that Act) do not set out the intended meaning;

      (b)  why the definition of "the court" is placed in regulation 1(2) instead of in regulation 32, given that in regulation 32(8) is the only provision where that expression is used;

      (c)  why regulation 32(8) refers to "the court" instead of the county court (which is also defined in regulation 1(2)), given that a costs order cannot exceed a total of £500 in relation to an application (regulation 32(2))."

2. In reply to (a), section 105(1) of the Arbitration Act 1996 provides that in that Act, "the court" means the High Court or a county court, subject to the following provisions of the section. Section 105(2) empowers the Lord Chancellor by order to make provision allocating proceedings under the Act to the High Court or to county courts. Articles 2 and 4 of the High Court and County Courts (Allocation of Proceedings) Order 19996 (S.I. 1996/3215), made under section 105, read together, provide that enforcement proceedings under section 6 may be commenced in the High Court or any county court. It follows that in section 66(1) "the court" means the High Court or any county court. The Department acknowledges that it would have been preferable, in the interests of assisting applicants in the conduct of their own cases, had the regulations set out the intended meaning rather than making reference to the Arbitration Act 1996.

3. In reply to (b), the Department accepts that it would have been preferable to place the definition of "the court" in regulation 32.

4. In reply to (c), section 9(4) of the Protection of Children Act 1999 empowers the Secretary of State in regulations to make provision about the proceedings of the Tribunal corresponding to any provision of the Arbitration Act 1996. As explained in the reply to point (a) above, the enforcement provision in section 66 of the Arbitration Act 1996 provides, by virtue of the modification made to section 105(1) of the Act by Articles 2 and 4 of the High Court and County Courts (Allocation of Proceedings) Order 1996 (S.I. 1996/3215), that an arbitration award may be enforced in the High Court or any other county court. Therefore, regulation 2(8) makes corresponding provision. The Department accepts however that it would be desirable, to improve the regulations by providing simply that a costs order may be enforced in any county court.

    "(2)  Paragraph (4)(b) of regulation 8 requires the Secretary of the Tribunal to notify the parties without delay of the President's decision to refuse leave and to provide them with a copy of the reasons. Explain the need for this provision, given that paragraph (5) requires the Secretary to notify the parties in writing and without delay of the President's decision, and, if he has refused leave, of his reasons for doing so."

5. The Department accepts that there is no need for paragraph (4)(b), given the provisions of paragraph (5). The Department is grateful to the Committee for raising this and intends to amend the Regulations to take account of the point as soon as there is a suitable opportunity. In the intervening period however it is clear that the Secretary must notify the parties of the President's decision and of his reasons for refusing leave, if he has done so, so there should be no undue practical difficulty.

    "(3)  Regulation 30(2) provides that an application for review of the Tribunal's decision must [(a)] be made not later than ten working days after the date on which the decision was sent to the parties. Explain when this period begins to run if a copy of the document mentioned in regulation 29(2) is not sent to the parties on the same day. Is the intended effect that an application by a party must be made not later than ten working days after the date on which a copy of the document was sent to him?"

6. In the circumstances described by the Committee, the effect of regulation 30(2) is, in the Department's view, that an application by either party must be made not later than ten working days after the date on which the decision was sent to the second party. Only on that date can it be said that the decisions was sent to "the parties". In practice it is anticipated that the Tribunal will almost always, if not invariably, send the decision to the parties at the same time. The Department agrees however that regulation 30(2) would be improved if the words "the parties" were substituted by the word "him", and is grateful to the Committee for having raised the point. The Department intends to amend the Regulations, when a suitable opportunity arises, to take account of it.


 
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