Joint Committee on Statutory Instruments Thirteenth Report


THIRTEENTH REPORT

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

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 from the Ministry of Agriculture, Fisheries and Food in connection with the Common Agricultural Policy (Wine) (England and Northern Ireland) Regulations 2001 (S.I. 2001/686) is printed in Appendix 1.

Education (Budget Statements) (England) Regulations 2001 (S.I. 2001/569)

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

4. These Regulations prescribe the form and contents of the budget statement of a local education authority in England for the financial year beginning on 1 April 2001, under section 52(1) of the School Standards and Framework Act 1998.

5. Regulation 1 deals with the citation, commencement and application of the Regulations. Regulation 1(2) stipulates that the Regulations should only apply in relation to budget statements prepared for the financial year 2001-02, with the exception of regulation 3, which deals with the prescribed form of, and information to be contained in, budget statements. As it was not clear to the Committee whether the exception was erroneously retained from similarly worded previous Regulations or whether it was intended to replace them it asked the Department to explain.

6. The Department, in its memorandum printed in Appendix 2, accepts that the words "except for regulation 3" should not have been included in regulation 1(2). The Department states that its intention is that regulation 3 should not supersede the equivalent provisions in previous Regulations. Nor does it intend that regulation to apply to later financial years: indeed, fresh Budget Statement Regulations are intended to be made for 2002-03. The Department apologises for its error and states its intention to amend the regulation when the next set of Regulations made under section 52 of the School Standards and Framework Act 1998 are made. The Committee accordingly reports regulation 1(2) for defective drafting, acknowledged by the Department.

Special Educational Needs Tribunal Regulations 2001 (S.I. 2001/600)

7. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in a number of respects.

8. These Regulations, which replace with amendments similarly entitled 1995 Regulations, lay down the procedure for dealing with appeals to the Special Educational Needs Tribunal and provide for certain related matters. Regulation 2(1), which defines a number of expressions in the Regulations unless the context otherwise requires, defines the expression "parent", except in certain provisions. The Committee asked the Department for Education and Employment to explain where in the Regulations, apart from in the excepted provisions, "parent" has a different meaning from that given in regulation 2(1). In its memorandum, printed in Appendix 3, the Department confirms that that expression has a different meaning only in the excepted provisions, but adds that it thought it would be helpful to the reader to identify the cases in which the definition does not apply. The Committee does not find this explanation satisfactory. In its view it is defective drafting to duplicate the exceptions from the stated definition in this way, since to do so creates doubt as to the intended meaning of the expression in the Regulations other than the excepted provisions. If it was desired to specify the provisions in which "parent" bore a different meaning from that given, the definition of that term should have been given in a separate paragraph of regulation 2 not governed by the general qualification "unless the context otherwise requires". The Committee therefore reports the definition of "parent" in regulation 2(1) for defective drafting.

9. Regulation 2(2) states that nothing in the Regulations authorises a body corporate to take any steps in proceedings or to attend a hearing other than by a representative. As a body corporate can act only through a representative, the Committee asked the Department what was the purpose and effect of this provision. In its memorandum the Department states that the purpose of the provision is to make clear that, for example, a local education authority officer attending a hearing is a representative of the authority and not "so to speak, the Authority itself". However, it seems to the Committee that this is clearly the case without the need for the Regulations to say so, and in any event regulation 2(2) does not make clear who is to be regarded as a "representative" of an authority for these purposes. The Department's concern, that without regulation 2(2) the requirement in regulation 16(1) (that the authority may be represented by only one person unless the Tribunal otherwise permits) might allow the authority to choose to be represented by an officer and a solicitor, seems misplaced. In the Committee's view regulation 16(1) clearly does not have that effect. The Committee therefore concludes that regulation 2(2) is unnecessary. If nonetheless it were thought to be necessary to make clear who is to be regarded as a representative of a local authority for the purposes of regulation 16(1), the general proposition in regulation 2(2) is not a satisfactory way of achieving that. The Committee accordingly reports regulation 2(2) for defective drafting.

10. Regulation 30(10) states that section 576 of the Education Act 1996 (which defines "parent"so as to include a person who is not a child's parent but who has parental responsibility for, or care of, him) applies to paragraphs (2) and (8) of regulation 30. It seemed likely to the Committee that this extended meaning of "parent" was intended to apply throughout the Regulations, a result which is achieved by section 11 of the Interpretation Act 1978, unless a contrary intention appears. The Committee therefore asked the Department why regulation 30(10) was included. The Department, in its memorandum, states that, by virtue of section 11 of the Interpretation Act, the definition in section 576 would have applied in regulation 30 without paragraph (10) but that, in view of the separate definitions of "parent" in regulations 2(1) and 7(4) (which respectively define "parent" as a parent who has made an appeal to the Tribunal and a person with a right to appeal to the Tribunal) it was thought helpful to the reader to state this expressly in regulation 30(10). The Committee assumes that, despite the way its memorandum is expressed, the Department intends section 11 of the Interpretation Act to import the meaning in section 576 throughout the Regulations. By unnecessarily applying that meaning expressly in two particular places, however, uncertainty is created as to the effect elsewhere in the Regulations. Accordingly, the Committee reports regulation 30(10) for defective drafting.

11. Regulation 48(3) deals with the procedure where, following the striking out of an appeal, the order striking it out is set aside by the court. It requires the Secretary of the Tribunal, in the case of sub-paragraph (a), to notify the parties, where the period in which they may state their case following the making of an appeal (and which is specified in regulation 18(1)) had not expired before the striking out order took effect, that regulation 18(1) applies. The Committee asked the Department why, where a party has not already submitted a statement of his case in these circumstances, this period is not automatically extended, since the appeal will have been struck out until the striking out order is itself set aside. The Department in its memorandum states that the effect of the provision is that regulation 18(1) applies afresh, so that the period it specifies runs from the date of the notification under regulation 48(3). In the Committee's view this intended result is not clearly conveyed as regulation 48(3)(a) appears to refer to the period already running under regulation 18(1). The Committee also asked the Department why, where a party has stated his case within the period referred to in sub-paragraph (a), no provision is made for the submission of a supplementary statement or further written evidence, given that such rights are accorded to the parties under regulation 48(3)(b) in cases where that period had expired when the appeal was struck out. In its memorandum, the Department reasons that as the parties, in the Department's view, have a fresh period in which to submit their case, it is unnecessary to provide for the submission of supplementary or further material. But, even if the period for submitting a case does begin again, it is not clear that parties who have already done that are entitled to supplement it or to submit a completely fresh case. The Committee accordingly reports regulation 48(3)(a) for defective drafting on both points.

12. The Committee also drew the Department's attention to an erroneous reference in regulation 30(2)(b) to paragraph (8), which should be a reference to paragraph (9), and an erroneous reference in regulation 46(2)(b) to regulation 44(3), which should be a reference to regulation 45(3). The Department acknowledges these errors, which the Committee reports for defective drafting.


1  
The Orders of Reference of the Committee are set out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back


 
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