Joint Committee on Statutory Instruments Sixteenth Report


  SIXTEENTH 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 Department for Environment, Food and Rural Affairs in connection with the Environmentally Sensitive Areas (Stage II) Designation (Amendment) (No. 2) Order 2001 (S.I. 2001/3774) is printed in Appendix 1.

3. A memorandum from HM Treasury in connection with the Social Security (Contributions) (Amendment No. 6) Regulations 2001 (S.I. 2001/3728) is printed in Appendix 2. Departments are reminded that copies of instruments sent to the Committee should be identical in every respect to those laid before Parliament.

DERBY COLLEGE (GOVERNMENT) REGULATIONS 2001 (S.I. 2001/3810)

4. The Committee draws the special attention of both Houses to these Regulations on the grounds that they make an unexpectedly limited use of the enabling power and, in one respect, are of doubtful vires.

5. Clause 8(8) of the Instrument of Government for this further education corporation, set out in Schedule 1 to these Regulations, provides that a person is disqualified from holding, or continuing to hold, office as a member of the corporation if, within five years before his appointment would otherwise have taken effect, or since his appointment, he has been convicted in the United Kingdom, the Channel Islands or the Isle of Man of any offence and has had passed on him a sentence of imprisonment for a period of not less than three months without the option of a fine. Article 5(10) of the Corporation's Articles of Government, set out in Schedule 2 to the Regulations, provides that the Principal may delegate any of his functions (which may include functions of the Corporation which are delegated to him) other than the management of budget and resources to the holder of any other senior post.

6. The Committee, in its 10th Report for the present Session, has already reported similar provisions in the Instruments and Articles of Government of other further education corporations (in S.I. 2001/2799 and 3213) on the grounds that (in relation to the first point) the instrument makes an unexpectedly limited use of power and (in relation to the second point) is of doubtful vires. It therefore asked the Department for Education and Skills whether it wished to add to its earlier submissions. In relation to the first point the Committee also drew the Department's attention to the fact that, in various education action zone Orders (for example S.I. 1998/3054 to 3066), the disqualification extends to a conviction in the United Kingdom or elsewhere.

7. In its further memorandum, which is printed in Appendix 3, the Department thanks the Committee for drawing its attention to the education action zone Orders, which it accepts provide a useful precedent for the exercise of the present enabling power, and states that it will adopt similar provisions in future instruments of government of further education corporations. The Committee accordingly reports clause 8(8) on the ground that it makes an unexpectedly limited use of the enabling power.

8. On the second point the Department agrees that it would be inappropriate for the Principal to delegate every single one of his functions and states that, if he were to do so, the Corporation or the Secretary of State could take action to correct the situation. The Committee does not find this argument convincing. The issue is whether the enabling Act authorises the inclusion of the provision in question, not whether there are safeguards to prevent an inappropriate use of it. In the Committee's view, since it would be inappropriate to exercise the power in article 5(10) to its fullest extent, it follows that the enabling power in section 20(2)(b) of the Further and Higher Education Act 1992 (to include such provision as may be necessary or desirable) cannot be read as authorising the conferring of an unlimited power of delegation. A more limited power, such as that suggested in the Committee's 10th Report, enabling the Principal to confer such powers on the senior staff as are necessary to enable him properly to discharge his functions would, in the Committee's view, be within the powers conferred by that section and would avoid the difficulty (mentioned by the Department) of specifying in advance the precise functions which may be delegated. The Committee accordingly reports article 5(10) for doubtful vires.

EAST BASILDON EDUCATION ACTION ZONE (EXTENSION AND VARIATION) ORDER 2001 (S.I. 2001/3836)

NORTH SOUTHWARK EDUCATION ACTION ZONE (EXTENSION AND VARIATION) ORDER 2001 (S.I. 2001/3838)

KINGSTON UPON HULL (BRANSHOLME AREA) EDUCATION ACTION ZONE (EXTENSION AND VARIATION) ORDER 2001 (S.I. 2001/3840)

EAST BRIGHTON EDUCATION ACTION ZONE (EXTENSION AND VARIATION) ORDER 2001 (S.I. 2001/3841)

NORTH EAST SHEFFIELD EDUCATION ACTION ZONE (EXTENSION AND VARIATION) ORDER 2001 (S.I. 2001/3843)

PLYMOUTH EDUCATION ACTION ZONE (EXTENSION AND VARIATION) ORDER 2001 (S.I. 2001/3844)

THETFORD EDUCATION ACTION ZONE (EXTENSION AND VARIATION) ORDER 2001 (S.I. 2001/3845)

SOUTH TYNESIDE EDUCATION ACTION ZONE (EXTENSION AND VARIATION) ORDER 2001 (S.I. 2001/3846)

BIRMINGHAM (ASTON AND NECHELLS) EDUCATION ACTION ZONE (EXTENSION AND VARIATION) ORDER 2001 (S.I. 2001/3847)

NOTTINGHAM (BULWELL) EDUCATION ACTION ZONE (EXTENSION AND VARIATION) ORDER 2001 (S.I. 2001/3848)

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

10. Each of the above Orders inserts a new article 9A in the principal Orders. That article provides that a member of the Forum may be removed from office in the following circumstances- [(a)] in the case of a member who was a governor of a zone school at the time he was appointed to the Forum pursuant to either article 4(a) or article 5, if that person ceases to be a governor at that zone school, or a governor of the relevant category as the case may be. The Committee asked the Department for Education and Skills to explain the inclusion of the italicised words, given that article 5 makes no reference to a governor. In a memorandum printed in Appendix 4, the Department accept that the reference to article 5 is an error and that, accordingly, the italicised words should not have been included. The Committee therefore reports each of these Orders for defective drafting, acknowledged by the Department.

11. The Department also acknowledge that S.I. 2001/3836, 3844 and 3848 are also defectively drafted in the following respects.

  • New article 9A(d) (inserted by article 4 of S.I. 3836) should also have included a reference to paragraphs (e) to (h) of article 5.

  • The reference to article 4(d) , in new article 9A(b) (inserted by article 5 of S.I. 3844), is an error.

  • In new article 9A(b) (inserted by article 4 of S.I. 3848), the words "or 5" and "or to which he was connected" should have been omitted.

12. The Committee reports accordingly. The Department state that they will "aim to eliminate such defects in future statutory instruments". The Committee considers that the errors should be corrected at the next convenient opportunity.

FUR FARMING (COMPENSATION SCHEME) (ENGLAND) ORDER 2001 (S.I. 2001/3853)

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

14. Article 3 of this Order requires the Minister to pay compensation to any person who has ceased, or ceases before 31 December 2002, to carry on a "qualifying business". A qualifying business is defined as one carried on so far as it consists of keeping mink "for one or more of the relevant purposes". The Order identifies four separate purposes which are "relevant".

15. Schedule 3 provides for the calculation of interim compensation payments. The amount of such a payment depends upon the number of breeding females kept on a particular date and the date on which the person "ceased to keep mink for one or more of the relevant purposes". It appeared to the Committee that a person might cease to keep mink for one of the relevant purposes on one date, and subsequently cease to keep mink for another of the relevant purposes on a different date. The Order does not explain how the compensation is to be calculated in such a case.

16. The Department of Environment, Food and Rural Affairs, in a memorandum printed at Appendix 5, acknowledges that Schedule 3 could have been more clearly expressed, and is therefore defectively drafted, but contends that any ambiguity is removed if the instrument is read as a whole.

17. The Committee is not convinced by the Department's reasoning. A reference to keeping (or ceasing to keep) mink for one or more of the purposes must be read as applying to any of the purposes. It is therefore possible to read Schedule 3 as requiring the calculation to be made in respect of the first date at which breeding females ceased to be kept for any one purpose, but that is not how the provision is intended to be construed. The fact that a person is not entitled to a payment calculated in accordance with Schedule 3 until he has ceased to carry on his mink keeping business altogether is immaterial, as that Schedule is concerned with the amount of, not eligibility for, an interim payment. The effect intended by the Department could easily and unambiguously have been achieved by referring to the date on which the person ceased to carry on a qualifying business.

18. The Committee accordingly reports the Order for defective drafting, acknowledged by the Department.

CARE HOMES REGULATIONS 2001 (S.I. 2001/3965)

PRIVATE AND VOLUNTARY HEALTH CARE (ENGLAND) REGULATIONS 2001 (S.I. 2001/3968)

NATIONAL CARE STANDARDS COMMISSION (REGISTRATION) REGULATIONS 2001 (S.I. 2001/3969)

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

20. Regulation 10 of the National Care Standards Commission (Registration) Regulations 2001 (S.I. 2001/3969) requires a person whose registration in respect of an establishment or agency is cancelled to return his certificate of registration to the Commission not later than the day on which the cancellation takes effect. Paragraph (1) of regulation 11 makes failure to comply with regulation 10 an offence. Paragraphs (2) and (3) preclude the Commission from bringing proceedings in respect of such an offence unless: (a) it has given notice to the person specifying in what respect he has failed or is failing to comply with the requirements of that regulation, what action he should take so as to comply with that regulation, and the period within which he should take action; (b) the period so specified has expired; and (c) he fails to comply with that regulation.

21. It was unclear to the Committee how the provisions of regulation 11 could be applied to a contravention of regulation 10, given that, once the specified day has passed, compliance is no longer possible. The Department of Health, in a memorandum printed at Appendix 6, explain that the purpose and intended effect of regulation 11 is that, where a person fails to comply with the requirements of regulation 10, the Commission should not bring proceedings against him unless he has been given an opportunity to rectify the omission and still fails to do so. The Department accept that the wording of regulation 11 does not address the fact that the person will have failed to comply with regulation 10 and can no longer fully comply with it once the specified day is passed, and will consider how these provisions should be amended.

22. As the Department acknowledge, similar issues arise in relation to regulation 43 of the Care Homes Regulations 2001 (S.I. 2001/3965) and regulation 51 of the Private and Voluntary Health Care (England) Regulations 2001 (S.I. 2001/3968).

23. The Committee accordingly reports the above instruments for defective drafting, acknowledged by the Department.


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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