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
2. A memorandum from the Department of Health in
connection with the Road Traffic (NHS Charges) Amendment Regulations
2001 (S.I. 2001/4030) is printed in Appendix 1.
3. A memorandum from the Department for Environment,
Food and Rural Affairs in connection with the Radioactive Substances
(Clocks and Watches) (England and Wales) Regulations 2001 (S.I. 2001/4005)
is printed in Appendix 2.
Children's Homes Regulations 2001 (S.I. 2001/3967)
4. The Committee draws the special attention of
both Houses to these Regulations on the ground that they are defectively
drafted in two respects.
5. The Committee asked the Department of Health to
explain the reference, in paragraph (5) of regulation 17, to paragraph
(7), given that that regulation does not contain a paragraph with
that numbering. In a memorandum printed in Appendix 3, the Department
states that the reference to paragraph (7) is an error which will
be corrected at the first available opportunity. The Committee
accordingly reports regulation 17(5) for defective drafting, acknowledged
by the Department.
6. Paragraph (1) of regulation 41 makes a failure
to comply with the provisions of regulations 4 to 38 an offence.
Paragraphs (2) and (3) preclude the Commission from bringing proceedings
in respect of 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 those regulations, what action
he should take so as to comply with those regulations, and the
period within which he should take that action; (b) the period
so specified has expired; and (c) he fails to comply with the
regulation in question. In its Sixteenth Report for this Session,
the Committee reported similar provisions in other Regulations
(S.I. 2001/ 3965, 3968 and 3969) for defective drafting on
the basis that (as accepted by the Department) they could not
appropriately apply in respect of a failure to comply with a provision
which requires the specified action to be taken by a specified
day or period: once the specified day or period has passed without
the person taking the requisite action, he can no longer fully
comply with the regulations requiring that action to be taken.
The same issue arises in relation to the application of regulation
41(2) and (3) of the present Regulations to a failure to comply
with the provisions of regulations which require action to be
taken within a specified period (regulations 5(b), 17(3)(b) and
(4), 33(3) and 37(5)), or "forthwith" (regulation 10)
or "without delay" (regulation 30(1)). The Department
has indicated that it does not wish to add anything further to
its earlier memorandum (printed as Appendix 6 of the Sixteenth
Report). The Committee reports regulation 41 for defective
drafting, acknowledged by the Department, and considers that the
Department should correct the defects at the first available opportunity.
Special Educational Needs Tribunal (Time Limits)
(Wales) Regulations 2001 (S.I. 2001/3982)
7. The Committee draws the special attention of
both Houses to these Regulations on the ground that they are of
doubtful vires in two respects.
8. Regulation 3(3) provides that the period within
which the local education authority must comply with the orders
of the Tribunal is to begin on the day after the issue of the
order in question. The Committee asked the Department for Education
and Skills what provision in the Education Act 1996 authorises
this regulation, given that section 336A(1) of the Act requires
the authority to comply with the Tribunal's Order before the end
of the prescribed period "beginning with the date on which
it is made". In a memorandum printed in Appendix 4, the Department,
whilst acknowledging that "it might have been preferable"
to have adopted the wording of section 336A(1), submits that regulation
3(3) is not inconsistent with the authority conferred by that
section, since its purpose is to determine the end of the period
of compliance with the Tribunal's order and in practice this has
been achieved. In the Committee's view, this submission is misconceived,
since section 336A(1) expressly requires the prescribed period
for compliance with the Tribunal's Order to begin with the date
on which it is made. The Committee accordingly reports regulation
3(3) for doubtful vires.
9. Paragraph (4) of regulation 3 provides that the
local education authority need not comply with the time limits
mentioned in paragraph (2) if it is impractical to do so because
of certain specified circumstances. No specific period is prescribed
for compliance in those circumstances. The Committee asked the
Department to indicate the period within which the authority must
comply with the Tribunal's order in those circumstances, given
that section 336A(1) requires compliance "before the end
of the prescribed period". A similar point arises in relation
to regulation 4(3). The Department explains that regulations 3(4)
and 4(3) reflect the fact that there will be circumstances where
the authority will not be able to comply with the order within
the prescribed period because of matters outside their control.
In such circumstances it was considered inappropriate to specify
a prescribed period since the circumstances justifying the exception
may continue indefinitely. It submits that the duty to comply
with the order will nevertheless continue notwithstanding that
no prescribed period has been imposed and that whether the authority
has failed unreasonably to comply with an order will depend on
the particular circumstances of the case.
10. The Committee disagrees with the Department's
views, since section 336A(1) clearly requires compliance with
the Tribunal's order before the end of the prescribed period ,
and section 326A(4) requires the authority to take certain action
before the end of that period. In contrast to paragraph 3(3) and
(4) of Schedule 26 to the 1996 Act, sections 336A(1) and 326A(4)
do not contemplate that there will be no specific end of the period
for compliance or taking the requisite action where the circumstances
mentioned in regulations 3(4) and 4(3) arise. In the Committee's
view this does not necessarily mean that the original time limits
will have to be complied with even if it would be impractical
to do so: a possible way of meeting the requirements of sections
336A(1) and 326A(4) would be to include a provision in the Regulations
for extending (and further extending) the time limits by a specified
period. The Committee also notes that the fact that similar provisions
in earlier instruments (mentioned in the Department's memorandum)
have not given rise to practical difficulty is not germane to
the question whether they are authorised by the Act. The Committee
considers that S.I. 1994/1047 is not in point as the powers under
which it was made differ in a material way from the present case.
The Committee reports regulations 3(4) and 4(3) for doubtful
Misuse of Drugs Regulations 2001 (S.I. 2001/3998)
11. The Committee draws the special attention
of both Houses to these Regulations on the ground that in one
respect they are drafted in an unnecessarily referential way,
and are defectively drafted in another respect.
12. Regulation 2(1) defines "document"
as having the same meaning as in Part I of the Civil Evidence
Act 1968. However, Part I of the 1968 Act has been repealed by
the Civil Evidence Act 1995. The Committee asked the Home Office
for an explanation as to why the regulation, instead of setting
out the definition in full, defines that expression by reference
to repealed legislation. In a memorandum printed in Appendix 5,
the Department accepts the points made by the Committee and apologises
for the fact that in consolidating the previous Regulations, the
reference to the 1968 Act was not updated and expanded. They undertake
to correct this defect at the earliest convenient opportunity.
The Committee reports the definition of "document"
in regulation 2(1) on the ground that it is drafted in
an unnecessarily referential manner.
13. Regulation 6(7)(c) confers an exemption on "a
person engaged in the business of the Post Office when acting
in the course of that business" from the prohibitions in
the Act on supplying controlled drugs to another, or being in
possession of such drugs. The Home Office acknowledges that this
provision should have been updated to reflect the changes made
by the Postal Services Act 2000, and undertakes to correct the
defect at the earliest convenient opportunity. The Committee
therefore reports regulation 6(7)(c) for defective drafting, acknowledged
by the Department.
Education Standards Fund (England) (Amendment)
Regulations 2001 (S.I. 2001/3994)
14. The Committee draws the special attention
of both Houses to these Regulations on the ground that they do
not comply with proper legislative practice in one respect.
15. Regulation 3 provides that, in regulation 5 of
the principal Regulations, for "5(a) and 6(a), (c) and
(d)" there shall be substituted "5(a) and (c) and
6(a), (c) and (d)". Since the italicised and underlined
words are the same, the Committee asked for an explanation of
the purpose of, and need for, the substitution in this particular
respect. In a memorandum printed in Appendix 6, the Department
for Education and Skills acknowledges that the substitution, to
the extent that it contains the underlined words, is unnecessary
and serves no purpose. The Committee therefore reports regulation
3 for failure to comply with proper legislative practice.
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