Joint Committee on Statutory Instruments Nineteenth Report


NINETEENTH 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.

FOSTERING SERVICES REGULATIONS 2002 (S.I. 2002/57)

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

3. Regulation 2(1) defines "foster parent" as "a person with whom a child is placed or may be placed under these Regulations, and except in Parts IV and V of these Regulations, includes any person who is not a foster parent but with whom a child is placed by a local authority under regulation 38(2)". The italicised words can therefore be paraphrased as "any person who is not a person with whom a child is or may be placed but with whom a child is placed". It is clearly impossible for such a person to exist. The Department of Health, in a memorandum printed in the Appendix, explains that the intention is that Parts IV and V, which deal with the approval of foster parents and the placement of children with them, should not apply to a person with whom a child is placed in the exceptional case provided for by regulation 38(2). The Department agrees that alternative wording suggested by the Committee is preferable, but considers that the intended meaning is clear. Whilst the Committee acknowledges that it is possible to ascertain the intended meaning, this does not in its view justify the inclusion in legislation of a provision which, as drafted, makes no sense. The Committee accordingly reports regulation 2(1) for defective drafting.

4. Regulation 39(2) requires a responsible authority arranging to place a child outside England to ensure, so far as reasonably practicable, that the requirements which would have applied under the Regulations had the child been placed in England are complied with. Regulation 39(3) makes this duty, in the case of a local authority, subject to paragraph 19 of Schedule 2 to the Children Act 1989. That paragraph requires a local authority to obtain certain approvals before it may arrange the placement of a child outside England and Wales. It was not clear to the Committee how the 1989 Act qualified the requirement in regulation 39(2). The Department states that regulation 39(3) provides an important signpost, indicating that compliance with the duty in regulation 39(2) is but one part of the overall picture. The Committee does not find this explanation satisfactory. The duty in regulation 39(2) is not "subject to", or qualified in any way by, the 1989 Act, which imposes a quite separate requirement and to that extent the Committee considers regulation 39(3) to be defectively drafted. Moreover, it is not in accordance with proper drafting practice for subordinate legislation to purport to preserve the effect of primary legislation, as the latter will apply in any event. If any "signpost" is considered necessary, it could be provided in guidance to local authorities. The Committee accordingly reports regulation 39(3) for defective drafting.

5. Paragraph (1) of regulation 48 makes a failure to comply with the provisions of regulations 3 to 23 and 42 to 46 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 and Eighteenth Reports of this Session, the Committee reported similar provisions in other Regulations (S.I. 2001/ 3965, 3967, 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 48(2) and (3) of the present Regulations to a failure to comply with the provisions of regulations which require action to be taken before making a decision (for example, regulation 11(b)), within a specified period (regulations 4(b) and 45(5)), or "forthwith" (regulations 6(3), 9 and 10) or "without delay" (regulation 43(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 48 for defective drafting, acknowledged by the Department, and considers that the Department should correct the defects at the first available opportunity.

6. Regulation 48(4) permits the Commission to bring proceedings against a person who was once but no longer is a registered person, in respect of a failure to comply with regulation 22 or 32. The Regulations do not make contravention of regulation 32 an offence. The Department states that the reference to regulation 32 is inadvertent, and will be removed at the earliest opportunity. The Committee accordingly reports regulation 48(4) 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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