Joint Committee on Statutory Instruments Ninth Report


NINTH REPORT


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

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 Home Office in connection with the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (S.I. 2002/3078) is printed at Appendix 1.

EDUCATION (CO -ORDINATION OF ADMISSION ARRANGEMENTS) (SECONDARY SCHOOLS) (ENGLAND) REGULATIONS 2002 (S.I. 2002/2904)

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

4. These Regulations, made under sections 89B and 89C of the School Standards and Framework Act 1998, require local education authorities ("LEAs") to formulate schemes for co-ordinating the arrangements for the admission of pupils to maintained secondary schools. Regulation 3 requires every scheme to comply with the requirements specified in the Schedule. Paragraphs 2(e) and 4(e) of the Schedule each require the LEA for the school in question to communicate to the parent any determination granting or refusing admission (such determination being communicated on behalf of a school's governing body in a case where the authority are not the admission authority for the school). Paragraph 6 states that where the LEA determine under paragraph 2 that a child is to be granted or refused admission to the school, such determination shall only be communicated to the parent by the LEA, on behalf of the governing body, in accordance with paragraph 2(e). The Committee asked the Department for Education and Skills why paragraph 6 does not make similar provision in respect of determinations under paragraph 4. In a second memorandum printed at Appendix 2, the Department acknowledges that paragraph 6 is unnecessary and makes no difference to the practical effect of the Regulations. The Committee accordingly reports paragraph 6 of the Schedule for defective drafting, acknowledged by the Department.

SCHOOL COMPANIES REGULATIONS 2002 (S.I. 2002/2978)

5. The Committee draws the special attention of both Houses to these Regulations on the ground that in one respect they require elucidation and to the School Companies Regulations 2002 on the ground that they are defectively drafted in one other respect.

6. Section 11 of the Education Act 2002 permits the governing body of a maintained school to form, or participate in forming, companies for certain purposes. Section 12 provides for regulations to impose requirements in respect of such companies.

7. These two instruments impose such requirements. The School Companies (Private Finance Initiative Companies) Regulations 2002 apply in relation to any company where the main purpose in forming the company is to enter into or facilitate agreements under the private finance initiative and one of the company's objects is to enter into or facilitate such agreements. The School Companies Regulations 2002 apply in relation to other companies. In each instrument, regulation 3(1) defines "an agreement under the private finance initiative" as including "an agreement where private finance initiative credits are given to a local authority in respect of that agreement". The expression "private finance initiative credit" is defined in neither instrument, nor is it defined in the 2002 Act.

8. In a memorandum printed at Appendix 3, the Department for Education and Skills explains that the expression is not defined in any legislation, but its meaning is well known to the main users of the Regulations: maintained schools and local authorities. The Department then explains in some detail what a private finance initiative credit is. Although the Committee considers that expressions should not normally be used in legislation unless either their meaning is clear or they are clearly defined, it accepts that in this instance definition is far from simple and that those directly affected by the Regulations will not be confused by the use of the term. The Committee accordingly reports regulation 3 of both instruments as requiring the elucidation provided in the Department's memorandum.

9. Regulation 8(2) of the School Companies Regulations 2002 requires the constitution of a school company (to which those Regulations apply) to provide that [(a) and (b)] there shall be a remuneration committee, composed of non-executive members, [(c)] that committee shall recommend to the directors of the company the terms of service and remuneration of the executive directors, and [(d)] the terms of service and remuneration of the executive directors shall be determined either by the directors as a whole on the recommendation of the remuneration committee or by the remuneration committee alone. The Committee was unsure what purpose was served by requiring the remuneration committee to make recommendations to the directors when the committee itself would be making the determination.

10. The Department acknowledges that there is "a slight inconsistency" between sub-paragraphs (c) and (d) and undertakes to amend the Regulations in due course. The Committee accordingly reports regulation 8(2) of the School Company Regulations for defective drafting, acknowledged by the Department.

SALE AND SUPPLY OF GOODS TO CONSUMERS REGULATIONS 2002 (S.I. 2002/3045)

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

12. Regulation 5 inserts new sections into the Sale of Goods Act 1979, to confer additional rights on consumer purchasers. The new section 48D is in the following terms:

(1) If the buyer requires the seller to repair or replace the goods the buyer must not act under subsection (2) until he has given the seller a reasonable time in which to repair or replace (as the case may be) the goods.

(2) The buyer acts under this subsection if-

...

(c) he requires the goods to be replaced or repaired (as the case may be).

13. On a literal interpretation, this would appear to say that if a buyer requires the seller to replace goods, he may not require him to replace them until he has given him a reasonable time in which to replace them. As this would preclude the buyer from ever requiring the goods to be replaced, the Committee realised that this cannot have been the intended meaning. In a memorandum printed at Appendix 4, the Department of Trade and Industry explains that the intended meaning is that where the buyer has chosen to ask the seller to repair the goods, he must give him a reasonable time to do so before he may ask for a replacement instead, and where he has asked the seller to replace the goods, he must allow him a reasonable time to do so before he may ask for a repair.

14. The Department appears to be relying on the use of "repaired or replaced" in subsection (1) and "replaced or repaired (as the case may be)" in subsection (2) to achieve this effect. In the Committee's view, the Department is mistaken in this regard. The phrase "as the case may be" means no more than "whichever is applicable", and reversing the order in which alternatives are presented does not of itself convey any special meaning. Section 48D should have spelt out clearly what was intended but does not do so.

15. Regulation 9 inserts an almost identical provision into the Supply of Goods and Services Act 1982, and the same comments apply. The Committee accordingly reports regulations 5 and 9 for defective drafting.


 
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