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. The Committee draws the special
attention of both Houses to this draft Order on the ground that
it makes an unexpected use of the power under which it is made.
A Memorandum from the Department of the Environment, Transport
and the Regions in connection with the draft is printed in Appendix
3. The draft is made under powers
conferred by provisions of the Representation of the People Act
1983 inserted in that Act by the Greater London Authority Act
1999. The relevant provision is section 75(1B) which provides
that section 75(1) shall have effect in relation to a Greater
London Authority election with the substitutions for the sum specified
in section 75(1) of such sum as the Secretary of State may prescribe
in an order. Section 75(1C) allows different sums to be prescribed
in relation to:-
election of the Mayor of London;
(b) an election of a constituency member of the London Assembly;
(c) an election of the London members of the London Assembly
at an ordinary election.
4. Section 75 prohibits election
expenses not authorised by a candidate's election agent but subsection
(1) contains an exception for expenses "not exceeding in
the aggregate the sum of £5" incurred by an individual
and not incurred in pursuance of a plan suggested by or concerted
with others. (The sum of £5 was substituted for 50p by the
Representation of the People Act 1985). The draft Order increases
the limit of £5 to £25,000, £1,800 and £25,000
in relation to election of the Mayor, constituency member of the
London Assembly and London Members of the London Assembly respectively.
5. The Committee asked the Department
to explain why the limits for third party election expenses have
been so dramatically increased under this order, from £5
to £25,000 in one instance. The Memorandum explains that
the change follows a decision of the European Court of Human Rights
that the £5 limit, backed as it is by a criminal penalty,
amounted to a violation of the right to freedom of expression
and that the change is part of a general increase in the limit
on third parties' expenses proposed in the current Political Parties,
Elections and Referendums Bill. The Committee is grateful to the
Department for their explanation. The Committee nevertheless notes
that not only are the increases in amounts very great, but also
that such a substantial increase is bound to raise further questions.
For example, will it be possible to enforce the new, higher limits?
Whether expenditure exceeds £5 is likely to be self-evident
but whether a campaign has cost £20,000 or £30,000 will
be difficult to discover without help from the campaigner.
6. For these reasons the Committee
concludes that the draft Order makes an unexpected use of the
power under which it is made, and draws the special attention
of both Houses to the draft Order accordingly.
2000 (S.I. 2000/107)
7. These Regulations prescribe
matters relating to inspection and the making of grants in respect
of nursery education. Regulation 7(6)(c) refers to "the conditions
in paragraph (6)". The Committee asked the Department for
Education and Employment whether this should not in fact be a
reference to paragraph (5). In the Memorandum printed in Appendix
2, the Department acknowledged that this was the case.
8. The Committee accordingly
draws the special attention of both Houses to these Regulations
on the ground that they are defectively drafted as admitted by
2000 (S.I. 2000/89).
9. The Committee draws the special
attention of both Houses to these Regulations on the ground that
they require elucidation.
10. The Regulations make provision
concerning the membership and procedure of primary care trusts
in England. The Committee asked the Department of Health, in view
of the fact that the powers being exercised have, as regards Wales,
been transferred to the Welsh Assembly, why regulation 1 contained
no provision making the Regulations applicable to Primary Care
Trusts established for areas in England only. The Department,
in the Memorandum printed in Appendix 3, stated that this was
not necessary because the Secretary of State had no power to make
the Regulations in relation to Trusts established for areas in
Wales; the heading of the instrument and the footnote and explanatory
notes should make the position clear; and the instrument itself
was sufficiently clear on its face.
11. The Committee's view is
that an extent (or application) provision ought in future to be
included in the case of an instrument such as this: the extent
of an instrument is a matter of substantive law calling for a
provision in the body of the instrument; and there is nothing
on the face of these Regulations, that is to say, on the face
of its provisions, to show that it applies only to English
Primary Care Trusts.
12. The Committee further asked
the Department whether regulation 12, by which a Primary Care
Trust would be able to exercise its functions through the agency
of other health authorities, was intended to include Primary Care
Trusts established for areas in Wales. The Department's Memorandum
states the Department's view that regulation 12 would not (for
the same reasons) be taken to cover Welsh health service bodies
and that, if that were required, further provision would be required.
13. The Committee reports the
instrument as requiring elucidation in two respects, provided
in the Memorandum from the Department of Health.
2000 (S.I. 2000/121)
14. These Regulations make provision
regarding nurses working in Walk-in centres in England. A point
similar to that just outlined arises in the case of these Regulations.
The Committee asked the Department of Health why, given that the
principal Regulations (made in 1992) extend to England and Wales
but these amending Regulations (following devolution) extend only
to England, there is no provision in the Regulations stating that
their extent is limited to England. The Department once again
indicates (in the Memorandum printed in Appendix 4) that the instrument,
including its heading and footnotes, are sufficiently clear without
an extent provision. The Department does, however, note that it
would be good practice in future to include an extent provision
in cases of this kind, and have agreed to do so. The Committee's
view is (again and for the same reasons) that an extent provision
ought to be included, especially in the case of regulations which,
for England only, amend principal regulations which are law for
both England and Wales.
15. The Committee draws the
special attention of both Houses to these Regulations on the ground
that they require the elucidation provided by the Department.
2000 (S.I. 2000/122)
16. These Regulations make certain
provision for charges for drugs and appliances. As with the two
previous instruments, the Regulations extend to England only and,
as with the previous instrument, these Regulations amend an England
and Wales instrument. The Department of Health (in the Memorandum
printed in Appendix 5) justify the lack of an extent provision
on the same grounds as with the two previous instruments; but
accept that in future it would be helpful to include one. In the
Committee's view the Department clearly should do this.
17. The Committee once again
draws the special attention of both Houses to these Regulations,
on the ground that they require the elucidation provided by the
Department of Health.
2000 (S.I. 2000/124)
18. The Committee draws the
special attention of both Houses to these Regulations on several
grounds. In one respect, they make an unexpected use of the power
under which they are made; in several further respects they are
defectively drafted; and in other respects they require elucidation.
19. These Regulations make provision
in relation to appeals against enforcement decisions made under
the NHS price control scheme contained in sections 33 to 36 of
the Health Act 1999. They are made under the powers in section
37(5) and (6), of which subsection (6) states that the regulations
may make such provision as may be made by model rules under section
6 of the Deregulation and Contracting Out Act 1994. These regulations
follow those rules (see S.I. 1996/1678) closely. Regulation 16
sets out a power to make interim orders and directions. Under
sub-paragraph (3), where an application is made for an order or
direction before the appointment of the chairman of the tribunal
in relation to an appeal under these Regulations, the order or
direction "may be made or given by the tribunal on a temporary
basis". The "tribunal" is defined so that it includes
members of the tribunal staff. The Committee asked the Department
of Health whether this regulation was intended to empower any
member of the tribunal staff, as distinct from the legally qualified
chairman, to make orders or directions. In the Memorandum printed
in Appendix 6, the Department of Health indicated that this was
indeed the case, although the staff in question would have to
be appointed by the senior chairman.
20. The Committee considered
carefully whether Parliament would have intended that the judicial
functions vested in a chairman should, even temporarily, be carried
out by a person not required to have legal qualifications. The
model rules under the Deregulation Act clearly indicate that in
appeals to which they apply such action could only be taken by
the Registrar, i.e. a properly qualified lawyer. Parliament having,
in section 37(6) of the Health Act 1999, expressly conferred the
powers in terms of the model rules made under the Deregulation
Act, it would have not have expected a departure such as this.
Moreover, the Committee is also of the view that (in the absence
of express provision to the contrary) Parliament would not generally
authorise the exercise of judicial functions by persons not required
to be legally qualified. For both these reasons the Committee
believes that the power to allow any member of the tribunal staff
to act under regulation 16(3) is clearly an unexpected use of
the power granted by the primary legislation.
21. There are three respects
in which the instrument is defectively drafted. First, regulations
14 and 29(2)(b) refer to "the disputed" action (the
phrase used in the model rules). The Committee asked the Department
of Health whether this was intended to be a reference to the "enforcement
decision" of the Secretary of State or other person as defined
in section 37(7) of the Health Act 1999. The Department acknowledged
that this was the case but considered that the words "disputed
action" bore their ordinary meaning in this case and that
the context was thus clear. The Committee does not agree that
this expression has an "ordinary" meaning and suspects
that there was a failure to adapt to the phraseology of the Health
Act. The Committee is accordingly pleased to note that the Department
intend to resolve the doubt by amending these Regulations at the
first convenient opportunity.
22. The second example of defective
drafting occurs in regulation 27(4), which refers to representations
to the tribunal made by a party under regulation 21(1)(b). The
Committee pointed out that this should in fact be a reference
to regulation 22(1)(b) and the Department have agreed to amend
23. Thirdly, regulation 30(4)
refers to a person summoned as a witness in a county court in
pursuance of county court regulations. Once again, the
Committee pointed out that this was defectively drafted as reference
should be to the Civil Procedure rules. The Department agree and
propose to amend.
24. Finally, the Committee considers
that regulation 31(1) requires elucidation. This Regulation requires
an appeal tribunal to decide what "enforcement action"
should be taken. The Committee asked the Department of Health
what range of action was intended by this expression and the Memorandum
spells this out, together with examples. The core of their case
is that the meaning of these words is given in the primary legislation
under which the instrument is made. The Committee accepts the
accuracy of this elucidation but would expect the Department to
include in the instrument, when next amended, a definition drawn
from section 37(6)(a) of the Health Act 1999. The Committee reports
regulation 31(1) as requiring elucidation provided by the Department.
2000 (S.I. 2000/52)
25. This order partially brings
into force section 13 of the Adoption (Inter-country Aspects)
Act 1999. The power under section 18(3) of the Act to appoint
a day for commencement is, in terms of section 16(1), "exercisable
only after consultation with the National Assembly for Wales".
Hence that consultation is a pre-requisite in law for the valid
exercise of the power. The Committee asked the Department of Health
whether such consultation had taken place and if so why the instrument
did not recite the fact in the preamble (as required by paragraph
2.6 of the Statutory Instrument Practice). In the Memorandum printed
in Appendix 7, the Department of Health confirmed that such consultation
had taken place and accept that the preamble to the instrument
should have said so. They have agreed to note this point for the
26. The Committee accordingly
draws the special attention of both Houses to this Order as it
requires the elucidation provided by the Department.
1 The Orders of Reference of the Committee are set
out in the First Report, Session 1999-00 (HL Paper 4; HC 47-i). Back