The Committee has considered the following instruments,
and has determined that the special attention of both Houses should
be drawn to them on the grounds specified.
2003/2123: defective drafting
Patients' Forums (Membership and Procedure) Regulations
2003 (S.I. 2003/2123)
1.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
1.2 These Regulations, which are made under section
19 of the National Health Service Reform and Health Care Professions
Act 2002, make provision concerning the membership and procedure
of Patients' Forums established under section 15 of that Act.
Regulation 2 provides for the numbers, appointment, qualification
and tenure of members of such Forums. Paragraphs (3) and (4) contain
various requirements as to the descriptions of persons who must
be included as members of a Forum. Paragraphs (3)(b) and (4)(b)
require the Commission for Patient and Public Involvement in Health
to ensure that, subject to regulation 4(1)(i), the members
of a forum include persons of particular descriptions. Regulation
4(1) sets out 13 grounds on which a person may be disqualified
for appointment as a member, some of which constitute more than
one ground. In all, there are 24 different grounds on which a
person may be disqualified.
1.3 The Committee asked the Department of Health
to explain the purpose and effect of the italicised words, given
that all of the grounds for disqualification apply to every member
of a forum. In a memorandum printed at Appendix 1, the Department
states that the references to regulation 4(1)(i) were included
in error, and undertakes to remove them at the earliest opportunity.
The Committee accordingly reports regulation 2(3)(b) and (4)(b)
for defective drafting, acknowledged by the Department.
1.4 Regulation 6(3) provides that "where a person
has been appointed to be a member and ... (b) he becomes disqualified
for appointment and notifies (as he should) the Commission,
... and upon receipt of notification from the member ... his tenure
of office, if any, shall be terminated and he shall cease to act
as a member". It was unclear to the Committee whether this
ungrammatical provision was intended to impose an obligation on
the member to notify the Commission, or merely to indicate the
manner in which the Secretary of State expects a member to behave.
It therefore asked the Department to explain the purpose and effect
of the italicised words, and whether they are intended to mean
the same as "he shall notify". The Department states
that the purpose and effect of the words is to create an obligation
on the individual to notify, and that the intention was to make
clear the expectation that the individual would notify without
creating a sanction for failure to do so.
1.5 The Committee does
not agree that the effect of the provision as drafted is to impose
an obligation. The Department's intention would have been achieved
if the italicised words had read "he shall notify",
and the provision would then also have been grammatically correct.
The Committee accordingly reports regulation 6(3)(b) for defective