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 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.
OF ADMISSION ARRANGEMENTS)
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.
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
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
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.
2002 (S.I. 2002/3045)
11. The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
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.