Memorandum by the Department of the Environment, Transport
and the Regions
ACT 1988 (DEFINED
ORDER 1997 (S.I. 1997/2259)
The Committee has requested a memorandum on the following
Is not the effect of article 3 to create an exemption from
the competitive tendering requirements of Part I of the 1988 Act
for a period before the Order came into force?
It is true the effect of the article 3 is to purport to create
an exemption for a period before the Order came into force. In
the absence of a power to create exemptions having retrospective
effect the Order must be invalid to the extent it purports to
have that effect. The exemption in article 3 was first drafted
considerably in advance of 1 October 1997, but once proof prints
had been obtained there was a delay before the Order was made.
It should have been noted that it was no longer possible to start
the period of exemption on that date, since the instrument could
not be in force by then. The Department apologises for this inadvertent
error. No amendment to the Order is thought necessary since the
15-day period of purported retrospectivity has passed.
17th November 1997