Joint Committee on Statutory Instruments Fourteenth Report




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 by the Department for Culture, Media and Sport in connection with the Public Lending Right Scheme 1982 (Commencement of Variations) Order 1999 (S.I. 1999/420) is printed in Appendix I to this Report.

3. A memorandum by the Home Office in connection with the Lotteries (Gaming Board Fees) Order 1999 (S.I. 1999/436) is printed in Appendix II to this Report.


4. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in two respects.

5. These Regulations amend the National Health Service (Fund-Holding Practices) Regulations 1997. Regulation 22 inserts into the 1997 Regulations a new Schedule 4, headed "Services which may be purchased by a residual fund-holding practice". Regulation 15(4) substitutes a new regulation 18(2) and (2A) into the 1997 Regulations, both of which mention the "goods and services" referred to in Schedule 4. The Committee asked the Scottish Office Department of Health whether substitute regulation 18(2) and (2A) should refer only to "services" and, if so, whether regulation 18(1) of the 1997 Regulations should have been amended by the present Regulations to the same effect. The Department reply in the memorandum printed in Appendix III that although the new Schedule 4 does not specify any "goods", the services it specifies encompass goods which must be purchased to provide the services in question. The Department therefore consider that the new Schedule 4 should have been headed "Goods and Services ..." and say that the omission will be corrected when the Regulations are next amended. This, however, is not, in the Committee's view, the root of the drafting problem. Given the intention that goods for the services are implicitly included in Schedule 4 the provisions of the substitute regulation 18(2) and (2A) ought to have indicated that the Schedule 4 provisions include goods which are required to be purchased to enable the scheduled services to be provided. The Committee reports regulation 15(4)'s insertion of the substituted provisions of regulation 18 of the 1997 Regulations for defective drafting in failing to include this indication.

6. Regulation 25(3) defines "residual fund-holding practice" for the purposes of regulation 25, but the term does not appear anywhere else in the regulation. In response to a question by the Committee the Department admit that the definition should not have been included and say that they will remove regulation 25(3) when the Regulations are amended. The Committee reports regulation 25(3) for defective drafting, acknowledged by the Department.



7. The Committee draws the special attention of both Houses to these Regulations on the grounds that both are of dubious vires as regards the provision made for the delegation of the corporation's function to the principal of the college. The Committee has reported on this subject several times before[2]: the issue is as follows. The Regulations are made under section 20 of, and Schedule 4 to, the Further and Higher Education Act 1992. Under the Act each further education institution is conducted by a corporation established for that purpose with an instrument of government and articles of government. These two Regulations prescribe both instruments and articles for the corporations established to conduct their respective colleges (which have principals as their head). Paragraph 5 of Schedule 4 to the 1992 Act provides that an instrument of government or articles of government "may provide for the delegation of functions of the corporation to officers or committees". There is no provision which expressly authorises delegation to the principal. Article 5(1) of Schedule 2 to both of these instruments authorises the delegation of certain functions by the corporation to the principal. The Committee reported the instruments referred to in the footnote for being of dubious vires, on the ground, essentially, that since Schedule 4 conferred a power of delegation restricted to delegation to officers and committees it must be assumed that Parliament did not intend to confer such as power as regards the principal, unlike the cases of the institutions provided for in sections 125(2)(b) and 152(5)(b) of the Education Reform Act 1988.

8. The Department for Education and Employment indicated to the Committee that it has nothing to add to the arguments it made on the last occasion the same point arose, and so those arguments are summarised here. The Department argued that paragraph 5 of Schedule 4 to the 1992 Act is concerned with the internal management of the corporation and not with delegation, and that the corporation would have an implied power to delegate to the principal because Parliament cannot have intended the board of governors to take every decision in relation to the institution.

9. The Committee still finds these arguments unconvincing. The power in article 5(1) of Schedule 2 to each of these Regulations is not concerned with the corporation's internal management: there is no need for a statute to express the common law principle that a corporation must, by its artificial nature, act through its human instruments. Paragraph 5(1) confers a true power to delegate functions; and it cannot be taken that there is an implicit power in the 1992 Act because paragraph 5 of Schedule 4 makes specific provision on delegation: to committees or officers of the corporation, and not to the principal. The Committee therefore reports article 5(1) of Schedule 2 to each of these Regulations for being of dubious vires.

1  The Orders of Reference of the Committee are set out in the First Report, Session 1998-99 (HL Paper 4; HC 50-i). Back
2  See the 39th Report, Session 1997-98 (HL Paper 125, HC 33-xxxix); 1st Report, Session 1996-97 (HL Paper 3, HC 29-i); 9th and 21st Reports, Session 1995-96 (HL Paper 40; HC 34-ix and HL Paper 82; HC 34-xxi respectively); and 26th and 28th Reports, Session 1994-95 (HL Paper 104; HC 8-xxvi and HL Paper 99; HC 8-xxviii respectively). Back

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