Joint Committee on Statutory Instruments Tenth Report


Memorandum by the Department of Health

REGULATIONS 2000 (S.I. 2000/124)

  1. This Memorandum is submitted in response to the following points which the

Committee raised in their letter of 2 February 2000.

Point 1

    Regulations 14 and 29(2)(b) refer to the "disputed" action". Is this 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).


  2. It is considered that the words "disputed action" bear their ordinary meaning and that in context they refer to the relevant enforcement decision. Nevertheless, the Department intend to resolve any possible doubt by amending regulations 14 and 29(2)(b) at the first convenient opportunity.

Point 2

    Explain whether regulation 16(3) is intended to empower a member of the tribunal staff (as distinct from a (legally qualified) chairman) to make interim orders or directions.


  3. By paragraph (c) of the definition of "tribunal" in regulation 2, either a member of the panel of tribunal chairmen or a member of staff appointed by the Senior Chairman may make or give directions and orders on a temporary basis before the appointment of the chairman. Staff are appointed by the Senior Chairman and they may only exercise functions under regulation 16(3) within the limits of the terms of their appointment. Whether staff are appointed for this purpose, and if they are the circumstances in which they may act, are matters for the Senior Chairman.

Point 3

    Regulation 20(4) authorises the tribunal to apply for an enforcing order to a county court or, in relation to Scottish proceedings, to the sheriff (by summary application). Paragraph (5) requires "the court's" permission for any further appeal. Is this intended to apply also to a decision of a sheriff on summary application?


  4. Yes. We consulted Scottish colleagues before making the Regulations and have subsequently sought their confirmation. It is understood that "court" is a term which covers the sheriff when he is carrying out the enforcement function.

Point 4

    Regulation 27(4) refers to representations (to the tribunal) made by a party under regulation 21(1)(b). Is regulation 22(1)(b) (or what other regulation) intended to be referred to?


  5. Yes, it was intended to refer to regulation 22(1)(b). Accordingly it is accepted that regulation 27(4) contains a drafting defect such that the power to dispose of an appeal in the absence of the parties is not exercisable. It is considered that the circumstances envisaged by regulation 27(4) will arise very infrequently. The Department proposes to amend the Regulations at the first convenient opportunity.

Point 5

    Regulation 30(4) (in the intended full-out words beginning "a judge may") refers to a person summoned as a witness in a county court in pursuance of county court regulations. Should not this be a reference to civil procedure rules?


  6. Yes. It is proposed to make an amendment to refer to the civil procedure rules at the first convenient opportunity.

Point 6

    Regulation 31(1) requires the tribunal to decide not only whether the enforcement decision was justified but also what "enforcement action" should be taken. Explain what kinds of action, in terms of section 37 (and any other relevant sections) of the Health Act 1999, is intended. (Compare "enforcement action" as defined in section 5(6) of the Deregulation and Contracting Out Act 1994).


  7. Section 11 of the Interpretation Act 1979 is relied on for the proposition that where an Act confers power to make subordinate legislation, expressions used in that legislation have, unless the contrary intention appears, the meaning which they bear in the Act. On that basis "enforcement action" means action taken to implement an enforcement decision, the meaning which those words have in section 37(6)(a) of the Health Act 1999. Examples of enforcement action therefore include the determination of the amount of any recoverable sum or penalty which is payable under the provisions which fall to be considered by the Tribunal. The definition of "enforcement action" in section 5(6) of the Deregulation and Contracting Out Act 1994 is wider and extends to the granting, renewal and variation of licences.

  8. It is proposed to make Regulations to correct the errors identified in points 1, 4 and 5 above by the end of March 2000 or shortly thereafter. As it is not envisaged that any enforcement decision will be made before that time, it is not considered appropriate to abridge the length of period of statutory consultation with the industry body or that required by the regulation making process, including the 21 day rule.

7th February 2000

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2000
Prepared 23 March 2000