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 Ministry of Agriculture,
Fisheries and Food in connection with the Common Agricultural
Policy (Wine) (England and Northern Ireland) Regulations 2001
(S.I. 2001/686) is printed in Appendix 1.
Education (Budget Statements)
(England) Regulations 2001 (S.I. 2001/569)
3. The Committee draws the special attention of both
Houses to these Regulations on the ground that they are defectively
4. These Regulations prescribe the form and contents
of the budget statement of a local education authority in England
for the financial year beginning on 1 April 2001, under section
52(1) of the School Standards and Framework Act 1998.
5. Regulation 1 deals with the citation, commencement
and application of the Regulations. Regulation 1(2) stipulates
that the Regulations should only apply in relation to budget statements
prepared for the financial year 2001-02, with the exception of
regulation 3, which deals with the prescribed form of, and information
to be contained in, budget statements. As it was not clear to
the Committee whether the exception was erroneously retained from
similarly worded previous Regulations or whether it was intended
to replace them it asked the Department to explain.
6. The Department, in its memorandum printed in Appendix
2, accepts that the words "except for regulation 3"
should not have been included in regulation 1(2). The Department
states that its intention is that regulation 3 should not supersede
the equivalent provisions in previous Regulations. Nor does it
intend that regulation to apply to later financial years: indeed,
fresh Budget Statement Regulations are intended to be made for
2002-03. The Department apologises for its error and states its
intention to amend the regulation when the next set of Regulations
made under section 52 of the School Standards and Framework Act
1998 are made. The Committee accordingly reports regulation 1(2)
for defective drafting, acknowledged by the Department.
Special Educational Needs
Tribunal Regulations 2001 (S.I. 2001/600)
7. The Committee draws the special attention of both
Houses to these Regulations on the ground that they are defectively
drafted in a number of respects.
8. These Regulations, which replace with amendments
similarly entitled 1995 Regulations, lay down the procedure for
dealing with appeals to the Special Educational Needs Tribunal
and provide for certain related matters. Regulation 2(1), which
defines a number of expressions in the Regulations unless the
context otherwise requires, defines the expression "parent",
except in certain provisions. The Committee asked the Department
for Education and Employment to explain where in the Regulations,
apart from in the excepted provisions, "parent" has
a different meaning from that given in regulation 2(1). In its
memorandum, printed in Appendix 3, the Department confirms that
that expression has a different meaning only in the excepted provisions,
but adds that it thought it would be helpful to the reader to
identify the cases in which the definition does not apply. The
Committee does not find this explanation satisfactory. In its
view it is defective drafting to duplicate the exceptions from
the stated definition in this way, since to do so creates doubt
as to the intended meaning of the expression in the Regulations
other than the excepted provisions. If it was desired to specify
the provisions in which "parent" bore a different meaning
from that given, the definition of that term should have been
given in a separate paragraph of regulation 2 not governed by
the general qualification "unless the context otherwise requires".
The Committee therefore reports the definition of "parent"
in regulation 2(1) for defective drafting.
9. Regulation 2(2) states that nothing in the Regulations
authorises a body corporate to take any steps in proceedings or
to attend a hearing other than by a representative. As a body
corporate can act only through a representative, the Committee
asked the Department what was the purpose and effect of this provision.
In its memorandum the Department states that the purpose of the
provision is to make clear that, for example, a local education
authority officer attending a hearing is a representative of the
authority and not "so to speak, the Authority itself".
However, it seems to the Committee that this is clearly the case
without the need for the Regulations to say so, and in any event
regulation 2(2) does not make clear who is to be regarded as a
"representative" of an authority for these purposes.
The Department's concern, that without regulation 2(2) the requirement
in regulation 16(1) (that the authority may be represented by
only one person unless the Tribunal otherwise permits) might allow
the authority to choose to be represented by an officer and a
solicitor, seems misplaced. In the Committee's view regulation
16(1) clearly does not have that effect. The Committee therefore
concludes that regulation 2(2) is unnecessary. If nonetheless
it were thought to be necessary to make clear who is to be regarded
as a representative of a local authority for the purposes of regulation
16(1), the general proposition in regulation 2(2) is not a satisfactory
way of achieving that. The Committee accordingly reports regulation
2(2) for defective drafting.
10. Regulation 30(10) states that section 576 of
the Education Act 1996 (which defines "parent"so as
to include a person who is not a child's parent but who has parental
responsibility for, or care of, him) applies to paragraphs (2)
and (8) of regulation 30. It seemed likely to the Committee that
this extended meaning of "parent" was intended to apply
throughout the Regulations, a result which is achieved by section
11 of the Interpretation Act 1978, unless a contrary intention
appears. The Committee therefore asked the Department why regulation
30(10) was included. The Department, in its memorandum, states
that, by virtue of section 11 of the Interpretation Act, the definition
in section 576 would have applied in regulation 30 without paragraph
(10) but that, in view of the separate definitions of "parent"
in regulations 2(1) and 7(4) (which respectively define "parent"
as a parent who has made an appeal to the Tribunal and a person
with a right to appeal to the Tribunal) it was thought helpful
to the reader to state this expressly in regulation 30(10). The
Committee assumes that, despite the way its memorandum is expressed,
the Department intends section 11 of the Interpretation Act to
import the meaning in section 576 throughout the Regulations.
By unnecessarily applying that meaning expressly in two particular
places, however, uncertainty is created as to the effect elsewhere
in the Regulations. Accordingly, the Committee reports regulation
30(10) for defective drafting.
11. Regulation 48(3) deals with the procedure where,
following the striking out of an appeal, the order striking it
out is set aside by the court. It requires the Secretary of the
Tribunal, in the case of sub-paragraph (a), to notify the parties,
where the period in which they may state their case following
the making of an appeal (and which is specified in regulation
18(1)) had not expired before the striking out order took effect,
that regulation 18(1) applies. The Committee asked the Department
why, where a party has not already submitted a statement of his
case in these circumstances, this period is not automatically
extended, since the appeal will have been struck out until the
striking out order is itself set aside. The Department in its
memorandum states that the effect of the provision is that regulation
18(1) applies afresh, so that the period it specifies runs from
the date of the notification under regulation 48(3). In the Committee's
view this intended result is not clearly conveyed as regulation
48(3)(a) appears to refer to the period already running under
regulation 18(1). The Committee also asked the Department why,
where a party has stated his case within the period referred
to in sub-paragraph (a), no provision is made for the submission
of a supplementary statement or further written evidence, given
that such rights are accorded to the parties under regulation
48(3)(b) in cases where that period had expired when the appeal
was struck out. In its memorandum, the Department reasons that
as the parties, in the Department's view, have a fresh period
in which to submit their case, it is unnecessary to provide for
the submission of supplementary or further material. But, even
if the period for submitting a case does begin again, it is not
clear that parties who have already done that are entitled to
supplement it or to submit a completely fresh case. The Committee
accordingly reports regulation 48(3)(a) for defective drafting
on both points.
12. The Committee also drew the Department's attention
to an erroneous reference in regulation 30(2)(b) to paragraph
(8), which should be a reference to paragraph (9), and an erroneous
reference in regulation 46(2)(b) to regulation 44(3), which should
be a reference to regulation 45(3). The Department acknowledges
these errors, which the Committee reports for defective drafting.
1 The Orders of Reference of the Committee are set
out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back