Joint Committee on Statutory Instruments Tenth 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 from the Department of Trade and Industry in connection with the Working Time (Amendment) Regulations 2001 (S.I. 2001/3256) is printed in Appendix 1.

3. A memorandum from the Department of Health in connection with the National Assistance (Residential Accommodation) (Disregarding of Resources) (England) Regulations 2001 (S.I. 2001/3067), National Assistance (Residential Accommodation) (Additional Payments) (England) Regulations 2001 (S.I. 2001/3068) and National Assistance (Residential Accommodation) (Relevant Contributions) (England) Regulations 2001 (S.I. 2001/3069) is printed in Appendix 2.

4. A memorandum from the Department of Work and Pensions in connection with the Social Fund Maternity and Funeral Expenses (General) Amendment Regulations 2001 (S.I. 2001/3023) is printed in Appendix 3.

5. A memorandum from the Department of Health in connection with the National Health Service (Travelling Expenses and Remission of Charges) Amendment (No. 2) Regulations 2001 (S.I. 2001/3065) is printed in Appendix 4.

Sussex Downs College (Government) Regulations 2001 (S.I. 2001/2799)
Brooke House Sixth Form College (Government) Regulations 2001 (S.I. 2001/3213)

6. The Committee draws the special attention of both Houses to these Regulations on the grounds that they make an unexpectedly limited exercise of the enabling power and, in one respect, are of doubtful vires.

7. Clause 8(8) of the Instrument of Government for these further education corporations, set out in Schedule 1 to each of these Regulations, provides that a person is disqualified from holding, or continuing to hold, office as a member of the corporation if, within five years before his appointment would otherwise have taken effect, or since his appointment, he has been convicted in the United Kingdom, the Channel Islands or the Isle of Man of any offence and has had passed on him a sentence of imprisonment for a period of not less than three months without the option of a fine. It was not clear to the Committee why the scope of this provision had been limited to a conviction in the British Islands, given that this restriction does not appear in the corresponding provision in another recent instrument (The General Social Care Council (Appointments and Procedure) Regulations 2001 (S.I. 2001/1744)). Regulation 4(1)(a) of the latter instrument refers to a conviction in the United Kingdom or elsewhere, and regulation 4(2) specifies the cases in which a conviction by a court outside the United Kingdom is to be disregarded for that purpose. In a memorandum printed in Appendix 5, the Department for Education and Skills, whilst acknowledging that it might seem desirable not to limit the scope of the provision to convictions in the British Islands, say that such a provision would in practice be unenforceable, as there would be no centrally held record available to the Department against which checks for such convictions could be made.

8. The Committee does not consider that the difficulties of enforcement justify the anomaly created by this limitation. A person convicted of an offence in the British Islands and sentenced to, say, four months' imprisonment is automatically disqualified from holding, or continuing to hold, office as a member. But he would not be automatically disqualified if he was convicted of, say, a drug offence in the Republic of Ireland and sentenced to a much longer period of imprisonment. It appears to the Committee that Parliament would not have expected the power to be exercised so as to produce such a result, where the conviction is known about before the person is appointed or it subsequently comes to light. The anomaly seems all the more unexpected given that under clause 5(6) of the Instrument the Corporation has no discretion to refuse to appoint a person as a parent, staff, student, local authority or community member, unless that person is ineligible under clause 8. Accordingly, the Committee reports clause 8(8) on the ground that it makes an unexpectedly limited use of the enabling power.

9. Article 5(10) of the Articles of Government set out in Schedule 2 to S.I. 2001/2799 (article 4(10) in Schedule 2 to S.I.2001/3213) provides that the Principal may delegate any of his functions (which may include functions of the Corporation which are delegated to him) other than the management of budget and resources to the holder of any other senior post. The Committee asked the Department to identify the power authorising this provision. In its first memorandum the Department cite section 20(2)(b) of the Further and Higher Education Act 1992, which authorises the inclusion of provision set out in Schedule 4 to the Act and "such other provision as may be necessary or desirable". They point out that the Principal needs subordinate staff to run an institution of this kind who must obviously have powers delegated to them. This did not seem to the Committee to justify conferring an unlimited power on the Principal to delegate virtually any of his functions. The Committee therefore asked the Department whether, if Parliament had intended to authorise such provision, it would have provided for that expressly, as it has in relation to delegation of the Corporation's functions, and to explain, in relation to the Principal's functions set out in article 3(2), why the Department consider delegation to be necessary and desirable. In their second memorandum the Department point out that article 3(2) provides for the Principal to be the Chief Executive of the institution and sets out his responsibilities. These include responsibility for (a) making proposals to the Corporation about the educational character and mission of the institution, and for implementing the decisions of the Corporation and (b) responsibility for the organisation, direction and management of the institution and leadership of the staff. The Department say that the Principal cannot effectively carry out these responsibilities without being able to delegate his functions to members of staff.

10. The Committee appreciates that the Principal of a further education college will need the assistance of members of staff to carry out his responsibilities. It would accept that the Principal needs to be able to confer powers on members of staff so far as necessary to enable him to discharge his responsibilities, and that authority to make such provision is conferred by section 20(2)(b) of the 1992 Act. But it is not persuaded that that section authorises provision enabling the Principal to confer largely unlimited powers on senior officers or to divest himself of his responsibility for the proper discharge of almost all of his functions in article 3(2), which the Committee notes are the kind of functions for which a chief executive would be expected to take personal responsibility, or to subdelegate any functions delegated to him by the Corporation. It accordingly reports article 5(10) of S.I.2001/2799 and article 4(10) of S.I. 2001/3213 for doubtful vires.

REGULATIONS 2001 (S.I. 2001/2992)

11. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted.

12. Regulation 2(2) amends regulation 3(4A) of the principal Regulations of1991 to read as follows: "... a person shall not be regarded as suitable to act as a foster parent if he or any member of his household aged 18 or over - (a) has been convicted of a specified offence committed at the age of 18 or over; or (b) has been cautioned by a constable in respect of any such offence which, at the time the caution was given, he admitted". Schedule 1 to the principal Regulations sets out the information which local authorities must obtain in relation to a foster parent, including (at paragraph 9) information about any previous criminal convictions and cautions given by a constable in respect of criminal offences relating either to him or other members of his household "over the age of 18". In a memorandum printed in Appendix 6, the Department of Health accept that it would have been preferable to have amended paragraph 9 of Schedule 1 consistently with the amendment made by regulation 2(2)(b), and indicate that they will bear this point in mind when the principal Regulations are replaced next year. In the Committee's view, the amendment to paragraph 9 of Schedule 1 is necessarily consequential on the amendment made by regulation 2(2)(b): given the amendment to regulation 3(4A) of the principal Regulations as indicated by the italicised words, paragraph 9 of Schedule 1 should have been consequentially amended by substituting the words "aged 18 or over" for the words "over the age of 18". The Committee recommends that paragraph 9 of Schedule 1 should be amended when the principal Regulations are next amended or replaced. The Committee therefore reports this instrument on the ground that it is defectively drafted in omitting to consequentially amend a provision in the principal Regulations.


13. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

14. Regulation 1(2) provides that, unless the context otherwise requires, a reference to a numbered section is to a section of the Children (Leaving Care) Act 2000 bearing that number. In a memorandum printed in Appendix 7, the Department for Work and Pensions accept that the italicised words are redundant and should not have been included, since there is no context in which a numbered section bears a different meaning. The Committee therefore reports regulation 1(2) for defective drafting, acknowledged by the Department.

Road Vehicles (Construction and Use) (Amendment) (No. 4)
Regulations 2001 (S.I. 2001/3208)

15. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted.

16. New paragraph (1E) of regulation 15 (inserted by regulation 5(2)) requires (with certain exceptions) motor vehicles of the relevant kind first used on or after 1 May 2002 or trailers manufactured after that date to comply with certain requirements set out in the specified Community Directive, subject to the proviso that it shall be lawful for a motor vehicle first used before 1 May 2002 or a trailer manufactured before 1 April 2002 to comply with those requirements instead of complying with certain specified provisions of the Regulations. The Explanatory Note states that "[t]his extension will apply to all new vehicles of the relevant kinds first used on or after 1 April 2002". In a memorandum printed in Appendix 8, the Department for Transport, Local Government and the Regions acknowledge that the italicised references to 1 April 2002 should have read " 1 May 2002", and indicate that they will correct the error in the near future when the principal Regulations are next amended. The Committee therefore reports new regulation 15(1E) and the explanatory note for defective drafting, acknowledged by the Department.

Financial Services and Markets Tribunal Rules 2001 (S.I. 2001/2476)

17. The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted.

18. Section 133(1) of the Financial Services and Markets Act 2000 provides that:

    "A reference to the Tribunal under this Act must be made before the end of—

    (a)  the period of 28 days beginning with the date on which the decision notice or supervisory notice in question is given; or

    (b)  such other period as may be specified in rules made under section 132."

19. Rule 4(2) of this instrument provides that "In any case not covered by section 133(1)(a) ¼ the period specified for the purposes of section 133(1)(b) ¼ shall be the period of 28 days beginning with the date on which the Authority notice is given." The purpose of section 133(1)(b) is to allow rules to specify a period other than 28 days which will apply instead of that specified in paragraph (a). Rule 4(2) does not do this, however, since—

    —  it applies only in cases where paragraph (a) does not apply;

    —  it specifies an identical period of 28 days.

20. In a memorandum printed in Appendix 9, the Lord Chancellor's Department say, incorrectly, that section 133(1)(b) provides that in cases other than those where a decision notice or supervisory notice is given rules should prescribe the period within which a reference to the Tribunal must be made. The Department refers to such a case, a final view notice under article 58(4) of the Financial Services and Markets Act 2000 (Transitional Provisions) (Authorised Persons etc) Order 2001. Article 58(6) of that Order, however, already applies section 133(1)(a) in such a case with an appropriate modification, and any further transitional provisions orders would be expected to include an equivalent provision. Not only, therefore, is rule 4(2) defectively drafted, it is also unnecessary, and the Committee accordingly reports it for defective drafting.

21. Separately, our attention was also drawn to the fact that these Rules have been the subject of some discontent amongst those who will be subject to the procedures of the Tribunal which the Rules establish. This discontent centres chiefly on Rule 17, which provides for a presumption that Tribunal proceedings should take place in public, subject to an ability to sit in private if certain conditions are met. It was contended that the nature of the matters which will be considered by the Tribunal was such that the Rules should instead provide for a presumption that proceedings should take place in private.

22. Of itself, this is not a matter for us, since it concerns the merits of the Rules and the policy behind them. However, it was further contended that the Rules made an unexpected use of the powers conferred by the Financial Services and Markets Act, because Government policy before and during the passage through Parliament of the Bill which became that Act was that the Tribunal which would be established under the Act would work on the basis of a presumption of privacy in its proceedings; and because a presumption of public hearings conflicted with other provisions (in particular, those restricting the publication by the Financial Services Authority of certain notices) elsewhere in the Act.

23. Having considered the matter carefully, and examined the statements of Ministers during the passage of the Act, we concluded that there were no grounds for reporting that an unexpected use had been made of the powers conferred by the parent Act. Inter alia, we considered that Ministerial statements regarding Tribunal procedures were by no means as clear-cut an expression of policy in favour of privacy as had been suggested; and indeed can, in one instance in particular, be taken to indicate precisely the opposite, i.e. that the Government did in fact intend a presumption of hearings in public. It also appears to us that, whilst the arrangements for the publication by the Financial Services Authority of final notices are necessary if Tribunal proceedings are conducted in private (as they may be under the Rules), that does not imply that such proceedings are always or even usually in private. Furthermore, we note that the Government claims that a draft of the rules was sent to certain Members of the House of Lords whilst the Bill was still passing through that House, which fatally undermines the notion that Parliament could not have anticipated the use which would be made of this power (though we accept that it is disputed whether this draft actually reached the offices of all the intended recipients).

24. With hindsight, it is perhaps unfortunate that the Government did not at an earlier stage in proceedings specifically and clearly flag up that they intended a presumption in favour of publicity, given the importance which has been attached to this provision of the Rules by certain industry interests. Nevertheless the Committee does not consider it possible to conclude that in these Rules an unexpected use has been made of the powers conferred by the Financial Services and Markets Act. We note that, following a debate on the Rules on 23 October 2001, the House of Lords itself has rejected arguments in favour of a presumption of privacy in Tribunal proceedings.

25. However, whilst we rejected the substance of the argument which was put to us, we nevertheless decided, in accordance with the provision of the Standing Order under which we work which enables us to examine matters other than those specifically mentioned in the Standing Order, but which do not impinge on the merits of an instrument or the policy behind it, to examine further one matter relating to these Rules, namely the process of consultation which preceded the making of the Rules. We therefore wrote to the Lord Chancellor's Department, asking:

      (i)  why the consultation was not subject to the Cabinet Office Code of Practice on Written Consultation, and in what respects it fell short of the ideal set out there;

      (ii)  to which organisations the consultation document was sent, and what responses were received; and

      (iii)  for an explanation of any changes which were made to the draft between the issuing of the consultation paper and the making of the Rules in their final form; and whether such changes were as a result of responses to the consultation or were made for other reasons.

26. The Department's reply to these questions is printed at Appendix 10. It appears to us that the consultation process was conducted properly, and, to the extent that it was appropriate, in accordance with the Code. We note that very few City institutions were specifically consulted; but we also note that the consultation documents were referred to in the Treasury bulletin, which is seen by many in the City, and that a number of such institutions did respond to the consultation. We also note that, subsequent to our request that the Department account for the consultation process, the Department has written to all those that responded to the consultation bringing them up to date with the current position and offering to provide them with a summary of the consultation responses on request. Ideally, this step (taken in accordance with criterion 6 of the Code) should have been taken earlier, perhaps as soon as the Rules had been finalised and laid before Parliament. However, we appreciate that the Department has had a considerable volume of correspondence relating to these Rules to deal with, as well as the motion calling on the Government to withdraw the Rules which was debated in the House of Lords.

27. We therefore see no further grounds on which to draw the special attention of both Houses to this instrument. Nevertheless we believe that inviting Departments to account for the way in which they conduct consultation processes (even where such processes are not required by the Act under which any particular instrument is made) is a useful exercise, and we give notice that we intend to conduct further such exercises as and when it seems to us appropriate.

Railway Administration Order Rules 2001 (S.I. 2001/3352)

28. The Committee draws the special attention of both Houses to these Rules on the ground that their Explanatory Note is incomplete.

29. Paragraph 2.73 of Statutory Instrument Practice states that an explanatory note "should assist the reader in deciding whether or not he needs to refer to the instrument itself, and should be intelligible to one who is not familiar with the relevant area of law or administration". Paragraph 2.74 states that, where the text of an instrument cannot be understood unless it is read in conjunction with other legislation, the explanatory note should help the reader to understand the instrument's effect without looking up other provisions. The explanatory note to this instrument reads -

    "These Rules set out the procedure for the conduct of railway administration proceedings for protected railway companies under the Insolvency Act 1986 and the Railways Act 1993. They apply the relevant rules contained in the Insolvency Rules 1986 with modifications."

30. In the Committee's view this note is self-evidently insufficiently informative. In its memorandum printed in Appendix 11 the Lord Chancellor's Department accept that the Note would have been clearer if it had explained the nature of the companies affected by the Rules and given a broader indication of the provision they make. The Committee accordingly reports the Rules on the ground that their Explanatory Note is insufficiently informative and therefore incomplete.

The Orders of Reference of the Committee are set out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back

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