Joint Committee on Statutory Instruments Fifteenth Report


Memorandum from the Department of Health





1 The Committee has requested a memorandum on the following points:

"1. The Committee considers that the standard of drafting of these Regulations falls below that which may reasonably be expected in legislation. Their drafting appears to be defective in very many respects and to be insufficiently precise, or simply ungrammatical, in a number of others. A note illustrating these failings is attached.[2] The Department is asked for its views on this criticism of the Regulations and, if it accepts it, to explain the reasons for this shortcoming and to indicate what steps it proposes taking to ensure that similar shortcomings are avoided in future."

2 The Department apologises for the large number of small errors that were found in these Regulations. The Department accepts most of the comments and believes they fall into three categories-

    (a) those where the meaning is unclear and where the Department will make the necessary amendments at the first available opportunity;

    (b) those where the Department agrees with the points identified but considers the meaning is clear even if, in the opinion of the Committee, it could have been better phrased, or words were used that were redundant;

    (c) those where the Department wishes to explain the provision more fully and considers the provision does give effect to the intention.

3 A detailed response (in relation to the Committee's note on S.I. 2001/3739) is set out in the note attached.

4 These regulations are part of a larger group of eight inter-related instruments, all of which had to come into force on the same day. The regulations form part of the Government's response to the case of Dr. Shipman and are intended to afford greater protection to the public. The Department was working to an exacting timetable because of the need to close the gaps identified by the Shipman case as soon as possible. The regulations had to be drafted in accordance with that timetable despite the competing needs arising from the National Health Service and Health Professions Bill. The unexpected absence of the two members of the Solicitor's Office responsible for drafting the regulations at critical periods in their preparation (one critically ill and the other absent due to illness of a family member) severely hampered progress and did not allow sufficient time between the "final" drafts and the making of the regulations for further refinements or adequate vetting.

5 The Committee will appreciate that each set of the regulations is long, and that although they all have similar provisions, they differ in lay-out and content. This meant that any change to one set of regulations had similarly to be considered and where appropriate to be carried across to the other sets of regulations; again the background explained in paragraph 4 above, regrettably meant that occasionally something was missed in the process. It is apparent that the S.I. 2001/3739 suffered in particular, and consequently contained more errors than the other sets of regulations.

6 The Department does have a system for ensuring the quality of the regulations drafted by its lawyers. Two members of the Senior Civil Service in the Solicitor's Office will have considered at least once all draft subordinate legislation for drafting and vires points. It is a robust system, but in this case the volume and complexity of the regulations, coupled with the very tight timetable and the other factors mentioned above, meant that although many points were picked up at each stage, some were regrettably overlooked.

"2. New regulation 7A(2)(a) and (b) of the National Health Service (General Ophthalmic Services) Regulations 1986 (inserted by regulation 4 of S.I.2001/3739) requires a Health Authority to refuse to include a practitioner on its list where he has been convicted in the United Kingdom of murder or, after 13 December 2001, has been convicted in the United Kingdom of a criminal offence and sentenced to a term of imprisonment of over six months. New regulation 9C(1) makes similar provision in relation to the requirement on a Health Authority to remove a practitioner from its list. Explain the reason for limiting these provisions to convictions in the United Kingdom. (The Department is referred to the Committee's 6th and 10th reports for the current Session, dealing respectively with the National Patient Safety Regulations 2001 (S.I.2001/1742) and the Sussex Downs College (Government) Regulations 2001 (S.I.2001/2799).)"

7 These convictions are limited to the United Kingdom because where there is such a conviction, the Health Authority is given no discretion by the regulations on refusal to include a practitioner in the list, or removal from the list. The Department considers that it is right for this provision to be limited to convictions in the United Kingdom because some convictions of this nature in other countries might not be considered sufficient in the United Kingdom to bar a practitioner from being on a list.

8 All convictions for offences committed elsewhere in the world, which would constitute criminal offences if committed in the United Kingdom, must be disclosed to the Health Authority because of the provisions of new paragraph 7 of Schedule 2 (inserted by regulation 9), and new paragraph 6A of Schedule 1 (inserted by regulation 8(2)). This information may be used by the Health Authority in considering whether or not to refuse to include the practitioner on the list under new regulation 7A (1)(a) (inserted by regulation 4), and to remove him under new regulation 9B (inserted by regulation 6) . This enables the Health Authority to consider the offence in more detail. It can take into account any differences in the way that certain offences are perceived in different countries, before deciding whether the particular circumstances justify a decision to refuse inclusion in the list, or to remove him from the list.

9 The Department has considered the 10th report of the Committee for the current session. The 6th report is not yet available. The Department appreciates the point the Committee makes on limiting provisions, but for the reasons explained above, does not think it appropriate in this case to extend the provision.

3rd January 2002

2   See below Back

previous page contents next page

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

© Parliamentary copyright 2002
Prepared 29 January 2002