Joint Committee on Statutory Instruments Twenty-Fifth Report

3. S.I. 2003/1377: defective drafting

School Governance (Procedures) (England) Regulations 2003 (S.I 2003/1377)

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

3.2 Regulation 6 permits the chair of a school's governing body to exercise certain of that body's functions where, in his opinion, a delay in exercising the function would be likely to be seriously detrimental to the interests of the school or specified persons. Regulation 6(3) defines "delay" for this purpose as delay for a period extending beyond the earliest date on which it would have been reasonably practicable for a meeting of the governing body or a relevant committee to be held. The Committee asked the Department for Education and Skills to explain the intended effect of this definition. In a memorandum printed at Appendix 3, the Department states that the wording of regulation 6(3) "substantially" repeats that of regulation 43(3) of the Education (School Government) (England) Regulations 1999, and submits that the italicised phrase has the same meaning and legal effect as the word "until". Regulation 43(3), however, used the words "for a period extending beyond the day preceding the earliest date", which does indeed have the same meaning as "until". The effect of regulation 6(3) is quite different, and clearly is not that intended by the Department. The Committee considers in any event that "delay until the earliest date" would have been more helpful to the reader, and would have avoided the confusion evident from the Department's response. The Committee accordingly reports regulation 6(3) for defective drafting.

3.3 The Schedule to these Regulations imposes restrictions on participation in proceedings of a governing body or its committees by persons with a direct or indirect pecuniary interest. Paragraph 1(3) of the Schedule states that a person shall be treated as having an indirect pecuniary interest in a matter in the circumstances set out in sub-paragraphs (a) to (c).

3.4 Sub-paragraph (a) refers to the case where he himself is a person with whom the contract was made or has a direct pecuniary interest in the matter. The Department acknowledges that "indirect pecuniary interest" in paragraph 1(3) should have read "direct or indirect pecuniary interest".

3.5 Sub-paragraph (b) refers to the case where a person was nominated or appointed to office by a person with whom the contract was made or is proposed to be made or who has a direct pecuniary interest in the matter, and sub-paragraph (c) to that where a person is the partner of a person, or was nominated or appointed to office by a person with whom the contract was made ... . The Department acknowledges that the italicised words are otiose, given the terms of sub-paragraph (b). The Department undertakes to correct these errors at the first convenient opportunity.

3.6 The Committee therefore reports paragraph 1(3) of the Schedule for defective drafting, acknowledged by the Department.

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