Joint Committee on Statutory Instruments Thirty-First Report

Instruments reported

The Committee has considered the following instruments, and has determined that the special attention of both Houses should be drawn to them on the grounds specified.

1 S.I. 2003/2123: defective drafting

Patients' Forums (Membership and Procedure) Regulations 2003 (S.I. 2003/2123)

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

1.2 These Regulations, which are made under section 19 of the National Health Service Reform and Health Care Professions Act 2002, make provision concerning the membership and procedure of Patients' Forums established under section 15 of that Act. Regulation 2 provides for the numbers, appointment, qualification and tenure of members of such Forums. Paragraphs (3) and (4) contain various requirements as to the descriptions of persons who must be included as members of a Forum. Paragraphs (3)(b) and (4)(b) require the Commission for Patient and Public Involvement in Health to ensure that, subject to regulation 4(1)(i), the members of a forum include persons of particular descriptions. Regulation 4(1) sets out 13 grounds on which a person may be disqualified for appointment as a member, some of which constitute more than one ground. In all, there are 24 different grounds on which a person may be disqualified.

1.3 The Committee asked the Department of Health to explain the purpose and effect of the italicised words, given that all of the grounds for disqualification apply to every member of a forum. In a memorandum printed at Appendix 1, the Department states that the references to regulation 4(1)(i) were included in error, and undertakes to remove them at the earliest opportunity. The Committee accordingly reports regulation 2(3)(b) and (4)(b) for defective drafting, acknowledged by the Department.

1.4 Regulation 6(3) provides that "where a person has been appointed to be a member and ... (b) he becomes disqualified for appointment and notifies (as he should) the Commission, ... and upon receipt of notification from the member ... his tenure of office, if any, shall be terminated and he shall cease to act as a member". It was unclear to the Committee whether this ungrammatical provision was intended to impose an obligation on the member to notify the Commission, or merely to indicate the manner in which the Secretary of State expects a member to behave. It therefore asked the Department to explain the purpose and effect of the italicised words, and whether they are intended to mean the same as "he shall notify". The Department states that the purpose and effect of the words is to create an obligation on the individual to notify, and that the intention was to make clear the expectation that the individual would notify without creating a sanction for failure to do so.

1.5 The Committee does not agree that the effect of the provision as drafted is to impose an obligation. The Department's intention would have been achieved if the italicised words had read "he shall notify", and the provision would then also have been grammatically correct. The Committee accordingly reports regulation 6(3)(b) for defective drafting.

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