1 Nursing and Midwifery Council
(Education, Registration and Registration Appeals) Rules Order
of Council 2004: defective drafting
Nursing and Midwifery Council (Education, Registration
and Registration Appeals) Rules Order of Council 2004 (S.I. 2004/1767)
1.1 The Committee draws the special attention
of both Houses to this instrument on the ground that it is defectively
drafted in one respect.
1.2 Rule 12 provides that any form, warning or notice
sent by the Nursing and Midwifery Council or the Registrar to
a registrant may be sent by post to the last known address for
correspondence and shall be presumed to have been sent on the
date which appears on the document in question. The Committee
asked for an explanation as to whether it was contemplated that
the registrant should not be able to show that the document was
posted on a later date, or whether the provision was intended
to apply unless the contrary is proved. In a memorandum printed
at Appendix 1, the Privy Council Office states that it is intended
that the registrant should be able to show that the document was
posted on a later date, but takes the view that "the intention
is achieved and that express provision would have been required
in this context to create an irrebuttable presumption." The
Committee is not persuaded by this explanation. Rule 12 states
(without any qualification) that the document "shall be presumed"
to have been sent on the date which appears on the document. In
the Committee's view, in order to achieve the intended result,
rule 12 should have expressly indicated that the presumption regarding
posting would apply unless the contrary is proved. The Committee
accordingly reports rule 12 on the ground that it is defectively
drafted.
