1 S.I. 2004/539: dubious vires
Public Benefit Corporation (Register of Members)
Regulations 2004 (S.I. 2004/539)
1.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that in one
respect there is doubt as to whether they are intra vires.
1.2 Paragraph 3(1) of Schedule 1 to the Health and
Social Care (Community Health and Standards) Act 2003 sets out
the persons who may be eligible to be members of a public benefit
corporation. Under subparagraphs (a) and (b) the members must
include individuals drawn from the public ("public constituency")
and from a corporation's staff ("staff constituency").
Subparagraph (c) allows the constitution of a corporation to provide
that individuals who have attended any of the corporation's hospitals
as either a patient or a carer of a patient (collectively referred
to as "the patients' constituency") are to be eligible
for membership. Paragraph 20 requires a corporation to keep a
register of members and their constituencies, and paragraph 22(3)
requires the corporation to make the register available for inspection
by members of the public "except in circumstances prescribed
by regulations".
1.3 Regulation 2 provides that a public benefit corporation
must not make any part of its register available for inspection
by members of the public that shows details of- [(a)] where the
constitution of the corporation provides for a patients' constituency,
any member who belongs to that constituency. Since this provision
does not appear to prescribe the circumstances in which the register
is not to be made available for public inspection but simply disapplies
the requirement for public inspection in respect of the details
of any member of a patients' constituency contained in the register,
the Committee asked the Department of Health to explain how regulation
2(a) fulfilled the terms of the power conferred by paragraph 22(3)
of Schedule 1 to the Act.
1.4 In a memorandum printed in Appendix 1, the Department
submits that the provision is within the terms of that power "in
that it sets out the exceptions" by providing that, in circumstances
where a corporation has a patients' constituency, the details
relating to those members are not identifiable on a publicly available
register. The Committee does not agree with this view. Where a
corporation, in accordance with its constitution, has a patients'
constituency, it must (under paragraph 20(1)(a) of Schedule 1
to the Act) keep a register of the members belonging to that constituency;
and it must (under paragraph 22(3) of that Schedule) make the
register available for public inspection except in prescribed
circumstances. It seems to the Committee that these provisions
contemplate that the requirement for public inspection of a register
containing details of a patients' constituency cannot be simply
negatived by a blanket disapplication of that requirement, but
that the requirement can be disapplied in particular prescribed
circumstances, such as where a member requests that details relating
to him in the register should not be made available for public
inspection, or he has not given his consent to those details being
made available for public inspection. If Parliament had intended
that the requirement to make available a register or an entire
part of a register for public inspection could be negatived in
all circumstances by merely disapplying that requirement, the
power would have been framed in a different way to achieve this
result. The Committee considers that there is doubt as to whether
regulation 2(a) is intra vires. It reports accordingly.
