2 S.I.
2009/2267: Reported for the unexpected use of the enabling power
Valuation Tribunal for England (Membership
and Transitional Provisions) Regulations 2009 (S.I. 2009/2267)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that in one
respect they appear to make an unexpected use of the enabling
power.
2.2 Regulation 5(1) provides that a person shall
be disqualified for membership of the Valuation Tribunal for England
("the VTE") in various specified circumstances. Regulation
5(3) states that a member of the VTE who is disqualified under
paragraph (1) ceases to be a member of the VTE on the day on which
that paragraph first applies to that member; this is expressed
to be subject to paragraphs (4) and (5). Paragraphs (4) and (5)
state when a person's disqualification ceases in cases where the
reason for disqualification was one related to bankruptcy.
2.3 The Committee understood the words of subjection
in regulation 5(3) to mean that a person who was a member but
was disqualified for reasons related to bankruptcy would automatically
become a member again if the disqualification ceased by virtue
of paragraph (4) or (5). In a memorandum printed at Appendix 2,
the Department for Communities and Local Government confirms that
the Committee had correctly understood the Department's intention.
The Department compares this instrument with the Valuation and
Community Charge Tribunals Regulations 1989, but the relevant
provisions of those Regulations did not contain anything comparable
to regulation 5(3), for the provisions they refer to did no more
than bring disqualification from membership to an end.
2.4 The Department states that the possibility that
a member of the VTE would need to rely on paragraph (4) or (5)
must be remote, and that if its interpretation of paragraph (3)
is correct it must be doubtful whether a person who had been disqualified
in such circumstances and "rehabilitated" by virtue
of those paragraphs would want to be a member; an immediate resignation
is perhaps the more likely outcome. If its interpretation is incorrect
(that is, that the person does not automatically become a member
again), it considers it doubtful that such a person would seek
appointment as a member of the VTE.
2.5 It appears to the Committee from the Department's
comments that it had not envisaged the likelihood of a member
who has become disqualified seeking to be a member again once
his disqualification ceased. It has nevertheless legislated, not
so much to enable such circumstances to happen as to cause membership
to be restored as a matter of automatic consequence. This appears
to the Committee to amount to an unexpected use of the enabling
power, and the Committee reports regulation 5(3) accordingly.
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