1.This memorandum is submitted in response to a query from the Joint Committee on Statutory Instruments to the Home Office on 17 November 2017. The Committee asked:
Explain the purpose of including regulation 23(3), which merely replicates footnote (a) on page 2 of this instrument. Should anything else have appeared here instead?
2.The inclusion of regulation 23(3) is an error. As the Committee points out, this paragraph merely replicates an earlier footnote.
3.Regulation 23(3) should read:
Subject to regulations 24 and 25 (disapplication of the requirements of these Regulations), the Chief Executive must determine whether or not the complaint is suitable for being subjected to local resolution.
4.The erroneous substitution of that text with what is regulation 23(3) occurred during the validation process, which took place after the instrument had gone through our quality assurance process. Regretfully, it was not picked up in the final read through, after validation.
5.We are grateful to the Committee for bringing this error to our attention and we will take steps to rectify it by amending the instrument at the earliest opportunity to substitute regulation 23(3).
6.In the short term, until the instrument is amended, we take the view that the instrument as drafted can work, for the following reasons.
7.First, we note that regulation 23(4) begins “If the Chief Executive determines that the complaint is suitable for being subjected to local resolution, the Chief Executive must …” and regulation 23(5) begins “If the Chief Executive determines that the complaint is not so suitable, the Chief Executive must …”. We believe that it can be implied from those provisions that there is an obligation on the Chief Executive to determine whether a complaint is suitable for local resolution (in cases where regulation 23 applies), despite the absence of a provision which sets out expressly that that obligation exists.
8.Second, as to the interaction between regulation 23, on one hand, and regulations 24 and 25 (disapplication of the Regulations), on the other, we take the view that, despite the absence of words in regulation 23 expressly stating that the Chief Executive’s duty to make a determination on local resolution is subject to regulations 24 and 25, the clear implication (from regulation 24(1)) is that, if the Chief Executive disapplies the Regulations, the obligation to make a determination on local resolution falls away. In this regard, we note that regulation 24(1) begins “If, in a case in which regulation 23 applies, …” and ends “the Chief Executive may handle the complaint in whatever manner (if any) that the Chief Executive thinks fit”.
21 November 2017
30 November 2017