Instruments reported
At its meeting on 30 January 2013 the Committee
scrutinised a number of Instruments in accordance with Standing
Orders. It was agreed that the special attention of both Houses
should be drawn to five of those considered. The Instruments and
the grounds for reporting them are given below. The relevant Departmental
memoranda are published as appendices to this report.
1
S.I. 2012/2939: Reported for defective
drafting
Rehabilitation Courses (Relevant Drink Offences)
Regulations 2012 (S.I. 2012/2939)
1.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
1.2 The Regulations make provision about drink-drive
rehabilitation courses. Under the Road Traffic Offenders Act 1988
a period of disqualification for a drink-drive offence may be
reduced if the offender successfully completes a course approved
by the Secretary of State.
1.3 Regulation 5 makes provision for the payment
of fees in relation to approval of courses. Paragraphs (3) to
(6) provide for "continuing approval fees". Under paragraph
(5) fees are payable quarterly, on the 14th of January,
April, July and October (each of which is referred to as a "relevant
day" in paragraph (6)), during the period while a course
remains approved and a fee is also payable 2 weeks after a course
ceases to be approved. Paragraph (4) provides that the amount
of a continuing approval fee is £7 multiplied by the number
of "relevant offenders". Paragraph (6) defines a "relevant
offender" as a person who has completed the course during
the relevant period and defines "relevant period" as
the period of 3 months ending with whichever of the months of
March, June, September or December ends nearest before the relevant
day.
1.4 The Committee was concerned that, while the
provisions of paragraphs (4) and (6) yield the amount of quarterly
fees, they do not appear to provide a method of calculating the
fee payable 2 weeks after a course ceases to be approved. It therefore
asked the Department for Transport to explain how the amount of
the continuing approval fee payable under regulation 5(5) after
a course ceases to be approved is intended to be calculated and
how effect is given to that intention. In a memorandum printed
at Appendix 1, the Department states that in relation to such
a fee the number of relevant offenders intended to be included
in the calculation of the fee is the number completing the course
in the period "commencing with the start of a relevant period
and ending on the date on which approval of the course ceases".
1.5 The Committee considers that that would be
a sensible rule but is not convinced that it is provided for by
the Regulations. The definition of "relevant period"
by reference to the "relevant day" (which is in turn
defined to refer to the days in the year on which quarterly fees
are payable) means that it does not work for fees payable after
cessation of approval (which are payable not on a relevant day
but 2 weeks after cessation of approval). It is the Committee's
view that the Regulations simply fail to provide for the rule
that the Department's memorandum states, or (indeed) any other
rule, for ascertaining the amount of fees payable after approvals
cease. The Committee accordingly reports regulation 5 for defective
drafting.
2
S.I. 2012/2997: Reported for failure
to accord with proper legislative practice
Regulated Covered Bonds (Amendment) Regulations
2012 (S.I. 2012/2977)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
not in accordance with proper legislative practice.
2.2 The Regulations amend the Regulated Covered
Bonds (Amendment) Regulations 2011 (S.I. 2011/2859), which
themselves amend the Regulated Covered Bonds Regulations 2008
(S.I. 2008/346). The Regulations make additional provision
in relation to the asset pool maintained to secure the obligations
of the issuer of a regulated covered bond.
2.3 The 2011 amending Regulations came into force
on 1 January 2013. These amending Regulations were made on 28
November 2012, and were also expressed to come into force
on 1 January 2013.
2.4 The Committee asked HM Treasury to explain
why the approach was not taken of using these Regulations to amend
the 2011 amending Regulations with effect before they came into
force, so that when the 2011 amending Regulations came into force
on 1 January 2013 they would have established a single text amending
the 2008 Regulations.
2.5 In a memorandum printed at Appendix 2, the
Department accepts that it would have been possible to provide
for these Regulations to come into force earlier than 1 January
2013. It submits, however, that the cumulative effect of the
two amending instruments is clear from the wording, and that they
both come into force at a single time by virtue of section 4(a)
of the Interpretation Act 1978.
2.6 The Committee agrees that both instruments
came into force at the same moment but does not agree that the
cumulative effect argued for by the Department is necessarily
clear. For, if objectors were to seek to challenge the efficacy
of these Regulations to produce the desired cumulative effect,
their potential argument would be that -
- if one of the two amending
instruments had to be treated as coming into force after the other,
it would be the one made later - i.e. these Regulations;
- S.I. 2011/2859 therefore amended
S.I. 2008/346 at the start of 1 January 2013;
- immediately after that, these
Regulations amended S.I. 2011/2859, too late to have any effect
on S.I. 2008/346.
2.7 On balance the Committee nonetheless accepts
that the two amending instruments can be expected to be construed
as producing the cumulative effect preferred by the Department;
that is reinforced by the description of amendments, in Craies
on Legislation (10th Edition, paragraph 14.3.5), as "always
speaking". It is nonetheless straightforward to provide
unambiguously for the order of commencement of amending instruments
having cumulative effect and, in the Committee's opinion, this
practice is to be preferred, on the grounds that it does not require
any element of forced construction to defeat the possible argument
indicated above.
2.8 The Committee accordingly reports the
Regulations for failure to accord with proper legislative practice.
3
S.I. 2012/3032: Reported for defective
drafting
Restriction of the Use of Certain Hazardous
Substances in Electrical and Electronic Equipment Regulations
2012 (S.I. 2012/3032)
3.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one repeated respect.
3.2 The Regulations implement Directive 2011/65/EU
of the European Parliament and of the Council of 8 June 2011 on
the restriction of the use of certain hazardous substances in
electrical and electronic equipment. The Directive imposes harmonised
restrictions on the use of certain listed hazardous substances
in certain categories of electrical and electronic equipment.
3.3 Regulation 18(2), which transposes part of
Article 7(h) of the Directive, requires manufacturers to ensure
that certain information covering names and addresses is marked
on or with equipment in a particular manner. Regulation 18(3),
which seeks to transpose the remainder of article 7(h), provides
that "Where other applicable EU legislation or legislation
giving effect to EU legislation contains provisions for the affixing
of the manufacturer's name and address to the EEE which are at
least as stringent as those set out in this regulation, the provisions
of this regulation may be met by satisfying the provisions of
that other legislation". The relevant extract from Article
7(h) reads as follows: "Where other applicable Union legislation
contains provisions for the affixing of the manufacture's name
and address which are at least as stringent, those provisions
shall apply". The Committee asked the Department for Business,
Innovation and Skills to explain the intention of regulation 18(3),
by reference to other legislation with requirements that are "at
least as stringent" as those in regulation 18, but satisfaction
of which would not also in fact satisfy the requirements of regulation
18.
3.4 In a memorandum printed at Appendix 3, the
Department uses the example of Council Directive 93/42/EEC of
14 June 1993 concerning medical devices, which is transposed by
the Medical Devices Regulations 2002/618, and which requires medical
devices to be accompanied by certain information. The 2002 Regulations,
however, do not require the information to be marked on the equipment
itself. The Department asserts that the 2002 legislation "sets
a slightly different standard for when the information must be
on the device, but is arguably no less stringent when read in
the context of Directive 93/42/EEC" and argues, therefore,
that the effect of regulation 18(3) in this situation is that
where a manufacturer affixes a label, including the name and address,
on packaging in accordance with Directive 93/42/EEC, the manufacturer
would not also have to affix the name and address on the device
itself.
3.5 In the Committee's opinion the example adduced
by the Department demonstrates how the formula "at least
as stringent" does not produce an acceptably clear result.
The Committee notes that even the Department only suggests that
a requirement to include information on a label is "arguably"
at least as stringent as a requirement to mark information on
equipment. In the Committee's opinion the point may be arguable,
but it is insufficiently certain for readers to feel confident
in understanding the effect of regulation 18(3). If satisfaction
of the 2002 Regulations actually amounted to compliance with these
Regulations, then regulation 18(3) would have been unnecessary;
as soon as there is a difference between the two sets of requirements,
it becomes necessary for readers to determine their comparative
"stringency", and it is far from clear how that determination
is to be made.
3.6 The Committee accepts that, in any case where
(as here) EU legislation does not appear to have a precise effect,
the choice of implementation methods is not an easy one for Departments.
In this case, had specific legislation been identified compliance
with which was classified as sufficient, the Committee might have
been receptive to an argument that, even though transposition
might ultimately turn out to have been imperfect, certainty for
those with the compliance duty would have been achieved pending
any court ruling on the extent of the relevant extract from Article
7(h) of the Directive. Alternately, had regulation 18(3) transposed
the relevant extract from Article 7(h) in a way that fully matched
the concepts in it, the Committee might have been receptive to
an argument that the Department was constrained by EU law to act
as it did. However, as things stand, the concepts do not fully
match - it appears to the Committee that, under the Directive,
the effect of equal or greater stringency in other applicable
EU legislation is not that compliance is treated as achieved but
that the remainder of Article 7(h) does not apply at all.
3.7 Accordingly the Committee reports regulation
18(3) for defective drafting.
3.8 Precisely the same point arises on regulation
24(3) in relation to a requirement to mark information identifying
importers on equipment. The Committee asked the Department the
same question and received an answer in substantially the same
terms and by reference to the same example. Accordingly the
Committee reports regulation 24(3) for defective drafting.
4
S.I. 2012/3050: Reported for doubtful
vires
Animals (Scientific Procedures) Act 1986 (Fees)
Order 2012 (S.I. 2012/3050)
4.1 The Committee draws the special attention
of both Houses to this Order on the ground that there appears
to be a doubt as to whether it is intra vires.
4.2 The Order prescribes the fees payable by
the holder of a licence issued under section 2C of the Animals
(Scientific Procedures) Act 1986.
4.3 In an Explanatory Memorandum laid before
Parliament together with the Order the Home Office helpfully drew
the Committee's attention to the fact that the Order is consequential
upon amendments made to the Animals (Scientific Procedures) Act
1986 by the Animals (Scientific Procedures) Act 1986 Amendment
Regulations 2012, which had not been approved by both Houses of
Parliament when the Order was made. The Home Office explained
that if the Amendment Regulations were not approved by Parliament
the Order would be revoked, and added that there was no intention
to show disrespect to Parliament by this method of proceeding.
4.4 It appeared to the Committee, however, that
this was not so much a question of disrespect to Parliament as
of vires: the Committee accordingly asked the Department
to identify the vires for the Order when it was made, given
that the Amendment Regulations had not yet been approved.
4.5 In a memorandum printed at Appendix 4, the
Department explains that there had been some confusion as to the
dates on which the Amendment Regulations would be approved, accepts
that there were no vires to make the Order on the date
on which it was made and undertakes to ensure that the Order is
revoked and re-made. The Department also undertakes to investigate
whether any fees were charged improperly under the Order and to
arrange repayment.
4.6 The Committee accordingly reports the
Order on the ground that there appears to be a doubt whether it
is intra vires.
5
Draft Universal Credit Regulations
2013: Reported for failure to accord with proper drafting practice
and for defective drafting
Draft Universal Credit Regulations 2013
5.1 The Committee draws these draft Regulations
to the special attention of both Houses on the grounds that in
one respect they fail to accord with proper drafting practice
and that they are defectively drafted in a number of respects.
Accordingly, if the draft is approved
by both Houses and the Regulations are made, the resulting statutory
instrument will be defective in those respects, many of which
are acknowledged by the Department.
5.2 The Committee asked the Department to explain
the legislative purpose of regulation 7, which appeared to the
Committee to do no more than summarise in three short paragraphs
the contents of Part 2 of the Regulations. In a memorandum printed
at Appendix 5, the Department acknowledges that regulation 7,
which it described as "one of a series of overview provisions
indicating the content of a part or chapter" of the Regulations,
has "no direct legal effect". It explains that such
provisions are included as "an aid to navigation of the regulations
... to make clear how the regulations relate to the primary legislation".
5.3 The Department emphasises that the Regulations
supplement the basic framework for universal credit in Part 1
of the Welfare Reform Act 2102, whose structure they largely follow,
and that a prime objective in the drafting has been to assist
the reader as much as possible. It also mentions that there have
been similar provisions in other legislation and gives as an example
"the rewritten taxes Acts". In conclusion, the Department
considers that regulation 7 and similar provisions are helpful
for the reader "in ways that could not be achieved by use
of footnotes and extraneous explanatory material".
5.4 The Department does not say why it considers
that any explanations and other contextual material which it considered
to be appropriate for the assistance of users of the Regulations
could not have been included in footnotes or in the Explanatory
Note (which afford opportunities for including amplificatory material
that are not available in the case of Acts). The Committee deprecates
the use of the legislative text of an instrument, which by its
nature should have - and is expected by the reader to have - legal
effect, for the purpose of accommodating material which is merely
explanatory in character and which is acknowledged by the Department
to have no legal effect. The Committee accordingly reports
regulation 7 as an instance in which the Regulations fail to accord
with proper drafting practice.
5.5 Regulations 12 and 14 each make provision
in connection with the "basic condition" of entitlement
for universal credit in section 4(1)(d) of the Welfare Reform
Act 2012 (that a person is "not receiving education")
by reference to a person undertaking a course of full-time study
or training which is not a course of advanced education. Regulation
13(1) provides for the circumstances in which a person is to be
treated as undertaking a course of education or training. The
Committee asked the Department for Work and Pensions whether it
intended that the provision in regulation 13(1) should apply for
the purposes of regulations 12 and 14.
5.6 In its memorandum, the Department confirmed
that regulation 13(1) is intended to apply for the purposes of
regulation 12, and that it would also "in theory" apply
to any course mentioned in regulation 14, although the period
of a course would not usually be in issue in that context. In
order to achieve that effect for the purposes of regulation 12,
it was necessary to read the reference to "a full-time course
of study ... at an educational establishment" as a reference
to a course of education, and to read "education" as
including "study". But the Department, while considering
that this is the most likely interpretation, concedes that the
absence of any reference to "study" in regulation 13(1)
creates unnecessary doubt. The Committee agrees with that concession,
and it welcomes the Department's intention to make an amendment
at the next suitable opportunity "to achieve a better fit"
between regulation 13 and regulations 12 and 14.
5.7 The Committee accordingly reports regulation
13(1) for defective drafting, acknowledged by the Department.
5.8 Regulation 111 is concerned with the determination
of the daily rate at which a person's universal credit is to be
reduced where there has been a "sanctionable failure"
under section 26 or 27 of the Welfare Reform Act 2012. Paragraph
(4) requires that the amount of any rate determined under paragraphs
(1) to (3) is to be rounded down to the nearest 10 pence. The
Committee asked how paragraph (4) was intended to apply in the
case of a rate determined under paragraph (3) (which provides
that the daily rate is to be nil).
5.9 In its memorandum, the Department, while
accepting that paragraph (4) can have no effect in a case to which
paragraph (3) applies, explains that the reference to paragraphs
(1) to (3) is a general reference to provisions dealing with the
calculation of the daily reduction rate, and notes that a rate
determined under paragraph (1) or (2) which is already a multiple
of 10 pence could not be rounded down under paragraph (4). On
that footing, the Department considers that regulation 111 "applies
the rounding rule in paragraph (4) in appropriate cases".
The Committee cannot agree. If, as the Department appears to
concede, there are no circumstances in which paragraph (4) could
apply to a rate determined under paragraph (3), paragraph (4)
should not have been drafted in terms which suggest that it could.
5.10 The Committee accordingly reports regulation
111(4) for defective drafting.
5.11 As respects regulation 117 (which is concerned
with the period for which hardship payments are to be made in
cases where payments of universal credit have been reduced), the
Committee asked the Department to explain three references in
the text of paragraphs (a) and (b) which appeared not to be correct.
In paragraphs 9 to 12 of its memorandum, the Department accepts
that the three references are indeed incorrect and require amendment,
and it apologises for the inaccurate drafting. The Committee
therefore reports regulation 117 for three instances of defective
drafting, each acknowledged by the Department.
| 
