Instruments reported
At its meeting on 24 October 2012 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 one of those considered. The Instrument and
the grounds for reporting it are given below. The relevant Departmental
memorandum is published as the appendix to this report.
1
S.I. 2012/:1547 Reported for failure
to comply with proper drafting practice
Immigration (European Economic Area) (Amendment)
Regulations 2012 (S.I. 2012/1547)
1.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they fail
to comply with proper drafting practice in two sets of related
respects.
1.2 Regulation 3 and Schedule 1 amend the Immigration
(European Economic Area) Regulations 2006. Several of the amendments
involve the insertion of new provisions which include "will"
or "will not be ", whereas the provisions being amended
use expressions such as "must", "shall", "is",
"is not to be" or "shall not be".
1.3 In a memorandum printed at Appendix 1, the
Home Office and the UK Border Agency explain that they sought
to minimise the use of the legislative "shall" in accordance
with current Office of Parliamentary Counsel practice. They acknowledge,
however, that in the case of the amendment to regulation 12 made
by paragraph 5(c) of Schedule 1, new regulation 15A(8) inserted
by paragraph 9 of Schedule 1, new regulation 15B(2) inserted by
paragraph 10 of Schedule 1, and paragraph 6(4) of Schedule 4,
as substituted by paragraph 25 of Schedule 1, it would have been
better to have used words compatible with the existing wording
of the amended Regulations.
1.4 The Department defends its use of "will"
in other inserted provisions on the ground that the provisions
in question provide for the consequences of a future event. The
Committee agrees that the use of "will" in these particular
circumstances was one of the optional drafting mechanisms available.
1.5 In addition paragraphs 5(c), 6(b) and 8(c)
of Schedule 1 amend provisions of the 2006 Regulations that previously
contained complete express indications of prioritisation among
apparently conflicting propositions, with the result that prioritisation
now appears to be incomplete. In response to the Committee's question
on the point, the Department explains that in each case there
is no conflict among the provisions in question. Except in relation
to paragraph 6(b), the Committee is not persuaded by the explanation.
1.6 Regulation 12 of the 2006 Regulations contains,
in paragraphs (1) to (4), a number of obligations binding on entry
clearance officers to issue EEA family permits in connection with
admission to the United Kingdom. The obligations are either unqualified
or qualified purely by conditions in the paragraph themselves.
Then existing paragraph (5) states that an EEA family permit "shall
not be issued" if certain conditions are met. As that clashes
with paragraphs (1) to (4), it is correctly introduced by the
word 'But', thus making it sufficiently clear on the surface that
paragraph (5) has priority. New paragraph (6), introduced by paragraph
5(c) of Schedule 1, serves a purpose exactly parallel to that
served by paragraph (5), but is not introduced by anything that
provides the same clarity. The fact that, as the Department correctly
states in its memorandum, there is no conflict between it and
paragraph (5) does not cover the conflict with paragraphs (1)
to (4). Had it been linked with paragraph (5) any conflict could
straightforwardly have been resolved.
1.7 Regulation 15(2) of the 2006 Regulations
states that rights of permanent residence under regulation 15
shall be lost "only" through absence for more than two
consecutive years. New regulation 15(3), introduced by paragraph
8(c) of Schedule 1, then provides another ground for loss of that
right. It is the survival of the word "only" in regulation
15(2) that creates a conflict. Again, that is not addressed in
the Department's memorandum.
1.8 In its memorandum the Department apologises
for the undefended uses of "will", and states that it
proposes to avoid the practice in future instruments but that
it does not consider the operation of relevant provisions is affected.
It can be deduced that the Department does not propose to amend
the 2006 Regulations purely to deal with that point. The Committee
accepts that reaction as reasonable, and considers that the same
could be applied to the apparent absence of prioritisation provisions
with which it takes issue.
1.9 The Committee accordingly reports paragraphs
5(c), 8(c) 9, 10 and 25 of Schedule 1 for failure to comply with
proper drafting practice, acknowledged in part by the Department.
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