Instruments reported
At its meeting on 27 January 2016 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. 2015/1906: Reported for defective
drafting
General Osteopathic Council (Constitution)
(Amendment) Order 2015 (S.I. 2015/1906)
1.1 The Committee draws the special attention
of both Houses to this Order on the ground that it is defectively
drafted in two respects.
1.2 The Order amends the General Osteopathic Council
(Constitution) Order 2009. Article 2(2) amends article 2 of the
2009 Order (which specifies the composition of the General Osteopathic
Council) by reducing the composition of the General Council from
7 registrant members and 7 lay members to 5 registrant members
and 5 lay members. The Committee asked the Department of Health
why there appears to be neither any provision for determining
which of the existing Members is to cease to be a Member nor any
preservation of their position until expiry of the current membership
of any of them. In a memorandum printed at Appendix 1, the Department
"accepts that express provision should have been made in
relation to (i) the process of identifying which of the existing
Council members (if any) remained in post pursuant to the reduction
in Council size and (ii) the preservation of the position of Council
members pending expiry of the current membership". It undertakes
to "consider necessary remedial action".
1.3 Article 3 provides: "The person who was
chair of the General Council immediately before the coming into
force of this Order shall, subject to article 3 of the General
Osteopathic Council (Constitution) Order 2009, continue as chair
of the General Council as constituted in accordance with this
Order." The Committee asked the Department why it was considered
necessary to include article 3, given that the Order does not
appear to be a re-constitution and that the position of the chair,
in the light of article 8 of SI 2009/263, does not appear to be
affected by article 2(2). In its memorandum the Department "accepts
that in the light of article 8 of SI 2009/263 the position of
the chair is not affected by article 2 of the instrument and therefore
it was not necessary to have included article 3". Again,
the Department undertakes to "consider necessary remedial
action".
1.4 The Committee suggests that, unless the need
for clarity has been overtaken in practice by events, an early
further order should be made and accordingly reports articles
2 and 3 for defective drafting, acknowledged by the Department.
2
S.I. 2015/1933: Reported for defective
drafting
Export Control (Russia, Crimea and Sevastopol
Sanctions) (Amendment) Order 2015 (S.I. 2015/1933)
2.1 The
Committee draws the special attention of both Houses to this Order
on the ground that it is defectively drafted in one respect.
2.2 This Order amends the Export Control (Russia,
Crimea and Sevastopol Sanctions) Order 2014. Article 5 of that
Order, before amendment, read as follows:
5. A person
who is knowingly concerned in an activity prohibited by any of
the following Articles of the Russian Regulation with intent to
evade a prohibition in those Articles commits an offence and may
be arrested—
(a) Article 4(1)(a) (prohibition on provision
of technical assistance or brokering services related to the goods
and technology listed in the Common Military List, to any natural
or legal person, entity or body in Russia or for use in Russia);
(b) Article 4(1)(b) (prohibition on the provision
of financing or financial assistance related to the goods and
technology listed in the Common Military List, to any natural
or legal person, entity or body in Russia or for use in Russia).
2.3 Article 2(3) of this Order amends article 5.
Sub-paragraph (a) of the amending provision reads "[in article
5] the words before sub-paragraph (a) become paragraph (1)".
Sub-paragraph (b) substitutes "Russia Sanctions Regulation"
for "Russian Regulation" in the renumbered paragraph,
and sub-paragraph (c) states "after that paragraph, insert
[a paragraph numbered (2) which contains introductory words followed
by sub-paragraphs numbered (a) to (c)]."
2.4 The effect of these amendments is that the renumbered
paragraph (1) ends with the words "and may be arrested"
but no longer makes any sense as there are no "following
Articles of the Russia Sanctions Regulation" listed in the
paragraph. Sub-paragraphs (a) and (b) of what was simply article
5 now appear after sub-paragraph (c) of article 5(2), but with
no introductory text to give them any meaning.
2.5 It appeared clear to the Committee that the intention
had been to renumber the whole of article 5 as article 5(1), and
asked the Department for Business, Innovation and Skills why article
2(3)(a) did not do so. In a memorandum printed at Appendix 2,
the Department states that it acknowledges that if article 2(3)(a)
had renumbered article 5, this would have avoided any possible
ambiguity as to whether [sub-]paragraphs (a) and (b) were in fact
to be included in the new article 5(1). It considers, however,
that the possibility that the Order as drafted will cause any
confusion is low. It points out that article 11 of the 2014 Order
is amended by article 2(5) by substituting references to article
5(1)(a) and (b) for references to article 5(a) and (b).
2.6 The Committee considers that the Order as drafted
creates two provisions with no apparent meaning. The Committee
does, nevertheless, accept that it should be clear to the moderately
intelligent reader that a mistake was made in drafting article
2(3)(a) and also what the amendment was intended to achieve. The
Department undertakes to correct its error as soon as a suitable
opportunity arises, but the Committee considers that it would
be more appropriate to rectify the error more quickly by revoking
and replacing article 5 of the 2014 Order (this is not a case
where the issue of a correction slip would be acceptable). Such
a course would also provide an opportunity to restructure what
will become paragraph (1), even the previous text of which - presumably
as a result of a probably unnecessary attempt to avoid a "sandwich"
of indented provisions - read somewhat clumsily. The Committee
accordingly reports article 2(3)(a) for defective drafting, acknowledged
by the Department.
3
S.I. 2015/1970: Reported for doubt
as to whether they are intra vires
Prosecution of Offences Act 1985 (Criminal
Courts Charge) (Amendment) Regulations 2015 (S.I. 2015/1970)
3.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that there is
a doubt as to whether they are intra vires.
3.2 Section 21A of the Prosecution of Offenders Act
1985, introduced in 2015, obliges magistrates' courts to order
persons convicted of offences before them to pay a charge in respect
of relevant court costs subject among other things to section
21C, subsection (1) of which states that the charge must be of
an amount specified by the Lord Chancellor by regulations. Regulation
3 of, and the Schedule to, the Prosecution of Offences Act 1985
(Criminal Courts Charge) Regulations 2015 (S.I. 2015/796)
set the amounts in question. These Regulations, made by the Lord
Chancellor materially under section 21C(1) of that Act, remove
those provisions from S.I. 2015/796. The Committee was concerned
that elimination, as opposed to reduction, of the charges might
go beyond what could validly be achieved under that section. It
therefore asked what led to the conclusion that it was within
the scope of section 21C(1) to remove the provisions in question.
3.3 In a memorandum printed at Appendix 3, the Ministry
of Justice justifies its approach by means of six propositions:
· although
section 21A(1) of the 1985 Act imposes a duty on magistrates'
courts, section 21C(1) is ultimately a power, not a duty;
· the
interplay between the two provisions is so drafted as to provide
for section 21C(1) to trump section 21A(1);
· a power
to impose a charge implies a power to remove it (Interpretation
Act 1978, section 14) unless the contrary intention is shown;
· in the
light of the above, there is no contrary intention;
· the
criticisms of the previous arrangement made it desirable to bring
them to an end pending a review;
· as it
was common ground that the power could have been used to reduce
the charge, it was illogical to distinguish between a lawful reduction
to £1 and elimination.
3.4 The Committee regards the Department's fifth
and sixth propositions as irrelevant. The fifth relates purely
to the desirability of the policy and not to whether the policy
could validly be effected by the available secondary legislation
as opposed to primary legislation. The sixth is based on the large
assumption that it would be within powers to reduce the charge
to an amount that would be nugatory (as opposed to substantial
but less burdensome).
3.5 That leaves the first four propositions, which
contain the nub of the Department's justification. It is crucial
to that justification that section 21C is a power that, as a whole,
may or may not be exercised. If it is, the Committee accepts that
the rest falls into place. However, the Committee regards it as
more tenable that it is a power that has to be exercised - otherwise
magistrates' courts are put in breach of their obligation, imposed
by Parliament, to charge. On that basis, what section 21C does
is to impose on the Lord Chancellor the duty to set the levels
of the charge, those levels alone being a matter of discretion,
and there is therefore no discretion to remove them without replacement
- to that extent there is indeed a contrary intention to the main
proposition in section 14 of the Interpretation Act 1978. Accordingly,
the Committee reports the Regulations for a doubt as to whether
they are intra vires.
4
S.I. 2015/1973: Reported for doubt
as to whether they are intra vires
Large Combustion Plants (Transitional National
Plan) Regulations 2015 (S.I. 2015/1973)
4.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that there is
a doubt as to whether they are intra vires.
4.2 The Regulations, made under section 2(2) of the
European Communities Act 1972 ("section 2(2)"), give
effect to the exemptions permitted under Article 32 of Directive
2010/75/EU of the European Parliament and of the Council on industrial
emissions (integrated pollution prevention and control) (Recast).
Under that Article combustion plants specified in a transitional
national plan may be exempted from the requirement to comply with
emission limit values for certain pollutants during the period
beginning with 1 January 2016 and ending with 30 June 2020. By
Article 4 of Commission Implementing Decision 2012/115/EU ("Article
4") a transitional national plan may be implemented only
"upon acceptance by the [European] Commission". Section
2(2) of the 1972 Act, so far as is relevant, empowers the Secretary
of State to make regulations for the purpose of implementing or
dealing with measures arising out of or relating to EU obligations.
4.3 The Regulations were made on 2 December and,
with one exception, came into force on 31 December 2015. The United
Kingdom submitted its transitional national plan ("the plan")
to the European Commission on 20 October 2015. The Commission
accepted the plan on 17 December 2015.
4.4 Given the chronology, the Committee wondered
whether, on 2 December 2015 when the Regulations were made (which
was before the plan had been accepted by the Commission), there
was power under section 2(2) to make an instrument for giving
effect to the plan. It accordingly asked the Department for Environment,
Food and Rural Affairs to explain why, given the terms of Article
4, it had concluded that there was power under section 2(2) to
make the Regulations in advance of the approval of the plan by
the Commission.
4.5 In a memorandum printed at Appendix 4, the Department
states that it did not consider that the power in section 2(2)
was unavailable on 2 December by virtue of the plan not having
then been accepted. It explains that, in reliance on discussions
with the Commission, it anticipated that approval would be forthcoming
by 31 December when the Regulations were to come into force and
that that did indeed turn out to be the case. The Department acknowledges
that there would have been a problem had the plan not been accepted
by 31 December but points out that that problem did not arise
because it was in fact accepted a fortnight before that date.
It also points out that, because the Regulations had to be in
force before 1 January 2016 when the transitional period began,
they needed to be made (and laid before Parliament) in early December
in order to secure compliance with the 21 day rule. The Department
also refers to other regulations made in 2013, which it considers
justified and materially parallel.
4.6 The Committee would not want Departments to place
too much stress on the need to comply with the 21 day rule in
circumstances like these. The Committee considers that it is preferable
to establish that there is a firm legal basis for the making of
any statutory instrument before making it. Furthermore, the regulations
made in 2013 cannot be relied on as a suitable precedent - they
were not made under the same enabling power.
4.7 As to whether a firm legal base exists, the answer
is that clearly it does if section 2(2) implies a power for the
Secretary of State, before a clear EU obligation exists, to implement
what (s)he anticipates the obligation will be, provided that -
at the moment of coming into force - the implementation turns
out to match the obligation. The Committee is unaware as to whether
such a proposition has ever been tested, and would not rule out
the possibility of an argument in its favour succeeding, there
being obiter dicta in cases on section 2(2) favouring a
broad interpretation. However, there appears to be one significant
weakness in such an argument - the absence of anything equivalent,
in relation to EU obligations anticipated but not yet in force,
to section 13 of the Interpretation Act 1978.
4.8 The Committee therefore takes the view that it
is not beyond doubt that there is power under section 2(2) to
make an instrument where that depends on the United Kingdom meeting
a condition which is not actually met at the time of its making,
even it is does in fact turn out to have been met by the time
of the instrument's commencement. Given that, it would in the
Committee's opinion have been advisable to have awaited the Commission's
approval of the plan before making the Regulations: it would have
been consistent with past practice for the Committee to accept
breach of the 21 day rule as an acceptable consequence of achieving
such legal certainty. The Department may therefore wish to consider
whether to achieve that certainty by revoking and re-enacting
provisions of the Regulations that are still relevant, now that
the power clearly exists. The Committee accordingly reports
the Regulations for a doubt as to whether they are intra vires.
5
S.I. 2015/1977: Reported for defective
drafting
Insolvency Practitioners and Insolvency Services
Account (Fees) (Amendment) Order 2015 (S.I. 2015/1977)
5.1 The Committee draws the special attention
of both Houses to this Order on the ground that it is defectively
drafted in one respect.
5.2 Article 2 of the Order increases the fees payable
under the Insolvency Practitioners and Insolvency Services Account
(Fees) Order 2003 (S.I. 2003/3363) ("the 2003 Order")
in connection with the recognition of professional bodies that
license and regulate insolvency practitioners. Such bodies pay
a one-off fee on applying for recognition and an annual fee in
respect of the maintenance of that recognition. Article 2 increases
the former from £4,500 to £12,000, and increases the
latter from £300 to £360 for each member of the body
authorised to act as an insolvency practitioner. By article 2(3)
of the 2003 Order the fee for a year is calculated by reference
to the number of such members on 1 January in the year.
5.3 Article 1 provides that the Order comes into
force on 31 December 2015. Article 3 provides that the amendment
of the annual fee "applies only in respect of [members] who
are ... authorised [to act as insolvency practitioners] as at
1st January 2016 and each subsequent 1st
January". The inclusion of article 3 perplexed the Committee
which considered that it could either be unnecessary or alternatively
secure an apparently odd result.
5.4 On one reading ("the assumed purposive reading")
it adds nothing: given that, by article 1, article 2 comes into
force on 31 December 2015 it seemed to the Committee arguably
to go without saying that it applied only for the fees for 2016
and subsequent years. But on another reading ("the literal
reading") it might be seen as appearing to allow the new
annual fee payable by a body to be calculated by reference only
to persons who were members of the body both on 1 January 2016
and on each subsequent 1 January (presumably until the first January
of the year concerned), with the old fee surviving in relation
to all who become members after 1 January 2016 - something which
the Committee considered to be unlikely to be the intended result.
5.5 The Committee therefore asked the Department
for Business, Innovation and Skills to explain the intended purpose
of article 3 and how effect is given to that intention. In a memorandum
printed at Appendix 5, the Department explains that article 3
was in fact included to make it clear that the increase in the
per capita fee did not apply to amounts payable for years before
2016 should any such amounts not have been paid by the end of
2015. That was not a point that had occurred to the Committee
from either the assumed purposive reading or the literal reading
of article 3. The Committee is not entirely convinced that any
special provision is needed to secure the Department's intended
outcome given the terms of article 1 but feels that, if the Department
thought that the point did need to be expressly addressed, it
should have framed article 3 so as more clearly to reveal its
intended purpose, possibly in a way that in terms excluded the
application of the increase in the annual fee in respect of amounts
payable for a year before 2016. For the future, the Department
may wish in any event to amend the Order to eliminate the risks
arising from the literal reading of article 3. The Committee
accordingly reports article 3 for defective drafting.
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