Seventeenth Report of Session 2017–19 Contents

1Instruments reported

At its meeting on 21 March 2018 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 three 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.

1S.I. 2018/68: Reported for unjustifiable delay in laying them before Parliament and for requiring elucidation

Merchant Shipping (Prevention of Pollution from Noxious Liquid Substances in Bulk) Regulations 2018

1.1The Committee draws the special attention of both Houses to these Regulations on the grounds that there appears to have been unjustifiable delay in laying them before Parliament and that they require elucidation in one respect.

1.2These Regulations implement the revised version of Annex II of the International Convention for the Prevention of Pollution from Ships 1973.

1.3There was a delay of 10 days between the making of this instrument and laying it before Parliament and the Committee asked the Department for Transport to explain. In a memorandum printed at Appendix 1, the Department apologises for the delay and undertakes to manage the laying of statutory instruments in a systematic way in the future. The Committee repeats what it said in its Fifteenth Report of Session 2017–19 (in relation to S.I. 2018/117): that it is difficult to imagine why it could have been necessary to postpone such a simple administrative step as laying before Parliament. The statutory arrangements for laying before Parliament remain part of the required formal measures by which publicity is assured. As previously stated, the Committee considers that, as a general rule and in the absence of exceptional circumstances, a delay of 10 calendar days or more will amount to an unjustifiable delay. The Committee accordingly reports these Regulations for unjustifiable delay in laying before Parliament, acknowledged by the Department.

1.4Regulations 27, 41 and 42 use the expression “flag state” without definition. Noting that the expression is defined in a number of other instruments in the same context, the Committee asked the Department to explain the lack of a definition in this instrument. In its memorandum, the Department explains that there is inconsistent practice on this point between different instruments in this area, and that the decision to omit a definition in this instrument rested on confidence that the expression “flag state” is well understood in the maritime industry. While asserting that the absence of a definition does not cause uncertainty, the Department accepts “that, given the inclusion of such a definition in other instruments, it may have been prudent to include it and will endeavour to adopt a consistent approach in future relevant instruments”. The Committee welcomes the undertaking to ensure a consistent practice in future maritime instruments, and does not express a view as to whether the practice should be to include or to omit the definition. The Committee notes the explanation given in the Department’s memorandum as to the meaning to be given to the expression and the basis for that meaning, and accordingly reports regulations 27, 41 and 42 as requiring elucidation, provided by the Department’s memorandum.

2S.I. 2018/155: Reported for requiring elucidation and for failure to comply with proper legislative practice

Merchant Shipping (International Load Line Convention) (Amendment) Regulations 2018

2.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in one respect and that they fail to comply with proper legislative practice in another respect.

2.2These Regulations implement the International Convention on Load Lines 1966.

2.3Regulation 23 deals with control by authorised officers over foreign ships in UK ports. The regulation limits the degree of control that may be exercised in relation to ships holding a valid International Load Line Certificate. The Committee found it difficult to see what additional limitation of control is added by paragraph (5) to paragraph (3)(c) and asked the Department for Transport for an explanation. In a memorandum printed at Appendix 2, the Department sets out its explanation, relying in part on the fact that the regulation closely follows the language of the Convention. The Committee is not completely convinced by the Department’s explanation of the intended difference between regulation 23(3)(c) and (5); but it accepts that the Department may feel constrained to follow the language of the Convention and that the explanation given by the Department is plausible. On that basis, the Committee reports regulations 23(3)(c) and 23(5) as requiring elucidation, provided by the Department’s memorandum.

2.4The definition of “Category A, B, C or D waters” in regulation 2 refers to the waters specified as such in Merchant Shipping Notice 1837(M). There is no indication of where this Notice is available either in electronic or hard copy form and the Committee asked the Department to explain the omission. In its memorandum, the Department accepts that it is best practice to provide information about the availability of all documents to which reference is made in a statutory instrument and undertakes to ensure that all such references are included in future. The Committee welcomes that undertaking, and again stresses the importance it attaches to the accessibility of documents referred to in legislation, including the availability of hard copies for those without easy access to the internet. The Committee accordingly reports regulation 2 for failure to comply with proper legislative practice, acknowledged by the Department.

3S.I. 2018/212: Reported for defective drafting

Electronic Monitoring (Responsible Persons) Order 2018

3.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.

3.2This Order describes the persons who may be made responsible for the monitoring of individuals subject to electronic monitoring under the Criminal Justice and Court Services Act 2000. Two companies are identified by address and company number but the third, Alcohol Monitoring Systems Limited, is identified by address only. The Committee asked the Ministry of Justice to explain why Alcohol Monitoring Systems Limited is not referred to by its company number.

3.3In a memorandum printed at Appendix 3, the Department accepts that the Order should have included the company number and undertakes to ensure that it is included the next time the Order is amended and that any new companies added to the Order in future are identified by their name, address and company number. Although it may be that the likelihood of confusion was small in this case, proper drafting practice requires that companies or other bodies referred to in legislation are given a unique identifier. (In this case, there is the additional point that instruments should be internally consistent.) The Committee accordingly reports Article 3(a)(ii) for defective drafting, acknowledged by the Department.





Published: 22 March 2018