At its meeting on 18 April 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 seven 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.
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
1.2These Regulations update various definitions in subordinate legislation about social security and child support as a result of the commencement of relevant parts of the Regulation and Inspection of Social Care (Wales) Act 2016. Regulation 2(2)(b) amends the definition of “care home” in the Income Support (General) Regulations 1987 so that it reads ““care home” in England and Wales has the meaning assigned to it by section 3 of the Care Standards Act 2000, in Wales means a care home service within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 which is provided wholly or mainly to persons aged 18 or over and in Scotland means a care home service within the meaning assigned to it by paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010”. The Committee asked the Department for Work and Pensions to explain the intention behind the minor changes in phraseology italicised in the passages quoted.
1.3In a memorandum printed at Appendix 1, the Department explains that in each of the amendments made by these Regulations the policy effect is identical and that the minor changes in phraseology reflect existing inconsistencies in the legislation being amended. It is a principle of legislative drafting relied on by the courts and other readers in legislative interpretation that a change of language should signal a change of meaning: in this case, however, the Department had no choice but to reflect the inconsistencies in the amended legislation and the Committee accepts that no confusion is likely to be caused as a result. The Committee accordingly reports the Regulations for requiring the elucidation provided by the Department’s memorandum.
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 there is a doubt as to whether they are intra viresin one respect.
2.2This instrument implements Decision No. 1104/2011/EU of the European Parliament and of the Council of 25 October 2011 (“the PRS Decision”) which sets out the rules for the access to the public regulated service provided by the global navigation satellite system established under the Galileo programme. The public regulated service is restricted to licensed government users.
2.3Regulation 10(1)(c) allows a compliance authority to serve directions on a person to secure, among other things, “compliance with these Regulations”. This appears to go beyond regulation 7(1) which states that a compliance authority can serve directions under regulation 10(1) in two circumstances: if it considers that a person is in breach of regulation 4 (prohibition of unlicensed activities) or is in breach of a licence condition. The Committee asked the Department for Business, Energy and Industrial Strategy to give examples of what is intended to be covered by regulation 10(1)(c). In a memorandum printed at Appendix , the Department explains that there may be circumstances where Security Accreditation Board authorisation (required by the PRS Decision) or compliance with Security Accreditation Board decisions do not form part of the licensing conditions. In such cases, the compliance authority may want to verify this information before taking further action by issuing directions under regulation 10(1)(c). The Department further explains that there may be cases where the compliance authority may not want to direct the manufacturer to cease production under regulation 10(1)(a) for breach of regulation 4 but may prefer instead to issue directions under regulation 10(1)(c). The Committee accordingly reports regulation 10(1)(c) for requiring the elucidation provided by the Department’s memorandum.
2.4Regulation 14(2) deals with the service of documents under the regulations. Paragraphs (1) and (2) provide as follows—
“(1) Any document required to be served on a person by virtue of these Regulations may be so served—
a) by delivering it to that person or leaving it at the proper address of that person, by sending it by post to that person at that address, or by sending it to that person by fax or other electronic means, or
b) if the person is a company, partnership, limited liability partnership or unincorporated association, by serving it in accordance with sub-paragraph (a) above on an official of that body.
(2) For the purposes of paragraph (1), and for the purposes of section 7 of the Interpretation Act 1978 (which relates to the service of documents by post) in its application to that paragraph, the proper address of any person on whom a document is to be served is the person’s last known address except that in the case of service on—
a) a company, it is the address of the registered or principal office of the company, or any place of business of the company,
b) a partnership, it is the principal office of the partnership, or any place of business of the partnership,
c) a limited liability partnership, it is the registered office of the limited liability partnership, and
d) an unincorporated association, it is the principal office of the association, or any place where the association carries out its activities.”
2.5The Committee asked the Department to explain the intended effect of the reference to section 7 of the Interpretation Act 1978. In its memorandum, the Department says “Where an Act authorises or requires any document to be served by post, section 7 of the Interpretation Act 1978 deems the service to be effected by properly addressing, pre-paying and posting a letter containing the document and contains a presumption of when such service has been effected. … Regulation 14(2) ensures that the provisions of section 7 apply only where the service by post has been effected to the proper address as set out in Regulation 14(2). Accordingly, regulation 14(2) is merely specifying what the proper address is for the purposes of section 7.”
2.6Of the thousands of legislative provisions dealing with service of documents, the Committee has found that only a very small minority make provision of this kind in relation to section 7 of the Interpretation Act. The Committee suspects that it is either needed much more generally, or not at all; and the more likely answer is not at all. In particular, the Committee suspects that where this proposition appears it reflects a misunderstanding of the effect of section 7. That section provides that where legislation “authorises or requires any document to be served by post … then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” The Department appears to be assuming that “properly addressing” is a reference to the notion of a “proper address” for service, as in a particular address that is to be selected where there is a choice. The Committee is not convinced, not least because were that the case one would expect to find provision specifying the proper address for the purposes of section 7 in almost all provisions dealing with service to which section 7 applies. In the Committee’s view the most likely meaning of the term “properly addressing” in section 7 is as a reference to addressing in a manner that can reasonably be processed by the postal system, and not to the selection of which address to use. In so far as the Department asserts that this provision restricts the application of section 7 to cases where a particular address is chosen, the Committee is not satisfied that in the absence of express viresit is open to subordinate legislation to impose a limitation on the effect of a provision of an Act in this way, and the Committee accordingly reports regulation 14(2) on the ground that there is a doubt as to whether it is intra vires.
2.7Section 7 is a provision of regular practical importance which has been considered by the courts on a number of occasions, and it is undesirable to have its effect apparently understood in different ways in different places in legislation. In the interests of consistency across the statute book the Committee invites the Statutory Instrument Hub of the Government Legal Department to consider this provision, in consultation with the Office of the Parliamentary Counsel, to determine whether it is required in relation to the application of section 7 at all (and, if it is, what express enabling powers are required to permit it in each place).
3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
3.2These Regulations make amendments to occupational pensions legislation in order to fulfil the statutory duty of the Secretary of State to make regulations to require trustees or managers of money purchase schemes that are occupational pension schemes to publish scheme transaction costs and administration charges. Regulation 3(6) inserts a new regulation 29A(1) into the Occupational and Personal Pension Schemes (Disclosure of Information) Regulations 2013 (the “Disclosure Regulations”) which requires certain information in respect of relevant schemes to “be made publicly available free of charge on a website”. Another provision of the Disclosure Regulations (regulation 26(2)(b)(ii)) refers to making information “available on a website”. The Committee asked the Department for Work and Pensions to explain the intended difference between these two phrases.
3.3In a memorandum printed at Appendix 3, the Department explains that the difference in wording reflects material differences in the context and purposes of the relevant provisions of the Disclosure Regulations. The Disclosure Regulations are primarily concerned with the provision of information about a pension scheme, within specified time periods, to specified categories of individuals who have an interest in that information, such as members and prospective members of the scheme. If a website is used to make such information available, access may be restricted by requiring an individual username and password (but not by requiring a separate charge to be paid). The context and purpose of new regulation 29A(1) is different, in that it requires relevant schemes to make certain information available to the public as a whole. The Department considered that it was important to specify that and also that access is free of charge for all those who wish to view the information. The Committee accordingly reports regulation 3(6) for requiring the elucidation provided by the Department’s memorandum.
4.1The Committee draws the special attention of both Houses to these Regulations on the ground that there is doubt as to whether they are intra viresin one respect and that they make an unexpected use of the enabling power in another respect.
4.2These Regulations are made under section 2(2) of the European Communities Act 1972 to implement revised EU Regulations for type approval of motorcycles. They create domestic penalties for non-compliance with the requirements or for misconduct during the type approval process. Paragraph 3 of Part 2 of Schedule 1 states that a person guilty of an offence under the regulations is punishable on summary conviction by imprisonment for a term not exceeding 6 months (in England and Wales, Scotland and Northern Ireland). The Committee asked the Department for Transport to explain the reason for the selection of the maximum periods of imprisonment specified in paragraph 3 and the source of the power relied on for the selection of those periods.
4.3In a memorandum printed at Appendix 4, the Department acknowledges that the inclusion of a maximum period of imprisonment 6 months as regards Northern Ireland was an error, and beyond the viresprovided by the European Communities Act 1972. That Act originally set a maximum period of imprisonment on summary conviction for an offence created under section 2(2) of 3 months for England and Wales, Scotland and Northern Ireland, though that maximum has been raised to 12 months for Scotland by section 45 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007. The Committee therefore believes that the inclusion of a maximum period of imprisonment of 6 months as regards England and Wales is also beyond the viresof provided by the 1972 Act. The Department is of the view that penalties under the Regulations should be consistent across all jurisdictions of the United Kingdom and undertakes to amend both limbs of paragraph 3(1) to refer to a maximum period of 3 months at the earliest appropriate opportunity. The Committee accordingly reports paragraph 3 of Part 2 of Schedule 1 for doubt as to whether it is intra vires,acknowledged by the Department.
4.4Paragraph 6 of Part 2 of Schedule 1 allows the recipient of a penalty notice to object to the notice by giving a notice of objection to the enforcement authority. The enforcement authority must decide to cancel, reduce, increase or determine not to alter the penalty and notify the recipient in writing of its decision. Paragraph 6(6) requires the enforcement authority to state its reasons for the decision in all cases except for cancellation of the penalty. The Committee asked the Department for an explanation.
4.5In its memorandum, the Department explains that where a penalty is cancelled it will invariably be because the reasons for the objection are accepted and that no further explanation is necessary. Where further elaboration is necessary, the enforcement authority would normally voluntarily include that information in the notification.
4.6The Committee is clear that the requirement of administrative law to give reasons is now a fundamental principle of the law of the United Kingdom: see, for example, “The legal principles relating to the adequacy of reasons are well known. In short, the reasons must show that the decision maker successfully came to grips with the main contentions advanced by the parties, and must tell the parties in broad terms why they lost or, as the case may be, won. Reasons must be both adequate and intelligible. They must therefore both rationally relate to the evidence in the case, and be comprehensible in themselves.” (Davies v Bar Standards Board  EWHC 2927 (Admin).) The Committee does not believe that a decision-maker is relieved from the obligation to provide a clear audit trail of its reasons simply because it believes that a particular class of citizens will be able to guess what that reason was. In this case, although cancellation probably means that the stated objections have been accepted, it is possible that some but not all of the grounds were approved in which case the citizen has a right to know for the purpose of the conduct of future transactions with the enforcement authority; and it is also possible that the enforcement authority took procedural or other objections of its own, in which case again citizens have a right to know. The Committee accordingly reports paragraph 6 of Part 2 of Schedule 1 for an unexpected use of the enabling power.
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that there is doubt as to whether they are intra viresin one respect and that they make an unexpected use of the enabling power in another respect.
5.2These Regulations are made under section 2(2) of the European Communities Act 1972 and implement revised EU regulations for type approval of agricultural vehicles and create domestic penalties for non-compliance with the requirements or for misconduct during the type approval process. They are in the same form as S.I. 2018/235 above and the Committee asked the same two questions as for that instrument. In a memorandum printed at Appendix 5, the Department for Transport gave the same answers as for S.I. 2018/235 to which the Committee has the same response.
5.3The Committee accordingly reports paragraph 3 of Part 2 of Schedule 1 for doubt as to whether it is intra vires,acknowledged by the Department, and it reports paragraph 6 of Part 2 of Schedule 1 for an unexpected use of the enabling power.
6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
6.2These Regulations make amendments to various Merchant Shipping statutory instruments which implement the Maritime Labour Convention 2006. Paragraph 7.1 of the Explanatory Memorandum states that “The objective of this instrument is to correct some anomalies in the original implementing legislation”. The Committee asked the Department for Transport to explain why the free issue procedure was not used since the instrument is being used to correct errors in earlier legislation. In a memorandum printed at Appendix 6, the Department explains that although it took the opportunity to correct errors in existing legislation, most of the changes make substantive changes to legislation. The Committee refers to paragraph 4.7.6 of Statutory Instrument Practice (5th Edition, November 2017) which states that where a Department uses a statutory instrument to introduce new provisions as well as correcting an existing instrument, the Department should agree with the Statutory Instrument Registrar whether or not to provide free replacement copies. The Committee assumes that these consultations were held on this occasion, and does not dissent from the conclusion reached in this context. The Committee accordingly reports these Regulations as requiring elucidation, provided by the Department.
7.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.
7.2This Order designates, under section 28 of the Further and Higher Education Act 1992, the institution of Bolton College as falling within the further education sector. Article 2 describes the entity being designated as “Bolton College, Bolton BL3”. The Committee asked the Department for Education to explain why Bolton College is not identified by a unique identifier such as its company number and why the full address is not given. In a memorandum printed at Appendix 7, the Department asserts that there was no suitable unique identifier available for Bolton College: Bolton College is not itself incorporated but the body that conducts the institution will, once the Order comes in to force be a registered company. The Committee does not accept that a unique identifier could not have been found (for example, the college’s Ofsted Unique Reference Number in combination with the full postal address). Even where the likelihood of confusion is small, as a matter of good drafting practice where a private person is referred to it should be identified in such a way as to produce a certain legislative effect. The Committee accordingly reports article 2 for defective drafting.
Published: 20 April 2018