Instruments reported
At its meeting on 2 May 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 ten 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. 2018/286: Reported for requiring elucidation
Plant Health (Export Certification) (England) (Amendment) Order 2018
1.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect.
1.2This instrument increases the hourly fees payable for services in respect of applications for phytosanitary certificates for the export of plant material to third countries to satisfy the requirements of those countries’ phytosanitary regulations. The increase in the hourly fee for export and pre-export certification services is above inflation.
1.3The Committee asked the Department for Environment, Food and Rural Affairs to summarise the objections made to the proposed fee increases in the consultation responses referred to in paragraph 8 of the Explanatory Memorandum and, in particular – (a) to identify whether any consultees asserted that the new fees are above reasonable cost recovery rates; and (b) to explain whether the new fees include a significant element of cross-subsidisation and, if so, identify the viresfor that.
1.4In a memorandum printed at Appendix 1, the Department explains that the increase in fees is to correct a significant under-recovery of the costs of providing export certification services and that no consultees asserted that the new fees are above reasonable cost recovery rates. Consultees’ objections mainly related to the timing of the fee changes given the uncertainties around the UK’s exit from the EU. The Department also confirms that the new fees do not include a significant element of cross-subsidisation. The Committee accordingly reports this Order for requiring the elucidation provided by the Department’s memorandum.
2S.I. 2018/289: Reported for requiring elucidation
Plant Health etc. (Fees) (England) Regulations 2018
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
2.2This instrument specifies fees payable to the Secretary of State in relation to inspection of imported plants and plant material, seed potato certification, plant passporting, plant health licensing, certification of fruit-propagating material and sampling and testing of potatoes imported from Egypt and the Lebanon. Certain of the fee increases are above inflation.
2.3The Committee asked the Department for Environment, Food and Rural Affairs to summarise the objections made to the proposed fee increases in the consultation responses referred to in paragraph 8 of the Explanatory Memorandum and, in particular – (a) to identify whether any consultees asserted that the new fees are above reasonable cost recovery rates; and (b) to explain whether the new fees include a significant element of cross-subsidisation and, if so, identify the viresfor that.
2.4In a memorandum printed at Appendix 1, the Department explains that the new fees are set to recover the eligible costs of providing the services and that no consultees asserted that the new fees are above reasonable cost recovery rates. In the case of plant passporting services, the increase in fees is to correct a significant under-recovery of the costs of providing plant passporting services for many years. Consultees’ objections again mainly related to the timing of the fee changes given the uncertainties around the UK’s exit from the EU. The Department also confirms that the new fees do not include a significant element of cross subsidisation. The Committee accordingly reports the Regulations for requiring the elucidation provided by the Department’s memorandum.
3S.I. 2018/290: Reported for failure to comply with proper legislative practice and for unjustifiable delay in laying it before Parliament
Personal Injuries (Civilians) Scheme (Amendment) Order 2018
3.1The Committee draws the special attention of both Houses to this Order on the grounds that it fails to comply with proper legislative practice in one respect and there appears to have been unjustifiable delay in laying it before Parliament.
3.2This Order amends the Personal Injuries (Civilians) Scheme 1983, which makes provision for the payment of pensions and allowances to, or in respect of, civilians who were killed or injured during the 1939–1945 World War.
3.3There was a delay of 20 days between signature by the Ministry of Defence and the Treasury and a delay of 16 days between the making of this instrument and laying it before Parliament. The Committee asked the Ministry of Defence to explain the delays. In a memorandum printed at Appendix 2, the Department explains that the delays occurred because it continued to follow a set timetable for obtaining signatures and laying, even when earlier stages occurred more quickly than expected. The Department apologises for the delay at both stages and undertakes to review its internal procedures to ensure that these delays are not repeated. The Committee is grateful for this undertaking and stresses the importance of communication between Departments to eliminate significant delays between signatures. In relation to the delay in laying before Parliament, the Committee repeats what it said in its Seventeenth Report of Session 2017–19 (in relation to S.I. 2018/68): 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.
3.4The Committee accordingly reports this Order for failure to comply with proper legislative practice and unjustifiable delay in laying before Parliament, acknowledged by the Department.
4S.I. 2018/321: Reported for unjustifiable delay in laying it before Parliament
Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018
4.1The Committee draws the special attention of both Houses to these Regulations on the ground that there appears to have been unjustifiable delay in laying them before Parliament.
4.2These Regulations update domestic law relating to the investigation of air accidents and incidents primarily to make it consistent with directly applicable EU law.
4.3There 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 the delay. In a memorandum printed at Appendix 3, the Department apologises for the delay and assures the Committee that its drafting lawyers and their support staff have been made aware of what the Committee considers to be an unjustifiable delay. The Committee repeats what it says in relation to S.I. 2018/290 above in relation to delay in laying before Parliament and accordingly reports these Regulations for unjustifiable delay in laying before Parliament, acknowledged by the Department.
5S.I. 2018/336: Reported for requiring elucidation
National Health Service (Dental Charges) (Amendment) Regulations 2018
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
5.2These Regulations implement an above-inflation uplift to charges which can be recovered from a patient, who is not exempt, for the provision of dental treatment by a provider of primary dental services.
5.3The Committee asked the Department of Health and Social Care to explain whether the increased charges involve an element of cross-subsidisation which means that a patient receiving treatment could pay more than the cost of providing the treatment to that patient.
5.4In a memorandum printed at Appendix 4, the Department explains that the level of patient charges is nationally set and is not directly linked to the amount paid to dentists for the provision of NHS dental services which is locally negotiated by NHS England. Therefore, it is not possible to say with any certainty what proportion of the gross cost of NHS dental treatment provided to an individual fee paying patient is represented by the NHS dental charge payable by the patient in respect of that treatment. The Department goes on to say that analysis based on national data and using appropriate assumptions suggests that, at a national level, NHS dental charges payable by individual patients do not exceed the total cost of NHS treatment provided to those patients and in general there is not full cost recovery in respect of any NHS treatment provided to any fee-paying patients. The Committee accordingly reports the Regulations for requiring the elucidation provided by the Department’s memorandum.
6S.I. 2018/349: Reported for defective drafting
Investigatory Powers (Disclosure of Statistical Information) Regulations 2018
6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
6.2These Regulations set out the circumstances in which a telecommunications operator or postal operator may make a disclosure consisting of statistical information in relation to warrants under the Investigatory Powers Act 2016.
6.3Regulation 6 specifies a description of statistical information that may be disclosed in relation to which a telecommunications operator has provided assistance in giving an effect to an interception warrant (regulation 6(2)(b)). Regulation 8 states that disclosure must be in respect of a particular reporting period of six months and disclosure is in respect of that period if, in the case of a disclosure of statistical information specified by regulation 6, the postal operator or telecommunications operator provided assistance as mentioned in regulation 6(2)(b) during the reporting period (regulation 8(2)(c)). The Committee asked the Home Office to explain the inclusion of “postal operator” in regulation 8(2)(c) but not in regulation 6(2)(b).
6.4In a memorandum printed at Appendix 5, the Department explains that the omission of “postal operator” from regulation 6(2)(b) is an error and that it is the Department’s intention to amend the instrument before it comes into force, by inserting the words “postal operator or” before the words “telecommunications operator” in regulation 6(2)(b). The Committee accordingly reports regulation 6(2)(b) for defective drafting, acknowledged by the Department.
7S.I. 2018/352: Reported for failure to comply with proper legislative practice
Natural Mineral Water, Spring Water and Bottled Drinking Water (England) (Amendment) Regulations 2018
7.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in one respect.
7.2These Regulations amend the Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007 to implement two EU directives relating to radioactive substances in water and the quality of water intended for human consumption and introduce an enforcement regime based on improvement notices. The Regulations refer to several British Standards and ISO (International Organization for Standardization) Standards in order to comply with the UK’s obligation to implement the relevant EU Directives. The Explanatory Note refers to where digital and hard copies of the standards can be purchased but there is no indication where free copies are available for inspection. The Committee asked the Department for Environment, Food and Rural Affairs to explain.
7.3In a memorandum printed at Appendix 6, the Department asserts that it was not possible to include a reference to open and freely available standards in the Regulations and undertakes that if the Department receives any enquiry in relation to the accessibility of any of the standards, the Department will make copies of the relevant standards available for inspection free of charge.
7.4The Committee is grateful for this undertaking given the importance the Committee attaches to the free accessibility of documents referred to in legislation but does not understand why a reference to consulting the standards free of charge could not have been included in the Explanatory Note (which is the preferable approach). The Committee accordingly reports these Regulations for failure to comply with proper legislative practice, acknowledged by the Department.
8S.I. 2018/434 and S.I. 2018/443: Reported for failure to comply with normal legislative practice
Education (Student Support) (Revocation, Amendment and Saving Provision) Regulations 2018; and Education (Student Support) (Amendment) (No. 2) Regulations 2018
8.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with normal legislative practice.
8.2The Education (Student Support) (Amendment) Regulations 2018 (S.I. 2018/136) amend the Education (Student Support) Regulations 2011 to ensure that new eligible students starting pre-registration courses in dental profession subjects or postgraduate pre-registration courses may receive support under those Regulations. S.I. 2018/434 revokes S.I. 2018/136 and S.I. 2018/443 re-enacts it in the same form. The explanation given by the Department for the revocation and re-enactment is that it was not possible for the Government to accommodate time for debate within S.I. 2018/136’s praying period and that it is a matter of Parliamentary convention that where a reasonable request for debate has been made, time should be allowed for debate.
8.3In respect of the decision to revoke and re-enact S.I. 2018/136 in precisely the same terms, the Committee asked the Department if it wanted to add any further explanation. In a memorandum printed at Appendix 7, the Department confirms its position that it proceeded with this course of action to ensure that debate on the regulations could take place.
8.4The Committee has no objection to the procedure followed in the circumstances of this case, and accepts that the purpose of the revocation and re-enactment was to allow an opportunity for debate. In principle, however, a continuous cycle of revocation and re-enactment could be used not to permit Parliamentary scrutiny but to evade it; and the process is confusing for those users of secondary legislation who are not aware of the Parliamentary circumstances. This is not, therefore, a process that should be allowed to become routine or accepted except where, as in this case, it is generally accepted as a helpful way of facilitating scrutiny. The Committee accordingly reports these Regulations for failure to comply with normal legislative practice, to which the Committee takes no exception on the particular facts of this case.
9S.I. 2018/437: Reported for doubt as to whether they are intra vires and for requiring elucidation
Sea Fish (Marketing Standards) (England and Wales and Northern Ireland) Regulations 2018
9.1The Committee draws the special attention of both Houses to these Regulations on the grounds that there is doubt as to whether they are intra viresin one respect and that they require elucidation in another respect.
9.2These Regulations introduce enforcement provisions in England, Wales and Northern Ireland for the marketing of fish and aquaculture products contained in Regulation (EU) 1379/2013 and its accompanying legislation.
9.3Regulation 9(5) deals with the service of documents under the Regulations and provides that for the purposes of that regulation and section 7 of the Interpretation Act 1978, “proper address” in relation to specified categories of person is a particular physical address and an email address.
9.4Section 7 of the Interpretation Act 1978 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 Committee asked the Department for Environment, Food and Rural Affairs to explain the intended effect of the reference to section 7 in regulation 9(5).
9.5In a memorandum printed at Appendix 8, the Department refers to the Committee’s Nineteenth Report of Session 2017–19 in relation to S.I. 2018/230. The Department disagrees with the Committee’s view in that report that 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. The Department asserts that the natural interpretation of “properly addressing” is that it includes both the use of a correct address for the addressee and addressing in a manner that can reasonably be processed by the postal system. The Department goes on to assert that it is not the purpose of regulation 9(5) to limit the effect of section 7 but rather to inform consideration of whether the letter has been properly addressed for the purposes of section 7; it asserts that the regulation does not imply any intention to limit the words “properly addressing” in section 7 to refer only to the address specified in regulation 9(5) as the proper address; other addresses may equally be sufficient to enable the letter to be considered as “properly addressed”. That is, however, simply inconsistent with the clear meaning of regulation 9(5) when it states: “For the purposes of … section 7 of the Interpretation Act 1978(1) … “proper address” means …”. The Committee maintains its view in its Nineteenth Report of Session 2017–19 in relation to S.I. 2018/230 that an attempt to specify a particular address as the “proper address” raises a doubt as to vires.The Committee reiterates that it is undesirable to have the effect of section 7 apparently understood in different ways in different places in legislation and repeats its invitation to the Statutory Instrument Hub of the Government Legal Department to consider this provision. The Committee accordingly reports regulation 9(5) on the ground that there is a doubt as to whether it is intra vires.
9.6Regulation 10 deals with appeals in England and Wales in relation to a compliance notice and regulation 11 deals with similar appeals in Northern Ireland. Regulation 11 contains a time limit; the appeal must be made within 28 days of notification of the decision to be appealed. Regulation 10 contains no time limit. The Committee asked the Department to explain (by reference, if appropriate, to relevant First-tier Tribunal rules) whether it is intended that there should be a time limit on the bringing of appeals under regulation 10. In its memorandum, the Department explains that the Tribunal Procedure (First-Tier Tribunal) (General Regulatory Chamber) Rules 2009 apply to appeals made under regulation 10. Rule 22(1)(b) contains the same 28-day limit as is stated in regulation 11 for Northern Ireland. The Committee accordingly reports regulation 10 for requiring the elucidation provided in the Department’s memorandum.
Published: 4 May 2018