At its meeting on 4 July 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 two 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 fail to comply with proper legislative practice in one respect.
1.2These Regulations revoke and replace the Water Supply (Water Quality) Regulations 2010. They implement two EU directives on the quality of water intended for human consumption and the protection of health with regard to radioactive substances in water. The Regulations are primarily concerned with the quality of water supplied by water undertakers (and water supply licensees) whose areas are wholly or mainly in Wales but they also apply in parts of England and consequently are laid simultaneously in Parliament and the National Assembly for Wales.
1.3The Regulations refer to compliance with various standards (ISO (International Organization for Standardization), European and British). The Committee asked the Wales Office to explain why the instrument does not give an internet link nor an address where a hard copy of the standards is available for inspection free of charge.
1.4In a memorandum printed at Appendix 1, the Department accepts that an internet link and an address where a hard copy of the standards is available for inspection free of charge should have been given and undertakes to include wording to that effect in the Explanatory Note.
1.5The Committee is grateful for this undertaking given the importance the Committee attaches to the free accessibility of documents referred to in legislation (see First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation (paragraphs 4.1 to 4.8)). The Committee accordingly reports these Regulations for failure to comply with proper legislative practice, acknowledged by the Department.
2.1The 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.
2.2These Regulations amend the Single Source Contract Regulations 2014 which, together with Part 2 of the Defence Reform Act 2014, create a regulatory framework for “single source contracts” (contracts which are not subject to a legal obligation to be advertised and competed) in the defence area. The amendments made by regulations 3 and 5 correct errors in the 2014 Regulations that were identified by the Committee in its 15th Report of Session 2014–15. The amendments made by regulations 4 and 6 reflect new policy relating to categories of defence contract to which the regulatory framework is not to apply.
2.3As the instrument corrects drafting errors as well as introducing new provisions, the Committee asked the Ministry of Defence if it had agreed with the Statutory Instrument Registrar whether free replacement copies ought to be provided in accordance with paragraph 4.7.6 of Statutory Instrument Practice (5th Edition, November 2017). That paragraph provides-
“If your Department wants to introduce new amending provisions at the same time as it is correcting a defective instrument, it should include both the new and correcting provisions within the one instrument. You should then agree with the SI Registrar whether or not to provide free replacement copies.”
2.4In a memorandum printed at Appendix 2, the Ministry of Defence explains that it did consult with the Statutory Instrument Registrar and that the Registrar’s view was that free replacement copies should be provided. The Registrar is quoted as saying:
“… the correcting provisions form a significant part of what is a very short two-page instrument. Of the six operative provisions, two are generic (regulations 1 and 2), whilst regulations 4 and 6 contain new provisions and regulations 3 and 5 correct the defects identified. On the grounds of proportionality but also in the interests of transparency, these Regulations would fall within the scope of the free issue procedure.”
2.5However, the Ministry of Defence decided not to provide free copies because it considers that, “the overriding purpose” of the instrument is “to give effect to… [new] policy,… not to remedy the deficiencies”.
2.6This is despite the fact that paragraph 4.7.6 of Statutory Instrument Practice requires Departments to reach agreement with the SI Registrar as to whether the free issue procedure should be used.
2.7The Committee considers that a primary purpose of this requirement is to ensure consistency in the operation of the free issue procedure across Departments.
2.8Where the Registrar’s view is that an instrument falls within the scope of the free issue procedure but the Department decides nonetheless not to provide free copies, this creates a significant risk that the procedure does not operate consistently. The risk increases if the Department’s decision is based on different criteria from those applied by the Registrar. The present case is an example of this. The Registrar’s view was based on (a) the proportion of the instrument that corrects deficiencies, and (b) the interests of transparency. By contrast, the Ministry’s decision appears to have been based on its assessment that the new provisions are more important than those which correct deficiencies.
2.9The Committee has no doubt that the Registrar reached the correct view that free replacement copies should have been provided, and is surprised that the Ministry of Defence has chosen to override it.
2.10The Ministry’s decision may mean, moreover, that recipients of the 2014 Regulations are treated differently from recipients of other instruments in comparable circumstances.
2.11The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.
Published: 6 July 2018