Instruments reported
At its meeting on 5 September 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.
1S.I. 2018/761: Reported for defective drafting
Equine Identification (England) Regulations 2018
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in three discrete respects.
1.2Regulation 17 provides an exemption from the requirements of the Regulations in respect of certain wild or semi-wild equines which are identified in the lists or stud book kept by one of four bodies. Paragraph (3) of regulation 17 requires such a body, on request from the Secretary of State, to provide the Secretary of State with a copy of that list or stud book within 14 days of the date of the request. Although a failure to comply with other requirements imposed by the Regulations is an offence, no provision is included whereby a contravention of this requirement attracts any sanction.
1.3In a memorandum printed at Appendix 1, the Department for Environment, Food and Rural Affairs states that it did not wish to create a sanction in respect of the requirement. It undertakes to amend the provision to remove the requirement at the earliest opportunity.
1.4Regulation 29 provides that a person is guilty of an offence if the person knowingly—
a) implants, or attempts to implant, into an equine, a device which—
i)is not a genuine transponder; or
ii)has previously been inserted into, or used for, another animal; or
iii)tampers with, or otherwise alters, a transponder with intent to deceive.
1.5Given the absence of any paragraph (b), it appeared to the Committee that either a provision had been accidentally omitted or sub-paragraph (iii) was intended to be read as paragraph (b). The Department confirms that the latter is the case, and undertakes to correct the error at the next available opportunity.
1.6Regulation 36 provides that, subject to regulations 32 and 37, a person who is guilty of an offence under the Regulations is liable, on summary conviction, to a fine. Regulation 37 enables an enforcing authority to impose a civil sanction instead of bringing criminal proceedings, but regulation 32 deals with criminal proceedings for an offence alleged to have been committed by a partnership or unincorporated association; it in no way qualifies the provisions of regulation 36. The Department states that it wanted to make clear on the face of the Regulations that an unincorporated association could be subject to the penalties in regulation 36. On reflection, it appears to accept that the drafting is inappropriate. It undertakes to review regulation 36 “when we next amend the Regulations”. The Committee invites the Department to take into account when it does so the fact that, although regulation 32 can be seen as adding to regulation 36 in that it treats an unincorporated association as a person for relevant purposes, it cannot be seen as detracting from the clear provisions of regulation 36. It is therefore inappropriate to refer to the latter as being subject to the former.
1.7The Committee accordingly reports regulations 17(3), 29 and 36 for defective drafting, acknowledged by the Department. It also notes that the Department appears unsure when it intends to rectify the errors. This could be “at the earliest opportunity”, “at the next available opportunity” or “when we next amend the Regulations”. The Committee considers that the errors should be corrected without delay, and asks the Department to advise it when this is done.
2S.I. 2018/764: Reported for doubt as to whether they are intra vires
Non-Road Mobile Machinery (Type-Approval and Emission of Gaseous and Particulate Pollutants) Regulations 2018
2.1The 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 in one respect.
2.2Regulation 11 deals with the service of documents under the Regulations and paragraph (4) provides that, for the purpose of that regulation and section 7 of the Interpretation Act 1978 in its application to that regulation, the proper address in relation to specified categories of person is a particular physical address.
2.3The Committee considered similar provisions in its Nineteenth Report of this Session (in relation to S.I. 2018/230) and its Twenty-First Report of this Session (in relation to S.I 2018/437), where it reported its view that such a provision improperly purports to limit the effect of section 7, which is a provision of universal application, and was of doubtful vires. The Committee accordingly asked the Department for Transport to explain why regulation 11(4) purports to define proper address for the purposes of section 7 and why, in the light of the Committee’s earlier reports, the Explanatory Memorandum states that there are no matters of concern to the Committee.
2.4In a memorandum printed at Appendix 2, the Department for Transport states that regulation 11(4) follows a formulation used in many previous instruments and that, as consideration of such provisions by the Statutory Instrument Hub of the Government Legal Department and the Office of Parliamentary Counsel has not yet been completed, it was not thought appropriate to change its long-standing approach. It apologises for omitting to amend the Explanatory Memorandum to refer to the issue.
2.5The Committee does not consider that anything in the Department’s response alters the views expressed in its earlier reports, and accordingly reports regulation 11(4) on the ground that there is a doubt as to whether it is intra vires.
Published: 7 September 2018