Thirty-second Report of Session 2017–19 Contents

Instruments reported

At its meeting on 12 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 four 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. 2018/771: Reported for unexpected use of the enabling power

Wildlife Licence Charges (England) Order 2018

1.1The Committee draws the special attention of both Houses to this Order on the ground that it appears to make unexpected use of the enabling power.

1.2This Order sets out a charging scheme for certain licences issued by Natural England relating to wildlife conservation. Article 4 sets out certain exemptions from charges, one of which is that the principal purpose of the project to which the licence relates is to maintain or improve the conservation of an historic property (article 4(1)(b)(iii)). Article 4(2) goes on to list what “historic property” includes but does not provide an exhaustive definition.

1.3The Committee asked the Department for Environment, Food and Rural Affairs to explain the meaning of the term “historic” and, in particular, whether it is intended that a newly constructed place of worship should automatically be within the definition.

1.4In a memorandum printed at Appendix 1, the Department asserts that “historic” does not depend on the property’s age and carries its natural meaning, that is, “of particular interest, importance or significance in history, or famous, or likely to become so.” The Department also confirms that it is intended that a newly constructed place of worship is within the definition of historic property.

1.5The Committee accepts that “historic” can naturally be used to refer to a new building that is expected to become famous; but it seems counter-intuitive to include in that category any building by reason only of its being a place of worship. This seems a surprising result, and the Committee accordingly reports article 4(2) as being an unexpected use of the enabling power.

2S.I. 2018/784: Reported for failure to comply with proper legislative practice

Motor Vehicles (Driving Licences) (Amendment) Regulations 2018

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 provide that the holder of a category B licence may drive certain types of alternatively-fuelled vehicles which exceed the maximum authorised mass of a category B vehicle provided that person has undertaken five hours of training on the driving of such vehicle with an instructor on the National Register of LGV instructors or the National Vocational Driving Instructors Register.

2.3The Committee asked the Department for Transport to explain why the instrument does not give an address where a hard copy of the National Register of LGV instructors and the National Vocational Driving Instructors Register can be inspected free of charge.

2.4In a memorandum printed at Appendix 2, the Department explains that it intends to amend the Explanatory Memorandum to provide contact details for a person within the Department to whom queries about inspecting hard copies of the Registers, free of charge, should be addressed.

2.5The Committee is grateful for this response which reflects the importance which the Committee attaches to this issue of access to justice (see the First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation at paragraphs 4.5 to 4.8). In accordance with that Report, the Committee would expect to see the contact details in the Explanatory Note rather than the Explanatory Memorandum. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice, acknowledged by the Department.

3S.I. 2018/785: Reported for defective drafting

Airports (Noise-related Operating Restrictions) (England and Wales) Regulations 2018

3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

3.2These Regulations implement, in relation to England and Wales, the requirement to designate competent authorities for the purposes of Regulation (EU) No 598/2014 of the European Parliament and of the Council of 16th April 2014 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Union airports within a Balanced Approach and repealing Directive 2002/30/EC.

3.3Regulation 6 requires airport operators to provide a competent authority with such information as the authority may require to enable it to carry out its functions under the 2014 Regulation. There is no sanction for failure to comply with this obligation and the Committee asked the Department for Transport to explain.

3.4In a memorandum printed at Appendix 3, the Department explains that as with regulation 13 of the Aerodromes (Noise Restrictions) (Rules and Procedures) Regulations 2003 (S.I. 2003/1742) which regulation 6 of this instrument replaces, no specific sanction is provided for failure to comply with regulation 6. The Department asserts that an application for an injunction (pursuant to general legal and equitable principles) can be made to enforce the statutory duty which regulation 6 places on the airport operator.

3.5The Department goes on to explain that in practice regulation 13 of the 2003 Regulations has operated effectively for many years because it is generally in an airport operator’s best interests to maintain a good relationship with the competent authority and information relevant to noise-related operating restrictions is also required under other regimes as detailed in the Department’s memorandum.

3.6It is an important principle of legislative drafting that every provision purporting to impose an obligation should be enforceable by way of a sanction or other identifiable consequence. The Committee does not agree that, as a general principle, an injunction is a satisfactory remedy in these circumstances. The fact that airport operators may have general reasons for wishing to cooperate with competent authorities is not a sufficient substitute for a clear legal route for enforcement of a statutory duty (although a specific prospect of regulatory consequences might be). The Committee accordingly reports regulation 6 for defective drafting.

4S.I. 2018/812: Reported for reducing fees

Court of Protection, Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2018

4.1The Committee draws the special attention of both Houses to this Order on the ground that it reduces fees.

4.2This Order reduces certain fees payable in civil and insolvency proceedings and proceedings in the Court of Protection.

4.3In the Explanatory Memorandum (to which the Department adds no further information in its memorandum printed at Appendix 4), the Ministry of Justice explains that most of the fees subject to this instrument were last amended in April 2014 via the Civil Proceedings Fee (Amendment) Order 2014 (S.I. 2014/874) and the Magistrates’ Courts Fees (Amendment) Order 2014 (S.I. 2014/875). They were part of wider reforms to the fees charged for civil and family proceedings which had the aim of bringing civil and family fees closer to a full cost recovery level. A review by the Department of fees against the cost of the service has now identified that some of those fees were inadvertently set above full cost recovery levels. This Order corrects the position. The current fees charged in the Court of Protection were set in 2007 on the basis that they were below the full cost of those proceedings. The review of the unit costs of fees has also confirmed that certain of those fees are above cost and those fees are also reduced to full cost recovery levels by this Order.

4.4The Department will be establishing a refund scheme for those who have been overcharged.

4.5The Committee has looked at a number of recent instruments which increased fees, sometimes by large multiples, for the stated purpose of cost recovery. The Committee therefore notes with satisfaction that the Department has monitored the effect of increased fees and taken necessary action in this instrument to reduce them to meet the originally stated intention. The Committee hopes that other Departments that have increased fees are undertaking the same kind of post-legislative scrutiny for the same purpose. The Committee accordingly reports the Order as being worthy of the Houses’ attention for the reasons given.

Published: 14 September 2018