Instruments reported
At its meeting on 31 October 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 six 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. 2018/975: Reported for defective drafting
Civil Procedure (Amendment No. 3) Rules 2018
1.1The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted in two respects.
1.2These Rules amend the Civil Procedure Rules 1998. One amendment inserts a new Rule 5.6 which states:
“(1) Any document placed before the court in civil proceedings in or having a connection with Wales may be in the English or Welsh language.
(2) It is the responsibility of any party if acting in person or of that party’s legal representative to inform the court as soon as practicable if documents in the Welsh language will or may be placed before the court, so that appropriate arrangements can be made.”
The Committee asked the Ministry of Justice to explain what is intended to be covered by “having a connection with” Wales and “appropriate arrangements”.
1.3In a memorandum printed at Appendix 1, the Department states that the words “having a connection with Wales” are taken from section 22(2) of the Welsh Language Act 1993, that the phrase is not defined in that Act and that it was not considered appropriate to define it in the new Rule. The Department further states that the reference to “appropriate arrangements” derives from the longstanding Practice Direction Relating to the Use of the Welsh Language in Cases in the Civil Courts in Wales and that it was considered appropriate to leave the definition of “appropriate arrangements” open rather than restrict the arrangements to case management and listing arrangements (as stated in the Practice Direction).
1.4This case illustrates the principle that expressions that are sufficiently certain in one legislative context may not be so in another.
1.5In this case, section 22(2) of the 1993 Act was setting parameters for vires of rules of court: its use of the phrase “proceedings in or having a connection with Wales” was presumably predicated on the assumption that when the power came to be exercised by rules of court, they would define the class of proceedings within that phrase to which they applied by reference to objectively ascertainable criteria. Rules of court are legislation, conferring enforceable rights and duties in the same way as any other legislation, albeit in a specific procedural context; and it is therefore important that they are drafted in a way that allows them to be construed with clarity and applied with certainty.
1.6Similarly, phrases that are eminently suitable for Practice Directions and other quasi-legislation do not necessarily translate into justiciable law in subordinate legislation. If it was decided to move the provision about the treatment of documents from the Practice Direction into the rules, clear and certain language should have been used to describe the process. The Committee believes that the most appropriate approach in this context would probably have been to omit the words “so that appropriate arrangements can be made” altogether, so that the legislative proposition was confined to a duty to notify the court, with the post-notification handling left to the Practice Direction or administrative discretion to determine.
1.7The Committee accordingly reports Rule 5.6 for defective drafting in two respects.
2S.I. 2018/982: Reported for defective drafting
Riot Compensation (Amendment) Regulations 2018
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
2.2These Regulations amend entitlements to compensation under the Riot Compensation Act 2016.
2.3As a result of regulation 2(3) of these Regulations, regulation 4 of the 2017 Regulations will now read as follows:
“No person may make more than one section 1 claim in relation to each of the following—
a) property at a single postal address,
b) property which does not fall within sub-paragraph (a).”
The Committee asked the Home Office to explain what regulation 4(b) is intended to achieve.
2.4In a memorandum printed at Appendix 2, the Department explains that new regulation 4(b) is intended to cover “common parts of a building in respect of which there is no single postal address for the building as a whole”, for instance in a building containing office units or flats that each have their own postal address, as well as property in motor vehicles or otherwise entirely outside premises. The Department adds that “if there were no regulation 4(1)(b), there would be a policy inconsistency of a claim consolidation requirement that only applies in respect of claims for property at a single postal address (regulation 4(1)(a)) but not in respect of claims for the common parts of a property for which there is no single postal address”.
2.5The Committee understands the policy intention, but does not consider that the amendments made by these Regulations have achieved it with sufficient clarity. In particular, there is nothing in new regulation 4(b) to limit the consolidation of claims to common parts of a single building, and on its face regulation 4 would require consolidation of claims in respect of all common parts (even if of more than one building) and of all vehicles (wherever located). This does not appear to have been the Department’s intention, and the Committee accordingly reports regulation 2 for defective drafting.
3S.I. 2018/985: Reported for defective drafting
Income-related Benefits (Subsidy to Authorities) Amendment Order 2018
3.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.
3.2This Order amends provisions relating to the calculation and payment of housing benefit subsidy to local authorities. The amendments made by Schedule 2 grant an additional subsidy to authorities that administer “VEP alerts” to cover the costs they incur by doing so.
3.3The Order defines VEP alerts as “alerts given by the Secretary of State to authorities with a view to enabling authorities to prevent fraud and error arising from real time identification of changes of income”. The Committee asked the Department for Work and Pensions to explain the circumstances in which fraud and error could arise from real time identification of changes of income. In a memorandum printed at Appendix 3, the Department acknowledges that the definition wrongly suggests that fraud and error arise from the real time identification of changes of income, and that it is therefore defectively drafted. The Committee accordingly reports Schedule 2 for defective drafting, acknowledged by the Department.
4S.I. 2018/1007: Reported for defective drafting
Environment Agency (Teggsnose Reservoir and Langley Bottoms Reservoir) Drought Order 2018
4.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.
4.2This Order reduces the amount of water that United Utilities Water Limited is obliged to discharge every day from the Teggsnose and Langley Bottoms reservoirs into the River Bollin, to protect nearby flora and fauna from the effects of the summer drought.
4.3Article 1(b) commences the Order on 13 September 2018, which was the day on which it was made. By virtue of section 4(a) of the Interpretation Act 1978, the result of article 1(b) is that the Order came into effect on the beginning of the day on which it was made, and was therefore retrospective by a few hours.
4.4In a voluntary memorandum printed at Appendix 4, the Department for Environment, Food and Rural Affairs acknowledges that it was not intended that the Order should have retrospective effect and that the commencement provision was defectively drafted. The Committee is grateful for the voluntary memorandum, and accordingly reports article 1(b) for defective drafting, acknowledged by the Department.
5S.I. 2018/1025: Reported for requiring elucidation
Timber and Timber Products and FLEGT (EU Exit) 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 make prospective amendments under the European Union (Withdrawal) Act 2018 to ensure that legislation relating to imported timber is operable after the UK leaves the EU. The amendments include technical changes being made to remedy deficiencies in two EU regulations, which will form part of retained EU law after exit day. One such change is to omit a redundant Annex 1, along with references to it, from the EU regulations; another is to amend or omit references to the European Commission and its administrative processes.
5.3In the Explanatory Memorandum, the Department for Exiting the European Union lists corrections that are not included in this instrument but will be made separately. The Committee asked the Department to explain why some references to Annex 1 and to the Commission were retained in the EU regulations but did not seem to be among the intended future corrections.
5.4In a memorandum printed at Appendix 5, the Department confirms that it intends to substitute the Articles containing references to the Commission in other regulations that are currently being drafted. The Department explains that the same regulations will create a power for the Secretary of State to insert a new Annex 1, which will be effected once an agreement has been concluded with a timber exporting country and the affirmative regulations are in force; this will restore meaning to the reference.
5.5It is not clear to the Committee why Annex 1 was omitted rather than simply being depopulated for the time being, but it is grateful for the Department’s clarification that these empty references will soon be corrected and accordingly reports these Regulations for elucidation, as provided in the Department’s memorandum.
6S.I. 2018/1026: Reported for requiring elucidation
Common Agricultural Policy Basic Payment and Support Schemes (England) (Amendment) Regulations 2018
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 transpose a Commission Implementing Decision that permits specified derogations from the conditions relating to greening payments under the common agricultural policy. These derogations were made to compensate for the effects of a severe summer drought that has reduced the availability of fodder for livestock in affected areas.
6.3The Decision includes express limits on the derogations to ensure that they apply no farther or longer than is strictly necessary: it requires the derogations to be limited to areas formally recognised by the competent authorities as having been affected by the drought with the result that there is a shortage of fodder or a delay in sowing green cover. As the Regulations do not expressly incorporate such limits, the Committee asked the Department for Environment, Food and Rural Affairs to explain how they comply with this aspect of the Decision.
6.4In a memorandum printed at Appendix 6, the Department explains that the drought and its effects, and therefore the need for the derogation, were not limited to specific parts of England. Meteorological data for the summer period and stakeholder discussion led by England’s competent authority made clear that the negative impact on grass growth and consequent shortage of fodder for livestock had been felt throughout the country. The whole area of England was therefore recognised as having been affected by the drought for the purposes of the Decision. As a consequence, the derogations were applied to that whole area. The Committee accordingly reports these Regulations for elucidation, as provided in the Department’s memorandum.
Published: 2 November 2018