Instruments reported
At its meeting on 21 November 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 seven 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. 2018/1051: Reported for defective drafting
Plant Health (England) (Amendment) (No. 4) Order 2018
1.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.
1.2This Order implements EU law by introducing new measures that seek to prevent harmful plant pests and diseases from being introduced to or spread within England. Among these measures are restrictions on the import of garden tomato seeds to prevent the spread of Pepino mosaic virus.
1.3The Committee asked the Department for Environment, Food and Rural Affairs to explain why, when transposing these restrictions into articles 6(c) and 7(a) (as new items 89A and 43A), the language in the original EU Decision was changed in such a way as to make the propositions syntactically inaccurate. In a memorandum printed at Appendix 1, the Department acknowledges and apologises for the errors and undertakes to correct them at the earliest opportunity. The Committee is concerned that errors should not be introduced during transposition, particularly when the original text is correct, and accordingly reports articles 6 and 7 for defective drafting, acknowledged by the Department.
2S.I. 2018/1055: Reported for requiring elucidation
Misuse of Drugs (Amendments) (Cannabis and Licence Fees) (England, Wales and Scotland) 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 makes cannabis-based products available to be prescribed for medicinal use. This amendment is made by inserting the new entry for “cannabis-based products for medicinal use in humans” into Schedule 2 to the Misuse of Drugs Regulations 2001 and the definition into regulation 2(1) of those Regulations.
2.3This is the first time that the enabling powers to reschedule products have been used to specify a product by reference to both its form and purpose as well as to its composition. In paragraphs 3.1 and 3.2 of the Explanatory Memorandum, the Home Office explains that it is relying on its ability to make provision in relation to “other different cases or circumstances” (section 31(1)(a) of the Misuse of Drugs Act 1971) to specify the product by reference to its purpose.
2.4Section 7(1)(b) of the Misuse of Drugs Act 1971 (which is also cited as an enabling power for these Regulations) allows the Secretary of State to “make such other provision as he thinks fit for the purpose of making it lawful for persons to do things which … it would otherwise be unlawful for them to do.”
2.5The Committee asked the Department to confirm that section 7(1)(b) is relied on in addition to the provisions specified in the Explanatory Memorandum. In a memorandum printed at Appendix 2, the Department provides that confirmation, and adds that reliance is also placed on section 31(1)(a) (read with section 7(1)(a)) for the scheme of scheduling of controlled drugs to the 2001 Regulations to have their full effect. The Committee finds this explanation helpful and accordingly reports these Regulations for requiring the elucidation provided by the Department’s memorandum.
3S.I. 2018/1076: Reported for defective drafting and for requiring elucidation
Sanctions (Overseas Territories) (Amendment of Information Provisions) Order 2018
3.1The Committee draws the special attention of both Houses to this Order on the grounds that it is defectively drafted in one respect and that it requires elucidation in one respect.
3.2This Order in Council amends the laws of British Overseas Territories to implement UN sanctions against various UN Member States. The amendments make certain businesses and professions subject to reporting requirements that currently apply only to financial institutions.
3.3Article 8(3) purports to amend article 30(5) of the Libya (Restrictive Measures) (Overseas Territories) Order 2011 to create two definitions of “relevant person”—one in respect of a relevant financial institution and one in respect of a relevant business or profession. The amendment substitutes text in article 8(3) for the text “In this paragraph “relevant person”” in article 30(5) of the 2011 Order.
3.4The Committee asked the Foreign and Commonwealth Office to explain how the amendment would be effected given that article 30(5) does not contain the text “In this paragraph “relevant person””. In a memorandum printed at Appendix 3 the Department accepts that the amendment cannot be effected, apologises for the error and undertakes to correct it at the earliest opportunity. The Committee accordingly reports article 8 for defective drafting, acknowledged by the Department.
3.5The Committee also asked the Department to explain why the amendments made by articles 2, 6, 7 and 8 were not made to extend to Bermuda, given that the instruments they amend do so extend. In its memorandum, the Department explains that Bermuda has in recent years been making its own legislation to implement sanctions measures, which are primarily given effect by its International Sanctions Regulations 2013 as amended from time to time. The Department notes that as a result of Bermuda’s 2013 Regulations, it is no longer necessary for the instruments amended by this Order to extend to Bermuda. It has informed the Government of Bermuda of this unnecessary duplication and undertakes to remove it at the earliest opportunity. The Committee finds this explanation and undertaking helpful and accordingly reports this Order for elucidation, as provided in the Department’s memorandum.
4S.I. 2018/1080: Reported for defective drafting
Computer Reservation Systems (Amendment) (EU Exit) Regulations 2018
4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two respects.
4.2These Regulations prospectively amend Regulation (EC) 80/2009 to update out-of-date references in anticipation of the EU Regulation becoming retained EU law after exit day.
4.3Regulation 8 amends Article 11 of the EU Regulation, which deals with processing and storing personal data, by substituting references to the General Data Protection Regulation (GDPR) for references to the repealed Data Protection Directive (DPD). The Committee asked the Department for Transport to explain why the cross-reference in Article 11(3) had not been amended to refer to the correct article of the GDPR, i.e., the article that deals with special categories of data (Article 8 DPD but Article 9 GDPR).
4.4The Committee also asked why the sentence “This Regulation shall be binding in its entirety and directly applicable in all Member States” had not been omitted, in line with the standard practice in other EU exit instruments that prospectively amend EU Regulations.
4.5In a memorandum printed at Appendix 4, the Department acknowledges the errors and undertakes to deal with them at the earliest suitable opportunity. The Committee accordingly reports these regulations for defective drafting, acknowledged by the Department.
5S.I. 2018/1082: Reported for defective drafting
Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018
5.1The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted in two respects.
5.2These Rules set out the detailed procedures for the conduct of company voluntary arrangements and administration proceedings in Scotland under the Insolvency Act 1986. The Rules modernise and consolidate the Insolvency (Scotland) Rules 1986.
5.3Rule 2.7(3) enables a nominee to require the proposer to provide information as to whether any director or officer (or certain former directors or officers) of the company in question has previously been involved with a company which has been the subject of insolvency proceedings or has been the subject of personal insolvency proceedings. Paragraph 3(d) lists whether the director or officer has “granted a trust deed” as information that must be provided to the nominee. The Committee asked the Department for Business, Energy and Industrial Strategy whether Rule 2.7(3)(d) is intended to cover the grant of any trust deed or is limited to a trust deed for the benefit of creditors.
5.4In a memorandum printed at Appendix 5, the Department clarifies that rule 2.7(3) is intended to be limited to the grant of a trust deed for the benefit of creditors and asserts that this should be well understood in the context of the list in rule 2.7(3) which refers to either individual or corporate insolvency processes; it also undertakes to make an appropriate amendment to the rule at the next available opportunity. The Committee accepts that the provision would probably have to be given a restrictive interpretation in view of the context; but of course the precise intended scope of the provision should have been expressed, as it generally is in similar contexts. The Committee accordingly reports rule 2.7(3)(d) for defective drafting.
5.5Rule 3.67(2)(d) lists those persons who can lodge a notice regarding the death of the administrator. The Committee asked the Department whether, under Rule 3.67(2)(d), a single executor if there is more than one, can lodge the notice, and if so, whether the first “the” should be replaced with “an”. In its memorandum, the Department explains the policy intention is that if there is more than one executor, any one of them can lodge the notice. The Department acknowledges that it would have been preferable to use the indefinite rather than the definite article to deliver that policy intention but nonetheless considers that the drafting is sufficiently clear; and it undertakes to make an appropriate amendment to the rule at the next available opportunity. Again, the Committee accepts that it is more likely than not that courts and other readers will be forced to a conclusion coinciding with the Department’s policy intention; but as always it would have been better to avoid the possibility of confusion. The Committee accordingly reports Rule 3.67(2)(d) for defective drafting.
6Draft S.I.: Reported for failure to comply with proper legislative practice
Hertfordshire (Electoral Changes) (Amendment) Order 2018
6.1The Committee draws the special attention of both Houses to this Order on the ground that it fails to comply with proper legislative practice.
6.2This Order amends the date on which the electoral arrangements for the parish of Chorleywood come in to effect.
6.3Section 59(9) of the Local Democracy, Economic Development and Construction Act 2009 and section 6(1) of the Statutory Instruments Act 1946 require that the Order be laid before Parliament for a period of forty days during which period either House may resolve that the Order not be made. Paragraph 3.11.28 of the Government’s Statutory Instrument Practice states that the preamble should set out the fulfilment of any condition that the enabling Act requires before an instrument can be made and gives as an example the fact that a specified period has expired and neither House has resolved that the instrument should not be made.
6.4The Committee asked the Local Government Boundary Commission for England why the fulfilment of this condition was not recited in the preamble. In a memorandum printed at Appendix 6, the Department accepts that this was an error. The Committee accordingly reports the preamble for failure to comply with proper legislative practice, acknowledged by the Department.
7Draft S.I.: Reported for defective drafting and for unexpected use of powers
Online Pornography (Commercial Basis) Regulations 2018
7.1The Committee draws the special attention of both Houses to these draft Regulations on the grounds that they are defectively drafted and make an unexpected use of the enabling power.
7.2Part 3 of the Digital Economy Act 2017 (“the 2017 Act”) contains provisions designed to prevent persons under the age of 18 from accessing internet sites which contain pornographic material. An age-verification regulator1 is given a number of powers to enforce the requirements of Part 3, including the power to impose substantial fines.2
7.3Section 14(1) is the key requirement. It provides:
“A person contravenes [Part 3 of the Act] if the person makes pornographic material available on the internet to persons in the United Kingdom on a commercial basis other than in a way that secures that, at any given time, the material is not normally accessible by persons under the age of 18”.
7.4The term “commercial basis” is not defined in the Act itself. Instead, section 14(2) confers a power on the Secretary of State to specify in regulations the circumstances in which, for the purposes of Part 3, pornographic material is or is not to be regarded as made available on a commercial basis. These draft regulations would be made in exercise of that power. Regulation 2 provides:
“(1) Pornographic material is to be regarded as made available on the internet to persons in the United Kingdom on a commercial basis for the purposes of Part 3 of the Digital Economy Act 2017 if either paragraph (2) or (3) are met.
(2) This paragraph applies if access to that pornographic material is available only upon payment.
(3) This paragraph applies (subject to paragraph (4)) if the pornographic material is made available free of charge and the person who makes it available receives (or reasonably expects to receive) a payment, reward or other benefit in connection with making it available on the internet.
(4) Subject to paragraph (5), paragraph (3) does not apply in a case where it is reasonable for the age-verification regulator to assume that pornographic material makes up less than one-third of the content of the material made available on or via the internet site or other means (such as an application program) of accessing the internet by means of which the pornographic material is made available.
(5) Paragraph (4) does not apply if the internet site or other means (such as an application program) of accessing the internet (by means of which the pornographic material is made available) is marketed as an internet site or other means of accessing the internet by means of which pornographic material is made available to persons in the United Kingdom.”
7.5The Committee finds these provisions difficult to understand, whether as a matter of simple English or as legal propositions. Paragraphs (4) and (5) are particularly obscure.
7.6As far as the Committee can gather from the Explanatory Memorandum, the policy intention is that a person will be regarded as making pornographic material available on the internet on a commercial basis if:
(A) a charge is made for access to the material; OR
(B) the internet site is accessible free of charge, but the person expects to receive a payment or other commercial benefit, for example through advertising carried on the site.
7.7There is, however, an exception to (B): in cases in which no access charge is made, the person will NOT be regarded as making the pornographic material available on a commercial basis if the material makes up less than one-third of the content on the internet site—even if the person expects to receive a payment or other commercial benefit from the site. But that exception does not apply in a case where the person markets it as a pornographic site, or markets an “app” as a means of accessing pornography on the site.
7.8As the Committee was doubtful whether regulation 2 as drafted is effective to achieve the intended result, it asked the Department for Digital, Culture, Media and Sport a number of questions. These were designed to elicit information about the regulation’s meaning and effect.
7.9The Committee is disappointed with the Department’s memorandum in response, printed at Appendix 7: it fails to address adequately the issues raised by the Committee.
7.10The Committee’s first question asked the Department to explain why paragraph (1) of regulation 2 refers to whether either paragraph (2) or (3) “are met”3 rather than “applies”. The Committee raised this point because paragraphs (2) and (3) each begin with “This paragraph applies if …”. There is therefore a mismatch between paragraph (1) and the subsequent paragraphs, which could make the regulation difficult to interpret. It would be appropriate to conclude paragraph (1) with “is met” only if paragraphs (2) and (3) began with “The condition in this paragraph is met if …”. The Department’s memorandum does not explain this discrepancy. The Committee accordingly reports regulation 2(1) for defective drafting.
7.11The first part of the Committee’s second question sought to probe the intended effect of the words in paragraph (4) of regulation 2 italicised above, and how the Department considers that effect is achieved.
7.12While the Department’s memorandum sets out the policy reasons for setting the one-third threshold, it offers little enlightenment on whether paragraph (4) is effective to achieve the policy aims. Nor does it deal properly with the second part of the Committee’s question, which sought clarification of the concept of “one-third of … material … on … [a] means …. of accessing the internet …”.
7.13The Committee is puzzled by the references in regulation 2(4) to the means of accessing the internet. Section 14(2) of the 2017 Act confers a power on the Secretary of State to specify in regulations circumstances in which pornographic material is or is not to be regarded as made available on the internet on a commercial basis. The means by which the material is accessed (for example, via an application program on a smart phone) appears to be irrelevant to the question of whether it is made available on the internet on a commercial basis. The Committee remains baffled by the concept of “one-third of … material … on [a] means … of accessing the internet”.
7.14More generally, regulation 2(4) fails to specify how the one-third threshold is to be measured and what exactly it applies to. Will the regulator be required to measure one-third of the pictures or one-third of the words on a particular internet site or both together? And will a single webpage on the site count towards the total if less than one-third of the page’s content is pornographic—for example, a sexually explicit picture occupying 32% of the page, with the remaining 68% made up of an article about fishing? The Committee worries that the lack of clarity in regulation 2(4) may afford the promoter of a pornographic website opportunities to circumvent Part 3 of the 2017 Act.
7.15The Committee is particularly concerned that a promoter may make pornographic material available on one or more internet sites containing multiple pages, more than two-thirds of which are non-pornographic. For every 10 pages of pornography, there could be 21 pages about (for example) gardening or football. Provided the sites are not actively marketed as pornographic, they would not be regarded as made available on a commercial basis. This means that Part 3 of the Act would not apply, and the promoter would be free to make profits through advertising carried on the sites, while taking no steps at all to ensure that they were inaccessible to persons under 18.
7.16The Committee anticipates that the shortcomings described above are likely to cause significant difficulty in the application and interpretation of regulation 2(4). The Committee also doubts whether Parliament contemplated, when enacting Part 3 of the 2017 Act, that the power conferred by section 14(2) would be exercised in the way provided for in regulation 2(4). The Committee therefore reports regulation 2(4) for defective drafting and on the ground that it appears to make an unexpected use of the enabling power.
1 The Secretary of State has designated the British Board of Film Classification to be the age-verification regulator.
2 See sections 19 and 20 of the 2017 Act.
3 “are met” should in any event read “is met”.
Published: 23 November 2018