Instruments reported
At its meeting on 28 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 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.
1Draft Guidance: Reported for unexpected use of powers
Draft Guidance on Age Verification Arrangements; Draft Guidance on Ancillary Service Providers
1.1The Committee draws the special attention of both Houses to these two draft instruments on the ground that, if approved and published, they would appear to constitute an unexpected exercise of the duty imposed on the age-verification regulator to publish guidance.
1.2Part 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 (“the regulator”) is given broad powers to enforce the requirements of Part 3, including the power to impose substantial fines.2
1.3Section 14(1) is a key requirement. It provides:
“A person contravenes [Part 3 of the 2017 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”.
1.4Where the regulator considers that section 14(1) is being contravened, it may give notice under section 21(1) to any “ancillary service provider” which is defined in section 21(5) to mean (in broad terms) internet service providers or persons who advertise on the internet sites operated by the non-compliant person.
1.5Section 25(1) requires the regulator to publish, and revise from time-to-time:
a) guidance about the types of arrangements for making pornographic material available on the internet that the regulator will treat as complying with section 14(1) (“the age-verification guidance”); and
b) guidance for the purposes of section 21(1) and (5) about the circumstances in which the regulator will treat services provided in the course of a business as enabling or facilitating the making available of pornographic material or extreme pornographic material (“the ancillary services guidance”).
1.6The regulator must submit its proposed guidance to the Secretary of State, who is then required to lay it in draft before both Houses of Parliament.3 The Secretary of State has no power to modify the age-verification guidance, but he may make modifications to the ancillary services guidance before it is laid in draft.
1.7These two draft instruments are the first age-verification guidance and the first ancillary services guidance laid under section 25 of the 2017 Act.4
1.8The Committee was surprised to find that the instruments appear to contain little, if any, guidance of the type required by section 25(1)(a) and (b), as well as seemingly irrelevant material about (for example) data protection and the regulator’s policy on enforcement of its powers. The Committee therefore asked the Department for Digital, Culture, Media and Sport (i) to identify the paragraphs in the two instruments which provide the guidance required by section 25 of the 2017 Act, and (ii) to explain the inclusion of apparently extraneous material.
1.9The Department’s memoranda in response are printed at Appendices 1 and 2.
Age verification guidance required by section 25(1)(a)
1.10The memorandum identifies paragraphs 5 and 6 in Part 3 of the age-verification guidance as providing the guidance required by section 25(1)(a). Paragraph 5 sets out “the criteria against which [the regulator] will assess that an age-verification arrangement meets the requirement under section 14(1) to secure that pornographic material is not normally accessible by those under 18”. Four such criteria are specified, including “[whether there is] an effective control mechanism at the point of registration or access to pornographic content by the end-user which verifies that the user is aged 18 or over at the point of registration or access”.
1.11Paragraph 6 sets out four features which the regulator will not consider, in isolation, to comply with the section 14(1) requirement, including “relying solely on the user to confirm their age with no cross-checking of information, for example by using a ‘tick box’ system or requiring the user to only input their date of birth”.
1.12The memorandum goes on to refer to section 27 of the 2017 Act which allows the Secretary of State to give guidance to the regulator about whether arrangements comply with section 14(1) and about the preparation and publication of guidance by the regulator. Section 27(3) requires the regulator to have regard to the Secretary of State’s guidance.
1.13The guidance given by the Secretary of State to the regulator under section 275 includes the following paragraph:
“The Secretary of State considers that, rather than setting out a closed list of age-verification arrangements, the regulator’s guidance should specify the criteria by which it will assess, in any given case, that a person has met with this requirement. The regulator’s guidance should also outline good practice in relation to age verification to encourage consumer choice and the use of mechanisms which confirm age, rather than identity.”
1.14The memorandum explains the Department’s reasoning:
“It is important that the [regulator’s] guidance does not lock in a set of arrangements which would prevent innovation and development in the fast-moving age-verification industry. This is an area where the regulator needs flexibility and the ability to respond nimbly to advances.
Our view is that the [regulator’s] draft guidance on age verification arrangements fulfils the requirements of the Act and shows regard to this guidance from the Secretary of State in respect to these points.”
1.15Section 25(1)(a) requires the regulator to publish guidance about the types of arrangements for making pornographic material available [on the internet] that the regulator will treat as complying with section 14(1). In the Committee’s view, the regulator does not comply with that requirement by publishing guidance which simply provides a non-exhaustive6 list of criteria that will be applied by the regulator in assessing age-verification arrangements. The draft guidance laid before Parliament reads more like a statement of the regulator’s policy rather than statutory guidance. It fails to provide clarity to persons operating internet sites as to what arrangements the regulator will regard as compliant with section 14(1), and it does not allow Parliament properly to scrutinise whether the regulator’s assessment is appropriate.
1.16The Department argues that the regulator, through its guidance, should not be locked into a set of arrangements that would prevent innovation and development, and that the regulator needs flexibility to respond to advances. The Committee considers, however, that if the regulator were to find that guidance already published had become out-of-date, it should prepare revised guidance and submit it (via the Secretary of State) for Parliamentary scrutiny under section 25.
1.17The guidance given to the regulator by the Secretary of State under section 27, which the regulator appears to have followed faithfully, does not fall within the Committee’s scrutiny remit. Nonetheless the Committee questions whether the paragraph in that guidance quoted above properly reflects the duty imposed on the regulator by section 25(1)(a). While the regulator must have regard to the Secretary of State’s guidance when preparing the age verification guidance, the regulator is not required to follow section 27 guidance which is incorrect.
Age verification guidance: extraneous material
1.18The Committee questioned the inclusion in the draft guidance of:
- Part 2 which sets out the regulator’s proposed approach to the exercise of its enforcement powers under Part 3 of the 2017 Act;
- Part 4 which concerns the protection of the personal data of adults using pornographic sites; and
- paragraph 11 of Part 3 and Annex 5 which refer to a voluntary, non-statutory scheme to be established by the regulator under which age-verification providers may be independently audited by a third party and then certified by the regulator.
1.19The Department’s memorandum explains that Part 2 is included because the regulator considered it important that its guidance “set out the wider context in which it will carry out regulation of this policy”. Part 4, paragraph 11 of Part 3 and Annex 5 are justified essentially on the basis that they reflect the guidance given by the Secretary of State to the regulator under section 27 of the 2017 Act.
1.20In the Committee’s view, the inclusion of this material in the age-verification guidance is wholly inappropriate. Section 25(1)(a) requires the regulator to prepare guidance only about the types of arrangements for making pornographic material available on the internet that the regulator will treat as complying with section 14(1). This is then subject to Parliamentary scrutiny before it may be published. It is wrong in principle to invite Parliament to give approval to the regulator’s enforcement policy, data protection arrangements or proposed non-statutory certification scheme with a view to bestowing on this material the status of statutory guidance endorsed by Parliament.
Ancillary services guidance
1.21The Committee considers that the ancillary services guidance is defective for similar reasons.
1.22The Department identifies paragraphs 3 and 4 of Part 3 as providing the guidance required by section 25(1)(b) of the 2017 Act. Paragraph 3 contains a non-exhaustive list of the classes of ancillary service provider that the regulator may consider under section 21(5), for example search engines which facilitate access to internet sites with inadequate age-verification arrangements. Paragraph 4 of the guidance asserts that it “is not possible to provide an exhaustive list of the various ancillary providers that the [regulator] may consider under section 25. Individual cases may give rise to new classes of ancillary service provider”.
1.23Section 25(1)(b) requires the regulator to publish guidance about the circumstances in which the regulator will treat services “provided in the course of a business as enabling or facilitating the making available of pornographic material or extreme pornographic material”. In the view of the Committee, that requirement is not fulfilled by publishing a non-exhaustive list of classes of provider which the regulator may consider to be ancillary service providers.
1.24The memorandum explains that the regulator’s approach is consistent with the guidance issued by the Secretary of State under section 27 of the 2017 Act. However, the Committee is very doubtful whether that section 27 guidance correctly reflects section 25(1)(b).
1.25The memorandum justifies the inclusion of Part 3 of the guidance, which deals with the regulator’s approach to its enforcement powers, on the basis that it provides “essential wider context about how the regulator will use [its] powers”. For the same reasons that are given above regarding extraneous material in the age-verification guidance, the Committee considers it inappropriate to include in the ancillary services guidance information about the regulator’s policy on enforcement.
1.26The Committee accordingly draws the special attention of both Houses to these two draft instruments on the grounds that they appear to constitute an unexpected exercise of the duty imposed on the age-verification regulator to publish guidance. This is because: (i) they fail to contain the guidance required by section 25(1) of the 2017 Act; and (ii) they contain material that should not have been included.
2S.I. 2018/1084: Reported for requiring elucidation
Social Security (Updating of EU References) Amendment) Regulations 2018
2.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in one respect.
2.2These Regulations update cross-references to EU legislation in social security legislation in advance of exit day, and make certain references ambulatory (i.e. inclusive of future amendments). The Committee asked the Department for Work and Pensions to explain the purpose of making references to the listed enactments ambulatory, given that retained EU law will not be ambulatory. In a memorandum printed at Appendix 2, the Department explains that “in the event that the Withdrawal Agreement is ratified and there is an implementation period, the ambulatory references will also ensure that any changes to EU law are reflected within the domestic framework without the need for further amendment”. It adds that it “has in some instances not updated references to directly applicable EU law in its domestic legislation (although the EU law itself has been applied correctly and references in domestic legislation interpreted to give effect to EU law) and making the references ambulatory will reduce the risk of this happening in future. It will also limit the number of further amending instruments that may be required. The Committee is grateful for this explanation of the approach being taken in this (and presumably other) instruments to preparation both for the application of the concept of retained EU law and for the implementation of any withdrawal agreement; and it accordingly reports the Regulations as requiring elucidation, provided by the Department’s memorandum.
3S.I. 2018/1090: Reported for requiring elucidation
Chemical Weapons (Asset-Freezing) and Miscellaneous Amendments Regulations 2018
3.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in one respect.
3.2These Regulations make provision relating to the enforcement of Council Regulation (EU) 2018/1542 of 15th October 2018 concerning restrictive measures against the proliferation and use of chemical weapons. The measures include the freezing of funds. Regulation 8 deals with credits to a frozen account; paragraph (3) says: “A relevant institution must inform the Treasury without delay if it credits a frozen account in accordance with paragraph (1)(b) or (c) or paragraph (2)”. The Committee asked HM Treasury to identify the sanction applicable to a contravention of regulation 8(3). In a memorandum printed at Appendix 3, the Department explains that “There is no criminal sanction in relation to this obligation in the relevant S.I. However, there is the availability of a sanction in the Policing and Crime Act 2017, section 146. That section enables the Treasury to impose a monetary penalty in cases where it is satisfied that, on the balance of probability, a person has breached a requirement or prohibition of any ‘financial sanctions legislation’. This statutory instrument falls within the meaning of that term in section 143(4)(b).” The Committee agrees that this provides an appropriate enforcement mechanism and accordingly reports Regulation 8 for requiring elucidation, provided by the Department’s memorandum.
4S.I. 2018/1093: Reported for defective drafting
Electricity (Guarantees of Origin of Electricity Produced from Renewable Energy Sources) (Amendment) (EU Exit) Regulations 2018
4.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in one (repeated) respect.
4.2These Regulations are made in exercise of the powers conferred by section 8(1) of the European Union (Withdrawal) Act 2018; they amend the Electricity (Guarantees of Origin of Electricity Produced from Renewable Energy Sources) Regulations 2003 and the Electricity (Guarantees of Origin of Electricity Produced from Renewable Energy Sources) Regulations (Northern Ireland) 2003. The Regulations make changes to reflect the fact that the United Kingdom will not be a member State of the EU.
4.3In paragraph 2(2)(b) of each Schedule the Regulations provide a definition including the expression “body or person”. The Committee asked the Department for Business, Energy and Industrial Strategy what that expression achieves that would not be achieved by “person” alone. In a memorandum printed at Appendix 4, the Department: “acknowledges there is an overlap between “body” and “person”” but asserts that ““body” is not a complete subset of “person””; it adds that “there are numerous instances in the statute book of “person” and “body” being used as alternatives” and gives examples, including the assertion that “a government department is a “body” but not a “person””.
4.4The Committee agrees that legislative references to “person or body” have proliferated in recent years and is taking this opportunity to draw attention to the dangers of this practice. The Interpretation Act 1978 provides in Schedule 1 that ““person” includes a body of persons corporate or unincorporated”. It is unarguable that this includes government departments (which indeed do not have legal personality, but if they are caught by the word “body” must be unincorporated bodies of persons and therefore within the definition of “person”) as well as everything else that the Department wants to include. The Committee is concerned that while some legislation uses “person” alone and presumably relies on the 1978 Act, other legislation chooses to use both words, which is unnecessary (and therefore confusing) and casts doubt on the scope of references elsewhere to “person” alone. The Committee therefore invites the Government to consider on a Government-wide basis its practice in relation to reliance on the Interpretation Act 1978’s definition of “person”, and to publish and apply a consistent practice throughout all legislation. In the meantime, the Committee believes that the expression “body or person” here is unnecessary, and it accordingly reports Schedules 1 and 2 on the grounds of defective drafting.
5S.I. 2018/1094: Reported for requiring elucidation
Special Fissile Materials (Right of Use and Consumption) (EU Exit) Regulations 2018
5.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in one respect.
5.2These Regulations are made under section 8(1) of the European Union (Withdrawal) Act 2018. Article 87 of the Euratom Treaty confers an unlimited right of use and consumption over special fissile materials (plutonium and enriched uranium) owned collectively by the Euratom Community in accordance with Article 86 of the Treaty on the lawful holders of those materials, subject to obligations to comply with Treaty provisions. Regulation 2 ends any right, and any obligation associated with any right, under Article 87 of the Treaty which would otherwise be preserved under the 2018 Act, as the collective ownership of special fissile materials under Article 86 will cease to be effective on the date the UK withdraws from the Treaty and the related right of use and consumption under Article 87 will become redundant. Regulation 2 says: “any rights, powers, liabilities, obligations, restrictions, remedies and procedures which—(a) continue by virtue of section 4(1) of the European Union (Withdrawal) Act 2018; and (b) are derived from Article 87 (right of use and consumption) of the Euratom Treaty, cease to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly)”.
5.3The Committee asked the Department for Business, Energy Industrial Strategy: whether the words “and to be enforced” in regulation 2 are intended to prevent the enforcement after exit day of rights and liabilities accrued and incurred before that day; whether it is assumed that section 16 of the Interpretation Act 1978 (which preserves accrued rights and liabilities, and allows them to be enforced, on and after repeal or expiry of enactments) applies in this situation; and if it does, whether the words “and to be enforced” are intended as a contra-indication of that section.
5.4In a memorandum printed at Appendix 5, the Department confirms that the words “and to be enforced” in regulation 2 are indeed intended to prevent the enforcement after exit day of rights and liabilities, even if accrued and incurred before that day”, and asserts that section 16(1)(c) of the Interpretation Act 1978 does not apply.
5.5The Committee notes the Department’s assumptions as to the effect of disapplying the 2018 Act’s post-Brexit continuation effect in relation to a specific piece of retained EU law, believes that it will be helpful for readers of legislation to see those assumptions, and hopes that the Government will adopt a consistent approach in this respect across all instruments under the 2018 Act. The Committee accordingly reports regulation 2 as requiring elucidation, provided by the Department’s memorandum.
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 See sections 25(3) and (6) of the 2017 Act.
4 The affirmative procedure applies to the first guidance which means that it not be published until it has been approved in draft by each House (see section 25(10) and (11) of the 2017 Act). The negative procedure applies to subsequent guidance: the regulator must publish it 40 days after it is laid unless either House resolved during that period not to approve the draft (see section 25(7) and (8)).
5 While the Secretary of State’s guidance must be laid before Parliament, it is not subject to any Parliamentary scrutiny.
6 Paragraph 4 in Part 3 of the age-verification guidance says “As envisaged in the Secretary of State’s guidance to the regulator, this guidance does not provide an exhaustive list of approve age-verification solutions, but sets out the criteria by which the [regulator] will assess that a person has met the requirements of section 14(1) …”.
Published: 30 November 2018