Instruments reported
At its meeting on 20 February 2019 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 one of those considered. The Instrument and the grounds for reporting it are given below. The relevant Departmental memorandum, is published as an appendix to this report.
1S.I. 2019/38: Reported for defective drafting
Credit Institutions and Insurance Undertakings Reorganisation and Winding Up (Amendment) (EU Exit) Regulations 2019
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one related respect.
1.2Regulation 1(2) states that regulations 1 and 3(2)(b) come into force on [ date ]. The remainder of the instrument comes into force on exit day. The Committee asked the Treasury how this error was allowed to occur and what it proposes to do to rectify the error.
1.3In a memorandum printed as an Appendix, the Treasury states that the error was due to an oversight in its checking process and apologises for the error. It further states that, as a result of the error, regulation 3(2)(b) came into force on the day the instrument was made, and the error will be corrected in a further instrument by amending regulation 1(2) by replacing “on [date]” with “when these Regulations are made”.
1.4The Committee does not share the Treasury’s understanding of the legal effect of the error. Although it is a general principle that, in the absence of a clear intention otherwise, an enactment comes into force when made, in this instance the inclusion of regulation 1(2) does indicate an intention that regulation 3(2)(b) should come into force on a different (currently unknown) date. The correct approach would therefore be for the amending instrument to amend regulation 1(2) by substituting a calendar date. Furthermore, the Treasury’s suggested amendment would amount to applying regulation 3(2)(b) retrospectively from the time when the amending instrument came into force.
1.5The Committee accordingly reports regulation 1(2) for defective drafting, acknowledged by the Treasury.
Published: 22 February 2019