At its meeting on 13 March 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 10 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.
1.1The Committee draws the special attention of both Houses to these Draft Regulations on the grounds that they are defectively drafted in one respect, require elucidation in four related respects and fail to comply with proper legislative practice in one respect.
1.2These Draft Regulations amend retained EU law on food improvement agents to address deficiencies arising as a result of the United Kingdom leaving the European Union.
1.3The Committee asked the Department of Health and Social Care (who forwarded the request to the Food Standards Agency) to explain why the inserted text in regulation 16(b) does not include an obligation to inform the Authority of the receipt of an application for a product to be included in the list of products authorised for smoke flavourings. In a memorandum printed at Appendix 1, the Department accepts the need for a provision of this kind and undertakes to make an appropriate amendment at the next opportunity. The Committee accordingly reports regulation 16(b) for defective drafting, acknowledged by the Department.
1.4The Committee asked the Department to explain why the definitions of “appropriate authority” and “prescribe” are not inserted in to Regulation (EC) No. 1332/2008, Regulation (EC) No. 1333/2008 and Regulation (EC) No. 1334/2008 and why the definitions of “Authority” and “appropriate authority” are not inserted into Regulation (EU) No.234/2011. In its memorandum, the Department explains that there was no need to insert those definitions as they are to be inserted by other draft EU Exit regulations which are yet to be approved by Parliament. The Committee accordingly reports regulations 55 to 153 as requiring elucidation, provided by the Department’s memorandum.
1.5The Committee also asked the Department to explain why inserted paragraph 2 (which is not operative text) in regulations 29, 52, 72, 105 and 132 is not presented as a footnote. In its memorandum, the Department explains that the text used tracks paragraph 20(2) of Schedule 7 to the European Union (Withdrawal) Act 2018 and that guidance from the Statutory Instrument Hub was followed to be consistent across government. It is not within the remit of this Committee to comment on the text of primary legislation. However, in relation to subordinate legislation the Committee has always been clear that it is important to ensure clarity and certainty and there should be a clear presentational distinction between operative and inert material (see the Committee’s First Special Report of Session 2013–14, Excluding the inert from secondary legislation). The Committee accordingly reports regulations 29, 52, 72, 105 and 132 for failure to comply with proper legislative practice.
2.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in three respects, fail to comply with proper legislative practice in one respect, and require elucidation in one respect.
2.2These Regulations amend retained EU law on transmissible spongiform encephalopathies (TSEs) to address deficiencies arising as a result of the United Kingdom leaving the European Union.
2.3Regulation 2(4) amends provisions that require member States to carry out an annual monitoring programme for TSEs, including by replacing an obligation for member States to report annually to the European Commission with an obligation for the Secretary of State, Welsh Ministers, Scottish Ministers and Northern Ireland Department of Agriculture, Environment and Rural Affairs (DAERA) to report annually to their relevant legislature “where possible”. In the Explanatory Memorandum published alongside the Regulations, the Department for Environment, Food and Rural Affairs explains that the words “where possible” have been included because at present Northern Ireland has no Assembly. The Committee was concerned that the phrase was capable of a broader construction than the Department intended, and that an explanation in material extraneous to the Regulations would not be sufficient to limit its meaning. The Committee therefore asked the Department to explain how the phrase is limited to circumstances in which there is no Northern Ireland Assembly.
2.4In a memorandum printed at Appendix 2, the Department acknowledges that the phrase is not so limited in express terms but asserts that it is difficult to conceive of any other plausible case where the appropriate authority would be inherently incapable of complying with the obligation to report. The Committee does not accept that: on its face the exemption would cover situations in which any of the named authorities felt unable for some practical reason to make a report; that is not the policy intention, and the provision is therefore defectively drafted. The Committee notes that other legislation enacted since the collapse of the Northern Ireland Assembly has included an unqualified obligation to lay annual reports or statutory instruments before the Assembly (see for instance the Criminal Finances Act 2017, section 15 (new section 303F); the European Union (Withdrawal) Act 2018, Schedule 7, paragraph 8), doubtless relying on the maxim of statutory interpretation lex non cogit ad impossibilia (the law does not advert to the impossible) to cover the case where there is no Northern Ireland Assembly to which to make the required report. So silence would have been the appropriate technique to cover the case (or, perhaps, the provision of an alternative mechanism for reporting in the absence of the Assembly). The Committee accordingly reports regulation 2(4) for defective drafting.
2.5Regulation 2(40)(b) amends a provision of retained EU law by omitting the second sentence of a paragraph. It struck the Committee as unusual that the amendment removes an obligation about the type of sampling plan required to be used in a slaughterhouse while leaving in place an obligation on member States to inform the Commission of the results of the sampling. Regulation 6(20)(b) also appeared to the Committee to have an unusual result: the apparently meaningless phrase “it was produced at least 21 days before the date of entry into the Union kept in a third country United Kingdom kept in the European Union or a third country outside the European Union or region thereof”. The Committee therefore asked the Department to explain why regulation 2(40)(b) omitted the second sentence of the relevant provision rather than the third, and the meaning of the phrase resulting from the amendment in regulation 6(20)(b). In its memorandum the Department acknowledges that both are errors and undertakes to correct them at the earliest opportunity. The Committee accordingly reports regulations 2(40) and 6(20)(b) for defective drafting, acknowledged by the Department.
2.6Regulation 5(5) inserts into Regulation (EC) No 1069/2009 a new defined term, “appropriate authority”, which means the Secretary of State for England, the Welsh Ministers for Wales, the Scottish Ministers for Scotland, and DAERA for Northern Ireland – or the Secretary of State if consent is given by the other authorities. Commission Regulation (EU) No 142/2011, which is amended by regulation 6, also relies on this definition. Regulations 5 and 6 generally substitute this defined term for inappropriate references to the Commission and member States. Regulation 5(12) and 6(94), however, instead use the terms “devolved authorities” and “devolved authority”, which are not expressly defined. The Committee asked the Department to confirm whether these terms refer to the Welsh Ministers, Scottish Ministers and DAERA, and if so why the defined term “appropriate authority” was not used.
2.7In its memorandum, the Department explains that it relies on section 11 of the Interpretation Act 1978 to extend the definition of “devolved authority” in section 20(1) of the Withdrawal Act to these Regulations, and that this was done to exclude the possibility that “appropriate authority” would be read, in the provisions amended by regulations 5(12) and 6(94), to mean the Secretary of State acting with the consent of the other authorities. Section 11 provides that “where an Act confers power to make subordinate legislation, expressions used in that legislation have, unless the contrary intention appears, the meaning which they bear in the Act”. The Committee acknowledges that it is at least arguable that the effect of section 11 carries through to provisions in regulations under the 2018 Act inserting text into other legislation (subject to any contra-indication in the amended legislation). But it is, at least, confusing for readers who have to notice that the text has been inserted by regulations made under the 2018 Act, and then check the 2018 Act for relevant definitions, and then check the provisions of the amended legislation for contra-indications of section 11. Taken in the round, this is liable to confuse, and open to sufficient risk of definite or possible non-application of section 11 as a result of contra-indication that the Committee considers reliance on section 11 to be inappropriate in this situation as a matter of drafting practice. The Committee accordingly reports regulations 5(12) and 6(94) for failure to comply with proper legislative practice.
2.8The Committee noticed that regulation 6 does not amend the many inappropriate references to the European Union in the model certificates contained in Annex 15 to Commission Regulation (EU) No 142/2011. The Committee therefore asked the Department whether these will be amended by another instrument. In its memorandum, the Department confirms that they are dealt with by regulation 10(10)(c) of the Animals (Legislative Functions) (EU Exit) Regulations 2019. The Committee accordingly reports regulation 6 for requiring elucidation, provided by the Department’s memorandum.
3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in four respects.
3.2These Regulations amend a number of instruments that provide for the treatment and disposal of various kinds of waste in the United Kingdom. The amendments are made under section 8(1) of the European Union (Withdrawal) Act 2018 to correct deficiencies arising from the United Kingdom leaving the European Union. The instruments being amended contain a significant number of cross-references to Directives, which will not be incorporated as retained direct EU legislation by s.3(1) of the Withdrawal Act. Where Directives are incorporated into UK law by reference, however, the kinds of deficiencies anticipated by the Withdrawal Act may arise. This is the case with instruments being amended by these Regulations, and the Department for Environment, Food and Rural Affairs has dealt with the deficiencies by inserting provisions into the affected instruments which modify the way the Directives should be read after exit day.
3.3New regulation 2A, as inserted by regulation 10(3), is an example of such a modifying provision. The Committee asked the Department to explain whether it is intended that this new regulation 2A is both applying the Directive in full and also introducing modifications, and to explain the same in relation to other regulations in this instrument that modify Directives. In a memorandum printed at Appendix 3, the Department explains that the modifying regulations in this instrument are not intended to apply the Directives in full. Provisions of the modified Directives are to apply after exit day only to the extent that other provisions of domestic legislation refer to them in terms which indicate that they apply, and regulation 2A (and other similar regulations) are merely interpretation provisions. The Department provides a helpful elaboration of how, in its view, this applies in relation to new regulation 2A. The Department clarifies that modifications are also made to provisions incorporated by cross-references within Directives. Where provisions are not modified, it is because they are not incorporated by any cross-reference, whether in domestic legislation or in another Directive; they are therefore neither part of domestic legislation nor required to interpret domestic legislation.
3.4The Committee remains concerned that in some cases the Department appears to treat Directive provisions as applying where it is not clear that they do. In regulation 10(3), for example, new regulation 2A(6)(b) modifies Article 6 of Directive 2000/53/EC so that it is read as referring to Articles 23, 24 and 25 of Directive 2008/98/EC. Article 6 is modified because it is incorporated by a cross-reference in regulation 12(1) of the instrument that regulation 10 amends, which provides: “The authorised treatment facilities which comprise all or part of a producer’s system for collection of vehicles shall contain sufficient capacity to treat, in accordance with the requirements of Article 6 and Annex I of the Directive, the number of that producer’s vehicles which are likely to become end-of-life vehicles in 2006 and in each year thereafter.” According to the Department’s memorandum, this reference is taken to mean that Article 6 applies for the purposes of regulation 12(1); it is modified accordingly. Articles 23, 24 and 25 are also modified (by new regulation 2B) because they are incorporated by the cross-reference in Article 6.
3.5It remains unclear to the Committee, however, whether these Articles are intended to apply only to the extent that they impose obligations on the authorised treatment facilities to which regulation 12(1) refers, or whether they are also intended to apply in relation to UK authorities. If the former, it is not clear to the Committee why it is necessary to omit provisions that empower the Commission to legislate (the modification made by new regulation 2A(6)(c)) or require Member States to inform the Commission of rules laid down under Article 25 (the modification made by new regulation 2B(8)). If the latter, the Committee is not persuaded that modifying a cross-reference in a Directive is sufficient to make Articles 23, 24 and 25 apply to the extent that they impose obligations on UK authorities to issue permits, restrict their ability to apply exemptions from those permit requirements, or lay down general rules in relation to such exemptions. The Committee understands the Department’s policy intention, but given that such ambiguity remains, it does not consider that the modifications made by these Regulations have achieved that policy intention with sufficient clarity. The Committee accordingly reports regulation 10(3) for defective drafting, and notes that other regulations in this instrument that modify provisions of Directives may contain similar defects.
3.6The Committee asked the Department to clarify the reference to “except for regulation 2A” in regulation 13(3); confirm that it was not necessary to include both paragraphs (2)(b) and (2)(c) in regulation 14; and explain what “the technical standards” and “the parts that have been applied to” refer to in regulation 18(25), new paragraph 26(c)(vi). In its memorandum, the Department acknowledges that these were all errors and undertakes to correct them at the first available opportunity. The Committee accordingly reports regulations 13(3), 14(2) and 18(25) for defective drafting, acknowledged by the Department.
3.7The Department’s memorandum also helpfully explains why different regulations in this instrument modify the same Directive in different ways.
4.1The Committee draws the special attention of both Houses to this instrument on the ground that there is doubt whether it is intra vires in one respect.
4.2These Regulations amend the Education (Student Loans) (Repayment) Regulations 2009 (SI 2009/470) to facilitate, from April 2019, more frequent sharing of student loan repayment data between Her Majesty’s Revenue and Customs (HMRC) and the Student Loans Company (SLC). Currently, where student loan repayments are made via deductions by the employer, SLC receives repayment data from HMRC at the end of the tax year. This can lead to a long delay between full repayment of the loan and the employer being instructed to stop deductions, resulting in substantial over-repayment. Operational IT improvements will allow repayment data to be shared more frequently. To reflect this change in practice, the amendment made by regulation 3(b) allows SLC to consider a payment received either on the day it was deducted or, where it is necessary to take account of any adjustment to the deduction, on “such other day as HMRC specifies”. It appeared to the Committee that this could be construed as conferring a discretionary function on HMRC, without a clear express sub-delegation in the enabling Act. The Committee therefore asked the Department for Education to identify the power for the sub-delegation to HMRC in regulation 3(b).
4.3In a memorandum printed at Appendix 4, the Department explains that this provision is not intended to sub-delegate any power to HMRC. Where an adjustment can be backdated to the date of the original deduction, this is the date that HMRC will specify. In exceptional cases this will not be possible, and HMRC will be required to specify a date that should be treated as the date of the deduction; it will do so based on the factual circumstances in each case, and not in the exercise of any discretion. The Department acknowledges, however, that regulation 3(b) could be read as conferring a discretion and undertakes to correct it at the first available opportunity. The Committee is grateful for the explanation and the undertaking, and accordingly reports regulation 3(b) for doubt as to whether it is intra vires.
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
5.2This instrument amends retained EU law on plant breeders’ rights to address deficiencies arising as a result of the United Kingdom leaving the European Union. It revokes Regulation (EC) 2100/94, the principal EU Regulation that creates the framework for protection of Community plant variety rights (CVPR) across the European Union, and provides instead for a separate UK framework to come into effect after exit day. Under Article 95 of the principal EU Regulation, a person who applies for and is granted a CPVR is able to require reasonable compensation from anyone who infringes that CPVR between the date the application is published and the date of the grant. An equivalent protection applies under the UK scheme, which is set out in the Plant Varieties Act 1997. Under regulation 9 of this instrument, where a CPVR application is still outstanding on exit day, it is treated as an “unresolved application”. A person with an unresolved application may apply for UK plant breeders’ rights for a limited time using the special procedure set out in regulations 10 to 14, rather than the procedures in the 1997 Act. The application for UK plant breeders’ rights will be treated, under regulation 11, as having been made on the date the CPVR application was filed. But regulation 13 provides that the applicant’s right to compensation is for infringing acts that occur after exit day, not the date the CPVR application was published.
5.3The Committee asked the Department for Environment, Food and Rural Affairs to confirm whether a person will be able, in such circumstances, to exercise the right to compensation for infringing acts that occurred between the date of the CPVR application and exit day, as currently provided under Article 95. In a memorandum printed at Appendix 5, the Department confirms that this right is preserved by section 4 of the European Union (Withdrawal) Act 2018. The Committee accordingly reports regulation 13 as requiring elucidation, provided by the Department’s memorandum.
6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in two related respects.
6.2These Regulations amend retained EU legislation relating to direct payments to farmers under agricultural support schemes within the Common Agricultural Policy to address deficiencies arising as a result of the United Kingdom leaving the European Union.
6.3The Committee asked the Department for Environment, Food and Rural Affairs to explain what is intended by the phrase “relevant authority” (inserted in to EU Regulations 639/2014 and 641/2014). In a memorandum printed at Appendix 6, the Department explains that the definitions in Regulation 1307/2013 flow through to Regulations 639/2014 and 641/2014 and that Regulation 1307/2013 was amended by the Common Agricultural Policy (Direct payments to Farmers) (Amendment) (EU Exit) Regulations 2019 to insert a definition of “relevant authority”. The Committee accordingly reports Parts 2 and 3 of these Regulations as requiring elucidation, provided by the Department’s memorandum.
7.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
7.2These Regulations amend European Union derived legislation relating to seed and plant propagating material in Northern Ireland to address deficiencies arising as a result of the United Kingdom leaving the European Union.
7.3The Committee asked the Department for Environment, Food and Rural Affairs to explain what the wording “a temporary experiment seeking improved alternatives to provisions of these Regulations” (in regulation 45 (substituted regulation 22)) means. In a memorandum printed at Appendix 7, the Department explains “temporary experiment” but does not address the meaning of the rest of the phrase. The Committee remains unclear how an experiment itself can improve legislation and which provisions of the Seed Marketing Regulations (Northern Ireland) 2016 the temporary experiments would be seeking to improve. The Committee accordingly reports regulation 45 for defective drafting.
8.1The Committee draws the special attention of both Houses to these six sets of Regulations on the ground that there appears to have been unjustifiable delay in laying them before Parliament.
8.2These instruments are made under powers in the European Union (Withdrawal) Act 2018 to deal with aspects of law that would no longer work after the United Kingdom leaves the European Union.
8.3There were delays ranging between 11 and 33 days between the making and laying before Parliament of these instruments. The Committee asked the Department for Environment. Food and Rural Affairs to explain. In a memorandum printed at Appendix 8, the Department apologises for the delay and cites the making of an extremely high number of instruments during the period and depleted staff resources as reasons for the delay. The Committee repeats what it said in its First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation (at paragraphs 2.8 to 2.13): there is no reasonable excuse for delay in such a simple administrative step as laying before Parliament. The statutory arrangements for laying before Parliament remain part of the required formal measures by which publicity is assured. The Committee considers that, as a general rule and in the absence of exceptional circumstances, a delay of 10 calendar days or more will amount to an unjustifiable delay. The Committee accordingly reports these Regulations for unjustifiable delay in laying before Parliament.
Published: 15 March 2019