Fifty-fourth Report of Session 2017-19 Contents

Instruments reported

At its meeting on 27 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 three 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. 2019/183: Reported for defective drafting

Scotland Act 1998 (Specification of Functions and Transfer of Property etc.) Order 2019

1.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in three related respects.

1.2This Order forms part of a programme of work to complete the devolution of forestry to Scotland. It provides for the transfer of certain rights, interests and liabilities held by the Forestry Commissioners to the Scottish Ministers. Article 4(3)(a) makes provision about the rights and liabilities to which the Order applies but does not make equivalent provision for “interests” (which are mentioned separately in article 4(1)(a)). The Committee asked the Scotland Office to explain the omission. In a memorandum printed at Appendix 1, the Department acknowledges that article 4(3)(a) should have referred to “interests” for consistency with article 4(1)(a). (The Department believes that the provisions will work in practice as drafted, in particular because interests are not expected to arise after the transfer or in connection with employment contracts, but undertakes to monitor the situation.) The Committee accordingly reports regulation 4 for defective drafting, acknowledged by the Department.

2S.I. 2019/334: Reported for defective drafting

National Health Service (Clinical Negligence Scheme for General Practice) Regulations 2019

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two respects.

2.2These Regulations set up an indemnity scheme for general practice which provides cover for future clinical negligence liabilities in respect of activities carried out for the purposes of the National Health Service in England.

2.3Regulation 7 specifies matters to which the Secretary of State must have regard in determining the amount of payments to be made under the scheme. Regulation 7(7) covers the situation where a claim is determined other than by a court; for example, by arbitration. The Committee asked the Department of Health and Social Care to explain why “person or body” is used in regulation 7(7) given that the Interpretation Act 1978 defines “person” as including a body of persons corporate or unincorporate. In a memorandum printed at Appendix 2, the Department acknowledges that the reference to “body” is an error and undertakes to rectify the error at the next available opportunity. The Committee refers to its Thirty-ninth Report of Session 2017–19 (in relation to S.I. 2018/1093) and reiterates its concern 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 casts doubt on the scope of references to “person” alone. The Committee accordingly reports regulation 7(7) for defective drafting, acknowledged by the Department.

2.4Regulation 7(7)(b) states that in determining the amount of any payment the Secretary of State must have regard to any legal or associated costs incurred by the claimant in connection with the claim. The Committee asked the Department whether paragraph (b) should refer only to the eligible person’s contribution to those costs. In its memorandum, the Department accepts that it could have referred to any contribution payable by the eligible person towards the claimant’s costs but considers that the regulation can be made to operate as intended. The Committee believes that the intention could and should have been expressed precisely and accordingly reports regulation 7(7)(b) for defective drafting.

3S.I. 2019/345: Reported for defective drafting and for failure to comply with proper legislative practice

Railways (Interoperability) (Amendment) (EU Exit) Regulations 2019

3.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in three specific respects and generally in relation to the number of minor errors, and that they fail to comply with proper legislative practice in one respect.

3.2This instrument corrects deficiencies in retained EU law relating to the interoperability of the European rail system arising from Brexit. They provide, inter alia, for amendments to ensure that the current regulatory framework remains operable in UK law and for systems and components assessed against EU standards to be unilaterally recognised in the United Kingdom in some circumstances.

3.3New Schedules inserted by this instrument into the Railways (Interoperability) Regulations 2011 (SI 2011/3066) transpose into domestic legislation Annexes of Directive 2008/57/EC (safety standards, interoperability requirements, verification procedures, and similar matters relating to rail projects). The Committee noticed that some of the new Schedules appear to impose obligations in ways not usually seen in UK legislation.

3.4In new Schedule 2 (inserted by Schedule 1), while most obligations are imposed with the usual “must”, the ninth indent of paragraph 2.4.1 provides that an emergency lighting system having a sufficient intensity and duration “is an absolute requirement on board trains”. The Committee asked the Department for Transport to explain whether the latter obligation is intended to have a different meaning from the others. In a memorandum printed at Appendix 3, the Department confirms that it is not and undertakes to correct it. The Committee accordingly reports paragraph 2.4.1 of new Schedule 2 for defective drafting, acknowledged by the Department.

3.5In contrast, a number of provisions in new Schedules 4, 7 and 8 (inserted by Schedules 3, 6 and 7) are expressed as mere declaratives, as in “the designated body draws up the UK certificate of verification” or “the assessment procedures…will draw upon the modules defined in the NTSN” or “the staff of the body are bound by professional secrecy”. It was not clear to the Committee whether these declarative sentences were intended to be obligations at all – and if so, how such obligations were imposed. It therefore asked the Department to explain its intentions in relation to a number of provisions drafted in this declarative style.

3.6In its memorandum, the Department explains that it intends the wording in each of these provisions to impose obligations on the relevant bodies. It notes that the regulations which introduce the Schedules in question require things to be done “in accordance with” a Schedule, or state that a Schedule “applies to” a body, or provide for what should happen if a body “is not meeting the criteria specified in” a Schedule. The Department asserts that the provisions in the Schedules should be understood to be substantive requirements on the basis of such introductory words. The Committee does not accept this argument. It appears to the Committee that using declarative sentences to impose legal obligations blurs the line between operative and inoperative provisions in a way that is likely to confuse, and that such confusion is not mitigated by the fact that the Schedule as a whole is expressed to apply or is required to be complied with. The Committee also reiterates that as a matter of normal usage, “will” is a word of prediction and not obligation (as noted in its First Special Report of Session 2013–14). The Department acknowledges that the drafting of the relevant provisions could be improved and undertakes to correct them. The Committee accordingly reports paragraphs 2.3.1, 2.3.2 and 3.2 of new Schedule 4 (inserted by Schedule 3), paragraph 2 of new Schedule 7 (inserted by Schedule 6) and paragraph 7 of new Schedule 8 (inserted by Schedule 7) for defective drafting, acknowledged by the Department.

3.7The Committee noticed that the numbering of some of the paragraphs in the new Schedules also departs from normal UK drafting practice in cases where sub-paragraphs have not been assigned a unique number (see for instance paragraphs 2.1.1, 2.4.1 and 2.4.3 of new Schedule 2, inserted by Schedule 1). The Committee asked the Department to explain why this had been done. In its memorandum, the Department explains that it chose to copy out the provisions of the Directive and to change them as little as possible —as to both substance and numbering—“to assist stakeholders in understanding how the processes and procedures will still be broadly similar and continue to work after exit day in a comparable way, and to keep, as far as possible, the current processes and procedures in place”. The Committee is not persuaded by this reasoning. It reiterates the comments made by the Statutory Instruments Committee in its Eleventh Report of Session 2017–19: The Committee expects, both in relation to retained EU law and more generally, that new domestic legislation will comply with best practice in relation to UK legislative drafting, and be clear and justiciable. Relying on copy-out to justify the inclusion in UK legislation of provisions that do not conform to domestic legislative drafting practice or meet required standards of clarity will not be acceptable after exit day, even in relation to legislation that originally derives from EU law. In this case, the Committee does not accept that renumbering the relevant provisions would prevent stakeholders from recognising that the substance of the new UK scheme remains broadly similar to the current EU scheme. The Committee accordingly reports paragraphs 2.1.1, 2.4.1, 2.4.3 of new Schedule 2 (inserted by Schedule 1), paragraph 1 of new Schedule 5 (inserted by Schedule 4), and the other paragraphs in the new Schedules the provisions of which are not individually numbered, for failing to comply with proper legislative practice.

3.8Paragraph 2.4(c)(iii) of new Schedule 4 refers to “the certificate of verification…signed by the EU notified body responsible for the UK verification”. The Committee was surprised that there might be circumstances when a body appointed by an EU member State would be “responsible for” UK verification procedures and asked the Department to clarify the circumstances in which this might arise. In its memorandum, the Department acknowledges that this is an error and undertakes to correct it. The Committee accordingly reports paragraph 2.4(c)(iii) of new Schedule 4 for defective drafting, acknowledged by the Department.

3.9The Committee also asked the Department to explain the reason for the large number of apparent drafting errors contained in this instrument. In its memorandum, the Department apologises for these errors and undertakes to correct them as soon as reasonably practicable. The Committee accordingly reports the Regulations for defective drafting due to the prevalence of minor drafting errors, acknowledged by the Department.

3.10As to the Department’s intention to consider whether the error in paragraph 2.4(c)(iii) of Schedule 4 and any of the minor drafting errors mentioned above may be suitable for amendment by correction slip, the Committee’s view is that the former is not and the latter should be decided having regard to the Committee’s First Special Report of Session 2017–19.

3.11The Department’s memorandum also helpfully clarifies that where an interoperability constituent in relation to which an EU declaration of conformity has been made no longer meets the essential requirements relevant to its type (as required by new regulation 23(1)(a) (inserted by regulation 27)), it will no longer be possible to rely on the EU declaration.





Published: 27 March 2019