Instruments reported
At its meeting on 24 April 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 five 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. 2019/411: Reported for defective drafting
Democratic People’s Republic of Korea (Sanctions) (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 two related respects.
1.2These Regulations recreate an effective sanctions regime in relation to the Democratic People’s Republic of Korea after the United Kingdom has left the European Union. The Committee asked the Foreign and Commonwealth Office to explain the penalty for the offence referred to in regulation 78(2) and to clarify what offence in regulation 77 is being referred to in regulation 110(1). In a memorandum printed at Appendix 1, the Department explains that the cross-reference in regulation 110(1) to regulation 77 is erroneous and should instead refer to regulation 78. This error means that the Regulations do not specify a penalty for the offence referred to in regulation 78(2) and the Department undertakes to correct the error with an amending instrument. Since the Committee raised the question, the Department has corrected the error (in the Sanctions (EU Exit) (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/843)). The Committee accordingly reports regulation 110 for defective drafting, which has since been corrected by the Department.
2S.I. 2019/452: Reported for defective drafting and for requiring elucidation
Aquatic Animal Health and Alien Species in Aquaculture (Amendment) (England and Wales) (EU Exit) Regulations 2019
2.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in two respects and require elucidation in one respect.
2.2This instrument amends the Aquatic Animal Health (England and Wales) Regulations 2009 to correct deficiencies arising from Brexit. Regulation 2(8) and the Schedule to this instrument insert new interpretation provisions that relate to regulation 24 of the 2009 Regulations. Regulation 24 provides that areas where aquatic animals are suspected to have contracted listed diseases, or where this is a risk, must be designated by the competent authority to prevent the spread of those diseases. After the competent authority has made a designation, regulation 24(2) requires it to, inter alia, carry out an epizootic investigation in accordance with Article 29 of Directive 2006/88/EC (“the Directive”). Applying the reasoning in an earlier memorandum from the Department for Environment, Food and Rural Affairs (see Appendix 3 to the Committee’s 52nd report of Session 2017–19), Article 29 applies for the purposes of Regulation 24 as a result of this cross-reference in regulation 24(2). The effect is that the obligations imposed by Article 29 as to when an epizootic investigation should be carried out, what it should aim to determine, etc., will continue to apply to the United Kingdom even when the Directive itself no longer forms part of UK law. The interpretation provisions inserted by regulation 2(8) and the Schedule to this instrument are therefore needed to modify Article 29 so that it will make sense in a UK context after exit day.
2.3Article 29 cross-refers to two further Articles of the Directive, 26 and 28, which are also modified by the interpretation provisions. Referring again to the Department’s earlier memorandum, such modifications are made when a Directive provision is linked, either by cross-reference or because it contains relevant definitions, to another Directive provision that applies in domestic law. Article 29(2)(b) provides that one of the aims of an epizootic investigation is to determine whether aquaculture animals have left the farm during a specified period before a notification provided for in Article 26(1). Article 26(1) requires member States to ensure that the competent authority is notified immediately when it is suspected or known that aquatic animals have contracted a listed disease, or when they are dying in larger numbers than usual. The interpretation provisions in this instrument modify Article 26(1) so that the reference to member States is read as a reference to the United Kingdom.
2.4On the basis of these modifications, it appeared to the Committee that the intention might be for Article 26 to be retained as part of domestic law after exit day as a result of its link to Article 29, and for its obligations to continue in force as a result of that link when they would not otherwise apply. The Committee was concerned about the propriety of a legally binding obligation being imposed on the United Kingdom by means simply of a cross-reference in a Directive provision. The Committee therefore asked the Department to confirm whether it is intended that the obligations in Article 26(1) are incorporated by virtue of the cross-reference in Article 29.
2.5In a memorandum printed at Appendix 2, the Department addresses the point but does not, in the Committee’s opinion, adequately answer the question. It confirms that one of the requirements of Article 29 is expressed by reference to Article 26(1), as outlined above. It confirms that, “as it applies on and after exit day, the reference to Article 26(1) is glossed for this purpose”. And it confirms that the purpose of the gloss is to ensure that the reference to Article 26(1) in Article 29 works properly for the purposes of Article 29. It does not confirm whether, but for the cross-reference in Article 29, Article 26(1) would itself apply in domestic law—in other words, whether the United Kingdom would be under any obligation to notify the competent authority as required by Article 26(1).
2.6The obligation to notify is a necessary pre-condition for compliance with the requirement in Article 29(2)(b). It is not clear to the Committee whether that obligation is imposed by any other provision of domestic legislation or retained EU law. If the combination of the cross-reference in Article 29 and the gloss in the interpretation provisions is not intended to incorporate Article 26(1) into domestic law and it is not incorporated in any other way, then Article 29 is defective.
2.7But the Committee is equally concerned that incorporating Article 26(1) into domestic law in this way might be the Department’s intention. It appears to the Committee that it is contrary to the principle that the law should be accessible, clear and certain for a legal obligation to be imposed by means of a gloss on a cross-reference in a provision that only applies due to a cross-reference in another provision. The Committee finds this to be a particularly opaque and unhelpful way of making legislation, one that leaves open to confusion the question as to which provisions of Directives have been incorporated into domestic law and which have not, and whether obligations in such provisions are legally enforceable. The Committee accordingly reports regulation 2(8) and the Schedule for defective drafting.
2.8This possibility for confusion is also evident in relation to the modifications made to Article 49 of the Directive by regulation 2(7), which inserts new interpretation provisions into regulation 18 of the 2009 Regulations. Regulation 18(1) provides that where an aquaculture animal that is susceptible to a listed disease is introduced into England or Wales for certain purposes, the place where it is introduced is to be treated as though it has “Category I disease-free health status under Part A of Annex III to [the] Directive”. Part A of Annex III consists of a table: Category I is in the first row of that table; in the “health status” column for Category I, under “Disease-free”, there is a parenthetical reference to “Articles 49 or 50” of the Directive. According to new regulation 18(7), as inserted by regulation 2(7), this table is to be read for certain purposes with glosses on Articles 49 and 50. The first two paragraphs of Article 49 are glossed to remove inappropriate references to member States and to the procedure in Article 62(2) of the Directive, i.e., the procedure whereby the Standing Committee on Food Chain and Animal Health assists the European Commission. The third paragraph of Article 49 also refers to the procedure in Article 62(2), but there is no gloss on this paragraph. It was not clear to the Committee why new regulation 18(7) modifies paragraph (1) but not paragraph (3); it asked the Department to explain.
2.9In its memorandum, the Department states that the purpose of the gloss on Article 49 is to make sense of the meaning of “disease-free” in the health status column of the table; it asserts that for this purpose, no gloss on Article 49(3) is strictly necessary. The Committee finds this assertion surprising. Article 49 provides for the circumstances in which an area shall be declared disease-free. Paragraph (1) sets out preconditions that include compliance with paragraph (2) and the absence from the area of any species that are susceptible to the diseases in question. Paragraph (2) requires the establishment of buffer zones where neighbouring areas are not disease-free. Paragraph (3) provides that “the specific requirements for surveillance, buffer zones, sampling and diagnostic methods that shall be used…to declare disease-free status in accordance with this Article shall be adopted in accordance with the procedure referred to in Article 62(2)”. It appears to the Committee that it is at least reasonable, if not necessary, to infer that paragraphs (1) and (2) cannot be read without paragraph (3), as it relates to the creation of the buffer zones required under paragraph (2), the declaration of disease-free status provided for by paragraph (1), and the surveillance, sampling and diagnostic methods that would be needed to confirm, as required by paragraph (1), that there are no susceptible species in the relevant area. The fact that the Department takes a different view illustrates the difficulty inherent in the approach it has taken to the application of Directive provisions after exit day, and the lack of an acceptable level of clarity for readers of this legislation. The Committee accordingly reports regulation 2(7) [new paragraph (7)] for defective drafting.
2.10Regulation 2(7) also inserts interpretation provisions that modify the meaning of Annex 5 to the Directive (see new paragraphs (8), (9) and (10)). These are needed to modify Article 50 of the Directive—as noted above, in order to understand the meaning of Category “disease-free” health status. As is evident from new paragraphs (8), (9) and (10), layers of modification are necessary because of the various cross-references in Annex 5:
- paragraphs 1.4, 2.3 and 3.5 of Part 2 refer to paragraph 2 of Part 1;
- paragraph 2 of Part 1 refers to paragraph 1.2 of Part 1;
- paragraph 1.2 refers to paragraph 1.1(a) of Part 1 and must be read alongside paragraph 1.3 of Part 1.
2.11Regulation 2(7) glosses most, but not all of these provisions. The Committee therefore asked the Department to confirm whether paragraphs 1.1(a) and 1.3 of Part 1 are incorporated by the cross-references in paragraph 2 of Part 1, and if so why no modification has been made to paragraph 1.1 (which refers to member States). In its memorandum, the Department confirms that the requirements in paragraphs 1.2 and 1.3 are incorporated into domestic law and paragraph 1.1(a) is not. The Committee accepts that the latter point is clear on closer reading, but it is grateful for the confirmation regarding paragraphs 1.2 and 1.3 and accordingly reports regulation 2(7) [new paragraphs (8) to (10)] for elucidation, provided by the Department’s memorandum. The Committee invites the Department to consider whether a gloss is required in relation to point 1.2.
2.12The Committee is grateful for the Department’s helpful reply in the memorandum to its question about the incorporation into domestic law of categories II, III, IV and V of Part A of Annex 3 to the Directive.
3S.I. 2019/461: Reported for defective drafting
Iran (Sanctions) (Nuclear) (EU Exit) Regulations 2019
3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
3.2This instrument recreates an effective sanctions regime in relation to Iran’s nuclear weapons after the United Kingdom has left the European Union. It creates a number of offences relating to finance and trade, e.g., transferring restricted technology to a place in Iran or to a person connected with Iran, and in many cases a corresponding defence that the accused did not know or had no reasonable cause to suspect that a key element of the offence was made out, e.g., that the transfer was to a place in Iran, or that the person was connected with Iran. Regulation 30(1) creates an offence of acquiring relevant goods and technology which are located in Iran, but the corresponding defence in regulation 30(3) refers to knowing or suspecting that the person was connected with Iran. It was not clear to the Committee how the defence in paragraph (3) was relevant to the offence in paragraph (1), so it asked the Foreign and Commonwealth Office to explain the relationship between the two. In a memorandum printed at Appendix 3, the Department acknowledges that it is an error for regulation 30(3) to refer to knowledge or suspicion about whether a person was connected with Iran and undertakes to correct the error with an amending instrument. The Department has since then corrected the error (in the Sanctions (EU Exit) (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/843)). The Committee accordingly reports regulation 30 for defective drafting, which has since been corrected by the Department.
4S.I. 2019/468: Reported for defective drafting
Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019
4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
4.2These Regulations make provision for EEA nationals and their family members who have a right of residence in the United Kingdom by virtue of the EU Settlement Scheme. The Committee asked the Home Office whether inserted paragraph (c)(ii)(bb) in regulation 3(7) should refer to the criteria to be an extended family member rather than the criteria to be a family member. In a memorandum printed at Appendix 4, the Department acknowledges that this is an error and undertakes to lay an amending instrument (if that is possible before the instrument which regulation 3(7)(c) amends is revoked). The Committee agrees with the Department that this error is not suitable for correction by correction slip. The Committee accordingly reports regulation 3(7)(c) for defective drafting, acknowledged by the Department.
5S.I. 2019/509: Reported for defective drafting
Merchant Shipping (Registration of Ships) (Amendment) (EU Exit) Regulations 2019
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
5.2This instrument amends the Merchant Shipping (Registration of Ships) Regulations 1993 to allow a ship’s UK registration to be suspended for a period while the ship is bareboat chartered out to another register, then restored to the UK register at the end of that period. Regulation 23, which inserts new regulations 87A to 87M into the 1993 Regulations, provides for this suspension to be indicated by a “certificate of permission”. The 1993 Regulations refer to two other types of certificate and define both in regulation 1, but this instrument does not insert a corresponding definition of “certificate of permission”. The Committee therefore asked the Department for Transport to clarify where the term is defined. In a memorandum printed at Appendix 5, the Department acknowledges that it is not defined, accepts that there is a case for including such a definition as a matter of consistency, and undertakes to do so when the 1993 Regulations are next amended. The Committee accordingly reports regulation 23 for defective drafting, acknowledged by the Department.
Published: 26 April 2019