Fifty-eighth Report of Session 2017-19 Contents

Instruments reported

At its meeting on 8 May 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 nine 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. 2019/518: Reported for requiring elucidation and for defective drafting

Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019

1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect and are defectively drafted in two respects.

1.2This instrument prospectively amends retained EU law relating to railways to correct deficiencies arising from Brexit. Regulations 49 to 58 amend Commission Implementing Regulation (EU) 2015/909, which sets out how to calculate costs directly incurred as a result of operating a train service for the purpose of setting charges for the use of railway infrastructure. Article 7 of this EU Regulation allows for a simplified calculation in some circumstances, but only below a specified cost limit that is expressed in Euros. The Committee asked the Department for Transport to explain why this instrument does not convert that amount to Sterling, in the same way as other EU Exit instruments have done. In a memorandum printed at Appendix 1, the Department explains that this is done to prevent divergence between the UK and EU cost limits and thereby avoid the risk of different rules applying on the UK and EU sides of the same cross-border train service. The Committee accepts the explanation and accordingly reports the Regulations for elucidation, provided in the Department’s memorandum.

1.3The Committee also noticed that two references in the Regulations appear to be incorrect. In regulation 68(a)(i), there is a seemingly pointless duplication of sub-paragraphs in the reference to “regulation 23(4) to (10), (9) and (10)”; and regulation 82 refers to a non-existent provision of the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2016. The Committee asked the Department to confirm that these references are incorrect. In its memorandum, the Department confirms that they are and undertakes to correct them at the earliest opportunity. The Committee accordingly reports regulations 68(a)(i) and 82 for defective drafting, acknowledged by the Department.

2S.I. 2019/644: Reported for requiring elucidation

Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Regulations 2019

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.

2.2These Regulations amend the EU Emissions Trading System compliance cycle deadline for UK participants for the 2018 scheme year. The preamble recites that consultation was carried out in accordance with section 2(4) of the Pollution Prevention and Control Act 1999 (which includes public consultation); but the Explanatory Memorandum states (at paragraph 10.2) that no formal public consultation has taken place. The Committee asked the Department for Business, Energy and Industrial Strategy to explain which is correct. In a memorandum printed at Appendix 2, the Department explains that it carried out the necessary statutory consultation but that no public consultation was included as part of that process. The Secretary of State did not consider it appropriate to consult representative bodies because of the urgency of these Regulations and the negligible administrative impacts foreseen on operators. The Committee accordingly reports these Regulations for elucidation, provided in the Department’s memorandum.

3S.I. 2019/652: Reported for doubtful vires and for defective drafting

Food and Feed Hygiene and Safety (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

3.1The Committee draws the special attention of both Houses to these Regulations on the ground that there appears to be doubt whether they are intra vires and that they are defectively drafted in several respects.

3.2These Regulations make technical amendments to instruments relating to food and feed hygiene and safety in Northern Ireland to deal with deficiencies arising from the withdrawal of the United Kingdom from the European Union. The Committee asked the Department of Health and Social Care (who forwarded the request to the Food Standards Agency in Northern Ireland) to explain why the text of this instrument is different to the text of the instrument laid for sifting and consequently how paragraph 3(2) of Schedule 7 to the European Union (Withdrawal) Act 2018 has been satisfied.

3.3In a memorandum printed at Appendix 3, the Department explains that an earlier draft of the instrument was sent to the Minister for signing in error. Paragraph 3(2) of Schedule 7 to the European Union (Withdrawal) Act 2018 states that a Minister may not make an instrument under section 8(1) of the 2018 Act subject to the negative procedure unless the Minister has laid a draft of the instrument (and accompanying memorandum) before each House of Parliament and the relevant Committees in both Houses have made a recommendation as to the appropriate procedure for the instrument within the relevant period or the relevant period has expired. An instrument made in a different form to the instrument laid before each House under paragraph 3(2) does not comply with that paragraph. The Committee accordingly reports these Regulations for appearing to be of doubtful vires.

3.4The Committee also noticed numerous typographical errors in the instrument. In its memorandum, the Department acknowledges that these errors are also a result of an earlier draft of the instrument being sent to the Minister for signing in error. The Committee accordingly reports these Regulations for defective drafting, acknowledged by the Department.

4S.I. 2019/653: Reported for defective drafting

Network and Information Systems (Amendment etc.) (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 amend redundant provisions in the Network and Information Systems Regulations 2018 which provide measures aimed at boosting the overall level of security of critical network and information systems. The Committee asked the Department for Digital, Culture, Media and Sport to explain the inconsistency between paragraph 11(b) of the Schedule (which omits regulation 12(11) of the 2018 Regulations) and paragraph 11(c) of the Schedule (which amends regulation 12(11) of the 2018 Regulations). In a memorandum printed at Appendix 4, the Department explains that paragraph 11(b) incorrectly omits paragraph 12(11) and undertakes to correct the error in an amending instrument. The Committee agrees that this error is not appropriate for correction by correction slip. The Committee accordingly reports paragraph 11 of the Schedule for defective drafting, acknowledged by the Department.

5S.I. 2019/790: Reported for doubtful vires

North Devon District Council Harbour Authority (Removal of Pilotage Functions) Order 2019

5.1The Committee draws the special attention of both Houses to this Order on the ground that there appears to be a doubt as to whether it is intra vires.

5.2This Order was made by the Secretary of State under section 14 of the Harbours Act 1965 and section 1(4A) of the Pilotage Act 1987 using the negative resolution procedure, which means that it is subject to annulment in pursuance of a resolution of either House of Parliament. It appeared to the Committee that while the negative procedure was correct for an instrument made under section 1(4A) of the Pilotage Act, it was not correct for an instrument made by the Secretary of State under section 14 of the Harbours Act. By virtue of section 54 of that Act, an instrument made under section 14 is not required to be subject to any parliamentary procedure unless it is made by a person exercising a function delegated under section 42A. This Order is made by the Secretary of State directly; it follows that it is not required to be subject to any parliamentary procedure. The Committee asked the Department for Transport to confirm that this Order combines powers subject to the negative procedure and powers subject to no parliamentary procedure and to justify the combination. In a memorandum printed at Appendix 5, the Department acknowledges that in fact the Secretary of State did not have the power to make any provision under section 14 of the Harbours Act as that power has been entirely delegated to the Marine Maritime Organisation. The Department undertakes to rectify the error. The Committee notes that the provision made under the Harbours Act was not intended to have significant substantive effect. The question remains, of course, whether the presence of an ultra vires provision in the instrument invalidates the whole or whether it can be severed. The Committee expresses no opinion on that point, which is a matter for the courts. The Committee accordingly reports the Order for appearing to be of doubtful vires, acknowledged by the Department.

6S.I. 2019/792: Reported for defective drafting

Syria (Sanctions) (EU Exit) Regulations 2019

6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

6.2This instrument contains sanctions regulations made under the Sanctions and Anti-Money Laundering Act 2018 (“the 2018 Act”). Their purpose is to encourage the Syrian regime to refrain from actions, policies or activities which repress the civilian population in Syria and to participate in negotiations to reach a negotiated settlement to bring about a peaceful solution to the conflict in Syria. The regulations include provisions for the designation of persons, both individuals and companies, for the purposes of (amongst other things) imposing financial sanctions. The relevant sanctions are contained in Part 3 of the Regulations.

6.3The Regulations also contain a licensing regime under which the Secretary of State may issue licences to authorise acts which would otherwise be a breach of the financial sanctions imposed on designated persons by Part 3 of the Regulations. But a licence may only be issued where it is for a purpose set out in Part 2 of Schedule 6 to the Regulations. Those purposes include, at paragraph 16, matters relating to financial transactions involving the Central Bank of Syria and the Commercial Bank of Syria. Sub-paragraphs (3) and (5) of paragraph 16 operate on the basis that both those institutions will be designated persons for the purposes of Part 3 of the Regulations, since both sub-paragraphs contain an express reference to “the date on which [the bank] became a designated person”.

6.4The provisions of the Regulations which allow a person to be designated are made under section 9(2) of the 2018 Act. That section enables sanctions regulations to confer a power on the Secretary of State or the Treasury to designate persons for the purposes of the regulations, and in this case the power to designate is conferred on the Secretary of State by regulation 5. Since the power to designate is contained in the Regulations themselves, it cannot be assumed that a particular individual or institution will be a designated person until the Regulations are made and come into force and the power to designate under the Regulations has been exercised. Also, section 22 of the 2018 Act confers a power on the Secretary of State to revoke a designation once made, and therefore it cannot be assumed that a designation once made will continue in force for all time. Given this background, the Committee asked the Foreign and Commonwealth Office (“FCO”) to explain how it was compatible with the enabling legislation for paragraph 16 to be drafted on the basis that both the Central Bank of Syria and the Commercial Bank of Syria will be designated persons under the Regulations.

6.5In a memorandum at Appendix 6, the FCO explains that paragraph 16(3) and (5) of Schedule 6 mirrors provisions which form part of the existing EU sanctions regime, and that paragraph 16(3) and (5) has been drafted in a way that ensures that the scope of the licensing regime under the Regulations is the same as that of the existing EU regime in so far as it relates to the transfer of funds or resources by or through the Central Bank of Syria or the Commercial Bank of Syria. The FCO acknowledges that the drafting of paragraph 16(3) and (5) assumes that the two banks will be designated under the Regulations. It is argued however there is nothing in those provisions which fetters the discretion of the Secretary of State, either in deciding whether or not to designate the banks or to revoke a designation once made. The FCO also argues that, if the banks are not designated persons, then the structure of the Regulations is such that paragraph 16(3) and (5) will not be capable of applying.

6.6The Committee considers it is important that the drafting of the Regulations does not appear to pre-judge how the Secretary of State will exercise powers conferred by the Regulations once they are in force. While the FCO may be right that paragraph 16 will not have the effect of fettering the Secretary of State’s discretion, that does not in the Committee’s view justify adopting a drafting approach which assumes that powers conferred by the Regulations and the 2018 Act will be exercised in a particular way. There would have been nothing, in the Committee’s view, to prevent the Regulations making it explicit that the application of paragraph 16(3) and (5) to the Central Bank of Syria and the Commercial Bank of Syria is conditional on the banks being designated by the Secretary of State for the purposes of Part 3. In this respect, the Committee is not convinced by the argument that it is sufficient to rely on the necessary implication to be drawn from the wording of paragraph 16(3) and (5). In the view of the Committee, simply relying on the implication to be drawn from the wording of paragraph 16, leaves it unclear as to whether other provisions of that paragraph (such as sub-paragraph (1)) are also intended to apply only where the bank concerned is the designated person. Accordingly, the Committee reports paragraph 16 of Schedule 6 for defective drafting.

7S.I. 2019/809 and S.I. 2019/820: Reported for requiring elucidation

Animal Health, Plant Health, Seeds and Seed Potatoes (Amendment) (EU Exit) Regulations 2019; Plant Health (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

7.1The Committee draws the special attention of both Houses to these instruments on the ground that they require elucidation in one respect.

7.2These instruments amend legislation relating to plant health in England and Northern Ireland. In each case the instrument contains amendments which will have the effect of conferring exemptions on persons bringing in a small quantity of plant material originating in the European Union or Switzerland. Where the exemption applies the person will not be subject to certain prohibitions and requirements, the breach of which would otherwise constitute a criminal offence. The provisions containing these amendments are regulation 4(5)(a) and (14) of the Animal Health, Plant Health, Seeds and Seed Potatoes (Amendment) (EU Exit) Regulations 2019 and regulations 3(9)(a) and 4(9) of the Plant Health (Amendment) (Northern Ireland) (EU Exit) Regulations 2019.

7.3In each case the exemption only applies if the amount of plant material brought in in a person’s baggage is limited to a “small quantity”. However, there is nothing in the relevant legislation to explain or clarify what is meant by a “small quantity” for the purposes of each of the exemptions. Since the exemptions may be relevant to whether a person is committing a criminal offence, the Committee asked the Department to explain:

7.4In a memorandum printed at Appendix 7, the Department explains that the exemptions created by the amendments replicate the exemptions for material originating from the EU which appear in the existing legislation; and that the wording of the existing legislation reflects the wording of Council Directive 2000/29/EC which it implements. The Department considers that it would have been outside the scope of section 8(1) of the European Union (Withdrawal) Act 2018 to change the way in which the exemptions are framed. To the extent that defining the scope of the exemptions by reference to a “small quantity” is a deficiency because of its inherent lack of clarity or precision, it is not a deficiency which can be remedied using the powers conferred by section 8(1) because that section is limited to remedying deficiencies arising from the UK’s withdrawal from the European Union.

7.5The Committee accepts that the Department was entitled to reach the view that it was outside the scope of the powers conferred by section 8(1) of the European Union (Withdrawal) Act 2018 to change the exemptions so that they no longer operate by reference to whether or not a person is bringing in a “small quantity” of relevant plant material. It remains the case however that relying on “small quantity” for defining the scope of the exemptions makes it very difficult to know with any certainty when the exemptions will apply, in circumstances where the applicability of the exemption may affect whether or not a person is committing an offence. The Committee notes however the assurances given by the Department that this has not caused complaints from members of the public in the past and that, were this ever to become an issue for travellers bringing in relevant material in the future, the Department and the Northern Ireland Department for Agriculture, Environment and Rural Affairs would decide what action was appropriate in the light of the problems being raised.

7.6The Committee accordingly reports regulation 4(5)(a) and (14) of the Animal Health, Plant Health, Seeds and Seed Potatoes (Amendment) (EU Exit) Regulations 2019 and regulations 3(9)(a) and 4(9) of the Plant Health (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 for elucidation, provided by the Department’s memorandum.

8S.I. 2019/825: Reported for defective drafting

Railways (Safety Management) (Amendment) (EU Exit) Regulations (Northern Ireland) 2019

8.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two related respects.

8.2These Regulations amend the Railways (Safety Management) Regulations (Northern Ireland) 2006 to address deficiencies arising from the withdrawal of the United Kingdom from the European Union.

8.3The Schedule inserts a new Schedule 7 into the 2006 Regulations. Paragraph 2 defines a number of terms for the purposes of the new Schedule. The Committee asked the Department for Transport to explain why the paragraph includes a definition of “risk to whole” even though this term does not appear elsewhere in the Schedule. In a memorandum printed at Appendix 8 the Department acknowledges and apologises for this error. It points out that the term “risk to society as a whole” appears in paragraph 12(3)(f) of new Schedule 7, and it is this term that should have been defined in paragraph 2 instead of “risk to whole”. The Committee accordingly reports paragraph 2 of new Schedule 7 for defective drafting, acknowledged by the Department.

8.4The Committee also asked about the intended meaning of “whole society” in risk category 6 in paragraph 14 of new Schedule 7. The Department explains in its memorandum that the term is intended to refer to the risk category identified in paragraph 12(3)(f) of new Schedule 7, there expressed as “risk to society as a whole”. Paragraph 12(3) forms part of the methodology for the fourth step of the procedure by which the Department for Infrastructure is to assess the achievement by the Northern Irish railway system of the appropriate common safety target. This step must be undertaken with reference to significant accidents in the relevant year, with a specified proportion of the year’s significant accidents to be taken into account for each risk category. In the case of the risk category “risk to society as a whole”, the total number of significant accidents should be taken into account. “Whole society” in paragraph 14 is intended as a descriptive label in order to specify the correct measurement units for the assessment. The Department contend it is “clear”, in the context of the procedure as a whole, “that the “whole society” risk is an aggregate of all the other risk categories and the relevant formula in the table identifies it as such”.

8.5The Committee disagrees: it considers that the meaning of “whole society” in paragraph 14 of new Schedule 7 is wholly unclear, particularly in view of: (a) the failure to define “risk to society as a whole” in paragraph 2, and (b) the absence of a cross-reference to paragraph 12(3)(f) in paragraph 14. The Committee accordingly reports paragraph 14 of new Schedule 7 for defective drafting.





Published: 10 May 2019