Sixty-second Report of Session 2017-19 Contents

Instruments reported

At its meeting on 12 June 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 four 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. 2019/884: Reported for failure to comply with proper legislative practice

Housing (Approval of Codes of Management Practice) (Student Accommodation) (England) Order 2019

1.1The Committee draws the special attention of both Houses to this Order on the ground that it fails to comply with proper legislative practice in one respect.

1.2This Order approves two Codes of Practice laying down standards of conduct and practice to be followed in relation to student accommodation. The Committee asked the Ministry of Housing, Communities and Local Government to explain why the Codes of Practice referred to in regulation 2(2) do not appear on the websites indicated in the footnotes.

1.3In a memorandum printed at Appendix 1, the Department explains that the new Codes do not come into force until 1 June 2019 and argues that to include both the versions approved by this instrument and the previously approved versions on the websites would be confusing to users. The Department has made arrangements for the new Codes to appear on the websites from the date they come in to force and is satisfied that it has fulfilled its statutory duty to publish those Codes in a manner considered appropriate for bringing them to the attention of those likely to be affected by them. The Committee is clear that where legislation is made that refers to other documents, access to the law requires that readers can appreciate the full effect of the new law (whether yet in force or not), which requires publication of those other documents. Giving people time between making and commencement to prepare for new legislation only helps if they can see the full effect of the new legislation, including the impact of documents referred to. It should not be difficult to mark the two versions of a code on a website in such a way as to make it obvious to readers which version is in force in relation to particular times. It is not proper legislative practice to make legislation the full effect of which readers cannot appreciate; the Committee accordingly reports this Order for failure to comply with proper legislative practice.

1.4The Committee also asked whether transitional provisions might be needed in relation to the transition between the old codes and the new, and the Department’s memorandum helpfully explains why no transitional issues arise.

2S.I. 2019/906: Reported for failure to comply with proper legislative practice

Civil Service (Other Crown Servants) Pension Scheme (Amendment) Regulations 2019

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in one respect.

2.2These Regulations amend the Civil Service (Other Crown Servants) Pension Scheme Regulations 2016 which established a scheme for the payment of pensions to civil servants employed by the Secret Intelligence Service and Security Service. A pre-condition to making these Regulations is that a report must be laid before Parliament setting out why the Minister for the Civil Service proposes to make them. This report (made under section 22(2)(b) of the Public Service Pensions Act 2013) is referred to in the preamble and the Committee asked the Cabinet Office to explain how a user is able to access the report. In a memorandum printed at Appendix 2, the Department explains that the report has been made available on the Government website. As the Committee noted in its First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation (at paragraphs 4.5 to 4.8), documents that are given a significance by subordinate legislation must be readily available to the public. The Department should have included information on the availability of the report in the instrument itself, either in the footnotes or the Explanatory Note. The Committee is clear that it is not proper legislative practice to assume that readers will know where to look for specific documents on the Government’s website, which in the Committee’s experience is not always pellucid; and, as the Committee has stated before, the Government should not assume that everyone affected by legislation has ready access to the internet, and citizens must be given hard-copy access to documents to which legislation refers, and the arrangements for access must be noted in a footnote or the Explanatory Note. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.

3S.I. 2019/907: Reported for defective drafting

Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) 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.

3.2Regulation 17 amends the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (SI 2007/783) to revoke deemed consent for displaying an advertisement on the glazed surface of a telephone kiosk by revoking class 16 in Part 1 of Schedule 3. Consequently, regulation 17(3) revokes the definitions relevant to that deemed consent, including the definition of “telephone kiosk”. A residual reference to the term “telephone kiosk” will still appear in the description of class 12 (also in Part 1 of Schedule 3). The Committee therefore asked the Department to explain how this residual reference is to be understood. In a memorandum printed at Appendix 3, the Department acknowledges that the omission of that definition was an error and undertakes to reinstate it at the earliest opportunity. The Committee accordingly reports regulation 17 for defective drafting, acknowledged by the Department.

4S.I. 2019/908: Reported for defective drafting

Criminal Procedure (Amendment) (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 two related respects.

4.2The Regulations amend three sets of court rules to remove what will become, on exit day, redundant references to legislation being repealed or revoked by two earlier EU Exit instruments: the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (SI 2019/742) and the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/780). Regulation 5(1)(e) revokes rule 62A of the Crown Court Rules (Northern Ireland) 1979. Regulation 6(1)(e) revokes rule 52L of the Magistrates’ Courts Rules (Northern Ireland) 1984. Regulations 5(2) and (3) and 6(2) and (3) make minor amendments consequential on those revocations.

4.3The rules in question relate to mutual legal assistance matters – in particular, to witnesses in UK courts giving evidence by telephone in criminal proceedings conducted by foreign courts. The Crime (International Cooperation) Act 2003 (section 31 and Part 2 of Schedule 2) governs how such telephone evidence is given. Similar provision is made in relation to EU member States by the Criminal Justice (European Investigation Order) Regulations 2017 (SI 2017/730)). Rules 62A and 52L supplement those provisions with procedural details applying to the Northern Ireland courts in which such telephone evidence is given.

4.4It was not clear to the Committee why those rules would become redundant on exit day. Although the European Investigation Order Regulations are being revoked in connection with Brexit, the 2003 Act’s provisions will remain in force; indeed, Chapter 6 of SI 2019/742 expressly adds EU member States to the list of countries designated for the purpose of those provisions. The Committee therefore asked the Ministry of Justice to clarify which amendments made by SI 2019/742 or SI 2019/780 compel the revocation of rules 62A and 52L and the amendments consequential on those revocations. In a memorandum printed at Appendix 4, the Department confirms that the revocations and their consequential amendments were made in error, and undertakes that the relevant rules committees for Northern Ireland will correct the errors at the earliest opportunity. The Committee accordingly reports regulations 5(1)(e), (2) and (3) and 6(1)(e), (2) and (3) for defective drafting, acknowledged by the Department.





Published: 14 June 2019