Instruments reported
At its meeting on 2 October 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 six 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.
1Draft S.I.: Reported for requiring elucidation
European Parliamentary Elections Etc. (Repeal, Revocation, Amendment and Saving Provisions (United Kingdom and Gibraltar) (EU Exit) (Amendment) Regulations 2019
1.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation.
1.2The effect of the draft Regulations is to postpone the coming into force of the European Parliamentary Elections Etc. (Repeal, Revocation, Amendment and Saving Provisions) (United Kingdom and Gibraltar) (EU Exit) Regulations 2019 (SI 2018/1310) (“the Principal Regulations”) so that they come into force on 31 December 2020 instead of on exit day. The Cabinet Office sets out in the explanatory memorandum why this is being done. The Principal Regulations were drafted on the basis that the UK would leave the EU on 29th March before the European Parliamentary elections were due to be held in the period between 23 and 26 May. As a result of the UK having taken part in European Parliamentary elections, it is necessary to ensure that certain statutory functions and processes under the legislation which are being repealed, revoked or amended by the Principal Regulations remain in force for a period after exit day. A list of some of the functions concerned is set out in paragraph 7.3 of the explanatory memorandum. They include allowing the relevant electoral officers to store ballot papers and election documents; requiring the filing of spending returns by candidates and parties to the Electoral Commission; the investigation by the Electoral Commission of potential offences; and provisions concerning payments to Returning Officers for the costs of running the poll.
1.3While it appeared to the Committee that most of the provisions contained in the Principal Regulations concerned the holding of European Parliamentary elections, that was not so in the case of all of them. For example, the Principal Regulations will amend section 54(2) of the Political Parties, Elections and Referendums Act 2000 (“PPERA”) so that companies incorporated within an EU member State no longer qualify as permissible donors for the purposes of that Act. This provision is not linked to the holding of European Parliamentary elections and therefore the reasons given by the Department in the explanatory memorandum do not explain why it is appropriate to delay this change so that it comes into force on 31 December 2020 rather than on exit day.
1.4Other provisions identified by the Committee include:
- the repeal of provisions of PPERA which relate to Gibraltar and the extension of that Act to Gibraltar.
- the repeal of provisions of the Recall of MPs Act 2015 which allow persons included on an electoral register of citizens of the European Union to be an accredited campaigner for a recall petition and also to be a permissible donor for such an accredited campaigner.
- An amendment to the Local Government Officers (Political Restrictions) Regulations 1990 so that the political restrictions imposed by those Regulations no longer apply in relation to involvement with EU political parties.
1.5The Committee wrote to the Cabinet Office asking it to explain why it was considered appropriate to delay commencement of the provisions of the Principal Regulations which did not appear to be covered by the reasons given in the explanatory memorandum. In a memorandum set out at Appendix 1, the Cabinet Office acknowledge that the approach they have taken will leave on the statute book for a limited period provisions which are not linked solely to the holding of European Parliamentary elections. They state that they carefully considered a number of options and concluded that the approach adopted was the most appropriate because it has the benefit of being clear and simple for electoral administrators to understand and implement, and it also ensures that all necessary legislation stays in force minimising the risk of any adverse unintended consequences.
1.6The Cabinet Office also makes the following points in relation to the specific provisions identified by the Committee:
- It is stated that the provisions of PPERA relating to Gibraltar only apply to political parties established in Gibraltar and registered in the United Kingdom for the purposes of contesting European Parliamentary elections in the South West combined region.
- With regard to the provisions of the Recall of MPs Act 2015 it is stated that this will not have any adverse consequences because relevant citizens of the European Union will in any event remain on the local government register.
- With regard to the other provisions, the Cabinet Office accept these do not relate solely to the European Parliamentary context but have, and will continue to have, broader effect. They state that, if it emerges that there are provisions left on the statute book which cause practical difficulty they will take steps to commence those repeals as soon as possible.
1.7The Committee accepts that the reasons given by the Cabinet Office in its memorandum provide a reasonable justification for the approach adopted in the draft Regulations. The Committee also welcomes the commitment by the Cabinet Office to keep under review the provisions which are not connected to the holding of European Parliamentary elections; and to take action to bring forward the repeal of those provisions if on the basis of that review it appears appropriate to do so. Accordingly, the Committee reports the draft Regulations for requiring the elucidation provided by the Cabinet Office in their memorandum.
2S.I. 2019/1067: Reported for requiring elucidation
Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2019
2.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect.
2.2This Order introduces a new exclusion to the regulated activity of credit broking. The exclusion covers fee-free introductions by registered social landlords of individuals to social and community lenders. Paragraph 7.1 of the Explanatory Memorandum states that these social and community lenders offer alternatives to high-cost credit. The Committee asked HM Treasury to explain whether commercial trading subsidiaries of registered charities (as specified in new article 36FA(2)(d)) and subsidiaries of registered social landlords (as specified in new article 36FA(2)(e)) necessarily offer these alternatives.
2.3In a memorandum printed at Appendix 2, the Department states that it would be contradictory to their social purpose for such subsidiaries to offer high-cost credit products and that this could attract penalties from the relevant regulator or supervisory authority. The Department explains that it considered the risks and benefits of including these subsidiaries in the scope of this exclusion, including the risk that a high-cost lender may restructure as a subsidiary of a charity or registered social landlord to benefit from the exclusion. The Department deemed such risk to be minimal. The Committee accordingly reports article 2 (inserted article 36FA(2)) for requiring elucidation, provided by the Department’s memorandum.
3S.I. 2019/1071: Reported for requiring elucidation
Vehicle Excise Duty (Taxi Capable of Zero Emissions) Regulations 2019
3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
3.2This instrument specifies the types of vehicle that fall within the category “taxi capable of zero emissions” for the purposes of Part 1AA of Schedule 1 to the Vehicle Excise and Registration Act 1994. Under paragraph 1GE of that Part, light passenger vehicles which cost more than £40,000 are subject to a higher rate of vehicle excise duty unless, when the vehicle is first registered, it is a taxi capable of zero emissions. Regulation 2 of this instrument defines “taxi capable of zero emissions” by reference to eligibility criteria set by, and a list of vehicle models maintained by, the Secretary of State, both of which the Secretary of State may amend from time to time. The Committee asked the Department for Transport to explain what arrangements will be made for consultation and advance notice of such amendments where they remove a model from the category of “taxi capable of zero emissions”, how those arrangements will avoid unfair treatment for a person who has bought (but not yet registered) a vehicle in reliance on its inclusion in that category, and how they will secure compatibility with Article 1 of Protocol 1 of the European Convention on Human Rights.
3.3In a memorandum printed at Appendix 3, the Department confirm that they will consult on any changes to the eligibility criteria, test proposed changes through engagement with relevant stakeholders, allow appropriate time between the announcement and implementation of any such changes to minimise the impact on consumers, and ensure that any interference with individual property rights is proportionate to achieving the aim of improving air quality and the environment for all. The Committee is grateful for the Department’s assurances and accordingly reports regulation 2 for requiring elucidation, provided by the Department’s memorandum.
4S.I. 2019/1101: Reported for defective drafting
Agriculture, Environment and Rural Affairs (Amendment) (Northern Ireland) (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.
4.2This instrument amends the Marketing of Fresh Horticulture Produce Regulations (Northern Ireland) 2010 (“the 2010 Regulations”), which supplement EU law on marketing rules and standards for fruit and vegetables. Regulation 10(13) creates a post-Brexit transition period during which regulation 17 of the 2010 Regulations will not apply in relation to a failure to comply with Article 7 of Commission Implementing Regulation 543/2011. It appeared to the Committee that the subject matter of Article 7 (marketing rules for packages of mixed fruit and vegetables) corresponds better to regulation 15 of the 2010 Regulations (offences relating to Community marketing rules for horticultural produce) than to regulation 17 (offences relating to moving controlled horticultural produce). The Committee therefore asked the Department for Environment, Food and Rural Affairs to confirm whether new regulation 25(1), as inserted by regulation 10(13), ought instead to have referred to regulation 15. In a memorandum printed at Appendix 4, the Department acknowledges the error and undertakes to correct it by correction slip. The Committee accordingly reports regulation 10(13) for defective drafting, acknowledged by the Department. In the Committee’s view, and having regard to the criteria set out in paragraph 3 of the Committee’s First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation, this is not an error of a kind that would be suitable for correction by correction slip.
5S.I. 2019/1152: Reported for unjustifiable delay in laying before Parliament
Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019
5.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they breach the 21-day rule and that there was an unjustifiable delay in laying them before Parliament.
5.2These Regulations (among other things) make provision to introduce the process to be followed when existing benefit claimants are migrated to universal credit. They allow a transitional element to provide protection for existing benefit claimants who would have a lower entitlement to universal credit than their total existing benefit awards. They also introduce “transitional payments” for eligible claimants in receipt of the severe disability premium (SDP) as part of their award. These Regulations (made under the negative procedure) replace the draft Universal Credit (Managed Migration Pilot and Miscellaneous) Regulations 2019 laid before Parliament on 14th January 2019 under the affirmative procedure and withdrawn in July 2019. The withdrawn regulations were considered by the Committee (which did not draw special attention to them) but were not debated in Parliament.
5.3The principal changes made by these Regulations are to add a provision relating to SDP claims and to increase the transitional payment amounts to be paid to claimants previously entitled to SDP. This change resulted from a High Court judgment on 3 May 2019 which found that the differential treatment between SDP claimants who have already moved to universal credit and those who are prevented from doing so was not justified. These Regulations also omit a provision about appeals which attracted the draft affirmative procedure (and therefore required draft affirmative procedure for the entire instrument).
5.4These Regulations break the 21-day rule, and the Committee asked the Department to explain why (in addition to what is said in the Explanatory Memorandum). In a memorandum printed at Appendix 5, the Department explains that the changes were complex to draft and had far reaching operational and financial implications (some of which required clearance across government), that the Social Security Advisory Committee needed an opportunity to consider the changes and that commencing the new provisions without further delay meant eligible claimants could start receiving the transitional payments. While noting these points, the Committee remains concerned that as a result of the changes regulations that were to be debated in both Houses before being made became regulations which came in to force immediately without the opportunity for Parliamentary scrutiny or debate. The Committee accordingly reports these Regulations for breach of the 21-day rule, acknowledged by the Department.
5.5These Regulations were made on Thursday 18 July 2019, laid before Parliament on Monday 22 July and the majority of the regulations came in to force on Wednesday 24 July.In addition to the issue about the 21-day rule, the Committee asked the Department to explain why arrangements for laying were not expedited to maximise the time available for scrutiny. In its memorandum, the Department apologises for not expediting arrangements for laying. Although, as a general rule, the Committee considers that a delay of 10 calendar days between the making and laying of an instrument before Parliament will amount to an unjustifiable delay, there may be instances where a period of less than 10 calendar days is considered an unjustifiable delay (See paragraph 2.13 of the Committee’s First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation). The Committee considers that this is one of those instances. The migration of benefit claimants to universal credit is controversial and the effective time for Parliamentary scrutiny should have been maximised. There appears to be no reason why the Department could not have made and laid the instrument on 18 July. The Committee accordingly reports these Regulations for an unjustifiable delay in laying before Parliament.
5.6The Committee also asked the Department to explain the reference made by the Secretary of State in her Statement to the House of Commons on 22 July to advice received from the Committee, given that the Committee did not report on the previous draft affirmative instrument which these Regulations in part replace. In its memorandum, the Department confirms that no advice was received from the Committee on these Regulations; and the Committee draws that confirmation to the attention of both Houses.
6S.I. 2019/1246: Reported for defective drafting
Product Safety, Metrology and Mutual Recognition Agreement (Amendment) (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.
6.2Part 3 of the Regulations has two purposes. Regulations 4 to 17 amend the Product Safety, Metrology and Mutual Recognition Agreement (Amendment) (EU Exit) Regulations 2019 (“the Product Safety Regulations”), to ensure that those Regulations function effectively and as intended following the change in exit day from 29 March to 31 October 2019. Regulation 18 amends the Conformity Assessment (Mutual Recognition Agreements) Regulations in consequence of changes made to those Regulations by Part 2.
6.3Regulation 1(3) generally provides for the regulations which amend the Product Safety Regulations to come into force immediately before exit day. This is so that the amendments come into force before the Product Safety Regulations themselves, which come into force on exit day. However, regulation 1(4) makes an exception in the case of regulation 15 which comes into force on exit day. There is no obvious reason why a different approach should be adopted in relation to regulation 15.
6.4The Department has submitted a voluntary memorandum to the Committee (printed at Appendix 6) in which it explains that the reference to regulation 15 in regulation 1(4) is incorrect, and that the reference should have been to regulation 18. Despite this mistake, the Department considers that the commencement provisions will still work and that the impact of the mistake on the timing of the commencement of regulation 18 will not have any practical or legal consequences. The Committee accepts the Department’s argument that the commencement provisions should still work and that the mistake is unlikely to have substantive consequences. However, as acknowledged by the Department, the mistake is liable to leave users of the legislation unclear as to why regulation 15 is being treated differently from the other provisions amending the Product Safety Regulations. The Committee accordingly reports regulation 1(4) for defective drafting acknowledged by the Department.
Published: 4 October 2019