Fourth Report Contents

Instruments reported

At its meeting on 29 November 2017 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 fourteen 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. 2017/268: Reported for failure to comply with proper legislative practice

Deregulation Act 2015 (Growth Duty Guidance) Order 2017

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 brings in to force guidance issued by the Secretary of State under section 110(1) of the Deregulation Act 2015. The guidance relates to the duty under section 108 of that Act that a person exercising a regulatory function to which section 108 applies must, when exercising that function, have regard to the desirability of promoting economic growth.

1.3The Committee asked the Department for Business, Energy and Industrial Strategy to explain why the Explanatory Note, while mentioning that the Growth Duty S. 110 Guidance is published on the gov.uk website, does not indicate where access may be obtained to a hard copy.

1.4In a memorandum printed at Appendix 1, the Department acknowledges that the Explanatory Note should have indicated that a hard copy of the Guidance can be obtained by writing to the Better Regulation Executive, Department for Business, Energy and Industrial Strategy, 1 Victoria Street, London SW1H 0ET. The Department apologises for this oversight and will address it by way of correction slip. The Committee is grateful to the Department for this explanation and for undertaking to correct the omission which it agrees can properly be done by correction slip.

1.5The Committee has repeatedly stressed its concern that documents given a significance by subordinate legislation should be available to citizens who do not have access (or ready access) to the internet and accordingly reports the Order for failure to comply with proper legislative practice, acknowledged by the Department.

2S.I. 2017/324: Reported for defective drafting

Pension Protection Fund (Modification) (Amendment) Regulations 2017

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

2.2These regulations principally relate to the introduction of an increased pension compensation cap for long service in the calculation of pension compensation payable by the Pension Protection Fund.

2.3Regulation 1(1) states that the Regulations “come in to force on 6th April 2017”, and regulation 1(3) states that specified provisions “take effect from 6th April 2017”. The Committee asked the Department for Work and Pensions to explain the need for both propositions.

2.4In a memorandum printed at Appendix 2, the Department asserts that since regulation 1(1) is about commencement and regulation 1(3) is about effect there is no duplication. The Committee is not convinced that there is a natural difference between coming into force and taking effect; but if there is a difference, the regulations fail to make clear what is intended. The Committee accordingly reports regulation 1 for defective drafting.

3S.I. 2017/336: Reported for failure to comply with proper legislative practice

Further Education Loans (Amendment) Regulations 2017

3.1The 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.

3.2These regulations set out the maximum amount of loan available to a student for a designated course starting on or after 1st August 2017. The maximum loan amounts are determined by reference to guided learning hours (“GLH”) and in some cases by Learning Aim Reference (a unique number allocated by the Skills Funding Agency). The Explanatory Note states that the GLH and Learning Aim Reference of a further education course can be found on Ofqual’s Register of Qualifications (and gives the internet link) but goes on to state that Ofqual does not make available hard copies of the register as updated from time to time.

3.3The Committee asked the Department for Education to explain why hard copies of Ofqual’s Register of Qualifications are not made available for inspection.

3.4In a memorandum printed at Appendix 3, the Department acknowledges that it should have been made clear that hard copies of the Register are available from the Department on request. The Department undertakes to make this clear on the relevant government website and will consider arranging for a correction slip (which the Committee agrees would be appropriate).

3.5The Committee repeats its concern that documents given a significance by subordinate legislation should be available to citizens who do not have access (or ready access) to the internet and accordingly reports the Regulations for failure to comply with proper legislative practice, acknowledged by the Department.

4S.I. 2017/366: Reported for doubtful vires and for requiring elucidation

Insolvency (England and Wales) (Amendment) Rules 2017

4.1The Committee draws the special attention of both Houses to these Rules on the grounds that they fail to address the Committee’s previous vires concern and that they require elucidation in one respect.

4.2These Rules amend provisions of the Insolvency (England and Wales) Rules 2016 (“the 2016 Rules”) which came in to force on 6 April 2017. The 2016 Rules were reported for defective drafting in seven respects and giving rise as to doubt, in one respect, as to whether they are intra vires (Committee’s Sixteenth Report of 2016–17 relating to S.I. 2016/1024).

4.3The majority of the Committee’s concerns have been dealt with either in this instrument or via correction slip. However, the Committee asked the Department for Business, Energy and Industrial Strategy to explain whether the concern of the Committee set out in paragraphs 1.10 to 1.13 of the Sixteenth Report of Session 2016/17 relating to S.I. 2016/1024 had been addressed and, if not, why not. (The Committee’s concern in those paragraphs was that Rule 10.36 did not allow a debtor to make a hard copy application for bankruptcy (as opposed to an electronic application)).

4.4In a memorandum printed at Appendix 4, the Department maintains the view, expressed in its memorandum to the Committee in relation to S.I. 2016/1024, that rule 10.36, as drafted, is intra vires. The Department acknowledges the concerns expressed by the Committee about the undesirability of assuming that all citizens have ready access to, or wish to use, electronic communication and about restricting the ability to use paper and post in such circumstances. The Department goes on to explain that the Insolvency Service has processes in place to assist those who do not have access to electronic communications. The Insolvency Service Enquiry Line provides an assisted digital service for such individuals. A member of the Enquiry Line team will work through the application over the phone with the applicant, record the answers on line, print off the completed form and send it to the applicant to print, sign and return. When the applicant returns the form the Enquiry Line official will submit the form online. The application is then dealt with by the Adjudicator who will write to the applicant if they do not have an email address.

4.5The Committee is grateful for this explanation of the processes that are in place to assist those who do not have access to the internet. However, these processes are outside the legislation and the Committee’s earlier concerns remain. The Committee accordingly continues to report the Rule 10.36(1) of the 2016 Rules, in so far as it fails to cover a possibility of a hard copy application, as giving rise as to doubt as to whether it is intra vires.

4.6Section 413(2) of the Insolvency Act 1986 requires the Lord Chancellor to consult the Insolvency Rules Committee before making (or amending) the insolvency rules. The Explanatory Memorandum to this instrument states that no formal consultation has been carried out but the preamble states that the Lord Chancellor has consulted the Insolvency Rules Committee. The Committee sought an explanation for the inconsistency.

4.7The Department acknowledges and apologises for the error in the Explanatory Memorandum. The Insolvency Rules Committee was consulted before these Rules were made. The reference in the Explanatory Memorandum was to the fact that a formal consultation of business stakeholders and other interested parties did not take place and the Department apologises for any confusion caused. The Committee accordingly reports the preamble to the Rules as requiring the elucidation provided by the Department.

5S.I. 2017/369: Reported for doubt as to whether they are intra vires and for defective drafting

Insolvency (England and Wales) Rules 2016 (Consequential Amendments and Savings) Rules 2017

5.1The Committee draws the special attention of both Houses to these Rules on the grounds that there is doubt as to whether they are intra vires in three related respects and that they are defectively drafted in seven respects.

5.2The Insolvency (England and Wales) Rules 2016 came in to force on 6 April 2017 and repeal and replace the Insolvency Rules 1986 (the “1986 Rules”). This instrument makes consequential amendments and savings provisions to various pieces of primary and secondary legislation that refer to the 1986 Rules, often to substitute reference to the Insolvency (England and Wales) Rules 2016 for the Insolvency Rules 1986.

5.3The Committee asked the Department for Business, Energy and Industrial Strategy to explain the source of the power to include amendments to primary legislation.

5.4In a memorandum printed at Appendix 5, the Department explains that the powers in sections 411(2)(b) and 412(2)(b) of the Insolvency Act 1986 (the “Act”) enable the making of incidental and supplemental provisions to the Rules. It asserts that the Act does not limit the exercise of these powers to provisions which amend secondary legislation. In this case, where there were three references to the Insolvency Rules 1986 in primary legislation, the Department considered that it would be legitimate to make these very small changes under the powers in sections 411 and 412 as being incidental on the making of the new Rules. The alternative would have been to leave users to rely on section 17(2) of the Interpretation Act 1978 (repeal and re-enactment). In the view of the Department, this would have been less clear from the perspective of users of the legislation.

5.5The Committee agrees that the Department’s approach is clearer than relying on the Interpretation Act, but the enabling power is not sufficient to allow this approach and there is a strong presumption against subordinate legislation interfering with primary legislation. Where amendments are made to primary legislation (however minor) there must be express power to make those amendments. The power to make incidental and supplemental provision cannot be relied on for this purpose. The Committee accordingly reports paragraphs 1, 2 and 3 of Schedule 1 for doubt as to whether they are intra vires.

5.6The instrument also contains a number of drafting errors and the Committee asked the Department to explain the reasons for the apparent errors. In the memorandum referred to above, the Department accepts that the seven matters raised are indeed drafting errors and apologises for those errors. The Committee is grateful to the Department for undertaking to take steps to ensure its processes for quality control of secondary legislation are more rigorously applied in future. The Committee accordingly reports Rule 3(a) and paragraphs 1, 2, 3(3)(a), 9, 11 and 12(3) for defective drafting, acknowledged by the Department.

6S.I. 2017/373 and S.I. 2017/613: Reported for requiring elucidation

Social Security (Miscellaneous Amendments No. 2) Regulations 2017: and Social Security (Miscellaneous Amendments No. 3) Regulations 2017

6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation.

6.2In each of the Regulations, the Northern Ireland Department for Communities concurred to the making of the Regulations on a date before the date they were made by H.M. Treasury. The Committee asked H.M. Treasury to explain how the Northern Ireland Department for Communities was able to concur in the making of the regulations before they were made.

6.3In memoranda prepared by Her Majesty’s Revenue and Customs on behalf of H.M. Treasury printed at Appendix 6 and Appendix 7, the Department appears to confirm that despite the dates, concurrence was given to the respective final texts. On that basis, the Committee reports these Regulations as requiring the elucidation provided by the Department.

7S.I. 2017/390 and S.I. 2017/401: Reported for failure to comply with proper legislative practice

Road Traffic Act 1988 (Motor Racing) (England) Regulations 2017: and Deregulation Act 2015 (Birmingham City Council Act 1985) (Repeal) Regulations 2017

7.1The 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.

7.2The Road Traffic Act 1988 (Motor Racing) (England) Regulations 2017 authorise two motor sport governing bodies to issue permits to persons wishing to promote a race or trial of speed on a public way in England before making an application to a highway authority for a motor race order.

7.3The Deregulation Act 2015 (Birmingham City Council Act 1985) (Repeal) Regulations 2017 repeal the Birmingham City Council Act 1985 which allows motor racing to take place on particular streets in Birmingham. This repeal follows shortly after the commencement of section 73 of the Deregulation Act 2015 which makes provision for highway authorities in England and Wales to issue motor race orders, allowing motor racing events to take place on public highways.

7.4The Committee asked the Department for Transport to explain why the respective preambles do not recite that consultation has taken place in accordance with section 195(2) of the Road Traffic Act 1988 (in the case of the Road Traffic Act 1988 (Motor Racing) (England) Regulations 2017) and in accordance with section 75(8) of the Deregulation Act 2015 (in the case of the Deregulation Act 2015 (Birmingham City Council Act 1985) (Repeal) Regulations 2017) as required by paragraph 3.11.28 of Statutory Instrument Practice 5th Edition May 2017 (previously paragraph 2.4.7 of 4th Edition).

7.5In a memorandum printed at Appendix 8, the Department agrees that both instruments ought to have recited in the preamble the fact that consultation had taken place in accordance with section 195(2) of the Road Traffic Act 1988 and section 75(8) of the Deregulation Act 2015 respectively and apologises for these omissions. The Department explains that the Explanatory Memorandum makes clear that the required consultations were carried out before each of the Regulations was made and confirms that the statutory conditions for making each of the Regulations were complied with. The Department undertakes to take steps to ensure that the requirement to recite that consultation has taken place will be complied with in future. On that basis, the Committee reports both Regulations for failure to comply with proper legislative practice, acknowledged by the Department.

8S.I. 2017/521: Reported for defective drafting

Gangmasters and Labour Abuse Authority (Complaints and Misconduct) Regulations 2017

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

8.2Regulation 23 of this instrument deals with the procedure to be followed by the Chief Executive of the Gangmasters and Labour Abuse Authority on receipt by him of a complaint about the conduct of a labour abuse prevention officer. Paragraph (3) of regulation 23 contains material which has no apparent relevance to the remainder and in fact merely replicates footnote (a) on page 2 of the instrument explaining amendments that have been made to section 24 of the Police Reform Act 2002.

8.3In a memorandum printed at Appendix 9, the Home Office states that the inclusion of this text was an error, which occurred during the validation process of the statutory instrument template on which instruments are now drafted. The Department sets out at paragraph 3 of its memorandum the text that should have been contained in paragraph (3).

8.4The Department apologises for this error, and undertakes to correct it at the earliest opportunity. It goes on to say why in its view the omission in the meantime of the intended provision is unlikely to affect the proper operation of the instrument. The Committee agrees with the Department’s view.

8.5The Committee accordingly reports regulation 23(3) for defective drafting, acknowledged by the Department.

9S.I. 2017/555: Reported for an unjustifiable breach of the 21-day rule

Care and Support (Charging and Assessment of Resources) (Amendment) Regulations 2017

9.1The Committee draws the special attention of both Houses to these Regulations on the ground that there appears to have been an unjustifiable breach of the 21-day rule.

9.2These Regulations were made on 8 April and laid before Parliament on 10 April. They also came into force on 10 April. They therefore contravene the 21-day rule: that a negative instrument should be laid at least 21 days before it is to come into force.

9.3In section 3 of the Explanatory Memorandum laid with this instrument, the Department of Health explains with commendable candour that those affected by the instrument were expecting it to come into force on 10 April, but due to an oversight within the Department there was a failure to comply with the normal rules relating to the making and laying etc. of instruments. As a result of the error the Regulations were expressed to have been laid and come into force on the same day. The Department is investigating how the error occurred with a view to preventing any repetition. The Department has since advised the Committee’s staff that it does not wish to add to what it said in the Explanatory Memorandum.

9.4The Committee according reports these Regulations for an unjustifiable breach of the 21-day rule, acknowledged by the Department.

10S.I. 2017/572: Reported for defective drafting

Infrastructure Planning (Environmental Impact Assessment) Regulations 2017

10.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in seven related respects.

10.2These regulations transpose changes made to EU Directive 2011/92/EU by EU Directive 2014/52/EU in relation to environmental impact assessment of certain developments which are given consent for development under the town and country planning laws of England and through the nationally significant infrastructure planning regime. Under regulations 16, 19, 20, 22 and 24, the applicant is required to certify compliance with the relevant requirements in the forms set out in Schedule 5 to the Regulations.

10.3The Committee asked the Department for Communities and Local Government to explain why (1) all of the certificates in Schedule 5 contain the wording “Complete certificate to be received by the Secretary of State….” when the certifications in Certificate 2 and 3 are made to the Examining authority and the certifications in Certificates 4 and 5 are made to the relevant authority, and (2) certificates 2, 3 and 5 do not appear to cover the obligation to publish on a website.

10.4In a memorandum printed at Appendix 10, the Department acknowledges these errors and undertakes to arrange for the certificates to be amended. The Committee accordingly reports the certificates in Schedule 5 for defective drafting, acknowledged by the Department.

11S.I. 2017/582: Reported for failure to comply with normal legislative practice

Offshore Petroleum Production and Pipe-lines (Environmental Impact Assessment and other Miscellaneous Provisions) (Amendment) Regulations 2017

11.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with normal legislative practice in one respect.

11.2These Regulations implement the provisions of Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment as it applies to certain offshore hydrocarbon related developments including pipe-lines, onshore pipe-line projects, and to pipe-line works by a public gas transporter, and to oil, gas or chemical pipe-lines on land.

11.3Consent of H.M. Treasury is required in order to use the powers in section 56 of the Finance Act 1973 to make regulation 19 of the Regulations. The preamble recites that the regulations are made with the consent of the Treasury but the signature does not indicate that the Treasury has consented. The Department for Business Energy and Industrial Strategy was asked to explain the inconsistency.

11.4In a memorandum printed at Appendix 11, the Department confirms that consent was given by H.M. Treasury. The Department asserts that there is no absolute requirement that consent must be established by signature but acknowledges that failure to obtain these signatures was an oversight for which it apologises and undertakes to obtain the Lords Commissioners’ signatures for future uses of the section 56 power. The Committee accordingly reports the Regulations for failure to comply with normal legislative practice, acknowledged by the Department.

12S.I. 2017/601: Reported for defective drafting

Folkestone Harbour Revision Order 2017

12.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in three identical respects.

12.2Articles 12(2), 14(2) and 15(2) create offences which are punishable on summary conviction by a fine not exceeding the statutory maximum and on conviction on indictment by a fine.

12.3In a memorandum printed at Appendix 12, the Department for Transport states that the inclusion of references to the statutory maximum was a drafting error and that the italicised words should have been omitted. The Committee accordingly reports articles 12(2), 14(2) and 15(2) for defective drafting, acknowledged by the Department for Transport.

12.4The Committee notes, however, that the power to make this instrument had been delegated to the Marine Management Organisation and was not exercisable by the Department. It is therefore surprised that the reply to the Committee’s question came from the Department and not from that Organisation, and trusts that satisfactory arrangements have been made between the two to ensure that statutory instruments are properly prepared.

13S.I. 2017/730: Reported for requiring elucidation

Criminal Justice (European Investigation Order) Regulations 2017

13.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.

13.2These Regulations give effect to Directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order (“the Directive”). Regulation 59 designates the Directive as an EU mutual assistance instrument for the purposes of section 10 of the Investigatory Powers Act 2016 (“the 2016 Act”) enabling the UK to make or give effect to European investigation orders relating to the interception of telecommunications.

13.3Section 10 of the Investigatory Powers Act 2016 is not yet in force. The Committee asked the Home Office to explain why regulation 59 purports to be made in exercise of the powers conferred by section 10(3) of the Investigatory Powers Act 2016 at a time when it is not yet in force; and if reliance is placed on section 13 of the Interpretation Act 1978 (anticipatory exercise of powers) to explain the justification for that reliance.

13.4In a memorandum printed at Appendix 13, the Department confirms that reliance is placed on section 13(1)(b) in relation to regulation 59 of the Regulations. The Department confirms that (as explained below) reliance on section 13 was considered necessary for the purpose of giving full effect to section 10 at the time it comes into force.

13.5The Department explains that the reference to “EU mutual assistance instrument” in section 10 was included with the Directive in mind, being an EU instrument which creates obligations in relation to cross-border requests for the interception of communications. It is necessary for the designation to be in place at the time the regime created by the 2016 Act comes into force for the UK to continue to be able fulfil its obligations under the Directive. Currently these obligations are fulfilled through the Regulation of Investigatory Powers Act 2000 (as amended by the Regulations), which expressly refers to the Directive in sections 1(4B)(b) and section 20. Those provisions will cease to have effect on the entry into force of section 10 of the 2016 Act.

13.6The Committee is satisfied with this explanation and accordingly reports the Regulations for requiring the elucidation provided by the Department.





30 November 2017