Instruments reported
At its meeting on 6 December 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 twelve 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. 2017/155: Reported for requiring elucidation
Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment) Regulations 2017
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
1.2These Regulations amend the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009 (“the 2009 Regulations”) in relation to non-domestic rating lists compiled on or after 1 April 2017. They provide a check, challenge and appeals procedure in relation to challenging a rateable value.
1.3Regulation 16 inserts regulation 13A(2) into the 2009 Regulations in relation to appeals on valuation, with a formula that focuses on reasonableness. The Committee asked the Department for Communities and Local Government to explain the use of reasonableness as a criterion, given that the enabling power in section 55(5)(b) of the Local Government Finance Act 1988 refers to the accuracy of a non-domestic rating list and not its reasonableness.
1.4In a memorandum printed at Appendix 1, the Department asserts that a ground of appeal based on the reasonableness of that valuation is consistent with both Schedule 6 to the 1988 Act (which makes it clear that determination of rateable value is based on estimate of rental value) and the statutory duty of the valuation officer to maintain an accurate list. The Department adds that although the power in section 55(5)(b) of the 1988 Act enables provision about appeals about the accuracy of the list, section 55(5A) of the Act allows regulations to include provision about the grounds on which an appeal can be made and is not limited to accuracy.
1.5On balance, the Committee is satisfied that the Department has a reasonable argument to support casting a ground of appeal on the basis that the valuation for the hereditament is not reasonable. The Committee accordingly reports regulation 16 as requiring elucidation, provided by the Department.
2S.I. 2017/325: Reported for defective drafting and for requiring elucidation
Freight Containers (Safety Convention) 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 and require elucidation in another respect.
2.2These Regulations give effect to The International Convention for Safe Containers 1972 (“the Convention”) which the UK ratified in 1978. They revoke the Freight Containers (Safety Convention) Regulations 1984 which previously gave effect to the Convention, and replace them with regulations giving effect to the current version of the Convention, which has been amended several times since 1984. The Convention is aimed at maintaining a high level of safety in the transport and handling of containers by providing internationally acceptable test procedures and related strength requirements.
2.3The Committee asked the Department for Work and Pensions to explain the inclusion of two sets of paragraphs (a) and (b) in the definition of “container” in regulation 2. In a memorandum printed at Appendix 2, the Department accepts that it ought to have labelled the paragraphs in the definition of “container” differently so that (a) and (b) did not appear twice in the same definition. The Committee accordingly reports regulation 2 for defective drafting, acknowledged by the Department.
2.4The Committee also asked the Department to explain whether regulation 5(1)(b)(ii) is intended to give the Health and Safety Executive the power to invalidate approvals issued by other persons and, if so, how effect is given to that intention. In its memorandum the Department confirms that regulation 5(1)(b)(ii) is intended to have that effect. The mechanism for withdrawing approvals is set out in the “Green Guide” (which is referred to in the Explanatory Note). The Department adds that it is not the intention to allow the Health and Safety Executive to withdraw approvals issued by other contracting States, as this is not permitted under the Convention. The Committee accordingly reports regulation 5 for requiring elucidation, provided by the Department.
3S.I. 2017/669: Reported for failure to comply with proper legislative practice
Wireless Telegraphy (Mobile Communication Services on Aircraft) (Exemption) 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 are drafted by OFCOM and refer to standards published by the European Telecommunications Standards Institute (ETSI) in the Official Journal of the European Union which wireless telegraphy apparatus must comply with.
3.3The Committee asked OFCOM to explain why hard copies of the ETSI standards referred to in the Regulations are not made available for inspection. In a memorandum printed at Appendix 3, the Department apologises for the oversight and intends to correct this omission shortly by way of correction slip. The Committee agrees that this change can properly be done by correction slip.
3.4The Committee has repeatedly stressed its concern that documents given a significance by subordinate legislation should be available to those 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. 2017/701: Reported for defective drafting
Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017
4.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in eleven respects.
4.2These Regulations transpose Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments (recast) (MiFID II) and contain provisions to give effect to Regulation (EU) No. 600/2014 of the European Parliament and Council on markets in financial instruments (MiFIR).
4.3The instrument contains several drafting errors and the Committee asked HM Treasury to explain the reasons for the apparent errors.
4.4In a memorandum printed at Appendix 4 (which specifies the errors complained of), the Department acknowledges the errors. The Committee notes that an amending instrument will be made to correct these errors in the near future. The Committee accordingly reports the Regulations for defective drafting, acknowledged by the Department.
5S.I. 2017/706: Reported for failure to comply with proper legislative practice
Antarctic (Amendment) Regulations 2017
5.1The 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.
5.2These Regulations update the internationally recognised descriptions of the places that have been designated under the Antarctic Treaty System as Antarctic Specially Protected Areas or Historic Sites and Monuments. Schedule 1 to the Regulations describes restricted areas where a permit is required for entry. For each area co-ordinates are given together with a description of the boundaries of the area and then a reference to a map or maps of the area published at certain pages of Command Papers.
5.3The Committee asked the Foreign and Commonwealth Office to explain why: (1) an address is not given where hard copies of the maps can be inspected; and (2) a website address for the maps is not given.
5.4In a memorandum printed at Appendix 5, the Department acknowledges, with respect to the first question, that the Regulations could have included reference to the fact that hard copies of the Command Papers are available for inspection free of charge at the Parliamentary Archives and will include this information in future revisions of the instrument. With respect to those maps that have not been reproduced in Command Papers, hard copies of the relevant Reports of the Antarctic Treaty Consultative Meeting are not generally available. The Department will give further thought to how to approach this issue in future revisions of these Regulations.
5.5In relation to the second question, the Department recognises that a weblink could have been provided for each Command Paper and will include this information in future revisions of the Regulations.
5.6The Committee has repeatedly stressed its concern that documents given a significance by subordinate legislation should be available both to citizens who do not have access (or ready access) to the internet and to citizens who do have such access. The Committee accordingly reports the Regulations for failure to comply with proper legislative practice, acknowledged by the Department.
6S.I. 2017/737: Reported for defective drafting
Recreational Craft Regulations 2017
6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in four respects.
6.2These Regulations implement the revised EU Directive 2013/53/EU of the European Parliament and of the Council of 20 November 2013 on recreational craft and personal watercraft. The Committee asked the Department for Business, Energy and Industrial Strategy to explain four issues:
(1) Why regulation 14(2) does not state who is responsible for complying with the obligation in that regulation.
6.3In a memorandum printed at Appendix 6, the Department asserts the view that even though regulation 14(2) does not specifically mention the manufacturer, it is clear from the surrounding provisions that the obligation rests with the manufacturer without the need to state who is responsible for the obligation in that paragraph. The Committee does not agree. The duty in paragraph 14(1) is expressly placed on the manufacturer. Paragraph (2) deals with the case where it is not possible to comply with the duty under paragraph (1) and it poses an alternative duty. It is not inevitable that the alternative duties will be placed on the person obliged to comply with the original duty, and as a matter of good drafting practice it is essential that the recipient of each legislative duty is made clear either by express provision or by necessary implication. The Committee notes that the Regulations themselves acknowledge this in regulations 13 and 21, where the provision imposing an alternative duty expressly states on whom the duty is imposed, despite the fact that in both cases it is the same as the person on whom the original duty is imposed. The Committee accordingly reports Regulation 14(2) for defective drafting.
(2) Whether the obligation in regulation 32(3) arises when the product is placed on the market or made available on the market.
6.4In a memorandum printed at Appendix 6, the Department explains that the word “placed” is a typographical error and should be removed from the phrase “the distributor has made available placed on the market” in regulation 32(3). The Department asserts that since distributor is defined by reference to being a person who makes a product available on the market, it is clear that regulation 32(2) should refer to products made available on the market. The Department intends to remove the word “placed” by correction slip. The Committee does not agree that this change can properly be made by correction slip: making products available and placing them on the market are different concepts, each of which has a distinct meaning; even where it is reasonably obvious in the context which intention is the more appropriate. The legislative intent must be achieved by the text of the instrument made in the proper way, and not by later editorial adjustments made by civil servants. If the Department are clear that the meaning is obvious despite the typographical error, they may be prepared to leave the instrument in its present form; if, however, they believe that it requires amendment, only and amending instrument is appropriate to achieve that. The Committee reports Regulation 32(3) for defective drafting, acknowledged by the Department.
(3) Why contraventions of regulations 18 and 19 in relation to importers are not made offences under regulation 73 (especially given that similar contraventions in relation to distributors in regulations 27 and 28 are made offences under that regulation).
6.5In a memorandum printed at Appendix 6, the Department is grateful to the Committee for pointing this out and intends to amend regulation 73 to include regulations 18 and 19 when a suitable opportunity arises. The Department also points out that until such opportunity arises, the regulations do contain provisions which help to ensure both that only compliant products are placed on the market by the importer and that action can be taken if the importer does not comply with its duties. The Committee reports Regulation 73 for defective drafting, acknowledged by the Department.
(4) Whether the amendments to primary legislation in paragraphs 2(h), (j), (k)(ii)(bb), (l)(ii) to (iv) and (vi) to (viii) of Schedule 13 are correct given that they refer to the Recreational Craft Regulations 2016.
6.6In a memorandum printed at Appendix 6, the Department acknowledges that the references should refer to the Recreational Craft Regulations 2017 and intends to correct these errors by correction slip. The Committee agrees that these changes can properly be made by correction slip. The Committee reports Schedule 13 for defective drafting, acknowledged by the Department.
7S.I. 2017/754: Reported for requiring elucidation
European Union Financial Sanctions (Amendment of Information Provisions) Regulations 2017
7.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
7.2These Regulations extend existing enforcement provisions set out in UK financial sanctions statutory instruments (which currently apply only to financial institutions) to auditors, casinos, dealers in precious metals or stones, estate agents, external accountants, independent legal professionals, tax advisers and trust or company service providers. These businesses and professions will commit an offence if they fail to comply with the reporting obligations set out in the statutory instruments to which the enforcement provisions are being extended.
7.3The Committee received a letter from several law firms in relation to these Regulations expressing substantial concerns about the Regulation’s significantly increased reporting obligations on legal professionals (and others) which, in their view are unprecedented and go beyond those mandated by the EU measures underlying them. The Committee asked HM Treasury to explain the basis on which the Department is satisfied that these Regulations do not impose requirements in excess of those imposed by EU law in this area.
7.4In a memorandum printed at Appendix 7, the Department explains that it is satisfied that these Regulations do not impose requirements in excess of those imposed by EU law in this area. Section 2(2)(a) of the European Communities Act 1972 (the “Act”) empowers the Treasury to make regulations “for the purpose of implementing any [EU obligation] of the United Kingdom, or enabling any such obligation to be implemented….”
7.5EU financial sanctions regulations are directly applicable in the UK. All relevant EU financial sanctions regulations state that “natural and legal persons, entities and bodies shall supply immediately any information which would facilitate compliance with this Regulation…… to the competent authority of the Member State….” (see Article 29 Council Regulation (EU) 36/2012). They also contain standard text regarding enforcement, which reads “Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive” (see Article 33 Council Regulation (EU) 36/2012).
7.6The Department explains that it made these Regulations in the exercise of its mandate to lay down rules on penalties applicable to infringements of the relevant EU financial sanctions regulations, to extend the enforceability of the already existing reporting obligation imposed by the directly applicable EU financial sanctions regulations. The effect of these Regulations is to extend the enforceability of the reporting obligation to a wider group of businesses and professions. The Committee notes the Department’s explanation and reports the Regulations for requiring elucidation, provided by the Department.
8S.I. 2017/756: Reported for requiring elucidation
National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017
8.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation.
8.2These Regulations amend the National Health Service (Charges to Overseas Visitors) Regulations 2015 (the “Charging Regulations”) to extend the obligation to charge for NHS-funded services provided in respect of overseas visitors to include secondary and community services provided by other non-NHS providers.
8.3The definition of a “relevant body” that is now required to identify and charge patients not eligible for free care has been extended to a list of bodies and then a catch all “(d) any other person providing relevant services.” “Relevant services” is defined in regulation 2 of the Charging Regulations and means, subject to some exceptions, “accommodation, services or facilities which are provided, or whose provision is arranged under the [National Health Service Act 2006]”. The Committee asked the Department of Health to clarify which persons are intended to be covered by the wording “any other person providing relevant services” in the definition of “relevant body” in regulation 2(3), in particular, whether public health services that are commissioned by local authorities such as public mental health services, drug treatment services and other services provided by voluntary sector organisations are intended to be covered.
8.4In a memorandum printed at Appendix 8, the Department explains that the intention is that paragraph (d) of the definition of “relevant body” should capture any body other than an NHS foundation trust, NHS trust or a local authority that is providing relevant services. This would include private and voluntary sector organisations if they are providing relevant services. If the services are “relevant services”, it does not matter whether the services were commissioned by a local authority or by an NHS body, the intention is that the provider of those services will fall within paragraph (d).
8.5The Department further explains that the question of whether particular services (including mental health and substance abuse services) are chargeable to non-exempt overseas visitors depends on the contractual arrangements governing the provision of the services and the nature of the services, as providers must consider, on a service-by-service basis, whether the services are relevant services within the definition set out in the Charging Regulations. There was no policy intention to provide a complete exemption for mental health or substance abuse services. So it is intended that voluntary sector organisations that are commissioned by local authorities to provide relevant services are to be covered by the wording “any other person providing relevant services” and the Department considers that the amendment in regulation 2(3) of these Regulations achieves that intention. Accordingly the Committee reports the Regulations for requiring elucidation, provided by the Department.
9S.I. 2017/835: Reported for defective drafting
Co-ordination of Regulatory Enforcement Regulations 2017
9.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
9.2Primary Authority is a statutory scheme under which a local authority can provide regulatory advice and guidance to a business. These Regulations set out which types of enforcement action fall within the scope of the scheme and set out the process for dealing with disputes relating to proposed enforcement action.
9.3Regulation 7(2) sets out the information that must be included in applications made, to the Secretary of State, for the reference of a dispute for determination. Regulation 7(2) is split into three sections according to who is making the reference. Regulation 7(2)(b) sets out the information required from a regulated person making a reference. As drafted, the regulated person is required to provide information as to why the enforcement action is “not inconsistent” with primary authority advice that the regulated person has received. The Committee asked the Department for Business, Energy and Industrial Strategy to explain the meaning of “not inconsistent” as it seemed to the Committee that the regulated person would be required to provide information as to why the enforcement action is contrary to primary authority advice that the regulated person has received rather than consistent with it.
9.4In a memorandum printed at Appendix 9, the Department explains that the inclusion of the word “not” is clearly a typographical error and as such would look to rectify the error by correction slip. The Committee notes that this is a typographical error, but as deleting “not” changes the meaning of regulation 7(2)(b)(iv)(aa) does not agree that this change is properly done by correction slip. This change is a substantive change to the text and the Committee does not consider that correction slips can properly be used to make substantive changes. The Committee accordingly reports the regulation 7(2)(b)(iv)(aa) for defective drafting, acknowledged by the Department.
10S.I. 2017/855: Reported for an unjustifiable delay in laying them before Parliament
Petroleum and Offshore Gas Storage and Unloading Licensing (Amendment) Regulations 2017
10.1The Committee draws the special attention of both Houses to these Regulations on the ground that there appears to have been unjustifiable delay in laying them before Parliament.
10.2The Regulations amend the model clauses to be incorporated in seaward production licences. Seaward production licences provide an exclusive right to exploit the petroleum resources of a specified area in UK territorial waters.
10.3The Regulations were made on 9 August 2017 but were not laid before Parliament until 25 August 2017. The Department for Business, Energy and Industrial Strategy was asked to explain the significant interval between making and laying.
10.4In a memorandum printed at Appendix 10, the Department explains that the delay was due to the fact that the Impact Assessment had not been cleared by the Regulatory Policy Committee. The Department accepts that the statutory instrument should have been laid as soon as possible after it was made (and apologises to the Committee for the delay) but does not believe that the delay resulted in any negative impact upon the industry or other stakeholders.
10.5The Committee repeats what it said in its Seventeenth Report of Session 2014–15 (in relation to S.I. 2014/2821), its Twelfth Report of Session 2015–16 (in relation to S.I. 2015/1776) and its Twenty-Sixth Report of Session 2016–17 (in relation to S.I.s 2017/66 and 2017/112) that it is difficult to imagine why it could have been necessary to postpone such a simple administrative step as laying before Parliament. The statutory arrangements for laying before Parliament remain part of the required formal measures by which publicity is assured. Once the Regulations had been made and had therefore become law (whether or not yet in force) it was the Department’s duty to arrange for laying before Parliament and publication without delay; the fact that the Department wished to clear a related document with a committee does not provide any reason why Parliament and the public should be left in ignorance of law that has already been made. The Committee repeats that, as a general rule and in the absence of exceptional circumstances, a delay of 10 calendar days or more will amount to an unjustifiable delay. The Committee accordingly reports the Regulations for unjustifiable delay in laying before Parliament, acknowledged by the Department.
11S.I. 2017/868: Reported for failure to comply with proper legislative practice
Employers’ Duties (Miscellaneous Amendments) Regulations 2017
11.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice.
11.2These Regulations ensure the Employers’ Duties (Implementation) (Amendment) Regulations 2017 work as originally intended, to apply the automatic enrolment duties for post staging employers from 1 October 2017 as set out in the government response to the consultation on the draft Employers’ Duties (Implementation) (Amendment) Regulations 2017 published on 10 March 2017.
11.3The Committee asked the Department for Work and Pensions why the free issue procedure (referred to in paragraph 4.7.6 of Statutory Instrument Practice 5th Edition) was not used. In a memorandum printed at Appendix 11, the Department acknowledges that this was an oversight for which it apologises. The Committee is grateful to the Department for undertaking to take steps to refund all known purchasers of the instrument. The Committee reports the Regulations for failure to comply with proper legislative practice, acknowledged by the Department.
12S.R. 2017/176: Reported for defective drafting
Loans for Mortgage Interest Regulations (Northern Ireland) 2017
12.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
12.2These Regulations enable help to be provided to benefit claimants who are homeowners in respect of their liability to make owner-occupier payments (principally mortgage interest) in the form of interest-bearing loan payments.
12.3The italic cross headings state that the instrument comes in to force on 20th October 2017 but regulation 1(2) states that the Regulations come in to operation on 6th April 2018 (for the purposes of regulations 18 to 21) and for all other purposes on 20th October 2017. The Committee asked the Department for Work and Pensions to explain the inconsistency.
12.4In a memorandum printed at Appendix 12, the Department apologises for this inconsistency and explains that it will seek to use a correction slip to amend the italic cross headings at the earliest opportunity. The Committee agrees that this change can properly be made by correction slip (this being inert material). The Committee accordingly reports the italic cross headings for defective drafting, acknowledged by the Department.
7 December 2017