Instruments reported
At its meeting on 20 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 three 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. 2017/943: Reported for defective drafting and for failure to comply with proper legislative practice
Fishing Vessels (Codes of Practice) Regulations 2017
1.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in one respect and fail to comply with proper legislative practice in one respect.
1.2These Regulations update and consolidate existing regulations relating to fishing safety and enact three Codes of Practice for the construction and safe operation of fishing vessels. Regulation 5 provides that a fishing vessel cannot proceed on a voyage unless it has a certificate of compliance. The Committee asked the Department for Transport to explain whether it is intended that incidental and preparatory journeys, for purposes of repair or similar, are exempted from the requirement for a certificate of compliance, and, if so, how effect is given to that intention. In a memorandum printed at Appendix 1, the Department explains that the requirement for a certificate of compliance applies only to fishing vessels, the definition of which is contained in section 313 of the Merchant Shipping Act 1995, which, in so far as relevant, provides: “fishing vessel” means a vessel for the time being used […] for, or in connection with fishing for sea fish […]. The Department asserts that the definition applies on a voyage by voyage basis and that a ship proceeding on a voyage for the purposes of repair would not fall within the definition of a “fishing vessel” during that voyage. The Committee is not convinced: in particular, one might have thought that the words “or in connection with” in the definition of “fishing vessel” were designed precisely to catch repair and other operations during which the vessel is not being used “for fishing” but is being prepared for use for fishing and is therefore being used “in connection with fishing”. The Department does not cite authority on the point and the Committee has not found any: in the absence of clear authority, the Committee believes that the provision should have been drafted so as to put it beyond doubt whether a certificate of compliance is required for ancillary journeys (both possible answers being plausible as a matter of policy). The Committee accordingly reports regulation 5 for defective drafting.
1.3The Regulations refer to three Codes of Practice. The Regulations do not include information about how the Codes can be accessed, although paragraph 9.2 of the Explanatory Memorandum does. The Committee asked the Department why the information was not given in the Regulations. In its memorandum the Department accepts that it would have been appropriate for the information to have been included in the Regulations themselves. Either a footnote or inclusion in the Explanatory Note would have been normal, and helpful for readers who might not be aware of, or think to access, the Explanatory Memorandum. This is the usual practice for information which readers may reasonably require in order to understand the effect of the instrument. In the Committee’s opinion, the Explanatory Memorandum which is routinely laid before Parliament with statutory instruments is an enormously helpful document, and provides valuable background information about the policy intention and the legal context; but it should be used for added-value material of that kind, and not for basic information which readers require in order to understand the effect of the instrument, which would include access information for documents on which the instrument relies. The Committee accordingly reports the Regulations for failure to comply with proper legislative practice, acknowledged by the Department.
2S.I. 2017/958: Reported for failure to comply with proper legislative practice
NHS Counter Fraud Authority (Establishment, Constitution, and Staff and Other Transfer Provisions) Order 2017
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.
2.2This instrument establishes a new special health authority, the NHS Counter Fraud Authority, to carry out the Secretary of State’s counter fraud functions relating to the health service in England. It provides for the transfer from the old authority (BSA) of staff and property concerned in delivering the Secretary of State’s counter fraud functions prior to 1 November 2017. Article 9 provides that items of property of the BSA identified in the document “The NHS Business Services Authority Transfer of Property to the NHS Counter Fraud Authority Agreement 2017” signed on 26 September 2017 are to be transferred on the transfer date. No indication is given of where this document is available. The Committee asked the Department of Health to explain where the document referred to in article 9(1) is available.
2.3In a memorandum printed at Appendix 2, the Department explain that some of the property in the Agreement, or aspects of its description, is sensitive, for example, in terms of IT or operational security or because of third party commercial interests. The Department therefore does not intend to publish the Agreement, but arrangements for inspection of a version omitting the sensitive information may be made via the Department’s Anti-Fraud Unit at 39 Victoria Street, London SW1H 0EU.
2.4The Regulations could have defined the class of transferred property in general terms by reference to the purpose for which it is held, as is commonly done in Transfer of Functions Orders under the Ministers of the Crown Act 1975. Once the Regulations have chosen to make a precise transfer by reference to a specified document, it is unhelpful to deny the public access to the document on grounds of sensitivity. The Committee notes, however, the Department’s arrangements for access to a redacted version of the Agreement and acknowledgement that it would have been helpful to include a reference to the arrangements in explanatory material. The Committee believes that in order for readers to be able to understand the effect of the law it is important that documents referred to in legislation should be made publicly available, and accordingly reports article 9(1) for failure to comply with proper legislative practice.
3S.I. 2017/1070: Reported for failure to comply with proper legislative practice and for requiring elucidation
Environmental Impact Assessment (Miscellaneous Amendments Relating to Harbours, Highways and Transport) Regulations 2017
3.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they fail to comply with proper legislative practice in one respect and require elucidation in three related respects.
3.2These Regulations amend the Harbours Act 1964, the Highways Act 1980, the Transport and Works Act 1992 and the Transport and Works (Application and Objections Procedure) (England and Wales) Rules 2006 to enable the procedures governing applications for Harbour Revision and Empowerment Orders under the 1964 Act, decisions in respect of trunk road projects under Part 5A of the 1980 Act and applications for Orders under Part 1 of the 1992 Act to comply with the European Union Directive governing environmental impact assessments.
3.3The Regulations rely on section 105 of the Deregulation Act 2015, which allows any provision that may be made by order, regulations or rules to be made by any other of those forms of legislation made by statutory instrument. The purpose of the section is to allow instruments with cognate purposes to be combined, whether or not the enabling power prescribes the same form (the choice of which has become increasingly arbitrary in recent decades). The preamble to the Regulations cites section 105 of the 2015 Act. The Committee asked the Department to explain that, having regard to the fact that the new edition of Statutory Instrument Practice states (paragraph 1.4.7) that reliance on section 105 should be cited neither in the preamble nor in a footnote. In a memorandum printed at Appendix 3, the Department accepts that there was no need to have referred to section 105 in the preamble and apologises to the Committee for this oversight. The Committee expresses no view at present as to whether it agrees with the line taken by Statutory Instrument Practice in this respect, having regard to the decision of the Court of Appeal in Vibixa Ltd and another v Komori UK Ltd and others [2006] EWCA Civ 536 and generally; but, subject to that, it is obviously important that drafting practice across all statutory instruments should be consistent where inconsistency could cause doubts or confusion, and should accord with published statements of intention. The Committee accordingly reports the preamble for failure to comply with proper legislative practice, acknowledged by the Department.
3.4The Committee also asked the Department to explain the inclusion of reference to regulations in the Conservation of Habitat and Species Regulations 2010 which were to have been repealed before these Regulations came in to force: Schedule 2, paragraph 2 (inserted regulation 105ZA) and paragraph 4 (inserted regulation 105BA(2)(b); and Schedule 4, paragraph 7 (inserted regulation 8A(2). In its memorandum, the Department acknowledges that these Regulations include reference to regulations which had been revoked when these Regulations came into force. It explains that “The Department was not aware at the time that these Regulations were made that another Department had made the Conservation of Habitats and Species Regulations 2017 … a matter of days beforehand. The Department regrets that this was the case.” The Department also argues that section 17 of the Interpretation Act 1978 ensures that the provision made in these Regulations in relation to the 2010 Regulations remains effective. Although in an ideal world drafting Departments would be fully aware of each others’ activities and take them into account, the size and complexity of legislative activity today makes that clearly impossible; incidents such as this are therefore bound to occur from time to time. The Committee agrees that section 17 of the Interpretation Act 1978 will do what is required; any suggestion that its effect is contra-indicated by the obsolete reference having been inserted after the repeal should be sufficiently rebutted by the opportunity that this exchange with the Committee has given to the Government to record publicly that this was simply a failure in inter-departmental communication. The Committee accordingly reports Schedule 2, paragraphs 2 and 4 and Schedule 4, paragraph 7 as requiring elucidation, provided by the Department’s memorandum.
20 December 2017