Instruments reported
At its meeting on 31 January 2018 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 eleven 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. 2017/1160: Reported for defective drafting
Childcare (Early Years Provision Free of Charge) (Extended Entitlement) (Amendment) Regulations 2017
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two related respects.
1.2These Regulations amend the Childcare (Early Years Provision Free of Charge) (Extended Entitlement) Regulations 2016 dealing with applications by parents for 30 hours of free childcare.
1.3Regulations 3(2)(c) and (3) make textual amendment of earlier regulations. The Committee suspected that the amendments were defective, and asked the Department for Education to confirm that ”14” should be substituted for “31” in both places in which it occurs in relation to the amendment made by regulation 3(2)(c) and that the phrase “, in both places it occurs,” should be deleted in relation to the amendment made by regulation 3(3).
1.4In a memorandum printed at Appendix 1, the Department confirms that the changes identified by the Committee should be made and undertakes to rectify the errors at the earliest possible opportunity. The Committee accordingly reports regulation 3(2)(c) and (3) for defective drafting, acknowledged by the Department.
2S.I. 2017/1189: Reported for failure to comply with proper legislative practice
Higher Education (Fee Limit Condition) (England) Regulations 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.
2.2These Regulations provide that tuition fees for certain courses of higher education cannot exceed a limit to be set out in separate regulations. Regulation 3 prescribes the higher education providers by reference to those “registered in the ‘Approved (fee cap)’ part of the register” established and maintained by the Office for Students (OfS). There is no indication in the instrument where this register is available and the Committee asked the Department for Education to explain.
2.3In a memorandum printed at Appendix 2, the Department explains that the register does not yet exist. The obligation to create the register, and the related powers of the OfS to enter higher education providers in the different parts of the register come into force at the same time as these Regulations (1 April 2018). From that date the OfS will begin to receive and assess applications for registration from higher education providers. The Department understands that the OfS will fulfil its obligation to make the register publicly available by publishing the register on its website as soon as the register is populated with the names of providers in different registration categories, including the “Approved (fee cap)” category. It is anticipated that the register will be complete by the end of September 2018.
2.4The Department acknowledges that it would have been helpful had the Explanatory Memorandum, or a footnote to the Regulations themselves, contained the above information about the accessibility of the register and related timings; and the Committee’s view is that it is preferable for information of this kind, without which a reader cannot understand the full effect of the legislation, should be included at least in a footnote to the regulations themselves. The Department undertakes to provide this information in subsequent regulations that refer to the register, and to give further consideration as to how that information can readily be made available to readers of these Regulations. The Committee accordingly reports the regulations for failure to comply with proper legislative practice, acknowledged by the Department.
2.5It is unusual to refer in legislation to a document that does not yet exist, and the result will be that for an indeterminate period the provisions of the Regulations will simply “beat the air”. However, the Committee is satisfied that the sequence set out in the Department’s memorandum is within the reasonably contemplated legislative intent.
3S.I. 2017/1199: Reported for defective drafting
Magistrates’ Courts (Adult Protection and Support Orders) Rules 2017
3.1The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted in one respect.
3.2These Rules make provision for applications in the magistrates’ court for Adult Protection and Support Orders under section 127 of the Social Services and Well-being (Wales) Act 2014. They were made on 30 November and laid before Parliament on 4 December. The commencement provision states “These Rules come into force on 1st December 2017, or, if later, on the 21st day after the day on which they are laid before Parliament.” The Committee asked the Ministry of Justice to explain the reference to 1st December 2017 in rule 1(2) given that by the time the Rules were signed, it was already clear that reliance would be placed on the later day in that rule. In a memorandum printed at Appendix 3, the Department acknowledges that this was an error and undertakes to take care that this error is not repeated in future instruments. The Committee accordingly reports rule 1(2) for defective drafting, acknowledged by the Department.
4S.I. 2017/1200: Reported for failure to comply with normal legislative practice and for defective drafting
Control of Mercury (Enforcement) Regulations 2017
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 and fail to comply with normal legislative practice in one respect.
4.2These Regulations designate competent authorities and set offences and penalties for the enforcement of Regulation (EU) 2017/852 dealing with the control of mercury.
4.3In England and Wales, an enforcing authority may determine the amount of a civil penalty in respect of failure to comply with a relevant provision. Regulation 10(7)(d) states that a civil penalty notice must state the payment period which must not be less than 28 days from the day the civil penalty notice is given. An enforcing authority can also issue a costs recovery notice which (regulation 13(7)) “must be paid ….within the period….of 28 days beginning with the day on which the costs recovery notice is given”. Regulation 10(11) allows an appeal against a civil penalty notice and regulation 13(11) allows an appeal against a costs recovery notice. Regulation 15(2) states that a civil penalty notice or costs recovery notice which is the subject of an appeal is suspended pending the decision of the Tribunal. The Committee asked the Department for Environment, Food and Rural Affairs to explain (i) whether regulations 10(7)(d) and 13(7) should be expressly subject to regulation 15(2) and (ii) whether regulation 15(2) should also cover the withdrawal of the appeal.
4.4In a memorandum printed at Appendix 4, the Department asserts in relation to point (i) that it can readily be inferred from the sequence of propositions in regulations 10(7)(d), 10(11) and 15 (which clearly implies that it contains further detail about the situation where there is an appeal) that regulation 10(7)(d) in the case of civil penalty notices is subject to regulation 15(2). The Department asserts that the same argument applies in the case of costs recovery notices (regulations 13(7), 13(11) and 15). The Committee does not deny this, but it misses the point: it is undoubtedly the case that regulation 15 extends the period specified under regulation 10, and therefore regulation 10, which prescribes the information to be given to the recipient of a notice, ought to require the notice to draw attention to the suspensive effect of regulation 15, in the same way as it requires the notice to specify how payment can be made and that there is a right of appeal. The same applies to regulation 13. Otherwise the notices will be giving a misleading impression of the period available for payment in cases where the right of appeal is exercised. This could easily have been avoided by requiring the notices to include a reference to the suspensive effect of regulation 15, and in the Committee’s opinion that should have been done. Accordingly, the Committee reports regulations 10 and 13 for defective drafting; the Committee also hopes that the Department will use some kind of editorial note to the standard form for notices under these Regulations to inform the recipient of a notice that the period specified in it is suspended where the right of appeal is exercised.
4.5In relation to point (ii), the Department asserts that regulation 15(2) does not need to cover the withdrawal of the appeal because when an appeal is withdrawn there is no longer an appeal and it therefore follows that there is no longer a decision of the Tribunal pending. Again, the Committee does not dissent, but notes that it is normal drafting practice in provisions of this kind to define pending as the period until an appeal is determined or withdrawn, and that the normal practice is designed to avoid doubt and confusion. The Committee accordingly reports regulation 15(2) for failure to comply with normal legislative practice.
5S.I. 2017/1206: Reported for defective drafting
Radio Equipment Regulations 2017
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
5.2These Regulations implement Directive 2014/53/EU about the supply of radio equipment. Regulation 66 deals with penalties. Paragraph (1) provides for a fine or imprisonment on summary conviction, while paragraph (2) provides for a fine alone. The Committee asked the Department for Business, Energy and Industrial Strategy to explain why regulation 66(2) applies to failures to cooperate with the authorities on the part of manufacturers (regulation 16) and distributors (regulation 35) but does not apply to failures on the part of importers (regulation 29).
5.3In a memorandum printed at Appendix 5, the Department acknowledges this error and undertakes to amend the Regulations to make the penalties consistent for all economic operators at the earliest appropriate opportunity. On the assumption that the omission amounts to a failure to achieve full transposition of the EU legislation, the Committee expects that the Department will make an early opportunity to correct the error. The Committee accordingly reports regulation 66(2) for defective drafting, acknowledged by the Department.
6S.I. 2017/1219: Reported for failure to comply with proper legislative practice
Fishing Boats Designation (England) (Amendment) Order 2017
6.1The 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.
6.2This Order makes corrections to the Fishing Boats Designation (England) Order 2015. The Committee asked the Department for Environment, Food and Rural Affairs to explain why the free issue procedure was not used. In a memorandum printed at Appendix 6, the Department acknowledges that the procedure applies, apologises for the omission and undertakes to contact the SI Registrar with a view to making free copies available.
6.3The Committee accordingly reports the Order for failure to comply with proper legislative practice, acknowledged by the Department.
7S.I. 2017/1251: Reported for failure to comply with proper legislative practice
Road Vehicles (Construction and Use) (Amendment etc.) (No. 2) 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.
7.2These Regulations give effect to the requirements relating to emissions which are contained in the nineteenth edition of the “In Service Exhaust Emission Standards for Road Vehicles” booklet. Regulation 2 substitutes the new publication for the existing one, citing the ISBN number and that it is published by the Department for Transport. Other than this no website address or address where a hard copy is available in given in the instrument itself. The Committee asked the Department for Transport to explain why accessibility information is not given.
7.3In a memorandum printed at Appendix 7, the Department accepts that it should have made clear where electronic and hard copies are available, and adds that it is taking steps to remind its drafting lawyers of the importance the Committee attaches to the accessibility of documents given an importance by legislation, and particularly the availability of hard copies for those without access to the internet. The Committee accordingly reports the Regulations for failure to comply with proper legislative practice, acknowledged by the Department.
7.4(The Department also explains that to avoid the possibility of the incorrect edition of the publication being downloaded and used in testing, the nineteenth edition of the emissions publication is not currently available online but, in accordance with previous practice, the eighteenth edition will be replaced on gov.uk by the nineteenth edition immediately before the instrument comes into force.)
8S.I. 2017/1261: Reported for defective drafting
Superannuation (Admission to Schedule 1 to the Superannuation Act 1972) Order 2017
8.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.
8.2This Order makes provision for adding employments and offices to Schedule 1 to the Superannuation Act 1972 enabling people to be members of the pension schemes made under section 1 of the Act. Article 6(2) of the Order appears to add two Welsh offices to the list of “Other Bodies” rather than to the list of “Offices” in Schedule 1 to the Act; the Committee asked the Cabinet Office for an explanation.
8.3In a memorandum printed at Appendix 8, the Department acknowledge that the Welsh offices should have been added at the appropriate place in the list of “Other Offices” and undertakes to make retrospective correction when it next makes an order that updates the list. The Committee accordingly reports article 6(2) for defective drafting, acknowledged by the Department.
9S.I. 2017/1293: Reported for requiring elucidation
Magistrates’ Courts (Detention and Forfeiture of Listed Assets) Rules 2017
9.1The Committee draws the special attention of both Houses to these Rules on the ground that they require elucidation in one respect (in addition to the ground on which they are reported in the next paragraph).
9.2These Rules provide for court procedure to underpin the operation of sections 303B–303Z in Chapter 3A of Part 5 of the Proceeds of Crime Act 2002 (POCA) relating to the seizure, detention and forfeiture of certain listed types of personal or moveable property that are the proceeds of unlawful conduct or intended for use in such conduct.
9.3Section 303X of POCA provides that the Director of Public Prosecutions can agree to appear in proceedings on behalf of certain law enforcement agencies (including a constable). Rule 10 makes provision in respect of notifying the court in these circumstances but includes “an immigration officer” in the list. Since immigration officers are not listed in section 303X, the Committee asked the Ministry of Justice to explain the inclusion.
9.4In a memorandum printed at Appendix 9, the Department explain that immigration officers are able to access the powers in Chapter 3A of Part 5 of POCA as a result of the operation of section 24(1) of the UK Borders Act 2007 (as amended by the Criminal Finances Act 2017) which provides that Chapters 3 to 3B of Part 5 of POCA apply in relation to an immigration officer as they apply in relation to a constable. The relevant amendments to section 24 come into force at the same time as these Rules. The Department further explain that during the drafting of the Rules, it was determined that referring to an immigration officer specifically in Rule 10 would aid clarity, for both law enforcement and court officers who will use the Rules. The Committee accordingly reports Rule 10 for requiring the elucidation provided by the Department.
10S.I. 2017/1290: Reported for defective drafting
Magistrates’ Courts (Freezing and Forfeiture of Terrorist Money in Bank and Building Society Accounts) Rules 2017
S.I. 2017/1291: Reported for defective drafting
Magistrates’ Courts (Detention and Forfeiture of Cash) (Amendment) Rules 2017
S.I. 2017/1293: Reported for defective drafting and for requiring elucidation
Magistrates’ Courts (Detention and Forfeiture of Listed Assets) Rules 2017
S.I. 2017/1295: Reported for defective drafting
Magistrates’ Courts (Detention and Forfeiture of Terrorist Cash) (Amendment) Rules 2017
10.1The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted in six related respects.
10.2These Rules create magistrates’ court rules to underpin provisions in the Anti-Terrorism, Crime and Security Act 2001 and the Proceeds of Crime Act 2002 relating to freezing, detention and forfeiture of cash or assets.
10.3Paragraphs 7.4 of the Explanatory Memorandum for S.I. 2017/1291 and 7.6 of the Explanatory Memorandum for S.I. 2017/1295 state that references to “designated officers” in the court rules have been removed, and replaced with references to actions being taken by “the court”, to provide a less prescriptive approach to court procedure. The Committee asked the Ministry of Justice to explain whether the references to “designated officer” in the following rules should be removed:
i. S.I. 2017/1290: Rules 5(4) and 7.
ii. S.I. 2017/1291: Rule 5(c) (inserted paragraph 3A).
iii. S.I. 2017/1293: Rule 17(6)(b).
iv. S.I. 2017/1295: Rules 8 (inserted rule 7B) and 11 (inserted rule 9F(6)(b)).
10.4In a memorandum printed at Appendix 10, the Department accepts that those references were retained in error and should be removed or amended (depending on the precise context) so as to operate as references to “the court” and undertakes to make such amendments at the next suitable opportunity. The Committee accordingly reports the rules referred to in (i) to (iv) above for defective drafting, acknowledged by the Department.
11S.I. 2017/1297: Reported for requiring elucidation and for defective drafting
Magistrates’ Courts (Freezing and Forfeiture of Money in Bank and Building Society Accounts) Rules 2017
11.1The Committee draws the special attention of both Houses to these Rules on the ground that they require elucidation in one respect and are defectively drafted in two related respects.
11.2These Rules prescribe the procedure to be followed for applications to magistrates’ court for orders under Chapter 3B of Part 5 of the Proceeds of Crime Act 2002 (POCA) which makes provision for forfeiture of money held in bank and building society accounts, where the money derives from, or is intended for use in, unlawful conduct.
11.3Section 303Z19 of POCA provides that the Director of Public Prosecutions can agree to appear in proceedings under Chapter 3B on behalf of certain law enforcement agencies (including a constable). Rule 7 makes provision in respect of notifying the court in these circumstances but includes “an immigration officer” in the list. Since immigration officer is not listed in section 303Z19, the Committee asked the Ministry of Justice to explain the inclusion. The Committee also asked the Department whether the references to “Chapter 3A” in rules 2(d) and 7 should be to “Chapter 3B”.
11.4In a memorandum printed at Appendix 11, the Department gives the same explanation as in relation to S.I. 2017/1293 (reported in paragraphs 9.1–9.4), and the Committee accordingly reports Rule 7 for requiring the elucidation provided by the Department.
11.5With regard to the cross-reference, the Department acknowledges that the references to “Chapter 3A” in rules 2(d) and 7 are erroneous, and should instead refer to “Chapter 3B”, and mentions the possibility of a correction slip. The Committee is of the opinion that this would be a proper use of a correction slip, on the grounds that the error is sufficiently confusing to be worth correcting, and there can be no doubt at all about what the reference should have been. The Committee accordingly reports Rules 2(d) and 7 for defective drafting, acknowledged by the Department.
1 February 2018