At its meeting on 21 February 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 two 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.
1.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.
1.2This Order amends the Registration (Entries of Overseas Births and Deaths) Order 1982 (S.I. 1982/1526), which applies provisions of enactments relating to the registration of births and deaths in the United Kingdom to certified copies of birth and death entries sent from overseas for deposit with the Registrars General in the United Kingdom. Article 6 purports to insert text into Schedule 1 to the 1982 Order, but the nature of the insertion led the Committee to believe that the insertion should have been into Schedule 2. The Committee asked the Home Office to confirm. In a memorandum printed at Appendix 1, the Department confirms the Committee’s belief and undertakes to take steps to rectify the error at the first available opportunity. The Committee accordingly reports article 6 for defective drafting, acknowledged by the Department.
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
2.2These Regulations amend the Civic Government (Scotland) Act 1982 (Licensing of Booking Offices) Order 2009 so that applying for, and holding, a booking office licence in Scotland is conditional on not breaching the UK’s immigration laws. The enabling power is section 92(2) of the Immigration Act 2016 which allows the Secretary of State to make such provision as she considers “appropriate in consequence of this Act”. The relevant provisions of the 2016 Act are section 37 and Schedule 5 which provide that operator licences in England and Wales and Northern Ireland and taxi and private hire car driving licences cannot be held by a person who does not have permission to work in the United Kingdom. Booking office licences in Scotland are not specifically covered.
2.3In the Explanatory Memorandum laid with the Regulations, the Home Office set out why it concluded that the Regulations are a consequence of section 37 of and Schedule 5 to the 2016 Act, namely that: booking office licences in Scotland are equivalent to operator licences in England and Wales and Northern Ireland; Schedule 5 amends the taxi hire and private hire vehicle regime in Scotland to which the licensing regime for booking office licences is closely connected and the Regulations remedy what would otherwise be a jurisdictional gap which was not the intention of Parliament. The Committee invited the Department to expand on the explanation in the Explanatory Memorandum and to explain, in particular, why the Immigration Act 2016 was not used to provide express vires for the expansion of the Scottish regime.
2.4In a memorandum printed at Appendix 2, the Department helpfully expands the reasoning behind the overall legislative approach. In particular, it explains that: it wanted to avoid using the 2016 Act to amend secondary legislation directly (because of general concerns about mixing primary and secondary legislation); amending the 1982 Act directly would have been confusingly inconsistent with previous legislation; and advice to the Department at the time was that the enabling power was sufficient.
2.5The Committee notes this explanation, including the analysis of the considerations applied in determining that the amendment falls within generally accepted understandings of the scope of powers to make consequential provision. The Committee notes that there is always a balance to be struck when deciding whether to take express powers or to rely on powers to make consequential or other incidental provision, and is grateful to the Department for its thorough explanation of how the balance was struck on this occasion.
2.6The Committee accordingly reports the Regulations as requiring elucidation, provided by the Department.
22 February 2018