At its meeting on 7 March 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 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.
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in two respects.
1.2These Regulations are made under section 2(2) of the European Communities Act 1972. They amend the Fluorinated Greenhouse Gases Regulations 2015 (S.I. 2015/310) to provide for the enforcement of five new EU Commission Implementing Regulations. They also provide for the introduction of civil penalties in England and Scotland and for offshore installations and sub-delegate the appointment of certification, evaluation and attestation bodies to the Secretary of State.
1.3The Committee asked the Department for Environment, Food and Rural Affairs to explain why regulations 27 and 31 replace criminal sanctions with civil penalties and to confirm the Department’s understanding of the effect of section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in relation to the limits on criminal penalties in England and Wales in paragraph 1 of Schedule 2 to the 1972 Act. In a memorandum printed at Appendix 1, the Department sets out the purpose of the change from criminal to civil penalties, and provides the confirmation sought in relation to the effect of section 85 of the 2012 Act. The Committee notes the helpful exposition provided by the Department’s memorandum, and accordingly reports regulations 27 and 31 as requiring elucidation, provided by the Department’s memorandum.
1.4The Committee also asked the Department why regulation 9 sub-delegates to the Secretary of State matters dealt with in 2015 by the Regulations themselves. The Department’s memorandum asserts that the appointment of certification, attestation and evaluation bodies is administrative in nature and therefore, although it was formerly provided for in legislation, the prohibition on legislative sub-delegation in paragraph 1(c) of Schedule 2 to the 1972 Act does not apply. The Committee does not disagree with the Department’s assertion, and accordingly reports regulation 9 for requiring elucidation, provided by the Department’s memorandum.
2.1The 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.
2.2These Regulations implement requirements of Directive 2011/7/EU of the European Parliament and of the Council of 16th February 2011 on combating late payment in commercial transactions.
2.3There was a delay of thirteen days between the making of this instrument and laying it before Parliament, and the Committee asked the Department for Business, Energy and Industrial Strategy to explain the delay. In a memorandum printed at Appendix 2, the Department apologises for the delay and undertakes to review its internal procedures and processes to ensure this is not repeated.
2.4The Committee repeats what it said in 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. As previously stated, the Committee considers 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.
2.5The Committee accordingly reports these Regulations for unjustifiable delay in laying before Parliament, acknowledged by the Department.
3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
3.2These Regulations amend several statutory instruments including the Education (Student Support) (European University Institute) Regulations 2010, which provide support for students taking designated postgraduate courses at the European University Institute in Florence. Regulation 18 sets out the requirements for persons granted leave to remain in the UK as stateless persons, and their family members, to be eligible students under the 2010 Regulations (including a requirement that the person be ordinarily resident in the United Kingdom for a three-year period).
3.3The Committee asked the Department for Education to explain the reason why the three-year period relied on in regulation 18(4) is defined by reference to the “relevant date” in inserted paragraphs 4A(1)(b) and (2)(b) and by reference to “the first day of the first academic year of the course” in inserted paragraph 4A(3)(d).
3.4In a memorandum printed at Appendix 3, the Department explains that the reference to “the first day of the first academic year of the course” in inserted paragraph 4A(3)(d) is a drafting error and that the provision should have referred to “the relevant date”. The Department adds that the effect of the error is that a child of a person with stateless leave, or child of the spouse or civil partner of a person granted stateless leave, who seeks support to study at the European University Institute will need to prove that they have acquired three years’ ordinary residence in the United Kingdom by the first day of the course, around 1 October, rather than by the earlier date of 1 February of the year that the course started. The Department undertakes to amend the incorrect reference at the earliest opportunity to ensure that the drafting properly implements government policy. The Committee accordingly reports Regulation 18(4) for defective drafting, acknowledged by the Department.
Published: 7 March 2018