At its meeting on 30 October 2019 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 ten 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 draft Regulations on the ground that, if they are approved and made, there will be a doubt as to whether they would be intra vires in one respect.
1.2Section 2 of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 (“the 2019 Act”) requires the Secretary to State to make regulations amending the Civil Partnership Act 2004 so that opposite-sex couples are eligible to form civil partnerships. The Regulations must be in force by 31 December 2019.
1.3Since the Marriage (Same Sex Couples) Act 2013 (“the 2013 Act”) came into force, a same-sex couple who wish to formalise their relationship have the choice of marriage or civil partnership, while a civil partnership is not open to an opposite-sex couple: marriage is their only option. In its judgment in the case of R (on the application of Steinfeld and Keidan) v Secretary of State for International Development handed down last year, the Supreme Court held that this difference of treatment constituted unjustified discrimination on the grounds of sexual orientation and was accordingly incompatible with Article 14 of the European Convention on Human Rights (“ECHR”).
1.4These proposed Regulations would remedy that incompatibility by allowing opposite-sex couples to form civil partnerships.
1.5Section 2(5)(b) of the 2019 Act allows the Secretary of State to restrict or bring to an end the right to convert a civil partnership into a marriage, which is conferred by section 9 of the 2013 Act. Regulation 37, which is made in purported exercise of that power, would prevent an opposite-sex couple who form a civil partnership from subsequently converting the partnership into a marriage. However, a same-sex couple in a civil partnership, whether formed before or after the Regulations come into force, will retain that conversion right.
1.6The Committee is concerned that this difference of treatment between same-sex and opposite-sex civil partners may contravene section 6 of the Human Rights Act 1998. This provides that it is unlawful for a Minister to make secondary legislation which is incompatible with “a Convention right”.
1.7One of the Convention rights is Article 14 of the ECHR:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
1.8To have recourse to Article 14, the complained-of discrimination must “come within the ambit” of another Convention right. It is well-established that access to a civil partnership falls within the ambit of Article 8 which guarantees the right to respect for private and family life. In the view of the Committee, it is likely that access to a right to convert a civil partnership into a marriage also falls within the ambit of Article 8.
1.9It is clear from case law that sexual orientation qualifies as a ground on which discrimination under Article 14 is forbidden. Accordingly, regulation 37 will be compatible with Article 14 (read with Article 8), and therefore with section 6 of the Human Rights Act 1998, only if the Government can show that the difference of treatment between opposite-sex couples and same-sex couples is objectively justified.
1.10The Government’s justification is set out in paragraphs 7.5 to 7.8 of the Explanatory Memorandum. These paragraphs explain that the Government: are considering the future of conversion rights in light of responses to a recent consultation exercise; believe that allowing opposite-sex couples to convert a civil partnership into a marriage while those responses are being considered would risk creating uncertainty and confusion about future rights; do not wish to introduce a new, potentially short-term conversion right which might subsequently be withdrawn in 2020; and regard it as highly unlikely in any event that an opposite-sex couples who form a civil partnership after the Regulations come into force would wish to convert the partnership into a marriage during that interim period.
1.11The Committee does not find these arguments persuasive. Where the difference in treatment is based on sexual orientation, as is the case with regulation 37, the courts apply a strict scrutiny standard to the assessment of the asserted justification. This means that particularly convincing and weighty reasons are required to justify the discrimination.
1.12The Supreme Court held in Steinfeld and Keidan that the need to have time to assemble sufficient information to allow a confident decision to be made about the future of civil partnerships could not be characterised as a legitimate aim capable of justifying the continuation of the difference in treatment between same-sex couples and different sex-couples.
1.13The Court also observed (in relation to the 2013 Act) that:
“it was Parliament itself that brought about an inequality immediately on the coming into force of the Act, where none had previously existed. The redressing by the legislature of an imbalance which it has come to recognise is one thing; the creation of inequality quite another. To be allowed time to reflect on what should be done when one is considering how to deal with an evolving societal attitude is reasonable and understandable. But to create a situation of inequality and then ask for the indulgence of time … as to how that inequality is to be cured is, to say the least, less obviously deserving of a margin of discretion.”
1.14It light of these directly relevant findings by the United Kingdom’s highest court, the Committee is sceptical as to whether the introduction of regulation 37, which will plainly discriminate on the ground of sexual orientation from the moment it is in force, can be justified on the ground that the Government might change the law at some point in the future, particularly given the strict scrutiny standard applied by the courts. Accordingly, the Committee has a real doubt as to whether it would be lawful, in the light of section 6 of the Human Rights Act 1998, for the Secretary to State to include regulation 37 in the proposed Regulations.
1.15In the Committee’s view, the appropriate way forward would be for the Government now to align the rights for same-sex and opposite-sex couples to convert a civil partnership into a marriage. Following the completion of its review, it would then be open to the Government to change those rights for both, for example by removing the possibility of conversion altogether.
1.16The Committee therefore reports regulation 37 of the draft Regulations on the ground that there appears to be doubt as to whether it would be intra vires.
2.1The 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 that there is doubt as to whether they are intra vires in one respect.
2.2Regulation 17 of this instrument amends Schedule 7 to the Teachers’ Pensions Regulations 2010, which sets out criteria for entitlement to a lifetime retirement pension. The amendment to paragraph 3 replaces one criterion (that a person applied for ill-health retirement benefits before leaving excluded employment) with another (that they applied before ending a period of non-pensionable sick leave, non-pensionable family leave or a career break). In paragraph 7.13 of its Explanatory Memorandum, the Department for Education stated that this change was made to “revise and extend the list of circumstances in which an application for ill-health retirement can be accepted on the more generous in-service terms”. Given the definition of “excluded employment”, however, it was not clear to the Committee how the new criterion extended the list of circumstances referred to, rather than simply replacing one with another. The Committee asked the Department to explain.
2.3In a memorandum printed at Appendix 1, the Department admits that rather than revising and extending eligibility for more generous benefits, the amendment in fact corrects an error inserted by the Teachers’ Pensions Schemes (Miscellaneous Amendments) Regulations 2017. The Department admits that from 2017 onwards, the pension scheme was administered in line with the intended policy rather than the legislative reality, and asserts that in this case no one was denied a benefit in practice to which they were entitled in law, as they would inevitably have failed to meet other key criteria; it adds that in any event the discrepancy is regularised with retrospective effect. The Committee is concerned that this explanation reveals another instance of a Government Department (albeit unwittingly in this case) implementing the law that it wishes it had made and not the law that it actually made (see the Committee’s comments on S.I. 2019/980 in its Sixty-fifth Report of Session 2017–19). That apart, the Department failed to explain the purpose and effect of the amendment clearly in the explanatory materials, and the Committee accordingly reports regulation 17(a) for failure to comply with proper legislative practice.
2.4Regulation 33 of this instrument amends the Teachers (Compensation for Redundancy and Premature Retirement) Regulations 2015 by changing the way in which compensation is calculated for an adult survivor of a member of the Teachers’ Pension Scheme. In paragraph 7.19 of the Explanatory Memorandum, the Department states that the amendment is “to provide a correction to the interpretation of the value of the long term rate of compensation”. It was not clear to the Committee what fault was being corrected, or whether the amendment would result in an increase or decrease to the value of the benefit. The Committee therefore asked the Department to explain. In its memorandum, the Department explains that here, too, the “fault” is not a technical defect, but simply that the original legislation did not match the policy intent (which the Department asserts had always been in line with the amendment rather than the original provision).
2.5The Department states that it had not noticed that its legislation did not match its policy, and so the scheme had been implemented according to the policy since 1 April 2015. Yet another instance of a Government Department implementing the law that it wishes it had made and not the law that it actually made; and again, the position is “regularised” with retrospective effect.
2.6The Department notes that the amendment does not affect the notional annual compensation rate. In the absence of further clarifying information as to the amendment’s practical effect on the value of the benefit, it is unclear whether it will increase or reduce the amount of compensation to which an adult survivor is entitled. If the amendment reduces the entitlement to compensation, it could fall within the category of “retrospective provision that has serious adverse effects in relation to the pension payable to or in respect of members of the scheme” under section 23 of the Public Service Pensions Act 2013. As such, it would require the consent of persons likely to be affected. There is no evidence that such consent was obtained. In the Committee’s view this omission is not resolved by the fact that such persons may not in fact have received the compensation to which they were entitled under the original provision, as the amendment would deny them a right to challenge any underpayment. The Committee accordingly reports regulation 33 for doubt as to whether it is intra vires.
3.1The Committee draws these Rules to the attention of both Houses on the grounds that they require elucidation in four respects and are defectively drafted in three respects.
3.2This instrument updates the Rules that apply to proceedings in the Solicitors Disciplinary Tribunal, including by incorporating existing practice directions, standard directions and guidance directly into the Rules, for the stated purpose of promoting transparency and accessibility. The Committee was concerned that despite this intention, the effect and purpose of some of the rules were not clear. It therefore asked the Tribunal:
3.3In a memorandum printed at Appendix 2, the Tribunal confirms the position in rule 23, provides the examples requested in relation to rules 20(3) and 8(6)(c), and explains how rule 20(2) will work in practice. The Committee accordingly reports these rules for requiring elucidation, provided by the Tribunal’s memorandum.
3.4The Tribunal also confirms that the cross-reference in rule 14(1) should be to rule 14(5). The Committee accordingly reports rule 14(1) for defective drafting, acknowledged by the Tribunal.
3.5A number of the rules used the word “will” in a way that appeared to the Committee to suggest that they might have been intended to impose an obligation. The Committee therefore asked the Tribunal to explain what “will” is intended to mean in each of the rules in which it features and how effect is given to that intention, having regard to the Committee’s previous comments on the matter and in particular its First Special Report of Session 2013–14, Excluding the inert from secondary legislation. For ease of reference, the Committee’s key observations in that Special Report were that “‘may’ always implies discretion; ‘must’ always implies an obligation; ‘shall’ … can either imply an obligation or futurity (depending on context and therefore is accepted by us as implying an obligation when used in legislation); and ‘will’ always implies futurity.” In its memorandum, the Tribunal has provided a helpful table explaining its intention in each case. The Committee remains concerned that the use of “will” in rules 4(2), 5, 20(3), 26(2), 26(3), 40(4), 41(4) and 43(4) does not achieve the stated intention, which appears to be the imposition of a legally enforceable duty. Use of the auxiliary “will” does not make this clear. At the least, when used in contrast with “must” elsewhere in the same document, it creates uncertainty about the basis for a complaint of non-compliance – whether it is an irregularity that renders proceedings void or a failure to exercise a discretion in the anticipated way. The Committee draws the Tribunal’s attention to its Twenty-fourth Report of Session 2013–14 for further detail, and accordingly reports rules 4(2), 5, 20(3), 26(2), 26(3), 40(4), 41(4) and 43(4) for defective drafting.
3.6Rule 31 requires the Tribunal to be notified if any witness or respondent requires the assistance of an interpreter to participate in a hearing. The Committee asked the Tribunal to explain why it did not provide for circumstances where the applicant requires such assistance. In its memorandum, the Tribunal gives a number of reasons why such provision was not felt to be required. The Committee finds none of them persuasive. In particular, the need for advance notification of such requirements for the purposes of time estimates and logistical arrangements must apply equally to interpreters for the applicant as to those for the respondent and witnesses. Nor does it help that the applicant in the vast majority of cases is the Solicitors Regulation Authority, rarely uses interpreters and is aware of the requirements: the Rules ought to be transparent for all applicants and in all cases. The Committee accordingly reports rule 31 for defective drafting.
4.1The Committee draws the special attention of both Houses to these three Orders on the ground that each Order fails to comply with proper legislative practice in two respects and is defectively drafted in one respect and that S.I.s 2019/1228 and 2019/1231 require elucidation in one respect.
4.2These Special Development Orders grant planning permission for the use of three separate sites for stationing and processing of vehicles and the installation of temporary structures ancillary to this use. The Committee asked the Ministry of Housing, Communities and Local Government to explain where the construction management plan and operational management plan referred to in the instrument are available. In a memorandum printed at Appendix 3, the Department argues that as the rules in the plans are purely operational and administrative and that addressing non-compliance with the terms and conditions of the planning permission rests with the Secretary of State it is not necessary to make these documents publicly available; and it adds that they include sensitive information. The Committee’s view is that where legislation operates by reference to another document, it is an indispensable requirement of access to justice and the rule of law that readers of the legislation should be told how they can access hard and electronic copies of the external document. (See the Committee’s First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation at paragraphs 4.5 to 4.8). Sensitive information that cannot properly be made public should therefore not be contained in a document by reference to which legislation operates: a separate document should be compiled containing any sensitive information (and, of course, it is open to legislation to operate by reference to the existence of sensitive and confidential documents, where they are not implicitly incorporated into the legislation itself). The Committee accordingly reports all three Orders for failure to comply with proper legislative practice.
4.3The Committee also asked the Department to explain why an address has not been given for where a hard copy of the European Agreement concerning the International Carriage of Dangerous Goods by Road published in 2019 (defined in article 2) can be viewed free of charge. In its memorandum, the Department apologises for not giving this address and undertakes to rectify this in the near future. The Committee is of the view that this rectification can properly be done by correction slip. The Committee accordingly reports article 2 of all three Orders for failure to comply with proper legislative practice, acknowledged by the Department.
4.4In relation to article 4 of each Order, the Committee asked the Department to explain the meaning of “site official”. From the Department’s memorandum, it appears that the intention is to refer to a person designated or authorised by the operator of a site. That could have been expressed simply in the legislation in any one of a number of standard ways, and it should have been expressed to make the legislative intent reasonably clear and certain. The Committee accordingly reports article 4 for defective drafting.
4.5In relation to S.I. 2019/1228, the Committee asked the Department whether the definition of “hard standing” in article 2, is referring to “pre-existing hard standing” only or whether it is intended to include any temporary hard standing installed on the land. In its memorandum, the Department explains that there are no proposals for any temporary hard standing to be installed at the North Weald site and confirms that the definition is referring to pre-existing hard standing only and resurfaced hard standing. The Committee accordingly reports article 2 of this Order for requiring elucidation, provided by the Department’s memorandum.
4.6In relation to S.I. 2019/1231, the Committee asked the Department to explain why a definition of “hard standing” is not included in this instrument (in contrast to S.I. 2019/1228 and S.I. 2019/1230). In its memorandum, the Department explain that it was not necessary to define this term as the site in Ebbsfleet is already entirely made up of permanent hard standing. The Committee accordingly reports article 2 of this Order for requiring elucidation, provided by the Department’s memorandum.
5.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect.
5.2This Order amends a number of instruments that implement EU sanctions regulations in domestic law, including the Export Control (North Korea Sanctions) Order 2018. Article 6 amends the 2018 Order by substituting “contravention” for “circumvention” in two places. It was not clear to the Committee why the substitution was necessary, so it asked the Department for International Trade to explain. In a memorandum printed at Appendix 4, the Department explains that its standard practice, in ensuring that there are domestic penalties to enforce EU prohibitions, is to distinguish between principal offences relating to direct contravention of trade sanctions on the one hand, and two types of supplementary offences on the other: those which have the effect of circumventing a trade sanction, and those which enable or facilitate the direct contravention of a trade sanction. The 2018 Order as originally drafted did not accurately reflect the Department’s standard practice and was therefore inconsistent with comparable sanctions offence regimes. The Committee accordingly reports article 6 for requiring elucidation, provided by the Department’s memorandum.
6.1The Committee draws the special attention of both Houses to both sets of Regulations on the ground that each set of Regulations fails to comply with proper legislative practice in one respect.
6.2Both sets of Regulations amend existing universal credit regulations. The Committee asked the Department for Work and Pensions to confirm whether the Department consulted the SI Registrar about whether to provide free replacement copies of the instrument, given that regulation 3 of each instrument seeks only to clarify existing legislation. In a memorandum printed at Appendix 5, the Department acknowledges that it considered the provision of free replacement copies but concluded that they did not need to be provided. It appears to the Committee that this conclusion was based in part on the fact that the instruments contain other provisions which do not require free replacement copies to be issued. The Committee is aware that if a new instrument corrects an error but also implements a good deal of additional policy, it can be tempting for Departments not to follow the free issue process. However, it is probably right that purchasers of the original instrument should be given the corrected version without charge (see the Committee’s First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation at paragraphs 3.16 to 3.25). The Committee accordingly reports each set of Regulations for failure to comply with proper legislative practice.
7.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.
7.2Regulation 4 of this Order applies the Water Industry Act 1991 to the Isles of Scilly with certain modifications, including the creation of a grace period during which the new water and sewerage undertaker will not have to meet statutory deadlines, in order that needed improvements may first be made to the relevant infrastructure. The grace period ends on 1 April 2025. Under the 1991 Act, a sewerage undertaker may propose (or refuse) to make a declaration to the effect that it will adopt a sewer from a future date (section 102). An aggrieved person may appeal the sewerage undertaker’s decision, but the appeal must be issued within a two-month time limit (section 105). These provisions will apply to the Isles of Scilly from 1 November 2019. Regulation 4(9) modifies section 105 so that no appeal may be made before 1 April 2025, but it does not alter the two-month time limit. The Committee asked the Department for Environment, Food and Rural Affairs to explain what rights of due process are available to a person who, but for the modification, would have issued an appeal before 1 April 2025, but is prevented from doing so on or after 1 April 2025 because the two-month time limit has expired. In a memorandum printed at Appendix 6, the Department acknowledges that regulation 4(9) does not achieve its policy intent and undertakes to correct the error by 1 April 2020. The Committee accordingly reports regulation 4(9) for defective drafting, acknowledged by the Department.
1  UKSC 32
2 Paragraph 42 of the judgment.
3 Paragraph 36 of the judgment.
Published: 1 November 2019