At its meeting on 23 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 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 these Regulations on the grounds that they require elucidation in one respect and are defectively drafted in one respect.
1.2This instrument amends the Civil Procedure Rules 1998 by inserting rules that will apply to claims in the new Media and Communications List. New rule 53.1 identifies claims that must be dealt with in the Media and Communications List (paragraph (3)), and claims that may be (paragraph (4)). This latter category includes claims arising from “the publication or threatened publication of information via the media, online or in speech, or other activities of the media”. The new rules do not define “the media”, and it was unclear to the Committee precisely what this expression was intended to cover in this context. In particular, the Committee asked the Ministry of Justice whether it is intended that a claim arising from actual or threatened publication of information by way of a book or hard copy letter (two specific media that would not fall within the “online or in speech” categories) could be issued in the Media and Communications List. In a memorandum printed at Appendix 1, the Department confirms that it is. The Committee accordingly reports new rule 53.1(4), as inserted by the Schedule, for requiring elucidation, provided by the Department’s memorandum.
1.3New rule 53.2(2) provides: “One of the Judges of the Queen’s Bench Division shall be the Judge in Charge of the Media and Communications List.” It appeared to the Committee that this rule imposes a duty to appoint a judge in charge, but it was not clear who would be subject to that duty or how the judge in charge would be appointed (by contrast with rule 54.22(2), which specifies that the president of the Queen’s Bench Division nominates the judge who will be in charge of the Planning Court specialist list). The Committee therefore asked the Department to explain how and by whom this appointment would be made. In its memorandum, the Department acknowledges that this is a drafting omission and undertakes to correct it at the next opportunity. The Committee accordingly reports new rule 53.2(2) 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 are defectively drafted in one respect.
2.2Regulation 2(7) amends regulation 10(5) of the Immigration (European Economic Area) Regulations 2016 to reflect the judgment of the Court of Appeal in Baigazieva v Secretary of State for the Home Department  EWCA 1088 (Civ). At issue are UK rights of residence in the event of divorce (or termination of a civil partnership), where one spouse is an EEA national exercising their right to freedom of movement under the EU Treaties and the other is a third-country national whose right to live in the United Kingdom derives from the free movement rights of their spouse.
2.3The question in Baigazieva was whether the third-country national can retain that derived right of residence if the EEA national spouse or civil partner had left the country before the divorce or termination was granted. The court held that they can. Regulation 2(7) of this instrument is designed to amend the 2016 Regulations to give effect to the judgment. It appeared to the Committee, however, that the amendment does not work: put simply, it would only work if a person stopped being a spouse or civil partner as soon as they filed for divorce or termination, which is of course not the case. The Committee asked the Home Office to confirm that the amendment is wrong.
2.4In a memorandum printed at Appendix 2, the Department does not acknowledge this fundamental error, although it does accept that the amendment was not entirely apt. The Committee remains of the opinion that rather than clarifying the 2016 Regulations to reflect the judgment in Baigazieva, the amendment imposes an impossible condition: that A stop being B’s spouse before they are divorced. (As a result, regulation 10(5)(a) no longer accurately transposes Article 13(2)(a) of Directive 2004/28.) The Committee accordingly reports regulation 2(7) for defective drafting.
Published: 25 October 2019