Twenty-Fourth Report of Session 2019-21 Contents

Instruments reported

At its meeting on 30 September 2020 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 six 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. 2020/705: Reported for doubtful vires

Mali (Sanctions) (EU Exit) Regulations 2020

1.1The Committee draws the special attention of both Houses to these Regulations on the ground that there is doubt as to whether they are intra vires in one respect.

1.2These Regulations establish a domestic sanctions regime relating to Mali to ensure that the United Kingdom will remain in compliance with its UN obligations when it ceases to be part of the current EU regime. Regulation 6(7) defines the terms “military goods” and “military technology” by reference to “any thing for the time being specified in Schedule 2 to the Export Control Order 2008”. The Committee asked the Foreign, Commonwealth and Development Office to identify the enabling power relied on to make these definitions ambulatory. In a memorandum printed at Appendix 1, the Department asserts that it did not, and was not required to, rely on any specific enabling power as the effect of section 20(2) of the Interpretation Act 1978 is that references to provisions in other enactments are to those provisions as amended; it asserts further that the words “for the time being specified” serve only to displace any argument that the legislator intended section 20(2) not to apply in relation to those definitions. The Committee does not agree. It has never been generally assumed that section 20(2) is intended to bring in amendments made after the date when legislation is enacted or made (see Craies on Legislation, 11th Edition, paragraphs 21.1.23 et seq., and, in particular, Willows v Lewis [1982] STC 141), and the rule of law consequences of such an assumption are obvious. At the time when a new Law A is enacted, it is logical to assume that a reference to an earlier Law B is intended to include any amendments already made to it, but there can be no reason to assume that amendments made to Law B by future Laws C, D and so on will necessarily be apposite for application by Law A – and to make that assumption amounts to a sub-delegation, to all the putative authors of future law amending Law B, of the power to amend Law A (which is why section 20(2) has generally been given the narrower construction). In this case, the fact that express powers to make ambulatory reference to provisions such as the Export Control Order 2008 were included in Schedule 1 to the enabling Act (albeit in relation to types of sanction not relevant to this instrument) confirms that, as usual, Parliament did not intend such references to be ambulatory as a general rule in subordinate legislation made under the Act. The Committee accordingly reports regulation 6(7) on the ground that there is doubt as to whether it is intra vires.

2S.I. 2020/733: Reported for doubtful vires

Yemen (Sanctions) (EU Exit) Regulations 2020

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that there is doubt as to whether they are intra vires in one respect.

2.2This instrument ensures that the UK continues to meet its obligations under the UN regime relating to sanctions against Yemen after the Transition Period ends. Given that these Regulations make immigration sanctions (regulation 18), the Committee asked the Foreign, Commonwealth & Development Office to explain why section 4 of the Sanctions and Anti-Money Laundering Act 2018 is not cited in the preamble. In a memorandum printed at Appendix 2, the Department accepts that section 4 of the 2018 Act should have been included in the preamble and explains that it will bring forward legislation before the end of the Transition Period to address this. Failure to cite a section in the preamble on which the Department relies raises doubts as to vires (see Vibixa Ltd and Polestar Jowetts Ltd v Komori UK Ltd and another [2006] EWCA Civ 536). The Committee accordingly reports regulation 18 for doubt as to whether it is intra vires.

3S.I. 2020/756: Reported for requiring elucidation

Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020

3.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in two respects.

3.2This Order creates a new class of generally permitted development, Class ZA (inserted by article 4(2)), which allows a building that meets specified criteria, and that obtains prior approval from the planning authority in relation to specified matters, to be demolished and replaced by either a block of flats or a single dwelling house. New paragraph ZA.2(2) sets out the matters in relation to which the developer must apply to the local planning authority for prior approval. The Committee asked the Ministry of Housing, Communities and Local Government to explain why paragraph ZA.2(2)(i) requires prior approval as to the impact of the development’s increase in residential use in the area on all businesses, but only on new residents. In a memorandum printed at Appendix 3, the Department explains that this approval criterion reflects the “agent of change” principle in the current National Planning Policy Framework, which requires the applicant to mitigate adverse impacts on existing businesses and community facilities. The Department suggests that such mitigation might include steps to prevent complaints from new residents (e.g. about noise) from limiting the operation of those businesses and facilities. It remains unclear to the Committee what steps—if any—the developer must take to mitigate adverse impacts on existing residents in those cases where the new development is in a partly or wholly residential area. The Committee accordingly reports article 4(2) (inserted paragraph ZA.2(2)) for requiring elucidation, partly provided in the Department’s memorandum.

3.3The Committee also asked the Department to explain whether it is intended that approval might be granted or withheld for new dwelling houses by reference to compliance with the “Technical housing standard—nationally described space standard”. In its memorandum, the Department explains that it does not intend local planning authorities to grant approval by reference to that standard and that it expressly omitted any condition which would have that effect. The Committee accordingly reports article 4(2) (inserted paragraph ZA.2(2)(i)) for requiring elucidation, provided in the Department’s memorandum.

4S.I. 2020/758: Reported for defective drafting

Family Procedure (Amendment No. 2) Rules 2020

4.1The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted in one respect.

4.2This instrument creates new rules to govern contempt of court applications and proceedings in family courts; they are set out in the Schedule, which inserts a new Part 37 into the Family Procedure Rules 2010 (S.I. 2010/2955). Several of the new rules refer to the court making an order or imposing a punishment “under the law”, a phrase which did not appear in similar rules that are revoked and replaced by this instrument. The Committee asked the Ministry of Justice what this phrase was intended to add.

4.3In a memorandum, printed at Appendix 4 the Department asserts that the phrase is intended “to make it clear that sanctions against a contemnor under the law generally, whether procedural or substantive, are not affected and continue to be available”, including such other punishments as are not included in the list “a fine, imprisonment, confiscation of assets”. In the context of the class of available punishments, the Committee accepts that a reminder that the court has other powers that it may wish to use is helpful, although the phrase “other punishment available under the law” gives less help to the reader than a more specific reference would provide (and risks unintended applications of the eiusdem generis rule).

4.4The Committee notes that the Department’s explanation does not address the insertion, in rule 37.10(3), of the phrase “under the law” into the standard legal formulation that the court may “make such order as it thinks fit”. In this context, the phrase appears to add nothing. It goes without saying that the court has no power to make orders except in accordance with the law. Adding an unnecessary phrase here creates an unhelpful contrast with the shorter phrase (and variants) used elsewhere in the Family Procedure Rules—and very widely in legislation—and is consequently a likely source of argument and confusion which is to be deprecated. The Committee accordingly reports the Schedule to this instrument (new rules 37.2, 37.4(2)(p), 37.9(1) and 37.10(3)) for defective drafting.

(The Department also confirms that the reference to “any respondent” in new rule 37.8(4)(e) is intended to include the defendant in contempt proceedings, and that the phrase “to the extent that the substantive law permits” in relation to the court attaching a power of arrest to a committal order is intended to draw a distinction between the rules of procedure—which cannot create a power of arrest—and the substantive law.)

5S.I. 2020/786: Reported for defective drafting

Railways (Miscellaneous Amendments, Revocations and Transitional Provisions) (EU Exit) Regulations 2020

5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two respects.

5.2These Regulations correct deficiencies that would otherwise prevent retained EU law relating to railways from operating effectively after the Transition Period ends. Paragraphs (3) and (4) of regulation 1 provide for the extent of each amendment. The Committee asked the Department for Transport to explain why regulations 5 and 8(2) extend only to Great Britain given that the provisions they amend extend to the whole of the United Kingdom. In a memorandum printed at Appendix 5, the Department acknowledges the error and undertakes to correct it at the earliest opportunity. The Committee welcomes the undertaking, and accordingly reports regulation 1(3) and (4) for defective drafting, acknowledged by the Department.

5.3The effect of regulation 7 is to amend provisions of the Railways and Other Guided Transport Systems (Safety) Regulations 2006 (S.I. 2006/599). New text inserted by paragraph (2)(f) refers to “regulation 18(A1)” of the 2006 Regulations, but given that regulation 18 will have been omitted by the time this instrument comes into force, the Committee asked the Department to confirm whether that should be a reference to “regulation 18A(1A)”. In its memorandum, the Department confirms that it should and undertakes to correct the error at the earliest opportunity. Again, the Committee welcomes the undertaking, and accordingly reports regulation 7(2)(f) for defective drafting, acknowledged by the Department.

(In its memorandum, the Department suggests making two amendments by correction slip. Having regard to the criteria set out at paragraph 3.10 of its First Special Report of Session 2017–19: Transparency and Accountability in Subordinate Legislation, the Committee does not agree that the text of legislation can be amended by correction slip. If the mistake and the intended meaning are obvious, then readers will be able to work out what was meant if the text is left in its deficient form. If the mistake and intended meaning are not obvious (as is definitely the case in relation to the defect identified in regulation 7(2)(f)) the legislation should be amended by a new instrument.)

6S.I. 2020/790: Reported for failure to comply with proper legislative practice

Motor Vehicles (Tests) (Amendment) (Coronavirus) (No. 2) Regulations 2020

6.1The 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.

6.2This instrument amends an exclusion to the requirement to hold a test certificate that was introduced at the end of March by the Motor Vehicles (Tests) (Amendment) (Coronavirus) Regulations 2020 (S.I. 2020/382) because of “the potential for widespread disruption to the vehicle testing regime with little or no notice”. Under that exclusion, if a vehicle was road-worthy and had yet to be examined for a new test certificate on the day before its current certificate expired, and if the expiry date fell between 30 March 2020 and 29 March 2021, the vehicle could lawfully be used on the road for a further six months from the expiry date. Regulation 2 brings forward by several months the date on which the exclusion ends, from 29 March 2021 to 1 August 2020. The new deadline for obtaining a test certificate takes effect eight days after the instrument was laid before Parliament, breaching the convention that an instrument subject to annulment should be laid at least 21 days before it is due to come into force. In the Explanatory Memorandum to this instrument, the Department for Transport states that it “regrets the delay but considers that the public announcement of this policy on 29th June has provided adequate notice to interested persons”.

6.3The Committee asked the Department to explain why regulation 2 did not end the policy on a later date to avoid a breach of the 21-day rule, having regard, on the one hand, to the need to give individuals affected by this legislation sufficient time to prepare for it and, on the other, to the fact that an announcement of policy intent may not lead to, and cannot be treated as, equivalent to a change in law. In a memorandum printed at Appendix 6, the Department asserts that a mid-August commencement, and a late change to the date announced in June, would have had a significant and detrimental impact, affecting more than 800,000 vehicle tests and confusing vehicle users as to their legal obligations. The Committee finds this situation unsatisfactory. It is entirely reasonable for a person not to assume that a policy announced in June will become law in August, but instead to wait until the law is made before they act. This is especially true when—as the Department itself noted—things are changing with little or no notice. The speed of other changes may also have made it impossible for people to obtain a new test certificate by the foreshortened deadline (if, for instance, they had been self-isolating when the change took effect). The Committee believes that people are entitled to proper notice of changes in the law, and it agrees with the Department that resourcing issues are not a sufficient explanation of a failure to provide that notice. If the Department has the resources to announce a new policy, it should also be able to make the implementing legislation in sufficient time to observe the 21-day rule, which is an important part of the accessibility and transparency components of the rule of law. The Committee accordingly reports these regulations for failure to comply with proper legislative practice, acknowledged by the Department.

Published: 2 October 2020