Twenty-Ninth Report of Session 2019-21 Contents

Instruments reported

At its meeting on 4 November 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 five 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. 2020/948: Reported for defective drafting

Afghanistan (Sanctions) (EU Exit) Regulations 2020

1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

1.2These Regulations establish a domestic sanctions regime relating to Afghanistan 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. It appeared to the Committee that text was missing from the end of regulation 26(1). It asked the Foreign, Commonwealth and Development Office to confirm that this provision is incomplete. In a memorandum printed at Appendix 1, the Department confirms that two sub-paragraphs were inadvertently deleted and undertakes to correct the error at the earliest opportunity. The Committee welcomes the undertaking, and accordingly reports regulation 26(1) for defective drafting, acknowledged by the Department.

2S.I. 2020/966: Reported for unexpected use of enabling powers

Immigration and Nationality (Replacement of Tier 4 and Fees) and Passport (Fees) (Amendment) Regulations 2020

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they make unexpected use of the enabling power in one respect.

2.2These Regulations make several amendments to the Immigration and Nationality (Fees) Regulations 2018 (S.I. 2018/330). Regulation 21 amends Schedule 7 to change the definition of the “super priority visa service” for visa and entry clearance applications. This had been defined as a service that aimed “to process relevant applications for entry clearance to enter the United Kingdom within 24 hours of receipt of the application” (emphasis added). It is now defined as a service that aims to process such applications “within a period shorter than that within which it is aimed to process applications under the priority settlement service or, as the case may be, the priority visa service”. Both the “priority settlement service” and the “priority visa service” merely aim to process applications “on an expedited basis”. The fee for the redefined super priority visa service remains hundreds of pounds higher than the fee for either priority service (and nearly at the fee maximum). Regulations 22 and 23 make equivalent amendments to Schedule 9 (which applies to the Isle of Man) and Schedule 10 (which applies to Guernsey and Jersey).

2.3Given that neither of the priority services is provided by reference to a specific target period, it was not clear to the Committee: what was intended to constitute a shorter period than “an expedited basis”; by what benchmark the Home Office and applicants would be able to assess whether the super priority service had been delivered (as opposed to the priority service); and, having regard to both those matters and the removal of the 24-hour target from the legislation, what costs or other factors were covered by the significantly higher fee for the super priority service. It asked the Home Office to explain.

2.4In a memorandum printed at Appendix 2, the Department asserts that the change to the definition of super priority service does not change the service standard, and the 24-hour processing target remains in place for the time being. It explains that the definition was changed as it was considered “unnecessary for the 2018 Regulations to specify the precise service standards offered, so long as the definitions make clear the distinction between the three kinds of priority service”. It asserts that the benchmarks against which service delivery will be measured are the service standards published on the Government’s website, and that the fee will be reviewed in the usual way if the service standards change.

2.5The Committee remains concerned that the new definition fails to make a clear distinction between the priority and super priority services. The concept of “faster than faster than usual” appears neither to meet the Department’s own criterion, nor to provide a clear and justiciable legal meaning. The service standards referred to by the Department do explain what is presently intended by each service; but they do not form part of the delegated legislation and have no legislative authority, and they can be changed informally (indeed, the Department states in the Explanatory Memorandum that it has changed the legal definition precisely in order to give itself more flexibility to change the standards). Taking all this together, the Committee remains unsure whether Parliament could have expected such a significant fee uplift to be charged without any clear and justiciable distinction between the lower-priced and the higher-priced premium service. The Committee accordingly reports regulations 21 to 23 for making unexpected use of the enabling power.

3S.I. 2020/1059: Reported for requiring elucidation

Non-Contentious Probate (Amendment) Rules 2020

3.1The Committee draws the special attention of both Houses to these Rules on the ground that they require elucidation in one respect.

3.2These Rules make several amendments to the Non-Contentious Probate Rules 1987 (S.I. 1987/2024). Rule 2 introduces an overriding objective to the 1987 Rules, which is “to enable non-contentious and common form probate business to be dealt with justly and expeditiously by the court and the registry”. There is, however, no explanation of what is meant by dealing with such business “justly and expeditiously”. The Committee asked the Ministry of Justice to explain the omission, having regard to similar provisions in, inter alia, the Criminal Procedure Rules 2020 (S.I. 2020/759, rule 1.1(2)), the Court of Protection Rules 2017 (S.I. 2017/1035, rule 1.1(3)), the Civil Procedure Rules 1998 (S.I. 1998/3132, rule 1.1(2)) and the Welsh Language Tribunal Rules 2015 (S.I. 2015/1028, rule 3(2)).

3.3In a memorandum printed at Appendix 3, the Department explains that it considered a more expansive definition to be unnecessary because in these cases the work is largely paper based and non-contentious, and because of the experience of the office holders who apply the 1987 Rules. On the former ground in particular, the Department distinguishes the proceedings to which the 1987 Rules apply from those governed by the rules of procedure cited above. It appears to the Committee, as noted in relation to S.I. 2019/1264 in its First Report of Session 2019–21, that it has become part of standard legislative practice for rules of procedure that include an overriding objective (and not only those cited in its question to the Department) to define it by reference to the competing interests that must be weighed, and that if justice and expedition require to be balanced, then as in the case of other procedure rules the criteria to be applied in striking the balance could helpfully be articulated on the face of the legislation. The Committee, however, notes the Department’s approach and accordingly reports rule 2 (inserted rule 3A) for requiring elucidation, provided in the Department’s memorandum.

4S.I. 2020/1060: Reported for defective drafting

Official Controls (Plant Health and Genetically Modified Organisms) (England) (Amendment) (No. 3) Regulations 2020

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

4.2These Regulations amend the Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019 (S.I. 2019/1517) to provide for new civil sanctions, which are set out in the Schedule 4A inserted by regulation 2(9) of and the Schedule to these Regulations. The Committee asked the Department for Environment, Food and Rural Affairs to explain the intended difference in meaning between “6 months from the date from when the appropriate authority notifies the person” in paragraph 16(2) of Schedule 4A and “6 months from the date on which the appropriate authority notifies the person” in paragraph 28(3) (emphasis added). In a memorandum printed at Appendix 4, the Department acknowledges that there is no intended difference in meaning, and that paragraph 16(2) should have used the same wording as paragraph 28(3). It undertakes to correct the error at the next opportunity. The Committee welcomes the undertaking, and accordingly reports the Schedule to this instrument (in particular, paragraph 16(2) of new Schedule 4A) for defective drafting, acknowledged by the Department.

5S.I. 2020/1070: Reported for requiring elucidation

Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 16) Regulations 2020

5.1The Committee draws the special attention of both Houses to these Regulations on the ground that the Explanatory Memorandum requires elucidation in one respect.

5.2These Regulations amend the Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (S.I. 2020/568) to add an alternative time limit to the self-isolation period that applies to a person who arrives in England from a non-exempt country, and to increase the amounts of the fixed penalty notices that can be issued if a person does not comply with the duty to self-isolate. They were made on 30 September, laid on 1 October, and came into force on 2 October. The Explanatory Memorandum notes that the Department regrets the breach of the rule that an instrument should not normally come into force until at least 21 days after it is laid before Parliament. It does not offer any reasons as to why the breach was considered necessary. The Committee asked the Department for Transport to explain. In a memorandum printed at Appendix 5, the Department provides the detailed explanation. The Committee believes that breaches of the 21-day rule should always be justified in the original Explanatory Memorandum. The Committee accordingly reports these Regulations on the ground that the Explanatory Memorandum requires elucidation, provided in the Department’s memorandum.





Published: 6 November 2020