Thirty-First Report of Session 2019–21 Contents

Instruments reported

At its meeting on 18 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 four 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. 2020/1112: Reported for requiring elucidation and for defective drafting

Product Safety and Metrology etc. (Amendment) (Northern Ireland) (EU Exit) Regulations 2020

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 two respects.

1.2These Regulations amend several instruments relating to product safety and metrology in order to implement the Protocol on Ireland/Northern Ireland (“the Northern Ireland Protocol”) that is part of the Withdrawal Agreement between the United Kingdom and the European Union.

1.3Schedule 6 amends the Cosmetic Products Enforcement Regulations 2013 (S.I. 2013/1478) so that they continue to apply in Northern Ireland in accordance with the Protocol. The Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/696) make different amendments to the 2013 Regulations in respect of their application in Great Britain. Schedule 6 reflects these differences by, inter alia, removing most references to England and Wales and Scotland. The Committee asked the Department for Business, Energy and Industrial Strategy to explain why regulation 20 of the 2013 Regulations as it applies in Northern Ireland will continue to refer to the powers of an enforcement authority in England and Wales and appeals to the Crown Court in England and Wales given the removal, by other provisions of Schedule 6, of references to England and Wales in the definition of “enforcement authority” in regulation 2(1) and the appropriate court in regulation 16. In a memorandum printed at Appendix 1, the Department explains that its approach in amending the 2013 Regulations was “to make the amendments that are strictly necessary and where a provision will still work for the whole of the United Kingdom (albeit that some of the provisions may not apply in different parts of the United Kingdom), the approach is to leave them as they are”; the Department adds that regulation 20 will continue to work in Northern Ireland notwithstanding the vestigial references to enforcement authorities in England and Wales because these “will not be relevant to Northern Ireland”. The Committee accordingly reports Schedule 6 as requiring elucidation, provided in the Department’s memorandum.

1.4Schedules 13 and 14 amend the Non-automatic Weighing Instruments Regulations 2016 (S.I. 2016/1152) and the Measuring Instruments Regulations 2016 (2016/2253). The Committee asked the Department to explain why paragraphs 2(1)(h) of Schedule 13 and 2(1)(g) of Schedule 14 omit the definition of “Union harmonisation legislation” (i.e. “any European Union legislation harmonising the conditions for the marketing of products”) from those 2016 Regulations, given that later provisions continue to rely on it. In its memorandum, the Department asserts that the definition is unnecessary. The Committee does not agree: the term is not intuitive, and as it is still used the definition should have been retained. The Committee accordingly reports paragraphs 2(1)(h) of Schedule 13 and 2(1)(g) of Schedule 14 for defective drafting.

1.5The Committee also asked the Department to explain how the substitutions in paragraph 2(1)(e) of Schedule 14 will be given effect when neither “make available on the market” nor “place on the market” (the definitions in which the substitution is intended to be made) contains the exact phrase “market in the European Economic Area” (the phrase to be substituted). In its memorandum, the Department acknowledges that paragraph 2(1)(e) cites the wrong expression and undertakes to correct the error at the earliest opportunity. The Committee accordingly reports paragraph 2(1)(e) of Schedule 14 for defective drafting, acknowledged by the Department.

2S.I. 2020/1115: Reported for unusual or unexpected use of enabling powers and for defective drafting

Transfrontier Shipment of Radioactive Waste and Spent Fuel (Amendment) (EU Exit) Regulations 2020

2.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they make unusual or unexpected use of the enabling power in one respect and are defectively drafted in two respects.

2.2This instrument amends the Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2019 (S.I. 2019/156) to implement the Northern Ireland Protocol, and in particular to ensure that Council Directive 2006/117/EURATOM (“the Euratom Directive”) continues to apply in Northern Ireland.

2.3Regulation 12(1) of the 2019 Regulations allows a person to appeal a decision by a UK competent authority in relation to an application for authorisation of a shipment, and regulation 12(2) sets out the powers of the appellant body when deciding the appeal: it may confirm the original decision or direct the competent authority to grant or vary the conditions of an authorisation. Regulation 12 of this instrument amends regulation 12(1) so that a person may also appeal a decision of the Chief Inspector for Northern Ireland in relation to an application for consent (where authorisation has been granted by the competent authority of an EU Member State). Regulation 12 does not make any corresponding amendment to regulation 12(2), with the apparent effect that where a person appeals a decision regarding consent, the only power of the appellant body is to confirm the original decision. The Committee asked the Department for Business, Energy and Industrial Strategy to explain. In a memorandum printed at Appendix 2, the Department acknowledges that this is the effect of not amending regulation 12(2), but asserts that this restores the original approach of the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008 (S.I. 2008/3087), which originally implemented the Euratom Directive in the United Kingdom. The Committee accepts that; but a right of appeal that allows for only one possible outcome is not a coherent legislative approach. The Committee accordingly reports regulation 12 for making an unusual or unexpected use of the enabling power.

2.4Regulation 13 of the 2019 Regulations sets out the procedure for dealing with shipments that are not in accordance with either those Regulations or an authorisation granted under them: the competent authority may decide that the shipment may not be completed (paragraph (1)); “the person holding the authorisation granted under these Regulations” must return or otherwise dispose of the shipment (paragraph (3)); and “the person holding the authorisation” is liable for costs arising if the shipment is not completed (paragraph (5)). Regulation 13 of this instrument inserts the words “(or the person having responsibility for a shipment that has not been authorised)” into paragraph (3), as an alternative to “the person holding the authorisation granted under these Regulations”. The Committee asked the Department to explain the circumstances in which a shipment of radioactive waste or spent fuel could be brought into the United Kingdom without being authorised (and who is liable for costs arising if a shipment that has not been authorised is not completed). In its memorandum, the Department asserts that the inserted text is intended to refer to a person whose authorisation is granted by the competent authority of an EU Member State rather than by a UK competent authority. (It does not answer the Committee’s question as to liability for costs.) That may be the intention, but regulation 13 does not achieve it, as it refers simply to a shipment that “has not been authorised” (which means that the reference in paragraph (5) to “the person holding the authorisation” simply does not work). The Committee accordingly reports regulation 13 for defective drafting.

2.5Regulation 16 inserts several new paragraphs into Schedule 1 to the 2019 Regulations. Inserted paragraph 9 applies “when the destination for a shipment is in Northern Ireland and the Chief Inspector receives acknowledgment of receipt of the shipment in accordance with regulation 8” of the 2019 Regulations. The Committee asked the Department to clarify the circumstances in which this will occur, given that regulation 8 applies to shipments “from the United Kingdom to another country”. In its memorandum, the Department acknowledges that inserted paragraph 9 should have referred to notification under regulation 7 of the 2019 Regulations, rather than under regulation 8. It undertakes to correct the error at the next opportunity. The Committee accordingly reports regulation 16 (inserted paragraph 9) for defective drafting, acknowledged by the Department.

3S.I. 2020/1116: Reported for defective drafting

Aviation Safety (Amendment) (EU Exit) Regulations 2020

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 instruments to correct defects arising as a result of Brexit, among them the Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/645). Regulation 46 corrects an error in regulation 367(2)(a)(iii) of the 2019 Regulations so that it properly cites the phrase that it wishes to replace in Commission Regulation (EU) No 965/2012, point SPA.GEN.100(b) of Subpart A of Annex 5 (Part-SPA) (i.e., “Notwithstanding point (a)(2), for” instead of “Notwithstanding (a)(2), for”). Regulation 67 of this instrument makes the same change as corrected regulation 367(2)(a)(iii) of the 2019 Regulations. The Committee asked the Department for Transport to confirm that regulation 67 is superfluous. In a memorandum printed at Appendix 3, the Department confirms that it is. The Committee accordingly reports regulation 67 for defective drafting, acknowledged by the Department.

4Draft S.I.: Reported for defective drafting

Draft Conflict Minerals (Compliance) (Northern Ireland) (EU Exit) 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.

4.2The Regulations implement, in relation to Northern Ireland, Regulation (EU) No 2017/821 which lays down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas. Regulation 8 enables the Secretary of State to serve a notice requiring a person to provide information where that information is necessary for the purposes of the exercise of the Secretary of State’s functions under the Regulations. The persons on whom such a requirement may be imposed include, but are not limited to, Union importers (as defined in regulation 2). Regulations 14 and 15, and the Schedule to the Regulations, contain provision for enforcing obligations imposed by the Regulations. However, this is limited to enforcing obligations imposed on Union importers. Accordingly, the Regulations contain no provision for enforcing a requirement under regulation 8 imposed on a person who is not a Union importer.

4.3In a memorandum printed at Appendix 4, the Foreign, Common and Development Office acknowledges that the Regulations are defective in not including provision for enforcing a requirement imposed under regulation 8 on a person who is not a Union importer. The Department indicates that it will bring forward amending legislation as soon as possible and that in the meantime the Secretary of State will not exercise the power to require production of information under regulation 8 against persons other than Union importers. Accordingly, the Committee reports the Regulations for defective drafting, acknowledged by the Department.





Published: 20 November 2020