Thirty-Seventh Report of Session 2019-21 Contents

Instruments reported

At its meeting on 20 January 2021 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. 2020/1146: Reported for defective drafting.

Heavy Commercial Vehicles in Kent (No.3) (Amendment) Order 2020

1.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.

1.2This Order, which is subject to the negative resolution procedure, establishes a permit scheme to allow cross-Channel lorries carrying certain priority goods for export (day-old chicks, or fresh or live seafood for human consumption) to bypass traffic restrictions in Kent. Where a lorry is carrying only priority goods, the Secretary of State may issue a permit under that scheme that is valid for 24 hours from the time of issue (article 2(6)(a), inserted article 7(C1) and (D1)). It was not clear to the Committee whether the condition that the lorry be carrying only priority goods had to be satisfied for the entire 24-hour period or only at the point when the permit was issued. This would be relevant, for instance, if the lorry were carrying day-old chicks, which are defined in article 2(2)(a) as poultry or muscovy ducks less than 72 hours old: would a permit continue to be valid in respect of chicks that exceeded that age limit whilst still in transit? The Committee asked the Department for Transport to explain. In a memorandum printed at Appendix 1, the Department explains that the policy intention is that the condition must be satisfied throughout the permit’s validity. It asserts, however, that a priority goods permit would not be considered invalid by day-old chicks ceasing to meet the age requirement that makes them priority goods. These two propositions are clearly incompatible. If a priority goods permit is only valid while the lorry carries priority goods and nothing else, this should exclude chicks that have ceased to be priority goods as defined in article 2(2)(a). If, however, a consignment of chicks ceasing to fall within the definition of priority goods does not invalidate a permit, then the same should apply to any consignment ceasing to fall within that definition. The provisions are insufficiently clear on their face as to which of these two incompatible interpretations is in fact the law, and the Committee accordingly reports article 2(6)(a) for defective drafting.

2S.I. 2020/1363: Reported for defective drafting

Road Vehicles (Display of Registration Marks) (Amendment) (EU Exit) (No.2) Regulations 2020

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

2.2These Regulations, which are subject to the negative resolution procedure, amend the Road Vehicles (Display of Registration Marks) Regulations 2001 (S.I. 2001/561) to take account of new requirements for registration plates that will apply from 1 September 2021. Regulation 7 inserts the new requirements as new Part A1 of Schedule 2 to the 2001 Regulations; Parts 1 and 2 contain the earlier requirements; and which Part applies depends on the date on which a vehicle was first registered and whether it is being fitted with new or replacement plates. This is set out in regulation 10 of the 2001 Regulations: paragraph (2) provides that for vehicles first registered between 1 September 2001 and 31 August 2021, Part 1 applies; paragraph (3) provides that for vehicles first registered between 1 January 1973 and 31 August 2001, Part 2 applies, but only subject to the provisions relating to replacement plates—paragraph (4), which applies Part 1 for replacement plates fitted on or before 31 August 2001, and new paragraph (4A) (inserted by regulation 3(e)), which applies new Part A1 for replacement plates fitted on or after 1 September 2021. The Committee asked the Department for Transport to confirm that paragraph (2) should also have been made subject to paragraph (4A), for consistency with both paragraph (3) and the drafting of paragraph (4A) itself. In a memorandum printed at Appendix 2, the Department sets out reasoning by virtue of which it believes the correct result is achieved by the instrument as drafted, but adds that “to avoid any confusion about how regulation 10(4A) should apply to paragraph 10(2), the Department proposes to amend regulation 10(2) when a suitable opportunity arises to provide that it is subject to new paragraph 10(4A)”. The Committee does not dissent from the Department’s reasoning, but welcomes the proposed amendment to remove what is presently an inconsistency of treatment of different provisions within the Regulations. Inconsistencies are always a potential source of confusion and argument and accordingly, although this is a relatively minor inconsistency, the Committee reports regulation 3 for defective drafting, in essence acknowledged by the Department.

3S.I. 2020/1387: Reported for defective drafting

Direct Payments to Farmers and Cross-Compliance (Simplifications) (England) (Amendment) 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, which are subject to the negative resolution procedure, amend retained EU law that governs the Direct Payment to Farmers schemes and Cross Compliance rules to simplify both as they apply in England. Among the simplifications is the removal of the rules that govern “greening payments”, such as Article 45 of Regulation (EU) No 1307/2013, which requires the designation of permanent grassland that farmers were prohibited from converting or ploughing and is removed from UK law by regulation 5(6). Regulation 7(2) also removes one reference to greening rules from Article 2(1)(22) of Commission Delegated Regulation (EU) No 640/2014, but it leaves in place the words “permanent pasture referred to in Article 45(2)(a) of [Regulation (EU) No 1307/2013]”. Having regard to the stated policy intent of this instrument, the Committee asked the Department for Environment, Food and Rural Affairs to confirm whether those words should have been omitted. In a memorandum printed at Appendix 3, the Department provides that confirmation and undertakes to correct the error at the earliest available opportunity. The Committee accordingly reports regulation 7 for defective drafting, acknowledged by the Department.

4S.I. 2020/1401: Reported for defective drafting and for failure to comply with proper legislative practice

Electricity and Gas (Internal Markets) (No. 2) Regulations 2020

4.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in one respect and do not comply with proper legislative practice in one respect.

4.2These Regulations, which are subject to the negative resolution procedure, insert new provisions into the standard conditions of several licences granted under the Electricity Act 1989 in order to implement Directive (EU) 2019/944.

4.3Regulation 4 amends the standard conditions of an electricity distribution licence granted under section 6(1)(c) of the 1989 Act by inserting several new conditions and inserting into Condition 1 several new defined terms that appear in those conditions. The term “Distribution Licensees” is used for the first time in inserted Condition 31E; it is not a defined term, although the drafting convention within the conditions is to use initial capitals for defined terms. The Committee asked the Department for Business, Energy and Industrial Strategy to explain. In a memorandum printed at Appendix 4, the Department accepts that a definition would have been clearer and explains the route by which the expression is likely to be understood as intended in the context. The Committee accepts the Department’s explanation; but, of course, once the convention of using initial capitals for defined terms is adopted in an instrument it must be applied consistently and the Committee accordingly reports regulation 4 for defective drafting.

4.4Although the licences amended by this instrument are granted under the 1989 Act and at least some of the standard conditions have, as here, been made by statutory instrument, these Regulations do not identify any such prior instruments. The Explanatory Note refers readers to “copies of the standard licence conditions” available at Ofgem’s Electronic Public Register (“EPR”) website and to “indicative versions of the standard licence conditions” available at its office. It is not clear whether the online “copies” to which the Note refers are the unofficial consolidated versions of current and previous standard licence conditions (expressly marked as “not formal Public Register documents and should not be relied on”) or the modifications signed by the Secretary of State (which do not appear to include prior statutory instruments) or both. The Committee asked the Department to explain what is intended by the phrase “indicative versions of the standard licence conditions”, and where the official, non-consolidated version of all the standard conditions that this instrument amends can be accessed. In its memorandum, the Department explains that the phrase in question refers to the hard copies. The Department does not answer the second question, but merely refers the Committee to Keeling schedules and to the EPR website. It remains unclear to the Committee what makes the hard copy an “indicative” version (rather than a definitive one) and where the official, reliable version of the standard conditions can be found. This makes it difficult to assess whether some of the changes made by this instrument are technically correct. The amendment made by regulation 4(7)(e), for instance, refers to subparagraphs (e) and (f) of paragraph 43B.6 of the standard conditions of an electricity distribution licence, but in the consolidated version on the EPR website, paragraph 43B.6 has no such subparagraphs (although it does have two each of subparagraphs (a), (b) and (c)). It is important for readers of amended instruments to be able to reconstruct the complete chain of amendments for themselves so as to be able to verify their cumulative effect. The Committee hopes that future instruments modifying the standard conditions will set out—whether in a footnote or in the Explanatory Notes—where all the official, non-consolidated, definitive versions they amend can be accessed. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.




Published: 22 January 2021 Site information    Accessibility statement