Instruments reported
At its meeting on 10 February 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 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. 2020/1531: Reported for failure to comply with proper legislative practice
Environmental Assessment of Plans and Programmes (Amendment) Regulations 2020
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in two respects.
1.2These Regulations, which are subject to the negative resolution procedure, amend the Environment Assessment of Plans and Programmes (Coronavirus) (Amendment) Regulations 2020. Those regulations temporarily removed (until 31 December 2020) requirements for responsible authorities to make documents relating to strategic environmental assessment available for inspection free of charge and replaced them with a duty to make the documents available for online inspection. This instrument makes those changes permanent; for relevant documentation responsible authorities will now be required to provide a website address, a telephone number for enquiries, documents by email when requested and (subject to a reasonable charge) hard copies by post upon request. The Committee asked the Ministry of Housing, Communities and Local Government to give some idea of the size of charge likely to be imposed for the provision of hard copies and to explain what arrangements will be made to waive charges for hard copies or make documents available for inspection free of charge for individuals who have an interest in seeing those documents but who have limited or no access to the internet or a computer and who may be unable to afford the standard charge for the provision of hard copies. In a memorandum printed at Appendix 1, the Department is unable to give an idea of typical costs of producing hard copies. The Department confirms that arrangements to waive charges (or provide access to the documentation by other means) are at the discretion of the responsible authorities concerned. The Committee is concerned that the changes made by this instrument have the potential to reduce access to relevant documentation for those without access to the internet or a computer at home (see the Committee’s First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation at paragraphs 4.5 to 4.8). The Committee accepts, of course, that while restrictions on movement due to the Coronavirus pandemic remain in place it may be difficult to provide an address at which hard copies of the relevant documentation can be inspected free of charge; but the changes made by this instrument are permanent, and once the restrictions are lifted the Committee is clear that the public should have a non-discretionary right to inspect without charge (or, where inspection is impracticable, to receive without paying large sums by way of copying and postage fees) hard copies of documents by reference to which legislation operates and without access to which the effect of legislation cannot properly be understood. The Committee accordingly reports the regulations for failure to comply with proper legislative practice.
1.3The Committee also asked the Department to explain why it was not possible to make and lay these regulations six days earlier so as to comply with the 21-day rule. In its memorandum, the Department explains that there were a number of temporary planning measures all due to expire on or about 31 December and this meant that the extension of five statutory instruments had to be resourced simultaneously. The Committee again refers to its First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation at paragraphs 2.15 to 2.23; insufficient resources within a Department will not generally be regarded as a justification for a breach of the 21-day rule. The Committee accordingly reports the regulations for failure to comply with proper legislative practice in this respect too.
2S.I. 2020/1534: Reported for failure to comply with proper legislative practice
Infrastructure Planning (Publication and Notification of Applications etc.) (Amendment) Regulations 2020
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in two respects.
2.2The issues discussed above in relation to S.I. 2020/1531 apply equally to these Regulations. The memorandum from the Ministry of Housing, Communities and Local Government is printed at Appendix 2. The Committee accordingly reports the regulations for failure to comply with proper legislative practice on the two grounds recorded above.
3S.I. 2020/1551: Reported for requiring elucidation
Merchant Shipping (Home Office Ships) Order 2020
3.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect.
3.2This Order, which is not subject to parliamentary procedure, allows government ships to be registered as British ships so that certain provisions of the Merchant Shipping Act 1995 apply to them. Regulation 8(1)(b) allows the registrar to terminate registration of the ship on safety grounds but there is no provision to notify the Secretary of State of that termination. The Committee asked the Home Office to explain. In a memorandum printed at Appendix 3, the Department explains that this Order is drafted to mirror the regulatory requirements in the Merchant Shipping (Registration of Ships) Regulations 1993 where regulation 56(1)(d) provides that when de-registration is due to safety considerations, no transcript of de-registration is required to be sent to the ship owner. The Department asserts that if one or more of the circumstances provided for in article 8(1)(b) arose in relation to a government ship, the registrar would contact the Secretary of State, provide an opportunity for any issues to be rectified and give notice if the ship were de-registered on safety grounds. The Committee notes the explanation and accordingly reports article 8(1)(b) for requiring elucidation, provided by the Department’s memorandum.
4S.I. 2020/1557: Reported for doubtful vires and for requiring elucidation
Greenhouse Gas Emissions Trading Scheme (Amendment) Order 2020
4.1The Committee draws the special attention of both Houses to this Order on the grounds that there is a doubt as to whether it is intra vires in one respect and that it requires elucidation in one respect.
4.2This Order, which has been made by negative resolution procedure, relates to the UK Emissions Trading Scheme. The amendments mainly provide for the free allocation of allowances and establishes a registry for the UK Emissions Trading Scheme. The enabling Act specifies that regulations should be made by draft affirmative resolution procedure if they contain provision “conferring new powers to enforce the requirements of a trading scheme” (section 48(3)(e) of the Climate Change Act 2008). As the Order provides the power for the registry administrator to give enforcement notices for contravening a requirement imposed by or under new Schedule 5A and the power to issue information notices (which can result in an enforcement notice), the Committee asked the Department for Business, Energy and Industrial Strategy to explain why the Order was not made by draft affirmative resolution procedure. In a memorandum printed at Appendix 4, the Department asserts that section 48(3)(e) does not apply where existing powers are extended, rather than entirely new powers being granted. The Committee is not convinced: the purpose of section 48(3)(e) is to provide for affirmative scrutiny where an Order creates new powers of enforcement, and there seems no reason to exclude a case where the new powers are conferred in the form of a new application of an existing class of power. The Committee accepts that there are contrary arguments, as set out in the Department’s memorandum, and in the Committee’s view this uncertainty arises not from any fault of the Department but from inherent lack of clarity as to the meaning of “new powers” in section 48(3)(e). The Committee has considerable sympathy for the predicament in which the Department finds itself in relation to these Orders, but believes that the safer course would have been to apply the draft affirmative resolution procedure (albeit that this is not always an entirely safe course). As draft affirmative resolution is a precondition of validity of an instrument where it applies, the Committee reports the Order for doubt as to vires.
4.3In response to an additional question from the Committee, the Department’s memorandum helpfully clarifies the reason for relying on the ISO standard 14065:2013 in article 36, and the Committee accordingly reports article 36 for requiring elucidation, provided in the Department’s memorandum.
5S.I. 2020/1568: Reported for failure to comply with proper legislative practice
Competition Act 1998 (Groceries) (Public Policy Exclusion) Order 2020
5.1The Committee draws the special attention of both Houses to this Order on the ground that it fails to comply with proper legislative practice in two respects.
5.2This Order, which is subject to the negative resolution procedure, excludes certain agreements between suppliers of groceries from the application of certain prohibitions in the Competition Act 1998 for a specified disruption period.
5.3Article 2 contains a definition of “critical worker” which includes a reference to a document “published by the Cabinet Office and the Department for Education updated on 3rd December 2020”. The footnote to the definition of “critical worker”, however, provides a link which takes the reader to a document dated 8 January 2021. The Committee asked the Department for Business, Energy and Industrial Strategy to explain. In a memorandum printed at Appendix 5, the Department simply asserts that the document is being regularly updated and the link provided in the Order takes the reader to the current version. The definition in article 2, however, is expressly not ambulatory, but has chosen to apply by reference to a specified dated version of the guidance. For the footnote to direct the reader to a version of the document that does not apply to the instrument is extremely misleading, as well as leaving the reader without any obvious method of accessing the historical version that does apply. (The Committee notes that in relation to a similar definition of “critical worker” in S.I. 2021/8 reported in the Committee’s Thirty-Eighth Report of this Session the Department acknowledged that the reference was not intended to be ambulatory and that the link should have been to the specified dated version.) The Committee accordingly reports the footnote to the definition of “critical worker” in article 2 for failure to comply with proper legislative practice.
5.4The Committee also asked the Department to explain why no provision is made for people without internet access to be able to inspect (or, while current restrictions on movement are in force during the Coronavirus pandemic, obtain a copy of) a hard copy of the document. In its memorandum, the Department acknowledges that the footnote should have given details of where a hard copy of the guidance is available and undertakes to correct this error by correction slip (which the Committee agrees would be a proper use of that procedure). The Committee accordingly reports the same footnote for failure to comply with proper legislative practice in this additional respect.
Published: 12 February 2021 Site information Accessibility statement