Instruments reported
At its meeting on 24 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 three 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.
1Draft S.I.: Reported for failure to comply with proper legislative practice, for requiring elucidation and for defective drafting
Mayoral and Police and Crime Commissioner Elections (Coronavirus, Nomination of Candidates) (Amendment) Order 2021
1.1The Committee draws the special attention of both Houses to this draft Order on the ground that it fails to comply with proper legislative practice in one respect, requires elucidation in one respect and is defectively drafted in two respects.
1.2This draft Order, which is subject to the draft affirmative resolution procedure, makes temporary amendment of electoral enactments to reduce the number of subscribing electors that are required on a candidate nomination form for Police and Crime Commissioner, Combined Authority Mayoral and Local Authority Mayoral elections (in order to reduce the risk of exposure to and transmission of Coronavirus).
1.3Article 3 makes amendments to rules scheduled to the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007. Those Regulations (and therefore the rules) have England and Wales extent. The amendments are to apply to England alone, but that is achieved only by limiting words in Article 1(3) of the amending Order. There is nothing in the text of the rules as amended to warn readers that the amended text relates only to England. The Committee asked the Cabinet Office to explain whether consideration was given to achieving the England-only application by express limitation on the face of the rules as amended, having regard to the particular difficulties for publishers and readers of parallel texts created by reference to application only and not extent. In a memorandum printed at Appendix 1, the Department acknowledges those difficulties but explains that it decided on its approach as the amendments are “both temporary and limited in nature” and, in particular, as “there are no elections in Wales which will be held under S.I. 2007/1024 during the period when the amended rules will be in force, as there are currently no mayors of this kind in Wales”; it concludes that “as the Cabinet Office will be providing guidance on the temporary rules, we consider that there is limited scope for confusion”. The Committee considers that this approach fails to take proper account of the needs of different readers of the statute book. Law in force may be consulted by readers for a range of purposes, including advising on or considering the arrangements of constitutional law otherwise than in the context of practical preparations for an immediately imminent election. Unless there is a specific need to create parallel texts of legislation, an approach which requires editors to prepare and readers to note different versions that apply for different purposes, it should be avoided. In this case, simply inserting “in relation to elections in England” or some such qualification in the text of the amendments would have avoided the need for parallel texts altogether. The fact that the change is temporary and limited is all the more reason why it is important for readers to be able to grasp its purport and parameters quickly and simply on the face of the amended legislation and without having resort to informal Government guidance. The Committee accordingly reports Article 3 for failure to comply with proper legislative practice.
1.4Article 3 includes omissions of provisions of the rules set out in the 2007 Regulations. As the omissions are included in legislation that is expressly temporary, the Committee asked the Department to explain whether consideration was given to providing expressly that the expiry of the amendments would revive the omitted provisions (the general rule being to the contrary, as set out in sections 15 and 16 of the Interpretation Act 1978). In its memorandum that Department confirms that revival is the legislative intention, and that it did consider making express provision for revival but felt that the intention was sufficiently clear from the context of the draft Order as whole. The Committee agrees that the intention can be inferred from the context and therefore, although a brief express provision might have added clarity, the Committee reports the repealing provisions of Article 3 for requiring elucidation, provided by the Department’s memorandum.
1.5Article 3(2)(a) amends rule 8(1) of the mayoral elections rules to remove words so that the remainder reads “The nomination paper must be subscribed by two electors as proposer and seconder to the nomination.” The Committee asked the Department to confirm that the amendment effected by Article 3(2)(a) should also have removed the words “to the nomination”, having regard to the present syntax of rules 8(1) and (2). In its memorandum the Department agrees that omitting the words “to the nomination” in rule 8(1) “would also be correct, and may have been clearer”, but that a person could be “proposer or seconder to the nomination” and that rule 8(1) “as amended is sufficiently clear that it should not cause confusion for an ordinary reader”. Whether a person could naturally be described as “proposer to the nomination” (which the Committee doubts) is not the point. The point is that the pre-amended form of rule 8(1) is “The nomination paper must be subscribed by two electors as proposer and seconder, and by twenty-eight other electors as assenting to the nomination.” which shows (by the use of a single comma after “seconder” and no matching comma after “assenting”) that the words “to the nomination” belong with “and by twenty-eight other electors as assenting” and should therefore have been removed along with those words. The Committee accordingly reports Article 3(2)(a) for defective drafting.
1.6Article 2(2)(b) provides for the Order to continue to have effect after 28 February 2022 “in relation to an election where … the poll for that election takes place on or after that date”. The Explanatory Note states “Article 2 provides for the expiry of these amendments at the end of 28th February 2022, except in respect of elections which have been commenced … on or before but not concluded on that date.” There is an inconsistency: the Explanatory Note does not correctly describe the situation where the poll in an election takes place on 28 February 2022, in which case the election is concluded on that date but Article 2(2)(b) expressly applies. In its memorandum, the Department asserts that the Explanatory Note refers to a scenario “where the poll … is held on 28 February 2022 but where the results are not yet known by the end of that day”, on the grounds that “We considered most people would consider the announcement of the result at the count to be the “conclusion” of an election”; the Department adds that on reflection, however, it agrees that the Explanatory Note is not as clear as it should be, and that the Department will ensure that it does not use this form of words in a similar case. The Department’s explanation, however, may work for the case where the result is not announced on the day of the poll, but it does not work for the more usual case where it is. Where the poll takes place and the result is announced on 28 February 2022, according to the Department it has “concluded” and according to the Explanatory Note the extension does not apply; but according to Article 2(2)(b) the extension clearly does apply because the poll was held on that date. The issue, in other words, is not whether most people would or would not consider the announcement of the result to be the conclusion of an election: the point is that Article 2(2)(b), rightly or wrongly, makes the extension depend not on the date on which the election “concludes” but on the date on which the poll takes place. If, as the Department maintains, the legislative intention was for the date of declaration of the result to be determinative, it has failed to achieve that result in Article 2(2)(b), which the Committee accordingly reports for defective drafting.
2S.I. 2020/1388: Reported for requiring elucidation, for defective drafting and for failure to comply with proper legislative practice
Animals, Aquatic Animal Health, Invasive Alien Species, Plant Propagating Material and Seeds (Amendment) (EU Exit) Regulations 2020
2.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in one respect, are defectively drafted in three respects and fail to comply with proper legislative practice in one respect.
2.2These Regulations, which are subject to the negative resolution procedure, correct deficiencies in several pieces of domestic and retained EU legislation to ensure that the UK statute book operates effectively after the end of the Brexit transition period.
2.3Regulation 9 amends Commission Decision 2009/177/EC, which relates to the prevention of disease in aquaculture animals (i.e., farmed fish, molluscs and crustaceans). Paragraph (5) transposes into domestic legislation provisions of Directive 2006/88/EC that set out the criteria for declaring an area free of certain diseases that affect aquaculture animals (inserted Articles 2a and 2b), and for maintaining or suspending that disease-free status (inserted Articles 2c and 2d). Article 52 of the Directive provides that disease-free status can be maintained without targeted surveillance “provided that the conditions conducive to clinical expression of the disease in question exist, and the relevant provisions of this Directive are implemented”. Article 2c transposes most of Article 52 into domestic law, but it omits the second condition. The Committee asked the Department for Environment, Food and Rural Affairs to explain the omission. In a memorandum printed at Appendix 2, the Department confirms that it is intended that the only condition for maintenance of disease-free status and the discontinuance of targeted surveillance is to be for the conditions conducive to clinical expression of the disease to exist. This approach appears to rest on construing the second limb of Article 52 not as a continuing obligation that requires to be separately incorporated as such into domestic law, but simply as an obligation to achieve the stated results in domestic law. The Committee accepts that this is a possible construction, notes the Department’s policy intent and accordingly reports regulation 9(5) (inserted Article 2c) for requiring elucidation, provided in the Department’s memorandum.
2.4Regulation 12 amends Regulation (EC) No 1069/2009, which sets health rules for animal by-products not intended for human consumption. Paragraph (2) makes a general amendment to the whole Regulation, replacing every reference to “Community legislation”—except where it appears in Articles 5(1) and 34(2)—with a reference to “retained EU law”. Paragraph (18)(a), however, purports to amend Article 34(1) by removing the phrase “the Community legislation referred to in that Article”. The Committee asked the Department to confirm that the exception in regulation 12(2) should have applied to both paragraphs of Article 34. In its memorandum, the Department accepts that this “may have been preferable” but asserts that because the amendments in regulation 12(2) and (18)(a) “take effect at the same point in time and have to be read together … the more specific amendment to regulation 34(1) itself creates an exception to the general amendment in regulation 12(2) and the intended effect is clear”. Whilst the Committee accepts that a court is likely to be forced to that conclusion, it is not proper drafting practice to frame conflicting provisions on the basis that the more specific will implicitly take priority over the more general. Had that been the case, then the general substitution in regulation 12(2) would have required no exceptions. And the drafting should have been internally consistent: having created an express exception for Articles 5 and 34(2) to avoid having to construe conflicting amendments on the basis of necessary implication, the conflict with Article 34(1) should also have been avoided with express words. The Committee accordingly reports regulation 12(2) for defective drafting.
2.5Regulation 15 amends Commission Regulation (EU) No 576/2013. Paragraph (3)(d) inserts several new defined terms, including ‘the EU Implementing Regulation’ (inserted point (o)) and ‘the EU Regulation’ (inserted point (p)). The Committee asked the Department to explain the intended difference in meaning between “as it has effect in European Union law” in the first definition and “as it applies in European Union law” in the second. In its memorandum, the Department acknowledges that there is no intended difference in meaning and accepts that the first expression should have been used in both definitions. It undertakes to consider how the error might be addressed. The Committee accordingly reports regulation 15(3)(d) (inserted points (o) and (p)) for defective drafting, acknowledged by the Department.
2.6Regulation 20(2)(s) replaces regulation 2(60) of the Transmissible Spongiform Encephalopathies and Animal By-Products (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/170), which in turn amends Section A of Chapter A of Annex 8 to Regulation (EC) No 999/2001. The effect of new paragraph (60)(b)(ii) is that under Section A, point 2.1(e), introductions from “other countries” of sheep and goats and their genetic material must be carried out in accordance with Section A, point 4. But new paragraph (60)(g) revokes that point 4; meanwhile, under point 2.1(f), introductions from “third countries” of sheep and goats etc. must be carried out in accordance with other provisions that are not revoked. The Committee asked the Department to explain why new paragraph (60)(b)(ii) and point 2.1(e) are necessary. In its memorandum, the Department acknowledges that they are not and undertakes to consider whether there may be a suitable opportunity to correct the error by amending the EU Regulation. The Committee accordingly reports regulation 20(2)(s) (substituted paragraph (60)(b)(ii)) for defective drafting, acknowledged by the Department.
2.7The Committee noticed a large number of minor errors in the instrument (as set out in the table in Annex 2). It asked the Department to explain why these were not identified and corrected at proofreading stage. The Department acknowledges and apologises for the errors, which it asserts “arose through the high volume of instruments being drafted and checked in a short space of time”. The Committee of course appreciates the enormity of the necessary preparations for the end of the Brexit transition period and the pressures on all involved. But pressure of time can never amount to an acceptable excuse for making bad law. Even obvious typographical and similarly small-scale errors can be a source of confusion and even misunderstanding for readers of legislation, who are entitled to expect that legislation will not be enacted until it has been thoroughly checked. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice due to the prevalence of minor drafting errors, acknowledged by the Department.
3S.I. 2020/1571: Reported for defective drafting
Russia (Sanctions) (Overseas Territories) Order 2020
3.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.
3.2This Order in Council, which is not subject to parliamentary procedure, extends the Russia (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/855) to British overseas territories with several modifications. Paragraph 55 of Schedule 2 to the Order substitutes a new penalties regulation (regulation 80) so that offences in the 2019 Regulations can be enforced in the overseas territories, but it fails to include any penalty or other consequence in respect of offences under Part 6 (Ships). The Committee asked the Foreign, Commonwealth and Development Office to explain the omission. In a memorandum printed at Appendix 3, the Department acknowledges the error and undertakes to correct it at the earliest opportunity. The Committee welcomes the undertaking, and accordingly reports paragraph 55 of Schedule 2 (substituted regulation 80) for defective drafting, acknowledged by the Department.
Published: 26 February 2021 Site information Accessibility statement