Instruments reported
At its meeting on 10 March 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 and for defective drafting
Cat and Dog Fur (Control of Movement etc.) (EU Exit) Regulations 2021
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that in one respect there is a failure to comply with proper legislative practice and they are defectively drafted in one respect.
1.2These draft Regulations, which are subject to the draft affirmative resolution procedure, make provision with respect to the placing on the market, and the import and export, of cat and dog fur, and cat and dog fur products. They amend Regulation (EC) 1523/2007 and the Cat and Dog Fur (Control of Import, Export and Placing on the Market) Regulations 2008 (“the 2008 Regulations”).
1.3The Regulations replace an earlier instrument which was laid before and approved by both Houses in March 2019. Paragraph 3.1 of the Explanatory Memorandum states that the earlier instrument was never made. The Committee asked the Department for International Trade to explain this statement in the light of the fact that:
- the earlier instrument was given a number (SI 2019/830) which can only happen after an instrument is made, and
- the instrument appears on the websites of commercial publishers of legislation with a date of making of 8 April 2019.
1.4In a supplementary memorandum, printed at Appendix 2, the Department explains that the instrument was signed by the Minister but that it was a nullity because it was different from the version that had been laid before and approved by Parliament. This error was notified to the National Archives with the instruction that the instrument be withdrawn from publication. The Department notes that the withdrawal from publication was not noticed by legal publishers. According to the Department, those publishers have now been contacted directly to draw their attention to this issue so that instrument can be removed from their databases and match the public record.
1.5The Department acknowledges that its failure to ensure that the instrument did not continue to be published on the subscription databases of legal publishers may have led some users of those websites to be confused as to the state of the law. In the view of the Committee, the Department’s failure goes much wider than this. The Committee considers that, as soon as the Department realised a mistake had been made with the Minister signing the wrong instrument, it should have considered what steps it could take to regularise the position. If, having done so, the Department reached the view that it would not be appropriate to revoke the instrument, then the Department should have taken steps to publicise the fact of the instrument’s withdrawal and the reasons for it. This would have allowed those affected by the Department’s decision to be aware of it and to consider whether or not they wished to challenge the decision. In the view of the Committee, withdrawal from publication alone, given the lack of transparency it involves, was an insufficient response to what happened. Nor is it a sufficient cure that this replacement instrument has now been laid. The Committee accordingly reports the draft Regulations for a failure to comply with proper legislative practice.
1.6Regulations 3(3) and 4(2) amend the 2008 Regulations to make it an offence where a person contravenes Regulation (EC) 1523/2007, both as that Regulation has effect as retained EU law and as it has effect by virtue of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement. One of the effects of the amendments is to make a person convicted summarily of an offence liable to a fine, without specifying any maximum limit for the fine. In respect of Scotland and Northern Ireland, this represents a change from the current position under the 2008 Regulations, where the fine which may be imposed is expressly subject to the statutory maximum.
1.7In a memorandum printed at Appendix 1, the Department for International Trade appears to suggest that summary fines for Northern Ireland and Scotland will in practice be capped, despite the absence of any express words limiting fines to a particular maximum. In respect of Northern Ireland, the Department notes that a cap on fines imposed under primary legislation applies by virtue of Article 4 of the Fines and Penalties (Northern Ireland) Order 1984. In respect of Scotland, it is noted that section 225 of the Criminal Procedure (Scotland) Act 1995 sets the amount of the statutory maximum on summary conviction for offences triable either way. The Department goes on to say that:
“A summary offence would be understood by the relevant judicial officers with reference to the underlying standard scale levels in primary legislation in each jurisdiction where the penalties would be applied”.
1.8The suggestion seems to be that, despite the fact that these statutory limits do not apply to fines imposed under the 2008 Regulations, the relevant judicial officers will nevertheless act as if they do. The Committee does not consider it is possible to justify the absence of express limits on this basis, particularly as in other contexts express provision is made for summary fines to be subject to the statutory maximum. If the policy is that fines should be subject to the statutory maximum on summary conviction in Scotland or Northern Ireland, then in the view of the Committee the draft Regulations should have expressly provided for this. The Committee accordingly reports regulations 3(3) and 4(2) for defective drafting.
2S.I. 2020/1497: Reported for requiring elucidation and for defective drafting
Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) 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 and are defectively drafted in two respects.
2.2These Regulations, which are subject to the negative resolution procedure, transpose the Environmental Impact Assessment (EIA) Directive (EU Directive 2011/92/EU) into UK law in relation to oil and natural gas projects.
2.3Several regulations impose a requirement to give “reasons” for a decision (see regulations 6(7), 15(4) and 18(3)); others impose a requirement to give “main reasons” (see regulations 6(4), 14(4) and 19(4)); while there is no express requirement to give reasons at all in relation to some decisions (such as a decision under regulation 7 or a decision to grant consent under regulation 15). The Committee asked the Department for Business, Energy and Industrial Strategy to explain the intended difference in meaning between “reasons” and “main reasons” and the apparent inconsistency as to when they are required.
2.4In a memorandum printed at Appendix 3, the Department explains that as this instrument is transposing the provisions of the Directive, it “is intended to follow the wording of the corresponding provision of the Directive without amendment”. That accounts for most of the discrepancies in the instrument and the Committee accordingly reports the Regulations for elucidation, provided by the Department’s memorandum. (The Committee notes, however, that “copy-out” transposition of the English-language version of a Directive does not always produce effective domestic law, and in this case it might have been preferable to produce an internally consistent result that the UK courts could apply in accordance with the presumption that change of language implies change of meaning.)
2.5In relation to regulation 15(4) the Department’s memorandum acknowledges that it is intended to transpose Article 8a(2) of the Directive, and the requirement for “reasons” in regulation 15(4) is not the same as the corresponding requirement to provide “main reasons” in Article 8a(2) of the Directive. The Department asserts that the courts would nevertheless apply a construction that amounts to satisfactory transposition; be that as it may, having adopted a policy of copying-out the English-language version of the Directive, the Department should have applied it consistently. The Committee accordingly reports regulation 15(4) for defective drafting, acknowledged by the Department.
2.6Regulation 12(3)(a) imposes a requirement on the Secretary of State to notify the developer if they receive additional information “during the period between the service of the notice under regulation 11(3)(c) and the OGA’s notification to the developer under regulation 15” (emphasis added). The Committee asked the Department to confirm that the reference should be to publication of the notice, given that regulation 11(3)(a) requires the developer to serve on specified parties a notice served on the developer by the Secretary of State, while regulation 11(3)(c) requires the developer to publish a notice stating that an application for consent has been made and providing information as to how representations may be submitted. In its memorandum, the Department acknowledges the error and confirms that the cross-reference should be to publication of a notice under regulation 11(3)(c). The Department asserts that the meaning is sufficiently clear notwithstanding the error. Whether or not it is true that the courts would be forced to construe the reference in the way the Department asserts, the Committee reports regulation 12(3)(a) for defective drafting, acknowledged by the Department.
3S.I. 2021/2: Reported for requiring elucidation
FLEGT Licensing Scheme (Council Regulation (EC) No 2173/2005) (Amendment) Regulations 2021
3.1The Committee draws the special attention of both Houses to these Regulations on the ground that the Explanatory Memorandum accompanying them requires elucidation in one respect.
3.2These Regulations, which are subject to the negative resolution procedure, amend EUR 2005/2173 to list Indonesia as a partner country under the GB FLEGT licensing scheme. This was made possible by a new Voluntary Partnership Agreement between the UK and Indonesia. The effect is that specified timber products originating in Indonesia and imported into Great Britain are considered to have been legally harvested—as was the case when the United Kingdom was part of the EU FLEGT licensing scheme, under which Indonesia is a partner country. Between 11pm on 31 December 2020, when the United Kingdom left the EU scheme, and the beginning of 5 January 2021, when this instrument came into force, Indonesia was not a partner country of the United Kingdom under any FLEGT licensing scheme. Paragraph 7.6 of the Explanatory Memorandum asserts that during this period, the Office for Product Safety Standards (“OPSS”)” will “consider a FLEGT licence [from Indonesia] as meeting the due diligence requirement for the import of timber”. The Committee asked the Department for Environment, Food and Rural Affairs to explain what authority enables the OPSS to do so. In a memorandum printed at Appendix 4, the Department explains that the OPSS is responsible for investigating compliance with EUR 2010/995, which requires operators to conduct due diligence to ensure that the timber they import has been legally harvested; it asserts that “as a matter of fact, the issuing of a FLEGT licence … is good evidence that the timber was legally harvested”. The Committee accepts this and accordingly reports the Explanatory Memorandum to this instrument as requiring elucidation, provided in the Department’s memorandum.
Published: 12 March 2021 Site information Accessibility statement