At its meeting on 14 April 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 seven 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.
1.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they make unusual or unexpected use of the enabling powers in two respects, are defectively drafted in nine respects, require elucidation in five respects and fail to comply with proper legislative practice in one respect.
1.2These Regulations, which are subject to the made affirmative procedure, impose restrictions on gatherings and businesses in England in response to the coronavirus pandemic.
1.3Regulation 8(1) makes it a criminal offence to leave the country “without a reasonable excuse”. There is a list of reasonable excuses set out in Schedule 5, but it is expressly inclusive and not exhaustive. The Committee asked the Department of Health and Social Care whether it is intended that a person is to be treated as having a reasonable excuse where they wish to take a holiday abroad (whether for the purpose of meeting other people who live or holiday abroad, in order to enjoy foreign weather or other conditions, or for other reasons) and they believe that having regard to their general well-being it is reasonable for them to take a foreign holiday. In a memorandum printed at Appendix 1, the Department asserts that “it is not intended that such a person is to be treated as having a reasonable excuse”. The Department argues that this view “is supported by the indicative list of reasonable excuses at Schedule 5”. It adds, however, that “as with any other reasonable excuse defence, it would ultimately be for the court to determine the question on the particular facts and circumstances of any given case before it”. The Committee finds this unsatisfactory in the context of this criminal offence. There is nothing about the list of excuses set out in Schedule 5 that, in the Committee’s opinion, makes it “indicative” of what is and is not to be treated as a reasonable excuse. For example, paragraph 7 of Schedule 5 identifies a particular class of business interest in connection with foreign property in relation to which it is expressly an excuse to leave the country: are the courts to draw from that the conclusion that any kind of business interest abroad can provide a reasonable excuse, or is there some reason why tending to a residential property lettings business is thought to be worthy of special treatment? Absence of a reasonable excuse is a tried and tested component of criminal offences, but it works only in contexts (such as regulatory provisions) where the nature of the offence clearly guides the courts as to the nature and extent of reasonable excuse as a limitation. In this context, the Committee believes that the Regulations could and should have provided a list of descriptions of classes of activity by reference to which the courts and other readers could have judged what was and was not intended to be reasonable; but neither Schedule 5 nor anything else in the Regulations does that, and the Committee finds nothing to support the Government’s assertion that the person in the Committee’s example would not be treated as having a reasonable excuse. In the end, a person wishing to leave the country for a reason which they believe is cognate to one of those listed in the Schedule but which does not fall within any of the precise cases described there will have no way of knowing whether they are or are not committing a criminal offence. The Committee does not believe that the enabling power was intended to be used to create offences which are so unpredictable in their application, and accordingly reports regulation 8(1) for making an unusual or unexpected use of the enabling power.
1.4Paragraph 12 of Schedule 2 requires holiday accommodation to close during Step 2, subject to specified exceptions. Where those exceptions apply, paragraph 12(5) permits the continued provision of holiday accommodation in “separate and self-contained premises”. Paragraph 12(6) defines what counts as separate and self-contained premises for this purpose by reference, in part, to occupation by members of the same household or linked households. The Committee wondered how the providers of holiday accommodation are expected to know with certainty whether or not people occupying their accommodation are linked householders, and whether the provider of accommodation could unwittingly commit a criminal offence where they were led to believe that households were linked on the basis of the submission of false evidence. In its memorandum, the Department asserts that it “would expect a provider of holiday accommodation to take reasonable steps to ascertain whether persons for whom holiday accommodation was booked were from the same household or linked households”; and it adds that a provider who is misled by the submission of false evidence “may well have a reasonable excuse for having breached the regulations but this will depend on the facts”. The Committee does not believe that this gives a sufficient level of certainty and clarity for the providers of accommodation. It is not enough for the Department to “expect” certain steps to be taken. Providers of accommodation could have been made the subject of a statutory duty to carry out a verification process (as has been done, for example, in relation to international carriers); or the Regulations could have set out a procedure that providers of accommodation could choose to follow, compliance with which would provide protection from prosecution. In their present form, there is no compulsory or voluntary statutory process, and the evidential burden of proving linked households seems unlikely to be reasonably capable of being discharged on an ad hoc basis. The Committee is concerned that it is unreasonable to expect businesses to rely on the possibility that they “may well have” a reasonable excuse that may or may not be upheld by a court should they come to be prosecuted. The Committee does not believe that Parliament would have expected potential criminal liability to be conferred in terms of this lack of clarity and certainty, and accordingly reports paragraph 12 of Schedule 2 for unexpected or unusual use of the enabling power.
1.5Regulation 2(1) defines “vulnerable person” as including “any person aged under 70 who has an underlying health condition, including (but not limited to) the conditions listed in paragraph (4)”. That means that anybody who has “an underlying health condition” falls within the definition of “vulnerable person”, which appeared to the Committee to be unlikely to have been the legislative intent, and it invited the Department to explain. In its memorandum, the Department asserts that the intention is “to capture persons who are likely to be susceptible to COVID-19 or its effects as well as persons who are otherwise likely to be vulnerable by virtue of requiring care or assistance”. The Department explains that the list of conditions “is intentionally non-exhaustive as we do not have a complete picture at this stage”. It asserts that the definition will be subject to an implicit limitation by reference to whether or not an “underlying health condition” would “render a person vulnerable within the ordinary meaning of that term”. The Committee denies that “vulnerable” has a single natural language meaning sufficient to provide the necessary clarity and certainty in the context of regulations the breach of which is a criminal offence. If it did have a clear natural meaning, it would not have been necessary for the Department to seek to define “vulnerable person” at all. Even if it were implicit that in this context vulnerability includes vulnerability to COVID-19, the Committee finds it unsatisfactory that the Department asserts that the Government does not yet have a “clear picture” of the class of underlying conditions that make a person vulnerable to COVID-19, but expects the reader of the Regulations to know intuitively whether or not they themselves fall, or another person falls, within that class in order to determine whether or not they are breaching the regulations and thereby committing a criminal offence. This is clearly unsatisfactory in rule of law terms, and the Committee accordingly reports the definition of “vulnerable person” in regulation 2(1) for defective drafting.
1.6Regulation 11 provides for a number of offences and penalties. The Committee noted that where a prohibition notice is given for an alleged contravention of a restriction under the Regulations, the person concerned is theoretically at risk of being prosecuted both for the original breach and for failure to comply with the prohibition notice. The Committee asked the Department whether in such a case it would be intended that the person could be charged both with an offence under regulation 11(1)(a) (contravention of restriction) and an offence under regulation 11(1)(d) (failure to comply with prohibition notice), and to explain how the principles of double jeopardy would apply (or not apply) in that case. In its memorandum, the Department asserts that “it is likely” that a person would be charged in respect of non-compliance with the prohibition order “being the latest offence”, but admits that in principle both offences could be charged. It adds that a sentencing court might “take into account the level of connection between the two offences in sentencing” or that the decision might be made not to prosecute for both offences. It is common for statutory offences to overlap with the potential for prosecution for two offences in respect of the same conduct; but it is not common to have, as here, a substantive offence coupled with an additional offence of failing to comply with a regulatory order in respect of the substantive offence. Although the Committee does not believe this is inherently unlawful, the Committee is clear that there should be a transparent and accountable policy in relation to the prosecution of offences under the Regulations, particularly in relation to offences of breaching orders in respect of other offences, in order to guard against the dangers of double jeopardy. The Committee accordingly reports regulation 11(1) for requiring elucidation.
1.7Regulation 18 makes provision for the required prosecutions for offences under the regulations to be brought “by the Crown Prosecution Service or any person designated by the secretary of state”. The Committee asked the Department to explain the circumstances in which it is proposed to allow persons designated by the Secretary of State to prosecute offences under the Regulations, to identify the class of person proposed to be designated, to explain why prosecution by the Crown Prosecution Service would not be appropriate, and to identify appropriate safeguards to be applied in the case of prosecutions by designated persons. Having prosecutions handled by a body with operational independence from Ministers is an important rule of law safeguards and the Committee was concerned to ensure that it was not being eroded inappropriately. The Department’s memorandum is particularly helpful on this issue, and the Committee notes both that the circumstances for the deployment of alternative prosecution arrangements are clearly explained and that the Department offers the important guarantee that the Crown Prosecution Service will take conduct of all cases in which the accused pleads not guilty or objects to the single Justice procedure. The Committee accordingly reports regulation 18 for requiring elucidation, provided by the Department’s memorandum.
1.8Regulation 2(1) defines “charitable, benevolent or philanthropic institution” as including “a charity” as well as “an institution, other than a charity, established for charitable, benevolent or philanthropic purposes”. The Committee was unsure what, if anything, would be caught by the second limb of the definition, having regard to the definition of “charity” in section 1 of the Charities Act 2011 (which has cross-contextual application), and asked the Department to explain. In its memorandum, the Department asserts that the second limb of the definition is intended to include “an institution which is established for purposes which may include charitable purposes but which are not limited to such purposes”. The problem with including institutions whose purposes are not exclusively charitable but which are “benevolent or philanthropic” is that those words have an uncertain and potentially very wide meaning. A definition of this degree of lack of specificity will be appropriate in some contexts (and the Committee notes that it is used, for example, in section 47 of the Charities Act 2006) but it does not provide sufficient certainty or clarity in the context of regulations the breach of which amounts to a criminal offence. The Committee accordingly reports the definition of “charitable, benevolent or philanthropic institution” in regulation 2(1) for defective drafting.
1.9Regulation 6(3)(b) requires organisers of gatherings when taking “the required precautions” to take into account “any guidance issued by the government”. The Committee asked the Department whether the reference to “the government” was intended to be a reference to a Minister of the Crown or to have a wider meaning and, if so, how wide. In its memorandum, the Department asserts that the intention was to include “wider guidance issued by the government such as by a non-Ministerial government department”. In the context of regulations the breach of which is a criminal offence, the Committee does not consider this to be sufficiently specific, either as a matter of stated intention or on the terms of the provision as drafted. A wide range of guidance has been issued in relation to COVID-19 by different public bodies, ranging from Ministers of the Crown, through the devolved authorities, to local authorities, the National Health Service and others. If there is a statutory duty to take guidance into account, failure to comply with which will result in a person having committed a criminal offence, it is necessary to identify with clarity and certainty the range of guidance included. The term used in the Regulations fails to provide that certainty or clarity and the Committee accordingly reports regulation 6(3)(b) for defective drafting.
1.10A number of the exceptions in the regulations operate by reference to whether or not a person is an “elite sportsperson”, which is defined in regulation 2(1) as “an individual who (a) derives a living from competing in a sport…”. The Committee asked the Department whether the reference to deriving a living is intended to include people who have sources of income not related to competitive sport, and whether it is intended to include sponsorship and other sums paid to a person by reason of their status as a participant in sport but not directly arising from competition prizes or other earnings. In its memorandum, the Department asserts that the definition includes sportspersons “who participate in a sport and receive some form of payment as a result of doing so”, and that the reference to deriving a living “seeks to ensure that the beneficial treatment … applies only to people for whom participation in sport provides at least a reasonable income”; it adds that income not deriving directly from sports “may well be relevant”. In the context of regulations the breach of which is a criminal offence, the Committee does not consider that this definition provides sufficient clarity, and the references in the Department’s memorandum to “a reasonable income” and the possible relevance of indirect earnings accentuate the lack of clarity provided by this definition; the Committee accordingly reports the definition of “elite sports person” for defective drafting.
1.11Regulation 2(1) defines “support group” as “a group or one to one support which is organised by a business, a charitable, benevolent or philanthropic institution or a public body to provide mutual aid, therapy or any other form of support to its members or those who attend its meetings…”. The Committee asked the Department to explain how the references to members and attendance at meetings are intended to apply in relation to one to one support. The explanation in the Department’s memorandum fails to clarify how a definition which focuses on attendances at meetings or membership is intended to work for the provision of one to one support. It would be surprising if qualification for one to one support were limited to members or persons who habitually attend meetings, as some of the people most likely to require one to one support (for example, the victims of domestic abuse mentioned in paragraph (a) of the definition) will be either disinclined or unable to attend meetings; but be that as it may, it is unclear how many meetings of a group a person would need to attend and with what regularity to count as one of the persons “who attend its meetings” so as to be able to benefit from one to one support. For these reasons the Committee does not consider the definition of “support group” in regulation 2(1) satisfactory, and reports it for defective drafting.
1.12Regulation 2(1) defines “Crown interest” as including “any estate or interest held in right of the Prince and Steward of Scotland”. The Committee considered this a surprising addition to the definition in the context of regulations that expressly apply only in relation to England, and asked the Department to explain. In its memorandum, the Department asserts that the title of “Prince and Steward of Scotland” refers “to the Prince of Wales and constitutes part of the Prince of Wales’ titles when addressed in Scotland”. That rather underlines the Committee’s point that it is an inappropriate inclusion in an instrument that is expressly confined to matters relating to England. (The Committee also doubts that it adds anything to the reference to Duchy interest in the definition of “Crown land”, since it seems unlikely that references to Crown interest are intended to include property of the Prince of Wales accruing to him in his capacity as Prince and Steward of Scotland but situated in England.) Given the Department’s failure to identify, as requested by the Committee, any estates or interests that would be caught by this inclusion in the definition, the Committee is drawn to conclude that it is simply an error and accordingly reports the definition of “Crown interest” in regulation 2(1) for defective drafting.
1.13Regulation 2(5)(d) defines activities undertaken “for referendum purposes”. The definition includes activities undertaken to promote or procure a particular outcome, and activities undertaken so as to prejudice “the prospect of another particular outcome” in relation to the referendum. The Committee could not attribute any particular meaning to the word “another” in the second limb of the definition and asked the Department to explain. In its memorandum, the Department accept that the word should have been omitted, and the Committee accordingly reports regulation 2(5)(d) for defective drafting, acknowledged by the Department.
1.14The definition of “private dwelling” in regulation 2(5)(i)(ii) includes a list of exceptions that are to apply apart from “in regulation 5(2), or as otherwise specified”. The Committee asked the Department to identify provisions in which any of the items of the list are specified for that purpose. In its memorandum, the Department accepts that the words “or as otherwise specified” are superfluous, and the Committee accordingly reports regulation 2(5)(i)(ii) for defective drafting, acknowledged by the Department.
1.15Regulation 14(3)(b)(iii) contains a phrase “any other place indoors” which makes no sense in the context. The Committee suspected that the phrase “in any other place” should have appeared instead of those words, and it asked the Department to confirm. In its memorandum, the Department confirms the Committee’s suspicion, and the Committee accordingly reports regulation 14(3)(b)(iii) for defective drafting, acknowledged by the Department.
1.16Regulation 10(12) allows officers exercising certain enforcement powers to give “reasonable instructions”, with which it is a criminal offence to fail to comply. The Committee asked the Department to give examples of the kind of reasonable instructions that relevant persons might be expected to wish to give under that power. In its memorandum, the Department asserts that instructions may be “any reasonable instructions the relevant person considers to be necessary”, which clearly does not provide elucidation. But the Department adds an example that when exercising a power of dispersal an officer might “ask the individuals who are part of the gathering to leave in different directions”. The Committee does find this a helpful example, and draws from it the principle, which could helpfully have been articulated on the face of the Regulations, that instructions under this power are to be limited to ancillary matters required to give full effect to the primary statutory power that the person is exercising. On that basis, the Committee reports regulation 10(12) as requiring elucidation, provided by the Department’s memorandum.
1.17Regulations 21(2) and 23(4) contain transitional provisions saving the validity of things done before the expiry or revocation of particular regulations. The Committee asked the Department to explain what those provisions are intended to add to, or detract from, the operation of section 16 of the Interpretation Act 1978, and to explain why express savings are included in regulations 21 and 23 but not in regulation 22. The Department’s memorandum does not provide a substantive explanation of this point beyond the suggestion that these provisions were included “for avoidance of doubt”. As the Committee has said before, random partial replication of provisions of the Interpretation Act creates doubt rather than avoiding it. It is bad legislative practice to make provision that expressly overlaps with the 1978 Act without being able to explain why it is necessary and how it is intended to sit alongside that Act. On the question of consistency, the Department accepts that the regulations “could have been” made consistent and undertakes to “take this into consideration” in future drafting. The Committee accordingly reports regulations 21, 22 and 23 for failure to comply with proper legislative practice.
1.18Paragraph 10 of Schedule 1 provides exceptions from closures and restrictions in respect of certain business and other premises in Step 1. Paragraph 10(1)(a)(i) allows, inter alia, the provision of essential voluntary services. The Committee wondered whether that would cover the use of premises for the provision of COVID-19 vaccinations and, if it would, what else was intended to be included by the provision at paragraph 10(1)(j). In its memorandum, the Department confirms that paragraph 10(1)(a) is intended to cover the use of premises for vaccinations amongst other things, and suggests that paragraph 10(1)(j) could cover a wider range of activities relating to COVID-19. The Committee finds the explanation helpful and accordingly reports paragraph 10 of Schedule 1 for requiring elucidation, provided by the Department’s memorandum.
1.19Paragraph 4 of Schedule 3 sets out exceptions to the prohibition of indoor gatherings in Step 3. Paragraph 4(9)(c) makes the lawfulness of gatherings for marriages and civil partnerships in certain circumstances dependent on whether or not it is “reasonably practicable” for the gathering to take place in another specified way. The Committee asked the Department whether questions of costs are capable of being taken into account for determining what is practicable. In its memorandum, the Department asserts that the intention of the reference to reasonable practicability was to catch cases of illness, but it accepts that it could include other matters including questions of costs. The Committee finds that acceptance helpful, and accordingly reports paragraph 4(9) of Schedule 3 for requiring elucidation, provided by the Department’s memorandum.
2.1The Committee draws the special attention of both Houses to this Order on the grounds that it makes unusual or unexpected use of the enabling power in one respect.
2.2This Order will have the effect of making significant changes to the requirements imposed on sellers of goods with respect to single use carrier bag charges. The requirement to charge for a single use bag will no longer be limited to large retailers with over 250 employees. Also, the amount that must be charged will increase from 5p to 10p. A seller who does not comply with these requirements is subject to enforcement measures which include financial penalties.
2.3Article 1(2) provides for the Order to come into force on the day after the day on which it is made so that there will be less than 24 hours between the new requirements becoming law and those subject to the requirements having to be in a position to be able to comply with them. In its 1st Report of Session 2014–15, the Committee expressed the view that it would usually be unreasonable for the legislator to provide for changes of the law, which impose new requirements on persons, to come into force on the day after that on which the instrument is made, since it does not give those affected a reasonable chance to adapt. This is particularly so where failure to comply with the new requirements would put the person at risk of a sanction. As noted by the Committee in its Report, if an instrument comes into force on the day after it is made, it is likely to be before the instrument has even been printed or published. Accordingly, the Committee asked the Department for Environment, Food and Rural Affairs to explain why it considers that in this case coming into force on the day after making will allow sufficient time for those affected to comply with the new requirements introduced by the Order.
2.4In a memorandum printed at Appendix 2, the Department refers to the fact that the Government made clear that the new requirements would come into force in April 2021 in its response, published in August 2020, to a consultation held from December 2018 to February 2019. The Department states that this announcement was widely publicised in the national press, and therefore that businesses will be aware of the Government’s intention to make the changes. The Department does not expect businesses to wait until after the instrument has been made before taking any steps needed to adapt to the changes required, particularly now that the instrument has been laid in draft. The Department adds that it has recently written to stakeholders to inform them when the Order is likely to come into force, and that it will share with trade associations an advance version of guidance that will be published online, and that this draft guidance will include the expected coming into force date.
2.5The Committee does not consider that the matters outlined in the memorandum are sufficient to overcome the lack of notice given to those affected as a result of the Order coming into force on the day after it is made. None of the steps taken will allow those affected to know for certain when the Order will come into force. The August 2020 response to the consultation refers to commencement in April 2021, without specifying a particular date. With the more recent steps taken or proposed to be taken, the Department is providing the date when “it is likely” or it is “expected” that the Order will come into force. It will only be once the Order is made that those affected will be able to know for certain what that date is. Nor does it seem to the Committee that the Department is entitled to assume that, because of the uncertainty, affected businesses will act to comply with the new requirements before the Order is made and there is a definite date from which the requirements will apply. The Committee accordingly reports article 1(2) for making unusual or unexpected use of the enabling power.
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, make amendments to two statutory instruments relating to the Domestic and Non-Domestic Renewable Heat Incentive schemes. Regulation 1(2)(b)(vi) stipulates the commencement date for “regulation 27 (amendment of regulation 55A)”. As regulation 27 does not make amendments to regulation 55A of the Renewable Heat Incentive Scheme Regulations 2018, the Committee asked the Department to explain which is correct, the regulation number or the parenthetical description. In a memorandum printed at Appendix 3, the Department states it is the parenthetical description that is correct and proposes to liaise with the SI Registrar regarding the possibility of a correction slip. The Committee considers that a correction slip in this case would not be appropriate: given that the reader is not to know whether it is the parenthetical description or the provision number that is intended, this would amount to a change of substance of a kind that the Committee noted as not being appropriate for change by correction slip in its First Special Report of Session 2017–19—Transparency and Accountability in Subordinate Legislation. The Committee accordingly reports regulation 1(2)(b)(vi) for defective drafting, acknowledged by the Department.
4.1The Committee draws the special attention of both Houses to this Order on the ground that there was unjustifiable delay in laying it before Parliament.
4.2This Order, which is subject to the negative resolution procedure, regulates the movement of cross-Channel lorries in Kent. The instrument was made on 20 January 2021 and laid before Parliament on 1 February 2021. The Committee asked the Department for Transport to explain the reason for the delay between the making of the instrument and laying it before Parliament. In a memorandum printed at Appendix 4, the Department explains that, although the Order was originally published and laid on 21st January (as S.I. 2021/62), the published version did not reflect the version that was signed by the Minister. As soon as the error was noticed, the Department contacted the National Archives and arranged for the incorrect version of the Order to be withdrawn. The corrected version of the Order was then registered and published with a new number and laid before Parliament. The Committee refers to paragraphs 2.2 to 2.14 of its First Special Report of Session 2017–19—Transparency and Accountability in Subordinate Legislation which emphasised the importance of early laying as a core component of access to legislation and therefore of the rule of law. As expressed in that Report, administrative errors are not an excuse for late laying, and the situation described in the Department’s memorandum was particularly undesirable in this case, as it meant that for a number of days the public were on notice that an instrument had been made but were not able to access an accurate text. The Committee accordingly reports regulation 1(2)(b)(vi) for defective drafting, acknowledged by the Department.
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
5.2These Regulations, which are subject to the negative resolution procedure, amend several sets of regulations to make changes to eligibility for student financial support to reflect the fact that the UK is no longer an EU member state. The Committee asked the Department for Education to explain the difference in meaning between “the day on which the first term of the first academic year actually begins” and “the first day of the first academic year of the course” (paragraphs (1)(d) and (e) of new regulations 8A and 9A (as the case may be) in regulations 25(8), 35(8), 57(8), 61(9) and 67(8)). In a memorandum printed at Appendix 5, the Department helpfully clarifies the difference in intended meaning. The Committee accordingly reports new regulations 8A and 9A for requiring elucidation, provided by the Department’s memorandum.
5.3(There was a further drafting issue raised by the Committee and the Department confirmed that the instrument was correct as drafted).
6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in one respect.
6.2These Regulations, which are subject to the negative resolution procedure, enable anyone with an outstanding Support for Mortgage Interest loan to “port” their loan to a new property rather than repay it upon the sale of their home. They also make minor drafting amendments to existing regulations to correct drafting errors with respect to domestic violence (regulation 2(6)) and cold weather payments (regulation 3). The Committee asked the Department for Work and Pensions to explain whether it has complied with paragraph 4.7.6 of Statutory Instrument Practice and consulted the S.I. Registrar whether to provide free replacement copies of the instrument. In a memorandum printed at Appendix 6, the Department accepts that it should have consulted the S.I. Registrar on this issue before making these Regulations and confirms that it has now done so with a view to refunding people who have bought copies of the relevant Regulations. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice, acknowledged by the Department.
7.1The Committee draws the special attention of both Houses to these Rules on the grounds that they fail to comply with proper legislative practice in two respects, are defectively drafted in one respect and require elucidation in two respects.
7.2These Rules, which are subject to the negative resolution procedure, amend the Crown Court Rules (Northern Ireland) 1979 (“the Crown Court Rules”, S.R. 1979/90).
7.3Rule 2 restores provisions relating to giving evidence by telephone in criminal proceedings in foreign courts, which were erroneously revoked by the Criminal Procedure (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/908). The Committee asked the Ministry of Justice to explain why, that being the case, these Regulations are not being issued free of charge to everyone known to have received the earlier defective instrument (as set out in paragraph 3.5.20 of Statutory Instrument Practice, 5th Ed.). In a memorandum printed at Appendix 7, the Department acknowledges the error and undertakes to correct it. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice, acknowledged by the Department.
7.4Under section 53A of the Judicature (Northern Ireland) Act 1978, the relevant authority (in this case, the Lord Chancellor) must “allow or disallow” the rules previously made by the Committee under section 52(1); this being, of course, a common requirement in relation to rules of court. The allowance statement purports to be signed “by the authority of the Lord Chancellor” by Alex Chalk MP in his capacity as a Parliamentary Under Secretary of State in the Ministry of Justice. The Committee asked the Ministry of Justice to explain how a junior Minister of that Ministry came to sign a statement on behalf of the Lord Chancellor. The Committee drew the Department’s attention to the limitations on the Carltona principle, which were articulated by Hodgson J in R. v Secretary of State for Trade, Ex p. Chris International Foods Limited (Case CO/1020/82, 4 March 1983, QBD) and discussed in relation to S.I. 2015/1953 in the Committee’s Fourteenth Report of Session 2015–16. Based on those principles, the Committee suggested that Mr Chalk must have been signing in a capacity as a junior Minister to the Lord Chancellor. The Committee notes that this is by no means the first occasion on which a junior Minister in the Ministry of Justice has purported to sign an instrument, or an allowance or similar statement, on behalf of the Lord Chancellor; and the Committee wanted to take this opportunity to establish the Carltona link and to have it regularised on the face of these instruments. In its memorandum, however, the Department denies that Mr Chalk has any Ministerial relationship with the Lord Chancellor and asserts that he was signing in his capacity as Parliamentary Under Secretary of State in the Ministry of Justice. The Department does not, however, address the issue that the Committee raises of the cross-departmental application of the Carltona doctrine. The Committee draws attention to the following passage from Craies on Legislation, 12th Edition, D Greenberg, at 12.4.5: “The question arises from time to time whether a Minister in another Department, or an official of a Minister in another Department, is a proper Carltona delegate of statutory powers. What is clear is that where a power vests in one Minister he is not entitled simply to transfer it informally to another Minister.” When changes to the nature of the office of Lord Chancellor were made by Part 2 of the Constitutional Reform Act 2005, the original intention was that the office of Lord Chancellor would eventually be allowed to lapse, its responsibilities being divided between the new Lord Speaker, the existing senior judiciary, and government departments including a new Ministry of Justice accruing around a new Secretary of State (see the Secretary of State for Justice Order 2007 (S.I. 2007/2128)). A number of residual functions continued to vest in the office of Lord Chancellor, however, and over time it became clear that rather than being allowed to diminish incrementally towards extinction, the office was being allowed to acquire new statutory functions, with a distinction becoming gradually apparent between the general tenor of the functions vesting in the Secretary of State for Justice and those remaining with or being assigned to the Lord Chancellor. (In general, both offices being held by the same person, the capacity in which the office-holder acts in relation to any particular matter will be apparent from the circumstances.) For whatever reason, the Government chose to retain the Lord Chancellor as an active office; as a result and although the old Lord Chancellor’s Department was described as being abolished, as a matter of constitutional law any civil servants or junior Ministers assigned to the Lord Chancellor to assist in the performance of the duties of that office will amount to a government department and will acquire the ability to act as Carltona agents for the Lord Chancellor. The Department’s response to the Committee’s questioning on this point appears to suggest that the Government is simply assuming that officials and junior Ministers of the Ministry of Justice can be deployed informally as Carltona delegates of the Lord Chancellor on an ad hoc basis. As the Chris International Foods decision shows, however, that is not a safe assumption. When the decision was taken to create a Ministry of Justice and to diminish the role of the Lord Chancellor, the Government altered the machinery of government arrangements, and it cannot simply ignore those alterations from time to time for the sake of convenience. Whether a particular official or Minister can act for the Lord Chancellor on a cross-departmental basis is a matter that requires to be tested, and justified, on a case-by-case basis having regard to the nature of the functions concerned. Where the distinction between the two offices and departments is inconvenient to the Government, it is of course always open to it to adjust the balance formally using a Transfer of Functions Order under the Ministers of the Crown Act 1975; or, as in this case where the relevant senior offices are held by the same person, it should be a simple matter to have the junior Ministers formally appointed in a dual capacity (through the standard use of non-remunerated joint offices so as not to exhaust the limits in paragraph 2 of Part 5 of Schedule V to the Ministerial and other Salaries Act 1975); but the Government cannot simply purport to reassign functions between the Lord Chancellor and the Ministry of Justice informally. Since the Department denies that Mr Chalk was acting in a capacity as a junior Minister of the Lord Chancellor, and since the Department has not offered any justification for a cross-departmental Carltona agency in this case, there must be a doubt as to whether these Rules have been properly allowed in accordance with the statutory requirement, a defect which would go not towards vires but to validity. The Committee accordingly reports these Rules for failure to comply with proper legislative practice.
7.5The Schedule to this instrument inserts into the Crown Court Rules a new Part VIIIB (comprising new rules 62N to 62R) that governs applications for orders for access to electronic data under the Crime (Overseas Production Orders) Act 2019. Under section 4 of that Act, a judge may only make an overseas production order if satisfied that “(a) there are reasonable grounds for believing that an indictable offence has been committed and proceedings in respect of the offence have been instituted or the offence is being investigated, or (b) the order is sought for the purposes of a terrorist investigation” (emphasis added). New rule 62O(2)(c) requires the affidavit supporting any application for an overseas production order to “briefly describe the investigation for the purposes of which the electronic data is sought”. The Committee asked the Department to explain how this rule is intended to operate in relation to proceedings already instituted. In its memorandum, the Department explains that even where proceedings have been instituted, this type of application is expected to relate to an investigation (for example, where an investigation is continuing by direction of a prosecutor after the decision to prosecute). The Committee accordingly reports new rule 62O(2)(c) as requiring elucidation, provided in the Department’s memorandum.
7.6The Committee asked the Department to explain why rules 62O(3) and 62P(3)(c) place no time limit on service of documents, in contrast to the requirements for documents to be notified to specified parties “as soon as practicable” in rule 62O(4) and “as soon as reasonably practicable” in rule 62O(5). In its memorandum, the Department explains that these mirror equivalent provisions in the Criminal Procedure Rules 2020, which do not create time limits for service, and that “it was not considered that there were any Northern Ireland-specific reasons to depart from the established procedure in England and Wales”. The Committee accepts the Department’s general approach of maintaining procedural equivalence in the operation of primary legislation across UK jurisdictions, with the caveat that this approach should not result in defects in one jurisdiction being replicated in others. The Committee finds it surprising that no specific time limit should be imposed for an act as important as service of the documents that form the basis for the proceedings, particularly where time limits are imposed elsewhere. Noting, however, that the practical effect of the safeguard in rule 62Q(3) is that an application cannot be determined unless it has been served on the respondent, the Committee is content to report rules 62O(3) and 62P(3)(c) as requiring elucidation, provided in the Department’s memorandum.
7.7The Committee also asked the Department to explain why rule 62P(3)(c), which imposes a requirement for service, is made subject to rule 62Q(7)(c) (which is nothing to do with service, but grants the court a discretion to consider applications orally instead of in writing) rather than to rule 62Q(7)(b) (which grants the court a discretion to waive requirements for service). In its memorandum the Department asserts that this rule “may benefit from elucidation”. The Committee does not accept that this is a matter for elucidation—it is a simple error and as such requires correction. The Committee accordingly reports rule 62P(3)(c) for defective drafting.
7.8(There were other matters raised by the Committee on which the memorandum provides helpful elucidation.)