Instruments reported
At its meeting on 22 April 2020 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 six 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. 2020/122: Reported for defective drafting
Street and Road Works (Amendments Relating to Electronic Communications) (England) Regulations 2020
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in three respects.
1.2These Regulations support the implementation of a new centralised digital service for keeping track of street and road works. They require all notices relating to such works to be submitted by means of either that new service or an electronic communication. The Committee asked the Department for Transport to explain what is intended by the requirement for a document given by means of an electronic communication to be “in a form sufficiently permanent to be used for subsequent reference” in regulations 3(3) (inserted regulations 5(6)(c) and 6(7)(c)), 4(3) (inserted regulation 5(5)(c)), and 5(8) (inserted regulations 39(5)(c) and 39A(7)(c)). In a memorandum printed at Appendix 1, the Department explains that this is intended to prevent documents being submitted in “easily manipulable forms such as word documents or webpages where the text is subject to macroinstructions or inadvertent changes by those handling the data” and the use of “low quality fax machines and fax paper, where transmitted documents are prone to fading over time”. Apart from the fact that some of these issues (such as the quality of fax paper or whether a word document is amended after receipt) are in the recipient’s control rather than the sender’s, the formula used is too vague to provide the degree of certainty necessary in a legislative duty, and the provision should either have specified permissible forms or at least set specific criteria to be applied in determining acceptability of particular forms of communication. The Committee accordingly reports regulations 3(3), 4(3), and 5(8) for defective drafting.
1.3Regulation 5(7) makes several modifications to section 53 of the New Roads and Street Works Act 1991. Two of them (subsections (2A) and (2B), inserted by new regulation 38B) close with the following words: “This is subject to subsection (5C) (also see subsection (5B) which sets out the circumstances in which subsection (5C) applies)”. The Committee asked the Department to explain whether the reference to subsection (5B) is intended to be operative in so far as that provision defines the term “information” in subsection (5C). In its memorandum, the Department asserts that no part of the final sentence in subsection 2A or 2B is operative, because of the opening words of subsection (5C): “The duty imposed by subsection (2A) or (as the case may be) (2B) does not apply”. The Committee remains of the view, as set out in its First Special Report of Session 2013–14: Excluding the Inert from Secondary Legislation, that it is essential clearly to distinguish between operative and inert material—not least to avoid the potential for confusion by readers and the courts. In this case, the Committee’s view is that if the sentence in question is necessary, it should be operative in its entirety (given that subsection (5C) cannot be understood without reference to subsection (5B)), and that as it merely duplicates provision already made elsewhere, it is superfluous and therefore undesirable. The Committee accordingly reports regulation 5(7) for defective drafting.
1.4Regulation 5(8) (inserted regulation 39(4)(a)) provides that ““Another appropriate electronic address” means any email address published for the time being by that person as an address for contacting the recipient”. The Committee asked the Department to explain what is intended by the reference to “that person”. In its memorandum, the Department explains that it refers to “the recipient” mentioned in the preceding provision (new regulation 39(3)(b)). The Committee notes that several other provisions of these Regulations use different (and in the Committee’s view clearer) wording to achieve the same effect: “any email address published for the time being by the recipient as an address for contacting the recipient” (emphasis added; see regulations 3(3) (new regulation 5(5)(a)), 4(3) (new regulation 5(4)(b)), and 6(9) (new regulation 15(3)(b)). Although the courts would probably be forced to the conclusion set out in the Department’s memorandum, the same clear language used elsewhere in the instrument should have been used here and the Committee accordingly reports regulation 5(8) for defective drafting.
1.5The Department also clarified the forms of account (verbal, on paper, or in an electronic communication) that will trigger a duty to pay charges as a result of the amendment made by regulation 6(5)(e).
2S.I. 2020/125: Reported for doubtful vires and for requiring elucidation
Office of Communications (Provision of Information) Regulations 2020
2.1The Committee draws the special attention of both Houses to these Regulations on the grounds that there is doubt as to whether they are intra vires in one respect and that they require elucidation in one respect.
2.2These Regulations are made under sections 24A(4) and 402(3) of the Communication Act 2003. Section 24A imposes a duty on Ofcom to “provide the Secretary of State, at least 24 hours before publication, with any information that they propose to publish”. Section 24A(4) allows the Secretary of State, by regulations, to “specify descriptions of information in relation to which the duty under subsection (1) does not apply”. Regulation 3 of these Regulations provides that where disclosing information of significant market sensitivity before publication would prejudice commercial interests, the 24-hour duty only applies if the day before publication is not a working day; otherwise, the duty is to provide the information after 4:30 p.m. on the day before publication. The policy intent (as set out in the Explanatory Memorandum) is to ensure that disclosure of commercially sensitive information only takes place after markets have closed. The Committee asked the Department for Digital, Culture, Media and Sport to identify the power for modifying the duty to disclose rather than disapplying it. In a memorandum printed at Appendix 2, the Department relies on the principle that a general power impliedly permits partial or limited exercise. The Committee does not dissent from that principle, but it does not justify the assumption that a power to disapply includes a power to modify, as to which there are generally, and in this case, arguments either way. Although the point is a relatively minor one in terms of policy and effect, the enabling powers should have contemplated it and covered it expressly to avoid doubts of legality. Accordingly, the Committee reports regulation 3(2)(b) for doubt as to whether it is intra vires.
2.3The Committee also asked the Department to explain whether a “working day”, as defined in regulation 3(4), is intended to mean a day which is not a bank holiday anywhere in the United Kingdom, or a day which is not a bank holiday in the jurisdiction where the information is proposed to be published. In its memorandum, the Department explains that the intent and effect of regulation 3(4) are to exclude bank holidays anywhere in the United Kingdom from the meaning of “working day”. The Committee reports regulation 3(4) for requiring elucidation, provided by the Department’s memorandum.
3S.I. 2020/139: Reported for defective drafting
Elections (Policy Development Grants Scheme) (Amendment) 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 amends the Elections (Policy Development Grants Scheme) Order 2006. The 2006 Order requires the Electoral Commission to administer an annual fund available to political parties who have two or more MPs in the House of Commons. The criteria used in determining allocations from the Scheme includes vote share at elections to the European Parliament. As a result of Brexit, this Order removes that element of vote share from the distribution criteria. It substitutes a new formula which includes a quantity “A” defined as “the number of votes cast in Northern Ireland, Scotland or Wales (as the case may be) at the Westminster election … expressed as a percentage of the total number of votes cast by Northern Ireland voters, Scottish voters or Welsh voters (as the case may be)”.The Committee questioned the Cabinet Office as to the accuracy of the definition of “A” in the new formula. In a memorandum printed at Appendix 3, the Department acknowledges that the definition was inaccurate, and that the words “for that party” should be added after the first “(as the case may be)”. The Department have already corrected the error by the Elections (Policy Development Grants Scheme) (Amendment) (No. 2) Order 2020 (S.I. 2020/385), so that the scheme will work correctly for the year beginning on 1st April 2020. The Committee commends the Department for the speed of their remedial action, and reports paragraph 5(b) of the Schedule for defective drafting, acknowledged by the Department.
4S.I. 2020/160: Reported for unjustifiable delay in laying before Parliament and for requiring elucidation
Communications (Television Licensing) (Amendment) (No. 2) Regulations 2020
4.1The Committee draws the special attention of both Houses to these Regulations on the grounds that there was unjustifiable delay in laying them before Parliament and that they require elucidation in one respect.
4.2These Regulations make ongoing provision for an instalment payment scheme (the Simple Payment Plan) for the television licence fee for specific customers who meet the eligibility criteria. The Regulations were made on 11 February and laid before Parliament on 21 February 2020. The Committee asked the Department for Digital, Culture, Media and Sport to explain the delay. In a memorandum printed at Appendix 4, the Department explains that the delay was due to the lack of availability of signatories within the ten days before the date for laying chosen by a Cabinet Committee. As stated in the Committee’s First Special Report of Session 2017–19 Transparency and Accountability in Subordinate Legislation at paragraph 2.12, delays due to the machinery of Government are generally regarded as unacceptable delays by the Committee. The statutory arrangements for laying before Parliament are part of the required formal measures by which publicity is assured. Parliament and the general public are entitled to as much notice of the prospective law as the Government has itself. In this case the Department should have either delayed making or accelerated laying. The Committee accordingly reports these Regulations for unjustifiable delay in laying before Parliament.
4.3One of the eligibility criteria for the instalment scheme is that a person has been “visited for enforcement purposes” (regulation 4(c)). The Committee asked the Department to explain what is intended to amount to a visit for enforcement purposes and how a person is expected to demonstrate it. In its memorandum, the Department describes what amounts to a statutory visit and explains that a record of visits is kept which will enable them to confirm the eligibility of customers who want to access the Simple Payment Plan. The Committee accordingly reports regulation 4(c) for elucidation, provided in the Department’s memorandum.
55 S.I. 2020/168: Reported for defective drafting
Combined Fire and Rescue Authorities (Membership and Allowances) (Amendment) Regulations 2020
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two respects.
5.2These Regulations amend 19 Fire and Rescue Authority (Combination Scheme) Orders. One of the amendments made to each Order allows a police and crime commissioner to be appointed as a member (“a PCC member”) of a fire and rescue authority (“FRA”). All 19 schemes require the FRA to elect a chair or vice-chair from among its members. It was not clear to the Committee whether it was intended that a PCC member could also be elected and, if this was the intent, why only the scheme relating to Devon and Somerset (see Schedule 18) is modified in such a way that the chair’s or vice-chair’s term of office is not subject to the chair or vice-chair remaining a PCC member. The Committee asked the Home Office to explain. In a memorandum printed at Appendix 5, the Department explains that it does intend a PCC member to be electable and acknowledges the inconsistency in the Devon and Somerset scheme, undertaking to amend it at the earliest opportunity. The Committee accordingly reports Schedule 18 for defective drafting, acknowledged by the Department.
5.3(The Committee also invites the Department to consider, if a PCC member were to be elected as chair or vice-chair, whether any provision might be needed to address the possibility—envisaged by these Regulations—of another person attending an FRA meeting on that PCC member’s behalf under section 18 of the Police Reform and Social Responsibility Act 2011, given that that person may not vote and is not to be treated as a member of the FRA for any purpose.)
5.4Paragraph 2(b) of Schedule 18 omits a provision that paragraph 2 of Schedules 1 to 17 expressly insert (substituted paragraph 11(3)), and that paragraph 2(b) of Schedule 19 amends so that is consistent with the amendments made by Schedules 1 to 17 (substituted paragraph (2)). The Committee asked the Department to explain the discrepancy. In its memorandum, the Department acknowledges the discrepancy and the desirability of a consistent approach across all schemes and undertakes to amend the Devon and Somerset Scheme at the earliest opportunity. The Committee accordingly reports paragraph 2(b) of Schedule 18 for defective drafting, acknowledged by the Department.
66 S.I. 2020/186: Reported for defective drafting
Hampshire and Isle of Wight Fire and Rescue Authority (Combination Scheme) Order 2020
6.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in three respects.
6.2This Order establishes a new combined fire and rescue authority (“FRA”) for Hampshire and the Isle of Wight. Paragraph 7 of the Schedule allows a police and crime commissioner to be appointed as a member of the FRA (a “PCC member”); paragraph 10 makes provision for the duration of a PCC member’s term of office; paragraph 14 provides for the election of the FRA chair or vice-chair. As with S.I. 2020/168, it was not clear to the Committee whether it was intended that a PCC member could be elected as chair or vice-chair of the FRA, given that as paragraph 14 is drafted, the chair’s or vice-chair’s term of office is not subject to the individual remaining a PCC member. The Committee asked the Home Office to explain its intent on this point. In a memorandum printed at Appendix 6, the Department explains that it does intend a PCC member to be electable—in this as in the other schemes—and acknowledges the error in paragraph 14, undertaking to correct it at the earliest opportunity. The Committee accordingly reports paragraph 14 for defective drafting, acknowledged by the Department.
6.3(As above, the Committee also invites the Department to consider, if a PCC member were to be elected as chair or vice-chair, whether any provision might be needed to address the possibility of another person attending an FRA meeting on that PCC member’s behalf and being unable to vote or be treated as a member of the FRA for any reason.)
6.4In S.I. 2020/168, the provisions relating to a PCC member’s term of office are expressly made subject to general provisions about a member’s resignation or disqualification from the FRA (see paragraph 6 of each Schedule to that instrument (inserted paragraphs 13A(3) or 8A(3), as the case may be)). The Committee asked the Department to explain why this instrument did not do the same (see paragraph 10 of the Schedule). In its memorandum, the Department acknowledges the error and undertakes to correct it at the earliest opportunity. The Committee accordingly reports paragraph 10 of the Schedule for defective drafting, acknowledged by the Department.
6.5The Committee asked the Department to explain the intended difference in effect between “all contracts, deeds, bonds, agreements, licences, and other instruments” in paragraph 23(4) of the Schedule and “all contracts, deeds, bonds, licences and instruments” in paragraph 23(5). In its memorandum, the Department acknowledges that as there is no intended difference in meaning, this is an error which it undertakes to correct at the earliest opportunity. The Committee accordingly reports regulation 23 for defective drafting, acknowledged by the Department.
Published: 24 April 2020