At its meeting on 10 June 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 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.
1.2 These Regulations amend a number of instruments to abolish a requirement for certain individuals to pass a skills test in order to meet the specified standards required to become a qualified teacher. Regulation 5 amends the Education (Induction Arrangements for School Teachers) (England) Regulations 2012 (S.I. 2012/1115), with paragraph (b) substituting a new Schedule 1A for the original Schedule 2. Paragraph 3 of the new Schedule provides: “When making a decision pursuant to paragraph 2 (also see regulation 11(5)), the appropriate body must disregard the fact that P had not passed a numeracy skills test before 25th June 2020”. The Committee was unsure whether the phrase “(also see regulation 11(5))” was intended as an operative provision indicating that regulation 11(5) was equally relevant to what followed in some way, or as an inert “signpost”; in either event, the precise import appeared obscure. The Committee asked the Department for Education to elucidate. In a memorandum printed at Appendix 1, the Department says “the words in brackets are not intended to be operative. They are simply intended to help the reader by drawing their attention to regulation 11(5) and the related and relevant decision making process under that provision”. It appears from this that the process set out in regulation 11(5) is intended to apply to decisions made pursuant to paragraph 2 of Schedule 1A. But there is no express provision to that effect in that Schedule (in contrast to the substituted Schedule 2). It therefore remains unclear how regulation 11(5) and Schedule 1A relate to one another, and whether the words in brackets are in fact inert or operative. As the Committee found in its First Special Report of Session 2013–14 (Excluding the inert from secondary legislation), “clear presentational distinction between operative and inert material is essential”. And the Committee warned of the confusion that can arise when drafters try to be helpful to the reader by using the text to provide explanatory material. In the case of cross-referencing “signposts”, there is the danger that readers will draw unintended inferences from the drafter’s choice of which provisions to signpost. As the Committee said in that Report, “we consider that inert material, if included at all, should not be presented as if it were part of the operative text. Explanations should be provided in non-operative parts of the instrument or other documents, and drafting should be as precise as possible to minimise the need for amplification and the potential for confusion.” Even after the Department’s explanation, the Committee does not consider the purpose and effect of this particular signpost to be sufficiently clear. Accordingly, the Committee reports regulation 5(b) for defective drafting.
2.2 These Regulations implement Regulation (EU) 2017/2394, which deals with enforcement of consumer protection laws. Regulation 2 amends the Enterprise Act 2002 to allow lower and superior courts in all UK jurisdictions to make interim and final “online interface orders” as part of that enforcement. New section 218ZA gives jurisdiction to make an online interface order to the High Court or the county court if the person against whom the order is sought carries on business in England and Wales, to the High Court or a county court if the person against whom the order is sought carries on business in Northern Ireland, and to the Court of Session or the sheriff if the person against whom the order is sought carries on business in Scotland. New sections 218ZB(4) and 218ZC(8) provide that an “online interface order made by a court in one part of the United Kingdom has effect in any other part of the United Kingdom as if made by a court in that part”. The Committee asked the Department for Business, Energy and Industrial Strategy to explain which of the courts with jurisdiction to make the order in relation to the part of the United Kingdom in which enforcement is sought is to be treated as having made the notional order. For example, if a person wants to enforce in England and Wales an order made in Scotland, are they to treat it as if it had been made by the High Court or as if it had been made by the county court (the enforcement processes for the two being different); or perhaps they are intended to be able to choose either? In a memorandum printed at Appendix 2, the Department fails to address this point; the Department refers to the provisions of the Civil Jurisdiction and Judgments Act 1982 for registration of judgments, but of course a provision of the kind found in new sections 218ZB(4) and 218ZC(8) is expressly intended to avoid the need for registration, by creating a notional judgment in each jurisdiction which can be enforced directly without registration. That leaves the Committee’s question unanswered, and the intentions of the legislation obscure, and the Committee accordingly reports regulation 2 for defective drafting.
3.2 These Regulations amend the Ecodesign for Energy-Related Products Regulations 2010 (S.I. 2010/2617) by substituting the title of an EU instrument made on 1 October 2019 for the title of the earlier instrument which it repealed and replaced. That is all they do. The substitution enables the UK regulator legally to enforce compliance with a new standard, which has been in place in the UK since 1 April 2020. This instrument was made on 4 May 2020 and came into force three weeks later, which left a period of eight weeks when no penalty framework existed within the UK to sanction breaches of the new standard. The Committee asked the Department for Business, Energy and Industrial Strategy to explain the delay in making the instrument. In a memorandum printed at Appendix 3, the Department explains that “due to the quantity of SIs required to be laid during this time and the Department’s need to manage priorities, a decision was taken to lay the 2020 Regulations at a later date, shortly after 1st April 2020”; it accepts that this was not ideal, but argues that the impact was minimal because manufacturers were “still legally obliged to comply” with the standard even though it could not be enforced. As the Committee has said on a number of occasions, it is wrong in principle for Ministers to purport to make legislation which they cannot enforce: it is the essence of legislation that it imposes enforceable duties, and confers enforceable rights. (And, of course, in a case such as this where legal obligations derive directly from EU legislation, delay in providing an enforcement mechanism amounts to breach of the duty to transpose or implement the EU legislation.) Relying on a presumption that people will “do what they are told” even for a short time is not proper legislative practice. If the new standard was to be law, the regulations should have been in place to enforce it. As the Department gives no reason other than internal prioritisation of resources for the delay, the Committee reports these Regulations for failing to comply with proper legislative practice.
Published: 12 June 2020