Fifteenth Report of Session 2019-21 Contents

Instruments reported

At its meeting on 17 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.

1S.I. 2020/381: Reported for defective drafting

Official Controls (Plant Health and Genetically Modified Organisms) (England) (Amendment) Regulations 2020

1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two respects.

1.2These Regulations introduce measures relating to imports of certain plants and plant products to prevent the establishment or spread of certain harmful pests. Regulation 2(8) (inserted paragraph 5(1)) defines responsible operator as “responsible operator”, in relation to a consignment, means the operator who is responsible for that consignment”. The Committee asked the Department for Environment, Food and Rural Affairs to explain why the defined term “responsible operator” is not used in regulation 2(8) (inserted paragraphs 7(2) and (4), 8, 12(2) and (3)). In a memorandum printed at Appendix 1, the Department explains that “the defined term the ‘responsible operator’ is intended to provide a conveniently concise shorthand for ‘the operator who is responsible for a Schedule 1 consignment’, but the use of that shorthand would not have been apt in each case. The Department does not believe that it would have been appropriate to use the term “responsible operator” in new paragraphs 7(2) and (4), 8 and 12(3)”. The Department does not, however, offer any reason why the shorthand would not have been appropriate in each case. Consistency in drafting is an important principle in order to avoid confusion and facilitate legal certainty; in the absence of an explanation for the inconsistency, the Committee reports regulation 2(8) for defective drafting.

1.3The Committee also asked the Department to confirm that the references to “place(s)” in regulation 2(6) (inserted Table A3) should be references to “place” in reliance on section 6(c) of the Interpretation Act 1978 (which states that unless the contrary intention appears, words in the singular include the plural). In its memorandum, the Department asserts that in this context there was a potential contra-indication of section 6(c) that required express provision; again, however, it does not give any reason for the suggestion that the standard rules of singular including plural would have been thought to be contra-indicated (and it clearly did not think it was contra-indicated in other places in the instrument where the phrase “in a place of production” is clearly intended to include place or places—see, in particular footnote (1) to paragraph 1 in Table A3). (The Committee also notes that the drafting practice of UK legislation is to use “place or places” where it is necessary to include the plural expressly; the form “place(s)” which is found in less formal documents is not habitually used in legislation.) The Committee accordingly reports regulation 2(6) for defective drafting.

1.4(The Committee also asked the Department to explain what the definition of “responsible operator” adds to the definition of “operator” (regulation 2(8) (inserted paragraph 5(1)) and the Department’s memorandum provides a helpful explanation.)

2S.I. 2020/505: Reported for defective drafting

Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

2.2These Regulations amend, on a temporary basis, certain requirements placed on local planning authorities and applicants for development where the authority or applicant is not able to comply with a particular requirement because it is not reasonably practicable to do so due to the coronavirus emergency. One of those requirements is to take reasonable steps to inform persons who are likely to have an interest in a planning application, of a website where information about that application may be found in circumstances where the physical means of notification of the application (for example, by a site notice) is not reasonably practicable. Persons likely to have an interest in the application is defined as including persons who live and work in, or otherwise “have a direct connection with” the area in which the proposed development is located (regulation 4 (inserted (7D)(a)), regulation 9(2) (inserted regulation(1F)(a)), regulation 10(3) (inserted regulation (2ZD)(a)), regulation 11 (inserted regulation (4ZD)(a)), regulation 15 (inserted regulation (15)(a) and (16)(b)), regulation 16 (inserted regulation 23A(3)(a)) and regulation 17(3) (inserted regulation 16(a)). The Committee asked the Ministry of Housing, Communities and Local Government to explain what sort of a connection, apart from living and working in the area, is envisaged and what is intended to be added by the qualification “direct”. In a memorandum printed at Appendix 2, the Department asserts that “direct” has its “ordinary dictionary meaning” in this context. The Committee does not agree that “direct” has any single dictionary definition: it is a term that is entirely contextual (see the range of examples cited in Stroud’s Judicial Dictionary, 9th Edition, pp.671–673); in this context there is no obvious meaning of the distinction between “direct” and “indirect” connections, and the legislation should have given some kind of indication as to the criteria to be applied, along the lines of the policy set out in paragraph 4 of the Department’s memorandum. The Committee accordingly reports regulations 4, 9(2), 10(3), 11, 15, 16 and 17(3) for defective drafting.

3S.I. 2020/508: Reported for doubtful vires

Prison and Young Offender Institution (Coronavirus) (Amendment) (no. 2) Rules 2020

3.1The Committee draws the special attention of both Houses to these Rules on the ground that there is doubt as to whether they are intra vires in two related respects.

3.2These Rules temporarily amend the Prison Rules 1999 and the Young Offender Institution Rules 2000 to facilitate the effective running of those institutions during the coronavirus emergency. The temporary changes apply during the “coronavirus period” which is the transmission control period (defined in the Coronavirus Act 2020) and the transition period. The transition period is the period of three months starting on the date on which the transmission control period ends but can be extended by the Secretary of State by declaration in up to one month increments for a further three months up to a total of six months or can be cut short (paragraph 3 of Schedule 1 (inserted rule 2A) and paragraph 3 of Schedule 2 (inserted rule 2A)). The temporary rules cease to have effect on 25 March 2022 in any event. The Committee asked the Ministry of Justice to identify the vires for these provisions. In a memorandum printed at Appendix 3, the Department asserts that new rules 2A in both the Prison Rules 1999 and Young Offender Institution Rules 2000 are examples of administrative sub-delegation which is impliedly authorised under the breadth of the enabling power (section 47(1) of the Prison Act 1952). The Department distinguishes this instance of sub-delegation from other instances of sub-delegation in subordinate legislation on the grounds that the power to extend the “transition period” is very limited; there is a defined end to the period and a limited three-month period within which the Secretary of State’s discretion can be exercised. The Committee disagrees. Turning legislation on and off is a legislative function even if only for a limited period. The presumption against sub-delegation in legislation is long-standing and strong, so where Parliament intends to confer legislative discretion it must do so by express words or (exceptionally) by necessary implication. The decision as to the duration of the transition period and whether it continues to justify the temporary rule changes goes to the heart of this instrument and cannot be categorised as merely administrative. The Committee accordingly reports paragraph 3 of Schedule 1 and paragraph 3 of Schedule 2 on the ground that there is doubt as to whether they are intra vires.

Published: 19 June 2020