Third Report of Session 2019-21 Contents

Instruments reported

At its meeting on 26 February 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 15 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. 2019/1302: Reported for requiring elucidation and for defective drafting

Social Security (Iceland) (Liechtenstein) (Norway) (Citizens’ Rights Agreement) Order 2019

S.I. 2019/1303: Reported for requiring elucidation and for defective drafting

Social Security (Switzerland) (Citizens’ Rights Agreement) Order 2019

1.1The Committee draws the special attention of both Houses to these Orders on the grounds that each requires elucidation in one respect and is defectively drafted in two respects.

1.2These Orders are made to give effect to international social security agreements between the United Kingdom and Switzerland on the one hand, and Iceland, Liechtenstein and Norway on the other (the Agreements). They are drafted in reliance on the same powers and in nearly identical terms. Article 2(1) and (2) of each Order identifies provisions which are “modified or adapted to the extent required to give effect to” the Agreements. While the enabling powers allow such modifications to be made, they exclude modification to a few specified benefits, such as Christmas bonus and statutory sick pay. In the absence of express provision or explanatory comment, it was not clear to the Committee whether the broad wording of Article 2 was intended to exclude these specified benefits from the ambit of the Orders. The Committee asked the Department for Work and Pensions to clarify its intent on this point. In a memorandum printed at Appendix 1, the Department clarifies that it does not intend to rely on these Orders to make any modifications to the benefits in question. The Committee is grateful for the Department’s clarification and accordingly reports Article 2(1) and (2) of each Order for requiring elucidation, provided by the Department’s memorandum.

1.3In a similar vein, the enabling powers permit modification only to Part III of the Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999. It was not clear to the Committee whether Article 2(4), which refers to the 1999 Order and does not exclude any Part of it, was intended to apply the modifications to the 1999 Order in its entirety. It asked the Department to clarify. In its memorandum, the Department confirms that Article 2(4) of each Order should have restricted the modifications to Part III of the 1999 Order. The Committee accordingly reports Article 2(4) of each Order for defective drafting, acknowledged by the Department.

1.4Neither Order makes specific changes to any domestic provision but only provides generally that the listed provisions are, as noted above, “modified or adapted to the extent required to give effect to” the Agreements. It appeared to the Committee that this was not permitted by the relevant enabling power, which only allows legislation to be “modified” if it is done in a general rather than a specific way. The Committee asked the Department what enabling power it relied on to “adapt” the listed provisions. In its memorandum, the Department acknowledges that the words “or adapted” should not have been included in Article 2(1) of either Order. The Committee accordingly reports Article 2(1) of each Order for defective drafting, acknowledged by the Department.

1.5The Department notes that the agreement with Iceland, Liechtenstein and Norway was made redundant by the Withdrawal Agreement and will be revoked, and that the agreement with Switzerland will not come into force until the implementation period has ended. The Department undertakes to keep the position under review and amend the defects if the Order comes into force. The Committee is grateful for this undertaking, and for the Department’s undertaking to share the Committee’s comments where they relate to similar instruments.

2S.I. 2019/1335: Reported for defective drafting

Registered Designs and Trade Marks (Isle of Man) (Amendment) (EU Exit) Order 2019

2.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.

2.2Schedule 2 to this Order amends the Trade Marks (Isle of Man) Order 2013 in anticipation of the withdrawal of the United Kingdom from the European Union. It appeared to the Committee that the amendment purported to be made by paragraph 5 of that Schedule related to provisions that did not appear in the 2013 Order. The Committee asked the Department for Business, Energy and Industrial Strategy to confirm that this was an error. In a memorandum printed at Appendix 2, the Department confirms that the drafting is defective, apologises for the error, and undertakes to correct it by amending instrument. The Committee accordingly reports paragraph 5 of Schedule 2 for defective drafting, acknowledged by the Department.

3S.I. 2019/1367: Reported for defective drafting

Magistrates’ Courts (Amendment) Rules 2019

3.1The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted in two respects.

3.2These Rules amend the Magistrates’ Courts Rules 1981 to take account of modern methods of communication. The Committee asked the Ministry of Justice to explain when a summons served in accordance with paragraphs (1)(e) and (j) (of new rule 99 inserted by rule 8) is deemed to have been received by the person. In a memorandum printed at Appendix 3, the Department asserts that the mode of electronic service referred to in these paragraphs is considered to result in actual service (which can be proved by reference to a computer system operating normally) so no issue of deemed service arises. The Committee does not understand why the Rules include a provision deeming service where a document is handed to a person (which must also result in actual service) but not where electronic service is used. The Committee considers a provision deeming service for a summons served in accordance with paragraphs (1)(e) and (j) should have been included in the Rules in order to ensure internal consistency. The Department undertakes to consider this in due course; in the meantime, the Committee reports rule 8 for defective drafting.

3.3The Committee also asked the Department to explain what criteria are intended to be applied in determining whether a person holds a “senior position” for the purposes of new rule 99(1)(a) (inserted by rule 8) and new rule 115(2)(a) (inserted by rule 10) (including, in particular, whether it is proposed to issue guidance similar to Practice Direction 6A). In its memorandum, the Department explains that the definition in Practice Direction 6A supporting the Civil Procedure Rules is not a complete description and that it is better to leave the term undefined so that it can be interpreted in accordance with its normal English meaning. The Committee does not believe that “senior position” has a sufficiently clear natural language meaning in this context to permit of its legislative use without some kind of definition or criteria. The Committee notes the Department’s undertaking to consult on whether such provision should be made when the Rules are next amended, but observes that this is not a matter of policy choice on which consultation is appropriate, but of ensuring that language used in legislation is sufficiently clear and certain to be fit for purpose. The Committee accordingly reports rules 8 and 10 for defective drafting.

4S.I. 2019/1368: Reported for requiring elucidation

Magistrates’ Courts (Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, Part 5A and Miscellaneous Amendments) Rules 2019

S.I. 2019/1369: Reported for requiring elucidation

Magistrates’ Courts (Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, Part 5B) Rules 2019

4.1The Committee draws the special attention of both Houses to these Rules on the ground that each set requires elucidation in two respects.

4.2These Rules establish the court procedures that apply in relation to powers for the recovery of proceeds of crime (including freezing of money in bank accounts and seizure of other assets) in connection with international cases. Rule 10(1) of S.I. 2019/1368 and rule 9(1) of S.I. 2019/1369 make provision for giving documents by post. The conditions in each rule are that the document must be properly addressed, prepaid, and posted to an address either given by a person under the Rules or listed in the relevant table. The Committee recently received a memorandum from the SI Hub (published as the Committee’s First Special Report of Session 2019–20) on the subject of section 7 of the Interpretation Act 1978: the view of the SI Hub is that provisions which specify a proper address expressly do something that is contemplated by that section, and that “‘properly addressing’ for the purposes of section 7 at least includes using an appropriate, or ‘proper’ address.” The Committee was therefore surprised that rules 10(1) and 9(1) required both that the document be properly addressed and that it be sent to an appropriate address. The Committee asked the Ministry of Justice to explain what is meant in these rules by the wording “properly addressing”, having regard to the SI Hub’s memorandum. In a memorandum printed at Appendix 4, the Department asserts that in this context section 7 is disapplied by a provision “which covers the same ground in essentially the same words” as section 7, and that in this provision the concept of “properly addressing” does not include sending to a proper address, which is covered separately. The SI Hub’s memorandum responded to an invitation to the Government by the Committee to articulate and apply a single consistent approach to the concept of “properly addressing” in section 7. The Committee notes that this instrument appears to depart from the Government’s general approach of including choice of address in the notion of “properly addressing”, by dealing with choice of address separately in the way described in the Department’s memorandum. The Committee accordingly reports regulations 9(1) and 10(1) for requiring elucidation, provided by the Department’s memorandum.

4.3Rule 9 of S.I. 2019/1368 and rule 8 of S.I. 2019/1369 provide for the acceptable means by which a document relating to these procedures may be served. They are: by post; by electronic means; or by any method authorised by the court. The Committee asked whether it was intended that a person has a right to effect personal service without the courts’ permission. In its memorandum, the Department confirms that “there was no intention to make personal service possible other than if authorised by the court”. The Department undertakes to consider, together with the Home Office, “whether there should be a change in the approach to permit personal service as a ‘primary’ method of service without any need for the court to authorise it”. The Committee is grateful for this undertaking and reports these rules as requiring elucidation, provided by the Department’s memorandum.

5S.I. 2019/1384: Reported for requiring elucidation

Accreditation of Forensic Service Providers (Amendment) Regulations 2019

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 amend the Accreditation of Forensic Service Providers Regulations 2018 in relation to certain laboratories that carry out laboratory activity (that results in a DNA-profile or fingerprint data) on items that require specialist handling and containment due to the presence of hazardous materials. In these circumstances, the requirement for accreditation will be satisfied if the laboratory activity is carried out by or under the supervision of a “relevant employee” employed by an accredited forensic service provider for the purpose of carrying out that laboratory activity (regulation 2(2) and (3)). The Committee asked the Home Office whether the “relevant employee” is required to have a certain level of competence and experience and whether the supervision by that employee is intended to impose a requirement that such employee be present when the laboratory activity is carried out. In a memorandum printed at Appendix 5, the Department explains that competence is the key consideration for individuals who will supervise such laboratory activity irrespective of seniority by grade or rank or years of experience and that it is not intended to impose a requirement that the individual be physically present when carrying out the supervision. The Committee finds that explanation helpful and accordingly reports regulation 2(2) and (3) for requiring elucidation, provided by the Department’s memorandum.

6S.I. 2019/1428: Reported for defective drafting

M11 Motorway (Junctions 8 to 90 (Offside Lane Restriction) Regulations 2019

6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

6.2These Regulations prohibit the daytime use by heavy commercial vehicles of the offside lane of part on the M11 motorway except where (among other things) changing lanes could cause “inconvenience to other traffic” (regulation 3(2)(a)). In response to the Committee’s question, the Department for Transport (in a memorandum printed at Appendix 6) confirms that the exception is likely to apply only in so far as inconvenience to other traffic is due solely to a reduction in speed. The Committee considers that “inconvenience” is not apt to convey the Department’s policy for two reasons: (a) the term “inconvenience” could cover situations that do not involve a reduction in speed; and (b) a reduction in speed might not naturally fall to be considered an inconvenience, depending on the precise situation. The Committee believes that if the Department’s policy is for the exception to be determined by reference to whether a change of lanes necessitates a reduction in speed, the drafting should have reflected that intention. The Committee accordingly reports regulation 3(2)(a) for defective drafting.

7S.I. 2019/1440: Reported for requiring elucidation and for defective drafting

Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 3) Regulations 2019

7.1The 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 one respect.

7.2These Regulations amend domestic legislation governing the EU-wide carbon trading scheme to reflect changes to the operation of the scheme in its next phase, which will begin on 1 January 2021. The current scheme includes an opt-out for low emitters (Article 27 installations). The new scheme introduces a similar opt-out for ultra-low emitters (Article 27a installations), which is implemented in domestic legislation by these Regulations. Each of these opt-outs operates by reference to conditions attached to a relevant permit. In the new Schedule 5A inserted by the Schedule to these Regulations, paragraph 3 allows the operator of an Article 27a installation to comply with the less stringent conditions of an alternative permit if they notify the regulator. Paragraph 3(2) requires that a notice in relation to the second allocation period be received by 31 August 2024 but is silent as to any deadline that applies in relation to the first allocation period. The Committee asked the Department for Business, Energy and Industrial Strategy to explain the omission. In a memorandum printed at Appendix 7, the Department explains that the initial deadline for the first allocation period had passed before these Regulations were made and notes that the absence of a deadline means a notice may be given in relation to the first allocation period throughout that period. The Committee finds this explanation helpful, and accordingly reports paragraph 3 of Schedule 5A, as inserted by the Schedule to these Regulations, for requiring elucidation, provided by the Department’s memorandum.

7.3Paragraph 5(3) of new Schedule 5A imposes a deadline by reference to “the date specified in paragraph 2(2)(a) or (b)”. Neither of those sub-paragraphs appeared to the Committee to specify a date. It asked the Department to confirm whether the cross-reference was correct. In its memorandum, the Department acknowledges that the cross-reference is incorrect and notes that the error has already been corrected in S.I. 2020/18 (on which the Committee had no comments in its Second Report of Session 2019–2021). The Committee commends the Department for having taken such rapid remedial action, and accordingly reports paragraph 5(3) of Schedule 5A, as inserted by the Schedule to these Regulations, for defective drafting, which has been remedied by the Department.

8S.I. 2019/1441: Reported for defective drafting

Electricity and Gas (Energy Company Obligation) (Amendment) Order 2019

8.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.

8.2This instrument changes some of the criteria for the energy efficiency measures that qualify towards meeting the home-heating cost reduction target set for certain licensed gas and electricity suppliers under the Electricity and Gas (Energy Company Obligation) Order 2018. Article 7 substitutes Article 18 of the 2018 Order and sets out requirements to be met by measures in order to be qualifying actions relating to installation standards including, in cases where the measure is not referred to in the Publicly Available Specification (PAS), that the measure is installed by a person of “appropriate skill and experience”.

8.3The Committee asked the Department for Business, Energy and Industrial Strategy to explain by whom and by reference to what criteria it is intended to be determined whether a person is of “appropriate skill and experience”. In a memorandum printed at Appendix 8, the Department explains that it has published draft guidance applying to measures installed on or after 1 January 2020 but gives no indication of what would constitute “appropriate skill and experience” of the installer. The Committee does not believe that “appropriate” has a sufficiently clear meaning in this context to allow its legislative use without the provision of criteria. The Committee accordingly reports article 7 for defective drafting.

9S.I. 2019/1461: Reported for requiring elucidation

Anguilla Constitution (Amendment) (No.2) Order 2019

9.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in two respects.

9.2This Order amends the constitution of Anguilla to clarify that certain persons must be British Overseas Territories citizens to qualify as Anguillians (article 2). The Committee asked the Foreign and Commonwealth Office to explain why the change effected by article 2 is retrospective. In a memorandum printed at Appendix 9, the Department explains that the British Overseas Territories citizenship criterion for one limb of the test for status was unintentionally omitted from the Anguilla Constitution (Amendment) Order 2019. This left a period within which certain persons were eligible for Anguillian status without also having to be British Overseas Territories citizens. This Order corrects that omission and the retrospective effect of article 2 ensures legal certainty about the law concerning the acquisition of Anguillian status. The Committee accordingly reports article 2 for requiring elucidation, provided by the Department’s memorandum.

9.3The Committee also asked the Department to explain what power was being relied on for this retrospective effect. In its memorandum, the Department explains that the power relied on is section 1(2) of the Anguilla Act 1980, which states: “Her Majesty may by Order in Council make such provision as appears to Her expedient for and in connection with the government of Anguilla”. The Department also argues (presumably because the preamble refers to powers “or otherwise in Her Majesty vested”) that Article 9 of the Anguilla Constitution Order 1982 is relevant (“Her Majesty reserves to Herself power, with the advice of Her Privy Council, to makes laws for the peace, order and good government of Anguilla”.) The Department relies on R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61 and Sabally and N’Jie v Attorney General [1965] 1 QB 273 as authority for the proposition that the power to legislate for the purposes of “peace, order and good government” permits retrospective provision, despite the general presumption against retrospection. The Committee accepts the Department’s helpful explanation and accordingly reports article 2 for requiring elucidation in this respect, provided by the Department’s memorandum.

10S.I. 2019/1474: Reported for defective drafting

Fishery Products (Official Controls Charges) (England) (Amendment) Regulations 2019

10.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

10.2These Regulations update references to EU legislation in an existing domestic instrument, including by adding references to new EU instruments and creating new definitions for the EU instruments thus referred to. It appeared to the Committee that the new defined term “Regulation 2019/624”, inserted by regulation 3(a) of and the Schedule to these Regulations, was unnecessary, as apart from the definition there was no reference to that Regulation in the amended domestic instrument. The Committee queried why the definition was included. In a memorandum printed at Appendix 10, the Food Standards Agency acknowledges that the defined term is superfluous and undertakes to remove it at the earliest opportunity. The Committee accordingly reports Regulation 3(a) of and the Schedule to these Regulations for defective drafting, acknowledged by the Department.

11S.I. 2019/1476: Reported for defective drafting

Official Feed and Food Controls (England) (Miscellaneous Amendments) Regulations 2019

11.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

11.2These Regulations update references to EU legislation in the Official Feed and Food Controls (England) Regulations 2009 (the 2009 Regulations), including by adding references to new EU instruments and inserting new definitions for the EU instruments thus referred to. Regulation 2 of the 2009 Regulations is an interpretation provision: it includes a list of short titles for the EU instruments referred to elsewhere and cross-refers to the definition of each instrument so listed, which is in Schedule 1 to the 2009 Regulations. Regulation 3(a)(ii) of these Regulations substitutes an updated list of short titles, but without the words “have the meanings respectively given to them in Schedule 1”. The effect is that these words are deleted from the 2009 Regulations. The Committee asked for confirmation that this cross-reference should have been included. In a memorandum printed at Appendix 11, the Food Standards Agency confirms that it should and undertakes to correct the error at the next available opportunity. The Committee accordingly reports regulation 3(a)(ii) for defective drafting, acknowledged by the Department.

12S.I. 2019/1511: Reported for defective drafting

Money Laundering and Terrorist Financing (Amendment) Regulations 2019

12.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

12.2These Regulations update the United Kingdom’s existing anti-money laundering legislation to implement amendments made to the EU’s money laundering framework. Regulation 8 (inserted new regulation 74C(1)) allows the Financial Conduct Authority (FCA) to impose a direction on a cryptoasset business. The Committee asked HM Treasury to explain why the provisions in regulation 74C(9) to (16) and (20) do not apply to a direction imposed under regulation 74C(1). In a memorandum printed at Appendix 12, the Department explains that paragraph (5) (imposition of a direction on the FCA’s own initiative) and (6) (imposition of a direction by the FCA on the request of the cryptoasset business) of new regulation 74C are not intended to be distinct from the power referred to in paragraph (1) but rather to particularise the manner in which such a direction may be imposed. Where the FCA imposes a direction on its own initiative paragraphs (9) to (16) and (20) will apply and where the FCA imposes a direction on the request of a cryptoasset business paragraphs (17) to (20) will apply. The Treasury accepts that regulation 74C could have been clearer and undertakes to amend the instrument at the earliest opportunity. The Committee accordingly reports regulation 8 for defective drafting, acknowledged by the Department.

13S.I. 2019/1514: Reported for defective drafting, for requiring elucidation and for doubtful vires

Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019

13.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in three respects, that they require elucidation in two respects, and that there is doubt as to whether they are intra vires in one respect.

13.2These Regulations extend civil marriage to same-sex couples and civil partnership to opposite-sex couples in Northern Ireland, and they make various consequential amendments across Northern Ireland legislation to reflect these changes.

13.3Regulation 15 amends the form that a couple intending to marry must serve on the registrar as notice of that intent. Regulation 15(k) inserts a new Part F into the form, which a couple should fill in if they intend to have a humanist celebrant conduct the ceremony. The form requires the parties to make a declaration that they “intend to be married … by the officiant named at Part E”. Regulation 15 makes no amendment to this declaration. The Committee was concerned that this omission meant the form would not accurately reflect the new regime. It asked the Northern Ireland Office to explain the omission. In a memorandum printed at Appendix 13, the Department acknowledges the discrepancy and undertakes to work with the Northern Ireland Executive to ensure that the necessary amendments are made to the prescribed form. The Committee accordingly reports regulation 15 for defective drafting, acknowledged by the Department.

13.4Regulation 56(6)(c) inserts a provision to permit an existing rule-making power to be used to make different provision for different purposes. The Committee asked the Department to identify the enabling powers relied on to include this regulation. In its memorandum, the Department states that the enabling powers relied on are section 8(3), 4(c) and 7(d) read (if necessary) with section 11 of the Northern Ireland (Executive Formation) Act 2019 (the 2019 Act). The Committee is not persuaded. The power conferred by section 8(3) is broad and includes power to confer a discretion, but it does not include power to confer a power to make different provision for different purposes (in contrast to section 11 which allows the power itself to be used to make different provision for different purposes). A power to make different provision for different purposes is never to be assumed, as it amounts in effect to a qualification on the common law presumption against arbitrary application of statutory powers; but in the case of Northern Ireland subordinate legislation the power is expressly conferred by section 17(5)(b)(ii) of the Interpretation (Northern Ireland) Act 1954. So it was unnecessary to include this provision (and for the reasons given if it were not superfluous it would probably be ultra vires). The Committee accordingly reports regulation 56(6)(c) for defective drafting.

13.5The amendments made by regulations 67(1) and 109(1) omit provisions that make the wife or husband of the accused in criminal proceedings competent, but not compellable, to give evidence for or against the accused. The Committee was curious as to the grounds on which this was considered to be appropriate in view of the extension of same-sex marriage and opposite-sex civil partnership. It therefore asked the Department to clarify which specific enabling powers are relied on and the reasons for these amendments. In its memorandum, the Department states that the enabling power relied on is s.8(3) of the 2019 Act, and that the provisions are made to ensure that the new categories of relationship are brought in line with existing civil partnerships and to create a uniform code. The Committee finds this explanation helpful and accordingly reports regulations 67(1) and 109(1) for requiring elucidation, provided by the Department’s memorandum.

13.6Regulation 68(6) confers a broad power to make regulations that “modify or disapply any enactment”, which would include making amendments to primary legislation. It appeared to the Committee that while the powers conferred by the 2019 Act would permit the Secretary of State to make regulations that amend primary legislation, they did not go so far as to permit the Secretary of State to confer the same power on another person. The Committee therefore asked the Department to clarify which enabling powers it relied on to make this provision. In its memorandum, the Department accepts that the better argument is that the 2019 Act does not permit sub-delegation of a power to amend primary legislation and undertakes to inform the relevant Northern Ireland Department of the issue and the need to rectify the position. The Committee acknowledges the Department’s undertaking, and accordingly reports regulation 68(6) for doubt as to whether it is intra vires, acknowledged by the Department.

13.7Regulation 122(3) inserts into Section 2 of the Principal Civil Service Pension Scheme (Northern Ireland) 1981 a gloss intended to reflect the new relationships legally recognised as a result of these Regulations. Section 2 is drafted in a way that distinguishes applicable benefits expressly by sex, with some provisions granting “widows’ and dependants’ benefit” in relation to “all male pensionable civil servants” and others granting “widowers’ benefit” in relation to “all female pensionable civil servants”. The gloss in new rule 4.79A provides that it does not matter whether the civil servant or their partner is a man or a woman, and that a surviving civil partner is entitled to a widow’s or a widower’s pension but not both. Given that there appeared to be distinctions between widows’ and widowers’ benefit under this part of the Scheme, it was not clear to the Committee how a person would determine which of the benefits they were entitled to if applying the gloss meant there was no distinction between a male and a female pensionable civil servant. It asked the Department to explain. In its memorandum, the Department explains that widows’ and widowers’ entitlements under this part of the Scheme have been equalised, and that the second part of rule 4.79A is only intended to prevent double entitlement. The Committee finds this explanation helpful and accordingly reports regulation 122(3) for requiring elucidation, provided by the Department’s memorandum.

13.8Also in relation to regulation 122(3), the Committee asked the Department to explain whether certain sex-specific provisions of Section 2 were intended to be modified by the gloss so that they include opposite-sex civil partnerships between the surviving civil partner and a third party. In its memorandum, the Department acknowledges that it has discovered amendments made to the Scheme in 2016 that are not reflected in the amendments made by regulation 122, and which may affect its reply to the Committee’s question. The Department undertakes to take steps to amend the Regulations as soon as possible to correct the error. The Committee accordingly reports regulation 122 for defective drafting, acknowledged by the Department.

13.9Regulation 133(3) creates a new exemption to Article 30(1) of the Sex Discrimination (Northern Ireland) Order 1976, which makes it unlawful for “any person” concerned with providing goods, services, etc. to the public to discriminate against a woman by refusing to provide them to her. Under the new exemption, Article 30(1) is not contravened by “an organised religion, or a person acting on behalf of or under the auspices of an organised religion … [where] the religion or person—(a) does not provide, arrange, facilitate, or participate in, or (b) is not present at, a ceremony or event to mark the solemnisation of” a same-sex marriage or a civil partnership. The phrase “organised religion” is not defined. The Committee asked the Department to explain how actions could be imputed to “an organised religion” so as to contravene Article 30(1) of the 1976 Order. In its memorandum, the Department cites section 37 of the Interpretation Act (Northern Ireland) 1954, which provides that references to persons include male and female persons, corporations and unincorporated bodies, and that the singular includes the plural. The Department argues that if an organised religion is not a person by virtue of being a body corporate, its adherents are persons, or it is an unincorporated body of persons. The Committee finds none of these arguments persuasive. It seems to the Committee that each of these constructions, and all the Department’s examples, would have been caught by the reference in the new exemption to “a person acting on behalf of or under the auspices of an organised religion”. It also notes that the offence in Article 30(1) only applies to a person, so to the extent that an organised religion is not a person as defined by the 1954 Act (which, as noted above, includes an unincorporated body), it would not be liable for the offence and so would need no exemption. The Department states that it used the term “organised religion” undefined for consistency with Article 21 of the 1976 Order. That Article provides that it is not unlawful to apply a requirement in relation to employment, or to an authorisation or qualification, where the employment or authorisation or qualification “is for the purposes of an organised religion” (emphasis added). The Committee has no difficulty with an undefined reference to organised religion in the context of Article 21 of the 1976 Order; but that is very different from purporting to exempt an undefined socio-cultural system from having committed an unlawful act. The Committee is clear that the exemption is unnecessary, and that if it were required an undefined reference to “organised religion” would be insufficiently clear and certain in the context. The Committee accordingly reports regulation 133(3) for defective drafting.

13.10The Committee noticed that regulations 159 and 160 amend definitions of “relative” in different ways, even though the same definition is used in each of the instruments being amended. It asked the Department to explain why. The Department acknowledges that this was not intentional and undertakes to correct the error. The Committee accordingly reports regulations 159 and 160 for defective drafting, acknowledged by the Department.





Published: 28 February 2020