Instruments reported
At its meeting on 4 March 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 nine 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. 2019/1488: Reported for defective drafting and for requiring elucidation
Official Controls (Animals, Feed and Food, Plant Health Fees etc.) Regulations 2019
1.1The Committee draws the attention of both Houses to these Regulations on the grounds that they are defectively drafted in one respect and require elucidation in another respect.
1.2These Regulations implement a new EU Regulation on official controls in the agri-food chain that came into effect on 14 December 2019. Regulation 2 is an interpretation provision that includes, at paragraph 2, a definition of “zootechnical additives”. That term is not used anywhere else in the instrument. The Committee asked the Department for Environment, Food and Rural Affairs to explain why, in that case, the definition had been included. In a memorandum printed at Appendix 1, the Department acknowledges that the definition was included in error. The Committee accordingly reports regulation 2(2)(b) for defective drafting, acknowledged by the Department.
1.3Regulation 10 provides that expenses incurred by the Secretary of State or a designated authority in enforcing these Regulations, or in carrying out measures under Articles 66, 67, 69 or 138 of the EU Regulation being implemented, “may” be recovered from a relevant business operator. It was not clear to the Committee whether the Department intended this discretionary cost recovery to be used routinely, and whether there might be a significant and avoidable burden on the taxpayer if it were not. The Committee asked the Department to explain whether routine cost recovery was intended. In its memorandum, the Department explains that the executive agency responsible for these policy areas “is a full cost recovery agency”, and that such expenses are therefore routinely recovered. The Committee finds this reply helpful and accordingly reports regulation 10 for requiring elucidation, provided by the Department’s memorandum.
2S.I. 2020/2: Reported for defective drafting and for requiring elucidation
Police (Complaints and Misconduct) Regulations 2020
2.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in one respect and require elucidation in another respect.
2.2These Regulations make provision about the handling and investigation of complaints concerning the police. The Committee asked the Home Office to confirm what wording should be used in regulation 7(2)(d) to allow it to flow accurately from the opening words. In a memorandum printed at Appendix 2, the Department explains that sub-paragraph (d) should begin with “which” and “it” should be omitted from the middle of the sentence and undertakes to amend regulation 7(2)(d) at the next available opportunity. The Committee accordingly reports regulation 7(2)(d) for defective drafting, acknowledged by the Department.
2.3The Committee also asked the Department to explain what is intended to happen if the person required to attend the interview by virtue of regulation 21(7) does not attend and how effect is given to that intention. In its memorandum, the Department explains that in such a case the appropriate authority would determine whether such non-attendance was a breach of the Standards of Professional Behaviour (as defined in the Police (Conduct) Regulations 2020). The Department explains that it has issued updated guidance (“Conduct, Efficiency and Effectiveness: Statutory Guidance on Professional Standards, Performance and Integrity in Policing”) which states (at paragraph 7.66) that “The officer concerned must attend the interview and it may be viewed as a further misconduct matter to fail to attend this interview”. Every legislative duty requires to be capable of being enforced by a sanction or other appropriate consequence; and where the instrument itself does not provide an express sanction, it is helpful for the accompanying explanatory material to clarify how compliance with the duty is to be ensured. The Committee accordingly reports regulation 21(7) for requiring elucidation, provided by the Department’s memorandum.
3S.I. 2020/3: Reported for defective drafting
Police (Performance) Regulations 2020
3.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in three respects.
3.2These Regulations make provision about the procedures for investigating and managing poor performance by police officers and special constables (collectively referred to as “officers”). The Committee asked the Home Office to explain why, in a list separated by semi-colons, the penultimate item was separated by a comma in some cases (and a semi-colon in others, as in regulations 28(1) and 31(1)). In a memorandum printed at Appendix 3, the Department confirms that its drafting approach to punctuation at the end of a list is to use a comma where a conjunction follows, but a semi-colon where no conjunction follows. It acknowledges and proposes to correct the internal inconsistency where this approach was not followed. The Committee’s preference is for legislation to comply with standard rules of grammar and punctuation, which would normally call for all equal items in a list to be separated by the same type of mark. But the Committee is clear that even where a Department opts to deviate from the standard, usage should be consistent within the instrument to avoid potential for confusion. The Committee accordingly reports regulations 28(1)(d) and 31(1)(j) for defective drafting, acknowledged by the Department.
3.3Where performance proceedings are begun on the basis of a line manager’s decision that an officer’s performance is unsatisfactory, or not sufficiently improved, the Regulations impose a duty to provide to that officer a copy of any document that the line manager relied on to make the decision. Regulation 12(7) includes a list documents caught by this duty. It was not clear to the Committee, having regard to regulation 12(1)(b)(i) (and regulation 12(7)(a)), why that list does not include an authority’s determination, under paragraph 24(6) or 24C(4) of Schedule 3 to the Police Reform Act 2002, that the officer’s performance is unsatisfactory. The Committee asked the Department to explain the omission. In its memorandum, the Department acknowledges that regulation 12(7) ought to have included a duty to that effect and undertakes to rectify the omission at the next available opportunity. The Committee accordingly reports regulation 12(7) for defective drafting, acknowledged by the Department.
3.4Regulation 14(1)(b)(i) provides for provisions to be modified by way of substitution. The Committee asked the Department to explain which part of those provisions is intended to be modified given that regulation 14(1)(b)(i) appears to contain an incorrect cross-reference. In its memorandum, the Department acknowledges the error and undertakes to remedy it at the next available opportunity. The Committee accordingly reports regulation 14(1)(b)(1) for defective drafting, acknowledged by the Department.
4S.I. 2020/8: Reported for failure to comply with proper legislative practice
Criminal Legal Aid (General) (Amendment) Regulations 2020
4.1The 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.
4.2These Regulations make legal aid available in relation to the making, varying, discharging, renewing and appealing of stalking protection orders. The Regulations were laid before Parliament on 7 January 2020 and came into force on 20 January 2020. The Committee asked the Ministry of Justice to explain why it was not possible to make these regulations earlier so that the 21-day rule could have been complied with. In a memorandum printed at Appendix 4, the Department explains that the regulations had to come into force on 20 January 2020 to ensure that there was no gap in criminal legal aid provision on commencement of the Stalking Protection Act 2019 and that the instrument was laid “at the earliest opportunity” after the original scheduled laying date of 12 December 2019 (which was no longer possible due to the General Election). The Committee is not clear why 7 January 2020 was the earliest opportunity to lay the instrument given that it was possible to lay instruments before Parliament from 17 December 2019. In its First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation, the Committee (at paragraph 2.20) states that problems or delays within Government will not generally be regarded as justification for breach of the 21-day rule. The Committee accordingly reports these regulations for failure to comply with proper legislative practice.
5S.I. 2020/21: Reported for requiring elucidation
Council Tax (Demand Notices) (England) (Amendment) Regulations 2020
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 provide for information supplied with council tax demand notices for financial years from 2020–21 to contain updated explanatory text about council tax charged to fund expenditure on adult social care (the ASC Precept). The Committee asked the Ministry of Housing Communities and Local Government to explain why the Government’s intention (announced in the 2019 Spending Review) to make the ASC Precept available again in 2020–21 (paragraph 7.4 of the Explanatory Memorandum) is not reflected in the new paragraph 9 added by regulation 2(3). In a memorandum printed at Appendix 5, the Department provides an explanation which the Committee regards as helpful, while noting that the approach is different from that taken in paragraph 8 of Schedule 2 to S.I. 2011/3038. The Committee accordingly reports regulation 2.3 for requiring elucidation, provided by the Department’s memorandum.
6S.I. 2020/27: Reported for failure to comply with proper legislative practice
Rent Officers (Housing Benefit and Universal Credit Functions) (Amendment) Order 2020
6.1The Committee draws the special attention of both Houses to this Order on the ground that it fails to comply with proper legislative practice in one respect.
6.2This Order makes changes to the determination of local housing allowance in Great Britain. The Order was laid before Parliament on 13 January 2020 and came into force on 30 January 2020. The Committee asked the Department for Work and Pensions to explain why it was not possible to make this Order earlier so that the 21-day rule could have been complied with. In a memorandum printed at Appendix 6, the Department explains that decisions regarding changes to local housing allowance were delayed by the General Election and that the Order needed to come into force before the last working day of January which was when rent officers had to publish the new local housing allowance rates that will be effective from 1 April 2020. Although the Committee understands the delay caused by the General Election, this Order was laid more than a month after that election and could have complied with the 21-day rule if it had been laid four days earlier. In its First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation, the Committee (at paragraph 2.20) states that problems or delays within Government will not generally be regarded as justification for breach of the 21-day rule. The Committee accordingly reports these regulations for failure to comply with proper legislative practice.
7S.I. 2020/32: Reported for doubtful vires and for defective drafting
Criminal Procedure (Amendment) Rules 2020
7.1The Committee draws the special attention of both Houses to these Rules on the grounds that there is doubt whether they are intra vires in one respect and that they are defectively drafted in another respect.
7.2These Rules amend the Criminal Procedure Rules 2015 to include (among other things) the addition of new rules that allow authorised court staff to exercise certain judicial functions (rule 3(e)). The enabling power for these new rules is section 67B(1) of the Courts Act 2003. The Committee asked the Ministry of Justice to explain why section 67B of the Courts Act 2003 is not cited as an enabling power in the preamble to this instrument. In a memorandum printed at Appendix 7, the Department refers to rule 12 of this instrument which inserts the relevant citation into the preamble to the 2015 Rules (rather than including section 67B in the preamble to these Rules). The Department cites previous instances where this approach has also been taken. The Committee does not consider that this is the proper approach. Although amending the preamble to the 2015 Rules is helpful, it is the preamble to the amending instrument that is required as a matter of law (Vibixa Ltd and another v Komori UK Ltd and others [2006] EWCA Civ 536) and practice to cite every enabling provision relied on. Since the decision of the Court of Appeal in Vibixa, preambles have been relevant not merely to legislative practice but also to vires: a failure to cite a provision relied on might result in a decision that a provision is ultra vires. Accordingly, the Committee reports these Rules on the ground that the omission from the preamble gives rise to doubts whether they are intra vires.
7.3The Committee also asked the Department whether the phrase “including arrangements for publication by electronic means” (in new rules 5.8 (9)(b)(ii) and (11)(b)(i) inserted by rules 5(c) and (d)), is intended to impose a requirement to make arrangements for electronic publication or to give a discretion. In its memorandum, the Department explains that each paragraph “imposes on the court officer an obligation to publish by means of arrangements that the Lord Chancellor, in the latter’s discretion may direct, including, among any such arrangements, any which may direct publication by electronic means.” The Committee understands that this is the intention of the drafting but is not convinced that the wording reflects that intention. As drafted, the phrase “including arrangements for publication by electronic means” could mean either that the arrangements directed by the Lord Chancellor must include arrangements for electronic publication or that they may include such arrangements. The Committee accordingly reports rules 5(c) and (d) for defective drafting.
8S.I. 2020/38: Reported for failure to comply with proper legislative practice
Overseas Production Orders and Requests for Interception (Designation of Agreement) Regulations 2020
8.1The 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.
8.2These Regulations provide for the designation of a bilateral treaty on access to electronic data for the purposes of countering serious crime, agreed between the United Kingdom and the United States in 2019. The treaty was laid before Parliament as required by statute, and it is cited in these Regulations by its command paper number. The Committee asked the Home Office to explain why an address where a hard copy can be inspected free of charge is not given in the instrument, having regard to paragraphs 4.5 to 4.8 of the Committee’s First Special Report of Session 2017–19. In a memorandum printed at Appendix 8, the Department agrees that this information was omitted in error, undertakes to correct it (possibly by correction slip), and affirms that it is taking steps to minimise the risk of similar errors in future. The Committee is of the view that this rectification can properly be done by correction slip. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice, acknowledged by the Department.
9S.R. 2020/14: Reported for failure to comply with proper legislative practice and for defective drafting
Housing Benefit and Universal Credit Housing Costs (Executive Determinations) (Amendment) Regulations (Northern Ireland) 2020
9.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they fail to comply with proper legislative practice in one respect and are defectively drafted in another respect.
9.2These Regulations make changes to the determination of local housing allowance in Northern Ireland. The Regulations were laid before Parliament on 15 January 2020 and came in to force on 30 January 2020. The Committee asked the Department for Work and Pensions to explain why it was not possible to make these regulations earlier so that the 21-day rule could have been complied with. In a memorandum printed at Appendix 9, the Department gives the same explanation as for S.I. 2020/27 above but notes that the Regulations were laid two days later than that instrument because the Department for Communities in Northern Ireland needed to take in to account the version for Great Britain before finalising the version for Northern Ireland. For the same reasons stated in the report on S.I. 2020/27 above, the Committee reports these regulations for failure to comply with proper legislative practice.
9.3The Committee also asked the Department to clarify the reference to “paragraph 3” in regulation 2(3) (inserted sub-paragraph (2)(a)). In its memorandum, the Department acknowledges that the reference to “paragraph 3” should have been a reference to “sub-paragraphs (4) to (8)”. The Departments states: “Correcting the Order at this stage would not change the way in which the provisions were applied by the Rent Officers at the end of January 2020, who implemented the methodology for determining rents at the 30th percentile as set out in sub-paragraphs (4) to (8). The provisions are not applied by Rent Officers again after the end of January 2020.” The Committee is concerned that the Department appears untroubled by the fact that the law was administered in a form in which the Government wished it had made it, and not in the form in which it was actually made; the Government also appears to overlook the fact that while Rent Officers may have no further call to apply this provision, there remains the possibility of future challenge to their past actions. The Committee accordingly reports regulation 2(3) for defective drafting, acknowledged by the Department.
Published: 6 March 2020