At its meeting on 16 June 2021 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 four 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.
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they make unusual or unexpected use of the enabling powers in one respect.
1.2These Regulations, which are subject to the negative resolution procedure, amend the Nuclear Safeguards (Fissionable Material and Relevant International Agreements) (EU Exit) Regulations 2019 by adding the EU withdrawal agreement to the list of “relevant international agreements” for nuclear safeguard purposes. The 2019 Regulations were made under section 112(1B) of the Energy Act 2013, attracting a statutory consultation requirement and the draft affirmative procedure. These Regulations were made under section 8B(1) of the European Union (Withdrawal) Act 2018 which carries with it no statutory consultation requirement and is subject to the negative resolution procedure. The Committee asked the Department for Business, Energy and Industrial Strategy to explain the choice of enabling power.
1.3In a memorandum printed at Appendix 1, the Department agrees that section 112(1B) of the Energy Act 2013 could have been used and this would have avoided the need for regulation 2 to state that the Regulations are to be treated as regulations made under section 112(1B) for the purposes of section 112(1A)(b) of that Act. The Department asserts that section 8B(1) of the 2018 Act was nevertheless appropriate. As a general rule, the Committee believes that it is wrong in principle for a provision made under one power to be amended under another power so as to circumvent requirements for consultation and Parliamentary scrutiny. That principle is exacerbated here by the Department first choosing the less onerous powers and then providing for the result to be treated as if made under the more onerous powers. The Committee accordingly reports these Regulations for unusual or unexpected use of the enabling powers.
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, which are subject to the negative resolution procedure, amend legislation relating to plant health to correct defects arising due to Brexit. Regulation 3(7)(b) amends the table at Annex 7, Part A, of Commission Implementing Regulation (EU) 2019/2072. In entry 71 of that table, column 1 lists several species of plant under the defined term “the specified plants”, and column 3 includes several references to that defined term. Regulation 3(7)(b)(xi) revokes only the defined term in column 1. The Committee asked the Department for Environment, Food and Rural Affairs to explain what the references in column 3 are intended to mean. In a memorandum printed at Appendix 2, the Department acknowledges that the term ought to have been omitted from both columns and apologises for the oversight. The Committee accordingly reports regulation 3(7)(b)(xi) for defective drafting, acknowledged by the Department.
2.3(The Department also undertakes to consider how the error might be addressed. The Committee is clear that the only proper way to amend legislation is by means of further legislation.)
3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
3.2These Regulations, which are not subject to parliamentary procedure, consolidate legislation that exempts radio equipment from the requirement to be licensed under section 8(1) of the Wireless Telegraphy Act 2006 where it complies with specified interface requirements, which the Regulations identify by title and publication date. The Committee asked Ofcom to explain the discrepancy between the publication dates cited in regulations 5, 6 and 8 and the dates that appear on the online versions of the documents specified by those regulations. In a memorandum printed at Appendix 3, Ofcom acknowledges the errors and undertakes to correct them immediately. The Committee is grateful for the undertaking and accordingly reports regulations 5, 6 and 8 for defective drafting, acknowledged by Ofcom.
4.1The Committee draws the special attention of both Houses to these Regulations on the ground that there was unjustifiable delay in laying them before Parliament.
4.2These Regulations, which are subject to the made affirmative resolution procedure, amend the Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (S.I. 2021/364—“the Steps Regulations”) to move to the penultimate step of the roadmap for lifting lockdown restrictions in England. They were made on Friday 14 May, came into force at the beginning of Monday 17 May, and were laid before Parliament 11 hours later. It is undesirable in principle for instruments to come into force before being laid (as acknowledged by section 4(1) of the Statutory Instruments Act 1946, and as discussed by the Committee in its First Special Report of Session 2017-19, Transparency and Accountability in Subordinate Legislation). Even a few hours’ delay is to be deprecated where it can reasonably be avoided. On that basis the Committee asked the Department for Health and Social Care to explain the delay. In a memorandum printed at Appendix 4, the Department offers an explanation which is helpful in so far as it describes the considerable difficulties attending the collation of data to support changes in COVID-19 regulatory policy (difficulties which the Committee completely accepts). Given that in this case the target commencement date had been known for several months and preliminary decisions had already been made, the Committee believes that it would have been reasonably possible to adjust timings so as to avoid the need for pre-laying commencement, and the Committee accordingly reports these Regulations for unjustifiable delay in laying before Parliament.