At its meeting on 30 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 this Order on the grounds that it requires elucidation in one respect and it is defectively drafted in two respects.
1.2This Order, which is subject to the draft affirmative resolution procedure, implements the international agreement providing for the privileges and immunities to be enjoyed by the delegation of the European Union to the UK. This includes the privileges and immunities to be enjoyed by family members of staff of the delegation. For these purposes, “Family Member” is defined in article 2 of the Order to include children aged between 18 and 25 years who are financially dependent on the staff member and who are in full time education at “an educational establishment registered with the United Kingdom Government”. There is nothing in the instrument or the Explanatory Memorandum to identify the register of educational institutions which is being referred to in the definition. In a memorandum, printed at Appendix 1, the Foreign, Commonwealth and Development Office explains that it is the register of educational institutions which are licensed as sponsors of migrant students. It is stated that it has long been the Government’s policy that, in order to be considered as a family member of a staff member of a diplomatic mission, a child aged between 18 and 25 must intend to study full-time at such an institution; and that this is well understood by the diplomatic community. The Committee accordingly reports article 2 for requiring elucidation, provided in the Department’s memorandum.
1.3Article 2 of the Order contains a definition of the term “High Representative” although that term is not used anywhere else in the Order. In its memorandum, the Department acknowledges that the definition was included in error. It was included because the term appears in the international agreement which is being given effect to by the Order. However, the term is used in a provision of that agreement which is not being implemented in the Order. The Department commits to put the error right at the earliest opportunity. The Committee accordingly reports article 2 for defective drafting, acknowledged by the Department.
1.4Article 2 defines “Premises” as meaning “building(s) … maintained, occupied or used by the Delegation”. The Committee asked the Department to explain why the reference to “building(s)” uses brackets around the “s” to indicate that it includes both the singular and plural, having regard to section 6 of the Interpretation Act 1978 which (when read together with section 23) provides for words in the singular to include the plural and words in the plural to include the singular. In its memorandum, the Department explains that the definition in the Order was copied from the definition in the international agreement. The Department acknowledges that the form of drafting used in the Order was unnecessary in the light of section 6, and it commits to amending the definition at the earliest opportunity. In the view of the Committee, the error does not simply involve the doing of something that is unnecessary. The rule in section 6 applies “unless the contrary intention appears”. By expressly providing for the reference to buildings to include the singular as well as the plural, it gives rise to a doubt as to whether section 6 is intended to apply for the purposes of the Order generally. The Committee accordingly reports article 2 for a second instance of defective drafting, acknowledged by the Department.
2.1The Committee draws the special attention of both Houses to this Order on the grounds that it requires elucidation in one respect and is defectively drafted in two respects.
2.2This Order, which is subject to the negative resolution procedure, confers new powers on the harbour authority and the harbour master to make directions for the regulation and management of Dart Harbour.
2.3The harbour authority may make general directions that apply to vessels, vehicles, designated persons, part or all of the harbour, and some or all of the time. The harbour master may give special directions in respect of vessels anywhere in the harbour. Article 7 makes it an offence for a person to fail to comply with a general or special direction. The Committee was unsure who would be liable for failure to comply with a general direction that does not apply to a designated person, or for failure to comply with a special direction (particularly since this Order does not, in contrast to at least some similar instruments, require a special direction to specify a person to whom it is addressed). The Committee asked the Marine Maritime Organisation to explain.
2.4In a memorandum printed at Appendix 2, the Department explains that general directions are published and made available to harbour users in a similar way to byelaws and states that “in failing to comply with a general direction a person may be liable under article 7”. It explains that special directions “may only be issued … to a person”, in practice are often “given as a vocal instruction to deal with on the spot issues”, and “will be given to the most appropriate individual on the vessel or in the harbour depending on the circumstances of the activity taking place”: that person may be liable for failing to comply with the direction.
2.5The Committee finds these explanations helpful. Taken together with the defence of taking reasonable precautions and exercising due diligence to avoid committing the offence in article 7(2), the Committee is satisfied that individuals will not in practice be found criminally liable for failing to comply with directions not expressly addressed to them in the manner described in the Department’s memorandum. As this is criminal legislation it would have been preferable to articulate an express connection between a direction and one or more specified individuals, but in the circumstances, the Committee is content to report article 7 for requiring elucidation, provided in part by the Department’s memorandum.
2.6Articles 4 and 5 require notices to be given, published or displayed in specified circumstances and to specified people; no provision expressly requires a notice to be served. Article 13 makes further provision about the notices required by articles 4 and 5 but refers both to notices being “given” and to notices or documents being “sent” or “served” and to the time of “service”. The Committee asked the Department to explain the intended difference in meaning between these expressions. In its memorandum, the Department acknowledges that no difference of meaning is intended and undertakes to ensure consistency in future instruments. The Committee accordingly reports article 13 for defective drafting, acknowledged by the Department.
2.7The Committee also asked the Department to confirm that to make grammatical sense of article 4(7)(b)(iii), the word “which” in the chapeau to article 4(7)(b) should be “if” (with appropriate consequential amendments to other paragraphs). In its memorandum, the Department acknowledges the defect and undertakes to ensure that such errors do not arise in future. The Committee accordingly reports article 4(7)(b)(iii) for defective drafting, acknowledged by the Department.
3.1The Committee draws the special attention of both Houses to this Order on the ground that the Explanatory Memorandum is deficient in one respect.
3.2This Order, which is subject to the negative resolution procedure, amends Schedule 3 to the British Nationality Act 1981 to add the Maldives to the list of countries whose citizens are Commonwealth citizens. The Explanatory Memorandum does not include a statement that the Order is compatible with Convention rights; it states at paragraph 5.1 that “no statement is required” because “the instrument . . . does not amend primary legislation”, which is not the case. The Committee asked the Home Office to explain. In a memorandum printed at Appendix 3, the Department agrees that a compatibility statement ought to have been included and notes that a revised Explanatory Memorandum has now been laid and published. The Committee accordingly reports paragraph 5.1 of the Explanatory Memorandum to this instrument for deficiency, acknowledged by the Department.
4.1The 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.
4.2These Regulations, which are subject to the negative resolution procedure, amend several pieces of procurement legislation to give effect to the United Kingdom’s obligations under the Agreement on Government Procurement (the “GPA”).
4.3Several of the regulations refer to the United Kingdom’s Appendix 1 to the GPA and its Annexes. Regulation 2(4), for example, inserts a new legal obligation that applies to a contracting authority that is “covered by Annexes 1 or 2 to [the Appendix] in respect of a procurement that is covered by Annexes 4 to 7 to that Appendix”. Given that the content of the Appendix is necessary to understand the effect of the provisions that cite it, the Committee asked the Cabinet Office to identify the location where it can be accessed. In a helpful memorandum printed at Appendix 4, the Department explains that at the date of laying this instrument, the Appendix was in the process of being updated. The updated version is now in force and will be laid as a Command Paper, and the location will be included in the six instruments amended by these Regulations. In the meantime, the Department provides a link to the updated Appendix and related information for contracting authorities. The Committee accordingly reports the Regulations for requiring elucidation, provided in the Department’s memorandum.
4.4Regulation 3 amends the Concession Contracts Regulations 2016 (S.I. 2016/273); regulation 6 amends the Utilities Contracts (Scotland) Regulations 2016 (S.S.I. 2016/49); and regulation 7 amends the Concession Contracts (Scotland) Regulations 2016 (S.S.I. 2016/65). Regulations 3(4), 6(6) and 7(4) replace the definition of “relevant time” in each of those instruments. The Committee noticed that the inserted definitions differ from the definitions they replace: in regulations 3(4) and 7(4), the inserted definitions refer to different parties and different elements of the procurement process from those in the amended instruments; regulation 6(6) inserts an entirely new definition (like that in the Utilities Contracts Regulations 2016 (S.I. 2016/274)). The Committee asked the Department to explain the discrepancies. In its memorandum, the Department explains that regulation 6(6) intentionally creates consistency between the Scottish and UK instruments but acknowledges that the definitions inserted by regulations 3(4) and 7(4) are wrong and undertakes to correct them. The Committee accordingly reports regulations 3(4) and 7(4) for defective drafting, acknowledged by the Department.