At its meeting on 7 July 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 require elucidation in one respect.
1.2These Regulations, which are subject to the negative resolution procedure, revoke legislation relating to the European School Culham. The sifting statement and paragraph 2.5 of the Explanatory Memorandum state that this instrument removes redundant legislation which ceased to be needed on 31 August 2017. This being the case, the Committee was curious as to why the regulations, having been made so long after the revoked legislation ceased to be required, are further delayed as to their commencement by more than three months. The Committee asked the Department for Education to explain. In a helpful memorandum printed at Appendix 1, the Department explains that 1 September 2021 was chosen as the commencement date because under Article 125 of the Agreement on the Withdrawal of the United Kingdom from the European Union, the United Kingdom is bound by the Convention defining the Statute of the European Schools until the end of the school year that is current at the end of the transition period. The Department felt that it would not be within the spirit of that agreement to commence the instrument before 31 August 2021. The Committee accordingly reports regulation 1 for requiring elucidation, provided by the Department’s memorandum.
2.1The 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.
2.2These Regulations, which are subject to the negative resolution procedure, amend two forms required to be provided when giving notice of intention to seek possession of a dwelling house let on an assured tenancy, an assured agricultural occupancy or an assured shorthold tenancy. The changes to the forms, contained in the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015, are made as a consequence of changes to the length of notice required to be provided to the tenant by the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No.2) Regulations (S.I. 2021/564). As this instrument was laid in breach of the 21-day rule, the Committee asked the Ministry of Housing, Communities and Local Government to explain why this instrument could not have been either made earlier or laid before Parliament one day earlier to ensure compliance with the rule. In a memorandum printed at Appendix 2, the Department explains that this instrument was required to be synchronised with S.I. 2021/564. The report on that instrument records a concession by the Department that it would have been possible to lay it one day earlier. The Committee therefore concludes that it would have been possible to lay this instrument also one day earlier and accordingly reports these Regulations for failure to comply with proper legislative practice.
3.1The 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.
3.2These Regulations, which are subject to the negative resolution procedure, amend Schedule 29 to the Coronavirus Act 2020 which deals with protection from eviction for residential tenancies. The instrument was made on 11 May 2021, laid the next day and came into force on 31 May 2021. The Committee asked the Ministry of Housing, Communities and Local Government to explain why it was considered that avoiding making and laying the instrument when Parliament was prorogued was more important than complying with the 21-day rule and, in any event, why it was not possible to lay the instrument on the day that it was made. In a memorandum printed at Appendix 3, the Department explains that it took the view that the instrument should not be laid before Parliament had been formally informed of the policy. The Department also asserts that, although it was possible to lay the instrument on the day that it was made, this may have caused confusion with measures announced in the Queen’s speech. The Committee is not convinced. Publicising actual changes of legislation is different from making pure policy announcements (as to which, as the Department notes, Parliament should be informed first). Instruments should always be laid as soon as possible (for the accessibility reasons noted in the Committee’s First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation at paragraph 2.8). In particular, laying should wherever possible take place in time to satisfy the 21-day rule, and as the Government’s publication Statutory Instrument Practice (5th Edition, November 2017) notes, that should happen “irrespective of whether Parliament is sitting or not”. Where the 21-day rule cannot be satisfied, the interval between laying and commencement should be made as long as possible. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.
4.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in three respects.
4.2This Order, which is subject to the negative resolution procedure, temporarily extended the area of St Ives Harbour for the purposes of the G7 summit. This included giving the harbour authority power to give directions in relation to the extended harbour area. The procedure for giving, amending or revoking general directions in article 7 included the requirement to consult for a period of not less than six weeks, place a notice on display for a minimum of six weeks and included four references to time periods of 28 days and 12 weeks. As the Order was only in force for a period of 9 days, the Committee asked the Marine Management Organisation to explain. In a memorandum printed at Appendix 4, the Department acknowledges that the provisions identified by the Committee would have no practical purpose given the limited period for which this instrument had effect and explains that it had proposed an alternative form of drafting which had been rejected by the applicant harbour authority. The Committee has noted frequently that provisions that cannot possibly have any practical effect should not be included in legislation. The Committee accordingly reports article 7 for defective drafting, acknowledged in part by the Department.
4.3Article 2(1) defines “vessel” as including, amongst others, a “ship”, a “seaplane on the surface of the water” and a “hovercraft”. As the enabling Act defines “ship” as including both seaplanes on the surface of the water and hovercraft, the Committee asked the Department to explain why they were included within the definition of vessel. The Department acknowledges that neither were required (having regard to section 11 of the Interpretation Act 1978) but explains they were included to assist the reader. The Committee disagrees with the practice of including definitions within the instrument where these are already defined within the enabling Act, particularly where the practice is inconsistent and some definitions used in the instrument require the reader to refer to the enabling Act (in this case “ship”). Where it would assist the reader to point out that an expression is defined in the enabling Act, this could be done by way of a footnote (Statutory Instrument Practice paragraph 3.12.3). The Committee accordingly reports article 2(1) for defective drafting.
4.4Article 15 includes a saving provision and article 15(4) states that nothing in that article prejudices the operation of sections 15 to 17 of the Interpretation Act 1978. The Committee asked the Department firstly to explain what article 15 achieved that is not already achieved by section 16 of the Interpretation Act 1978 and, secondly, why a reference is made to sections 15 and 17 of the 1978 Act. (Section 15 provides that where an Act repeals an enactment, the repeal does not revive any enactment previously repealed unless words are added reviving it and section 17 deals with repeals and re-enactments, neither of which are relevant to this Order.) The Department confirms that article 15 was not necessary and the Committee accordingly reports article 15 for defective drafting, acknowledged by the Department.