Instruments reported
At its meeting on 15 September 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.
1S.I. 2021/534: Reported for defective drafting, for failure to comply with proper legislative practice and for requiring elucidation
Air Navigation (Carbon Offsetting and Reduction Scheme for International Aviation) Order 2021
1.1The Committee draws the special attention of both Houses to this Order on the grounds that it is defectively drafted in seven respects, fails to comply with proper legislative practice in one respect, and requires elucidation in one respect.
1.2This Order, which is subject to the negative resolution procedure, implements the Carbon Offsetting and Reduction Scheme for International Aviation (“the CORSIA”) set out in Volume IV of Annex 16 to the 1944 Chicago Convention on International Civil Aviation.
1.3Article 26(1) requires an aeroplane operator to notify the Regulator of any proposals for modification of its Emissions Monitoring Plan. Article 27(1) permits a Regulator to allow an aeroplane operator to notify modifications of the Emissions Monitoring Plan that are not significant. The Committee asked the Department for Transport to explain the intended difference between these two provisions and how they are intended to relate to each other in practice. In a memorandum printed at Appendix 1, the Department asserts that article 26(1) requires modifications to be submitted for approval whereas article 27(1) confers discretion on the Regulator to allow non-significant modifications, such as rectifying typographical errors and “changes analogous to those changes to a statutory instrument which can be effected by a correction slip”, simply to be notified rather than also requiring to be approved. While the Committee finds this explanation interesting, the provisions do not achieve the intended policy result: as drafted, the discretion in article 27(1) is superfluous to the obligation in article 26(1), since all modifications must be notified to the Regulator. It is not made clear that the purpose of the discretion is to dispense with a requirement for approval. The Committee accordingly reports article 27 for defective drafting.
1.4Article 37(7) imposes an obligation to use data provided by the International Civil Aviation Organisation to calculate total sectoral CO2 emissions and “the Sectoral Growth Factor” where the Regulator does not provide an annual aggregated Emissions Report by the appropriate deadline. The Committee asked the Department to explain who is intended to be subject to that obligation and where “Sectoral Growth Factor” is defined. In its memorandum, the Department acknowledges that article 37(7) was included in error as it purports to transpose an obligation imposed by the CORSIA on an international body; it undertakes to correct the error in an amending Order. The Committee accordingly reports article 37(7) for defective drafting, acknowledged by the Department.
1.5Part 5 of the Order provides for compliance with its obligations to be monitored by the Regulator. Article 45(1) allows the Regulator to delegate any of its powers under Part 5 to an “authorised person”, and article 47(1) confers powers of entry on a Regulator or an authorised person acting under a warrant issued under article 48. Article 48(1), however, merely confers power on a judge to “by warrant authorise a Regulator to designate an authorised person to exercise the power in article 47(1)(a)”. It appeared to the Committee that this unnecessarily duplicates article 45(1) while also not conferring power on the judge to issue a warrant allowing the Regulator to exercise the power of entry directly. It asked the Department to explain. In its memorandum, the Department acknowledges that article 48(1) does not achieve the intended policy intent and undertakes to correct it. The Committee accordingly reports article 48(1) for defective drafting, acknowledged by the Department.
1.6Article 65(1)(b) provides for the right to appeal notices given by the Regulator under specified provisions. Article 65(2)(e) specifies a notice given under article 26(2) as one that may be appealed, and article 67(2)(c) provides that bringing an appeal does not suspend the effect of a notice under that article. Given that article 26(2) imposes an obligation on aeroplane operators and makes no reference to a notice given by the Regulator, the Committee asked the Department to explain its inclusion in articles 65(2)(e) and 67(2)(c). In its memorandum, the Department acknowledges that this was done in error (the appeal would lie against a decision of the Regulator under article 27(2)) and undertakes to make appropriate amendments. The Committee accordingly reports articles 65(2)(e) and 67(2)(c) for defective drafting, acknowledged by the Department.
1.7Schedule 1 transposes into domestic law Appendix 1 of Annex 16, Volume IV, which sets out in table form the deadlines by which parties must comply with the obligations imposed by the CORSIA. Paragraph 1(2) to (6) provides that “aeroplane operators and Regulators must comply with the requirements according to the timeline” in each table. The Committee noticed, however, that several of the requirements listed in the timelines are imposed on the Secretary of State, and that corresponding paragraphs of the Appendix require compliance by “aeroplane operators and States”. The Committee asked the Department to explain the omission. In its memorandum, the Department acknowledges that the omission is in error and undertakes to correct it. The Committee accordingly reports paragraph 1(2) to (6) of Schedule 1 for defective drafting, acknowledged by the Department.
1.8Schedules 7 and 8 set out the procedure for appeals before the Scottish Land Court and the Planning Appeals Commission (Northern Ireland). Paragraph 2 of each Schedule provides for the deadline by which an appeal must be made: in Scotland, “the appropriate form must be sent … before the expiry of the period of 28 days beginning with the date of the decision”; in Northern Ireland, “a notice of appeal … must be given before the expiry of the period of 47 days beginning with the date on which the decision of the Regulator takes effect”. The Committee asked the Department to explain how these deadlines will be calculated where an appeal is made in relation to a notice under the provisions listed in article 65(2), and how the appellant will be aware of “the date of the decision” or “the date on which the decision of the Regulator takes effect”. In its memorandum, the Department asserts that these dates “are indicated in the provisions referred to in article 65(2)” and that they include, inter alia, “the expiry of a specified time period (deemed withdrawal of application), specific notices (information notices, penalty notices) … and the date of issue of plans or conditions applicable to plans”. It states: “A notice which provides a decision provides a definite and fair point in time on which to base the date on which the decision takes effect.” While the Committee agrees with this statement as a matter of principle, it remains concerned that the relevant paragraphs are not sufficiently clear for the purposes of the civil right of appeal. The Committee does not agree that either the date of the Regulator’s decision or the date that decision takes effect is necessarily clear from the provisions specified in article 65(2) (and it is not clear that these are necessarily the same date). Article 24(3), for example, merely provides that an Emissions Monitoring Plan may include any conditions the Regulator considers necessary to give proper effect to the requirements of the Order; it is left to be inferred, and nowhere expressly stated, that here “the date of the decision” (or the date the decision takes effect) is the date of the notice that contains the relevant conditions. Under articles 31(2) and 33(1), the Regulator is required first to decide a matter or calculate a figure and separately to inform the aeroplane operator of its decision or the figure it has calculated; the drafting of these provisions suggests that the date of the decision or calculation and the date the operator is informed of it may be different. Articles 50(1), 52(1) and 53(2) and (6) allow the Regulator to give an information notice, an enforcement notice or a civil penalty notice on a person, each of which must include a deadline for compliance; it is not clear whether the “date the decision takes effect” is the date of the notice or the date of the deadline for compliance with it. While it may be possible to infer what the deadlines are in practice by reference to the notices actually given by the Regulator, the Committee considers that deadlines for the exercise of fundamental civil rights should be clear and unambiguous. It would have been preferable for the deadlines in Schedules 7 and 8 to be expressed by reference to the date of the relevant notice for appeals made under article 65(1)(b). The Committee accordingly reports paragraph 2 of Schedule 7 and paragraph 2 of Schedule 8 for defective drafting.
1.9The preamble recites that the Order was made with the consent of the Treasury, as required by the enabling Act. The Committee asked the Department to explain why that consent was not also included in the signature block. In its memorandum, the Department explains that while the Treasury’s consent would usually be reflected in a signature, the Department followed the precedent set by the Air Navigation Order 2016. The Committee reiterates the comments it made in its Fourth Report of Session 2021–22, in relation to S.I. 2021/486: inconsistency among different instruments as to whether the precondition of consent by a separate Department is both recited in the preamble and reflected by signature is an unnecessary and unhelpful source of confusion, and the Committee expects the Government to be consistent in following its own practice as set out in paragraph 3.20 of Statutory Instrument Practice. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.
1.10Article 28(3) of and paragraph 4(3) and (7) of Schedule 4 to the Order refer to “the relevant aeroplane operator documentation” in relation to obligations on the aeroplane operator to determine fuel density values to calculate fuel mass. The Committee asked the Department to explain what this was intended to refer to. In its memorandum, the Department explains that this is intended to cover any documentation that the aeroplane operator holds which is relevant to establishing fuel density; it lists several examples. The Committee accordingly reports article 28(3) and paragraph 4(3) and (7) of Schedule 4 for requiring elucidation, provided in the Department’s memorandum.
1.11The Committee also asked the Department to confirm whether, in Schedule 6, cross-references in paragraphs 2(8) and (9) and 3(23) are incorrect. In its memorandum, the Department acknowledges that they are and undertakes to correct them. The Committee accordingly reports paragraphs 2(8) and (9) and 3(23) of Schedule 6 for defective drafting, acknowledged by the Department.
2S.I. 2021/619: Reported for defective drafting
Agricultural Holdings (Requests for Landlord’s Consent or Variation of Terms and the Suitability Test) (England) Regulations 2021
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, establish a new dispute resolution procedure in relation to a tenant’s request for the landlord’s consent to an activity that is restricted by the terms of their agricultural holding tenancy agreement, or to a variation of the terms. The purpose of the consent is to enable the tenant to apply for new financial assistance schemes or to meet a statutory obligation.
2.3The procedure requires the tenant to provide the landlord with notice setting out certain information, including details of the request being made. After a certain period, the tenant may refer the matter to an arbitrator or a third party. Regulation 3(7) states that the arbitrator or third party may modify the tenant’s notice “if necessary and justified to do so taking into consideration all the relevant circumstances”. The Committee asked the Department for Environment, Food and Rural Affairs to explain the purpose of the power to modify the notice given that the notice appears to be a preliminary step pre-dating the involvement of the arbitrator or third party and what criteria would be applied in determining whether the modification is necessary or justified.
2.4In a memorandum printed at Appendix 2, the Department explains that whilst the arbitrator or third party is not bound to only consider the request but may make “such other award or determination as the arbitrator or third party considers reasonable and just” (regulation 4(1)), the power to modify the notice was included following consultation and is intended to deal with situations where the notice is not, or no longer, accurate and ought to be amended to reflect what the arbitrator or third party is being asked to consider. The purpose is to avoid wasted costs and time. The Committee considers that the policy intention of restricting the power to circumstances where the notice requires amending at the tenant’s request due to a lack of accuracy should have been incorporated into the provision. Given that the award or determination may include conditions restricting the tenant’s ability to make any subsequent reference to arbitration or third party determination in respect of the same request and in relation to the same tenancy (regulation 4(2)(c)), it is particularly important that the regulations provide clarity as to the intended parameters of the power to modify the notice The Committee accordingly reports regulation 3(7) for defective drafting.
3S.I. 2021/681: Reported for requiring elucidation
Official Controls (Temporary Measures) (Coronavirus (Amendment) (No. 2) Regulations 2021
3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
3.2These Regulations, which are subject to the negative resolution procedure, extend the period during which the competent authorities responsible for sanitary and phytosanitary controls in England, Scotland and Wales may enact or maintain temporary measures in response to the coronavirus pandemic. They are made by the Secretary of State with consent from the Scottish Ministers and the Welsh Ministers, as required by Article 3(2B) of EUR 2017/625. That consent is recited in the preamble but not reflected in the signature block. The Committee asked the Department for Environment, Food and Rural Affairs to explain the omission (having regard to the paragraphs relating to S.I. 2021/486 in its Fourth Report of Session 2021–22). In a memorandum printed at Appendix 3, the Department explains that in its view, the statement in Statutory Instrument Practice that approval from Senedd Cymru should only be recited in the preamble and not indicated by signature applies to all the devolved administrations (on the basis that the reference to Senedd Cymru is a reference to the devolved executive—now the Welsh Ministers—rather than to the devolved legislature). The Department acknowledges, however, that Government practice in this regard has been inconsistent; it asserts that steps will be taken across the Government Legal Department to introduce a more consistent approach and clarify Statutory Instrument Practice on this point. The Committee welcomes the undertaking and accordingly reports these Regulations for requiring elucidation, provided in the Department’s memorandum.
4S.I. 2021/766: Reported for purporting to have retrospective effect without express authority and for requiring elucidation
Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (No. 4) Regulations 2021
4.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they purport to give retrospective effect in one respect and require elucidation in one respect.
4.2These Regulations, which are subject to the negative resolution procedure, amend the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 (S.I. 2021/582). Regulation 16(1) states that any amendment does not apply to a person who arrived in England before that amendment came into force. The exceptions to this include regulations 7 and 14.
4.3Regulation 7 removes the requirement for an operator to ensure a passenger has completed a passenger locator form and has notification of a negative test if the passenger falls within certain categories (extradition, prisoner repatriation or deportation). The Committee asked the Department for Transport to explain why this provision was made retrospective. In a memorandum printed at Appendix 4, the Department explains that it was not the policy intention for operators to incur liability in these cases and whilst no enforcement action has been taken against operators for bringing such persons to England, the Department acknowledged a potential retrospective effect. Subordinate legislation can lawfully have retrospective effect only if the enabling power provides for it expressly or by necessary implication. In this case, if there is no practical effect of making the provision retrospective then the retrospection is unnecessary, while if it will or may have practical effect it is improper. In the absence of an identified power to make regulation 7 have retrospective effect the Committee reports regulation 16(1) on the ground that it purports to give regulation 7 retrospective effect where the parent statute confers no express authority so to provide.
4.4Regulation 14 substitutes the onboard announcement message. The Committee asked the Department to explain why regulation 14 was expressly excluded from regulation 16(1), which states that the amendment does not apply in relation to a person who arrived in England before the amendment came into force. In its memorandum, the Department explains that “the desired effect is instead provided by regulation 16(2), which states that the amendment made by regulation 14 does not apply in relation to any passenger on a conveyance that departed for England before its coming into force”. Whilst the Committee considers that a natural conclusion in this instance is for the latter category to encompass those that have arrived in England, the Committee considers that it would have been clearer to not exclude regulation 14 from the general stipulation in regulation 16(1). In this instance the Committee reports regulation 16(1) for requiring elucidation.
Published: 17 September 2021 Site information Accessibility statement