Instruments reported
At its meeting on 27 October 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 five 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. 2021/592: Reported for defective drafting
Merchant Shipping (Cargo Ship) (Bilge Alarm) Regulations 2021
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
1.2These Regulations, which are subject to the negative resolution procedure, implement recommendations made to prevent the flooding and foundering of cargo ships. Regulation 4(1) requires a ship to have, at its “effective date”, bilge water level detectors installed in specified locations. For a “new ship”, defined at paragraph (6) as “a ship the keel of which is laid, or which is at a similar stage of construction, on or after the date on which these Regulations come into force” (i.e., 30 June 2021), the effective date is 30 June 2021. The Committee asked the Department for Transport to explain what the requirement would mean for a ship constructed entirely after that date. In a memorandum printed at Appendix 1, the Department explains that the policy intent was to require any ship constructed after 30 June 2021 to have bilge water level detectors installed during construction. It acknowledges that the drafting does not achieve this intent and undertakes to correct the error when a suitable opportunity arises. The Committee notes that the significance of this error is such as to render this aspect of the regulations entirely nugatory in relation to ships constructed after 30 June 2021, and it trusts that the Department will therefore expedite the amendment (and will not in the meantime attempt to enforce the defective regulations in relation to this aspect of the policy). The Committee accordingly reports regulation 4(6) for defective drafting, acknowledged by the Department.
2S.I. 2021/701: Reported for prescribing the amount of payments to be made to a public authority in consideration of a licence
Gambling (Operating Licence and Single-Machine Permit Fees) (Amendment) Regulations 2021
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they prescribe the amount of payments to be made to a public authority in consideration of a licence.
2.2These Regulations, which are subject to the negative resolution procedure, prescribe fees to be paid to the Gambling Commission in consideration of operating licences and supply and maintenance permits. Many of the new fees are significantly higher than those they replace, with increases of up to 72%. The Explanatory Memorandum explains in some detail why the large headline percentage uplifts are necessary to enable the Gambling Commission to respond to new risks, recover its increasing regulatory costs and address areas for improvement identified by the National Audit Office and Parliamentary Accounts Committee. It notes that, notwithstanding the increases, the fees will still represent only 0.22%, on average, of the sector’s gross gambling yield. The Committee reports these Regulations on the basis that they represent a significant increase in fees, and that the two Houses will therefore wish to have their attention drawn to the explanations provided in the Explanatory Memorandum. (The memorandum from the Department for Digital, Culture, Media and Sport, printed at Appendix 2, confirms that the Department does not wish to add to the explanation in the Explanatory Memorandum.)
3S.I. 2021/762: Reported for defective drafting
Offensive Weapons Act 2019 (Commencement No2) (England and Wales) Regulations 2021
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 any parliamentary procedure, commence provisions of the Offensive Weapons Act 2019 that permit the making and enforcement of Knife Crime Prevention Orders (“KCPOs”). Regulation 2(1) commences provisions that confer power on the courts to make and modify KCPOs, in relation to London’s metropolitan police district (“MPD”) only. Regulation 2(2) commences provisions that enable enforcement, in relation to all of England and Wales. The Committee observed that the latter group included sections 21 to 23 of the Act (which identify what restrictions and requirements a KCPO can impose, impose obligations relating to KCPOs on specified persons, and make provision as to how long KCPOs have effect), as well as some but not all of the provisions that cross-refer to those sections. It asked the Home Office to explain why sections 26(6) and 27(8) and (9) are not commenced in relation to England and Wales (cf. sections 14(8), 17(5) and (6), 18(7) and 19(6)). In a memorandum printed at Appendix 3, the Department explains that sections 21 to 23, and relevant cross-references in the sections that confer power to make KCPOs or interim KCPOs, were commenced throughout England and Wales “to ensure that there could be no doubt as to the enforceability of a measure imposed in a KCPO made by a court in the MPD by a police force outside the MPD”. It asserts that because the modification of a KCPO or interim KCPO under section 27 does not result in it being superseded by a new class of order, “the original order will continue to be enforceable throughout England and Wales in its modified form” and the wider commencement of sections 14(8), 17(5) and (6), 18(7) and 19(6) is sufficient to avoid any doubt as to enforceability of the modified order. The Committee disagrees. Sections 26(6) and 27(8) and (9), taken together, expressly provide that where a new requirement or prohibition is imposed as a result of a KCPO being modified, sections 21 to 23 have effect in relation to the modification of the order “as they have effect in relation to the making” of it. The Act itself therefore distinguishes between the requirements or prohibitions in the original order and those imposed as a result of modification. If cross-references to sections 21 to 23 are deemed necessary in the Act in relation to this type of modification, and if the Department is correct to say that the original order may not be enforceable outside the MPD without wider commencement of cross-references to those sections, it follows that sections 26(6) and 27(7) and (8) should also have been commenced in relation to the whole of England and Wales to put beyond doubt the enforceability of requirements or prohibitions added as a result of modification. The Committee accordingly reports regulation 2(2) for defective drafting.
4S.I. 2021/773: Reported for unusual or unexpected use of enabling powers
Competition Act 1998 (Coronavirus) (Public Policy Exclusions) (Revocations) Order 2021
4.1The Committee draws the special attention of both Houses to this Order on the ground that it makes unusual or unexpected use of the enabling powers in one respect.
4.2This Order, which is subject to the negative resolution procedure, revokes several instruments made in response to the coronavirus pandemic. It was made on 24 June 2021. Article 1(d) revokes S.I. 2020/1568, which ceased to have effect on 31 March 2021 by operation of an express expiry provision. Paragraph 7.7 of the Explanatory Memorandum asserts that this revocation was done “for completeness”. The Committee asked the Department for Business, Energy and Industrial Strategy whether it had anything to add to that assertion. In a memorandum printed at Appendix 4, the Department acknowledges that revoking an expired instrument is unnecessary, whether generally or “for completeness”, and apologises for the oversight. Although in some circumstances a revocation for the sake of clarity or completeness may be helpful, in this case it adds a confusing element to an already complicated statute book (to say nothing of the undesirability of including in a negative resolution instrument a provision the annulment of which would be entirely nugatory). The Committee accordingly reports article 1(d) for making unusual or unexpected use of the enabling powers, acknowledged by the Department.
5S.I. 2021/855: Reported for defective drafting and for requiring elucidation
Civil Procedure (Amendment No. 4) Rules 2021
5.1The Committee draws the special attention of both Houses to these Rules on the grounds that they are defectively drafted in two respects and require elucidation in one respect.
5.2These Regulations, which are subject to the negative resolution procedure, amend the Civil Procedure Rules 1998 (S.I. 1998/3132).
5.3The amendments include inserting a definition for “tape recorded”. This states that tape recorded, tape recording and tape recorders include recording by the use or means of any other instrument or device. The Explanatory Memorandum explains that the definition is inserted so as to cover any form of recording in court, particularly digital means of recording (paragraph 7.2). As there is no reference to tape recording or tape recorders in the 1998 Rules and the only reference to “tape recording” states that hearings will be “tape recorded or digitally recorded” (rule 39.9(1)), the Committee asked the Ministry of Justice to explain the superfluous definition. In a memorandum printed at Appendix 5, the Department explains that the definition is to aid understanding of related Practice Directions and that in future some provisions within the Practice Directions may be moved to the Rules. The Department explains that “it is possible that this may include provisions about recording” and if this happens, there would be direct benefit from the new definition. Including unnecessary definitions in case new material is later added that attracts them is confusing for readers: if a later instrument transfers material from the Practice Directions that includes these terms, that will be the time to define them. The Committee reminds the Ministry of Justice that Rules of Court are statutory instruments and must be drafted with the same precision, and according to the same standards, as any other subordinate legislation. Those standards preclude the inclusion of inert text as a contingency in case it comes to acquire meaning as a result of later amendment. The Committee accordingly reports rule 3(b) for defective drafting.
5.4Rule 9 inserts words into three places in the Rules. The end result is that the applicant may apply for permission to appeal “at the hearing at which the decision to be appealed was made or any adjournment of that hearing” (rule 52.3(2)(a)) and that the appellant and respondent notices must be filed within such a period as may be directed “at the hearing at which the decision to be appealed was made or any adjournment of that hearing” (rules 52.12 and 52.13). The Committee asked the Department to explain whether words were missing before “any adjournment of that hearing” to indicate how the provision would function in practice where the adjournment was made on the papers and not at a hearing. In its memorandum, the Department explains that the intention was for the words to clarify that an application for permission to appeal can be considered at an adjourned hearing and that this is to clarify what the Court of Appeal held to be implicit in McDonald v Rose [2019] EWCA Civ 4. The words used simply do not mean what the Department asserts, and the Committee accordingly reports rule 9(1), (2) and (3) for defective drafting.
5.5Rule 12 inserts new wording in relation to notices for eviction so as to provide for a shorter notice period where “full execution” has not taken place. The Committee asked the Department to explain the practical application of partial execution in this context. In its memorandum, the Department explains that this is to provide for situations where for example a court has stayed a writ or warrant of execution in relation to part because of an argument raised by an occupier which did not relate to the remainder. The Committee is unclear how the new notice will come to the attention of a former occupier, as it is delivered to the premises. Accordingly, the Committee reports rule 12 for requiring elucidation.
Published: 29 October 2021 Site information Accessibility statement