At its meeting on 3 November 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.
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 not subject to Parliamentary procedure, bring into force provisions of Schedule 18 to the Finance Act 2021 related to value added tax and distance selling. The Committee asked Her Majesty’s Revenue and Customs (on behalf of HM Treasury) to confirm whether regulation 7 is intended to refer to the expiry of the transitory provisions in regulations 5 and 6 (which modify references related to Import One Stop Shop) rather than the expiry of modifications made by regulation 8 and regulation 9 (which does not exist). In a memorandum printed at Appendix 1, the Department gives the required confirmation and apologises for the error. (The Department explains that regulations 5, 6 and 7 are revoked by regulation 35 of the Value Added Tax (Distance Selling and Miscellaneous Amendments) Regulations 2021 which will come into force on 1st December 2021.) The Committee accordingly reports regulation 7 for defective drafting, acknowledged by the Department.
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
2.2These Regulations, which are subject to the negative resolution procedure, permit civil marriage and civil partnership proceedings to take place outdoors in “linked outdoor areas”. Schedule 1 (paragraph 2 of inserted Schedule 2B) and Schedule 2 (paragraph 2 of inserted Schedule 2C) state that one of the conditions to be attached to the grant of approval must be that the location within the linked outdoor areas at which proceedings take place must be “identifiable by description”. (A notice must be displayed at each public entrance to the premises including a description of, and directions to, the location within the linked outdoor area at which proceedings are to take place, in order to allow public access.) The Committee could not understand how any area could not be “identifiable by description” and asked the Ministry of Justice to explain. In a memorandum printed at Appendix 2, the Department explains how it intends these provisions to work and, in particular, what it had in mind by requiring areas to be “identifiable by description”. Although the objection remains that any area is technically capable of being described, the Committee finds the explanation in the Department’s memorandum helpful in explaining the legislative intention, and on that basis is content to report Schedule 1 (paragraph 2 of inserted Schedule 2B) and Schedule 2 (paragraph 2 of inserted Schedule 2C) for requiring elucidation, provided by the Department.
3.1The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted in one respect and require elucidation in one respect.
3.2These Regulations, which are subject to the negative resolution procedure, amend the Criminal Procedure Rules 2020 (S.I. 2020/759).
3.3Rule 3(a)(i) inserts wording so that temporary amendments made to certain rules cease to have effect when paragraph 6 of Schedule 8 to the Coronavirus Act 2020 expires “or is repealed”. As that provision expired on 10 December 2020 by virtue of regulation 2(1) of S.I. 2020/1467, the Committee asked the Ministry of Justice to explain why the amendment was made. In a memorandum printed at Appendix 3, the Department asserts that this was to avoid misleading readers of the Rules about the significance, if any, of the difference between the amended paragraph and the paragraph below it. Inserting amendments into a provision that no longer has effect simply for cosmetic parity with another provision can only be a source of confusion and is not good legislative practice. The Committee accordingly reports rule 3(a)(i) for defective drafting.
3.4Rule 5(c) inserts new rules regarding access to information in court records. New rule 5.7 imposes duties on court officers and courts in addition to “furthering the overriding objective in accordance with rules 1.2 and 1.3”. Rule 1.2 applies to “participants” in a criminal case. In the context, the Committee thought the reference to rule 1.2 surprising and asked the Department whether the reference should instead have been to rule 1.1, which particularises the overriding objective. In its memorandum, the Department confirms that court officers are to be treated as “participants”. The Committee considers this slightly counter-intuitive but is grateful for the clarification of the legislative intention and the Committee accordingly reports new rule 5.7(1), as inserted by rule 5(c), for requiring elucidation, provided by the Department.
3.5The Department’s memorandum also clarifies the meaning of the phrase “to such extent” in the context of serving a request for information.
4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
4.2These Regulations, which are subject to the negative resolution procedure, amend the elite sports exemption in paragraph 44 of Schedule 4 of the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021. The Committee asked the Department of Health and Social Care to confirm where the words inserted by regulation 2(2)(a)(ii) should be inserted given that the words “involved in the specified competition” do not appear in the paragraphs being amended. In a memorandum printed at Appendix 4, the Department confirms that, as a result of an error, the quoted words do not appear in any of the three specified paragraphs and that the references should have been to the phrase “involved in that elite sports event” in each case. The Department undertakes to correct this error as soon as possible. The Committee accordingly reports regulation 2(2)(a)(ii) for defective drafting, acknowledged by the Department.
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in two respects.
5.2These Regulations, which are subject to the made affirmative resolution procedure, amend the Corporate Insolvency and Governance Act 2020 by extending, for a further limited period, restrictions on company winding-up proceedings (intended to help protect companies from insolvency during the coronavirus pandemic).
5.3The same amendments had previously been made by S.I. 2021/1029, but a drafting error in that instrument meant there would be a brief period during which, contrary to the policy intent, no restrictions would apply. These Regulations correct the error and revoke the earlier instrument. The revocation provisions came into force at the beginning of 28 September by operation of sections 4(a) and 23(1) of the Interpretation Act 1978—before they were laid before Parliament. Consequently, section 4 of the Statutory Instruments Act 1946 requires that the Speaker and Lord Speaker be notified of this and of why it was necessary. The Committee asked the Department for Business, Energy and Industrial Strategy to confirm whether those requirements had been complied with. In a memorandum printed at Appendix 5, the Department acknowledges that they had not and apologises for the error. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice, acknowledged by the Department.
5.4Where an instrument is made to correct errors in an earlier one, it is standard practice for the new instrument to include a statement that it replaces, and is being issued free of charge to all recipients of, the earlier instrument. The Committee asked the Department to confirm that the italic rubric at the head of this instrument, which contains that statement, ought to refer to S.I. 2021/1029 rather than “the SI of the same number”. In its memorandum, the Department acknowledges the error. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice in a second respect, acknowledged by the Department.