At its meeting on 17 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 six 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 ground that it is defectively drafted in one respect.
1.2This Order, which is subject to the negative resolution procedure, amends several pieces of social security legislation to reflect the introduction, by S.S.I. 2021/174, of “child disability payment” to replace disability living allowance for children residing in Scotland. The Committee asked the Office of the Secretary of State for Scotland to confirm that the amendment made by paragraph 2(e)(iii) of Schedule 6 is defective (the text “or (iiza)” is inserted so as to create the meaningless phrase “not satisfying either sub-paragraph (i), (ii) or (iia) has provided, or (iiza)”). In a memorandum printed at Appendix 1, the Department acknowledges the error and undertakes to correct it. The Committee accordingly reports paragraph 2(e)(iii) of Schedule 6 for defective drafting, acknowledged by the Department.
1.3(The Department adds that it is taking steps to correct the error by correction slip. The Committee considers that this would be an inappropriate mechanism by which to correct an error of this kind (as reflected in the principles set out in its First Special Report of Session 2017–19: Transparency and Accountability in Subordinate Legislation). If the Department does not think the error is sufficiently significant to be amended by further legislation, it should be left in its present form for readers to draw their own conclusions.)
2.1The Committee draws the special attention of both Houses to these Rules on the grounds that there is a doubt as to whether they are intra vires in one respect and that they require elucidation in one respect.
2.2These Rules, which are subject to the negative resolution procedure, amend the Family Procedure Rules 2010. Rule 10 makes provision for the attendance at private hearings by a “duly authorised lawyer”. The term is defined as a person who meets the criteria specified in Practice Direction 27B. The Committee asked the Ministry of Justice to explain why section 76(8) of the Courts Act 2003 was not cited in the preamble as that section provides that Family Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions. In a memorandum printed at Appendix 2, the Department confirms that section 76(8) should have been cited. As the completeness of citations in preambles goes to vires since the decision of the Court of Appeal in Vibixa Ltd and Polestar Jowetts Ltd v Komori UK Ltd  EWCA Civ 536, the Committee accordingly reports rule 10(d), in so far as it relates to “duly authorised lawyer”, for doubt as to whether it is intra vires, acknowledged by the Department.
2.3Section 79(1) of the Courts Act 2003 requires the Family Procedure Rule Committee to consult such persons as they consider appropriate before making Family Procedure Rules. As paragraph 10 of the Explanatory Memorandum states that consultation did not take place in relation to some of the amendments, the Committee asked the Department to explain why the statutory duty to consult was not complied with. In its memorandum, the Department asserts that section 79(1) gives the Family Procedure Rule Committee discretion sufficient to allow them to decide not to consult and supports the assertion by reference to Parliamentary statements. The Committee does not agree. Section 79(1) is a simple duty to consult, and the discretion relates only to the choice of whom to consult. Parliamentary statements to the contrary (whether in this precise context or in cognate contexts) cannot change the simple meaning of the legislative text. The Committee accepts that the Rule Committee might be excused from the duty in the unlikely case of it being impossible to identify an appropriate consultee, but not otherwise. Since, however, it appears from the Department’s memorandum that a certain amount of informal consultation did in fact take place on this occasion, the Committee is content to report the Rules for requiring elucidation, provided by the Department.
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 until 31 December 2021 the temporary removal of the requirement for meat preparations imported from the European Economic Area into England to be deep frozen. The enabling power is the same as was relied on in relation to S.I. 2020/1666 and which was reported by the Committee in its Forty-Fourth Report of Session 2019–21. In relation to that instrument, the Committee asked the Department for Environment, Food and Rural Affairs to explain the basis on which the enabling power was relied on, given that it provides for regulations to be made that “modify or revoke any retained direct minor EU legislation made under Article 8(4) of the Council Directive 2002/99/EC” and the amendment stemmed from Council Directive 94/65/EC. The Department explained the rationale and whilst the Committee accepted that the courts are likely to be forced to the conclusion advanced by the Department, the Committee stated that it would have been helpful to readers, in light of the complexities of this case, to have explained the chain of amendments by way of footnote to the instrument. In view of that report, the Committee asked the Department to explain why this instrument had not included the chain of amendments. In a memorandum printed at Appendix 3, the Department acknowledges that a more detailed footnote would be helpful and confirms that this will be included when the power is next exercised. The Committee accordingly reports the preamble for requiring elucidation, provided by the Department.
4.1The 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.
4.2These Regulations, which are subject to the negative resolution procedure, amend four instruments to replace references to Public Health England with references to the United Kingdom Health Security Agency.
4.3Regulation 1(3) provides that an amendment made by the Regulations has the same extent and application as the provision amended. Statutory Instrument Practice states that where “it is intended that the amendments should have the same application as the instrument being amended, nothing further need or should be said” (paragraph 3.13.6). The Committee therefore asked the Department for Levelling Up, Housing and Communities to explain, having regard to the need for consistency in legislative practice, the special circumstances in which it was thought necessary to include regulation 1(3).
4.4In a memorandum printed at Appendix 4, the Department acknowledges that it was not necessary to include regulation 1(3), having regard to Statutory Instrument Practice. The Department explains that drafters have been encouraged since January 2021 to deal expressly with extent in every instrument and that having included the extent provision, it was considered helpful for non-lawyers to also address application. That may be so (and as a rule the Committee favours express provision about application where it is likely to be helpful), but the Committee expects the Government to follow its own published practice as set out in Statutory Instrument Practice consistently. (The Committee notes that the new practice of always inserting an extent provision is inconsistently applied across Departments, and even within this particular Department. Inconsistent practice can only give rise to confusion for readers and is to be deprecated.) The Committee accordingly reports regulation 1(3) for failing to comply with proper legislative practice.
5.1The Committee draws the special attention of both Houses to this Order on the grounds that it is defectively drafted in one respect and that it requires elucidation in another respect.
5.2This Order (“the amending Order”), which is subject to the negative resolution procedure, amends the scope and application of the Compulsory Electronic Monitoring Licence Condition Order 2021 (S.I. 2021/330, “the original Order”).
5.3Article 1(3)(a) of the amending Order provides that it applies to:
any person released on licence before this Order comes into force only insofar as during the period before this Order comes into force such person was required to reside on licence within a specified area listed in paragraphs 1 to 6 of Schedule 1 to [the original Order].
5.4The Committee asked the Ministry of Justice to explain when “the period before this Order comes into force” is intended to begin, and whether it is intended that the residency condition must be fulfilled for the whole of that period or only immediately before commencement. In a memorandum printed at Appendix 5, the Department asserts that article 1(3)(a) is only intended to apply where a person was required to have an electronic monitoring (“EM”) condition included in their licence immediately before commencement of the amending Order. It asserts that the period within the scope of article 1(3)(a) is between the commencement dates of the original Order and the commencement date of the amending Order, i.e., between 12 April and 29 September 2021. The Committee notes the Department’s intent, but the amending Order does not achieve it by the open reference in article 1(3)(a) to “the period before this Order comes into force” (albeit that a court might feel forced to resolve the doubt in favour of the Department’s asserted policy). The Committee accordingly reports article 1(3)(a) for defective drafting.
5.5Under article 2 of the original Order, the requirement to have an Electronic Monitoring condition included in a person’s licence only applied if they were required to reside on licence at an address in a “specified area”, which was originally defined as comprising six counties. If the person moved out of the specified area, the Electronic Monitoring condition would be lifted. Article 3 of the amending Order adds 13 counties to the definition of “specified area”. It follows that as a result of the amendment, a person could be subject to an Electronic Monitoring condition for longer where they move to one of the 13 newly specified areas. The Committee asked the Department what proportionality assessment had been carried out in relation to the impact on the that person’s rights under Article 7 of the European Convention on Human Rights of extending the duration of the compulsory Electronic Monitoring condition. In its memorandum, the Department explains that it does not consider Article 7 to be engaged as the condition has no punitive function, and the changes made by this Order are a change to the administration of the existing sentence rather than an additional or new penalty. The Committee accordingly reports article 3 as requiring elucidation, provided in the Department’s memorandum.
6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
6.2These Regulations, which are subject to the negative resolution procedure, amend the Immigration (Disposal of Property) Regulations 2008 (S.I. 2008/786) to add to the ways in which property acquired in the context of immigration enforcement may be disposed of when keeping it would be unreasonably expensive or inconvenient. In addition to being sold, such property may now be destroyed or donated to “charities or other not-for-profit bodies” (as inserted by regulation 2). The Committee asked the Home Office to explain where “not-for-profit bodies” is defined for the purposes of these Regulations. In a memorandum printed at Appendix 6, the Department asserts that it is clear within the context of the instrument, and without further definition, that not-for-profit bodies “are organisations that are not charities, whose purpose is not to make a profit, and which have a public purpose”. The Committee notes that not-for-profit or cognate expressions are used in different ways in different places in primary and subordinate legislation, and it cannot be taken for granted that any particular one of the possible definitions is sufficiently natural or intuitive to be regarded as the default meaning (in particular, there is nothing about the expression that necessarily implies a limitation to bodies with a public purpose). On that basis, a definition is always required, unless the complete meaning is beyond doubt in the context. The Committee accordingly reports regulation 2 for defective drafting.