Eighteenth Report of Session 2022–23

Instruments reported

At its meeting on 23 November 2022 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 are given below. The relevant departmental memoranda are published as appendices to this report.

1Draft S.I.: Reported for defective drafting

Trade in Animals and Related Products (Amendment and Legislative Functions) Regulations 2022

1.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in two respects.

1.2These Regulations, which are subject to the draft affirmative resolution procedure, make provision for the purpose of regulating the import of animals and animal products into Great Britain. They are made under section 8 of the European Union (Withdrawal) Act 2018 (“the 2018 Act”) for the purpose of remedying defects in retained EU law, and include provisions whose object is to retain functions conferred by EU Directives, transferring the functions from EU bodies to the appropriate UK authority. The transferred functions, as modified by the Regulations, include various regulation-making powers, and regulation 9 makes provision with respect to those powers. Regulation 9(5)(a) provides that the regulations may, amongst other things, include provision amending, repealing or revoking any enactment.

1.3In a footnote to regulation 9(5)(a), it is stated that “enactment” as used in that provision has the meaning given in the 2018 Act, and that accordingly it does not include an Act of Parliament. This suggested to the Committee that the policy intention was for the regulations not to be capable of amending provisions of Acts. It also suggested that regulation 9(5)(a) was defective, because the statement in the footnote was clearly wrong in suggesting that “enactment” as used in regulation 9(5)(a) did not include enactments contained in Acts of Parliament. The Committee accordingly asked the Department for Environment, Food and Rural Affairs to confirm its policy intention and to explain why it considers that the meaning of “enactment” in the 2018 Act excludes an enactment contained in an Act of Parliament.

1.4In a memorandum printed at Appendix 1, the Department explains that the sentence of the footnote indicating that “enactment” did not include Acts of Parliament was included in error. The Department acknowledges that the meaning of “enactment” as used in regulation 9(5)(a) includes Acts of Parliament, and indicates that the ability to amend Acts reflects the policy intention. The Committee accordingly reports the instrument for defective drafting, by virtue of including inaccurate information in the footnote to regulation 9(5)(a), acknowledged by the Department.

1.5The Regulations provide for Council Directive 2009/156/EC on animal health conditions governing the movement and importation from third countries of equidae (“the Directive”) to be treated as having effect for purposes set out in the Regulations, subject to the modifications in regulation 21. One of those modifications, made by regulation 21(3)(b), is to insert a definition of “unregistered equidae” into Article 2 of the Directive. The Committee asked the Department to explain where that term is used in the Directive and, if it is not so used, why the Directive has been modified to include the definition.

1.6In its memorandum, the Department confirms that the term “unregistered equidae” is not used in the Directive. It explains that the term was included to address confusion across the equine sector on the difference between registered and unregistered equines. The Committee’s long held view is that Departments should not include in the substantive provisions of subordinate legislation material which does not have any legislative effect, but is solely intended to provide guidance.¹ The Committee also notes that in this case the material is not expressed in a way that indicates its purpose is to give guidance, but instead it is expressly included to define the relevant term for the purposes of the Directive, when that term does not in fact appear in the Directive. The Committee accordingly reports regulation 21(3)(b) for defective drafting.

2S.I. 2022/1052 and SI 2022/1064: Reported for failure to comply with proper legislative practice

Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2022

Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2022

2.1The Committee draws the special attention of both Houses to these Orders on the ground that they fail to comply with proper legislative practice in one respect.

2.2These Orders, which are subject to the negative resolution procedure, amend the Public Interest Disclosure (Prescribed Persons) Order 2014 and relate to whistleblowing. The Committee asked the Department of Business, Energy and Industrial Strategy to explain why these two instruments came to be made in virtually identical form and, in particular, why S.I. 2022/1064 does not revoke S.I. 2022/1052 and whether both instruments were signed by the Minister.

2.3In a memorandum printed at Appendix 2, the Department explains that for procedural reasons the laying of S.I. 2022/1052 was incomplete and that the Department withdrew and re-registered it as 2022/1064. The Department asserts that the instrument did not need to be re-signed by the Minister. The Committee is clear that an instrument that has been made (and has therefore become law, whether or not law in force) cannot simply be “withdrawn” by the Department; nor can changes be made to an instrument after it is signed by the Minister even, as in this case, minor changes affecting only footnotes. Any changes to legislation, however small, must be made transparently and formally. The Committee is troubled (as it was in relation to S.I. 2022/1006, Fifteenth Report of Session 2022–23) by the degree of informality and lack of transparency involved in this case, in relation to the changes made and also in relation to suppression of the first numbered instrument which now simply forms as a gap on the National Archives’ website, leaving the reader unable to ascertain why that instrument is not published. The Committee accordingly reports these instruments for failure to comply with proper legislative practice.

3S.I. 2022/1090: Reported for defective drafting

Animals, Food, Plant Health, Plant Propagating Material and Seeds (Miscellaneous Amendments etc.) Regulations 2022

3.1The Committee draws the special attention of both Houses to these Regulation on the ground that they are defectively drafted in two respects.

3.2These Regulations, which are subject to the negative resolution procedure, amend several instruments to correct defects arising as a result of Brexit.

3.3Regulation 14 amends Commission Implementing Decision (EU) 2019/1614, which relates to the import of potatoes from two regions of Lebanon. Article 4 provides for inspections to be carried out in several stages to check for the pest that causes potato ring rot. At each stage, one or more lots is required to remain under official control and not be moved or used while visual examination or testing is being carried out. Regulation 14(5)(b) revokes that requirement for one of the intermediate stages (by revoking “the words from ‘point 1.1’ to the end” of the paragraph in which it appears). As the requirement remains in place for all other stages, the Committee asked the Department for Environment, Food and Rural Affairs to confirm whether the effect of regulation 14(5)(b) reflects the policy intent. In a memorandum printed at Appendix 3, the Department acknowledges that this revocation was done in error and undertakes to correct it at the next available opportunity. The Committee accordingly reports regulation 14(5)(b) for defective drafting, acknowledged by the Department.

3.4Regulation 14(7) revokes the requirement that labels issued under the control of a body in Lebanon must be issued “in one of the official languages of the Union”. The Committee asked the Department to explain whether it was the policy intent that, notwithstanding this revocation, such labels must be issued in English. In its memorandum, the Department acknowledges that this is the policy intent and that it is not achieved by the instrument as amended. It undertakes to correct the error at the next available opportunity. The Committee accordingly reports regulation 14(7) for defective drafting, acknowledged by the Department.

4S.I. 2022/1094: Reported for defective drafting

Railways (Penalty Fares) (Amendment) Regulations 2022

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 S.I. 2018/366 to increase the penalty fares that will apply to rail travel in England from January 2023. The new penalty fares will comprise a fixed amount of £100 (reduced to £50 if paid early) plus the price of the full single fare applicable. Paragraphs (3) and (7) of regulation 5 insert two new provisions, paragraphs (2A) and (5A), that define “the full single fare applicable” by reference to “the boarding station”. Consequently, regulation 5(4) amends the definition of “the boarding station”—“(a) the station at which the person boarded the train; or (b) where the station mentioned in sub-paragraph (a) is not known to the collector, the station at which the train last made a scheduled call”—so that it applies to new paragraph (2A). The Committee asked the Department for Transport to confirm that this definition is also intended to apply to new paragraph (5A). In a memorandum printed at Appendix 4, the Department explains that it is not. It asserts that the existing definition cannot apply to “the boarding station” for the purposes of new paragraph (5A) because when a person is in a compulsory ticket area in the circumstances in which that paragraph applies, they will not yet have boarded a train; it also asserts that the term requires no definition here because its meaning will be obvious in practice. The Committee accepts that the existing definition is not entirely apt, but it does not agree that a definition is unnecessary. Confusion must arise from the fact that the same expression is used and defined elsewhere in the same regulation and that both the difference of meaning and the meaning itself are left to be inferred for paragraph (5A). The Committee also notes that paragraph (5), which the Department acknowledges to be the model for paragraph (5A), does not use the expression “the boarding station” at all: it refers to “the station of which the compulsory ticket area forms part”—a formulation that avoids both confusion and the need for further definition (and which is the standard practice throughout the amended Regulations where referring to the station that relates to a compulsory ticket area). It would have been preferable either for regulation 5 to define “the boarding area” for the purposes of new paragraph (5A) or simply not to use the expression in that context. The Committee accordingly reports regulation 5 for defective drafting.

Instruments not reported

At its meeting on 23 November 2022 the Committee considered the instruments set out in the Annex to this Report, none of which were required to be reported to both Houses.

Annex

Instruments requiring affirmative approval

Draft instruments requiring affirmative approval

Instruments subject to annulment

Draft instruments subject to annulment

Instruments not subject to Parliamentary proceedings not laid before Parliament

Appendix 1: Memorandum from the Department for Environment, Food and Rural Affairs

Draft S.I.

Trade in Animals and Related Products (Amendments and Legislative Functions) Regulations 2022

1)The Committee has asked the Defra for a memorandum on the following points:

(1) The footnote to regulation 9(5)(a) states that “enactment” as used in that provision has the meaning given in section 20(1) of the European Union (Withdrawal) Act 2018 (“the 2018 Act”), and that accordingly it does not include an Act of Parliament.

a.Confirm that the powers conferred by regulation 9(5)(a) are therefore not intended to include the power to amend or revoke a provision of an Act of Parliament.

b.Explain why it is considered that the meaning of “enactment” in the 2018 Act excludes an enactment contained in an Act of Parliament, having regard to the fact that:

• the definition in section 20(1) is inclusive and not exhaustive;

• the natural and ordinary meaning of “enactment” includes an enactment contained in an Act of Parliament; and

• section 1B(7) of the 2018 Act explicitly refers in the full-out words to enactments contained in specific Acts of Parliament.

(2) Regulation 21(3)(b) provides for Article 2 of Directive 2009/156 to be treated for the purposes of the Regulations as including a definition of “unregistered equidae”. Explain where that term is used in the Directive. And, if the term is not so used, explain why the Directive has been modified to include the definition.

2)In respect of the first question, the second sentence of the footnote was included in error and will be omitted before the instrument is made. It is the policy intention that the drafting of this provision matches, in terms of breadth and substance, the regulation-making procedure provision of the Official Controls Regulation (EUR 2017/625) found at Article 144 of that instrument (as amended by S.I. 2020/1481) and the substantive drafting in regulation 9 of this instrument achieves this. “Enactment” has the meaning given by the European Union (Withdrawal) Act 2018 and includes Acts of Parliament.

3)In respect of the second question, the term “unregistered equidae” is not used in Directive 2009/156.

4)The term was included to address confusion across the equine sector on the difference between registered and unregistered equines. A public consultation carried out from 4th April to 28th June 2022 indicated this confusion and misunderstanding within the equine industry and public. This stems from the term’s use in health certificates which must be used by anyone wishing to import equines into Great Britain.² Whilst the EU generally sets out its model health certificates in legislation, since the end of the transition period, UK legislation makes provision for model health certificates to be published administratively.

5)Seeking to clarify the meaning of ‘unregistered equine’ only in guidance, certificates and animal health rules risks it being missed given that there are differences in what applies in relation to different equines. Inclusion in the Directive (as it applies for the purposes of the Regulations) ensures that it is in the overarching piece of legislation applicable to all importers and Official Veterinarians involved in the import of equines.

Department for Environment, Food and Rural Affairs

15 November 2022

Appendix 2: Memorandum from the Department of Business, Energy & Industrial Strategy

S.I. 2022/1052 & 2022/1064

Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2022 And

Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2022

1) The Committee has asked the Department of Business, Energy & Industrial Strategy for a memorandum on the following point:

Explain the circumstances in which these two instruments came to be made in virtually identical form and, in particular, explain why S.I. 2022/1064 does not revoke S.I. 2022/1052 and whether both instruments were signed by the Minister.

2) The minister signed SI. 2022/1052 and I emailed it to both Houses and Committees on 17th October. The Journal office informed us that evening, they had not received the email and the SI wasn’t considered as laid in both Houses. We had to withdraw & re-register it as 2022/1064 and re-laid the next day. It did not need to be re-signed by the minister.

Department of Business, Energy & Industrial Strategy

11 November 2022

Appendix 3: Memorandum from the Department for Environment, Food and Rural Affairs

S.I. 2022/1090

Animals, Food, Plant Health, Plant Propagating Material and Seeds (Miscellaneous Amendments etc.) Regulations 2022

1) The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following points:

(1) Confirm whether it reflects the policy intent that regulation 14(5)(b) removes the requirement for all lots to remain under official control and not be moved or used during testing for Clavibacter michiganensis after symptoms of the organism have been observed (by revoking the second sentence of paragraph 3 from Article 4 EUDN 2019/1614).

(2) Explain whether it is the policy intent that, notwithstanding the revocation by regulation 14(7)(b) of any language requirements, labels issued under the control of a body in Lebanon must be issued in English, and if so, how effect is given to that intention.

Response to point (1)

2) The removal of the second sentence in paragraph 3 of Article 4 of EUDN 2019/1614 was overlooked when the amending instrument was drafted.

3) The policy intent was for the requirement in paragraph 3 to be retained, so that all lots and other consignments containing a lot remain under official control and not be moved or used during testing for Clavibacter michiganensis after symptoms of the organism have been detected.

4) The Department regrets this oversight and will ensure that it is corrected at the next available opportunity.

Response to point (2)

5) The removal of the language requirements in Article 6(1) of EUDN 2019/1614 has been considered further, and the policy intention is that labels required under Article 6 must be issued in English if moved into Great Britain. This was an error and Article 6 should include provision to make it clear these labels are to be issued in English if introduced into Great Britain.

6) The Department regrets this oversight and will ensure that it is dealt with at the next available opportunity.

Department for Environment, Food and Rural Affairs

15 November 2022

Appendix 4: Memorandum from the Department for Transport

S.I. 2022/1094

Railways (Penalty Fares) (Amendment) Regulations 2022

1) The Committee has asked the Department for Transport for a memorandum on the following point:

Confirm that the definition of “the boarding station” in regulation 9(3) of S.I. 2018/366 is intended to apply to the new paragraph (5A) inserted by regulation 5(7) (as well as the new paragraph (2A) inserted by regulation 5(3)).

2) The definition of “the boarding station” is not intended to apply to the new paragraph (5A) of regulation 9 of the Railways (Penalty Fares) Regulations 2018 (S.I. 2018/366) inserted by regulation 5(7) of the Railways (Penalty Fares) (Amendment) Regulations 2022 (S.I. 2022/1094).

3) Regulation 9(3) of S.I. 2018/366 sets out that in relation to paragraph (2) “the boarding station” means “(a) the station at which the person boarded the train; or (b) where the station mentioned in sub-paragraph (a) is not known to the collector, the station at which the train last made a scheduled call”.

4) This definition is relevant for the calculation of the amount of the penalty fare. Regulation 9(2) of S.I. 2018/366 provides that the “full single fare applicable” (a relevant factor in the amount of the penalty fare) is the full single fare from the boarding station to a subsequent station (which subsequent station will depend on the circumstances).

5) In general, regulation 5 of S.I. 2022/1094 amends regulation 9 of S.I. 2018/366. It introduces a new calculation for penalty fares in respect of England.

6) The new paragraphs (1A), (1B) and (2A) in S.I. 2018/366 (inserted by regulations 5(2) and 5(3) of S.I. 2022/1094) follow paragraphs 1 and 2 in applying in relation to penalty fares issued to a person travelling by, present on, or leaving a train.

7) The new paragraphs (4A), (4B) and (5A) in S.I. 2018/366 (inserted by regulations 5(6) and 5(7) of S.I. 2022/1094) follow regulations 4 and 5 in applying in relation to penalty fares issued to a person in a compulsory ticket area at a station who hasn’t boarded a train yet.

8) In particular, the new paragraph (4A)(a) provides for the amount of the penalty fare where a person is present in a compulsory ticket area at a station, and is charged a penalty fare, and intends to board a train. “The full single fare applicable” is used in relation to this calculation.

9) The new paragraph (5A) provides that “In paragraph (4A)(a) “the full single fare applicable” is the full single fare … from the boarding station to the station that the penalty fare authorises the person to travel to…”

10) As the calculation in paragraph (4A)(a) will apply to a person who is at a station, and intends to board a train at that station to travel, the relevant boarding station referred to in paragraph (5A) will be obvious in all cases and the gloss given to the term by the definition in regulation 9(3) is unnecessary.

11) As the calculation in paragraph (4A)(a) will apply to a person who is at a station, and intends to board a train at that station to travel, the relevant boarding station referred to in paragraph (5A) will be obvious in all cases and the gloss given to the term by the definition in regulation 9(3) is unnecessary.

12) In summary, as the relevant “boarding station”, will be obvious in all cases when paragraph (5A) applies, the Department’s view is that there is no ambiguity as to what the relevant station would be and there are no practical issues here. This point will also be explained in the relevant guidance to ticket collectors and to the public.

Department for Transport

15 November 2022

Formal Minutes

Wednesday 23 November 2022

Virtual meeting

Members present

Jessica Morden, in the Chair

Lord Beith

Lord Chartres

Baroness D’Souza

Baroness Gale

Lord Haskel

Lord Smith of Hindhead

Richard Thomson

Liz Twist

Report consideration

Draft Report (Eighteenth Report), proposed by the Chair, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1.1 to 4.2 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 4.

Resolved, That the Report be the Eighteenth Report of the Committee to both Houses.

Ordered, That the Chair make the Report to the House of Commons and that the Report be made to the House of Lords.

Adjournment

Adjourned till Wednesday 30 November at 3.40 p.m.

Footnotes

1 See in particular the Committee’s 1st Special Report from the 2013/14 Session entitled “Excluding the inert from secondary legislation”.

2 An example is the model certificate for the permanent admission of an unregistered equine from EU countries and Norway: Model health certificate for the temporary or permanent admission of an unregistered equine from EU countries and Norway (publishing.service.gov.uk).