6.This Bill, which had its Second Reading on 17 July, would prohibit dealing in ivory in the UK. The Bill contains a number of delegated powers and the Department for Environment, Food and Rural Affairs has provided us with a Delegated Powers Memorandum.2
7.There are a number of places in clauses 2, 3, 4, 10 and 11 of the Bill where legal requirements are to be specified through guidance rather than being placed on the face of the Bill or being delegated to subordinate legislation3. The guidance issued under these provisions is not subject to Parliamentary scrutiny. Clause 37(4) requires the Secretary of State to publish any guidance issued under clause 2, 3, 4, 10 or 11. But it imposes no requirements as to the form or manner in which publication is to take place, leaving it to the discretion of the Secretary of State.
8.Guidance is normally used in legislation as a way of enabling a public body—normally the Secretary of State—to issue guidance to another public body about how statutory functions conferred on that other body are to be exercised. This is generally linked to a statutory duty imposed on the other public body to have regard to that guidance in exercising those functions. It is fundamental to the nature of guidance (as its name implies) that, although there is a duty on the person to whom it is addressed to consider and have regard to the guidance, it is open to that person to decide not to follow the guidance if the person considers that there are good reasons for not doing so in the circumstances of a particular case. The duty is to have regard to guidance, not to comply with it.
9.The function of guidance in clauses 2, 3, 4, 10 and 11 is very different. It is used as a means of specifying legal requirements which if not complied with have a substantive effect on a person’s rights or obligations. So, for example, clause 3 sets out the process for the making and consideration of applications for an exemption certificate in respect of pre-1918 ivory items that are of outstandingly high artistic, cultural or historic value. Subsection (1) specifies the information which must be included with an application and includes at subsection (1)(g) “any other information specified in guidance issued by the Secretary of State”. Under subsection (2) the Secretary of State is required to refuse an application if the applicant has failed to comply with the information requirements in subsection (1).
10.The reasons given by the Department in its memorandum for imposing the requirements through guidance vary in each case.4 The kinds of reasons given are that the power is very limited in scope, it is “technical and detailed”, and that it is important for the Government to be able to react quickly and flexibly to changing circumstances.
11.We are not convinced by the Department’s reasons. The fact that the powers are limited in scope and that the required provision may be technical and detailed does not in our view justify using guidance to impose legal requirements. Nor do we consider that reacting quickly and flexibly to changing circumstances is something that is necessarily easier to achieve through guidance than it would be through legislation subject to the negative procedure, which can be made and come into effect very swiftly. But more fundamentally it seems to us that the Department has failed to explain why it considers it appropriate to use statutory guidance as the means, not for giving guidance, but for specifying legal requirements.
12.In our view this is not just a matter of form but is liable to impact on the accessibility of legislation. All primary and secondary legislation is published in a consistent manner which facilitates access to legislation by members of the public. By providing for legislative requirements to be contained in guidance, the normal procedures relating to publication of legislation will not apply. Although clause 37(4) requires the Secretary of State to publish guidance given under clauses 2, 3, 4, 10 and 11, it is left wholly to the discretion of the Secretary of State as to the form and manner in which publication is to take place.
13.We consider that the Department has failed to justify the use of guidance in clauses 2, 3, 4, 10 and 11 as a means of specifying legal requirements under the Bill, and that these matters should instead be contained in subordinate legislation made by statutory instrument, with the negative procedure offering an appropriate level of Parliamentary scrutiny in each case.
14.Clause 5(1) provides that, where an application for an exemption certificate is refused or an existing exemption certificate is revoked, the owner of the item concerned may appeal against the decision. Clause 5(3) provides that the Secretary of State may by regulations make provision about appeals. Regulations under clause 5(3) are subject to the negative procedure.
15.Nothing is said on the face of the Bill as to:
Instead they are all left to be provided for in the regulations.
16.The Department says that the detailed and procedural nature of the provisions for an appeal make it more suitable for subordinate legislation.5 Subordinate legislation also allows for timely changes to be made to the procedure for appeals in the light of experience.
17.We agree it is reasonable for rules of procedure to be set out in subordinate legislation rather than on the face of the Bill. But this does not in our view explain leaving to subordinate legislation matters such as the identity of the body which is given responsibility for determining appeals, the grounds on which an appeal may be made, and the powers of the appeal body in determining an appeal. These are not procedural matters, nor are they things which are liable to need to be changed in the light of experience over time. Instead they are fundamental to the nature and scope of the appeal rights which are being conferred. In our view, in the absence of a strong and convincing case to the contrary, these are matters which should be set out on the face of the Bill.
18.Accordingly, we consider that the Department has failed to justify the scope of the regulation-making powers conferred by clause 5, and therefore that the delegation of powers is inappropriate. In our view, the identity of the body responsible for determining appeals, the grounds of appeal, and the powers of the appeal body should all be specified on the face of the Bill.
19.Clause 9 provides that dealing in an ivory item is exempt from the prohibition if the dealing involves a qualifying museum.
20.“Qualifying museum” is defined in subsection (3) and includes a museum in the United Kingdom, the Channel Islands or the Isle of Man which is shown as being accredited in a list published by or on behalf of:
A qualifying museum also includes a museum other than one in the United Kingdom or the Channel Islands etc. if that museum is a member of the International Council of Museums.
21.Subsection (4) of clause 9 allows the Secretary of State to make regulations amending subsection (3). Despite this being a Henry VIII power the regulations are subject to the negative procedure. The reason why the Department considers the negative procedure to be appropriate is because of the very limited scope of the power.6 It may be exercised only to make an amendment that is consequential on:
22.Although we would expect Henry VIII powers normally to be subject to the affirmative procedure, as we have made clear in the past,7 we accept there will be cases in which the negative procedure provides an adequate level of Parliamentary scrutiny because of the narrow scope of the powers conferred. We agree with the Department that this is such a case.
23.Clause 12 makes it an offence to breach the prohibition on dealing in ivory. Schedule 1 to the Bill creates an alternative system of civil sanctions for breaches of the prohibition.
24.Schedule 1 contains detailed provision about the civil sanctions regime for breaches of the prohibition on dealing in ivory. They include various enforcement provisions:
The Schedule also contains procedural provisions governing the exercise of the enforcement powers and provisions enabling appeals to be made.
25.Paragraph 14 of Schedule 1 confers a power on the Secretary of State to make regulations (known as “supplementary regulations”) which make provision supplementing that made by the Schedule. Regulations under paragraph 14 of Schedule 1 are subject to the negative procedure.
26.We do not draw paragraph 14 to the attention of the House because the delegation of powers appears to be appropriate. However, we were disappointed that the Delegated Powers Memorandum failed to provide any explanation for taking the power. The section of the Delegated Powers Memorandum which purports to set out the reasons for taking the power (see paragraphs 60 and 61) does no more than explain the effect of paragraph 15 of Schedule 1 which requires the Secretary to consult before making regulations.
27.Paragraph 21 of Schedule 1 requires the Secretary of State to prepare and publish guidance about the sanctions which may be imposed on a person who commits an offence under clause 12, and about the action which the Secretary of State may take and the circumstances in which the Secretary of State is likely to take any such action.
28.Paragraph 21 sets out in some detail the matters which must be included in the guidance. To a large extent the matters which must be included in the guidance are descriptions of the provisions in the Schedule. However, the powers are wide enough to cover guidance on how and in what circumstances the discretions conferred on the Secretary of State under those provisions should be exercised. For example, the guidance might reasonably be expected to set out:
29.The Secretary of State is required to publish the guidance and any revisions to the guidance, but there is no requirement for Parliamentary scrutiny.
30.Schedule 1 confers significant powers on the Secretary of State which are liable to have very important consequences for those who may be affected by their exercise. It seems to us that the guidance is likely to be very influential in determining how in practice those powers will be exercised. In the circumstances, we consider that the guidance should be subject to Parliamentary scrutiny, with the draft affirmative procedure affording an appropriate level of scrutiny.
2 Department for Environment, Food and Rural Affairs, Ivory Bill Delegated Powers Memorandum
3 See clauses 2(3), 3(1)(g), 4(7)(b) and (9), 4(8), 10(1)(f) and 11(5).
4 The relevant passages in the Delegated Powers Memorandum are at paragraphs 10, 19, 29, 32, 41 and 48.
5 See paragraph 34 of the Delegated Powers Memorandum.
6 See paragraph 38 of the Delegated Powers Memorandum.
7 See paragraph 35 of the Committee’s Guidance for Departments, July 2014.