Ninth Report of Session

Transcription

1 House of Lords House of Commons Joint Committee on Statutory Instruments Ninth Report of Session Drawing special attention to: Counter-Terrorism and Security Act 2015 (Monitoring of Further Education Bodies) (England) Regulations 2016 (S.I. 2016/683) Food for Specific Groups (Information and Compositional Requirements) (England) Regulations 2016 (S.I. 2016/688) Insolvency Proceedings (Fees) Order 2016 (S.I. 2016/692) Ordered by The House of Lords to be printed 12 October 2016 Ordered by The House of Commons to be printed 12 October 2016 HL Paper 47 HC 93-ix Published on 14 October 2016 by authority of the House of Lords and the House of Commons

2 Joint Committee on Statutory Instruments Current membership House of Lords Lord Lexden (Conservative) Baroness Meacher (Crossbench) Lord Morris of Handsworth (Labour) Lord Rowe-Beddoe (Crossbench) Lord Rowlands (Labour) Baroness Scott of Needham Market (Liberal Democrat) Lord Sherbourne of Didsbury (Conservative) House of Commons Derek Twigg (Labour, Halton) (Chair) Vicky Foxcroft (Labour, Lewisham, Deptford) Stephen Hammond (Conservative, Wimbledon) Mr Ian Liddell-Grainger (Conservative, Bridgwater and West Somerset) Victoria Prentis (Conservative, Banbury) Powers The full constitution and powers of the Committee are set out in House of Commons Standing Order No. 151 and House of Lords Standing Order No. 73, available on the Internet via Remit The Joint Committee on Statutory Instruments (JCSI) is appointed to consider statutory instruments made in exercise of powers granted by Act of Parliament. Instruments not laid before Parliament are included within the Committee s remit; but local instruments and instruments made by devolved administrations are not considered by JCSI unless they are required to be laid before Parliament. The role of the JCSI, whose membership is drawn from both Houses of Parliament, is to assess the technical qualities of each instrument that falls within its remit and to decide whether to draw the special attention of each House to any instrument on one or more of the following grounds: i ii iii iv that it imposes, or sets the amount of, a charge on public revenue or that it requires payment for a licence, consent or service to be made to the Exchequer, a government department or a public or local authority, or sets the amount of the payment; that its parent legislation says that it cannot be challenged in the courts; that it appears to have retrospective effect without the express authority of the parent legislation; that there appears to have been unjustifiable delay in publishing it or laying it before Parliament;

3 v vi vii that there appears to have been unjustifiable delay in sending a notification under the proviso to section 4(1) of the Statutory Instruments Act 1946, where the instrument has come into force before it has been laid; that there appears to be doubt about whether there is power to make it or that it appears to make an unusual or unexpected use of the power to make; that its form or meaning needs to be explained; viii that its drafting appears to be defective; ix any other ground which does not go to its merits or the policy behind it. The Committee usually meets weekly when Parliament is sitting. Publications The reports of the Committee are published by Order of both Houses. All publications of the Committee are on the Internet at Committee staff The current staff of the Committee are Mike Winter (Commons Clerk), Jane White (Lords Clerk) and Liz Booth (Committee Assistant). Advisory Counsel: Peter Davis, Peter Brooksbank, Philip Davies and Daniel Greenberg (Commons); Nicholas Beach, Peter Milledge and John Crane (Lords). Contacts All correspondence should be addressed to the Clerk of the Joint Committee on Statutory Instruments, House of Commons, London SW1A OAA. The telephone number for general inquiries is: ; the Committee s address is: jcsi@parliament.uk.

4 Ninth Report of Session Contents Instruments reported 2 1 S.I. 2016/683: Reported for defective drafting 2 Counter-Terrorism and Security Act 2015 (Monitoring of Further Education Bodies) (England) Regulations S.I. 2016/688: Reported for defective drafting 2 Food for Specific Groups (Information and Compositional Requirements) (England) Regulations S.I. 2016/692: Reported for defective drafting 3 Insolvency Proceedings (Fees) Order Instruments not reported 4 Annex 4 Appendix 1 7 S.I. 2016/683 7 Counter-Terrorism and Security Act 2015 (Monitoring of Further Education Bodies) (England) Regulations Appendix 2 8 S.I. 2016/688 8 Food for Specific Groups (Information and Compositional Requirements) (England) Regulations Appendix 3 9 S.I. 2016/692 9 Insolvency Proceedings (Fees) Order

5 2 Ninth Report of Session Instruments reported At its meeting on 12 October 2016 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 three 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 S.I. 2016/683: Reported for defective drafting Counter-Terrorism and Security Act 2015 (Monitoring of Further Education Bodies) (England) Regulations The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect. 1.2 The title of this instrument suggests that it is intended to apply to England only, and the Explanatory Memorandum laid with it states that that is the case, but there is nothing in the operative text of the instrument to indicate this. The enabling power does, however, require the Secretary of State to consult the Welsh Ministers before exercising that power in respect of institutions in Wales. The preamble to the instrument does not state that any such consultation has taken place. 1.3 In a memorandum printed at Appendix 1, the Department for Education acknowledges that the position would have been clearer if the Regulations had included a provision to describe their territorial application in the operative text, and undertakes to include one when the Regulations are amended. It also says that the absence of a reference to consultation having taken place indicates that the Regulations cannot legally apply to Wales. In the Committee s view, however, a reference to England in the heading and omitting to cite consultation with Welsh Ministers is an unclear and insufficient indication of the intention to restrict the application of an instrument to England. The Committee accordingly reports these Regulations for defective drafting, acknowledged by the Department. 2 S.I. 2016/688: Reported for defective drafting Food for Specific Groups (Information and Compositional Requirements) (England) Regulations The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in a number of respects. 2.2 Paragraph 8 of Schedule 2 to these Regulations modifies section 35(2) of the Food Safety Act 1990 for the purposes of the Regulations. The text inserted by the modification made no apparent sense to the Committee, nor was it possible to guess what the intended text might be. 2.3 In a memorandum printed at Appendix 2, the Department of Health states that paragraph 8 is incorrect, and that it will consider how an amendment should be framed and

6 Ninth Report of Session bring forward an amendment at the first possible opportunity. The Department has also, with candour commended by the Committee, stated that this instrument contains several further relatively minor errors, which it will also correct. The Committee accordingly reports these Regulations for defective drafting, acknowledged by the Department. 3 S.I. 2016/692: Reported for defective drafting Insolvency Proceedings (Fees) Order The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in several identical respects. 3.2 Article 4 of this Order contains nine instances where the word will is used instead of shall or must to impose an obligation. In a memorandum printed at Appendix 3, the Department for Business, Energy and Industrial Strategy acknowledges that must should have been used instead of will, as reported in the Committee s First Special Report of Session (the relevant paragraph of which the memorandum helpfully sets out). The Department apologises for having failed to follow the practice set out in that Report. The Committee accordingly reports article 4 for defective drafting, acknowledged by the Department.

7 4 Ninth Report of Session Instruments not reported At its meeting on 12 October 2016 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 Draft instrument requiring affirmative approval Draft S.I. Contracts for Difference (Allocation) (Amendment) Regulations 2016 Instruments subject to annulment S.I. 2016/662 S.I. 2016/663 S.I. 2016/732 S.I. 2016/777 Proceeds of Crime Act 2002 (External Requests and Orders) (Amendment) Order 2016 Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2016 Children and Young People (Scotland) Act 2014 (Consequential Modifications) Order 2016 Non-Domestic Rating (Miscellaneous Provisions) (No. 2) Regulations 1989 (Amendment) (England) Regulations 2016 S.I. 2016/787 Export Control (Libya Sanctions) Order 2016 S.I. 2016/788 Civil Procedure (Amendment No. 3) Rules 2016 S.I. 2016/789 Home Loss Payments (Prescribed Amounts) (England) Regulations 2016 S.I. 2016/792 Education (Pupil Registration) (England) (Amendment) Regulations 2016 S.I. 2016/793 Childcare Payments (Eligibility) (Amendment) Regulations 2016 S.I. 2016/796 Childcare Payments (Amendment) Regulations 2016 S.I. 2016/798 Police (Amendment) Regulations 2016 S.I. 2016/808 S.I. 2016/867 Education (Pupil Information) (England) (Miscellaneous Amendments) Regulations 2016 National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) (No.2) Regulations 2016 S.I. 2016/868 Food Safety and Hygiene (England) (Amendment) Regulations 2016 S.I. 2016/869 Education (Designated Institutions) (England) (No. 3) Order 2016

8 Ninth Report of Session S.I. 2016/870 Rentcharges (Redemption Price) (England) Regulations 2016 S.I. 2016/871 S.I. 2016/873 S.I. 2016/875 Town and Country Planning (Local Planning) (England) (Amendment) Regulations 2016 Neighbourhood Planning (General) and Development Management Procedure (Amendment) Regulations 2016 National Health Service (General Medical Services Contracts and Personal Medical Services Agreements) (Amendment) Regulations 2016 S.I. 2016/877 Port of Tyne Harbour Revision Order 2016 S.I. 2016/878 S.I. 2016/879 Firefighters Pension Scheme (Amendment and Transitional Provisions) (England) Order 2016 Acquisition of Land (Rate of Interest after Entry) (Amendment) Regulations 2016 S.I. 2016/882 Central Rating List (England) (Amendment) (No. 3) Regulations 2016 S.I. 2016/883 Cremation (England and Wales) (Amendment) Regulations 2016 S.I. 2016/ MHz Frequency Band (Management) Regulations 2016 S.I. 2016/887 S.I. 2016/888 Local Authority (Duty to Secure Early Years Provision Free of Charge) (Amendment) Regulations 2016 Energy Performance of Buildings (England and Wales) (Amendment) (No. 2) Regulations 2016 S.I. 2016/889 Registered Designs (Fees) Rules 2016 S.I. 2016/890 Compensation Orders (Disqualified Directors) Proceedings (England and Wales) Rules 2016 S.I. 2016/892 Patents (Amendment) (No. 2) Rules 2016 S.I. 2016/893 Côte d Ivoire (Asset-Freezing) (Revocation) Regulations 2016 Draft Instruments subject to negative procedure Draft S.I. City of Birmingham (Electoral Changes) Order 2016 Draft S.I. London Borough of Southwark (Electoral Changes) Order 2016 Instruments not subject to Parliamentary proceedings laid before Parliament S.I. 2016/766 Liberia and Côte d Ivoire (Sanctions) (Overseas Territories) (Revocations) Order 2016 S.I. 2016/768 Liberia (United Nations Sanctions) (Revocation) Order 2016 S.I. 2016/780 Cayman Islands Constitution (Amendment) Order 2016

9 6 Ninth Report of Session Instruments not subject to Parliamentary proceedings not laid before Parliament S.I. 2016/748 Chief Inspector of Education, Children s Services and Skills Order 2016 S.I. 2016/776 S.I. 2016/794 S.I. 2016/850 S.I. 2016/861 S.I. 2016/896 Pensions Act 2004 (Code of Practice) (Governance and Administration of Occupational Trust-based Schemes Providing Money Purchase Benefits) Appointed Day Order 2016 Wireless Telegraphy (Licence Charges for the 900 MHz frequency band and the 1800 MHz frequency band) (Amendment and Further Provisions) (Amendment) Regulations 2016 Designation of Schools Having a Religious Character (Independent Schools) (England) (No. 2) Order 2016 A55 Trunk Road (Junction 36 (The Warren) to Junction 35 (Dobshill), Flintshire) (Temporary Prohibition of Vehicles, Cyclists & Pedestrians) Order 2016 Criminal Justice and Courts Act 2015 (Commencement No.5) Order 2016

10 Ninth Report of Session Appendix 1 S.I. 2016/683 Counter-Terrorism and Security Act 2015 (Monitoring of Further Education Bodies) (England) Regulations In its letter to the Department of Business, Innovation & Skills of 20 July 2016, the Joint Committee requested a memorandum on the following points: Given the title of this instrument, paragraph 5.2 of the Explanatory Memorandum, and the fact that the preamble makes no mention of consultation with the Welsh Ministers, the Committee assumes that the instrument is intended to apply to England only. Why, therefore, is there nothing in the operative text to limit its application to England? If the absence of any limit is deliberate (i.e. because in absence of consultation that is far as the power extends), explain how that can be distinguished in drafting terms from any other case in which operative provisions in excess of a relevant enabling power are included in a statutory instrument. 2. The Department for Education submits this response instead of the Department for Business Innovation and Skills, the former having had transferred to it responsibility for matters relating to further education as of 14 July The Department is grateful to the Committee for raising this matter. The Department confirms that, as per the Committee s assumption, delegation of the monitoring function under section 32(2) of the Counter-Terrorism and Security Act 2015 is to apply in respect of relevant further education bodies in England only. 4. The Department considers that the omission of any reference to a consultation with Welsh Ministers (reflecting the fact that no such consultation has taken place), together with the reference to England in the title of the instrument, makes clear that the instrument applies to England only. On that basis the Department did not include an express limitation regarding territorial application. In the Department s view the absence of any such territorial limit in the operative text cannot, by reason of that omission, extend the application of the statutory instrument unintentionally and in excess of the relevant enabling power, especially given that the pre-condition of consulting Welsh Ministers has not been met. 5. However, the Department acknowledges that, notwithstanding these points, the legal position would be clearer if the Regulations had included a provision to describe the territorial application in the operative text. Consequently, the Department will ensure that it includes a territorial application provision in the operative text in future when the Regulations are amended (which will be the case when there is a change to the persons with whom the Secretary of State has entered into written agreements). The Department hopes this provides the Committee with sufficient reassurance as to its future approach and stands ready to assist if the Committee has any further matters it may wish to raise in respect of this instrument. Department for Education 26 July 2016

11 8 Ninth Report of Session Appendix 2 S.I. 2016/688 Food for Specific Groups (Information and Compositional Requirements) (England) Regulations In its letter to the Department of 20th July 2016, the Committee requested a memorandum on the following point: Are the references to section 33(2), regulation 4(5) and Part 5 of Schedule 3 in section 35(2) of the Food Safety Act 1990 as applied by paragraph 8 of Schedule 2 correct? If so, explain how regulation 4(5) and Part 5 of Schedule 3 apply section 33(2). 2. The Department s response to the Committee s point is outlined below. 3. Paragraph 8 of Schedule 2 is incorrect. The Department is grateful to the Committee for alerting it to the error, and will consider how the amendment should be framed and will bring forward an amending Statutory Instrument at the first possible opportunity. 4. The Department has also now noticed that the title of these Regulations is wrongly transposed in paragraphs 3, 6, 7 and 8 of Schedule 2, and the term believing should replace suspecting in the modification of s.10(1)(a) Food Safety Act 1990 of each of the Statutory Instruments contained in Schedule 3 and those errors will be corrected too. The Department apologises for these errors. Department of Health 26 July 2016

12 Ninth Report of Session Appendix 3 S.I. 2016/692 Insolvency Proceedings (Fees) Order The Committee, by letter (sent by ) dated 20 July 2016, asked the Department to submit a memorandum on two points in relation to the Insolvency Proceedings (Fees) Order 2016 ( the Order ) Given the Committee s First Special Report of Session , explain why article 4 repeatedly uses will instead of shall or must, and why the Explanatory Memorandum (which in copies provided to the Committee appears to have been inserted into the Order before Schedule 2 and the Explanatory Note) states that there are no matters of interest to the Committee. Will instead of shall or must 2. The Committee s First Special Report of Session ( Excluding the inert from secondary legislation ) states that Will can [ ] only be used appropriately if straight futurity calls for legal effect, for example, in this provision will cease to have effect three years after it comes into force [ ] or similarly. If it is otherwise used in a provision presented as operative, it is objectionable as it omits to clarify whether discretion or an obligation is intended, unless an interpretation provision rectifies the omission. 3. Article 4 was derived from article 6 of the Insolvency Proceedings (Fees) Order 2004 (SI 2004/593) as amended. That article used the term shall in contexts in which futurity was concerned such as the repayment of the deposit contingent on a future event. When the language of these provisions was updated shall was converted into will. However the Department accepts that notwithstanding the futurity the term must should have been used as an obligation was imposed. 4. The Department apologises to the Committee for having failed to follow the practice set out in the Special Report. Insertion of Explanatory Memorandum 5. The Department further apologises for a printing error that resulted in the Explanatory Memorandum appearing between Schedule 2 to the Order and the Explanatory Note in the version sent to the Committee. The Department can confirm that this printing error does not appear in the Order as signed or published. We have made arrangements for fresh copies of the Order to be delivered to the Committee. Department for Business, Energy and Industrial Strategy 25 July 2016