House of Lords
House of Commons
Joint Committee on
Statutory Instruments
Ninth Report
of Session 2016–17
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
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 www.parliament.uk/jcsi.
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
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;
ii
that its parent legislation says that it cannot be challenged in the
courts;
iii
that it appears to have retrospective effect without the express
authority of the parent legislation;
iv
that there appears to have been unjustifiable delay in publishing it
or laying it before Parliament;
v
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;
vi
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;
vii 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
www.parliament.uk/jcsi.
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: 020 7219
2026; the Committee’s email address is: [email protected].
Ninth Report of Session 2016–17 1
Contents
Instruments reported
1 S.I. 2016/683: Reported for defective drafting
Counter-Terrorism and Security Act 2015 (Monitoring of Further Education
Bodies) (England) Regulations 2016
2 S.I. 2016/688: Reported for defective drafting
Food for Specific Groups (Information and Compositional Requirements)
(England) Regulations 2016
3 S.I. 2016/692: Reported for defective drafting
Insolvency Proceedings (Fees) Order 2016
Instruments not reported
2
2
2
2
2
3
3
4
Annex4
Appendix 1
S.I. 2016/683
Counter-Terrorism and Security Act 2015 (Monitoring of Further Education
Bodies) (England) Regulations 2016
Appendix 2
S.I. 2016/688
Food for Specific Groups (Information and Compositional Requirements)
(England) Regulations 2016
Appendix 3
S.I. 2016/692
Insolvency Proceedings (Fees) Order 2016
7
7
7
8
8
8
9
9
9
2
Ninth Report of Session 2016–17 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 2016
1.1 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 2016
2.1 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
Ninth Report of Session 2016–17 3
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 2016
3.1 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 2013–2014 (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.
4
Ninth Report of Session 2016–17 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
Proceeds of Crime Act 2002 (External Requests and Orders)
(Amendment) Order 2016
S.I. 2016/663
Proceeds of Crime Act 2002 (External Investigations) (Amendment)
Order 2016
S.I. 2016/732
Children and Young People (Scotland) Act 2014 (Consequential
Modifications) Order 2016
S.I. 2016/777
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
Education (Pupil Information) (England) (Miscellaneous Amendments)
Regulations 2016
S.I. 2016/867
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
Ninth Report of Session 2016–17 S.I. 2016/870
Rentcharges (Redemption Price) (England) Regulations 2016
S.I. 2016/871
Town and Country Planning (Local Planning) (England) (Amendment)
Regulations 2016
S.I. 2016/873
Neighbourhood Planning (General) and Development Management
Procedure (Amendment) Regulations 2016
S.I. 2016/875
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
Firefighters’ Pension Scheme (Amendment and Transitional Provisions)
(England) Order 2016
S.I. 2016/879
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. 2016/886
2010–2025 MHz Frequency Band (Management) Regulations 2016
S.I. 2016/887
Local Authority (Duty to Secure Early Years Provision Free of Charge)
(Amendment) Regulations 2016
S.I. 2016/888
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
5
6
Ninth Report of Session 2016–17 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
Pensions Act 2004 (Code of Practice) (Governance and Administration
of Occupational Trust-based Schemes Providing Money Purchase
Benefits) Appointed Day Order 2016
S.I. 2016/794
Wireless Telegraphy (Licence Charges for the 900 MHz frequency
band and the 1800 MHz frequency band) (Amendment and Further
Provisions) (Amendment) Regulations 2016
S.I. 2016/850
Designation of Schools Having a Religious Character (Independent
Schools) (England) (No. 2) Order 2016
S.I. 2016/861
A55 Trunk Road (Junction 36 (The Warren) to Junction 35 (Dobshill),
Flintshire) (Temporary Prohibition of Vehicles, Cyclists & Pedestrians)
Order 2016
S.I. 2016/896
Criminal Justice and Courts Act 2015 (Commencement No.5) Order
2016
Ninth Report of Session 2016–17 7
Appendix 1
S.I. 2016/683
Counter-Terrorism and Security Act 2015 (Monitoring of Further Education
Bodies) (England) Regulations 2016
1. 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 2016.
3. 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
8
Ninth Report of Session 2016–17 Appendix 2
S.I. 2016/688
Food for Specific Groups (Information and Compositional Requirements)
(England) Regulations 2016
1. 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
Ninth Report of Session 2016–17 9
Appendix 3
S.I. 2016/692
Insolvency Proceedings (Fees) Order 2016
1. The Committee, by letter (sent by email) 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 2013–2014, 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 2013–2013 (“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