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Twenty-Fifth Report of Session 2015–16

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Twenty-Fifth Report of Session 2015–16 House of Lords House of Commons Joint Committee on Statutory Instruments Twenty-fifth Report of Session 2015–16 Drawing special attention to: Collective Management of Copyright (EU Directive) Regulations 2016 (S.I. 2016/221) Immigration and Nationality (Fees) Regulations 2016 (S.I. 2016/226) Ordered by The House of Lords to be printed 11th May 2016 Ordered by The House of Commons to be printed 11th May 2016 HL Paper 148 HC 352-xxv Published on 13 May 2016 by authority of the House of Lords and the House of Commons Joint Committee on Statutory Instruments Current membership House of Lords Baroness Humphreys (Liberal Democrat) Lord Lexden (Conservative) Lord Mackay of Drumadoon (Crossbench) Baroness Mallalieu (Labour) Baroness Meacher (Crossbench) Lord Rowlands (Labour) 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. 74, 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; Twenty-fifth Report of Session 2015516 iii 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 The Stationery Office 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 Amelia Aspden (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 0AA. The telephone number for general inquiries is: 020 7219 2026; the Committee’s email address is: [email protected]. Twenty-fifth Report of Session 2015516 1 Contents Instruments reported 2 1 S.I. 2016/221: Reported for defective drafting and for failure to comply with proper drafting practice 2 Collective Management of Copyright (EU Directive) Regulations 2016 2 2 S.I. 2016/226: Reported for defective drafting and for doubt as to whether they are intra vires 4 Immigration and Nationality (Fees) Regulations 2016 4 Instruments not reported 6 Annex 6 Appendix 1 8 S.I. 2016/221 8 Collective Management of Copyright (EU Directive) Regulations 2016 8 Appendix 2 11 S.I. 2016/226 11 Immigration and Nationality (Fees) Regulations 2016 11 2 Twenty-fifth Report of Session 2015516 Instruments reported At its meeting on 11 May 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 two 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. 2016/221: Reported for defective drafting and for failure to comply with proper drafting practice Collective Management of Copyright (EU Directive) Regulations 2016 1.1 The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in one respect and do not comply with proper drafting practice in numerous respects. 1.2 The Regulations transpose Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market. 1.3 Paragraph (1) of regulation 7 imposes a duty on a collective management organisation to ensure that there is a general assembly of members at least once a year; that the general assembly does certain specified things; and that members have certain rights in relation to it. Sub-paragraph (d)(vi) to (ix) require the general assembly to decide the risk management policy and to approve land transactions, mergers, alliances, setting-up of subsidiaries, acquisitions of other entities and loans; sub-paragraph (e)(i) requires it to appoint and remove the auditor; and paragraph (f) requires that all members may participate and vote in the general assembly. Paragraphs (2) to (4) of regulation 7 provide that the requirements in sub-paragraphs (d)(vi) to (ix), (e)(i) and (f) of paragraph (1) “may be satisfied” in various ways: those in sub-paragraph (d)(vi) to (ix) where the general assembly has delegated the functions to the body exercising the supervisory function; those in sub-paragraph (1)(e) (i) where an auditor is appointed under Chapter 2 of Part 16 to the Companies Act 2006; and those in sub-paragraph (1)(f) where members’ rights are restricted, by reference to duration of membership and/or amounts received from or due to a member, in a fair and proportionate manner and openly. 1.4 The Committee was uncertain of the intended meaning of “may be satisfied” in regulation 7(2) to (4) and so asked the Department for Business, Innovation and Skills to explain it and how effect is given to that intention, indicating in particular whether “is also” might have been more apt than “may be” to express the intended meaning. In a memorandum printed at Appendix 1, the Department states that the intention is that a collective management organisation is to be able to satisfy the requirements in paragraph (1) of regulation 7 which are referred to in paragraphs (2) to (4) of that regulation where the actions specified in those paragraphs are performed or, in other words, that paragraphs (2) to (4) provide an alternative way of complying with those requirements. The Department Twenty-fifth Report of Session 2015516 3 does not consider that the formulation suggested by the Committee in its question would necessarily be apt to convey that intention, at least in relation to regulation 7(3), because the alternative there is available only if the collective management organisation is a company. 1.5 The Committee is not persuaded that the Department is correct in its response to the Committee’s suggestion. Clearly, if the Committee’s suggested formulation had been used, nothing in regulation 7(3) would have suggested an alternative means of compliance for organisations other than companies, because Chapter 2 of Part 16 of the Companies Act 2006 does not apply to them. The effect would therefore have been exactly as intended. In contrast, the words “may be satisfied” seem to suggest that, while it is possible that paragraphs (2) to (4) of regulation 7 provide an alternative means of compliance with the requirements of paragraph (1) to which they refer, it is not inevitable that they do so. The Department’s memorandum indicates that, as the Committee suspected, it was not intended that it should be uncertain whether compliance with those requirements is achieved by satisfying the alternatives in paragraphs (2) to (4). The Committee accordingly reports regulation 7(2) to (4) for defective drafting. 1.6 The Committee also observed what appeared to be a large number of editorial and presentational errors in the Regulations. It therefore additionally asked the Department to explain, with the assistance of National Archives as appropriate, the errors which it had identified and to give an indication of plans for eliminating the possibility of such errors surviving in the validated version of the SI Template. The errors listed by the Committee were as follows— a) in regulation 7 – (i) in paragraph (1)(d), “regulation” rather than “regulations”,
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