1 S.I. 2005/3348 and S.I.
2005/3350: reported for dubious vires
Personal Equity Plan (Amendment No. 2) Regulations
2005 (S.I. 2005/3348) and Individual Savings Account (Amendment
No. 3) Regulations 2005 (S.I. 2005/3350)
1.1 The Committee draws
the special attention of the House to these instruments on the
ground that there appears to be a doubt whether they are intra
vires.
1.2 These instruments provide
that shares or units in "non-UCITS retail schemes" are
qualifying investments for PEPs and for ISA stocks and shares
components respectively. In each case, the expression "non-UCITS
retail scheme" is defined as having the same meaning as in
the New Collective Investment Schemes Sourcebook. Expressions
used in the definition which are defined in the glossary forming
part of the Financial Services Authority Handbook are to have
those defined meanings.
1.3 Both the New Collective
Investment Schemes Sourcebook and the Financial Services Authority
Handbook are published by the FSA. In a memorandum printed at
Appendix 1, Her Majesty's Revenue and Customs state that the FSA
Handbook is amended monthly as required. While they also state
that the reference to the Sourcebook is not intended to include
future amendments, the Committee is unaware of anything to prevent
the FSA from amending the Sourcebook from time to time.
1.4 If an amendment to the
Sourcebook altered the meaning of non-UCITS retail scheme, or
an amendment to the Handbook altered any other expression used
in the definition of that expression, the effect of these instruments
would be changed. Yet the power to make the Regulations (and to
amend them) is conferred on the Treasury, not on the FSA. The
Department has not identified any statutory provision which permits
the Treasury to delegate its legislative power in this way.
1.5 As is explained in paragraph
2.8.1 of Statutory Instrument Practice, where an instrument
refers to an external publication, such a reference must be to
an existing publication, and should give the publisher's name,
the place and year of publication and the edition. In this way
any subsequent amendments to the publication will not alter the
effect of the instrument. These Regulations do not contain that
information, or any other specification of the date as at which
the publications in question are to be read.
1.6 The Committee accordingly
reports these instruments on the ground that there appears to
be a doubt whether they are intra vires.
