At the Committee’s meeting on 5 February 2020 it scrutinised a number of instruments. It was agreed that the special attention of the House of Commons should be drawn to one of those considered in accordance with Standing Orders. The Instrument and the grounds for reporting it are given below. The relevant Departmental memorandum is published as an appendix to this report.
1.1The Committee draws the special attention of the House to these Regulations on the ground that they fail to conform to proper drafting practice in one respect.
1.2These Regulations are made under sections 51 and 56 of the Taxation (Cross-border Trade) Act 2018. The preamble cites the individual subsections relied on as enabling powers, among them section 51(8), which specifies the parliamentary procedure that applies to this instrument in so far as it is made under section 51, i.e. in connection with the withdrawal of the United Kingdom from the European Union. Section 56(11) makes the same procedural provision in so far as the instrument is made under section 56, i.e. in consequence of the 2018 Act. It is not cited in the preamble; the Committee asked the Department for International Trade to explain why. In a memorandum printed at Appendix 1, the Department explains that it is does not consider section 56(11) to be an enabling power because it relates to parliamentary procedure, and drafting guidance advises that such provisions not be cited in the preamble. The Department does not, however, explain why section 51(8), which plays exactly the same role in section 51 as section 56(11) does in section 56, is cited in the preamble. The instrument is therefore inconsistent in its drafting practice (which, since the decision of the Court of Appeal in Vibixa Ltd and another v Komori UK Ltd and others  EWCA Civ 536, also has potential vires implications). The Committee accordingly reports the preamble to these Regulations for falling to conform to proper drafting practice.
Published: 7 February 2020