Thirty-Third Report of Session 2019-21 Contents

Instruments reported

At the Committee’s meeting on 10 February 2021 it scrutinised a number of instruments. It was agreed that the special attention of the House of Commons should be drawn to four of those considered in accordance with Standing Orders. The instruments and the grounds for reporting them are given below. The relevant departmental memoranda are published as an appendices to this report.

1S.I. 2020/1431: Reported for requiring elucidation

Customs (Relief from Liability to Import Duty and Miscellaneous Amendments) (EU Exit) Regulations 2020

1.1The Committee draws the special attention of the House to these Regulations on the ground that they require elucidation in one respect.

1.2These Regulations, which are subject to the negative resolution procedure, make provision for relief from liability to import duty in certain circumstances. Regulation 11(5) states that where HMRC fail to comply with certain requirements relating to notification of receipt of the claim or notification of determination of the claim, the claim is to be treated as refused. The Committee asked HMRC to explain the classes of case in which it is expected that claims are to be treated as refused, to confirm whether such refusal could arise in cases where HMRC had misplaced the application or failed to consider it expeditiously and to explain what methods of challenge would be available in cases of such refusal (apart from judicial review). In a memorandum printed at Appendix 1, the Department explains that the classes of case covered by the regulation may include cases where HMRC has misplaced the claim or failed to consider it expeditiously but that the provision ensures that, where there is such a failure, there is a method of challenge available to the claimant other than judicial review. This further method of challenge arises because the refusal under regulation 11(5) is a “relevant decision” under section 13A(2)(a)(iii) of the Finance Act 1994 for the purposes of Chapter 2 of Part 1 of that Act (Appeals and Penalties). This means that the review and appeals mechanisms provided for in that Chapter are available to the claimant and the deemed refusal may be varied or cancelled as a result. The Committee is grateful for this explanation (and notes that it would have been appropriate, in this new and complicated area, for it to be included in the Explanatory Memorandum or a footnote) and accordingly reports regulation 11(5) for requiring elucidation, provided by the Department’s memorandum.

2S.I. 2020/1432: Reported for doubtful vires

Customs (Tariff Quotas) (EU Exit) Regulations 2020

2.1The Committee draws the special attention of the House to these Regulations on the ground that there is doubt as to whether they are intra vires in one respect.

2.2These Regulations, which are subject to the negative resolution procedure, are made, in part, under section 31(6) of and paragraph 13 of Schedule 2 to the Taxation (Cross-border Trade) Act 2018 which are powers enabling HMRC Commissioners to make regulations. These regulations are not made by HMRC Commissioners but are made by HM Treasury and the Secretary of State. Section 32(13) of the Act states that “any power of HMRC Commissioners to make regulations under this Part is exercisable concurrently by the Treasury” but that power is not cited in the preamble (although it is referred to in a footnote). The Committee noticed that in several other regulations using the same powers (made by HMRC on behalf of HM Treasury) section 32(13) is cited in the preamble and asked the Department for Environment, Food and Rural Affairs to explain. In a memorandum printed at Appendix 2, the Department asserts that given the secondary nature of section 32(13), it is appropriate to identify it in a footnote rather than in the preamble. The Committee accepts that there is always an argument as to whether ancillary or supporting provisions should be cited in the preamble. In this case, were it not for the inconsistent practice between instruments the Committee would probably have made no comment; as things are, however, the Committee feels obliged to draw attention to the inconsistency, and because the comprehensiveness of citations in preambles goes to vires since the decision of the Court of Appeal in Vibixa Ltd and Polestar Jowetts Ltd v Komori UK Ltd [2006] EWCA Civ 536 , the Committee reports these regulations for doubt as to whether they are intra vires.

3S.I. 2020/1435: Reported for doubtful vires

Customs Tariff (Suspension of Import Duty Rates) (EU Exit) Regulations 2020

3.1The Committee draws the special attention of the House to these Regulations on the ground that there is doubt as to whether they are intra vires in one respect.

3.2The same issue arises on these Regulations as in relation to S.I. 2020/1432. The memorandum from HM Treasury is printed at Appendix 3. The Committee accordingly reports the regulations for the same doubt as to whether they are intra vires.

4S.I. 2020/1457: Reported for doubtful vires

Customs Tariff (Preferential Trade Arrangements) (EU Exit) Regulations 2020

4.1The Committee draws the special attention of the House to these Regulations on the ground that there is doubt as to whether they are intra vires in one respect.

4.2The same issue arises on these Regulations as in relation to S.I. 2020/1432. The memorandum from HM Treasury is printed at Appendix 4. The Committee accordingly reports the regulations for the same doubt as to whether they are intra vires.




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