Tenth Report of Session 2021–22 Contents

Instruments reported

At the Committee’s meeting on 27 October 2021 it scrutinised a number of instruments. It was agreed that the special attention of the House of Commons should be drawn to three of those considered in accordance with Standing Orders. The instruments and the grounds for reporting the are given below. The relevant departmental memoranda are published as appendices to this report.

1S.I. 2021/693: Reported for requiring elucidation

Custom Tariff (Preferential Trade Arrangements and Tariff Quotas) (EU Exit) (Amendment) (No. 3) Regulations 2021

1.1The Committee draws the special attention of this 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, amend the Custom Tariff (Preferential Trade Arrangements and Tariff Quotas) (EU Exit) Regulations 2020 (S.I. 2020/1457), by updating the table of agreements to which those Regulations apply. The Explanatory Memorandum refers readers to a general webpage that identifies transitional customs, VAT and excise legislation made since 1 January 2021. On that page are, among other things, links to both statutory instruments dealing with tariffs and “reference documents” for specific instruments. The Committee had noted in its Third Report of Session 2021–22 (in relation to S.I. 2020/382), that the way in which the reference documents were then organised made it difficult to find all the documents to which a particular instrument referred. In the Explanatory Memorandum to this instrument, Her Majesty’s Treasury highlighted its efforts to address that concern. When the Committee considered this instrument, two of the documents to which it refers (the Andean Countries Preferential Tariff document cited in regulation 3(3) and the South African Customs Union and Mozambique Preferential Tariff document cited in regulation 3(18)) were not on the page for this instrument, but there was no information about where they might now be found. The Committee asked the Department to explain. In a memorandum printed at Appendix 1, the Department explains that those reference documents had, between laying and consideration, been moved to the webpage of a later amending instrument. The Department also notes, however, that as of 24 September, all reference documents associated with S.I. 2020/1457 as amended will be located on the webpage associated with that instrument (rather than on the page associated with the latest amending instrument). The Committee appreciates the Department’s ongoing work to make these documents easier for readers to find and hopes that this helpful explanation will be included alongside future amending instruments. The Committee accordingly reports the Explanatory Memorandum to this instrument for requiring elucidation, provided in the Department’s memorandum.

2S.I. 2021/783: Reported for failure to comply with proper legislative practice

Trade Remedies (Extension of Tariff Rate Quota) (EU Exit) Regulations 2021

2.1The Committee draws the special attention of this House to these Regulations on the ground that they fail to comply with proper legislative practice in one respect.

2.2These Regulations, which are subject to the negative resolution procedure, allow the Secretary of State to issue a public notice applying tariff rate quotas to certain steel products. The instrument comes into force before it is laid before Parliament and the Explanatory Memorandum explains that this was necessary to prevent the current tariff rate quotas from lapsing. The Committee asked the Department for International Trade to explain why this instrument could not have been made one day earlier so as to avoid coming into force before it was laid, given that the date the current tariff rate quotas lapse must have been known in advance. In a memorandum printed at Appendix 2, the Department explains that time constraints were extremely narrow due to the timing of the Trade Remedies Authority recommendation to the Secretary of State and the need to consider the implications. As the Committee notes in paragraph 67 of its First Special Report of Session 2021–22, Rule of Law Themes from COVID-19 Regulations, although the Statutory Instruments Act 1946 does recognise that exceptionally circumstances will require an instrument to come into force before laying, during the pandemic what the 1946 Act envisages as exceptional has become commonplace. It is for the Department to assess the urgency of each legislative change, but the Committee is concerned with this trend especially where the urgency appears to be due to issues within Government. The Committee accordingly reports these regulations for failure to comply with proper legislative practice.

3S.I. 2021/830: Reported for doubtful vires

Customs and Excise Border Procedures (Miscellaneous Amendments) (EU Exit) Regulations 2021

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

3.2These Regulations, which are subject to the negative resolution procedure, introduce changes that provide for full customs controls at border locations from 1 January 2022. Regulation 4 sets out new penalties for breaches of the obligations introduced by these regulations. The Committee asked Her Majesty’s Revenue and Customs to indicate which of the enabling powers listed in the preamble allows for the prescription of the amount of the penalties in regulation 4. In a memorandum printed at Appendix 3, the Department acknowledges that no such powers are contained in the preamble and explains that the powers for prescription of the amount of the penalties are contained in section 26(1)(a) of the Finance Act 2003 and are exercisable by the Treasury. The Department undertakes to rectify the position at the earliest opportunity. The Committee accordingly reports regulation 4 for doubt as to whether it is intra vires, acknowledged by the Department.




Published: 29 October 2021 Site information    Accessibility statement