5 S.I.
2011/2700: Reported for defective drafting
Social Security (Contributions) (Amendment
No. 5) Regulations 2011 (S.I. 2011/2700)
5.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
5.2 The Regulations amend the Social Security (Contributions)
Regulations 2001 in various respects. Regulation 4 is designed,
in part, to address concerns raised by the Committee in its Twenty-third
Report of Session 2020-2012 (paragraph 3). The Committee's concern
on that occasion was that there was a lacuna in respect of certain
classes of employee. The amendment effected by regulation 4 fills
the lacuna; but it does so by making provision about three cases,
the second and third of which are wholly subsumed within the first
(and are therefore unnecessary). The Committee asked HM Revenue
and Customs for an explanation. In a memorandum printed at Appendix
5, the Department accepts that new paragraph 7(1)(b) and (c) inserted
by regulation 4 "are constructed in such a way as to fall
totally within paragraph (a)", but argues that this is appropriate
in the light of the Committee's earlier concerns, in order to
state the law explicitly for cases falling within the lacuna created
by the earlier instrument. Simply extending the class as achieved
by new paragraph 7(1)(a) would have met the Committee's earlier
point entirely; and had emphasis or publicity been thought necessary
in connection with the removal of the earlier lacuna, the Explanatory
Note or other explanatory material would have been the correct
place for it. To include unnecessary provisions in legislation
for the sake of emphasising changes in the law is likely to confuse
the reader and to invite arguments about what the legislative
intent of the apparently unnecessary provisions may have been.
The Committee accordingly reports regulation 4 for defective
drafting.
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