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Twenty-sixth Report of Session 2016-17 Contents

Instruments reported

At its meeting on 29 March 2017 the Committee scrutinised a number of Instruments in accordance with Standing Orders. It was agreed that the special attention of both Houses should be drawn to eleven of those considered. The Instruments and the grounds for reporting them are given below. The relevant Departmental memoranda are published as appendices to this report.

1Draft. S.I.: Reported for doubtful vires and for unexpected use of powers

Non-Contentious Probate Fees Order 2017

The Committee draws the special attention of both Houses to this draft Order on the grounds that, if it is approved and made, there will be a doubt whether it is intra vires, and that it would in any event make an unexpected use of the power conferred by the enabling Act.

Introduction

1.1Probate fees are payable by executors when they apply for a grant of probate, a formal document needed to administer a deceased person’s estate. Fees must be paid by the executors in advance, but they can recover them from the estate once probate is issued. Applications for probate are made to the Probate Registry, which is part of the High Court of England and Wales. The Registry’s work is essentially administrative, and it deals exclusively with non-contentious cases. If a will is contested, separate proceedings have to be commenced in the Chancery Division of the High Court for which separate fees are payable.

1.2Currently a flat fee of either £155 is payable upon a probate application made by a solicitor or £215 for an application made by an individual1. These fees were set only in 20142. They raise £45 million per year, which recovers the full cost of running the Probate Registry.

1.3Paragraph 1 of Schedule 1 to the draft Order would replace these flat fees with a system of bands linked to the value of the estate (before Inheritance Tax), and the same rate applies regardless of whether the applicant is a solicitor or an individual. The amount payable in respect of each band would be as follows:

Value of estate

Proposed fee

Up to £50,000

£0

£50,000 to £300,000

£300

£300,000 to £500,000

£1,000

£500,000 to £1 million

£4,000

£1 million to £1.6 million

£8,000

£1.6 million to £2 million

£12,000

Over £2 million

£20,000

1.4The proposed new Probate Registry fees are expected to generate an estimated £300 million per annum in additional income. This is to be used to fund other areas of the courts and tribunal service. The Explanatory Memorandum justifies the case for revisiting the way in which probate fees are charged because “of the need to make sure that Her Majesty’s Court and Tribunal Service is properly funded to protect the vital principle of access to justice for the long term” and that “court users who can afford to contribute more, should do so”.

Vires

1.5The enabling powers relied on for the proposed Order are section 92 of the Courts Act 2003 (“the 2003 Act”) and section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”). The relevant provisions are reproduced below:

Section 92 of the 2003 Act

(1) The Lord Chancellor may with the consent of the Treasury by order prescribe fees payable in respect of anything dealt with by—

(a) the Senior Courts [which include the High Court],

(b) the family court,

(c) the county court, and

(d) magistrates’ courts.

(2) An order under this section may, in particular, contain provision as to … scales or rates of fees.

Section 180 of the 2014 Act

(1) In prescribing a fee under an enactment specified in subsection (2), the Lord Chancellor may with the consent of the Treasury prescribe a fee which is intended to exceed the cost of anything in respect of which the fee is charged.

(2) The enactments are—

(a) section 92 of the Courts Act 2003 (Senior Courts, county courts and magistrates’ courts fees);

(b) section 54 of the Mental Capacity Act 2005 (Court of Protection fees);

(c) section 58(4)(b) of the Act (Public Guardian fees);

(d) section 42 of the Tribunals, Courts and Enforcement Act 2007 (tribunal fees).

(3) Before prescribing a fee by virtue of subsection (1) under an enactment specified in subsection (2)(a), (b) or (d), the Lord Chancellor must have regard to—

(a) the financial position of the courts and tribunals for which the Lord Chancellor is responsible, including in particular any costs incurred by those courts and tribunals that are not being met by current fee income, and

(b) the competitiveness of the legal services market.

(4) For the purposes of subsection (3)(a), the courts and tribunals for which the Lord Chancellor is responsible are the courts listed in section 1(1) of the Courts Act 2003 and the tribunals listed in section 39(1) of the Tribunals, Courts and Enforcement Act 2007.

(5) …

(6) A fee prescribed by virtue of subsection (1) [under section 92 of the 2003 Act] must be used to finance an efficient and effective system of courts and tribunals.

1.6The Committee asked the Ministry of Justice a number of questions so as to probe whether the Lord Chancellor, in making the draft Order, might be acting beyond the enabling powers referred to above because she would, in substance, be imposing a tax on estates rather than prescribing probate fees.

1.7The Ministry of Justice’s response is contained in a memorandum printed at Appendix 1. In summary this contends that:

1.8The Committee understands that, where a statute authorises the charging of a fee in respect of a service, the word “fee” has connotations of recovery of costs, direct or indirect, incurred in the provision of the service concerned or in the administration of the process, and that there must be express authority to charge a fee which exceeds the cost of the service – in this context, the cost of issuing a grant of probate in an individual case. The Committee acknowledges that section 180 of the 2014 Act provides that authority. Nonetheless it remains a power to prescribe a “fee”, a concept which is subject to inherent limitations about the relationship to the service for which it is charged – including (arguably) one of proportionality4. The Lord Chancellor is not permitted to impose a tax.

1.9Therefore, despite the arguments put forward by the Ministry of Justice, the Committee has a real doubt as to whether the Lord Chancellor may use a power to prescribe non-contentious probate fees for the purpose of funding services which executors do not seek to use – namely those provided by courts and tribunals dealing with litigation. Applying for probate is not to be compared with the commencement of proceedings. A person can choose whether to litigate, and therefore whether to incur the fees payable on issuing a claim – which may be recoverable from the defendant if the case succeeds. In contrast, executors have to obtain probate to allow them to administer an estate, and the fee for doing so is not refundable. This is an administrative process, akin to the registration of a life event. Nobody applying for an uncontested probate would think for a moment that they were engaging in litigation. That makes it difficult for the Committee to accept that a power to charge enhanced court fees can be extended naturally to require probate fees to reflect the general costs of the court and tribunal system.

1.10The Ministry of Justice relies on section 180(3) which obliges the Lord Chancellor, in prescribing enhanced fees, to have regard to the financial position of the courts and tribunals for which she is responsible (including in particular any costs incurred by those courts and tribunals that are not being met by current fee income) and to the competitiveness of the legal services market. However, the Committee is not convinced that this generally-worded provision gives the Lord Chancellor, in exercising the specific power to prescribe probate fees, a licence to compel executors to pay whatever amounts she regards as appropriate for the purpose of providing funds for the courts and tribunals – as opposed to the Probate Registry in particular. If Parliament had intended to confer power on the Lord Chancellor to legislate in such a way, the Committee would have expected to see far more explicit provisions in section 180 enabling her to do so5.

1.11The charges provided for in paragraph 1 of Schedule 1 to the draft Order appear to the Committee to have the hallmarks of taxes rather than fees, particularly in view of the amounts that would payable for larger estates and the scale of the proposed increases (from £155 to as much as £20,000 – a rise of nearly 13,000%) – and because the charges are disproportionate to the service provided by the Probate Registry.

1.12It is an important constitutional principle that there is no taxation without the consent of Parliament, which must be embodied in statute and expressed in clear terms. This principle is enunciated in the following extract from the Court of Appeal’s judgment in Attorney-General v Wilts United Dairies Ltd (1921) TLR 884:

“If an officer of the executive seeks to justify a charge on the subject made for the use of the Crown (which includes all the purposes of the public revenue), he must show, in clear terms that Parliament has authorised the particular charge. The intention of the Legislature is to be inferred from the language used, and the grant of powers may, though not expressed, have to be implied as necessarily arising from the words of the statute; but in view of the historic struggle of the Legislature to secure for itself the sole power to levy money on the subject, its complete success in that struggle, the elaborate means adopted by the Representative House to control the amount, the conditions and the purposes of that levy, the circumstances would be remarkable indeed which would induce the Court to believe that the Legislature had sacrificed all the well-known checks and precautions, and not, in express words, but merely by implication, had entrusted a Minister of the Crown with undefined and unlimited powers of imposing charges upon the subject for the purposes connected with his department.”

1.13The Committee is doubtful whether section 180 of the 2014 Act does in express words entrust the Lord Chancellor with the power to impose charges of the magnitude proposed by the draft Order and for the purposes connected with her department specified in the Explanatory Memorandum.

The Committee therefore reports paragraph 1 of Schedule 1 to the draft Order on the ground that there appears to be doubt as to whether it would be intra vires.

Use of powers

1.14The Committee also asked the Ministry of Justice to explain what indication was given to Parliament, during the passage of the Bill for the 2014 Act, that the power to prescribe probate fees would be used for the purpose in the way proposed.

1.15In paragraphs 14 to 16 of its memorandum to the Committee, the Ministry of Justice points in particular to the following statements made by the Minister in the House of Commons:

1.16The clause which became section 180 was debated only briefly during the passage of the Bill for the 2014 Act. Appendix 1A sets out all the relevant material identified by the Committee in the legislative history of what is now section 180, including the Ministerial statements highlighted by the Ministry of Justice.

1.17The emphasis in the debates was on how any proposed enhanced court fees might affect the costs of litigation. Nothing, however, appears to have been said about probate fees which, of course, are not a cost of litigation.

1.18The Appendix includes an extract from the Ministry of Justice’s memorandum to the House of Lords Delegated Powers and Regulatory Reform Committee. This explained that the Government were seeking to take the section 180 power so that it could give effect to its normal rule that “fees should be set at a level to recover the full cost of providing the service” and that power to prescribe enhanced fees was needed so as to secure that “users of a service should contribute more to the cost of that service where they can afford to do so, in order that the courts are properly resourced”. This did not suggest that persons applying for probate might be required to contribute to the cost of a service unrelated to the grant of probate.

1.19Indeed the Committee can find no evidence that the Government suggested to Parliament that the section 180 power would be used to prescribe probate fees in order to fund the operation of the courts and tribunals service generally, or to provide for such large and immediate increases of fees in the way now proposed.

1.20The Committee is also aware that, according to the Treasury’s publication Managing Public Money, the Office of National Statistics (ONS) normally classifies charges higher than the cost of provision, or not clearly related to a service to the charge payer, as taxes6. In its memorandum, the Ministry of Justice says that the ONS has not yet taken a view on whether to classify the proposed probate fees as a tax for accounting purposes; and that even if it did, this could have no bearing on the interpretation of section 180 of the 2014 Act. While the Committee agrees that the ONS classification is not relevant to the question of whether there is power to make the proposed Order, it considers that this reference in Managing Public Money is a further indication that the Lord Chancellor is proposing to use the power in a surprising way.

The Committee therefore reports paragraph 1 of Schedule 1 to the draft Order on the ground that it would make an unexpected use of the power conferred by section 180 of the Anti-social Behaviour, Crime and Policing Act 2014.

2S.I. 2017/66; S.I. 2017/112: Reported for unjustifiable delay in laying before Parliament

Fixed Penalty (Amendment) Order 2017

Contracts for Difference (Standard Terms) (Amendment) Regulations 2017

2.1The Committee draws the special attention of both Houses to this Order and these Regulations on the ground that there appears to have been unjustifiable delay in laying them before Parliament.

2.2The Order amends the Fixed Penalty Order 2000 to increase to £200 the fixed penalty amount for the offence of using a hand-held communication device while driving. The Regulations amend the Contracts for Difference (Standard Terms) Regulations 2014 to enable the associated Contracts for Difference (“CFD”) Standard Terms and Conditions to set out when payments to generators under a CFD will not be made.

2.3In both cases, there was a delay in laying before Parliament and each Department was asked to explain the significant interval between making and laying.

2.4The Order was made on 24 January 2017 and was not laid before Parliament until 6 February. In a memorandum printed at Appendix 1, the Department for Transport explains that the delay was in part due to a delay in registration. The Department accepts that the Order could have been laid earlier and apologises to the Committee for the delay.

2.5The Regulations were made on 24 January 2017 and were not laid before Parliament until 8 February. In a memorandum printed at Appendix 1A, the Department for Business, Energy and Industrial Strategy explains that it intended to lay the instrument before Parliament at the same time as publishing a package of other CFD documents in advance of a forthcoming CFD allocation round. For operational reasons the publication of the package of documents was delayed until 8 February 2017. The Department acknowledges that in these circumstances the laying of the instrument should not have been delayed and apologises to the Committee for the delay.

2.6The Committee repeats what it said in its Seventeenth Report of Session 2014–15 (in relation to S.I. 2014/2821) and its Twelfth Report of Session 2015–16 (in relation to S.I. 2015/1776) that it is difficult to imagine why it could have been necessary to postpone such a simple administrative step as laying before Parliament. The statutory arrangements for laying before Parliament remain part of the required formal measures by which publicity is assured and they should not be neglected on account of other informal measures being taken or for other administrative reasons. The Committee considers that, as a general rule and in the absence of exceptional circumstances, a delay of 10 calendar days or more will amount to an unjustifiable delay.

2.7The Committee accordingly reports the Order and the Regulations for unjustifiable delay in laying before Parliament, acknowledged by both Departments.

3S.I. 2017/84: Reported for requiring elucidation and for defective drafting

Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) (Amendment) Regulations 2017

3.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in three respects (two of which are related) and are defectively drafted in two respects.

3.2The Regulations, prepared by the Ministry of Defence, amend three previous instruments covering Ministry police, two of which are referred to in the Explanatory Note as “the Conduct Regulations” and “the Appeals Tribunals Regulations”.

3.3Regulations 14 and 27 respectively amend regulations 38 and 56 of the Conduct Regulations and cover the new concept of a further meeting or hearing following misconduct or disciplinary proceedings. Those amendments fall to be considered together, in the case of regulation 14, with regulation 8 inserting new regulation 24A and, in the case of regulation 27, with regulation 20 inserting new regulation 45A into the Conduct Regulations. Both new regulation 24A(1) and new regulation 45A(1) provide for the Secretary of State to give a written direction in relation to the proceedings denying or restricting public access in the interest of national security, and both new regulation 24A(4) and new regulation 45A(4) require the person in charge of the proceedings to comply with the direction. In amending regulation 38 of the Conduct Regulations, regulation 14(6)(a) applies regulation 24A(4) to the further stage but not regulation 24A(1); in amending regulation 56 of the Conduct Regulations, regulation 27(6)(a) applies regulation 45A(4) to the further stage but not regulation 45A(1). The Committee sought an explanation for imposing a requirement to comply with a direction without providing for the giving of the direction. In a memorandum printed at Appendix 2, the Department states that the direction “will already have been given” in relation to the earlier proceedings before they “become” a further meeting on hearing. The Committee accepts that this is a plausible construction, although it depends on treating the further meeting or hearing as part of the original proceedings as opposed to a separate stage. The Committee accordingly reports regulations 14(6)(a) and regulation 27(6)(a) as requiring elucidation, provided in the Department’s memorandum.

3.4Regulation 26 replaces regulation 56 of the Conduct Regulations. In new regulation 56 paragraph (1) states that, subject to paragraph (2), a special case hearing must be in public. Paragraph (2)(a) empowers the person in charge to exclude from the whole or any part of it any person whose right to attend is just as a member of the public (there are other rights to attend arising from regulations 53 and 54 of the Conduct Regulations) but no criterion for exclusion is set out, while regulation (2)(b) entitles the person in charge to impose conditions on an individual’s attendance “in order to facilitate the proper conduct of the hearing”. This apparent anomaly was queried by the Committee. In its memorandum the Department states that it is following the precedent in the Police Conduct Regulations 2012, regulation 52. The original form of that regulation applied the facilitation criterion both to exclusion and imposition of conditions. It was replaced by regulation 16 of the Police Conduct (Amendment) Regulations 2015 and the relevant paragraph now reads as follows:

“(2) The person conducting or chairing the special case hearing may—

(a)in relation to the attendance at the hearing of a person under this regulation, exclude any person as he sees fit from the whole or a part of it; and

(b)impose such conditions as he sees fit relating to the attendance under this regulation of any person at the hearing in order to facilitate the proper conduct of it.”.

3.5It follows that the exclusion power under regulation 52 of the 2012 precedent cited was never unconstrained – it was originally constrained by purpose and then constrained by what it could relate to. Paragraph (3) prohibits the attendance at a special case hearing of any witness and companion before the witness is called on to give evidence, but paragraph (1) is not expressed to be subject to it. In response to the Committee’s query, the Department in its memorandum justifies the silence on the point on the basis that paragraph (2) is a matter of discretion while paragraph (3) is a separate general rule. In the Committee’s view that is a distinction without a difference. Both equally vary the proposition that a special case hearing must be in public. The Committee accordingly reports regulation 26, in so far as it inserts regulation 56(2)(a) of the Conduct Regulations, as requiring elucidation incompletely provided in the Department’s memorandum and, in so far as it inserts regulation 56(3) of the Conduct Regulations without making regulation 56(1) subject to it, for defective drafting.

3.6Regulation 38(7) amends regulation 3(1) of the Appeals Tribunals Regulations by moving a specific definition “to the appropriate place in the alphabetical order”. In response to the Committee’s query on the point the Department in its memorandum accepts that the definition in question was already in the right place – it had relied on a website that was inaccurate. The Committee reports regulation 38(7) for defective drafting, acknowledged by the Department.

4S.I. 2017/85: Reported for failure to comply with accepted drafting practice and for defective drafting

Export Control (Amendment) Order 2017

4.1The Committee draws the special attention of both Houses to this Order on the grounds that it fails to comply with accepted drafting practice in one respect and is defectively drafted in another respect.

4.2The Order, prepared by the Department for International Trade, amends the Export Control Order 2008 to implement amendments made to Directive 2009/43/EC of the European Parliament and the Council by Commission Directive (EU) 2016/970; it relates to defence-related products subject to export control. The Schedule, which inserts a replacement Schedule 2 into the 2008 Order, largely follows the copy-out method of transposition.

4.3The opening section of replacement Schedule 2 contains definitions. One of them is a definition of the term “pyrotechnic(s)”. This is taken directly from the Annex to the 2009 Directive as amended, but it does not conform to standard drafting practice for United Kingdom legislation. The copy-out method of transposition would not be compromised by ensuring that in matters like this the text conforms to standard UK legislative practice, variations from which can in principle be confusing for readers. The Department’s memorandum printed at Appendix 3, in response to the Committee’s question about the definition, adds nothing to change this position; and the Committee accordingly reports the definition of “pyrotechnic(s)” for failure to comply with accepted drafting practice.

4.4Item ML17P in replacement Schedule 2 identifies fuel cells specially designed or modified for military use as a class of the defence related product but limits the class to such cells other than those specified elsewhere in the Schedule itself. The term “fuel cell” appears nowhere else in the Schedule except in the list of definitions at the start. In response to the Committee’s query on that point, the Department in its memorandum explains that they can be “specially designed components in a variety of other ML control entries”. The memorandum does not specify which ones and it appears to the Committee that there is a mismatch in the terminology – it would have been more accurate to exclude from the class fuel cells in so far as they formed components of products specified elsewhere in the Schedule. Furthermore the item fails accurately to replicate the equivalent item in the Annex, which refers to specification in “the EU Common Military List”, and, while it is the duty of the EU Commission, under article 13 of the 2009 Directive, to adapt the Annex to correspond strictly with that list, it is reasonably predictable that between alteration of the list and adaptation of the Annex a mismatch may exist. The Commission accordingly reports scheduled item ML17P for defective drafting.

5S.I. 2017/91: Reported for requiring elucidation

Social Housing Rents (Exceptions and Miscellaneous Provisions) (Amendment) Regulations 2017

5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.

5.2The Regulations, prepared by the Department for Communities and Local Government, amend 2016 Regulations that specified terms for exceptions from the duty on providers of social housing to limit charges by reference to amounts laid down in the Welfare Reform Act 2016. Paragraph 1 of Schedule 2 to the 2016 Act is modified in relation to particular circumstances by new regulations 11A and 11B of the 2016 Regulations, as inserted by regulation 6. The modification in part requires an “assumed rent rate” to be modified by “adjusting the rate by the specified percentage”.

5.3The Committee considered the requirement for adjustment rather obscure (noting in particular that read literally, it could require adjustment upwards or downwards, and it is unclear exactly what is being adjusted). It asked the Department to explain, with the aid of examples, what the changes were intended to achieve and how effect had been given to the Department’s intentions.

5.4In a memorandum printed at Appendix 4, the Department sets out its intentions with helpful clarity and thoroughness. In particular the table at the end of paragraph 15 of the memorandum makes it clear that the adjustment factor is to be applied to 110% of “the rate” rather than the rate itself. Although that is not what modified sub-paragraph (4) achieves when read literally, the Committee is persuaded by the Department’s memorandum (which will now be in the public domain as a result of publication in this Report) that this is the most likely construction; although there are clearer ways of presenting the modifications which might be considered for future use. Accordingly, the Committee reports regulation 6 as requiring elucidation, provided in the Department’s memorandum.

6S.I. 2017/95: Reported for requiring elucidation

Civil Procedure (Amendment) Rules 2017

6.1The Committee draws the special attention of both Houses to these Rules on the ground that they require elucidation in one respect.

6.2The Rules were made by the Civil Procedure Rule Committee and allowed by the Lord Chancellor under section 2 of the Civil Procedure Act 1997. They amend the Civil Procedure Rules 1998. Section 2(6)(a) of the 1997 Act contains a prior requirement of consultation by the Rules Committee, in a case where such Rules are made or amended, of “such persons as they consider appropriate”.

6.3The preamble to the Rules recites that the consultation took place but paragraph 8.1 of the Explanatory Memorandum published with the Rules states that the Rules Committee “did not consider that any of the proposals for rules before it required separate consultation”. The Committee sought an explanation for the inconsistency.

6.4In a memorandum printed at Appendix 5 the Department apologises for the shortfalls in the Explanatory Memorandum, undertakes to improve its practice in explaining compliance with consultation requirements and explains that the preamble was accurate. It adds that as well as the consultation carried out by the Department itself, there was sufficient consultation by the Rules Committee though not by means of a formal consultation document. (While consultation by the Department cannot directly satisfy a duty to consult imposed on the Rules Committee, the Committee notes that there is some authority in an unreported decision of the High Court (Pelling v SSHD 5 December 2011) to the effect that consultation carried out by one authority can be taken into account in establishing the validity of a relatively limited consultation by another authority.). The Committee accordingly reports the preamble to the Rules as requiring the elucidation provided in the Department’s memorandum.

7S.I. 2017/106: Reported for unexpected use of the enabling powers

Electricity (Connection Charges) Regulations 2017

7.1The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unexpected use of the enabling powers in one respect.

7.2These Regulations, made under powers in Schedule 5B to the Electricity Act 1989, make provision for persons who have paid an electricity distributor for a connection to an electricity distribution network to receive contributions to the cost of the payments where subsequent connections are made to the network for the purposes of the same premises or distribution system.

7.3Regulation 7 provides that an electricity distributor must demand that a person obtaining a subsequent connection make a reimbursement payment of part of the costs of the person for whom the previous connection was made. But under paragraph (5)(a) no reimbursement has to be demanded if, after deduction of administrative expenses, its amount would be less than £300. Under regulation 9, where an electricity distributor has received a reimbursement payment it must pay it (after deduction of expenses) to persons who made contributions to the costs of the previous connection (“eligible persons”). But under paragraph (3)(a) no payment is required to be made by the electricity distributor to an eligible person if the payment to that eligible person would be less than £300.

7.4The Committee was concerned that the effect of regulations 7(5)(a) and 9(3)(a), taken together, could involve the electricity distributor being left with some or all of an amount reimbursed to it with no obligation to distribute it to eligible persons. It accordingly asked the Department of Business, Energy and Industrial Strategy to provide an explanation.

7.5In a memorandum printed at Appendix 6, the Department accepts the identified mismatch between the provisions about reimbursement to, and payments by, electricity distributors and accepts that the aggregate effect of regulations 7(5)(a) and 9(3)(a) is indeed to give rise to the possibility that a person obtaining a subsequent connection has to make a reimbursement payment in circumstances in which the electricity distributor who receives it is not required to pay all (or indeed any) of it to eligible persons. It goes on to explain that under the regulations superseded by these regulations, reimbursement was required to be demanded by a distributor only if the result would be that at least one eligible person would receive £300 or more. On that approach it was, of course, possible that the electricity distributor would not end up paying over the whole amount of the reimbursement, though a payment would always have been made to at least one eligible person. But the changes made in these regulations make it a possibility for the first time that there will be cases in which reimbursement is required to be demanded but no payment (to anyone) is required to be made.

7.6The Committee believes the policy underlying Schedule 5B to the Electricity Act 1989 to be to secure that, where there has been a subsequent connection, the cost of the previous connection is shared between the person for whom the previous connection was made and the person for whom the subsequent connection (which takes advantage of the previous connection) was made. The Committee believes that in the respect identified the Regulations fail to deliver that policy, in so far as in the case described money will in fact, as accepted by the Department, be retained by the electricity distributor. The Committee accordingly reports regulations 7(5)(a) and 9(3)(a) for making an unexpected use of the enabling powers.

8S.I. 2017/121: Reported for requiring elucidation

Qualifications Wales Act 2015 (Consequential Provision) Order 2017

8.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect.

8.2This Order is made under section 150 of the Government of Wales Act 2006, subsection (1)(a) of which gives the Secretary of State power by order to make provision consequential on any provision of an Act of the National Assembly for Wales.

8.3Article 2(2) revokes paragraph (c) of the definition of “educational qualification” in regulation 22 of S.I. 1999/2864 (“paragraph (c)”): that definition was inserted in 2010. Paragraph (c) refers to qualifications accredited under section 24(2)(g) or 30(1)(e) of the Education Act 1997. As enacted, section 24 of that Act applied to both England and Wales but in 2005 it was disapplied in relation to Wales. Section 24 was subsequently repealed in 2009 and the repeal was commenced for England in 2010, just before the insertion of the definition of “educational qualification” was made.

8.4The Committee readily understood why the revocation of the reference to section 30 in paragraph (c) is consequential on the Qualifications Wales Act 2015 (“the 2015 Act”): that section (which applied only to Wales) was itself repealed by the 2015 Act. But the Committee wondered how, in the light of the legislative history of section 24, removing the reference to that section could be regarded as consequential on the 2015 Act. The Committee accordingly asked the Wales Office to explain the source of the power to include in article 2(2) the revocation of whole of paragraph (c).

8.5In a memorandum printed at Appendix 7, the Department gives a helpful account of the complex legislative history and points out that in 2010, but after the date on which the definition of “educational qualification” was inserted into S.I. 1999/2864, the repeal of section 24 was commenced for Wales. The Department therefore assumed that (despite the 2005 disapplication) section 24 might have still operated in some way for Wales until that commencement. The memorandum goes on to suggest that, when removing the reference to section 30 in consequence of the 2015 Act, it would have been odd to leave paragraph (c) in place, just referring to a provision that by then had plainly been spent for a long time.

8.6The Committee is prepared to accept the Department’s assumption that the reference to section 24 might conceivably originally have had some effect in relation to Wales and that the reform of the system of educational qualifications in Wales by the 2015 Act therefore makes its continued existence a source of confusion. But the Committee considers that removing the reference pushes the power in section 150 to near its limits, because (whatever effect it may have had) it was spent well before the 2015 Act was passed. The Committee is not satisfied that the power conferred by section 150 to make provision consequential on provision made by Welsh legislation is apt to allow the general tidying-up of the statute book by the clearing away of provisions that are or may be spent or no longer of practical utility. On this occasion there is a link between the revoked reference and 2015 Act in terms of subject-matter which just about sanctions the inclusion of the revocation even if the removal of the reference is not an inevitable consequence of a provision of the 2015 Act.

8.7The Committee accordingly reports article 2(2) as requiring the elucidation set out in the Department’s memorandum, as amplified in this Report.

9S.I. 2017/144: Reported for defective drafting

Criminal Procedure (Amendment) Rules 2017

9.1The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted in one repeated respect.

9.2The Rules, made by the Criminal Procedure Rule Committee, amend the Criminal Procedure Rules 2015. Rule 11 inserts a new rule (47.39) and renumbers previous rules 47.39 to 47.57 as rules 47.40 to 47.58 respectively. It also correctly amends references in rule 47.1 to the renumbered provisions. However, in the four of the renumbered provisions themselves, there are references to other renumbered provisions that have been left unchanged. The Committee queried that apparent omission.

9.3In a memorandum printed at Appendix 8 the Ministry of Justice apologises for the oversight, thanks the Committee for drawing attention to it and indicates that it will arrange rectification at the earliest possible opportunity. The Committee reports rule 11 for defective drafting, acknowledged by the Department.

10S.I. 2017/194: Reported for requiring elucidation

Social Security (Personal Independence Payment) (Amendment) Regulations 2017

10.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.

10.2These Regulations concern entitlement to personal independence payment. Personal independence payment has two components: the daily living component and the mobility component. Each component is payable at a standard rate and an enhanced rate.

10.3A person is entitled to the mobility component at the enhanced rate if the person’s ability to carry out mobility activities is severely limited by the person’s physical or mental condition (section 79(2)(b) of the Welfare Reform Act 2012). Whether a person’s ability to carry out mobility activities is severely limited by the person’s physical or mental condition is to be determined by regulations; and the regulations must provide for the questions to be determined on the basis of an assessment (or repeated assessments) of the person and for the way in which an assessment is to be carried out and may make provision about matters which are, or are not, to be taken into account in assessing a person.

10.4Part 3 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (S.I. 2013/377) (“the 2013 Regulations”) specifies the matters to be taken into account in assessing whether a person is entitled to the mobility component at the enhanced rate. The matters are grouped under the separate activities of “planning and following journeys” and “moving around”. For both of those activities a number of “descriptors” are specified and a person is awarded a specified number of points for satisfying a descriptor. A person needs to be awarded 12 points to be entitled to the mobility component at the enhanced rate. A person can score points for both activities but not for more than one descriptor relating to the same activity.

10.5In MH v Secretary of State for Work and Pensions [2016] UKUT 0531 (AAC) the Upper Tribunal decided that a person could be awarded points under descriptors c, d and f relating to the activity of planning and following journeys because of the effects of psychological distress (but could not score points relating to the activity of moving around because of such effects). Regulation 2(4) reverses the Upper Tribunal’s decision on the planning and following journeys activity by amending descriptors c, d and f to make it clear that they cannot be satisfied for reasons of psychological distress.

10.6The Committee wondered whether the cumulative effect of the amendments made by regulation 2(4) and the Upper Tribunal’s finding on the moving around activity might be that a person with a mental condition could never be entitled to the mobility component at the enhanced rate. The Committee accordingly asked the Department for Work and Pensions to explain whether that was so and—

(a)if it was, whether that is consistent with the section 79(2)(b) of the Welfare Reform Act 2012, and

(b)if it was not, in what sorts of circumstances such an entitlement can arise.

10.7In a memorandum printed at Appendix 9, the Department asserts that the amendments do not have the effect referred to in the question and, after a general discussion of the notions of “mental condition” and “psychological effects”, gives examples of cases in which a person with a mental condition (unaccompanied by a physical condition) could still be entitled to the mobility component of personal independence payment at the enhanced rate. In essence the examples rely on the fact that the notions of “mental condition” and “psychological distress” (which is defined in Schedule 1 to the 2013 Regulations as distress related to an enduring mental health condition or an intellectual or cognitive impairment) are not synonymous. Distress is not itself a mental (or physical) condition but a symptom (which may come and go) of a mental (or physical) condition.

10.8The Committee is grateful for that explanation and the examples and notes that on that basis (which will now be a matter of public record as a result of the publication of the memorandum in this report) that the provision made by regulation 2(4) does not automatically secure that a person with a mental condition cannot ever be entitled to the mobility component at the enhanced rate, whether by accruing 12 points for meeting descriptor f relating to the planning and following up journeys activity or a combination of points under another descriptor relating to that activity and points relating to the moving around activity. Although the change prevents someone acquiring that entitlement because of the effects of psychological distress, the Committee accepts on the basis of the distinction drawn by the Department that the change does not entirely negate the effect of the reference to a “mental condition” in section 79(2)(b) because there are circumstances where a person suffering from a mental condition may be entitled to the mobility component at the enhanced rate. The Department’s explanation therefore satisfies the Committee’s technical concerns as to whether the changes made are in the reasonable legislative contemplation of the enabling powers; whether the policy that they achieve is desirable is not a matter for the Committee and can be considered elsewhere should Parliament so wish. The Committee accordingly reports regulation 2(4) as requiring the elucidation set out in the Department’s memorandum.

1 No fee is currently payable if the value of the estate does not exceed £5,000.

2 See the Non-Contentious Probate Fees (Amendment) Order 2014 (S.I. 2014/876).

3 S.I. 2015/576.

4 See the Supreme Court’s judgment in R (on the application of Hemming) v Westminster City Council [2015] UKSC 25.

5 See, for example, section 102 of the Finance Act (No. 2) 1987 which expressly links fee increases to specified matters; and section 42 of the Asylum and Immigration Act (Treatment of Claimants, etc.) Act 2004 which confers a power to charge profit-level fees for the issue of a certificate conferring a right of abode in the UK so as to reflect benefits that are likely to accrue to the person to whom it is issued.

6 H.M. Treasury, Managing Public Money, para 6.4.3.



30 March 2017