At its meeting on 22 July 2020 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 three 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.
1.1The Committee draws the special attention of both Houses to these two sets of Regulations on the ground that they each require elucidation in the same respect.
1.2In each of these instruments, regulation 3 imposes a new a duty on landlords to provide information to the Secretary of State or the relevant Northern Ireland Department “within one month of being required to do so”. The Committee asked the Department for Work and Pensions to clarify whether the period within which the information must be supplied begins on the date on which a person is directed to provide that information, on the day after that date, or on some other day. In a memorandum printed at Appendix 1, the Department asserts that the period begins on the date on which the Secretary of State communicates the requirement to the landlord. The Department adds that it chose to use the same wording as is used elsewhere in the amended instruments to avoid implying a difference as to the intended meaning. The Committee notes that statutory periods must be drafted with precision so that the date on which a period begins or ends is beyond doubt, which it is not in this case. The Committee accepts, however, that internal consistency in the amended instruments was a relevant factor in this case. The Committee accordingly reports regulation 3 of each instrument as requiring elucidation, provided in the Department’s memorandum.
2.1The Committee draws the special attention of both Houses to these Rules on the ground that there is a doubt as to whether they are intra vires in one respect.
2.2These Rules, made by the Lord Chancellor, set out the procedure for the conduct of smart meter communication licensee (SMCL) administration proceedings in England and Wales. Rule 194 confers power on the Secretary of State to make regulations relating to the functions of an SMCL administrator. Rule 194(2) allows the regulations to confer discretion on the court and to make non-compliance a criminal offence. The Committee asked the Ministry of Justice to clarify the enabling power for these provisions. In a memorandum printed at Appendix 2, the Department states that it relies on paragraphs 27, 28 and 30 of Schedule 8 to the Insolvency Act 1986 (glossed by relevant provisions of the Energy Act 2004 and the Smart Meters Act 2018). Those paragraphs set out three types of provision which rules made by the Lord Chancellor may contain, namely:
27 Provision conferring power on the Secretary of State or the Treasury to make regulations with respect to so much of any matter that may be provided for in the rules as relates to the carrying out of the functions of the [SMCL administrator].
28 Provision conferring a discretion on the court.
30 Provision making non-compliance with any of the rules a criminal offence.
2.3The Department asserts that the delegation of a delegation is permitted because: “Paragraph 27 enables the rules to confer power on the Secretary of State to make regulations with respect to any matter “that may be provided for in the rules”. Paragraphs 28 and 30 are amongst the matters that may be provided for in the rules”.
2.4The Committee does not agree. Parliament clearly intended to allow the rules to create judicial jurisdiction and criminal offences. A power for the rules to allow regulations to do those things would need to be expressed, given the presumptions against the creation of jurisdiction and the creation of criminal offences. (The general reference to matters “that may be provided for in the rules” is insufficient, as it could be confined to descriptions of substantive policy.) The Committee accordingly reports rule 194(2) on the ground that there is a doubt as to whether it is intra vires.
Published: 24 July 2020