Instruments reported
At its meeting on 23 September 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 seven 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.
1S.I. 2020/720: Reported for requiring elucidation
Court Fees (Miscellaneous Amendments) Order 2020
1.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect.
1.2This Order reduces several fees charged under the Non-Contentious Probate Fees Order 2004, the Family Proceedings Fees Order 2008, the Civil Proceedings Fees Order 2008 and the Magistrates’ Courts Fees Order 2008. The fees are reduced to a level that reflects an estimate of the cost of the service being provided. In the Explanatory Memorandum, the Ministry of Justice states that a refund scheme will not be launched in respect of the fees reduced by this instrument and the Committee asked for further explanation (having regard to the Court of Protection, Civil Proceedings, and Magistrates Courts’ Fees (Amendment) Order 2018 in relation to which a refund scheme was established for over-charged fees). In a memorandum printed at Appendix 1, the Department explains that in the case of the 2018 Regulations a refund scheme was necessary because, not only had the fees been found to be over-recovering as compared to cost, they had also been found not to have been based on a reasonable predictive estimate of cost. In the case of the fees reduced by this Order, the Department explains that they were based on a reasonable predictive estimate of cost and were promptly corrected and therefore no refund scheme will be available. The Committee notes the Department’s policy, and accordingly reports the Order as requiring elucidation provided in the Department’s memorandum.
2S.I. 2020/738: Reported for failure to comply with proper legislative practice
Official Feed and Food Controls (England) (Amendment) Regulations 2020
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in one respect.
2.2These Regulations correct an omission in the Official Feed and Food Controls (England) Regulations 2009. The Committee asked the Food Standards Agency why the free issue procedure was not used. In a memorandum printed at Appendix 2, the Department explains that this was an oversight which it will rectify. The Committee accordingly reports these regulations for failure to comply with proper legislative practice, acknowledged by the Department.
3S.I. 2020/744: Reported for defective drafting
Co-operative and Community Benefit Societies and Credit Unions Arrangements, Reconstructions and Administration) (Amendment) and Consequential Amendments Order 2020
3.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in two respects.
3.2This Order makes provision applying to co-operative societies and community benefit societies the provisions in the Corporate Insolvency and Governance Act 2020 relating to moratoriums, arrangements and reconstructions for companies in financial difficulty. The Committee asked HM Treasury to explain why Article 7(c) refers to “Part 2 of Schedule 2A” when there appears to be no Part 2 and why the shoulder heading to Schedule 2A refers to article 2(2A) when there appears to be no article 2(2A). In a memorandum printed at Appendix 3, the Department confirms that the references are both erroneous (the first reference should have been to “Schedule 2A”and the shoulder note to that Schedule should only have referred to article 2(4)). The Department undertakes to correct these errors at the next convenient opportunity. The Committee accordingly reports article 7(c) and Schedule 2A for defective drafting, acknowledged by the Department.
4S.I. 2020/751: Reported for defective drafting and for requiring elucidation
Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020
4.1The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted in one respect and require elucidation in one respect.
4.2These Rules make provision about how possession proceedings and enforcement proceedings which were stayed until 23 August 2020 are to proceed after that stay expires. The Rules come into force on 23 August. Rule 2(a) adds new rule 34.7A to the list of contents for Part 55 and describes it as a temporary provision. Rule 34.7A is inserted into the Civil Procedure Rules by Rule 9(2) of S.I. 2020/747 and the insertion comes into force on 1 October 2020. The Committee asked the Ministry of Justice to explain. In a memorandum printed at Appendix 4, the Department explains that rule 2(a) should refer to “Rule 55.A1” not “Rule 34.7A” and undertakes to rectify the error when the Civil Procedure Rules are next updated. The Committee accordingly reports rule 2(a) for defective drafting, acknowledged by the Department.
4.3The Department’s memorandum also explains why the new rule is described as a temporary provision, and the Committee accordingly reports rule 2(a) for elucidation provided by the Department’s memorandum.
5S.I. 2020/812: Reported for defective drafting
Road Vehicles (Certificates of Temporary Exemption) Regulations 2020
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
5.2These Regulations allow the Secretary of State to issue certificates of temporary exemption to certain vehicles in specified circumstances. Before revoking a certificate of temporary exemption, the Secretary of State must give written notice to the relevant licence holder and include in that notice the date and time the certificate of temporary exemption will be revoked, which must be no sooner than 24 hours after the time the notice was issued (regulation 6(2)(b)(iii)). The Committee asked the Department for Transport to explain whether, having regard to the fact that this 24-hour period runs from the issue of the notice, that period could expire before the written notice is received by the licence holder. In a memorandum printed at Appendix 5, the Department explains that it does not foresee any situation arising in which a licence holder would be unaware of the imminent revocation of certificates applying to vehicles used under their licence either because the notice would be sent to a licence holder electronically and be received immediately or because steps would be taken to dispatch a notice by courier and verbally warn the licence holder. The Committee accepts that the administrative measures proposed will be likely to avoid the expiry of the period before notice is received, but as a matter of principle the provisions should have been framed in such a way as to exclude that possibility altogether. The Committee accordingly reports regulation 6(2) for defective drafting.
6S.I. 2020/818: Reported for requiring elucidation
Road Vehicles (Approval) Regulations 2020
6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
6.2These Regulations provide for enforcement in the UK of Regulation (EU) 2018/858 on road vehicle type approval. Paragraph 39(6) of Schedule 6 makes amendments to the Road Vehicles and Non-Road Mobile Machinery (Type-Approval) (Amendment) (EU Exit) Regulations 2019 including the addition of new regulation 10ZA(3) which amends Regulation (EU) 2018/858 for a period beginning with IP completion day. The Committee asked the Department for Transport to identify the vires for this provision and in particular to confirm whether section 8(1) of the European Union (Withdrawal) Act 2018 should have been cited as an enabling power. In a memorandum printed at Appendix 6, the Department asserts that paragraph 39(6) falls within the vires cited in the instrument (section 2(2) of the European Communities Act 1972) because it is an amendment consequential on the revocation of the Road Vehicles (Approval) Regulations 2009 and their replacement in large part by Regulation (EU) 2018/858. The Department explains that existing provisions in the 2019 Regulations were to have amended the 2009 Regulations to remedy deficiencies related to the United Kingdom’s exit from the European Union and by virtue of the revocation of the 2009 Regulations, and their replacement by the EU Regulation, those provisions needed consequentially to be applied to the EU Regulation instead. Regulations 8, 9 and 10 of the 2019 Regulations were made under section 8(1) of the European Union (Withdrawal) Act 2018 and one would have expected that the amendments made by new regulation 10ZA(3), which are also designed to address deficiencies in retained EU law, would have been made under section 8(1) too; but on the basis of the arguments set out in the Department’s memorandum the Committee accepts that the amendments also fall within the vires of section 2(2)(b) of the 1972 Act. Accordingly, the Committee reports paragraph 39(6) of Schedule 6 as requiring elucidation provided by the Department’s memorandum.
7S.I. 2020/856: Reported for unexpected use of enabling powers
Charitable Incorporated Organisations (Insolvency and Dissolution) (Amendment) (No. 2) Regulations 2020
7.1The Committee draws the special attention of both Houses to these Regulations on the ground that that they make an unexpected use of the enabling power in one respect.
7.2These Regulations modify provisions of Part A1 of the Insolvency Act 1986 (“the 1986 Act”) in their application to charitable incorporated organisations (CIOs). Part A1 was inserted by the Corporate Insolvency and Governance Act 2020 and makes provision for moratoriums to apply in respect of companies. By virtue of paragraph 49 of Schedule 3 to that Act, the provisions of Part A1 also apply to CIOs.
7.3Regulation 5(2) amends the Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations with the effect (amongst other things) of disapplying section A51 of the 1986 Act in relation to CIOs. Section A51 enables the Secretary of State to make regulations in respect of companies which are subject to a moratorium to allow the Board of the Pension Protection Fund to exercise creditor rights in connection with the moratorium. The Committee asked the Department for Digital, Culture, Media and Sport to explain why section A51 was being disapplied, in the light of the fact that the powers conferred by that section are relied on in relation to CIOs in the Pension Protection Fund (Moratorium and Arrangements and Reconstructions for Companies in Financial Difficulty) Regulations 2020 (SI 2020/693), which were made only five weeks before these Regulations.
7.4In a memorandum (printed at Appendix 7), the Department acknowledges that the effect of disapplying section A51 will be to revoke SI 2020/693 to the extent that that instrument applies to CIOs. The Department explains that the decision to disapply section A51 was based on the view that that section was unlikely to have any practical impact for CIOs. However, the Department goes on to state that, because the implied revocation of an aspect of SI 2020/693 is liable to cause confusion and because there is a theoretical possibility that these provisions may be beneficial for CIOs in the future, the Department will bring forward legislation at the next available opportunity to reinstate the application of SI 2020/693 to CIOs.
7.5One matter the memorandum does not address is what communication, if any, took place between DCMS and the Department for Work and Pensions before either this instrument or SI 2020/693 was made. The fact that there is a conflict between the two instruments as to the application of section A51 to CIOs suggests that there may not have been any, which the Committee finds disturbing given the shared policy interest of the two departments.
7.6Accordingly, the Committee reports regulation 5(2) for unexpected use of the enabling power.
Published: 25 September 2020