Twenty-Eighth Report of Session 2019-21 Contents

Instruments reported

At its meeting on 21 October 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.

1S.I. 2020/989: Reported for defective drafting

Social Security (Scotland) Act 2018 (Young Carer Grants, Short-Term Assistance and Winter Heating Assistance) (Consequential Provision and Modifications) Order 2020

1.1The Committee draws the special attention of both Houses to this Order on the ground that the Explanatory Memorandum is defective in one respect.

1.2These Regulations amend social security legislation for Great Britain to provide for the treatment of various social security payments to be made under the Social Security (Scotland) Act 2018. Paragraph 3.1 of the Explanatory Memorandum states that this instrument is made under sections 104, 113(2) and 113(5) of the Scotland Act 1998 but the preamble does not mention section 113(2) (“A power may be exercised so as to make different provision for different purposes”). The Committee asked the Office of the Secretary of State for Scotland to explain the inconsistency. In a memorandum printed at Appendix 1, the Department explains that the preamble correctly cites the enabling powers, acknowledges that an error was made in the Explanatory Memorandum and undertakes to lay a corrected version. The Committee accordingly reports an error in paragraph 3.1 of the Explanatory Memorandum to this instrument, acknowledged by the Department.

2S.I. 2020/1001: Reported for requiring elucidation

Civil Legal Aid (Remuneration) (Amendment) (No.2) (Coronavirus) Regulations 2020

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.

2.2These Regulations amend the fees payable for asylum and immigration cases using the online procedure and make changes to payments on account to barristers in independent practice for civil legal services. Given that this instrument gives effect to policy that was piloted in 2019 and given that the Regulations have no sunset clause, and do not appear to be limited to the emergency period, the Committee asked the Ministry of Justice to explain the reference to coronavirus in the title. In a memorandum printed at Appendix 2, the Department explains that coronavirus was referred to in the title as the digitisation of the First-tier Tribunal (Immigration and Asylum Chamber) was brought forward due to the pandemic and as the reference to coronavirus links this instrument to a previous instrument (the Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020/515). Moreover, the Department asserts that notwithstanding the absence of a sunset clause, the hourly rates set out in this instrument are only intended to be in place on an interim basis and that a formal consultation will take place before a permanent fee is set. The Committee accordingly reports these Regulations for elucidation, provided by the Department’s memorandum.

3S.I. 2020/1002: Reported for requiring elucidation

Taking Control of Goods (Amendment) (Coronavirus) Regulations 2020

3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.

3.2These Regulations increase the minimum amount of net unpaid rent that must be outstanding before commercial rent arrears recovery may take place. Paragraph 12.1 of the Explanatory Memorandum to the instrument states “It has not been possible to conduct a detailed economic assessment in view of time constraints.” The Committee asked the Ministry of Justice to provide details of the process used to balance the competing interests between tenants of commercial premises and landlords, given the absence of a detailed economic assessment. In a memorandum printed at Appendix 3, the Department sets out the evidence collected to inform the decision. The Committee finds the explanation helpful and accordingly reports these Regulations for requiring elucidation, provided by the Department’s memorandum.





Published: 23 October 2020