At its meeting on 3 February 2021 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 two 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 Regulations on the ground that they require elucidation in one respect.
1.2This instrument, which is subject to the negative resolution procedure, amends a number of statutory instruments that made provision in relation to the United Kingdom’s exit from the European Union.
1.3The lists in regulations 5(2) and (3), 8(2) and 9(2) use internally inconsistent punctuation, with semicolons at the end of most sub-paragraphs, but a comma in sub-paragraphs that end with a conjunction. The Committee has commented on this issue before, noting a preference for legislation to comply with standard rules of punctuation (which would normally call for all equal items in a list to be separated by the same type of mark) and stressing the importance of consistency (Fourth Report of Session 2019–21—S.I. 2020/3). The Committee asked the Ministry of Justice to explain this usage and invited it to consult with the Government Legal Department’s Statutory Instrument Drafting Hub before replying. In a memorandum printed at Appendix 1, the Department asserts that this is a question of drafting style and that although it produces internal inconsistency within provisions, the differentiation has been applied consistently within this instrument (both of which assertions the Committee accepts). The Department accepts that drafting practice in this respect is inconsistent throughout Government, and states that the Statutory Instrument Hub is considering issuing guidance to promote general consistency. The Committee hopes that guidance will indeed be issued, as inconsistency on a matter of this kind is distracting for readers, albeit that in this case it is difficult to imagine that it could create arguments as to meaning. The Committee further hopes that before the Government determines that the usage in this instrument should be adopted throughout the statute book it will consult a range of non-Government stakeholders who are regularly required to read legislation, and allow their views as to what they find most stylistically pleasing to determine the policy.
1.4In the meantime, the Committee reports the Regulations for requiring elucidation, provided by the Department’s memorandum.
2.2These Regulations, which are subject to the negative resolution procedure, amend instruments relating to tax credits, tax-free childcare and the entitlement to 30 hours of free childcare in response to the coronavirus emergency.
2.3Regulation 3 amends the Tax Credits (Definition and Calculation of Income) Regulations 2002 (S.I. 2002/2006), which define what counts as income for the purposes of calculating tax credit entitlement. The amendments include adding three types of payment to the list of sums that are disregarded for the purpose of that calculation. Regulation 3(3)(d) adds:
“Any payment, made under the scheme known as the Covid Winter Grant Scheme in respect of England, or any other scheme established by the Northern Ireland Executive, the Scottish Government or the Welsh Government for the purpose of providing financial support to families and vulnerable individuals to assist with the cost of food and utilities over the same period.”
2.4The Committee asked the Treasury what the words “over the same period” are intended to refer to and qualify. In a memorandum printed at Appendix 2, Her Majesty’s Revenue and Customs (responding on behalf of the Treasury) acknowledge that the words were included in error. The Department suggests that the provision “can still be interpreted in line with the policy intention”. Although the Committee agrees that such an interpretation is possible, it is not certain: the courts will apply the presumption of meaning, as a result of which they might conclude, for example, that the superfluous words are intended to mean that payments made under schemes established by the devolved governments may only be disregarded if those schemes cover the same period as the English scheme, which would not be consistent with the stated policy intention. The Committee accordingly reports regulation 3(3)(d) for defective drafting, acknowledged by the Department.
2.5Regulation 4 amends the Childcare Payments (Eligibility) Regulations 2015 (S.I. 2015/448); regulation 5 amends the Childcare (Early Years Provision Free of Charge) (Extended Entitlement) Regulations 2016 (S.I. 2016/1257). Entitlement in both cases depends on a person being in “qualifying paid work”. Regulations 4(3) and 5(3) accordingly expand “qualifying paid work” to cover circumstances in which a person in paid work does not meet the income thresholds due to coronavirus, but they are receiving or eligible for payments made under a coronavirus support scheme. Where a person has made a claim, inserted paragraph (c)(ii) requires that they are “reasonably anticipating receiving payments”. Where a person intends to make a claim, paragraph (c)(iii) requires that they have “the reasonable expectation of the claim being agreed”. The Committee asked the Department to explain the intended difference in meaning between these requirements. In its memorandum, the Department explains that no difference in meaning was intended and accepts that consistent language should therefore have been used. The Department adds that in this case the inconsistency cannot cause confusion, but the Committee is less sure on that point than the Department. The presumption that change of language indicates change of meaning and the ingenuity of lawyers combined could conceivably attach significance to the different natural meanings of “expectation” and “anticipation” in this context. Be that is it may, the Department does not dissent from the proposition that consistency of language to reflect consistency of meaning is a core principle of legislative drafting, and the Committee accordingly reports regulations 4(3) and 5(3) for defective drafting, acknowledged by the Department.