At its meeting on 26 May 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 four 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 are defectively drafted in two respects.
1.2These Regulations, which are not subject to any parliamentary procedure, amend the Gas (Standards of Performance) Regulations 2005 (S.I. 2005/1135), which impose minimum standards of performance on gas transporters.
1.3Regulation 5(2) (inserted regulation 9(2B)) introduces a new obligation on gas transporters to provide, in specified circumstances, access to “hot water for washing in each 24 hour period where … the priority domestic customer is medically dependent on water for bathing or is water dependent for medical reasons”. The Committee asked the Department for Business, Energy and Industrial Strategy to explain the intended meanings of being “medically dependent on water for bathing” and “water dependent for medical reasons” (and the difference between them), and how persons falling within these categories will be identified for the purposes of the provision. In a memorandum printed at Appendix 1, the Department explains that these expressions are intended to “reflect categories of ‘needs codes’ (specifically, needs codes 23 and 37) used in the energy industry for the Priority Services Register, which is a list of vulnerable consumers with their corresponding specific needs marked as needs codes.” It provides a link to the list of needs codes, and it asserts that the terms “are readily understood by gas transporters for the purposes of fulfilling their [statutory] obligations”. The Committee notes the Department’s intentions but does not accept that they have been achieved effectively. The phrases to which the Committee drew attention are expressly not limited in their application in the instrument to circumstances where classification under the Register is relevant (“where, under the Priority Service Register or otherwise notified by the customer, the priority domestic customer is medically dependent on water for bathing or is water dependent for medical reasons”): so the usage in the instrument is expressly not confined to the accepted industry meanings identified by the Department. There is nothing to suggest that a mere assertion by a customer of a medical need is to be determinative, but there is also no provision that clarifies what more is required. These phrases are pivotal components of legislation that is clearly intended to confer rights on customers, and it is therefore particularly important that their meaning should be expressed with clarity and certainty. (Even to the extent that the codes are expressly or impliedly adopted by the instrument, the Committee has concerns about accessibility of the codes.) The Committee accordingly reports regulation 5(2) (inserted regulation 9(2B)) for defective drafting.
1.4Regulation 10 of the 2005 Regulations sets out the penalties that apply where a gas transporter fails to meet specified minimum standards. It is amended by regulation 6 of this instrument. The combined effect of amended paragraph (1)(b) and new paragraph (3A) is that where a customer challenges a quotation under the gas transporter’s published accuracy scheme, a gas transporter that has failed to give an accurate quotation for providing a new connection or altering an existing one must refund any overcharges the customer has paid. The Committee asked the Department to explain what this adds to regulation 10 that is not already achieved by paragraphs (4) (as amended by regulation 6(7)) and (5):
(4) In the event that the customer challenges a quotation with regards to the provision of a connection or alteration of an existing connection provided by the relevant gas transporter in accordance with any published accuracy scheme and such quotation is found not to be accurate, the quotation will be deemed invalid and the provisions of paragraph 3(a) and 3(b) shall apply until the relevant gas transporter issues a revised quotation to the customer.
(5) Notwithstanding paragraph (4), the relevant transporter shall refund to the customer any overcharge.
1.5In a memorandum printed at Appendix 1, the Department asserts that regulation 10(3A) creates an obligation to refund “regardless of whether any challenge has been received in accordance with the published accuracy scheme”. This is not correct: paragraph (1)(b) provides that regulation 10 only applies “where, in respect of paragraph (3A), a customer challenges a quotation … under the relevant gas transporter’s published accuracy scheme”. In that context, there is no substantive difference between failing to provide an accurate quotation under paragraph (3A) and a quotation being found to be inaccurate under paragraph (4): in both cases, a quotation has been challenged and its accuracy is a question of fact. While paragraph (4) does clarify the effects of inaccuracy, this appears to the Committee to be the only real difference between the two sets of provisions. If the policy intent was as described in the Department’s memorandum, the amendments have not achieved it. If the intent was merely to replicate the original provisions, the Department has provided no good reason why the amending legislation replicated the redundancy rather than correcting it. The Committee accordingly reports regulation 6(6) for defective drafting.
2.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in two respects.
2.2This Order, which is subject to the negative resolution procedure, amends three instruments relating to planning, including the Town and Country Planning (General Permitted Development) (England) Order 2015 (the amended Order). The amendments include creating a new permitted development right and amending existing permitted development rights.
2.3Article 10 amends the permitted development right relating to dock, pier, harbour, water transport, canal or inland navigations undertakings to allow development on operational land required in connection with the provision of services and facilities. Development is not permitted where it consists of or includes the erection of a building other than “an operational building” or the alteration or reconstruction of a building other than “an operational building” (article 10(3)(b)). The Committee asked the Ministry of Housing, Communities and Local Government to explain the omission of a definition for “operational building”. In a memorandum printed at Appendix 2, the Department acknowledges the omission. The Committee accordingly reports article 10 for defective drafting, acknowledged by the Department.
2.4Article 9 amends a permitted development right in respect of schools, colleges, universities and hospitals by expanding the right and including certain prisons within its scope. Where a new proposed development relates to a university building, there is a requirement to apply to the local planning authority for determination as to whether the authority’s prior approval is required. The procedure that will apply for such an application stipulates that the procedure set out in another part of the amended Order applies, with the modification that the words ““except for” to “paragraph Q.2(1)(f)” are to be omitted. As “paragraph Q.2(1)(f)” does not exist, the Committee asked the Department to explain. In its memorandum, the Department explains that the reference should have been to paragraph Q.2(1)(g). The Committee accordingly reports article 9 for defective drafting, acknowledged by the Department.
3.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.
3.2This Order, which is not subject to Parliamentary procedure, appoints the day on which sections 101 and 102 of the Finance Act 2009 come into force for specified purposes. Section 101 provides for late payment interest on sums due to HMRC and section 102 provides for repayment interest on sums to be paid by HMRC.
3.3Article 2 of this Order states that these sections come into force “in relation to amounts payable or paid to Her Majesty’s Revenue and Customs under Part 3AA of Schedule 4 to the Social Security Contributions Regulations 2001”. The Committee asked the Treasury to confirm that the words should have read “payable or paid by or to” instead of simply “payable or paid to”, to include interest on sums payable by HMRC. In a memorandum printed at Appendix 3, HMRC explains, on behalf of the Treasury, that the wording “payable or paid to” reflects the intention to commence the sections for payments to HMRC and that the wording “in relation to” allows for repayments by HMRC. The Committee does not consider that “in relation to” obviously bears in this context the meaning asserted by HMRC, and notes that previous instruments (S.I. 2010/1878, S.I. 2013/67, S.I. 2013/2472, S.I. 2014/3269, S.I. 2014/3324, S.I. 2015/974, S.I. 2018/468) use an entirely different formula which is clear and concise. The Committee accordingly reports article 2 for defective drafting.
4.1The Committee draws the special attention of both Houses to this Order on the ground that it fails to comply with proper legislative practice in one respect.
4.2This Order, which is subject to the negative resolution procedure, corrects a defect in the Protection of Wrecks (RMS Titanic) Order 2003 (S.I 2003/2496). The Committee asked the Department for Transport to explain why, that being the case, this Order is not being issued free of charge to everyone known to have received the earlier defective instrument (in accordance with Statutory Instrument Practice, 5th Ed.). In a memorandum printed at Appendix 4, the Department acknowledges and apologises for the omission. The Committee accordingly reports this Order for failure to comply with proper legislative practice, acknowledged by the Department.