Twenty-Sixth Report of Session 2021–22

This is a House of Commons and House of Lords Joint Report.

Author: Joint Committee on Statutory Instruments

Date Published: 4 March 2022

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Contents

Instruments reported

At its meeting on 2 March 2022 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. 2021/1391: Reported for defective drafting

Building Regulations etc. (Amendment) (England) Regulations 2021

1.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in two related respects.

1.2These Regulations, which are subject to the negative resolution procedure, amend existing building regulations in relation to the measurement of energy efficiency, on-site electricity generation and overheating. The Committee asked the Department for Levelling Up, Housing and Communities to justify the assertion in the footnote to regulation 1(2) that the definition of building in regulation 2(1) of the Building Regulations 2010 applies, given that the word is used in two free-standing provisions of these Regulations (regulations 1 and 17) and given the default rule under section 11 of the Interpretation Act 1978 that applies definitions of the enabling powers (the definition of “building” being different in the enabling Act and the 2010 Regulations). In a memorandum printed at Appendix 1, the Department agrees that, to achieve their purpose, the definition of building should have been expressed in the body of the instrument. The Department undertakes to amend the instrument when a suitable opportunity arises, hopefully before the instrument comes into force on 15 June 2022. The Committee accordingly reports regulation 1(2) for defective drafting, acknowledged by the Department.

1.3The Committee also asked the Department to explain why there is no definition of “building work” in relation to regulations 1 and 17. In its memorandum the Department accepts that the failure to define “building work” was an error (the intention being that it should carry the meaning in regulation 3(1) of the Building Regulations 2010). The Department again undertakes to amend the instrument when a suitable opportunity arises, hopefully before the instrument comes into force on 15 June 2022. The Committee accordingly reports regulations 1 and 17 for defective drafting, acknowledged by the Department.

2S.I. 2021/1406: Reported for unusual or unexpected use of the enabling power

Nuclear Safeguards (Fees) Regulations 2021

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unusual or unexpected use of the enabling power in one respect.

2.2These Regulations, which are subject to the negative resolution procedure, provide details of when and by whom fees are payable in relation to the functions performed by the Office for Nuclear Regulation in connection with nuclear safeguards. The regulations are made under section 101 of the Energy Act 2013, subsection (2) of which states that the amount of any fee must be either “(a) specified in the regulations, or (b) determined by or in accordance with the regulations.” Regulation 4(1) states: “The fees … must be determined by the ONR and must not exceed the costs reasonably incurred by the ONR in performing the functions for which the fees are payable.” The Committee asked the Department for Business, Energy and Industrial Strategy to explain how regulation 4(1) complies with section 101(2)(b) given that a requirement that the fee “must not exceed” the costs reasonably incurred by the ONR is an open form of sub-delegation, that could result in a fee of anything from zero up to the full cost of performing the functions. In a memorandum printed at Appendix 2, the Department refers to the Explanatory Notes to section 101 of the Energy Act 2013 which state that “Regulations made under this power must either specify the fee’s amount or the process by which the fee will be determined. Fees under the regulations could be determined, for example, by reference to a daily or hourly rate specified in the regulations or by reference to the reasonable costs of performing the function or carrying out the relevant work.” The Department therefore argues that section 101(2)(b) provides the power to make regulations which set an upper limit on fees. In the Committee’s opinion that passage from the Explanatory Notes supports the expectation that regulation 4(1) is outside the reasonable contemplation of the enabling power; setting an upper limit on fees specifies neither the fee amount nor the process by which the fee will be determined. Since, as the Department notes, the ONR is required to recover full costs, the Committee is unclear why regulation 4(1) was not drafted simply by reference to cost recovery. The Committee accordingly reports regulation 4(1) for making an unusual or unexpected use of the enabling power.

3S.I. 2021/1429: Reported for failure to comply with proper legislative practice

Sea Fisheries (Amendment etc.) (No. 2) Regulations 2021

3.1The 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.

3.2These Regulations, which are subject to the negative resolution procedure, make amendments to retained EU law relating to sea fisheries. They come into force 17 days after being laid. The Committee asked the Department for the Environment, Food and Rural Affairs to provide details of the internal systemic failures that resulted in the timetable “slippage” referred to in paragraph 3.1 of the Explanatory Memorandum as a result of which there was non-compliance with the 21-day rule. In a memorandum printed at Appendix 3, the Department refers to the fact that the legislation had to come into force on 31 December to avoid the expiration of the discard exemptions and that delays in obtaining Devolved Administration consent and technical changes being identified late in the process resulted in the timetable slippage. The Department undertakes to build in more time for consultation and consent processes in future. The Committee does not in general accept internal reasons as justification for breaching the 21-day rule and reiterates the importance of adherence to the rule (see the Committee’s First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation at paragraphs 2.15 to 2.22). The Committee accordingly reports these regulations for failure to comply with proper legislative practice, acknowledged by the Department.

4S.I. 2021/1432: Reported for defective drafting

Free Zone (Customs Site No. 1 Thames) Designation Order 2021

4.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.

4.2This Order, which is not subject to Parliamentary procedure, designates Customs Site No. 1 Thames as a free zone for customs purposes. Article 4 identifies P&O Ferrymasters Limited as the responsible authority for the free zone but does not include a unique identifier (such as a company number) in the article or footnote, although the registered office address is given in the Order. The Committee asked Her Majesty’s Revenue and Customs (on behalf of HM Treasury) to explain why, given that it is possible for a company’s registered office to be moved, this instrument does not include a unique identifier for P&O Ferrymasters Limited. In a memorandum printed at Appendix 4, the Department argues that the drafting is sufficiently clear as to the identity of the responsible authority, but notes the Committee’s comments and undertakes to include a unique identifier in future Orders and to amend existing Orders to include unique identifiers when a suitable opportunity arises. The Committee is grateful for these undertakings. Legislative certainty requires that where a body is referred to in legislation, it should be identified in such a way as to leave no room for doubt as to which body is being referred to; generally, in the case of a company, the most appropriate unique identifier is the company’s registration number. The Committee accordingly reports article 4 for defective drafting.

5S.I. 2021/1464: Reported for failure to comply with proper legislative practice

Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 3) Order 2021

5.1The 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.

5.2This Order, which is subject to the negative resolution procedure, makes permanent two time-limited permitted development rights relating to outdoor markets and moveable structures and extends the time-limited permitted development right for development by local authorities and health service bodies for a further 12 months. Articles 1, 2, 4, 5, 7 and 10, which relate to time-limited permitted development rights that were due to expire, breach the 21-day rule. Given that the expiration date was known in advance, the Committee asked the Department for Levelling Up, Housing and Communities to expand the explanation in paragraph 3.2 of the Explanatory Memorandum. In a memorandum printed at Appendix 5, the Department cites the unexpected need to extend Class A of Part 12A (due to the Omicron variant and that some local vaccination services were operating outside of NHS owned and leased estate) and the time taken to consult (and consider the consultation responses) on all the proposed measures as the reasons for the breach of the rule. The Committee accepts the breach of the rule to extend the permitted development right for development by health service bodies in relation to vaccination services. However, in relation to the permitted development rights relating to outdoor markets and moveable structures, it has long been the position of the Committee (see the Committee’s First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation at paragraphs 2.15 to 2.22) that internal reasons (including insufficient time allowed within Government for consideration of consultation responses) are not sufficient justification for breach of the 21-day rule. The Committee accordingly reports articles 4 and 5 for failure to comply with proper legislative practice, acknowledged by the Department.

6S.I. 2021/1465: Reported for requiring elucidation

National Security and Investment Act 2021 (Commencement No. 2 and Transitional and Saving Provision) Regulations 2021

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, which are not subject to Parliamentary procedure, bring into force provisions of the National Security and Investment Act 2021. Regulation 4 contains a saving provision for notices given by the Secretary of State under the Enterprise Act 2002 before the commencement of the 2021 Act.

6.3The Committee asked the Department for Business, Energy and Industrial Strategy to explain why the saving provision does not apply to notices relating to a merger situation that has been created (in addition to those that are in progress or in contemplation). In a memorandum printed at Appendix 6, the Department appears to suggest that the regulation is crafted in a way that captures all relevant intervention notices and states that the 2021 Act will cover “relevant merger situations” in the 2002 Act. That may be so, but the Committee is concerned that not all the “relevant merger situations” under section 23 of the 2002 Act will be captured by section 62 of the 2021 Act. (For example, a relevant merger situation takes place where two or more enterprises cease to be distinct and this can occur where a person or group of persons are able, directly or indirectly, to control or materially to influence the policy of a body corporate (sections 23 and 26 of the 2002 Act). The Explanatory Notes to the 2002 Act explain that what constitutes material influence or control will be considered on a case-by-case basis by the competition authorities and that having a 15% shareholding has been treated as being sufficient. A “relevant merger situation” could therefore be created where there is an increase from 15% shares to less than the 25% threshold for a “trigger event” in the 2021 Act.) As “relevant merger situation” in the 2002 Act and “trigger event” in the 2021 Act are not the same and there could be situations that are not covered by section 62 as intended, the Committee is uncertain whether the wording in regulation 4(1)(b) of these Regulations covers all the ground required. On that basis, the Committee reports regulation 4(1)(b) for requiring elucidation.

7S.I. 2021/1472: Reported for defective drafting

Exotic Animal Disease (Amendment) (England) Order 2021

7.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.

7.2This Order, which is not subject to Parliamentary procedure, amends the Foot and Mouth Disease (England) Order 2006 and the Avian Influenza and Influenza of Avian Origin in Mammals (England) (No. 2) Order 2006. Article 2(2)(d) inserts definitions of “wild game bird” and “wild game bird product” into the Foot and Mouth Disease Order where those terms do not appear. The Committee asked the Department for Environment, Food and Rural Affairs to confirm whether those definitions should instead have been inserted into the Avian Influenza Order. In a memorandum printed at Appendix 7, the Department gives that confirmation and undertakes to correct the error at the earliest available opportunity. The Committee accordingly reports Article 2(2)(d) for defective drafting, acknowledged by the Department.

Instruments not reported

At its meeting on 2 March 2022 the Committee considered the instruments set out in the Annex to this Report, none of which was required to be reported to both Houses.

Annex

Draft Instruments requiring affirmative approval

Draft

Agriculture (Lump Sum Payment) (England) Regulations 2022

Draft

Food and Feed Safety (Miscellaneous Amendments and Transitional Provisions) Regulations 2022

Instruments subject to annulment

S.I. 2021/1469

Transfer of Functions (Vaccine Damage Payments) Order 2021

S.I. 2021/1491

Official Controls (Temporary Measures) (Coronavirus) (Amendment) (No. 3) Regulations 2021

S.I. 2022/4

Prison and Young Offender Institution (Coronavirus) (Amendment) Rules 2022

S.I. 2022/18

Wills Act 1837 (Electronic Communications) (Amendment) Order 2022

S.I. 2022/25

Council Tax Reduction Schemes (Prescribed Requirements) (England) (Amendment) Regulations 2022

S.I. 2022/26

Elections (Policy Development Grants Scheme) (Amendment) Order 2022

S.I. 2022/32

Whole of Government Accounts (Designation of Bodies) Order 2022

S.I. 2022/33

Protection of Animals at the Time of Killing (Amendment) (England) Regulations 2022

S.I. 2022/47

Representation of the People (Amendment) (Northern Ireland) (EU Exit) Regulations 2022

S.I. 2022/65

Afghanistan (Sanctions) (EU Exit) (Amendment) Regulations 2022

S.I. 2022/78

Asylum Support (Amendment) Regulations 2022

S.I. 2022/80

Birmingham Commonwealth Games (Concurrent Exercise of Traffic Management Powers) Regulations 2022

S.I. 2022/84

Immigration and Police (Passenger, Crew and Service Information) (Amendment) Order 2022

S.I. 2022/88

Pension Protection Fund and Occupational Pension Schemes (Levy Ceiling) Order 2022

S.I. 2022/125

Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (No. 2) Regulations 2022

Appendix 1

S.I. 2021/1391

Building Regulations etc. (Amendment) (England) Regulations 2021

1. The Committee has asked the Department for Levelling Up, Housing and Communities for a memorandum on the following points:

(1) Justify the assertion in the footnote to regulation 1(2) that the definition of building in regulation 2(1) of the Building Regulations 2010 applies, given that the word is used in two free-standing provisions of these Regulations (regulations 1 and 17) as well as in the text inserted into the 2010 Regulations and the default rule under section 11 of the Interpretation Act 1978 to apply definitions of the enabling powers.

(2) Explain why there is no definition of “building work” in relation to regulations 1 and 17.

Question (1)

2. The Department’s intention was that ‘building’ should carry the meaning given in regulation 2(1) of the Building Regulations 2010. We agree that has not been achieved by virtue of the footnote to regulation 1(2) in respect of regulations 1 and 17, and should rather have been expressed in the body of the instrument. We intend to amend the instrument accordingly when a suitable opportunity arises. This instrument comes into force on 15 June 2022 so we would hope to make the amendment before that date.

3. The text inserted into the Building Regulations 2010 and the Building (Approved Inspectors etc.) Regulations 2010 will adopt the definition of ‘building’ already included in those regulations.

Question (2)

4. The failure to define ‘building work’ in relation to regulations 1 and 17 was an oversight for which the Department apologises. The intention was that ‘building work’ should carry the meaning given in regulation 3(1) of the Building Regulations 2010. We will amend the instrument accordingly when a suitable opportunity arises. This instrument comes into force on 15 June 2022 so we would hope to make the amendment before that date.

SI 2021/1392

5. We have noted that the same two points arise in relation to regulations 1 and 4 of SI 2021/1392. As with SI 2021/1391, we will amend the instrument when a suitable opportunity arises.

Department for Levelling Up, Housing and Communities

15 February 2022

Appendix 2

S.I. 2021/1406

Nuclear Safeguards (Fees) Regulations 2021

1. The Committee has asked the Department for Business, Energy and Industrial Strategy for a memorandum on the following point:

Explain how regulation 4(1) complies with section 101(2)(b) of the Energy Act 2013 (which requires that fees must be determined by or in accordance with the regulations), given that a fee that “must not exceed” the costs reasonably incurred by the ONR could be anything from zero up to the costs reasonably incurred in performing the functions for which the fees are payable.

2. Regulation 4(1) of the Regulations requires that the fee to be paid under the Regulations must be determined by the ONR and must not exceed the costs reasonably incurred by the ONR in performing the relevant functions. Section 102(2)(b) of the Energy Act 2013 requires that where regulations create a requirement to pay fees, these fees must be either determined by or in accordance with those regulations.

3. The Explanatory Notes to s101 of the Energy Act 2013 states at paragraph

468:

Regulations made under this power must either specify the fee’s amount or the process by which the fee will be determined. Fees under the regulations could be determined, for example, by reference to a daily or hourly rate specified in the regulations or by reference to the reasonable costs of performing the function or carrying out the relevant work (see subsection (2)).

4. Regulation 4(1) restricts recovery of fees by the ONR to the reasonable costs of performing the relevant function and sets an upper limit on such fees. The Department’s view is that s101(2)(b) provides the power to create regulations which adopt this approach: the ONR must exercise its duty to determine the fees in accordance with the regulations.

5. The Department has noted the Committee’s point that the fees could be anything from zero up to the costs reasonably incurred. The duty to determine fees by the ONR in regulation 4(1) must be exercised reasonably. The ONR is classified as a Public Corporation of the Department for Work and Pensions and is funded on a net nil basis, which means it must recover the full economic cost of its activities through charges to industry and government and cannot make a profit or generate working capital. The ONR is also required to act in accordance with Managing Public Money which requires public bodies to recover full costs.

6. Costs will be recovered using the established, familiar-to-operators, charging methodology ONR currently operates across ONR’s other core purposes, including nuclear safety and nuclear security. ONR will charge fees in proportion to the regulatory effort expended for each operator, which means that it is not possible to refer to an accurate hourly rate in the Regulations. This is explained in more detail in their publication ‘How We Charge for Nuclear Regulation’ (https://www.onr.org.uk/documents/2018/how-we-charge-for-nuclear-regulation.pdf), including why using a fixed rate is not appropriate (p17) and risks either over-charging industry or the under recovery of costs.

Department for Business, Energy and Industrial Strategy

14 February 2022

Appendix 3

S.I. 2021/1429

Sea Fisheries (Amendment etc.) (No. 2) Regulations 2021

1. The Committee has asked the Department for the Environment, Food and Rural Affairs (“Defra”) for a memorandum on the following point:

Provide details of the internal systemic failures that resulted in the timetable “slippage” referred to in paragraph 3.1 of the Explanatory Memorandum as a result of which there was non-compliance with the 21-day rule.

2. This SI brought together policy changes from across Defra’s Marine and Fisheries responsibilities. The purpose of the SI was to ensure that legislation due to expire was updated and amended to reflect the needs of the UK as an independent coastal state. In total 9 pieces of legislation were amended and Defra needed to liaise with arms’ length bodies such as Cefas and MMO as well as the Devolved Administrations, which added to the complexity.

3. On 3 December 2021, we identified some technical changes needed in the draft SI and we only secured the last of the required consents from the Devolved Administrations in time to make the SI on 13 December.

4. A consequence of this legislation not coming into force on 31 December would have been the expiration of all discard exemptions. We therefore decided it would be necessary in this case to break the 21-day rule to ensure that fishers were able to continue discarding appropriately within the law.

5. Given the number of interested parties in an SI of this type, there can always be issues which unavoidably only become apparent late in the process. We will seek to build in more time for consultation and consent processes in future, and are reviewing this across different Defra teams.

6. We apologise for breaking the 21-day rule in this instance and will endeavour to avoid doing so in future.

Department for Environment, Food and Rural Affairs

15 February 2022

Appendix 4

S.I. 2021/1432

Free Zone (Customs Site No. 1 Thames) Designation Order 2021

1. The Committee has asked HM Treasury for a memorandum on the following point:

Given that it is possible for a company’s registered office to be moved, explain why this instrument does not include a unique identifier for P&O Ferrymasters Limited such as a company number.

2. This memorandum is prepared by Her Majesty’s Revenue and Customs (HMRC) on behalf of HM Treasury.

3. Article 4 of the Order appoints “P&O Ferrymasters Limited whose registered office is Unit 2 Mackean Logistics Centre, Larne Harbour, Larne, Northern Ireland, BT40 1AJ” as the responsible authority for the area designated as a free zone by the Order.

4. If a change is made to the registered office, the address given in the Order will remain on the public register at Company’s House for the duration of the company’s registration. HMRC considers that the drafting of article 4 is sufficiently clear as to the identity of the responsible authority, even if the registered office changes during the duration of the Order.

5. HMRC notes the Committee’s comments and will include a unique identifier, such as a company number, when making future Orders of this type and will amend the existing Orders to include unique identifiers at a suitable point in time.

Her Majesty’s Revenue and Customs

15 February 2022

Appendix 5

S.I. 2021/1464

Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 3) Order 2021

1. The Committee has asked the Department for Levelling up, Housing and Communities for a memorandum on the following point:

Given that the expiration date of the time-limited permitted development rights was known in advance, does the Department have anything to add to its explanation in paragraph 3.2 of the Explanatory Memorandum as to why this instrument could not have been made and laid 10 days earlier so that the whole instrument complied with the 21-day rule.

2. The unexpected need to extend Class A of Part 12A and the time taken to consult and consider the responses to the consultation on all the proposed measures were the reason why two of the five policy measures in the Town and Country Planning (General Permitted Development etc.) (Amendment) (England) (No. 3) Order (“the Order”) needed to breach the 21-day rule. The Department’s earlier decision to impose a fair and proportionate time limit to its time limited rights constrained the window to act. We regret the breach and will do our best to learn the relevant lessons with a view to avoiding a similar repeat in future.

3. There had been on-going discussion with the Department of Health and Social Care in relation to the principle of extending Class A of Part 12A by a further year to facilitate extension of the vaccination programme to children and booster jabs. The demand on NHS real estate assets was such that some local vaccination services were operating outside of the NHS owned and leased estate. In addition, the new Omicron variant was identified in South Africa and began to be transmitted domestically around late November 2021. A decision was taken at that time to extend the right to address the public health needs to respond to the new phase of the pandemic.

4. The Order introduced a complex package of other reforms to the Town and Country Planning (General Permitted Development) Order 2015. The public consultation commenced on 5 September 2021 and closed on 14 November 2021. A further month was needed to properly analyse the consultation responses and finalise the Order.

5. The Department did not wish to deny the public a full opportunity to consider its proposals by artificially abridging the consultation period. An alternative to this approach, of issuing separate consultations regarding different rights, was considered but ultimately dismissed because of the likely adverse impact on public engagement of multiple consultations within a short timeframe in connection with the same form of development.

6. We were conscious of the practical consequences for the public of shortening the notice period for the changes introduced by the Order. In particular, to mitigate the effects for owners of moveable structure permitted by the old right which would not be permitted under the new right, we introduced a transitional arrangement for existing moveable structures in place on 1 January 2022 allowing them to remain in place until the end of 31 January 2022 to provide adequate notice of the change.

Department for Levelling up, Housing and Communities

15 February 2022

Appendix 6

S.I. 2021/1465

National Security and Investment Act 2021 (Commencement No. 2 and Transitional and Saving Provision) Regulations 2021

1. The Committee has asked the Department for Business, Energy and Industrial Strategy for a memorandum on the following point:

Explain whether regulation 4(1)(b) should have included a reference to merger situations that have been created in addition to those where arrangements are in progress or in contemplation.

2. Regulation 4 is intended to ensure that matters subject to an intervention notice described in regulation 4(1)(a) on the commencement day (4 January 2022) can proceed under the Enterprise Act 2002 as unamended by the National Security and Investment Act 2021 (c. 25) (“NSIA 2021”) and that the NSIA 2021 does not apply to such interventions. The four matters subject to such intervention notices on the commencement day related only to arrangements that were in progress or contemplation and not to any relevant merger situation that had been created.

3. Section 62(3) and (4) of the NSIA 2021 sets out transitional provisions in relation to events that constitute a trigger event described in section 2(4). A trigger event is defined in section 5 and the description would include a relevant merger situation. Section 62(4) provides for situations where an intervention notice was issued before the commencement day to provide that nothing in the NSIA 2021 has effect in relation to the events and that the Enterprise Act 2002 continues to have effect.

4. We hope that this addresses the Committee’s query.

Department for Business, Energy and Industrial Strategy

14 February 2022

Appendix 7

S.I. 2021/1472

Exotic Animal Disease (Amendment) (England) Order 2021

1. The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following point:

Confirm whether the definitions in article 2(2)(d) should instead have been inserted into the instrument amended by article 3 (S.I. 2006/2702).

2. The Department acknowledges that this is a drafting error. The definitions in article 2(2)(d) should indeed have been inserted into S.I. 2006/2702. This will be corrected at the earliest available opportunity.

Department for Environment, Food and Rural Affairs

10 February 2022

Formal Minutes

Wednesday 2 March 2022

Virtual meeting

Members present:

Jessica Morden, in the Chair

Lord Beith

Lord Chartres

Dr James Davies

Baroness D’Souza

Baroness Gale

John Lamont

Baroness Newlove

Draft Report, proposed by the Chair, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1.1 to 7.2 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 7.

Resolved, That the Report be the Twenty-Sixth Report of the Committee to both Houses.

Ordered, That the Chair make the Report to the House of Commons and that the Report be made to the House of Lords.

Adjourned till Wednesday 9 March at 3.40 p.m.