Nineteenth Report of Session 2022–23

This is a House of Lords and House of Commons Committee joint report.

Author: Joint Committee on Statutory Instruments

Date Published: 2 December 2022

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Contents

Instruments reported

At its meeting on 30 November 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 four of those considered. The instruments and the grounds for reporting are given below. The relevant departmental memoranda are published as appendices to this report.

1S.I. 2022/1029: Reported for unjustifiable delay

Local Elections (Principal Areas) (England and Wales) (Amendment) (England) Rules 2022

1.1The Committee draws the special attention of both Houses to these Rules on the ground that there appears to have been unjustifiable delay in laying them before Parliament

1.2These Rules, which are subject to the negative resolution procedure, reduce the number of subscribing electors that are required on a candidate nomination paper for elections of councillors of a principal area in England from ten to two.

1.3The instrument was made on 4 October 2022 but was not laid before Parliament until 17 October 2022. The Committee asked the Department for Levelling Up, Housing and Communities to explain the delay between making and laying. In a memorandum printed at Appendix 1, the Department explains that the original date for signing was brought forward following new Ministerial appointments and central clearance for an earlier laying date was not obtainable. The Department correctly recognises that laying before Parliament is not a meaningless formality but an important part of access to justice and the rule of law. Once an instrument has been made, it is law from that point (whether or not law in force) and should therefore be laid before Parliament as soon as possible. Political and administrative matters are not generally acceptable reasons for delay (see the Committee’s First Special Report of Session 2017–2019, Transparency and Accountability in Subordinate Legislation). The Committee notes the Department’s undertaking to take steps to avoid recurrence. The Committee accordingly reports this instrument for unjustifiable delay in laying before Parliament, acknowledged by the Department.

2S.I. 2022/1104 and S.I. 2022/1123: Reported for requiring elucidation and for failure to comply with proper legislative practice

Energy Prices (Designated Domestic Energy Price Reduction Schemes for Great Britain and Designated Bodies) Regulations 2022

Energy Prices (Designated Domestic Energy Price Reduction Schemes) (Northern Ireland) Regulations 2022

2.1The Committee draws the special attention of both Houses to both Regulations on the ground that each requires elucidation in one respect and fails to comply with proper legislative practice in another respect.

2.2These Regulations, which are both subject to the negative resolution procedure, each designate a domestic electricity price reduction scheme and a domestic gas price reduction scheme for the purposes of the Energy Act 2022. Regulations 2 and 3 of S.I. 2022/1104 designate scheme documents for Great Britain and regulations 2 and 3 of S.I. 2022/1123 designate scheme documents for Northern Ireland. Each of those regulations refers to the relevant scheme document and “any related arrangements” being designated. The Committee asked the Department for Business, Energy and Industrial Strategy to confirm what these “related arrangements” are. In a memorandum printed at Appendix 2, the Department sets out the related arrangements in detail. The Committee accordingly reports regulations 2 and 3 of both sets of Regulations for requiring elucidation, provided by the Department’s memorandum.

2.3The Committee also asked the Department how it is possible to obtain access to those related arrangements. In its memorandum the Department explains that the parties to the Schemes are provided with the related arrangements. In terms of the accessibility of related arrangements for other persons, the Department explains that it is not expecting to publish documents setting out related arrangements (as opposed to the scheme documents themselves) but that if someone wished to see a particular document containing related arrangements, that person may submit a request to the Department. The Department would consider such a request and, where appropriate, give access to the documents. The Committee is not satisfied with that arrangement. As the Committee has repeatedly stressed, the rule of law requires that any document determining the effect of legislation must be freely and easily accessible to anyone interested: people should not have to request access as a favour, and departments should not have discretion to refuse access where they think it not “appropriate”. In this case the Department should have included a footnote in each instrument giving a link to, or details of how to access, the related arrangements. The Committee accordingly reports both sets of Regulations for failure to comply with proper legislative practice.

3S.I. 2022/1132: Reported for defective drafting

National Health Service (Primary Dental Services) (Amendment) Regulations 2022

3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two related respects.

3.2These Regulations, which are subject to the negative resolution procedure, introduce a new requirement (regulation 3—in respect of the General Dental Services Contracts Regulations and regulation 5—in respect of the Personal Dental Services Agreements Regulations). The new requirement is for standard contract terms in GDS Contracts and PDS Agreements to require dental contractors to provide a comprehensive and accurate profile in respect of their practice for the purpose of publication on the NHS website and to update the information at least every 90 days. No timeframe is given for this profile to be provided. The Committee asked the Department of Health and Social Care to explain their intention regarding this timeframe. In a memorandum printed at Appendix 3, the Department explains that the Department intends that the contractor’s obligation to provide this profile to NHS England will arise immediately following the variation of the relevant contracts. The Committee understands that this is when the obligation arises but is more concerned with the timeframe within which the contractor must comply with that obligation. In that regard the Department explains that “if the contractor fails to fulfil this obligation within a reasonable timeframe then we expect that NHS England would take appropriate action.” Although administrative law would presumably require the obligation to be complied with within a reasonable timeframe, the lack of indication of what a reasonable timeframe is in these circumstances leaves this law unacceptably uncertain. A date before which the obligation must be complied with should have been provided (especially given that further obligations flow from that date). The Committee accordingly reports regulations 3 and 5 for defective drafting.

Instruments not reported

At its meeting on 30 November 2022 the Committee considered the instruments set out in the Annex to this Report, none of which were required to be reported to both Houses.

Annex

Draft instruments requiring affirmative approval

S.I. Numbers

S.I. Title

Draft

National Health Service (NHS Payment Scheme—Consultation) (No. 2) Regulations 2022

Draft

Pensions Appeal Tribunals (Late Appeal) (Amendment) Regulations 2022

Draft

Conformity Assessment (Mutual Recognition Agreements) (Amendment) Regulations 2022

Instruments subject to annulment

S.I. Numbers

S.I. Title

S.I. 2022/1133

Early Years Foundation Stage (Welfare Requirements) (England) (Amendment) Regulations 2022

S.I. 2022/1134

Childcare (Free of Charge for Working Parents) (England) Regulations 2022

S.I. 2022/1162

Warm Home Discount (Reconciliation) Regulations 2022

S.I. 2022/1170

S.I. 2022/1181

Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2022

S.I. 2022/1171

Housing (Right to Buy) (Designated Rural Areas and Designated Regions) (England) Order 2022

S.I. 2022/1173

Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Order 2022

S.I. 2022/1182

Ammonium Nitrate Materials (High Nitrogen Content) Safety (Amendment) (No. 2) Regulations 2022

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. Numbers

S.I. Title

S.I. 2022/1161

Armed Forces Act 2021 (Commencement No. 4) Regulations 2022

S.I. 2022/1164

Finance Act 2022, Part 2 of Schedule 5 (Insurance Contracts: Change in Accounting Standards) (Commencement and Savings Provision) Regulations 2022

Appendix 1: Memorandum from the Department for Levelling Up, Housing and Communities

S.I. 2022/1029

Local Elections (Principal Areas) (England and Wales) (Amendment) (England) Rules 2022

1. The Committee has asked the Department of Levelling Up, Housing and Communities for a memorandum on the following point(s):

Explain why this instrument was only laid before Parliament on 17 October (having been made on 4 October 2022).

2. The Local Elections (Principal Areas) (England and Wales) (Amendment) (England) Rules 2022 (“the SI”) was originally planned to be made on 13 October 2022 and then laid on 17 October 2022.

3. Unfortunately, a late adjustment following new Ministerial appointments meant that the signing of the SI was unexpectedly brought forward to 4 October 2022.

4. Policy officials attempted to obtain central clearance for an earlier laying date to reduce the number of days between making and laying the SI. It was unfortunately not possible to change the date of laying from 17 October 2022.

5. The Department understands that the Committee considers a period of 10 calendar days or more between making and laying an SI to be an unjustifiable delay. The Department also recognises that laying an SI before Parliament is not a meaningless formality, but an important part of access to justice and the rule of law. Consequently, the Department has reflected on this and will endeavour to avoid such a delay happening again in future.

Department for Levelling Up, Housing and Communities

22 November 2022

Appendix 2: Memorandum from the Department for Business, Energy & Industrial Strategy

S.I. 2022/1104 and S.I. 2022/1123

Energy Prices (Designated Domestic Energy Price Reduction Schemes for Great Britain and Designated Bodies) Regulations 2022

Energy Prices (Designated Domestic Price Reduction Schemes) (Northern Ireland) Regulations 2022

Introduction

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

In regulations 2 and 3, confirm whether the “related arrangements” referred to are part of the Scheme Document and, if not, what they are and how it is possible to obtain access to those related arrangements.

2. These instruments are both made under the Energy Prices Act 2022, and designate domestic energy price reduction schemes for electricity and for gas for Great Britain (S.I. 2022/1104) and for Northern Ireland (S.I. 2022/1123) (the “Schemes”).

3. Domestic energy price reduction schemes are defined in sections 1(2) and (4) (Great Britain) and 5(2) and (4) (Northern Ireland) of the Act. The definitions provide that such schemes include “any other related arrangements”.

Related arrangements and access to them by parties to the Schemes

4. The four Scheme Documents which are designated by the instruments (gas and electricity versions for Great Britain and Northern Ireland respectively) set out the full details of how the Schemes operate. They also make reference to and provision for certain other documents, which we consider constitute the related arrangements. We do not consider that there are any other related arrangements which are not referred to in the Scheme Documents.

5. The related arrangements provided for in the Scheme Documents comprise both documents in existence when the Schemes were originally established, and also documents to be created during the lifetime of the Schemes (in accordance with the Scheme Documents). Examples of the former include the documents by which individual parties enter into the Schemes, which are:

a) the Scheme Agreement (which binds parties into the Schemes);1 and

b) the Accession Agreements by which individual electricity and gas suppliers (and gas shippers) enter into the Scheme Agreement.2

6. These documents were provided to intended parties to the Schemes in order for them to sign up to the Schemes.

7. Examples of documents setting out related arrangements that are generated during the lifetime of the Schemes include notices issued by the Secretary of State (as provided for in the Scheme Documents) to extend the duration of the Schemes3, or to specify the rate of financial support that will be provided by the Secretary of State in relation to a particular period.4 These documents are issued to the parties to the Schemes in accordance with the notice provisions set out in the Scheme Documents.

8. There are also provisions in the Scheme Documents which enable parties to the Schemes to issue a notice that they are withdrawing from the Schemes (in certain defined circumstances). We consider that these documents are also potentially related arrangements. They are also covered by specific provisions in the Scheme Documents including as to how the notices are to be issued to the other parties.

9. In summary, the related arrangements are accessible by the parties to the Schemes as follows:

a) related arrangements that deal with the parties originally signing up to the Schemes were provided to those parties as part of the signing up process; and

b) any further related arrangements generated during the lifetime of the Schemes as provided for in the Scheme Documents are issued to the parties in accordance with the notice provisions in the Scheme Documents.

Access to related arrangements by other persons not party to the Schemes

10. In terms of the accessibility of related arrangements setting out Scheme details for other persons (who are not required to be parties to the Schemes and so are not placed under any obligations by the Schemes, but who may nevertheless be interested in the details of how the Schemes operate) the Scheme Documents are published on gov.uk5 , and are also available in hard copy form on request to the Department. Those persons may therefore examine the Scheme Documents and understand how the related arrangements function within the Schemes.

11. We are not generally expecting to publish the documents setting out the related arrangements. However as the role these arrangements play within the Schemes is clearly set out in the Scheme Documents, we consider this provides sufficient transparency about the existence of those arrangements to enable persons to request (and where appropriate to be given) access to the documents. If someone wished to see a particular document containing related arrangements, they may of course submit a request to the Department. We would anticipate considering any such request in light of:

a) the duties in the Act for the Secretary of State to publish designated schemes, so far as he considers it appropriate to do so6;

b) our general wish to provide transparency in accordance with principles of good governance; and

c) any separate disclosure obligations under, for example, the Freedom of Information Act 2000.

12. We hope that this memo has provided the information the Committee requires. We would of course be very happy to try to assist further if required.

Department for Business, Energy & Industrial Strategy

21 November 2022

Appendix 3: Memorandum from the Department for Health and Social Care

S.I. 2022/1132

National Health Service (Primary Dental Services) (Amendment) Regulations 2022

1. The Committee has asked the Department for Health and Social Care for a memorandum on the following point:

“What is your intention regarding the timeframe within which a contractor must ensure that a comprehensive and accurate profile in respect of its practice is provided to NHS England for the purpose of display on the NHS.uk website (regulation 3 inserted paragraph 34A(1) and regulation 5 inserted paragraph 35A(1)) and how is effect given to that intention?”

2. The Department intends that the contractor’s obligation to provide a comprehensive and accurate profile in respect of its practice to NHS England will arise immediately following the variation of the relevant contracts. If the contractor fails to fulfil this obligation within a reasonable timeframe then we expect that NHS England would take appropriate action.

3. The instrument amends the following Regulations:

a) the National Health Service (General Dental Services Contracts) Regulations 2005 (S.I. 2005/3361) (“the GDS Regulations”) which concern General Dental Services Contracts (“GDS Contracts”), including the terms of such contracts;

b) the National Health Service (Personal Dental Services Agreements) Regulations 2005 (S.I. 2005/3373) (“the PDS Regulations”) which concern Personal Dental Services Agreements (“PDS Agreements”), including the terms of such agreements.

4. The intention is that, as with other requirements, the requirement for a contractor to ensure that a comprehensive and accurate profile in respect of its practice is provided to NHS England would take effect by virtue of incorporation of the relevant term by NHS England into GDS Contracts and PDS Agreements.

5. Regulation 24(1) of the GDS Regulations and regulation 20(1) of the PDS Regulations require GDS Contracts and PDS Agreements respectively to contain terms which have the same effect as those specified in Schedule 3 to each of those Regulations. The provisions are therefore given effect to by way of contractual terms.

6. NHS England is responsible for ensuring that GDS Contracts and PDS Agreements contain the terms provided for by the GDS Regulations and the PDS Regulations.

7. In summary, the Department intended for the provisions inserted by regulations 3 and 5 of the instrument, into the GDS Regulations and the PDS Regulations respectively, to apply to contractors on the basis of contractual implementation of the relevant terms by inclusion in, or variation of, GDS Contracts or PDS Agreements.

Department for Health and Social Care

22 November 2022

Formal minutes

Wednesday 30 November 2022

Virtual meeting

Members present

Jessica Morden, in the Chair

Lord Beith

Lord Chartres

Baroness Gale

Lord Haskel

Lord Smith of Hindhead

Liz Twist

Report consideration

Draft Report (Nineteenth 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 3.2 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 3.

Resolved, That the Report be the Nineteenth 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.

Adjournment

Adjourned till Wednesday 7 December at 3.40 p.m.


Footnotes

1 For example, section 1.6 of the GB electricity Scheme Document provides that “The Scheme Document is made contractually binding between the Parties by the Scheme Agreement.”

2 For example, section 2.1.2 of the GB electricity Scheme Document provides that “Accession Agreement means an agreement providing for a person to accede to the Scheme Agreement, substantially in the form set out in Schedule 4 (Form of Accession Agreement)”.

3 For example, see section 6.1.3 of the GB electricity Scheme Document.

4 For example, see section 7.1.1 of the Scheme Documents.

5 https://www.gov.uk/government/publications/energy-price-guarantee-scheme-documents.

6 See sections 2(3), 3(5), 6(5) and 7(5).