This is a House of Lords and House of Commons Committee joint report.
Joint Committee on Statutory Instruments
Date Published: 9 December 2022
At its meeting on 7 December 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 two of those considered. The instruments and the grounds for reporting 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 there is doubt as to whether they are intra vires in one respect.
1.2These Regulations, which are subject to the negative resolution procedure, prescribe police driver training for the purposes of sections 2A and 3ZA of the Road Traffic Act 1988. These sections are not cited in the preamble and the Committee asked the Home Office to explain why. In a memorandum printed at Appendix 1, the Department acknowledges that they should have been cited and undertakes to address this at the earliest opportunity. As defects in the preamble can go to vires, since the Court of Appeal judgment in Vibixa Limited and another v Komori UK Ltd and others [2006] EWCA Civ 536, the Committee accordingly reports this instrument for doubt as to whether it is intra vires.
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that there is doubt as to whether they are intra vires in one respect.
2.2This instrument, which was made under the negative resolution procedure, contains regulations made under section 8(1) of the European Union (Withdrawal) Act 2018 that correct defects arising from Brexit. Consequently, it is subject to the sifting requirements in paragraph 3 of Schedule 7 to that Act. The preamble states that these sifting requirements were satisfied, but the Committee noticed that the text of regulation 8(8)(c) is different in the made instrument than it was in the draft instrument laid for sifting. It asked the Department for Environment, Food and Rural Affairs to explain. In a memorandum printed at Appendix 2, the Department explains that the instrument was amended between sifting and signature to correct a manifest drafting error. The Committee accepts that the provision in question was defectively drafted, but if an instrument is changed after it has been laid for sifting, the made instrument is not the same as the draft laid before each House and the requirements in paragraph 3(3)(b) of Schedule 7 to the 2018 Act have not been met. The instrument has purported to be made without compliance with a statutory pre-condition, and the Committee accordingly reports this instrument for doubt as to whether it is intra vires.
At its meeting on 7 December 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.
Draft instruments requiring affirmative approval
S.I. Numbers |
S.I. Title |
Draft |
Parliamentary Works Sponsor Body (Abolition) Regulations 2022 |
Draft |
Transport (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2022 |
Draft |
Packaging Waste (Data Reporting) (England) Regulations 2022 |
Draft |
Non-Domestic Rating (Chargeable Amounts) (England) Regulations 2022 |
Instruments subject to annulment
S.I. Numbers |
S.I. Title |
S.I. 2022/221 |
National Health Service (Optical Charges and Payments) (Amendment) Regulations 2022 |
S.I. 2022/306 |
Social Security (Contributions) (Re-rating) Consequential Amendment Regulations 2022 |
S.I. 2022/1189 |
National Health Service (NHS Payment Scheme – Consultation) Regulations 2022 |
S.I. 2022/1190 |
Storage of Carbon Dioxide (Amendment) (EU Exit) Regulations 2022 |
S.I. 2022/1192 |
Court of Protection (Amendment) Rules 2022 |
S.I. 2022/1193 |
Official Controls (Imports of High Risk Food and Feed of Non-Animal Origin) (Amendment of Commission Implementing Regulation (EU) 2019/1793) (England) Regulations 2022 |
S.I. 2022/1196 |
Greater London Authority (Consolidated Council Tax Requirement Procedure) Regulations 2022 |
S.I. 2022/1208 |
Tax Credits Act 2002 (Additional Payments Modification and Disapplication) Regulations 2022 |
S.I. 2022/1213 |
Data Protection (Adequacy) (Republic of Korea) Regulations 202 |
S.I. 2022/1217 |
Renewable Heat Incentive Scheme (Amendment) (No. 2) Regulations 2022 |
Draft instrument subject to annulment
S.I. Numbers |
S.I. Title |
Draft |
North Lincolnshire (Electoral Changes) Order 2022 |
1. The Committee has asked the Home Office for a memorandum on the following point:
Having regard to the reference to “prescribed training for the purposes of sections 2A and 3ZA of the 1988 Act” in regulations 3, 4, 5, 6 and 7, explain why the preamble does not cite these provisions.
2. The Home Office is grateful for the Committee’s consideration of this instrument and responds as follows:
The Home Office acknowledges that these are drafting errors and the Department should have cited sections 2A and 3ZA of the Road Traffic Act 1988 in the preamble to the Regulations. The Department will look to address this at the earliest opportunity.
Home Office
29 November 2022
1. The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following point:
Explain why the text of regulation 8(8)(c) is different in the instrument as made than it was in the draft of the instrument laid for sifting.
2. Regulation 8 of S.I. 2022/1150 contains amendments to retained EU Regulation (EU) No 1308/2013 of the European Parliament and of the Council establishing a common organisation of the markets in agricultural products (EUR 2013/1308) (“the CMO Regulation”).
3. Regulation 8(8)(c) concerns Part 8 of Annex 7 to the CMO Regulation. The draft version of the SI which was laid for sifting contained the words “in Part 8, in the second paragraph”, before identifying amendments to points (1) to (6). Those points (1) to (6) do not form part of the second paragraph in Part 8 – there is no colon or other indication in the sentence comprising the second paragraph to suggest that they do so. In context it is clear that the words “in the second paragraph” had been inadvertently duplicated in regulation 8(8)(c), as those same words are (correctly) included in regulation 8(8)(c)(i).
4. As such, the Department removed the words “in the second paragraph” from regulation 8(8)(c) prior to signature of the instrument post-sifting to correct a manifest drafting error. In context, given that Part 8 of Annex 7 contains only one set of points which are numbered from (1) to (6), the Department considers that the correct and intended meaning is unambiguous.
Department for Environment, Food and Rural Affairs
29 November 2022
Virtual meeting
Jessica Morden, in the Chair
Lord Beith
Lord Chartres
Baroness D’Souza
Baroness Gale
Lord Haskel
Paul Holmes
Baroness Newlove
Lord Smith of Hindhead
Liz Twist
Draft Report (Twentieth 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 2.2 read and agreed to.
Annex agreed to
Papers were appended to the Report as Appendices 1 to 2.
Resolved, That the Report be the Twentieth 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 14 December at 3.40 p.m.