Twentieth 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: 9 December 2022

Download and Share

Contents

Instruments reported

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.

1S.I. 2022/1112: Reported for doubtful vires

Road Traffic Act 1988 (Police Driving: Prescribed Training) Regulations 2022

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.

2S.I. 2022/1150: Reported for doubtful vires

Common Organisation of the Markets in Agricultural Products (Amendment) Regulations 2022

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.

Instruments not reported

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.

Annex

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

Appendix 1: Memorandum from the Home Office

S.I. 2022/1112

Road Traffic Act 1988 (Police Driving: Prescribed Training) Regulations 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

Appendix 2: Memorandum from the Department of the Environment, Food and Rural Affairs

S.I. 2022/1150

Common Organisation of the Markets in Agricultural Products (Amendment) Regulations 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

Formal minutes

Wednesday 7 December 2022

Virtual meeting

Members present

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

Report consideration

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.

Adjournment

Adjourned till Wednesday 14 December at 3.40 p.m.