Twenty-Third 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: 20 January 2023

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Contents

Instruments reported

At its meeting on 18 January 2023 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 three 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. 2022/1191: Reported for requiring elucidation

Higher Education (Investigation Fees) (England) Regulations 2022

1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.

1.2These Regulations, which are subject to the negative resolution procedure, make provision for a fee to be payable to the Office for Students by the governing body of a registered higher education provider where the OfS has investigated the activities of that provider and the investigation results in one or more specified outcomes. Regulation 4 allows the OfS to waive or refund all or part of any fee paid or payable. The Committee asked the Department for Education to identify the criteria that will be used to determine whether a fee is waived or refunded and to confirm whether the criteria will be published. In a memorandum printed at Appendix 1, the Department indicates that there is currently no proposal to publish criteria for use in determining whether all or part of a fee will be waived or refunded although it is open to the OfS to publish criteria if it considers it appropriate to do so. The Department explains that the OfS has a discretion to exercise the power under regulation 4 but expects the exercise of the power to be exceptional in practice and to be dependent on the circumstances of each case. The Committee accordingly reports regulation 4 for requiring elucidation, provided by the Department’s memorandum.

2S.I. 2022/1237: Reported for defective drafting

Religious Character of 16 to 19 Academies (Designation Procedure) (England) Regulations 2022

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

2.2These Regulations, which are subject to the negative resolution procedure, provide for the mechanism by which a 16 to 19 Academy may be designated as having a religious character by way of an Order made under section 8A of the Academies Act 2010. Regulation 5 requires the Secretary of State to consult at least one relevant religious body when a section 8A application is received or when it is proposed to amend or revoke an order made under section 8A. Regulation 5(4) specifies the relevant religious body for the Church of England and the Roman Catholic Church, but in relation to any other religion requires the Secretary of State to consult (at paragraph (c)) “such body as the Secretary of State considers appropriate”. The Committee asked the Department for Education to explain why paragraph (c) does not expressly include the stipulation that the Secretary of State is only required to consult with the religious body that relates to the religious character of the 16 to 19 Academy for which an application is being made (given that is the intention of regulation 5(4) as explained in paragraph 6.3 of the Explanatory Memorandum). In a memorandum printed at Appendix 2, the Department asserts that regulation 5(4)(c) achieves the intended result as, in this context, the discretion to consult an “appropriate” religious body requires the Secretary of State to consult a religious body that relates to the religious character of the 16 to 19 academy in respect of which the section 8A order is being made. The Committee disagrees. “Appropriate” does not necessarily mean an authoritative body for the religious denomination in question and the preferable approach would have been to include that stipulation expressly. The Committee accordingly reports regulation 5(4)(c) for defective drafting.

3S.I. 2022/1247: Reported for defective drafting

Guarantees of Origin of Electricity Produced from Renewable Energy Sources and High-efficiency Cogeneration (Amendment) (EU Exit) Regulations 2022

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

3.2These Regulations, which are subject to the negative resolution procedure, address deficiencies in relation to retained EU law. The Committee asked the Department for Business, Energy and Industrial Strategy to confirm whether regulation 5(6) (which omits wording from a provision) should instead refer to paragraph (6). In a memorandum printed at Appendix 3, the Department gives that confirmation. The Department explains that it is exploring whether it would be appropriate to rectify the error by the issue of a correction slip and undertakes to consider the Committee’s views in paragraphs 3.1 to 3.15 of its First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation. The Committee does not consider that the error is suitable for correction by correction slip. Errors that could possibly amount to a change of substance are not suitable for correction by correction slip. If the correction is considered obvious, a user will be able to understand what is meant without a correction slip (and the courts will likely exercise their judicial discretion to give a rectifying construction in accordance with the rule in Inco Europe v First Choice Distribution [2000] 1 WLR 586 (HL)). The only transparent and accountable method of altering the text of a statutory instrument is by an amending instrument. The Committee accordingly reports regulation 5(6) for defective drafting, acknowledged by the Department.

Instruments not reported

At its meeting on 18 January 2023 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

Instruments requiring affirmative approval

S.I. Number

S.I. Title

S.I. 2022/1331

Russia (Sanctions) (EU Exit) (Amendment) (No. 17) Regulations 2022

S.I. 2022/1367

Plant Health and Trade in Animals and Related Products (Amendment) Regulations 2022

S.I. 2022/1378

Health and Safety and Nuclear (Fees) Regulations 2022

Draft instruments requiring affirmative approval

S.I. Number

S.I. Title

Draft

Trade (Mobile Roaming) Regulations 2023

Draft

Health and Social Care Information Centre (Transfer of Functions, Abolition and Transitional Provisions) Regulations 2023

Draft

Nuclear Regulated Asset Base Model (Revenue Collection) Regulations 2023

Draft

Environmental Targets (Biodiversity) (England) Regulations 2022

Draft

Environmental Targets (Fine Particulate Matter) (England) Regulations 2022

Draft

Environmental Targets (Marine Protected Areas) Regulations 2022

Draft

Environmental Targets (Residual Waste) (England) Regulations 2022

Draft

Environmental Targets (Water) (England) Regulations 2022

Draft

Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023

Draft

Environmental Targets (Woodland and Trees Outside Woodland) (England) Regulations 2022

Draft

Packaging Waste (Data Reporting) (England) Regulations 2023

Draft

Authority to Carry Scheme and Civil Penalties Regulations 2023

Instruments subject to annulment

S.I. Number

S.I. Title

S.I. 2022/1234

Merchant Shipping (Prevention of Oil Pollution and Prevention of Pollution by Sewage from Ships) (Amendment) Regulations 2022

S.I. 2022/1253

National Health Service (Charges to Overseas Visitors) (Amendment) (No. 4) Regulations 2022

S.I. 2022/1256

Education (School Teachers’ Qualifications and Induction Arrangements) (Amendment) (England) Regulations 2022

S.I. 2022/1297

Markets in Financial Instruments (Investor Reporting) (Amendment) Regulations 2022

S.I. 2022/1302

Water Abstraction (Transitional Provisions) (Amendment) (England) Regulations 2022

S.I. 2022/1311

Communications Act 2003 (Restrictions on the Advertising of Less Healthy Food) (Effective Date) (Amendment) Regulations 2022

S.I. 2022/1392

Education (Student Loans) (Repayment) (Amendment) (No. 5) Regulations 2022

Instruments not subject to Parliamentary proceedings laid before Parliament

S.I. Number

S.I. Title

S.I. 2022/1296

Northern Ireland (Extension of Period for Making Ministerial Appointments) Regulations 2022

S.I. 2022/1405

Recall Petition (Welsh Forms) Order 2022

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. Number

S.I. Title

S.I. 2022/1255

Agriculture Act 2020 (Commencement No. 2) (England) Regulations 2022

S.I. 2022/1294

Free Zone (Customs Site No. 1 Liverpool) Designation Order 2022

S.I. 2022/1308

Telecommunications Infrastructure (Leasehold Property) Act 2021 (Commencement No. 1) Regulations 2022

S.I. 2022/1310

Wireless Telegraphy (Licence Charges) (Amendment) Regulations 2022

S.I. 2022/1401

Elections Act 2022 (Commencement No. 6 and Savings) Regulations 2022

Appendix 1: Memorandum from the Department for Education

S.I. 2022/1191

Higher Education (Investigation Fees) (England) Regulations 2022

1)The Committee has asked the Department for Education for a memorandum on the following point(s):

Identify the criteria that will be used to determine whether all or part of a fee will be waived or refunded under these Regulations and confirm whether the criteria will be published.

2)There is currently no proposal to publish criteria for use in determining whether all or part of a fee will be waived or refunded under regulation 4 of these Regulations, and the Department does not intend that any particular criteria should apply. It would, of course, be open to the Office for Students (“the OfS”) to publish criteria if it considered it appropriate to do so.

3)The Department intends the exercise of the power under regulation 4 to be dependent on the circumstances of each case, but expects the exercise of the power to be exceptional in practice.

4)The fees provided for by these Regulations are not discretionary. Accordingly, the power to waive or refund all or part of a fee payable in any particular case is intended to enable the OfS to take account of the circumstances. The waiver or refund of all or part of a fee might, for example, be considered appropriate in the light of the precise outcome of an investigation or because of potential adverse consequences for students which the payment of the fee (or its payment in full) might have. However, these are not criteria for exercise of the power under regulation 4 and there should be no general expectation that fees will be waived or refunded in any particular situations. Regulation 4 gives the OfS a discretion, exercisable in accordance with the usual constraints arising by virtue of public law.

Department for Education

16 December 2022

Appendix 2: Memorandum from the Department for Education

S.I. 2022/1237

Religious Character of 16 to 19 Academies (Designation Procedure) (England) Regulations 2022

1)The Committee has asked Department for Education for a memorandum on the following point(s):

Given that the intention of regulation 5(4) is to ensure that the Secretary of State is only required to consult with that religious body that relates to the religious character of the 16 to 19 Academy for which an application is being made (as explained in paragraph 6.3 of the Explanatory Memorandum), explain why paragraph (c) does not expressly include that stipulation.

2)Regulation 5 specifies the circumstances in which the Secretary of State must consult certain persons likely to be interested in relation to an order made under section 8A(1) of the Academies Act 2010. Such a person is described as a “relevant religious body”.

3)In respect of a 16 to 19 academy that has an Anglican or Roman Catholic religious character, specific provision is made in relation to the body that must be consulted. In respect of any other religious denomination, regulation 5(4)(c) does not state which body must be consulted; it has been left deliberately open ended, providing the Secretary of State with the discretion to consult an appropriate religious body.

4)The Secretary of State is required to exercise the discretion conferred by section 5(4)(c) reasonably and in accordance with general public law principles. In this context, this requires the Secretary of State to consult a religious body that relates to the religious character of the 16 to 19 academy in respect of which the section 8A(1) order is being made. Failing to do so would constitute a breach of the duty to consult an appropriate religious body.

5)The Committee may be interested to understand why specific provision is made in respect Anglicanism and Roman Catholicism. Of the 6,813 state-funded faith schools in England, 95 per cent are either Anglican or Roman Catholic. In respect of each of those denominations, there is a memorandum of understanding between them and the Department which sets out how officials will engage and work with dioceses in relation to their schools.

6)No such memorandums of understanding exist between the Department and other religious bodies. In the absence of such memorandums, and in light of the plurality of bodies across all faiths that the Secretary of State may wish to consult in respect of an application for designation under section 8A(1), the Department considers that without more, regulation 5(4)(c) achieves the intended result.

Department for Education

20 December 2022

Appendix 3: Memorandum from the Department for Business, Energy and Industrial Strategy

S.I. 2022/1247

Guarantees of Origin of Electricity Produced from Renewable Energy Sources and High-efficiency Cogeneration (Amendment) (EU Exit) Regulations 2022

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

Explain whether regulation 5(6) should instead refer to paragraph (6).

2)We confirm that regulation 5(6) should instead refer to paragraph (6).

3)We are exploring whether it would be appropriate to rectify the error by the issue of a correction slip. In doing so, we will consider the Committee’s views in paragraphs 3.1 to 3.15 of its First Special Report of Session 2017–19 - Transparency and Accountability in Subordinate Legislation.

Department for Business, Energy and Industrial Strategy

19 December 2022

Formal minutes

Wednesday 18 January 2023

Virtual meeting

Members present

Jessica Morden, in the Chair

Lord Beith

Lord Chartres

Baroness D’Souza

Baroness Gale

Peter Grant

Lord Haskel

Lord Smith of Hindhead

Liz Twist

Report consideration

Draft Report (Twenty-Third 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 Twenty-Third 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 25 January at 3.40 p.m.