Twenty-Fourth 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: 27 January 2023

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Contents

Instruments reported

At its meeting on 25 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 six 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. 2022/1232: Reported for failure to comply with proper legislative practice

Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2022

1.1The 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.

1.2These Regulations, which are subject to the negative resolution procedure, amend the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 (S.I. 2003/3146). New regulation 30M(3)(b), inserted by regulation 2, provides that a local authority may calculate the relevant amount “in accordance with the accounting practices identified in regulation 31”. These include accounting practices contained in two Codes published by CIPFA, but there is no information in either these or the 2003 Regulations as to where those Codes can be inspected free of charge. The Committee asked the Department for Levelling Up, Housing and Communities to explain why that information has not been provided. In a memorandum printed at Appendix 1, the Department clarifies where such inspection can take place and undertakes to amend the Explanatory Memorandum to include this information. In the interests of accessibility, and having regard to paragraph 4.8 of the Committee’s First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation, the Department may wish to consider using a correction slip to amend the footnotes of or the Explanatory Note to the 2003 Regulations (both of which are inoperative parts of the instrument). The Committee accordingly reports regulation 2 for failure to comply with proper legislative practice, acknowledged by the Department.

2S.I. 2022/1252: Reported for defective drafting

Financial Services and Markets Act 2000 (Qualifying Provisions) (Amendment) Order 2022

2.1The Committee draws the special attention of both Houses to of both Houses to this Order on the ground that it is defectively drafted in one respect.

2.2This Order, which is subject to the negative resolution procedure, amends the Financial Services and Markets Act 2000 (Qualifying Provisions) Order 2013 (S.I. 2013/419, QUPO) by, inter alia, inserting the following definition of “markets in financial instruments regulation” (see article 3(2)(a)):

“markets in financial instruments regulation” means Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012.

2.3The Financial Services and Markets Act 2000 (FSMA), one of the enabling Acts cited in the preamble, defines the same term at section 417 in nearly the same way, but adding “as it forms part of retained EU law”. The Committee asked His Majesty’s Treasury to explain why article 3(2)(a) inserts this new definition (by contrast with “markets in financial instruments directive”, which is defined in FSMA but used in QUPO without further definition), and whether it is intended to carry a different meaning from the definition in FSMA. In its memorandum, printed at Appendix 2, the Department acknowledges that regulation 3(2)(a) is unnecessary (and notes that QUPO will be revoked by the Financial Services and Markets Bill if enacted in its current form). The Department also asserts that no difference in meaning is either intended or achieved, citing sections 11 and 20(3) of the Interpretation Act 1978. The Committee disagrees.

2.4Section 11 provides that expressions in subordinate legislation have the same meaning as in the enabling Act. Section 20(3) provides that where subordinate legislation made after the Brexit transition period refers to an EU Regulation, it refers to the EU Regulation as it has effect in domestic law. Both provisions, however, are subject to contra-indication. It appears to the Committee that a contrary intention can be inferred from the fact that on the one hand, “markets in financial instruments directive” in QUPO remains to be construed according to the definition in the enabling Act, while on the other hand, “markets in financial instruments regulation” is now to be construed according to a new definition inserted into QUPO which differs from the one in the enabling Act by making no express reference to retained EU law. The Committee accordingly reports regulation 3(2)(a) for defective drafting, partly acknowledged by the Department.

3S.I. 2022/1281: Reported for defective drafting

Haiti (Sanctions) 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, implement in UK law the sanctions imposed in relation to Haiti by UN Security Council Resolution 2653. Regulation 22(1) implements the arms embargo created by paragraph 11 of that Resolution: it prohibits technical assistance, armed personnel, financial services or funds, and specified brokering services from being provided to or for the benefit of a designated person (P) where that would enable or facilitate armed hostilities. Regulation 22(3)(a) creates a defence—not knowing or having reasonable cause to suspect that P was a designated person—for only three of those four prohibitions. The Committee asked the Foreign, Commonwealth and Development Office to explain whether the lack of a defence relating to the provision of armed personnel reflects the policy intent. In a memorandum printed at Appendix 3, the Department acknowledges that it does not and undertakes to correct the omission in an upcoming instrument. The Committee accordingly reports regulation 22(3)(a) for defective drafting, acknowledged by the Department.

4S.I. 2022/1313: Reported for requiring elucidation

Aviation Security (Amendment) (No. 2) Regulations 2022

4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.

4.2These Regulations, which are subject to the negative resolution procedure, amend the Annex to EUR 2015/1998 to make changes to the aviation security standards that apply in the UK. Regulation 2(6) inserts a new definition of “STEB” which, unlike the existing definition, does not require compliance with “the recommended security control guidelines of the International Civil Aviation Organisation”. The Committee asked the Department for Transport whether compliance with those or any other guidelines is still intended to be required. In a memorandum printed at Appendix 4, the Department confirms that the ICAO guidelines—as they are amended from time to time—will still apply and that the Secretary of State will issue directions to that effect under Part 2 of the Aviation Security Act 1982. The Department provides several justifications for excluding the requirement from EUR 2015/1998. The Committee accordingly reports regulation 2(6) for requiring elucidation, provided by the Department’s memorandum.

5S.I. 2022/1374: Reported for failure to comply with proper legislative practice

Official Controls (Extension of Transitional Periods) (Amendment) (England) Regulations 2022

5.1The 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

5.2These Regulations, which are subject to the negative resolution procedure, extend the transitional period during which temporary post-Brexit border controls apply to imports of EU SPS goods into England. They came into force on 30 December 2022, the day before the transitional period had been set to expire and just ten days after the instrument was laid before Parliament, breaching the convention that a negative instrument should be laid at least 21 days before coming into force. The Explanatory Memorandum asserts that the breach was caused by “ongoing Ministerial decisions regarding the future border regime … and the impact this has on transitional import arrangements”. The Committee asked the Department for Environment, Food and Rural Affairs whether it had anything to add to this explanation. In a memorandum printed at Appendix 5, the Department refers to a letter from the Minister of State for Food, Farming and Fisheries, printed at Appendix 5, which relies on the same justification. The Committee acknowledges that allowing the transitional period to expire would have caused disruption, as the Explanatory Memorandum and the letter describe. But this does not justify the failure to make the instrument in time both to avoid that disruption and to comply with the 21-day rule, especially since the expiry date had been known since 7 June 2022. The Committee reiterates its view that failure to settle policy within Government is not, in the main, an acceptable justification for failing to comply with the 21-day rule (as set out in its First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation). It does not consider that justification to be sufficient here. It also notes that the instruments extending the transitional period for Scotland and Wales were laid on 14 and 15 December respectively, indicating that earlier action was possible. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.

6S.I. 2022/1379: Reported for failure to comply with proper legislative practice

Civil Legal Aid (Immigration Interviews (Exceptions) and Remuneration) (Amendment) Regulations 2022

6.1The Committee draws the special attention of both Houses to to these Regulations on the ground that they fail to comply with proper legislative practice in one respect.

6.2These Regulations, which are subject to the negative resolution procedure, amend two instruments governing civil legal aid. Some of the amendments made to S.I. 2013/422 correct defects such as the failure to apply remuneration provisions to the 2018 Standard Civil Contract and lack of clarity as to whether fees are payable per item or per hour. In light of those corrections, the Committee asked the Ministry of Justice to explain whether the S.I. Registrar was consulted about providing copies of this instrument free of charge to all known recipients of S.I. 2013/422. In a memorandum printed at Appendix 6, the Department acknowledges that such consultation was required but did not take place; it confirms that remedial action is being taken. The Committee accordingly reports this instrument for failure to comply with proper legislative practice, acknowledged by the Department.

Instruments not reported

At its meeting on 25 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. 2023/9

Energy Bill Relief Scheme (Non-Standard Cases) Regulations 2023

Draft instruments requiring affirmative approval

S.I. Number

S.I. Title

Draft

Alcoholic Beverages (Amendment) (England) Regulations 2023

Draft

Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2023

Draft

Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2023

Draft

Benefit Cap (Annual Limit) (Amendment) Regulations 2023

Draft

Guaranteed Minimum Pensions Increase Order 2023

Draft

Social Security (Contributions) (Rates, Limits and Thresholds Amendments and National Insurance Funds Payments) Regulations 2023

Draft

Social Security Benefits Up-rating Order 2023

Draft

Tax Credits, Child Benefit and Guardian’s Allowance Up-rating Regulations 2023

Instruments subject to annulment

S.I. Number

S.I. Title

S.I. 2022/1389

Register of Overseas Entities (Verification and Provision of Information) (Amendment) Regulations 2022

S.I. 2023/4

Health Protection (Coronavirus, International Travel from China) (England) (Amendment) Regulations 2023

S.I. 2023/6

Rent Officers (Housing Benefit and Universal Credit Functions) (Modification) Order 2023

S.I. 2023/7

Universal Credit (Administrative Earnings Threshold) (Amendment) Regulations 2023

S.I. 2023/11

M42 Motorway (Junction 3) (50 Miles Per Hour Speed Limit) Regulations 2023

S.I. 2023/12

Immigration (Restrictions on Employment etc.) (Amendment) (EU Exit) Regulations 2023

S.I. 2023/15

Immigration and Nationality (Fees) and Passport (Fees) (Amendment) Regulations 2023

S.I. 2023/17

Official Controls (Northern Ireland) Regulations 2023

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. Number

S.I. Title

S.I. 2022/545

Protection of Trading Interests (Authorisation) (Amendment) Regulations 2022

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

S.I. 2022/1232

Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2022

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

Explain why regulation 31 of the amended Regulations, as referred to in new regulation 30M(3)(b), does not provide a footnote explaining where a copy of the Codes published by CIPFA can be inspected free of charge.

2)The Department thanks the Committee for its question and the opportunity to clarify this point.

3)Regulation 31 of the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 (S.I. 2003/3146) specifies the codes of practice and guides which contain accounting practices to be treated as “proper practices” for the purposes of section 21 of the Local Government Act 2003. These include in particular the “Code of Practice on Local Authority Accounting in the United Kingdom” as published by CIPFA and amended or reissued from time to time (with the latest such reissue being published in 2022).

4)S.I. 2022/1232 amends S.I. 2003/3146 by inserting a new regulation 30M, which provides a specific accounting treatment that local authorities may choose to apply in relation to infrastructure assets in place of the practices that would otherwise be considered to be proper practices. Regulation 30M(3)(b) refers to regulation 31 in the context of distinguishing the new accounting treatment from those pre-existing proper practices, and the Department simply considered this to be a cross-reference to an existing legislative provision. S.I. 2022/1232 does not otherwise refer to or amend regulation 31.

5)The Department notes that the original published version of regulation 31 of S.I. 2003/3146 does not provide details of where the codes of practice and guides identified as containing “proper practices” can be inspected. Instead, the Explanatory Note to that SI explains where they were available for purchase. It appears to the Department that S.I. 2003/3146 may have predated the requirement to explain where copies of documents referred to in legislation can be obtained or inspected free of charge (which appears to have been developed in the period running up to, and subsequently fully articulated in, the Committee’s first special report of session 2017–19 on transparency and accountability in subordinate legislation).

6)However, in the interests of transparency and accessibility the Department can confirm that copies of the codes of practice and guides identified in regulation 31 of S.I. 2003/3146 may be inspected free of charge by prior appointment with the Department’s Capital Finance and Accounting Team at 2 Marsham Street, London, SW1P 4DF. The Department will also amend the Explanatory Memorandum to SI 2022/1232 to draw attention to this.

Department for Levelling Up, Housing and Communities

16 January 2023

Appendix 2: Memorandum from HM Treasury

S.I. 2022/1252

Financial Services and Markets Act 2000 (Qualifying Provisions) (Amendment) Order 2022

1)The Committee has asked HM Treasury for a memorandum on the following points:

Explain—

(1) why a definition for “markets in financial instruments regulation” is included when “markets in financial instruments directive” in the amended Order is undefined (and relies on section 11 of the Interpretation Act 1978); and

(2) whether the difference between the definition as inserted by article 3 and the definition as it appears in section 417 Financial Services and Markets Act 2000 (which states expressly that it refers to the Regulation as it forms part of retained EU law) is intended to result in a difference in meaning.

Point (1)

2)HM Treasury accept that it was unnecessary to include a definition of the “markets in financial instruments regulation” as this term is defined for the purposes of the enabling Act for this instrument in section 417 of the Financial Services and Markets Act 2000. The drafting is unnecessary and should not have been included.

Point (2)

3)No difference in meaning was intended. It is HM Treasury’s view that, despite the differences in drafting, there is no difference in the meaning of the two definitions of the markets in financial instruments regulation (“MiFIR”).

4)The definition in section 417, which refers to MiFIR “as it forms part of retained EU law”, is a reference to the domestic version of MiFIR as added to or otherwise modified from time to time (as a result of the definition of “retained EU law” in section 6(7) of the European Union (Withdrawal) Act 2018, which applies by virtue of Schedule 1 to the Interpretation Act 1978). The definition inserted by article 3 also refers to the domestic version of MiFIR (as a result of section 20(3) of the Interpretation Act 1978).

5)Article 1(3) of the Financial Services and Markets Act 2000 (Qualifying Provisions) Order 2013 (“QUPO”) provides that any reference to an EU Regulation is to be read as a reference to that EU Regulation as amended from time to time. Therefore, both definitions refer to the domestic version of MiFIR as amended from time to time.

6)For information, QUPO is listed as retained EU law to be revoked in Schedule 1 to the Financial Services and Markets Bill which is currently passing through Parliament. QUPO (including the unnecessary drafting inserted by this instrument) will therefore be revoked in due course.

HM Treasury

17 January 2023

Appendix 3: Memorandum from the Foreign, Commonwealth and Development Office

S.I. 2022/1281

Haiti (Sanctions) Regulations 2022

1)The Committee has asked in its letter of 11th January 2023 to the Foreign, Commonwealth and Development Office (“FCDO”) for a memorandum on the following point(s):

In relation to regulation 22, confirm whether it reflects the policy intent that there is no defence in paragraph (3)(a) relating to the prohibition in paragraph (1)(b) (providing armed personnel to or for the benefit of a designated person).

2)The FCDO is grateful for the Committee’s consideration of this instrument. It is not the policy intention for there to be no such defence; the defence in paragraph (3)(a) of regulation 22 of the Haiti (Sanctions) Regulations 2022 inadvertently omits reference to [providing] ‘armed personnel’, as prohibited by paragraph (1)(b). The FCDO will correct the omission in an instrument due to be laid in the coming weeks.

Foreign, Commonwealth and Development Office

17 January 2023

Appendix 4: Memorandum from the Department for Transport

S.I. 2022/1313

Aviation Security (Amendment) (No. 2) Regulations 2022

1)The Committee has asked the Department for Transport for a memorandum on the following point:

In relation to the amended definition of STEB inserted by regulation 2(6), explain whether it is intended that a STEB must continue to conform to the recommended security control guidelines of the International Civil Aviation Organisation, or any other guidelines.

2)The Department intends to still require STEBs (security tamper-evident bags) to conform to the recommended security control guidelines of the International Civil Aviation Organization. However, it will require this through directions issued under Part 2 of the Aviation Security Act 1982 (the same directions as are being used to replace Chapter 4 of Regulation 2015/1998, which is being omitted by this SI).

3)Although Regulation 2015/1998, in its form as retained immediately post-Implementation Period, defined “STEB” by reference to conformity with the “recommended security control guidelines of the International Civil Aviation Organization”, the restatement of the definition via the Aviation Security (Amendment) (No. 2) Regulations 2022 must comply with domestic drafting requirements. As explained in the last sentence of paragraph 7.9 of the Explanatory Memorandum, in reinserting definitions the opportunity was taken to ensure they complied with UK drafting practice.

4)In accordance with Part 3.17 of Statutory Instrument Practice (5th Edition), references to external publications should be to specific versions of that document to prevent that reference from becoming ambulatory. The only exception is where there is a specific statutory power to enable an ambulatory reference. No such power is available in this instance.

5)Defining STEB by reference to a specific version of ICAO guidance on the face of the statutory instrument would severely constrict the Department’s ability to ensure that aviation security measures conformed with new and updated international standards, as well as the Department’s ability to respond to threats. It would require a further new statutory instrument to amend the definition each time the ICAO guidelines were updated.

6)Further, where a statutory instrument refers to an external document the Department must produce copies. In the case of printed documents, the Department must provide hard copies to the scrutiny and Parliamentary committees and provide information on where copies can be reviewed. In the case of digital documents, the Department must provide a link as well as accessibility arrangements for those without internet access.

7)This would not be feasible in the present case. The International Civil Aviation Organization’s recommended security control guidelines are contained in a wider “Aviation Security Manual”. Due to the security sensitive nature of its content, ICAO does not make this publicly available. The Department would therefore not be able to provide hard copies for review, or links to digital documents on the internet.

8)For these reasons, the definition of “STEB” in the Aviation Security (Amendment) (No. 2) Regulations does not refer to conformity with international guidelines. However, as set out in the Explanatory Memorandum, the Secretary of State has powers under Part 2 of the Aviation Security Act 1982 to direct industry to take specified measures for the purpose of safeguarding civil aviation. Much of the UK’s aviation security regulation is contained in such directions. The Department shall, through these directions, require STEBs used in the UK to comply with the international guidelines. This approach will enable much greater flexibility, as directions can be varied to take account of changes to international guidelines at a much faster pace than through the statutory instrument process, while preserving the sensitive nature of the guidelines’ content.

9)The directions replacing Chapter 4 of Regulation 2015/1998 were still being drafted at the time of laying the statutory instrument, as the statutory instrument does not come into force until 31 January 2023. As such the Department was unable, at the time of laying the statutory instrument, to include a commitment as to the content of the direction.

Department for Transport

16 January 2023

Appendix 5: Memorandum from the Department for Environment, Food and Rural Affairs

S.I. 2022/1374

Official Controls (Extension of Transitional Periods) (Amendment) (England) Regulations 2022

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

Does the Department have anything to add to the explanation at paragraph 3.1 of the Explanatory Memorandum for failure to comply with the 21-day rule?

2)The Department notes that, in addition to what was stated in the Explanatory Memorandum, the Minister of State for Food, Farming and Fisheries wrote to the Committee on 20th December 2022 regarding the breaking of the 21-day convention in respect of this instrument.

Department for Environment, Food and Rural Affairs

17 January 2023

Letter from the Rt. Hon. Mark Spencer MP, Minister of State for Food, Farming and Fisheries, dated 20 December 2022

Dear JCSI

I am writing to inform you of a Statutory Instrument that will be laid by Defra and break the 21-day convention.

We understand that the 21-day convention is important and should be followed, however as is outlined below, it is essential that this legislation be in force before that period ends. The Official Controls (Extension of Transitional Periods) (Amendment) (England) Regulations 2022 will be laid on 20th December 2022 and will come into force on 30th December 2022. It is not possible to observe the 21-day convention for this instrument due to ongoing Ministerial decisions regarding a new border Target Operating Model (TOM) and the implications this has on transitional import arrangements.

The instrument extends the transitional staging period (TSP) of easements on the introduction of official controls on EU imports of sanitary and phytosanitary (SPS) goods to Great Britain until 31st January 2024, as the TSP is currently due to end on 31st December 2022. The SI also extends temporary policies which have been previously linked to the TSP period end date, to 31st January 2024.

A delay to this instrument coming into force would mean introducing complex and costly import checks posing a risk to food supply chain disruption, that would have then been altered later as our new border regime is delivered.

Please do not hesitate to get in touch if you need further information.

I am copying this letter to Parliamentary Business and Legislation officials, and the Secondary Legislation Scrutiny Committee.

Yours sincerely,

Rt Hon Mark Spencer MP

Appendix 6: Memorandum from the Ministry of Justice

S.I. 2022/1379

Civil Legal Aid (Immigration Interviews (Exceptions) and Remuneration) (Amendment) Regulations 2022

1)In consideration of the above instrument the Committee has asked for a memorandum on the following point:

Having regard to the confirmation at paragraphs 7.10 to 7.13 of the Explanatory Memorandum that this instrument makes corrections to S.I. 2013/422, explain whether the S.I. Registrar was consulted as to whether replacement copies should be provided free of charge.

2)The Ministry of Justice confirms that it did not consult the Registrar as to whether replacement copies should be provided free of charge, and acknowledges that it should have done so. The Ministry of Justice has contacted the Registrar, who has confirmed, following consideration of the content of the SI, that the free-issue procedure should have been used.

3)The Registrar has explained that as both the SI and EM have already been laid and published, any retrospective action is currently limited to refunding known purchases of the print version who can be identified by standing order. The Ministry of Justice has asked the Registrar to pass the necessary instructions to the Stationary Office to issue any required refunds.

4)The Ministry apologises for not consulting the Registrar prior to laying the SI.

Ministry of Justice

17 January 2023

Formal minutes

Wednesday 25 January 2023

Virtual meeting

Members present

Lord Haskel, in the Chair

Lord Beith

Lord Chartres

Baroness D’Souza

Baroness Gale

Peter Grant

Gareth Johnson

Damien Moore

Baroness Newlove

Lord Smith of Hindhead

Maggie Throup

Liz Twist

Report consideration

Draft Report (Twenty-fourth 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 6.2 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 6.

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

Ordered, That Gareth Johnson make the Report to the House of Commons.

Adjournment

Adjourned till Wednesday 1st February at 3.40 p.m.