Report by the House of Lords and House of Commons Joint Committee on Statutory Instruments
At its meeting on 29 March 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 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.
1.1 The 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.
1.2 These Regulations, which are subject to the negative resolution procedure, make amendments to the Police Pensions Regulations 2015 (S.I. 2015/445). The powers to make these Regulations are contained within the Public Service Pensions Act 2013 and are subject to various requirements. These include a statutory pre-condition contained in section 22 of that Act. This provides that where amendments are in relation to protected elements and within the protected period, there is a requirement to lay a report before Parliament. The report must be laid before Parliament at a stage when the authority “proposes” to make regulations and the report must set out why the responsible authority proposes to make the regulations. The requirement that the authority must lay a report at a stage when it is proposing to make the regulations necessarily implies that the report must be laid before it makes the regulations.
1.3 It appeared to the Committee that a report had not been laid before Parliament before these Regulations were made. The Committee asked the Home Office to explain. In a memorandum printed at Appendix 1, the Department confirms that the report was laid the day after these Regulations were made and laid before Parliament. The intention had been to lay them both on the same day. The Department has apologised for this unintentional error.
1.4 Whilst there is some doubt as to whether laying the report the same day as the instrument is made would be at a stage when the responsible authority “proposes to make further scheme regulations”, as required by section 22, in any event, the Committee considers that the authority must clearly lay the report before making the regulations and by laying the report the day after, this requirement was not fulfilled. Failure to comply with a statutory pre-condition goes to the question of the lawfulness of the exercise of a power and the Committee accordingly reports these Regulations for doubt as to whether they are intra vires.
2.1 The 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.
2.2 This instrument, which is subject to the negative resolution procedure, amends retained EU law to approve certain exports from Switzerland and Iceland to Great Britain. The Explanatory Memorandum asserts that these approvals were revoked unintentionally due to a drafting error in S.I. 2022/735, an instrument made to correct legislative deficiencies arising from Brexit. The Committee asked the Department for Environment, Food and Rural Affairs to explain whether the S.I. Registrar was consulted about whether this S.I. should be made available, free of charge, to everyone who received the original S.I. In a memorandum printed at Appendix 2, the Department acknowledges that this was not done, apologises for the oversight and explains that it is taking steps to ensure that the free-issue procedure is followed. The Committee accordingly reports this instrument for failure to comply with proper legislative practice, acknowledged by the Department.
3.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
3.2 These Regulations, which are subject to the negative resolution procedure, provide that functions relating to the eligibility for NHS Continuing Healthcare and NHS funded nursing care cannot be subject to joint working or delegation arrangements. Regulation 2(3)(e) inserts a new regulation 2(2)(c) into the National Health Service (Joint Working and Delegation Arrangements) (England) Regulations 2022 (S.I. 2022/642). However, S.I. 2023/68 also inserted a new regulation 2(2)(c) into the same Regulations. The Committee asked the Department for Health and Social Care to explain.
3.3 In a memorandum printed at Appendix 3, the Department explains that this was an error as the insertion of new regulation 2(2)(c) by S.I. 2023/68 had been overlooked. The Department has undertaken to take steps to correct this error. The Committee accordingly reports regulation 2(3)(e) for defective drafting, acknowledged by the Department.
4.1 The Committee draws the special attention of both Houses to this Order on the grounds that there is doubt as to whether it is intra vires in one respect and that it fails to comply with proper legislative practice in another respect.
4.2 This Order, which is subject to the negative resolution procedure, provides for compensation to be paid where the Secretary of State causes a horse to be killed on suspicion of certain diseases. The Order includes at paragraphs (2) to (7) of article 3 a process for the Secretary of State to value a horse and then allows the owner to dispute the valuation. This includes a requirement on the owner to pay the fees and expenses of an appointed valuer if the final valuation is equal or less than the Secretary of State’s initial valuation.
4.3 The Committee asked the Department for Environment, Food and Rural Affairs what power is relied on as the basis for this process. In a memorandum printed at Appendix 4, the Department asserts that the power in section 32(3) of the Animal Health Act 1981 to prescribe a scale is wide enough to enable provision for an abatement to reflect the value of the horse. Accordingly, the Department considers that this includes power to provide a mechanism for the determination of the horse’s value.
4.4 The Committee is not persuaded. As noted above, article 3 involves more than determination of a horse’s value. The Committee does not consider that the power to prescribe a scale is wide enough to encompass dispute resolution, appointment of an independent valuer and recovery of the valuer’s fees and expenses. The fact that the Animal Health Act 1981 provides a specific power in section 34(7)(a) for “prescribing the mode of ascertainment of the value of an animal […] slaughtered” is itself an indication that the section 32(3) power is not intended to and should not be relied on to make that sort of provision, but should be read narrowly to allow the setting of scales. Given that section 32 is the only power cited in the preamble and as failure to cite an enabling power goes to the question of vires, the Committee accordingly reports paragraphs (2) to (7) of article 3 for doubt as to whether they are intra vires.
4.5 The Committee also asked the Department why, if the Order is made with the approval of the Treasury, signatures from two of the Lords Commissioners of His Majesty’s Treasury were not provided in the normal way. In its memorandum, the Department acknowledges that this requirement was overlooked and undertakes to take steps to rectify this issue. Accordingly, the Committee reports this Order for failure to comply with proper legislative practice.
At its meeting on 29 March 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.
S.I. Numbers |
S.I. Title |
Draft |
Code of Practice on the Recording and Retention of Personal Data in relation to Non-Crime Hate Incidents |
Draft |
Register of Overseas Entities (Definition of Foreign Limited Partner, Protection and Rectification) Regulations 2023 |
S.I. Numbers |
S.I. Title |
S.I. 2023/209 |
Armed Forces (Driving Disqualification Orders) Regulations 2023 |
S.I. 2023/273 |
Sea Fisheries (Amendment) Regulations 2023 |
S.I. 2023/276 |
Childcare and Inspection of Education, Children’s Services and Skills (Fees) (Amendments) Regulations 2023 |
S.I. 2023/297 |
Merchant Shipping (Light Dues) (Amendment) Regulations 2023 |
S.I. 2023/298 |
Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023 |
S.I. 2023/300 |
National Health Service (Charges for Drugs and Appliances) (Amendment) Regulations 2023 |
S.I. 2023/302 |
Export Control (Military and Dual-Use Lists) (Amendment) Regulations 2023 |
S.I. 2023/305 |
Immigration (Electronic Travel Authorisations) (Consequential Amendment) Regulations 2023 |
S.I. 2023/313 |
Coroners and Justice Act 2009 (Alteration of Coroner Areas) Order 2023 |
S.I. 2023/314 |
Medicines (Products for Human Use) (Fees) (Amendment) Regulations 2023 |
S.I. 2023/320 |
Gas Safety (Management) (Amendment) (No. 2) Regulations 2023 |
S.I. Number |
S.I. Title |
S.I. 2023/283 |
Nationality and Borders Act 2022 (Commencement No. 5 and Transitional Provisions) Regulations 2023 |
1. The Committee has asked the Home Office for a memorandum on the
following point(s):
In relation to the report required to be laid before Parliament by section 22 of the Public Service Pensions Act 2013, confirm the date it was laid before Parliament and whether this date is at the stage when “the responsible authority proposes to make further scheme regulations” (section 22(1) of the 2013 Act).
2. Section 22 of the Public Service Pensions Act 2013 sets out an enhanced procedure where a responsible authority proposes to make scheme regulations containing provision changing a protected element of scheme regulations establishing a scheme under that Act.
3. That procedure applied because the Home Office proposed to make regulations making a change to the date at which the member contribution rates set out in regulation 170 of the Police Pensions Regulations 2015 (as previously amended) would otherwise have ceased to apply. Members’ contribution rates under the scheme are a protected element by virtue of section 22(5) of the 2013 Act. Further provision was required so that scheme administrators could continue to collect member contributions, at the existing rate, after 1 April 2023.
4. The Police Pensions (Contributions and Pensionable Earnings) (Amendment) (England and Wales) Regulations 2023 were due to be laid before Parliament on 28 February but were in fact laid in error a day early, on 27 February.
5. The report required to be laid by section 22 was, however, laid on 28 February. Given that the regulations had been made and laid the previous day, this was clearly not at the stage when “the responsible authority proposes to make further scheme regulations”.
6. The Department apologises for this unintentional error.
Home Office
21 March 2023
1. The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following point(s):
Having regard to the reasons provided in the Explanatory Memorandum for making this instrument, explain whether the S.I. Registrar was consulted as to whether it should be issued free of charge to all known recipients of S.I. 2022/735 (or a related instrument).
This was an oversight for which the Department apologises. We are liaising with the SI Registrar in order to ensure that the free issue procedure can now be followed.
Department for Environment, Food and Rural Affairs
21 March 2023
1. The Committee has asked the Department of Health and Social Care for a memorandum on the following point:
Explain why regulation 2(3)(e) inserts a new paragraph (c) into regulation 2 of S.I. 2022/642, when S.I. 2023/98 also inserted a paragraph (c) into the same regulation.
2. This was an error as the Department had overlooked the insertion of paragraph (c) by S.I. 2023/98.
3. Accordingly, the paragraph inserted by regulation 2(3)(e) should have been paragraph (d) instead of (c).
4. The Department apologises to the Committee for this error and will take steps to correct it and to avoid recurrence in other instruments.
Department of Health and Social Care
20 March 2023
1. The Committee has asked the Department for Environment Food and Rural Affairs for a memorandum on the following point(s):
(1) Explain what power is relied upon as the basis for the valuation process set out in article 3(2) to (7) of the Order.
(2) Explain why, unlike other Orders made under section 32(3) of the Animal Health Act 1981, the Order does not include signatures from two of the Lords Commissioners of His Majesty’s Treasury.
2. As regards the first point, the power relied upon as the basis for the valuation process set out in article 3(2) and (7) of 2023/230 is set out in section 32 of the Animal Health Act 1981, in particular subsection (3). Given that the power to prescribe a scale is wide enough to enable provision for an abatement to reflect the value of the horse, the Department considers that this includes power to provide a mechanism for the determination of the horse’s value in the manner set out in article 3(2) to (7) of the Order.
3. As regards the second point, this requirement was overlooked. The Department apologises for this oversight and will now take steps to rectify this issue.
Department for Environment, Food and Rural Affairs
21 March 2023
Jessica Morden, in the Chair
Lord Beith
Lord Chartres
Baroness D’Souza
Peter Grant
Lord Leong
Lord Sahota
Baroness Sater
Lord Smith
Maggie Throup
Liz Twist
Draft Report (Thirty-Second 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 4.5 read and agreed to.
Annex agreed to.
Papers were appended to the Report as Appendices 1 to 4.
Resolved, That the Report be the Thirty-Second 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 19 April at 3.40 p.m.