Thirty-Third Report of Session 2022–23

Instruments reported

At its meeting on 19 April 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.

1S.I. 2023/229: Reported for failure to comply with proper legislative practice

Building Safety Act 2022 (Consequential Amendments and Prescribed Functions) and Architects Act 1997 (Amendment) Regulations 2023

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, make amendments resulting from the abolition of the Building Regulations Advisory Committee for England. Regulation 2(2) and (4) amends provisions of the Welsh Ministers (Transfer of Functions) (No.2) Order 2009 (S.I. 2009/3019) that amend primary legislation (section 14 of the Building Act 1984 and Schedule 2 to the Parliamentary Commissioner Act 1967). The Committee noticed that paragraphs 17(2) and 87 of Schedule 5 to the Building Safety Act 2022 repeal the provisions that would be affected by those amendments but that those provisions had not yet been commenced. The Committee was concerned that, if paragraphs 17(2) and 87 were not commenced before these Regulations come into force, regulation 2(2) and (4) would be construed as making indirect amendments to primary legislation (rather than consequential amendments to tidy up the statute book as would be the case after commencement of those paragraphs). Amendments to primary legislation would require these Regulations to be made using the affirmative procedure (section 168(6)(g) of the Building Safety Act 2022). The Committee asked the Department for Levelling Up, Housing and Communities to explain whether the intention of regulation 2(2) and (4) is to make consequential amendments or to make indirect amendments to the relevant primary legislation.

1.3In a memorandum printed at Appendix 1, the Department explains that the intention is to make consequential amendments and that commencement regulations (S.I. 2023/362) were made on 23 March 2023 bringing paragraphs 17(2) and 87 into force on 1 April 2023 (the date of commencement of this instrument). The Committee acknowledges that the requisite commencement regulations have now been made but notes that users of legislation can only assess that legislation based on the published law at the time. This instrument was made on 27 February 2023, several weeks before the commencement regulations were made. If the Department’s intention was to commence paragraphs 17(2) and 87 of Schedule 5 in conjunction with this instrument, that intention should have been made clear in the Explanatory Note or Explanatory Memorandum at the time this instrument was made especially where, as here, the commencement or not of those paragraphs affects the procedure used for making the instrument. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.

2S.I. 2023/231: Reported for requiring elucidation

Rating Lists (Valuation Date) (England) Order 2023

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

2.2This Order, which is subject to the negative resolution procedure, specifies 1 April 2024 as the day by reference to which properties are to be valued for the purpose of compiling the next non-domestic rating list (the antecedent valuation date). This date has typically been set two years prior to a revaluation taking effect (the compilation date). In paragraph 2 of the Explanatory Memorandum, the Department for Levelling Up, Housing and Communities explains that although under current legislation the next compilation date is 1 April 2028, it is the Government’s intention to reduce the time between revaluations so that the next compilation date will be two years earlier on 1 April 2026. This change is subject to the passage of primary legislation.

2.3Although there appears to be nothing that would prevent a 2024 antecedent valuation date being set for a 2028 compilation date (other than in practice that would be too early), the Committee was concerned with the Department’s approach of enacting subordinate legislation in advance of the passage of the primary legislation. The Committee asked the Department to explain why this approach was considered an appropriate use of the enabling power (paragraph 2(3)(b) of Schedule 6 to the Local Government Finance Act 1988).

2.4In a memorandum printed at Appendix 2, the Department acknowledges that, although not without precedent, the use of the enabling power in this Order is different from the way in which the power has usually been exercised. The Department asserts that valuation officers begin their preparation for the revaluation more than a year ahead of the antecedent valuation date and by setting that date (before the passing of primary legislation amending the compilation date) valuation officers have the certainty they need to start the process. The Department states that a decision has not yet been made as to what antecedent valuation date will be set if the next compilation date is not amended by primary legislation but considers that the enabling power is broad enough to allow the antecedent valuation date to be changed in those circumstances. The Committee remains concerned about the enactment of subordinate legislation in anticipation of the passage of primary legislation as that may suggest that a constitutionally questionable assumption has been made. However, on this occasion, the Committee is content to report this Order for requiring elucidation, provided by the Department’s memorandum.

3S.I. 2023/235: Reported for failure to comply with proper legislative practice

Genetically Modified Food and Feed (Authorisations and Modifications of Authorisations) (England) Regulations 2023

3.1The 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.

3.2These Regulations, which are subject to the negative resolution procedure, authorise the placing on the market of specified genetically modified food and feed products in England. Paragraph 4(2) of each Schedule refers to documents in which methods of detection for specified substances are set out. The Explanatory Note gives a web address of where these documents can be found but does not indicate where hard copies of the documents are available free of charge. The Committee asked the Food Standards Agency to explain the omission.

3.3In a memorandum printed at Appendix 3, the Department acknowledges the oversight and explains that a correction slip has already been issued to address this point in the Explanatory Note. The Committee is content that a correction slip was appropriate in this instance given that the change was to a non-operative part of the Regulations. The Committee is grateful for this action and reiterates that, where a document is given a significance in legislation, availability details should be given in the instrument itself for both electronic and hard copies (see First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation at paragraphs 4.6 to 4.8). The Committee accordingly reports these Regulations for failure to comply with proper legislative practice, acknowledged by the Department.

4S.I. 2023/242: Reported for requiring elucidation

Veterinary Surgeons and Veterinary Practitioners (Registration) (Amendment) Regulations Order of Council 2023

4.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect.

4.2This Order, which is not subject to parliamentary procedure, approves regulations which provide for 2 to 7% increases in certain fees for registration and retention of names in the Register of the Royal College of Veterinary Surgeons and for the retention of fee credits. However, for certain fees concerning restoration of a name to the Register, the increase provided for is approximately 29%. The Committee asked the Department for Environment, Food and Rural Affairs to confirm whether this 29% increase represents cost recovery. In a memorandum printed at Appendix 4, the Department gives that confirmation. The Committee accordingly reports this Order for requiring elucidation, provided by the Department’s memorandum.

Instruments not reported

At its meeting on 19 April 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

Draft instruments requiring affirmative approval

Instruments subject to annulment

Instruments not subject to Parliamentary proceedings laid before Parliament

Instruments not subject to Parliamentary proceedings not laid before Parliament

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

S.I. 2023/229

Building Safety Act 2022 (Consequential Amendments and Prescribed Functions) and Architects Act 1997 (Amendment) Regulations 2023

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

1. Given that paragraphs 17(2) and 87 of Schedule 5 to the Building Safety Act 2022 have not been commenced, explain whether the intention of regulations 2(2) and (4) is (a) to make consequential amendments or (b) to make indirect amendments to the relevant primary legislation (the Building Act 1984 and the Parliamentary Commissioner Act 1967 respectively).

2. If regulations 2(2) and (4) are intended to make consequential amendments, confirm whether paragraphs 17(2) and 87 of Schedule 5 to the Building Safety Act 2022 will be commenced before the coming into force of these Regulations.

3. If regulations 2(2) and (4) are intended to make indirect amendments to the relevant primary legislation, explain why the affirmative procedure was not used (see section 168(6)(g) of the Building Safety Act 2022).

2)In response to question 1, the intention was (a), that is, to make consequential amendments.

3)In response to question 2, we can confirm that paragraphs 17(2) and 87 of Schedule 5 to the Building Safety Act 2022 will be commenced before the coming into force of these Regulations. The Building Safety Act 2022 (Commencement No. 4 and Transitional Provisions) Regulations 2023, S.I. 2023/362, contain provision bringing those paragraphs of Schedule 5 into force on 1st April 2023 and were made on 23rd March 2023.

Department for Levelling Up, Housing and Communities

28 March 2023

Appendix 2: Memorandum from the Department for Levelling Up, Housing and Communities

S.I. 2023/231

Rating Lists (Valuation Date) (England) Order 2023

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

Explain why it was considered an appropriate use of the enabling power to set the antecedent valuation date in subordinate legislation in advance of the passage of primary legislation reducing the time between the compilation of non-domestic rating lists from every fifth year to every third.

2)The Department acknowledges that the use of the power in paragraph 2(3)(b) of Schedule 6 to the Local Government Finance Act 1988 (the “Act”), when read with the current provisions in sections 41 and 42 of the Act, is different from the way in which the power has usually been exercised in the past. However, the way it has been exercised in this instrument is not without precedent (see paragraph 8). The Department accepts that the reasons for the use of the power could have been explained more fully in the Explanatory Memorandum. The Department is grateful to the Committee for the opportunity to remedy the oversight in this memorandum.

3)Under the Act, valuation officers have a duty to compile non-domestic rating lists and this is facilitated by the statutory powers conferred on valuation officers by the Act¹. Significant work is required to correctly value hereditaments and adequately discharge the duty.

4)If the Department did not exercise the power conferred by paragraph 2(3)(b), the determination of a rateable value would have to be made by reference to the day on which a list is compiled (the “compilation date”). There are obvious practical difficulties with determining rateable values on the same day as the compilation date² and so, historically, the Secretary of State has exercised the power to specify an antecedent valuation date (the “AVD”). In setting the date, the Secretary of State takes into account all relevant factors, including the work that must be undertaken by the valuation officers and the likelihood and impact of any changes which might be made to relevant legislation.

5)The Department considers that it is desirable for the Secretary of State to exercise the power to set the AVD as early as possible in the revaluation process. Valuation officers begin their preparation for the revaluation more than a year ahead of the AVD. They will start to collect evidence of values and engage with ratepayers to ensure the resulting rateable values are as accurate as possible. By setting the AVD now, valuation officers have the certainty they need to start the process. Delaying the exercise of the power until the passing of the primary legislation which amends the compilation date would delay the work and, therefore, weaken the delivery of that revaluation.

6)Having taken these factors into account, the government’s policy is to set the AVD at 1st April 2024 for the rating lists currently due to be compiled on 1 April 2028. Although this is a departure from the usual policy of setting the AVD at two years before the compilation date, as it is currently set in primary legislation, it has been done before and reflects the competing considerations that the Secretary of State must take into account (as explained in paragraph 5).

7)The Department’s view is that the broad power conferred by Parliament reflects that a change in circumstances may require the AVD to be amended. A decision has not been made as to what the AVD should be if the compilation date is not amended. The Secretary of State must, of course, exercise his discretion to set the AVD in light of the considerations as they are on the day the decision is made. For these reasons, the Department is of the view that the power has been exercised prudently.

8)The Secretary of State has exercised the power in this way before. At the time the Rating Lists (Valuation Date) (England) Order 2018 No. 553 was made, the Act provided for new rating lists to be compiled on 1 April 2022. Nonetheless, the AVD was set at 1 April 2019. The Explanatory Memorandum to that instrument explained that the decision was made having taken into account the prospective change to the compilation date.

Department for Levelling Up, Housing and Communities

28 March 2023

Appendix 3: Memorandum from the Food Standards Agency

S.I. 2023/235

Genetically Modified Food and Feed (Authorisations and Modifications of Authorisations) (England) Regulations 2023

1)The Committee has asked the Food Standards Agency for a memorandum on the following point:

Explain where hard copies of the documents referred to in paragraph 4 of each Schedule are available free of charge.

2)A correction slip has been issued to address this in the explanatory note for S.I. 2023/235. An extra sentence has been added to the end of the fifth from last paragraph in the explanatory note so that it now reads:

In each Schedule, paragraph 4 specifies the methods for detection, including sampling, which have been validated for use in relation to the authorised products. The documents referred to have been published at http://gmo-crl.jrc.ec.europa.eu/statusofdossiers.aspx. Hard copies of these documents are available for inspection at the Food Standards Agency, Floors 6 and 7, Clive House, 70 Petty France, London SW1H 9EX, at reasonable times, following a written request to that address or to GM.Inquiries@food.gov.uk.

3)The revised S.I. can be viewed at: https://www.legislation.gov.uk/uksi/2023/235/note/made

4)We are grateful to the Committee for bringing this to our attention and apologise for the initial oversight.

Food Standards Agency

27 March 2023

Appendix 4: Memorandum from the Department for Environment, Food and Rural Affairs

S.I. 2023/242

Veterinary Surgeons and Veterinary Practitioners (Registration) (Amendment) Regulations Order of Council 2023

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

Confirm whether the approximately 29% fee increase in column 2 of row 3 in Table 6 (Schedule, inserted Part 4) represents cost recovery.

2)The Department of Environment, Food and Rural Affairs can confirm that this fee increase of 29% represents cost recovery only for the Royal College of Veterinary Surgeons, to whom the fee concerned is payable for veterinary surgeons wishing to be registered to practise in the United Kingdom.

Department for Environment, Food and Rural Affairs

24 March 2023

Formal minutes

Wednesday 19 April 2023

Virtual meeting

Members present

Jessica Morden, in the Chair

Lord Beith

Lord Chartres

Baroness D’Souza

Gareth Johnson

Lord Sahota

Baroness Sater

Lord Smith of Hindhead

Maggie Throup

Report consideration

Draft Report (Thirty-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 4.2 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-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 26 April at 3.40 p.m.

Footnotes

1 See, for example, the power to request information in paragraph 5 of Schedule 9 to the Act.

2 For example, the destruction of a building a few minutes before the compilation date would need to be quickly reflected in the rateable value shown in the rating list.