Thirty-Sixth Report of Session 2022–23

Thirty-Sixth Report of Session 2022–23

Author: Joint Committee on Statutory Instruments

Date Published: 12 May 2023

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Contents

Instruments reported

At its meeting on 10 May 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. 2023/348: Reported for defective drafting

International Organisations (Tax Exemptions Designation) Order 2023

1.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.

1.2This Order, which is not subject to parliamentary procedure, exempts from various kinds of tax several international organisations of which the UK is a member. Article 2(1) provides for some of the exemptions to apply to “the international organisations specified in paragraph (3)(a)”, which refers only to the Caribbean Development Bank. Both the Explanatory Note and the plural “organisations” suggest that the exemption was intended to apply to all three organisations specified in paragraph (3). The Committee asked HM Treasury to clarify the policy intent. In a memorandum printed at Appendix 1, HM Revenue and Customs, responding on behalf of HM Treasury, confirms that article 2(1) is intended to refer to all three organisations and undertakes to correct the error by amending instrument at the earliest opportunity. The Committee accordingly reports article 2(1) for defective drafting, acknowledged by the Department.

2S.I. 2023/397: Reported for requiring elucidation

Parole Board (Amendment) Rules 2023

2.1The Committee draws the special attention of both Houses to these Rules on the ground that they require elucidation in one respect.

2.2These Rules, which are subject to the negative resolution procedure, amend the procedure that applies when referring a case to the Parole Board – in particular, the submission of reports as part of that referral.

2.3New provisions inserted by rule 2(3) allow report writers to offer their professional opinion regarding the question to be decided by the Parole Board, and allow the Secretary of State to present an “overarching view” on the prisoner’s suitability for release (new Part A1 of the Schedule to the Parole Board Rules 2019). They replace an earlier provision that the High Court judged to be unlawful, which prohibited recommendations from report writers and permitted only a “single view” from the Secretary of State.

2.4The Committee asked the Ministry of Justice to explain whether the intention, under new Part A1, is for the Parole Board to give greater weight to the Secretary of State’s “overarching” view compared to that of any other report writer. In a memorandum printed at Appendix 2, the Department explains that this a matter for the Parole Board’s discretion and that the description of the Secretary of State’s view as “overarching” is merely intended to distinguish between a view that takes into account all reports and evidence and one that relates to a particular area of expertise. The Committee accordingly reports paragraph 2 of new Part A1 (inserted by rule 2(3)) for requiring elucidation, provided by the Department’s memorandum.

3S.I. 2023/428: Reported for defective drafting

Non-Domestic Alternative Fuel Payment Application Scheme Pass-Through Requirement Regulations 2023

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

3.2The Regulations, which are subject to the made affirmative procedure, make provision about the pass-through by intermediaries of benefits received by them under a non-domestic alternative fuel payment scheme. They include at regulation 5 requirements concerned with ensuring that intermediaries notify end-users about the fact that a scheme benefit has been provided, and that the end user is entitled to receive a proportion of it. But there is no mechanism in the Regulations for enforcing these requirements. This reflects an approach adopted in previous instruments dealing with the pass-through of scheme benefits by intermediaries.1

3.3In a memorandum printed at Appendix 3, the Department for Energy Security and Net Zero explains the reasons for including the requirements in regulation 5 without any provision for enforcing them. These reasons effectively repeat those given in respect of the earlier instruments considered by the Committee. The Department does not dispute that the failure to include any mechanism for enforcing the requirements means that the persons on whom they are imposed can disregard them with impunity so that they do not operate in practice as requirements. The Department relies instead on the fact that many intermediaries would be likely in practice to comply with the requirements. However, the fact that many will in practice comply does not achieve the policy objective suggested by the regulation of requiring all intermediaries to do so. The Committee accordingly reports regulation 5 for defective drafting.

Instruments not reported

At its meeting on 10 May 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. 2023/440

Russia (Sanctions) (EU Exit) (Amendment) Regulations 2023

S.I. 2023/453

Energy Bills Discount Scheme Regulations 2023

S.I. 2023/454

Energy Bills Discount Scheme (Northern Ireland) Regulations 2023

S.I. 2023/455

Energy Bills Discount Scheme Pass-through Requirement (Heat Suppliers) Regulations 2023

S.I. 2023/463

Energy Bills Discount Scheme Pass-through Requirement Regulations 2023

S.I. 2023/464

Energy Bills Discount Scheme (Non-Standard Cases) Regulations 2023

Draft instruments requiring affirmative approval

S.I. Number

S.I. Title

Draft

Register of Overseas Entities (Penalties and Northern Ireland Dispositions) Regulations 2023

Draft

Road Vehicles (Authorised Weight) (Amendment) Regulations 2023

Draft

Medical Devices (Amendment) (Great Britain) Regulation 2023

Draft

Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023

Instruments subject to annulment

S.I. Number

S.I. Title

S.I. 2023/430

Unpaid Work Requirements (Prescribed Persons for Consultation) Regulations 2023

S.I. 2023/431

Single Trade Window (Preparation) Regulations 2023

S.I. 2023/437

Human Medicines (Amendment) Regulations 2023

S.I. 2023/441

Immigration (Citizens’ Rights Appeals) (EU Exit) (Amendment) Regulations 2023

S.I. 2023/446

Hartlepool Development Corporation (Functions) Order 2023

S.I. 2023/472

Pension Fund Clearing Obligation Exemption and Intragroup Transaction Transitional Clearing and Risk-Management Obligation Exemptions (Extension and Amendment) Regulations 2023

S.I. 2023/477

PEACE PLUS Programme (Northern Ireland) Regulations 2023

Instruments subject to annulment (Northern Ireland)

S.I. Number

S.I. Title

S.R. 2023/68

Crown Court (Amendment) Rules (Northern Ireland) 2023

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. Number

S.I. Title

S.I. 2023/480

Mid Yorkshire Hospitals National Health Service Trust (Establishment) (Amendment) Order 2023

Appendix 1: Memorandum from His Majesty’s Revenue and Customs

S.I. 2023/348

International Organisations (Tax Exemptions Designation) Order 2023

1. The Committee has asked HM Treasury for a memorandum on the following point(s):

Having regard to the first paragraph of the Explanatory Note, explain whether the designation made by article 2(1) is intended to apply to all three international organisations specified in paragraph (3), or only to the organisation specified in paragraph (3)(a).

2. This memorandum has been prepared by His Majesty’s Revenue and Customs on behalf of HM Treasury.

3. The designation made by article 2(1) is intended to apply to all three international organisations specified in paragraph (3). The cross-reference in article 2(1) is incorrect; it should be to paragraph (3) not paragraph (3)(a).

4. We thank the Committee for bringing this error to our attention. We will correct it by way of an amending instrument at the earliest opportunity.

His Majesty’s Revenue and Customs

28 April 2023

Appendix 2: Memorandum from the Ministry of Justice

S.I. 2023/397

Parole Board (Amendment) Rules 2023

1. The Committee has asked the Ministry of Justice for a memorandum on the following point(s):

In relation to paragraph 2 of new Part A1 to the Parole Board Rules 2019 (inserted by rule 2(3)), explain—

(1) whether it is intended for the Parole Board to give greater weight to the Secretary of State’s “overarching” view compared to the view of any other report writer; and

(2) if that is the intention, how it is achieved.

2. The Department thanks the Committee for their interest in this instrument and for giving the Department a chance to clarify. The Department’s response is as follows:

3. As an independent body exercising judicial functions in relation to Article 5.4 of the ECHR, the weight to be given to the Secretary of State’s overarching view is a matter for the Parole Board.

4. The intention of the drafting is to draw a distinction between the overarching view of the Secretary of State which takes account of all the reports and evidence (including any opinions offered by report writers in their area of professional expertise) and an opinion of a report writer which may be given in relation to their particular area of expertise.

Ministry of Justice

2 May 2023

Appendix 3: Memorandum from the Department for Energy Security and Net Zero

S.I. 2023/428

Non-Domestic Alternative Fuel Payment Application Scheme Pass-through Requirement Regulations 2023

1. The Committee has asked the Department for Energy Security and Net Zero for a memorandum on the following point(s):

Explain whether there are any reasons, in addition to those set out in paragraph 3.1 of the Explanatory Memorandum, to justify the absence of any provision for enforcing the duties imposed by regulation 5.

2. The Department reiterates the justification provided in paragraph 3.1 of the Explanatory Memorandum. The Department has duly considered the Committee’s view in its previous reports but has decided not to modify its approach at this stage. Section 19(10)(b) of the Energy Prices Act 2022 provides that pass-through regulations may require an intermediary who is in breach of requirements to provide information to pay a specified amount on application by the end user to a specified person. The Department decided that the incentive for end users to make such an application for payment would have been insufficient given the time and administrative burden involved in doing so. However, it considered that there was merit in including notification requirements in the instrument. This is on the basis that many intermediaries would be likely to comply with the requirements notwithstanding the lack of an enforcement mechanism. This would be aided by the associated guidance being able to explain the requirements and that they are a legal obligation. Furthermore, it was considered important to ensure consistency across the pass-through regulations relating to the energy support schemes.

Department for Energy Security and Net Zero

28 April 2023

Formal Minutes

Wednesday 10 May 2023

Virtual meeting

Members present

Jessica Morden, in the Chair

Lord Chartres

Baroness D’Souza

Peter Grant

Gareth Johnson

Damien Moore

Lord Sahota

Baroness Sater

Lord Smith of Hindhead

Maggie Throup

Liz Twist

Report consideration

Draft Report (Thirty-Sixth 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 3.3 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 3.

Resolved, That the Report be the Thirty-Sixth 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 17 May at 3.40 p.m.


Footnotes

1 See S.I. 2023/10, 2023/178 and 2023/188 considered in the Committee’s 26th and 28th Reports of this Session.