Sixth Report of Session 2022–23

This is a House of Lords and House of Commons Committee Joint Report.

Five Statutory Instruments Reported

Author: Joint Committee on Statutory Instruments

Date Published: 24 June 2022

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Contents

Instruments reported

At its meeting on 22 June 2022 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 five 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. 2022/532: Reported for failure to comply with proper legislative practice

National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) Regulations 2022

1.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they fail to comply with proper legislative practice in two respects.

1.2These Regulations, which are subject to the negative resolution procedure, increase the rates of NHS-funded nursing care payable by NHS England or clinical commissioning groups (CCGs).

1.3The requirement to pay a higher “flat rate payment” and “high band payment” comes into force on 1 June 2022. The Explanatory Memorandum asserts that CCGs will be “instructed to” make payments in excess of what is required. The Committee asked the Department of Health and Social Care to identify the authority for that instruction. In a memorandum printed at Appendix 1, the Department concedes that the Explanatory Memorandum should not have asserted a power to “instruct” CCGs to make additional payments, and explains that it intends to issue guidance to that effect, in reliance on the general power under section 2 of the National Health Service Act 2006. The Committee takes no view as to whether section 2 permits higher payments to be made. As to whether section 2 can be used to give guidance, the Committee believes that it is neither necessary nor sufficient for that purpose: informal and non-binding guidance can be given without statutory authority; and binding guidance would require express permission in the enabling power. On the basis that the Explanatory Memorandum asserts an intention to do something that the Department admits could not be done and explains it did not intend to do, the Committee reports the Explanatory Memorandum for failure to comply with proper legislative practice.

1.4Where regulations are made to impose requirements on NHS England or CCGs and the regulations come into force on a day other than 1 April, the enabling Act requires the Secretary of State to publish and lay before Parliament a statement explaining the reasons for the choice of commencement date (sections 6E(9) of the 2006 Act). The Committee asked the Department to explain when and where the statement was published. In its memorandum, the Department explains that the statement was laid before Parliament on 11 May 2022 but was not published. The Committee accordingly reports this instrument for failure to comply with proper legislative practice, acknowledged by the Department.

2S.I. 2022/534: Reported for defective drafting and for requiring elucidation

Education (Student Fees, Awards and Support) (Amendment) (No. 2) Regulations 2022

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

2.2These Regulations, which are subject to the negative resolution procedure, make amendments to a number of regulations relating to finance for students in further and higher education in order to include two new eligible categories of persons.

2.3The Committee asked the Department for Education to explain why regulation 24(1) inserts wording into regulation 2(2) of the Higher Education Short Course Loans Regulations (S.I. 2022/349). In a memorandum printed at Appendix 2, the Department confirms that the inserted wording was unnecessary and that it will revoke it at the earliest opportunity. The Committee accordingly reports regulation 24(1) for defective drafting, acknowledged by the Department.

2.4The Committee also asked the Department to explain the intended difference in meaning between “a course which begins on or after 1st August 2022” (regulation 1(3)) and “an academic year which begins on or after 1st August 2022” (regulation 1(4)). The Department provides an explanation of the policy intent in its memorandum and the Committee accordingly reports regulation 1(3) and (4) for requiring elucidation, provided by the Department’s memorandum.

3S.I. 2022/558: Reported for failure to comply with proper legislative practice

Electricity (Individual Exemption from the Requirement for a Transmission Licence) (East Anglia One) (England) Order 2022

3.1The Committee draws the special attention of both Houses to this Order on the ground that the Explanatory Memorandum fails to comply with proper legislative practice in one respect.

3.2This Order, which is subject to the negative resolution procedure, grants a time limited exemption from the requirement to hold an electricity transmission licence to East Anglia One Limited in respect of East Anglia One offshore wind farm. East Anglia One Limited had previously been granted a time limited exemption which expired on 13 December 2021 (S.I. 2020/815). As the Explanatory Memorandum refers in three places to the company “continuing” to generate and transmit energy (paragraphs 7.10. 7.11 and 12.5) the Committee asked the Department of Business, Energy & Industrial Strategy to explain whether transmission took place after 13 December 2021 and, if so, to identify the authority for the transmission. In a memorandum printed at Appendix 3, the Department explains that transmission for which there was no lawful authority occurred in the period beginning with 14 December 2021 and ending on 9 June 2022. That being so, the Department concedes that the Explanatory Memorandum is potentially misleading. In particular, at paragraph 7.11 the memorandum talks about the instrument being required to validate the future lawfulness of continuing activity, which conveys an impression significantly different from the instrument being required to bring unlawful activity to an end. Whatever the extenuating circumstances may have been for the lapse of lawful authority for transmission, it is important that Explanatory Memorandums should not appear to be obscuring or understating the true import of an instrument where it is addressing previously unlawful activity. The Committee accordingly reports the Explanatory Memorandum for failure to comply with proper legislative practice.

4S.I. 2022/568: Reported for requiring elucidation and for defective drafting

Prohibition of Cross-Examination in Person (Civil and Family Proceedings) Regulations 2022

4.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in one respect and are defectively drafted in one respect.

4.2These Regulations, which are subject to the negative resolution procedure, specify offences, protective injunctions and evidence for the purposes of the prohibition on cross-examination set out in sections 65 and 66 of the Domestic Abuse Act 2021.

4.3Regulation 1(2) provides that this instrument comes into force on the day on which and immediately after those provisions of the 2021 Act come into force. The Committee asked the Ministry of Justice to explain what steps will be taken to ensure that this instrument complies with the 21-day rule. In a memorandum printed at Appendix 4, the Department explains that it was known, at the time the instrument was made, that sections 65 and 66 of the 2021 Act would not be brought into force before the week commencing 13 June 2022, so there would be at least 21 days between the laying and coming into force of this instrument (as has indeed proved to be the case). The Department acknowledges that it would have been helpful to indicate in the Explanatory Memorandum a date before which the relevant sections would not be brought into force. The Committee agrees, and accordingly reports regulation 1(2) for requiring elucidation, provided by the Department’s memorandum.

4.4In Schedule 1, Table 1 lists offences under the law of England and Wales which are specified offences for the purposes of the prohibition on cross-examination. Regulation 2 makes clear that laws which are no longer in force can be specified offences. The Committee noticed an apparent anomaly in Table 1 in relation to sections 48, 49 and 50 of the Sexual Offences Act 2003. The offence described in relation to section 48 is the one that was in force until 2 May 2015 (“causing or inciting child prostitution or pornography” cf. “causing or inciting sexual exploitation of a child”). By contrast, the offences described in relation sections 49 and 50 are those which are currently in force (“controlling a child in relation to sexual exploitation” and “arranging or facilitating sexual exploitation of a child” cf. “controlling a child prostitute or a child involved in pornography” and “arranging or facilitating child prostitution or pornography”). The Committee asked the Department to explain the discrepancy.

4.5In its memorandum, the Department notes that the changes made to those offences by the Serious Crime Act 2015 were not intended to alter the scope of the offence, but merely to remove anachronistic references. It acknowledges, however, that identifying the offence under section 48 by the original wording is an error, which it undertakes to correct “to make it clear that an offence committed under any of sections 48 to 50 of the Sexual Offences Act 2003, however described at any point since those sections first came into force, is an offence specified for the purposes of the relevant provisions of the Matrimonial and Family Proceedings Act 1984 and Courts Act 2003”. The Committee’s view is that this would best be done by amending this instrument, as the Department has suggested (a correction slip would not be appropriate). The Committee accordingly reports Table 1 of Schedule 1 for defective drafting, acknowledged by the Department.

5S.I. 2022/581: Reported for containing a defect

Immigration and Nationality (Fees) (Amendment) Regulations 2022

5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they contain a defect.

5.2These Regulations, which are subject to the negative resolution procedure, make provision relating to fees charged for applications under the Ukraine Scheme and the new High Potential Individual route and to register children as British citizens. The Committee noticed that the instrument is signed by Kevin Foster, who is identified in the signature block as a Minister of State but who was in fact at the relevant time a Parliamentary Under Secretary. The Committee asked the Home Office to explain the discrepancy and to clarify the Carltona arrangements within the Ministry. In a memorandum printed at Appendix 5, the Department confirms that its Carltona arrangements do permit a Parliamentary Under Secretary to sign an instrument in these circumstances. It further confirms that this instrument was signed by Mr Foster and that his title is stated correctly in the signature block of the instrument as signed. It explains that the signature block in the published version is incorrect and asserts that it is arranging for a corrective reprint to be published and for the free-issue procedure to be applied. Ensuring that the Minister or official who actually signs an instrument has the authority to do so is a core rule of law matter, and the Committee is concerned that administrative errors are being permitted to occur in relation to recording who has made an instrument (see also the Second Report of the present Session in relation to S.I. 2022/274, a Ministry of Justice instrument). Whether or not the original signed copy of this instrument was correct (which the Committee is not in a position to judge) the promulgated version contains an error and on that basis the Committee reports this instrument for containing a defect, acknowledged by the Department. (The Committee also expects Departments to overhaul their procedures to ensure that signed copies and published copies are identical in all respects.)

Instruments not reported

At its meeting on 22 June 2022 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

S.I. Number

S.I. Title

Draft

Common Agricultural Policy (Cross-Compliance Exemptions and Transitional Regulation) (Amendment) (EU Exit) Regulations 2022

Draft

Police Act 1996 (Amendment and Consequential Amendments) Regulations 2022

Draft

United Kingdom Internal Market Act 2020 (Exclusions from Market Access Principles: Single-Use Plastics) Regulations 2022

Draft

Financial Services Act 2021 (Prudential Regulation of Credit Institutions and Investment Firms) (Consequential Amendments and Miscellaneous Provisions) Regulations 2022

Instruments subject to annulment

S.I. Numbers

S.I. Title

S.I. 2022/599

Education (Information About Individual Pupils) (England) (Amendment) Regulations 2022

S.I. 2022/601

Allocation of Housing and Homelessness (Eligibility) (England) and Persons Subject to Immigration Control (Housing Authority Accommodation and Homelessness) (Amendment) (No. 2) Regulations 2022

S.I. 2022/607

M56 Motorway (Junctions 6 to 7) (Variable Speed Limits) Regulations 2022

S.I. 2022/621

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

S.I. 2022/622

Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (Amendment) Regulations 2022

S.I. 2022/626

Allocation of Housing and Homelessness (Eligibility) (England) and Persons Subject to Immigration Control (Housing Authority Accommodation and Homelessness) (Amendment) (No. 3) Regulations 2022

S.I. 2022/631

Public Regulated Service (Galileo) (Revocation) Regulations 2022

Draft instruments subject to annulment

S.I. Numbers

S.I. Title

Draft

Luton (Electoral Changes) Order 2022

Draft

Suffolk (Electoral Changes) Order 2022

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. Numbers

S.I. Title

S.I. 2022/590

Nationality and Borders Act 2022 (Commencement No. 1, Transitional and Saving Provisions) Regulations 2022

Appendix 1: Memorandum from the Department of Health and Social Care

S.I. 2022/532

National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) Regulations 2022

1)In its letter to the Department of 8 June 2022, the Committee requested a memorandum on the following points:

(1) Explain a) where the statement required by section 6E(9) of the National Health Service Act 2006 is published and b) when the statement was published and laid before Parliament.

(2) In connection with paragraphs 6.4 and 7.5 of the Explanatory Memorandum, identify the lawful authority for instructing CCGs to make higher payments before the coming into force of these Regulations.

2)The Department’s response to the Committee’s points is as follows.

3)In relation to point (1), the Department confirms that the statement required by section 6E(9) was laid before Parliament on 11 May 2022. However, the Department overlooked to publish the statement and apologises to the Committee for its oversight. The statement laid before Parliament was published on Legislation.gov.uk on 10 June 20221 and the Department will be arranging to publish the statement on its own website forthwith. Relevantly, the statement provides as follows: “The decision for the 2022/23 financial year has been delayed due to the need to ensure the rate reflects the most recent economic predictions for the 2022/23 financial year.”.

4)This is reflected at paragraph 6.3 of the Explanatory Memorandum (which is also, of course, published on Legislation.gov.uk, alongside the instrument) and which states: “This instrument will come into force later than 1 April due to the need to ensure the rate reflects the most recent economic predictions for the 2022–23 financial year.”.

5)In relation to point (2), the Department considers that section 2 of the National Health Service Act 2006 (“section 2”) provides authority for clinical commissioning groups (“CCGs”) to make payments higher than the statutory amount2 to care homes providing nursing care (“care homes”) before the coming into force of the instrument as mentioned at paragraph 6.4 of the Explanatory Memorandum.

6)Section 2 provides that “the Secretary of State, the Board, or a clinical commissioning group may do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any function conferred on that person by this Act.”.

7)The rates set out in the instrument (“the higher payment rates”) have been calculated on the basis of a projected increase in the cost of nursing care for the 2022–23 financial year. The instrument was laid later than 1 April 2022 because there was a need to ensure that the rate reflected the most recent economic predictions for the 2022–23 financial year. In order to prevent care homes from being disadvantaged by the laying of the instrument later than 1 April 2022, the Department intends to guide CCGs, in reliance on section 2, to pay the difference between the applicable statutory rates and the higher payment rates for the period between 1 April 2022 and 1 June 2022 (the date on which the instrument entered into force).

8)In connection with paragraph 7.5 of the Explanatory Memorandum, the Department similarly considers that section 2 provides authority for CCGs to make retrospective payments to care homes for the 2021–22 financial year. The Department carried out a cost collection exercise, which assessed the impact of the COVID-19 pandemic on NHS-funded Nursing Care (“FNC”) during 2021–22. This exercise established that additional time and work were provided by nurses in care homes during the pandemic. As such, the intention is to seek to ensure the shortfall is covered, by guiding CCGs, in reliance on section 2, to make retrospective payments to care homes for the 2021–22 financial year.

9)Both the making of payments at the higher payment rates during 1 April 2022 to 1 June 2022, and the making of retrospective payments, are considered to be conducive to the discharge of the Secretary of State’s functions in relation to the National Health Service generally, and to CCGs’ functions in relation to individuals eligible for FNC, by ensuring that care homes are paid at the appropriate levels in respect of FNC provided to those individuals.

10)The Department accepts that paragraphs 6.4 and 7.5 of the Explanatory Memorandum would have been clearer if they had referred to guidance rather than instructions and apologises to the Committee for its oversight.Department of Health and Social Care

14 June 2022

Appendix 2: Memorandum from the Department for Education

S.I. 2022/534

Education (Student Fees, Awards and Support) (Amendment) (No. 2) Regulations 2022

1)The Committee has asked the Department for Education for a memorandum on the following points:

(1) Explain why regulation 24(1) inserts the wording into regulation 2(2) of S.I. 2022/349 (considering that the terms are to have the meanings given in paragraph 1(1) of Schedule 1 and the term is not defined in paragraph 1(1) of Schedule 1).

(2) Explain the intended difference in meaning between “a course which begins on or after 1st August 2022” (regulation 1(3)) and “an academic year which begins on or after 1st August 2022” (regulation 1(4)).

Regulation 24(1)

2)The Department for Education acknowledges that the term inserted into regulation 2(2) of S.I. 2022/349 by regulation 24(1) is not defined in paragraph 1(1) of Schedule 1. It is therefore unnecessary to add this definition to regulation 2(2) of S.I. 2022/349, because the definition is not used in the main body of those regulations, only in Schedule 1. The Department for Education thanks the JCSI for identifying this unnecessary insertion and will revoke it at the earliest opportunity.

3)The appropriate place in which to insert the definition is paragraph 2(1) of Schedule 1 to S.I. 2022/349, which is what is done by regulation 24(2) of this instrument so S.I. 2022/349 does function correctly in this regard.

Regulations 1(3) and 1(4)

4)Regulation 1(3) concerns regulations which apply in relation to the provision of support to a student in relation to a course which begins on or after 1st August 2022. Those regulations do not apply to the provision of support in relation to an academic year of a course if the course began before 1st August 2022, even if the academic year begins on or after that date.

5)By contrast, regulation 1(4) concerns regulations which apply in relation to the provision of support to a student in relation to an academic year which begins on or after 1st August 2022. Those regulations may apply to an academic year which begins later than the date on which the course in question began – so the course may have begun before 1 August 2022, but the academic year must have begun on or after 1 August 2022 (since courses can span several academic years).

6)By way of example, if a student began a course on 1st September 2021, the regulations listed in regulation 1(4) will apply in relation to the provision of support to that student in relation to academic years of that course which begin on or after 1st August 2022, whereas the regulations listed in regulation 1(3) will not.

Department for Education

14 June 2022

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

S.I. 2022/558

Electricity (Individual Exemption from the Requirement for a Transmission Licence) (East Anglia One) (England) Order 2022

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

In relation to the references in paragraphs 7.10, 7.11 and 12.5 of the Explanatory Memorandum to East Anglia One Limited “continuing” to generate and transmit energy, in light of the previous exemption having expired on 13 December 2021 explain (a) whether transmission took place after that date, and (b) if so, and on the basis of the suggestion in paragraph 7.12 of the Explanatory Memorandum that this instrument is required to validate the future lawfulness of continuing activity, identify the authority for the transmission before the commencement of this instrument.

2)The Department confirms that transmission of energy took place after 13 December 2021 and that there was no legislative authority for transmission in the period beginning with 14 December 2021 and ending immediately prior to the commencement of S.I. 2022/558.

3)The Department assumes that the Committee is concerned that the text of the accompanying explanatory memorandum does not accurately reflect the context in which the instrument was made, i.e. that the instrument brought to an end a period of non-compliance with the relevant legislative provisions rather than extending permission for ongoing lawful activity. Although it is clear from the text of S.I.2022/558 and the earlier exempting instrument that there was no exemption in place in the period beginning with 14 December 2021 and ending immediately prior to the commencement date of S.I.2022/558, having reviewed the text of the explanatory memorandum, the Department concedes that inadvertently the wrong impression may well be given by the passages referred to in the Committee’s request for a memorandum.

4)The Department regrets this and is most grateful to the Committee for having drawn this to the Department’s attention. The Department is taking steps to substitute a revised explanatory memorandum which clarifies the points referred to above.

Department for Business, Energy and Industrial Strategy

14 June 2022

Appendix 4: Memorandum from the Ministry of Justice

S.I. 2022/568

Prohibition of Cross-Examination in Person (Civil and Family Proceedings) Regulations 2022

1)The Committee has asked the Ministry of Justice for a memorandum on the following points:

(1) Given that regulation 1(2) links commencement of this instrument to that of provisions in other legislation, explain what steps will be taken to ensure that this instrument complies with the 21-day rule.

(2) In relation to Table 1 in Schedule 1, confirm whether it is intended that the list of specified offences does not include causing or inciting sexual exploitation of a child (under section 48 of the Sexual Offences Act 2003 as currently in force) or controlling a child prostitute or a child involved in pornography and arranging or facilitating child prostitution or pornography (under sections 49 and 50 of that Act as in force until 2 May 2015).

2)The Ministry is grateful for the Committee’s attention, and responds as follows.

3)In relation to the first point, the Ministry considered it desirable to have this instrument published in good time and in place in readiness for the coming into force of the two sections of the Domestic Abuse Act 2021 for the purposes of which it is made. The decision to link the commencement date for this instrument to that of the coming into force of the relevant sections was taken because it was known that some flexibility around the latter date might be required for operational reasons (as has in fact happened). It was known that the relevant sections of the Domestic Abuse Act 2021 would not be brought into force before the week commencing 13 June 2022 (and they are not yet in force); and so the Ministry was assured of a sufficient period between laying and commencement to observe the 21-day rule. The Ministry acknowledges that it would have been helpful to indicate in the Explanatory Memorandum for this instrument at least a date before which the relevant sections of the Domestic Abuse Act 2021 would not come into force, so that the 21-day rule could be seen to be observed.

4)In relation to the second point, it is the intention that the entry in Table 1 in Schedule 1 to this instrument relating to offences under sections 48, 49 and 50 of the Sexual Offences Act 2003 should include an offence under any of those sections whenever committed (that is to say, under any of those sections whether as amended by the Serious Crime Act 2015 or in their original wording). Paragraph 268 of the explanatory notes to the Serious Crime Act 2015 explains, in relation to section 68 of that Act which amends sections 48 to 50 (and section 51, which deals with definitions) of the Sexual Offences Act 2003, that the amendments made are terminological - “to remove anachronistic references to “child prostitute”, “child prostitution” and “child pornography””, and that they “replace these terms with references to the sexual exploitation of children (and so recognising children as victims), but do not alter the scope of the relevant offences” (emphasis added).

5)The Ministry’s view is that a reference to an offence under each of these sections identified by the amended wording will be captured even if committed at a time when identified by the original wording; but the Ministry notes that the offence under section 48 of the Sexual Offences Act 2003 is identified by the original wording. That is an error, for which the Ministry apologises; and the Ministry will consider how best, including amendment of this instrument, to make it clear that an offence committed under any of sections 48 to 50 of the Sexual Offences Act 2003, however described at any point since those sections first came into force, is an offence specified for the purposes of the relevant provisions of the Matrimonial and Family Proceedings Act 1984 and Courts Act 2003 as inserted by sections 65 and 66 of the Domestic Abuse Act 2021.

Ministry of Justice

14 June 2022

Appendix 5: Memorandum from the Home Office

S.I. 2022/581

Immigration and Nationality (Fees) (Amendment) Regulations 2022

1)The Committee has asked the Home Office for a memorandum on the following point:

In relation to the signature block, confirm whether the designation “Minister of State” correctly reflects the Carltona arrangements within the Ministry, in which case explain why a Parliamentary Under Secretary has signed, or whether the Carltona arrangements extend to permitting a Parliamentary Under Secretary to sign in these circumstances (in which case confirm that Mr Foster is described as a Minister of State in error).

2)The Department can confirm that arrangements within the Department permit a Parliamentary Under Secretary to sign in these circumstances. This instrument was signed by Mr Foster, and the signature block in the instrument signed by him stated his title correctly. However the signature block in the published version is, as the Committee has pointed out, wrong in this respect. The Department has not so far been able to establish how that occurred. Following consultation with the SI Registrar, arrangements are being made for a corrective reprint of the instrument to be published and for the free issue procedure to be applied.

Home Office

14 June 2022

Formal Minutes

Wednesday 22 June 2022

Virtual meeting

Members present

Jessica Morden, in the Chair

Dr James Davies

Baroness D’Souza

Baroness Gale

Lord Haskel

Paul Holmes

John Lamont

Baroness Newlove

Lord Smith of Hindhead

Richard Thomson

Report consideration

Draft Report (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 5.2 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 5.

Resolved, That the Report be the 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 29 June at 3.40 p.m.


Footnotes

1 The statement as published on Legislation.gov.uk is available at the following link: https://www.legislation.gov.uk/uksi/2022/532/pdfs/uksied_20220532_en.pdf

2 Applicable under S.I. 2021/286.