Statutory Instruments (Joint Committee)
Date Published: 20 May 2022
At its meeting on 18 May 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 them are given below. The relevant departmental memoranda are published as appendices to this report.
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
1.2These Regulations, which are subject to the negative resolution procedure, amend several statutory instruments relating to the taxation, use and control of rebated biodiesel and rebated biofuels. Regulation 6(9)(a)(ii) provides that in regulation 12(1) of S.I. 2005/3472: “in sub-paragraphs (b) and (c), after ‘that’, in both places it occurs, insert ‘biodiesel or’”. The word “that” occurs four times in sub-paragraphs (b) and (c). The Committee therefore asked Her Majesty’s Revenue and Customs to explain whether the insertion is intended to be made after “that” in “that oil” or “that bioblend” or both. In a memorandum printed at Appendix 1, the Department explains that the intention is for it to be inserted only after “that” in “that bioblend” and acknowledges that this is not the clear effect of the drafting. The Committee accordingly reports regulation 6(9)(a)(ii) for defective drafting, acknowledged by the Department.
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
2.2These Regulations, which are subject to the negative resolution procedure, amend the amount local authorities must pay to the Secretary of State in respect of children who are remanded to youth detention accommodation. The signature block indicates that the instrument is signed by Tom Pursglove as Minister of State in the Ministry of Justice. As Mr Pursglove holds the position of Parliamentary Under-Secretary, the Committee asked the Ministry of Justice to confirm whether the designation Minister of State correctly reflects the Carltona arrangements within the Ministry or whether the Carltona arrangements extend to permitting a Parliamentary Under-Secretary to sign. In a memorandum printed at Appendix 2, the Department explains that the instrument was in fact made by Victoria Atkins, Minister of State for Justice, and that this correctly reflected the Carltona arrangements within the Ministry of Justice. Mr Pursglove was “incorrectly recorded” as the signing minister. The Committee accordingly reports this instrument for defective drafting, acknowledged by the Department.
2.3(The Department adds that it has arranged to have the signature corrected via a correction slip. As published, the instrument is purported to be made by a person who did not in fact sign it, nor had the Carltona authority to sign it. This error goes to the heart of the power to make the instrument, and the Committee is clear that it cannot properly be corrected by correction slip, a mechanism that exists to remedy small-scale typographical and obvious errors.)
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, provide for S.I. 2001/1004 to have effect with several modifications in relation to contributions paid in respect of the 2022–23 tax year. The preamble cites as enabling powers subsections (1) and (5A) of section 19 of the Social Security Contributions and Benefits Act 1992. In section 19, subsections (1) to (5) confer regulation-making powers that, in accordance with subsection (5A), must be exercised by the Treasury; subsection (6) confers regulation-making powers on the Secretary of State. The type of parliamentary scrutiny that applies to such regulations is set out in section 176: instruments containing regulations “made by virtue of” the provisions listed in subsection (1)(a) are subject to the draft affirmative procedure; that list includes “section 19(4) to (6)”, a sequence that encompasses section 19(5A). The Committee asked Her Majesty’s Treasury why, that being the case, this instrument was not subject to the draft affirmative procedure. In a memorandum printed at Appendix 3, Her Majesty’s Revenue and Customs (replying on behalf of HM Treasury) asserts that section 19(5A), which was inserted by a later Act, merely transfers regulation-making power from the Secretary of State to the Treasury, “does not itself provide a power to make regulations” and was not intended to change the scrutiny procedure that applies to regulations made under section 19(1). The Committee also inclines to the view that Parliament did not intend an instrument to be subject to affirmative resolution merely because it requires to be made by the Treasury as a result of section 19(5A)–not least because the amendments made at the same time to the equivalent Northern Ireland Act did not have that effect. That is, however, the effect of section 176(1)(a) read with section 19 as amended. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.
4.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in one respect and fail to comply with proper legislative practice in one respect.
4.2These Regulations, which are subject to the negative resolution procedure, amend several statutory instruments relating to pension schemes that provide collective money purchase benefits.
4.3Regulation 11 provides that there is no requirement to consult in respect of, and regulation 12 provides that subsisting rights provisions do not apply to, collective money purchase benefit adjustments made in accordance with the most recent actuarial valuation or any multi-annual reduction in effect. The Committee asked the Department for Work and Pensions to explain why paragraph (2) of each of those regulations inserts a definition of “multi-annual reduction” but not of “actuarial variation”. In a memorandum printed at Appendix 4, the Department accepts that a definition of “actuarial variation” should have been included and undertakes to correct the relevant provisions at the earliest opportunity. The Committee accordingly reports regulations 11(2) and 12(2) for defective drafting, acknowledged by the Department.
4.4The preamble cites section 113(6) of the Pension Schemes Act 1993 as one of the enabling powers relied on to make this instrument. Section 113(9) requires that before making regulations by virtue of subsection (6), the Secretary of State must consult with the Financial Conduct Authority and the Treasury. No such consultation is recorded in the preamble. The Committee asked the Department to explain. In its memorandum, the Department confirms that the consultation was carried out as required by the 1993 Act. The Committee accordingly reports the preamble for failure to comply with proper legislative practice, acknowledged by the Department.
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
5.2These Regulations, which are subject to the negative resolution procedure, amend Commission Regulation (EC) No 889/2008 by changing the end dates for two exceptions from the rules that apply to organic food production. The introduction of non-organic young chickens into organic flocks for egg production had been permitted under Article 42 until 31 December 2020; by virtue of regulation 2(2), it is now permitted until 31 December 2022. The use of non-organic gellan gum as a food additive in the processing of organic food had been permitted until 31 December 2021; by virtue of regulation 2(3), it is now permitted until 31 December 2022 (from 1 January 2023 only organically produced gellan gum may be used).
5.3The principal enabling power cited in the preamble is Article 22(3) of Council Regulation (EC) No 834/2007. This confers a power to lay down conditions for the application of exceptions from the production rules in Chapters 1 to 4 of that Regulation. The power to provide for the granting of such exceptions is conferred by Article 22(1), which is not cited in relation to this instrument. The Committee asked the Department for Environment, Food and Rural Affairs to explain why.
5.4In a memorandum printed at Appendix 5, the Department asserts that it is necessary to cite Article 22(1) to create a new derogation, but not where conditions of an existing derogation are being amended. The Committee does not doubt that, but in neither case were these derogations existing at the time when this instrument came into effect. Reviving a derogation is not amending the conditions of an existing derogation. Had this instrument been made before the lapsing of the derogations, Article 22(3) would have been sufficient vires; in the event, however, Article 22(1) should have been cited in the preamble. The Committee accordingly reports the preamble to these Regulations for defective drafting.
At its meeting on 18 May 2022 the Committee considered the instruments set out in the Annex to this Report, none of which was required to be reported to both Houses.
S.I. Numbers |
S.I. Title |
S.I. 2022/477 |
Russia (Sanctions) (EU Exit) (Amendment) (No. 9) Regulations 2022 |
S.I. Numbers |
S.I. Title |
Draft |
Pharmacy (Preparation and Dispensing Errors—Hospital and Other Pharmacy Services) Order 2022 |
Draft |
Pharmacy (Responsible Pharmacists, Superintendent Pharmacists etc.) Order 2022 |
S.I. Numbers |
S.I. Title |
S.I. 2022/349 |
Higher Education Short Course Loans Regulations 2022 |
S.I. 2022/384 |
Social Security Contributions (Statutory Parental Bereavement Pay) (Amendment of Extent) (Northern Ireland) Regulations 2022 |
S.I. 2022/404 |
National Health Service (General Medical Services Contracts and Personal Medical Services Agreements) (Amendment) Regulations 2022 |
S.I. 2022/406 |
European Market Infrastructure Regulation (United States of America Regulated Market Equivalence) Regulations 2022 |
S.I. 2022/410 |
Trade in Dual-Use Items (Council Regulation (EC) No 428/2009) (Amendment) Regulations 2022 |
S.I. 2022/448 |
Universal Credit (Local Welfare Provision Disregard) (Amendment) Regulations 2022 |
S.I. 2022/449 |
Social Security and Council Tax Reduction Schemes (Amendment) Regulations 2022 |
S.I. 2022/491 |
The Export Control (Amendment) Order 2022 |
S.I. Numbers |
S.I. Title |
Draft |
Tameside (Electoral Changes) Order 2022 |
Draft |
Fylde (Electoral Changes) Order 2022 |
Draft |
Stoke-on-Trent (Electoral Changes) Order 2022 |
S.I. Numbers |
S.I. Title |
S.I. 2022/192 |
Air Navigation (Restriction of Flying) (Russian Aircraft) (Amendment) Regulations 2022 |
S.I. 2022/373 |
Northern Ireland Assembly Elections (Returning Officer’s Charges) Order 2022 |
S.I. 2022/471 |
Armed Forces Act 2021 (Commencement No. 1) Regulations 2022 |
S.I. 2022/518 |
Environment Act 2021 (Commencement No. 3) Regulations 2022 |
S.I. 2022/519 |
Economic Crime (Transparency and Enforcement) Act 2022 (Commencement No. 1) Regulations 2022 |
1. The Committee has asked HM Revenue and Customs for a memorandum on the following point:
In relation to regulation 6(9)(a)(ii), explain whether the intention is that “biodiesel or” is to be inserted after “that” in “that oil” or “that bioblend” or both, and how effect is given to that intention.
2. The intention is that “biodiesel or” should be inserted only after “that” in “that bioblend” in regulation 12(1)(b) and (c) of the Hydrocarbon Oil (Registered Remote Markers) Regulations 2005 (S.I. 2005/3472), but we recognise that this is not the clear effect of the drafting. The apparent effect is to insert “biodiesel or” twice in each of regulation 12(1)(b) and (c) and we apologise for this error.
3. The intended effect of the amendments to regulation 12 is to extend the relief available on marked oil and marked bioblend to marked biodiesel where any conditions or restrictions are complied with. Despite the unnecessary duplication of “biodiesel or”, we are of the view that the effect of the legislation as amended is sufficiently clear.
Her Majesty’s Revenue and Customs
3 May 2022
1. The Committee has asked the Ministry of Justice 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 Pursglove is described as a Minister of State in error).
2. The Ministry of Justice is grateful to the Committee for raising this point, which has highlighted an administrative error during the registration process with the National Archives, which is deeply regretted.
3. The Department confirms that Victoria Atkins, Minister of State for Justice made this instrument on 7 March 2022. In the circumstances, this correctly reflected the Carltona arrangements within the Ministry of Justice. However, Mr Pursglove was incorrectly recorded as the signing minister during the registration process. The Department has arranged with the SI Registrar to have the name corrected via a correction slip as soon as possible.
Ministry of Justice
3 May 2022
1. This memorandum is prepared by HM Revenue and Customs on behalf of HM Treasury. The Committee has asked HM Treasury for a memorandum on the following point:
Given that the preamble cites section 19(5A) of the Social Security Contributions and Benefits Act 1992, which falls within the list in section 176(1)(a) of that Act, explain why this instrument was not subjected to the draft affirmative procedure.
2. The enabling power for this instrument is section 19(1) of the Social Security Contributions and Benefits Act 1992 (SSCBA). By virtue of section 176(3) of SSCBA, regulations under section 19(1) are subject to the negative procedure.
3. Section 19(5A) of SSCBA is cited as it is the part of the enabling provisions which provides who is empowered to make the instrument (Statutory Instrument Practice paragraph 3.11.14). Section 19(5A) requires regulations made under the powers in section 19(1) to (5) to be made by the Treasury but does not itself provide a power to make regulations.
4. Section 19(5A) of SSCBA was inserted by paragraph 19 of Schedule 3 to the Social Security Contributions (Transfer of Functions, etc.) Act 1999. As explained in the Explanatory Notes to that provision, the amendment transfers the power to make regulations concerning social security contributions from the Secretary of State to the Treasury, whilst the power to make regulations concerning earnings factors, which relate to benefits, is retained by the Secretary of State.
5. While section 19(5A) is listed in section 176(1)(a), we have consistently taken the view that Parliament’s intention when introducing section 19(5A) was only to transfer the power to make the regulations. Had the intention been to also change the procedure associated with all regulations made under section 19(1), (2) and (3) from negative to draft affirmative, this could have been clearly and simply achieved by adding section 19(1), (2) and (3) to the list in section 176(1)(a).
Her Majesty’s Revenue and Customs
3 May 2022
1. The Committee has asked the Department for Work and Pensions for a memorandum on the following points:
(1) Explain why regulations 11(2) and 12(2) insert a definition of “multi-annual reduction” but not of “actuarial variation” into the instruments they amend, despite both terms being used in other inserted provisions (and in contrast to regulation 13, which uses and inserts definitions of both terms).
(2) In relation to regulation 13(9) and (17)(d) (inserted regulations 22A and 22B and Part 4 of Schedule 7), explain why contact details to which enquiries should be sent are required to be included only by regulation 22A, and not by regulation 22B.
(3) Explain whether the Secretary of State consulted with the Financial Conduct Authority and the Treasury, as required by section 113(9) of the Pension Schemes Act 1993 in relation to regulations made by virtue of section 113(6); and, if consultation was carried out, explain why it is not cited in the preamble as satisfaction of a pre-condition.
2. The Department’s response to the Committee’s points is set out below.
3. On point (1), the Department agrees that both regulations 11(2) and 12(2) should have inserted a definition of “actuarial valuation”, consistent with the approach in regulation 13. The Department thanks the Committee for highlighting this and intends to bring forward amendments to insert the definitions at the first appropriate legislative opportunity.
4. Concerning point (2), the policy intention, as reflected in the amendments, is not to require contact details to be provided in relation to regulation 22B. In practice, a person who receives information under regulation 22B will also have recently received information, including contact details for benefit adjustment enquiries, under regulation 22A. Contact details for benefit adjustment enquiries will also be published (per regulation 13(19)–inserted Schedule 11, paragraph 13). The Department will of course keep the efficacy of these disclosure and publication requirements under review, as it monitors the operation of early collective money purchase schemes.
5. On point (3), the Department confirms that it did consult with both the Financial Conduct Authority and HM Treasury as required by section 119(3) of the Pension Schemes Act 1993. The Department apologises that this fact is not cited in the preamble, contrary to paragraph 3.11.28 of Statutory Instrument Practice, and undertakes to look into whether this error can be corrected.
Department for Work and Pensions
4 May 2022
6. The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following point:
Explain why Article 22(1) of EUR 2007/834 was not cited as an enabling power.
7. Article 22(1) of EUR 2007/834 provides powers to create an exception (derogation) from organic production rules under conditions laid out in Article 22(2). The Department considers that it would be necessary to cite this provision where regulations are used to create a new derogation, but not essential to do so where conditions applicable to an existing derogation are being created or amended, given the existence of the separate power for that purpose under Article 22(3).
8. Article 22(3) provides powers to set conditions for derogations created under Article 22(1). The amendments made by this instrument relate to existing derogations set out in EUR 2008/889.
9. The Department accepts that it would be possible to cite Article 22(1) when making amendments to existing derogations, but considered it more appropriate to cite Article 22(3) here as a more specific power relating to the point. The Department would accept that the periods in respect of which a derogation is to apply might not ordinarily be characterised as a “condition” governing the application of a derogation, but in the present case the terminology is already used in this way in EUR 2008/889 as it was incorporated in domestic law under the European Union (Withdrawal) Act 2018–for example, see the table in Section A of Annex 8 where the fifth column is headed “Specific conditions and restrictions in addition to Regulation (EC) No 1333/2008”, and where entries for E322, E410 etc include time constraints on the application of the derogation in that column.
Department for Environment, Food and Rural Affairs
3 May 2022
Virtual meeting
Jessica Morden, in the Chair
Lord Beith
Lord Chartres
Dr James Davies
Baroness D’Souza
Baroness Gale
Lord Haskel
Baroness Newlove
Lord Smith of Hindhead
Draft 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 5.4 read and agreed to.
Annex agreed to.
Papers were appended to the Report as Appendices 1 to 5.
Resolved, That the Report be the 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 25 May at 3.40 p.m.