Third Report of Session 2022–23

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

Three Statutory Instruments Reported

Author: Joint Committee on Statutory Instruments

Date Published: 27 May 2022

Download and Share

Contents

Instruments reported

At its meeting on 25 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 three 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.

1S.I. 2022/311: Reported for defective drafting

Ivory Prohibition (Civil Sanctions) Regulations 2022

1.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in three related respects.

1.2 These Regulations, which are subject to the negative resolution procedure, make provision about the enforcement of the prohibition in dealing in ivory in section 1 of the Ivory Act 2018. Regulation 9 deals with the procedure for entering into an enforcement undertaking with the Secretary of State. Regulation 9(1)(b) states that where the Secretary of State has informed P in writing that an offer of an enforcement undertaking may be considered, that offer must be made “within the period of 28 days beginning with the day on which the Secretary of State sent the notice to P”. (Regulations 9(3) and 15(6) contain similar wording.) The Committee was concerned that the start date of the period may not be ascertainable and asked the Department for Environment, Food and Rural Affairs to explain how P will know the day on which the Secretary of State “sent” the notice to P (given that the method of sending the notice does not appear to be prescribed). In a memorandum printed at Appendix 1, the Department explains that the usual method of communication with P will be via email, in which case P would be able to ascertain the date by checking the date that the email containing the notice was sent to P. However, the Department acknowledges that there may be occasions when the notice would have to be sent by post and undertakes to amend the relevant provisions of these Regulations at the earliest opportunity to allow P to respond within 28 days of the date of the notice. The Committee accordingly reports regulations 9(1)(b) and (3) and 15(6) for defective drafting, acknowledged by the Department.

2S.I. 2022/312: Reported for requiring elucidation

Tribunal Procedure (Amendment) Rules 2022

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

2.2 These Regulations, which are subject to the negative resolution procedure, amend the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Rule 2(5)(c) allows any document that is to be provided to the Tribunal or another person under the Rules to be uploaded to the Tribunal’s secure portal “in a compatible file format”. The Committee asked the Ministry of Justice to explain how users will be able to identify available compatible file formats (including what arrangements will be made to publicise the options on the online portal itself), and what arrangements are expected to be made to ensure that the range of compatible file formats maximises accessibility. In a memorandum printed at Appendix 2, the Department explains that the online portal does not include a list of compatible digital file formats, but where users attempt to upload an unsupported file, they are notified that the file is not compatible. The Department also confirms that the online portal allows for more than 40 different compatible digital file formats and that it considers this to be of sufficient range to maximise accessibility for those who wish to use the portal. The Department indicates that it will be updating its guidance documents to include a list of compatible digital file formats. The Committee is grateful for this explanation (while questioning whether it was necessary to refer to compatibility of format in the legislation at all and wondering whether a more satisfactory process can be found than requiring people to have files rejected as incompatible rather than being told in advance which formats are compatible). The Committee accordingly reports these Rules for requiring elucidation, provided by the Department’s memorandum.

3S.I. 2022/316: Reported for requiring elucidation

National Health Service (Clinical Commissioning Groups) (Amendment) Regulations 2022

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

3.2 These Regulations, which are subject to the negative resolution procedure, facilitate the transition from clinical commissioning groups (CCGs) to integrated care boards so that they can continue to function effectively if relevant personnel depart from CCGs prior to the establishment of their anticipated successor bodies. Qualification and disqualification criteria for certain posts are removed, leaving the possibility that the Chief Finance Officer is eligible to be appointed as chair of the audit committee. The Committee asked the Department of Health and Social Care to explain, having regard to the undesirability (as noted in the Explanatory Memorandum) of appointing the Chief Finance Officer as chair of the audit committee for conflict of interest reasons, what arrangements would be implemented to avoid a conflict if a temporary appointment had to be made in circumstances where there was no other option available. In a memorandum printed at Appendix 3, the Department sets out requirements and guidance for managing conflicts of interest including that CCGs will remain under the overarching duty in section 14O(4) of the National Health Service Act 2006 (which requires CCGs to make arrangements for managing conflicts and potential conflicts in such a way as to ensure that they do not, and do not appear to, affect the integrity of their decision-making processes) and that CCGs must manage potential conflicts in accordance with statutory guidance issued by NHS England “Managing conflicts of interest: revised statutory guidance for CCGs 2017”. The Committee is grateful for this explanation and accordingly reports these Regulations for requiring elucidation, provided by the Department’s memorandum.

Instruments not reported

At its meeting on 25 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.

Annex

Draft instruments requiring affirmative approval

S.I. Numbers

S.I. Title

Draft

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

Draft

Construction Contracts (England) Exclusion Order 2022

Draft

Contracts for Difference (Allocation) and Electricity Market Reform (General) (Amendment) Regulations 2022

Draft

Goods Vehicles (Licensing of Operators) (Amendment) (No. 2) Regulations 2022

Draft

Motor Vehicles (International Circulation) (Amendment) Order 2022

Draft

National Health Service (Integrated Care Boards: Exceptions to Core Responsibility) Regulations 2022

Draft

Police, Crime, Sentencing and Courts Act 2022 (Consequential Provision) Regulations 2022

Draft

Smoke and Carbon Monoxide Alarm (Amendment) Regulations 2022

Draft

Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2022

Draft

Hovercraft (Application of Enactments) and Merchant Shipping (Prevention of Pollution) (Law of the Sea Convention) Amendment Order 2022

Draft

Warm Home Discount (England and Wales) Regulations 2022

Instruments subject to annulment

S.I. Numbers

S.I. Title

S.I. 2022/3641

Employment Allowance (Increase of Maximum Amount) Regulations 2022

S.I. 2022/420

Non-Commercial Movement of Pet Animals (Amendment) (England) Regulations 2022

S.I. 2022/428

Social Security Benefits (Claims and Payments) (Modification) Regulations 2022

S.I. 2022/439

Council Tax (Discount Disregards and Exempt Dwellings) (Amendment) (England) Regulations 2022

S.I. 2022/459

Criminal Justice (Sentencing) (Licence Conditions) (Amendment) Order 2022

S.I. 2022/460

Proscribed Organisations (Applications for Deproscription etc.) (Amendment) Regulations 2022

S.I. 2022/484

Phytosanitary Conditions (Amendment) (No. 2) Regulations 2022

S.I. 2022/486

Genetically Modified Food and Feed (Authorisations) (England) Regulations 2022

S.I. 2022/494

Armed Forces (Service Complaints) (Amendment) Regulations 2022

S.I. 2022/496

Armed Forces (Service Complaints Ombudsman Investigations) (Amendment) Regulations 2022

S.I. 2022/497

Aviation Security (Amendment) Regulations 2022

S.I. 2022/498

Sea Fisheries (Amendment) Regulations 2022

S.I. 2022/503

Child Support (Amendments Relating to Electronic Communications and Information) (England and Wales and Scotland) Regulations 2022

S.I. 2022/505

Special Constables (Membership of the Police Federation etc.) (England and Wales) Regulations 2022

S.I. 2022/523

Magistrates’ Courts (Amendment) Rules 2022

Instruments not subject to Parliamentary proceedings laid before Parliament

S.I. Numbers

S.I. Title

S.I. 2022/147

Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions (Amendment) Order 2022

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. Numbers

S.I. Title

S.I. 2022/415

Sentencing Act 2020 (Commencement No. 1) (England and Wales) Regulations 2022

S.I. 2022/418

Offensive Weapons Act 2019 (Commencement No. 2 and Saving Provision) Regulations 2022

S.I. 2022/435

Air Navigation (Restriction of Flying) (Russian Aircraft) (Amendment) (No. 2) Regulations 2022

S.I. 2022/470

Road Vehicles (Construction and Use) (Automated Vehicles) Order 2022

S.I. 2022/509

Financial Guidance and Claims Act 2018 (Commencement No. 9) Regulations 2022

Appendix 1: Memorandum from the Department for Environment, Food and Rural Affairs

S.I. 2022/311

Ivory Prohibition (Civil Sanctions) Regulations 2022

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

In relation to regulations 9(1)(b) and (3) and 15(6), explain how P will ascertain the day on which the Secretary of State “sent” the notice to P (given that the method of sending the notice does not appear to be prescribed).

2. The usual method of communication with P will be via email, in which case P would be able to ascertain the date by checking the date that the email containing the notice was sent to P. However, the Department acknowledges that in a case where P has no email address, or P’s email address is not known, the notice or notification would have to be sent by post.

3. The Department will, at the earliest opportunity, amend the relevant provisions of these Regulations so as to allow P to respond within 28 days of the date of the notice or notification, as the case may be.

Department for Environment, Food and Rural Affairs

17 May 2022

Appendix 2: Memorandum from the Ministry of Justice

S.I. 2022/312

Tribunal Procedure (Amendment) Rules 2022

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

In rule 2(5)(c), explain how users will be able to identify available compatible file formats (including, in particular, what arrangements will be made to publicise the options on the online portal itself), and what arrangements are expected to be made to ensure that the range of compatible file formats maximises accessibility.

2. The Department confirms that when submitting an immigration or asylum appeal through the online portal, where evidence is required to be uploaded, professional users are encouraged to ensure that each file that is uploaded does not exceed 100MB in size, is uploaded in a Word doc or PDF file format and is named appropriately, to allow documents to be uploaded more quickly and easily. Where an appeal is lodged by an unrepresented appellant, the online portal advises such users of the types of evidence they may wish to submit and advises that a photograph of their supporting evidence can be taken using their mobile phone and then uploaded to the online portal. The online portal does not specify the digital format types for uploaded files for such users as Her Majesty’s Courts and Tribunals Service (HMCTS) considers that this may be confusing for them as they may have very little understanding of the English language.

3. The Department also confirms that the online portal allows for more than 40 different compatible digital file formats including documents, images, audio, video, spreadsheets and slides to be uploaded. The maximum file size for a document is 1GB and for multimedia files is up to 500MB, with a total maximum upload capacity of 4GB. The online portal does not include a list of compatible digital file formats, but users are notified that the digital file is not compatible where they attempt to upload an unsupported digital file. Where users require additional assistance, the online portal and guidance published on HMCTS’ website signposts users to a contact email address for the online portal staff.

4. It is the Department’s position that the current compatible digital file formats are of sufficient range to maximise accessibility of the online portal to those who wish to use it. The Department will be updating its guidance documents to include a list of compatible digital file formats on to the HMCTS website so that all users are able to refer to this information should they wish to do so.

Ministry of Justice

17 May 2022

Appendix 3: Memorandum from the Department of Health and Social Care

S.I. 2022/316

National Health Service (Clinical Commissioning Groups) (Amendment) Regulations 2022

1. In its letter to the Department of 11 May 2022, the Committee requested a memorandum on the following point:

Having regard to the undesirability of appointing the Chief Finance Officer as chair of the audit committee for conflict of interest reasons (as implied by paragraph 7.8 of the Explanatory Memorandum) explain what arrangements would be implemented to avoid a conflict of interest if a temporary appointment had to be made in the circumstances described in that paragraph.

2. The Department’s response is as follows.

3. As paragraph 7.8 of the Explanatory Memorandum (EM) recognises, these arrangements would involve an inherent conflict of interest, and it will not be possible to eliminate the scope for conflict in its entirety. Instead, it will be a case of the conflict being managed by the application of general principles of good administration, including good governance and best practice.

4. Overall, we consider the risk to be relatively small when compared with the greater risk of insufficient persons to take up posts had the instrument not made the relevant amendments (as mentioned at paragraph 7.7 of the EM).

5. First, as the EM mentions, such an appointment would only be made where no other option was available therefore we expect instances to be rare, particularly since, in practice, the audit committee could be chaired by a lay member. Further, any such appointments would be temporary.

6. Second, Clinical Commissioning Groups (CCGs) will remain under the overarching duty in section 14O(4) (management of conflicts of interest) of the National Health Service Act 2006 (the 2006 Act) which requires CCGs to make arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of their decision-making processes.

7. Third, in any case the Chief Finance Officer (CFO) would be expected to carry out their responsibilities with honesty and integrity, at all times exercising independent judgment.

8. We would also expect the potential conflict of interest to be managed in accordance with the relevant provisions of statutory guidance issued by the National Health Service Commissioning Board (NHS England), “Managing conflicts of interest: revised statutory guidance for CCGs 2017”.2 The guidance was issued under sections 14O and 14Z8 (guidance on commissioning) of the 2006 Act. By virtue of sections 14O(6) and 14Z8(2), CCGs must have regard to the guidance.

9. Whilst the relevant sections of the guidance are aimed at specific instances of conflict, the guidance provides useful overarching principles which would both serve as a reminder of the need to manage conflict as well as provide practical measures.

10. As part of this, we would expect the potential conflict of interest to be noted and to be managed by the audit committee as a whole. This would include the audit committee members holding the CFO to account.

11. Management of the conflict would also include the other approaches recommended by the guidance, such as the possibility of the chair abstaining from discussions or decisions, for example where they have a bearing on the CFO’s role (paragraph 83 et seq of the guidance).

12. Other sources of advice and guidance include CCGs’ Conflicts of Interest Guardians (paragraph 74 of the guidance – although the role is normally discharged by the chair of the audit committee, in the above circumstances it is expected that it would normally be discharged by a lay member), CCGs’ external auditors (to which particular issues could be referred) and NHS England (which could also provide advice and guidance on particular issues). As a result of the transparency required of CCGs in managing any conflict of this kind, we would expect NHS England, in its role in overseeing CCGs, to take an interest in the management of conflicts of this kind.

Department of Health and Social Care

17 May 2022

Appendix 4: Memorandum from Her Majesty’s Revenue and Customs

S.I. 2022/364

Employment Allowance (Increase of Maximum Amount) Regulations 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

Confirm that, contrary to paragraph 5.1 of the Explanatory Memorandum, this instrument requires approval in accordance with the made affirmative procedure.

2. As explained in the footnote to the preamble (footnote (a)) of this instrument and paragraph 6.4 of the Explanatory Memorandum, section 74 of the Coronavirus Act 2020 modifies the procedure by which regulations made under section 5(1)(a) of the National Insurance Contributions Act 2014 which increase a person’s employment allowance are approved by Parliament. It applies the negative procedure to such regulations made before the end of the period of 2 years beginning with the day on which that Act is passed (25 March 2020). As explained in paragraph 3.1 of the Explanatory Memorandum, this instrument was made and laid as soon as possible after the Spring Statement on 23 March 2022, when the Chancellor announced the policy, so that the 21-day rule was breached to the minimum extent possible. On this date, the negative procedure applied.

3. In drawing attention to paragraph 5.1 of the Explanatory Memorandum, the Committee has also drawn our attention to the fact that the statement on compatibility with Convention rights was omitted when it should have been included because the instrument amends primary legislation. HM Revenue and Customs apologise for this omission and will lay a supplementary Explanatory Memorandum to include the statement on compatibility by the Financial Secretary to the Treasury.

Her Majesty’s Revenue and Customs

18 May 2022

Formal Minutes

Wednesday 25 May 2022

Virtual meeting

Members present

Jessica Morden, in the Chair

Lord Beith

Lord Chartres

Dr James Davies

Baroness D’Souza

Baroness Gale

Lord Haskel

Paul Holmes

John Lamont

Baroness Newlove

Richard Thomson

Report consideration

Draft Report (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 3.2 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 4.

Resolved, That the Report be the 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 8 June at 3.40 p.m.


Footnotes

1 The Committee asked for a memorandum on this instrument and a satisfactory response was received. The memorandum is printed at Appendix 4.

2 revised-ccg-conflict-of-interest-guidance-v7.pdf (england.nhs.uk). The guidance was published on 16 June 2017. Its stated aim is to support CCGs to identify and manage conflicts of interest.