Third Report of Session 2023–24

Report by the House of Lords and House of Commons Joint Committee on Statutory Instruments

Author: Joint Committee on Statutory Instruments

Related inquiry:

Date Published: 24 November 2023

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Contents

Instruments reported

At its meeting on 22 November 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 ten 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. 2023/906: Reported for doubtful vires

Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023

1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they give rise to doubt as to whether they are intra vires in one respect.

1.2These Regulations, which are subject to the negative resolution procedure, make amendments to the Building (Approved Inspectors etc.) Regulations 2010 to give effect to changes brought in by the Building Safety Act 2022. Regulation 19 amends Schedule 2 of those Regulations to add another prescribed ground for rejecting a notice or a plans certificate. It appeared to the Committee that sections 47(2) and 51A(3) of the Building Act 1984 are the relevant enabling powers, as they provide the power to prescribe grounds in this context, and asked the Department for Levelling Up, Housing and Communities to explain why these powers were not cited in the preamble.

1.3In a memorandum printed at Appendix 1, the Department explains that it considers that paragraphs 1A, 1D, 1F and 10 of Schedule 1 to the Building Act 1984 provide the necessary powers. The provisions were inserted into the 1984 Act by the Building Safety Act 2022 in order to introduce procedures and requirements for new higher-risk buildings. Out of the provisions referred to by the Department, the only one that appears to potentially allow a new ground for rejecting a notice or plan is paragraph 1F. That paragraph provides that a prescribed application must be accompanied by such prescribed documents as the applicant considers appropriate and that the building control authority may refuse an application if the applicant does not, on request, provide it with a document of a kind prescribed for the purposes of the prescribed application.

1.4The Committee does not agree that this provision is a sufficient power to provide for a new refusal ground. This is not the case of a specified application being prescribed (as envisaged when paragraph 1F was inserted and as explained in the Explanatory Notes to the 2022 Act, where certain applications for the refurbishment of higher-risk buildings are given as an intended example application – paragraph 331). Moreover, paragraph 1F(4) provides that regulations may provide that a building control authority may refuse the application if a prescribed document is not provided upon request, however, the new refusal ground is not a discretionary ground. It is added to a list of reasons that prescribe when the local authority must refuse the application, entirely within the ambit of the sections 47(2) and 51A(3) of the 1984 Act. These sections are cited in the instrument being amended and provide the explicit power for regulations to specify the grounds on which the local authority shall reject the initial notice, amendment notice or plans certificate, precisely what the amended Schedule is dealing with. On the basis that a preamble has the legal effect described by the Court of Appeal in Vibixa Ltd and another v Komori UK Ltd and others [2006] EWCA Civ 536, failure to cite an enabling provision relied on goes to vires. The Committee accordingly reports regulation 19 for doubt as to whether it is intra vires.

2S.I. 2023/907: Reported for defective drafting

Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023

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, make provision in relation to the management of safety risks in “higher-risk buildings”. Regulation 6 sets the mandatory reporting requirements that an accountable person for an occupied higher-risk building must provide to the Building Safety Regulator when a “safety occurrence” has taken place in the building. Regulation 6(5) defines a safety occurrence to include incidents relating to the structural integrity of, or spread of fire in, a high-risk building that if left unremedied would be likely to present a risk of a significant number of deaths. The Committee asked the Department for Levelling-up, Housing and Communities to explain what is meant by a “significant number of deaths”.

2.3In a memorandum printed at Appendix 1, the Department notes that the phrase “significant number of deaths” is used undefined in the Building Safety Act 2022 (see, for instance, section 63(8)) and that the intention is for this phrase to apply in the same way across the relevant primary and secondary legislation. The Department goes onto say that statutory guidance is intended to be published regarding the mandatory reporting requirements.

2.4In the Committee’s view these points do not justify a lack of clarity in regulation 6, particularly given that the consequences of a contravention include the commission of a criminal offence. The Department’s memorandum is not of assistance as it does not explain what is meant by a “significant number of deaths” and the Committee remains unclear how the accountable person can be certain how many people need to be at risk of death before that person is required to report a safety occurrence to the Building Safety Regulator. Whilst the Committee notes that statutory guidance may be forthcoming, the Committee has noted before (most recently in its Twenty-Eighth Report of Session 2022-23 in relation to S.I. 2023/63) that the basis of criminal offences must be sufficiently certain to enable readers to determine in advance what will incur criminal liability. The use of guidance – statutory or otherwise – does not excuse ambiguous legislation, particularly where the application of criminal offences turn on a construction of that legislation. The Committee accordingly reports regulation 6(3) for defective drafting.

3S.I. 2023/909: Reported for doubtful vires and defective drafting

Building (Higher-Risk Buildings Procedures) (England) Regulations 2023

3.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they give rise to doubt as to whether they are intra vires in one respect and are defectively drafted in one respect.

3.2These Regulations, which are subject to the negative resolution procedure, set out the building control regime applicable to higher-risk buildings as a result of the Building Safety Act 2022.

3.3Regulation 65 amends regulation 33 of The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 which prescribes documents for the purposes of section 129 of the Building Safety Act 2022. The Committee asked the Department for Levelling Up, Housing and Communities to explain why section 129 was not cited in the preamble. In a memorandum printed at Appendix 1, the Department explains that it considers the power to make consequential provision, found in section 166 of the 2022 Act, to be sufficient. The Committee disagrees. Section 129 provides the Secretary of State with the power to make regulations imposing a building control prohibition which prohibits a prescribed person from giving a prescribed document. Regulation 65 adds to the list of documents that are “prescribed for the purposes of section 129(4)(g)” of the 2022 Act and section 129 should clearly have been cited in the preamble. (The Committee further notes that section 166 is a general power to make regulations consequential on the 2022 Act, whereas the amendments made by regulation 65 more align with being consequential on the making of this instrument.) On the basis that a preamble has the legal effect described by the Court of Appeal in Vibixa Ltd and another v Komori UK Ltd and others [2006] EWCA Civ 536, failure to cite an enabling provision relied on goes to vires. The Committee accordingly reports regulation 65 for doubt as to whether it is intra vires.

3.4Regulations 32 to 35 refer to duties and defences by reference to a “safety occurrence” which includes in the definition a reference to “a risk of a significant number of deaths, or serious injury to a significant number of people”. As elaborated in the report relating to S.I. 2023/907, the Committee reports regulations 32 to 35 for defective drafting.

4S.I. 2023/942: Reported for defective drafting

Public Service (Civil Servants and Others) Pensions (Remediable Service) Regulations 2023

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

4.2These Regulations, which are subject to the negative resolution procedure, put in place new Civil Service pension scheme regulations to fulfil the requirements of the Public Service Pensions and Judicial Offices Act 2022.

4.3The instrument is signed by Alex Burghart who is identified in the signature block as the Minister for the Cabinet Office but who in fact holds the position of Parliamentary Secretary for the Cabinet Office. The Committee asked the Cabinet Office to explain the discrepancy and to clarify the Carltona arrangements within the Department. In a memorandum printed at Appendix 2, the Department confirms that its Carltona arrangements do permit the Parliamentary Secretary for the Cabinet Office to sign an instrument in these circumstances. It further confirms that this instrument was signed by Alex Burghart but that his title was incorrect in the signature block of the instrument. The Department confirms it is making arrangements to correct the error by correction slip. The Committee accordingly reports this instrument for defective drafting, acknowledged by the Department.

5S.I. 2023/963: Reported for defective drafting

Civil Service (Other Crown Servants) Pension Scheme (Remediable Service) Regulations 2023

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, put in place additional new Civil Service pension scheme regulations to fulfil the requirements of the Public Service Pensions and Judicial Offices Act 2022.

5.3The Regulations are made in part under section 3 of Public Service Pensions Act 2013. They have retrospective effect. Section 3(3) of the Public Service Pensions Act 2013 provides that specific additional provision may be made by such regulations, including, under section 3(3)(b), retrospective provision. However, section 3(3) is not referred to in the preamble. The Committee asked the Cabinet Office to explain. In a memorandum printed at Appendix 3, the Department explains that the reference to that provision was omitted from the preamble in error. The Committee accordingly reports the preamble for defective drafting, acknowledged by the Department.

6S.I. 2023/975: Reported for doubtful vires

Accounting Standards (Prescribed Bodies) (United States of America and Japan) (Amendment) Regulations 2023

6.1The Committee draws the special attention of both Houses to these Regulations on the ground that there is a doubt as to whether they are intra vires in one respect.

6.2These Regulations, which have been made subject to the negative resolution procedure, amend the Accounting Standards (Prescribed Bodies) (United States of America and Japan) Regulations 2015 and are in part made under section 468 of the Companies Act 2006. Regulation 4 inserts a new requirement for certain parent companies to disclose specified information in a note to the accounts. Regulations made under section 468 that “require additional matter to be included in a document of any class” are to be made subject to the affirmative resolution procedure (section 473(3)(b) of the 2006 Act). The Committee asked the Department for Business and Trade to explain. In a memorandum printed at Appendix 4, the Department acknowledges that the incorrect parliamentary procedure was used and that it intends to correct the error at the earliest opportunity. The Committee accordingly reports regulation 4 for doubt as to whether it is intra vires, acknowledged by the Department.

7S.I. 2023/987: Reported for defective drafting

Court Funds (Amendment) Rules 2023

7.1The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted in one respect.

7.2These Rules, which are subject to the negative resolution procedure, amend the Court Funds Rules 2011 mainly to enable the deposit of funds into court, and payments out, to be made by electronic means. Rule 5 inserts new rule 6A into the 2011 Rules, specifying the documents that must accompany a deposit of funds by electronic means. Most of the new provisions refer to, and reflect, what is contained within rule 6 of the 2011 Rules, with the exception of rule 6A(3)(d). The Committee asked the Ministry of Justice to explain why.

7.3In a memorandum printed at Appendix 5, the Department does not provide a substantive explanation. New rule 6A(3)(d) states that where existing rule 6(5) applies, the documents that must accompany a deposit of funds by electronic means are: an electronic request for deposit and an electronic sealed copy of the order authorising the order. Rule 6(5), on the other hand, specifies that where the deposit is made under the Life Assurance Companies (Payment into Court) Act 1896, the Accountant General shall only accept the deposit if provided with: a deposit schedule signed and authenticated by a court and a copy of the witness statement or affidavit filed in accordance with CPR rule 37.4. The purpose of this instrument is to allow for the digitalisation of the submission of requests for deposit and for payment out, whilst retaining the option to request deposit or payment out via paper-based applications. It does not appear to be the intention that different documents would be required depending on whether the request is performed on paper or electronically, particularly where the other provisions in new rule 6A reflect the applicable rule in rule 6. On that basis, the Committee accordingly reports rule 5 for defective drafting.

8S.I. 2023/995: Reported for defective drafting

Health and Care Professions Council (Miscellaneous Amendment) Rules Order of Council 2023

8.1The Committee draws the special attention of both Houses to this Order on the ground that it has been defectively drafted in two related respects.

8.2This Order, which is subject to the negative resolution procedure, approves various Rules made by the Health and Care Professions Council, including amendments to four sets of procedural Rules.

8.3In paragraphs 3(d) and 6(c) of the Schedule, the amended power to arrange a virtual preliminary meeting has been given only to the Chair of the Committee or Appeal Panel, not to the Committee or Appeal Panel collectively as well. In paragraphs 4(d) and 5(d) of the Schedule, the amended power to arrange a virtual preliminary meeting has been given to the Committee, not to the Chair as well. Under the existing provisions for all four sets of Rules, there was no such restriction on who had the power to arrange such virtual meetings. The Explanatory Note states that the amendments to all four sets of procedural Rules are in the same form and involve the same change. That statement appears to be at odds with the changes in fact made as far as preliminary meetings are concerned. The Committee asked the Department of Health and Social Care to explain.

8.4In a memorandum printed at Appendix 6, the Department explains that the policy intention is to allow either the Chair or the Committee or Appeal Panel to arrange virtual preliminary meetings in all cases, and these are oversights. The Committee accordingly reports paragraphs 3(d), 6(c), 4(d) and 5(d) of the Schedule for defective drafting, acknowledged by the Department.

9S.I. 2023/998: Reported for defective drafting

Armed Forces Pensions (Remediable Service) Regulations 2023

9.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in nine different respects.

9.2These Regulations, which are subject to the negative resolution procedure, make provision in relation to armed forces pensions, redundancy and compensation schemes as a result of the Public Service Pensions and Judicial Offices Act 2022.

9.3It appeared to the Committee that there were a number of definitions that were not subsequently used in the instrument:

- “AFRS 2020” (defined in regulations 3(2), 8(2), 18(2), 23(2)(b), 28(2)(b), 33(2)(b) and Schedule 7, inserting the new Schedule paragraph 1),

- “remedy member” and “Scheme manager” (defined in regulation 13(c)) and

- “legacy scheme service” (defined in Schedule 1 inserting new Schedule 4 paragraph 1(1), Schedule 2 inserting new Schedule 3 paragraph 1(1), Schedule 3 inserting the new Schedule paragraph 1(1), Schedule 4 inserting new Schedule 4 paragraph 1(1), Schedule 5 inserting new Schedule 3 paragraph 1 and Schedule 6 inserting new Schedule 4 paragraph 1).

9.4The Committee asked the Ministry of Defence to explain. In a memorandum printed at Appendix 7, the Department acknowledges the errors and the Committee accordingly reports all the provisions referred to above for defective drafting, acknowledged by the Department.

9.5The Committee also noticed that two different definitions had been included for “Scheme manager” in Schedule 2 inserting new Schedule 3 paragraph 1(1) and asked the Department to explain. In its memorandum, the Department explains that the second definition was included in error, defining Scheme manager as the Secretary of State. The Committee accordingly reports Schedule 2 inserting new Schedule 3 paragraph 1(1) for defective drafting, acknowledged by the Department.

9.6Regulation 44(2) inserts new paragraph 6 into Schedule 2 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011. Sub-paragraph (6) refers to “FTRS 1997” and “NRPS 2011” in two places. The Committee asked the Department to explain where the definitions for these terms can be found. In its memorandum, the Department acknowledges that there are no definitions and that there is a related definition but that it needs updating. The Committee accordingly reports regulation 44(2) for defective drafting, acknowledged by the Department.

9.7Regulation 3(5) amends three different pension scheme Orders to provide that rule H1 is subject to new paragraph 63 of Schedule 4, inserted by regulation 5 of this instrument. It appeared to the Committee that the reference to new paragraph 63 was incorrect. Similarly, regulation 8(4) amends another pension scheme Order to provide that rule E.21 is subject to paragraph 62 of Schedule 3, inserted by regulation 10 of this instrument. The Committee asked the Department to explain. In its memorandum, the Department confirms that both paragraphs 63 and 62 were incorrect and the rules should have been made subject to paragraphs 59 and 61 instead. The Committee accordingly reports regulations 3(5) and 8(4) for defective drafting, acknowledged by the Department.

9.8The Department undertakes to remedy all the above errors at the next legislative opportunity.

10S.I. 2023/1040: Reported for defective drafting

Income-Related Benefits (Subsidy to Authorities) Amendment Order 2023

10.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.

10.2This Order, which is subject to the negative resolution procedure, amends the amounts of subsidy paid to local authorities in relation to housing benefit. Schedule 2, new Schedule 1ZB paragraph 2, provides that the additional amount of subsidy is the amount specified for that authority in the “Housing Benefit Circular HB S7/2023 first published by the Department for Work and Pensions on 9th May 2023”. The Committee asked the Department for Work and Pensions to confirm whether the date is correct. In a memorandum printed at Appendix 8, the Department confirms that it is incorrect, that it was uploaded to the website on 27 April 2023 and was emailed to local authorities on 24 April 2023. The Committee accordingly reports Schedule 2 inserting new Schedule 1ZB paragraph 2 for defective drafting, acknowledged by the Department.

Instruments not reported

At its meeting on 22 November 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

S.I. Numbers

S.I. Title

Draft

Agriculture (Delinked Payments and Consequential Provisions)

(England) Regulations 2023

Draft

Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023

Draft

Employment Rights (Amendment, Revocation and Transitional

Provision) Regulations 2023

Draft

Equality Act 2010 (Amendment) Regulations 2023

Draft

Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023

Draft

Financial Services and Markets Act 2023 (Benchmarks and Capital Requirements) (Amendment) Regulations 2023

Draft

Financial Services and Markets Act 2023 (Consequential Amendments) Regulations 2023

Draft

Strikes (Minimum Service Levels: Border Security) Regulations 2023

Draft

Strikes (Minimum Service Levels: NHS Ambulance Services and the NHS Patient Transport Service) Regulations 2023

Draft

Strikes (Minimum Service Levels: Passenger Railway Services)

Regulations 2023

Draft

York and North Yorkshire Combined Authority Order 2023

Draft

Hydrogen Production Revenue Support (Directions, Eligibility and Counterparty) Regulations 2023

Draft

Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2024

Draft

Trade Union (Deduction of Union Subscriptions from Wages in the Public Sector) Regulations 2023

Draft

Child Support (Management of Payments and Arrears and Fees) (Amendment) Regulations 2023

Draft

Judicial Pensions (Remediable Service etc.) (Amendment) Regulations 2023

Instruments subject to annulment

S.I. Numbers

S.I. Title

S.I. 2023/1016

Whole of Government Accounts (Designation of Bodies) Order 2023

S.I. 2023/1017

Social Security Additional Payments (Second Qualifying Day) Regulations 2023

S.I. 2023/1068

Public Lending Right Scheme 1982 (Commencement of Variations) (No. 2) Order 2023

S.I. 2023/1071

Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023

S.I. 2023/1095

Government of Wales Act 2006 (Schedule 9A – Devolved Welsh Authorities) (Amendment) Order 2023

S.I. 2023/1104

British Nationality (British Overseas Territories) (Amendment) Regulations 2023

S.I. 2023/1105

National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) (No. 2) Regulations 2023

S.I. 2023/1110

Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2023

S.I. 2023/1117

Public Procurement (Agreement on Government Procurement) (Thresholds) (Amendment) Regulations 2023

S.I. 2023/1126

Countryside and Rights of Way Act 2000 (Substitution of Cut-off Date Relating to Rights of Way) (England) Regulations 2023

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. Numbers

S.I. Title

S.I. 2023/1035

Health and Care Act 2022 (Commencement No. 7) Regulations 2023

S.I. 2023/1036

Coroners and Justice Act 2009 (Commencement No. 21) Order 2023

S.I. 2023/1102

Armed Forces Act 2021 (Commencement No. 7) Regulations 2023

S.I. 2023/1121

Countryside and Rights of Way Act 2000 (Commencement No. 16) Order 2023

S.I. 2023/1145

Elections Act 2022 (Commencement No. 9, Transitional and Savings Provisions and Appointed and Specified Days) and Ballot Secrecy Act 2023 (Commencement) Regulations 2023

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

S.I. 2023/906, S.I. 2023/907 and S.I. 2023/909

Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023

Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023

Building (Higher-Risk Buildings Procedures) (England) Regulations 2023

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

(i) In relation to S.I. 2023/906, explain whether sections 47(2) and 51A(3) of the Building Act 1984 should have been cited in the preamble, given the amendment made to Schedule 2 of S.I. 2010/2215 (by regulation 19).

(ii) In relation to regulation 65 of S.I. 2023/909, explain why section 129 of the Building Safety Act 2022 is not cited in the preamble.

(iii) In relation to regulation 6 of S.I. 2023/907 and regulations 32-35 of S.I. 2023/909, explain what is meant by “significant number of deaths”.

2. In relation to point (i), the Department considers the provisions in regulation 19 of S.I. 2023/906 are within the powers cited in the preamble, namely the power to make provision as to procedures in paragraphs 1A, 1D, 1F and 10 of Schedule 1 to the Building Act 1984.

3. In relation to point (ii) above, the Department considers the provisions in regulation 65 of S.I. 2023/909 are consequential on the higher-risk building control regime provided for in Part 3 of the Building Safety Act 2022. As such, regulation 65 is made under the powers in section 166 of the Building Safety Act 2022 which was cited in the preamble.

4. In relation to point (iii) above, the phrase “significant number of deaths” is used (undefined) in the context of building safety risks in both section 63(8) of the Building Safety Act 2022 and section 120G(5) of the Building Act 1984.  The intention was for the phrase in both regulation 6 of S.I. 2023/907 and regulation 35(2) of S.I. 2023/909, which provide for reporting in relation to the occurrence of building safety risks, to apply in the same way as in the enabling Acts and inclusion of a definition in the Regulations could have affected the interpretation of the term as used in the Acts, which we wanted to avoid. The Department understands that the Building Safety Regulator intends to publish statutory guidance on mandatory occurrence reporting under section 108 of the Building Safety Act 2022 (and the Secretary of State has the power under section 6 of the Building Act 1984 to issue statutory guidance on any requirements of the building regulations).

Department for Levelling Up, Housing and Communities

14 November 2023

Formal minutes

Wednesday 22 November 2023

Virtual meeting

Members present

Jessica Morden, in the Chair

Lord Beith

Lord Chartres

Baroness D’Souza

Peter Grant

Damien Moore

Lord Sahota

Baroness Sater

Liz Twist

Lord Watson of Wyre Forest

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 10.2 read and agreed to. Annex agreed to. 

Papers were appended to the Report as Appendices 1 to 8.

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 29 November at 3.40 p.m.

Appendix 2: Memorandum from the Cabinet Office

S.I. 2023/942

Public Service (Civil Servants and Others) Pensions (Remediable Service) Regulations 2023

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

In relation to the signature block, confirm whether the designation “Minister for the Cabinet Office” correctly reflects the Carltona arrangements within the Department, in which case explain why the Parliamentary Secretary has signed, or whether the Carltona arrangements extend to permitting the Parliamentary Secretary to sign in these circumstances (in which case confirm that Alex Burghart is described as the Minister for the Cabinet Office in error).

2. The Cabinet Office confirms that Carltona arrangements within the Department permit the Parliamentary Secretary for the Cabinet Office to sign these Regulations.

3. The Cabinet Office further confirms that Alex Burghart has been described as the Minister for the Cabinet Office in error. The Department, having discussed this matter with the SI Registrar, considers it is appropriate to correct this error using a correction slip. The Department confirms it is making arrangements to correct the error accordingly.

Cabinet Office

14 November 2023

Appendix 3: Memorandum from the Cabinet Office

S.I. 2023/963

Civil Service (Other Crown Servants) Pension Scheme (Remediable Service) Regulations 2023

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

Explain why there is no reference in the preamble to section 3(3) of the Public Service Pensions Act 2013, given in particular that the regulations make retrospective provision.

2. These Regulations were made, in part, in exercise of the power at section 3(1) of the Public Service Pensions Act 2013, which, as indicated by section 3(3)(b), includes power to make retrospective provision. As the Explanatory Note to the instrument makes clear, it was made, in part, in reliance on section 3(3)(b), although the reference to that provision was omitted from the preamble in error, for which the Cabinet Office apologises. Nevertheless, we consider it is clear that the Minister had the power to make the instrument in the form it was made and, accordingly, that the instrument was validly made and is intra vires.

Cabinet Office

14 November 2023

Appendix 4: Memorandum from the Department for Business and Trade

S.I. 2023/975

Accounting Standards (Prescribed Bodies) (United States of America and Japan) (Amendment) Regulations 2023

1. The Committee has asked the Department for Business and Trade for a memorandum on the following point(s):

In light of section 473(3)(b) of the Companies Act 2006, explain why this instrument does not use the affirmative procedure given that regulation 5A requires additional matter to be included in a document, namely a note to the accounts.

2. The Department is grateful to the Committee for bringing this point to our attention.

3. The Department acknowledges that the point raised by the Committee reflects an error in the parliamentary procedure used for S.I. 2023/975. Although regulation 5A is a de minimis provision requiring a simple certification on the company accounts the Department accepts that this particular regulation should not have been introduced using the negative parliamentary procedure and that in accordance with section 473(3)(b) of the Companies Act 2006 the affirmative procedure should have been used.

4. The Department apologises for this oversight and intends to correct the error at the earliest opportunity and thanks the Committee again for its review.

Department for Business and Trade

14 November 2023

Appendix 5: Memorandum from the Ministry of Justice

S.I. 2023/987

Court Funds (Amendment) Rules 2023

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

Explain whether new rule 6A(3)(d) of the Court Funds Rules 2011, as inserted by rule 5, should have more closely reflected existing rule 6(5).

2. The Ministry is grateful to the Committee for its consideration of this instrument.  The point raised by the Committee may indicate that the drafting of new rule 6A(3)(d) should be changed to reflect more closely that of rule 6(5), rather than, as it does, mirroring the drafting of the second option for electronic deposits under the Trustee Act 1925 in new rule 6A(3)(e), which reflects the second option for such deposits in rule 6(6).

3. The understanding of the Ministry is that new rule 6A(3)(d) will be operationally workable; but it does also appear that wording more closely reflecting that of rule 6(5) would also be operationally workable, and might indeed be preferable.  This is something which the Ministry is considering with a view to making any necessary change as part of a further instrument amending the Court Funds Rules 2011 which it is anticipated will be laid before Parliament by the end of 2023. The Ministry undertakes to explain in the supporting material for that instrument any change which is made in this regard, or, should it be decided that no change should be made, the reasons for that decision.

Ministry of Justice

14 November 2023

Appendix 6: Memorandum from the Department for Health and Social Care

S.I. 2023/995

Health and Care Professions Council (Miscellaneous Amendment) Rules Order of Council 2023

1. The Committee has asked the Department of Health and Social Care for a memorandum on the following points:

Explain why in the Schedule—

1. in relation to paragraph 3(d) and 6(c) (new rule 8B in 2003/1574 and 14A in 2003/1579) the power to arrange a virtual preliminary meeting has only been given to the Chair, rather than the Committee or Appeal Panel as well;

2. in relation to paragraph 4(d) and 5(d) (new rule 10B in 2003/1575 and 2003/1576), the power to arrange a virtual preliminary meeting has been given only to the Committee and not the Chair as well.

2. In relation to point 1, as set out in the Explanatory Memorandum accompanying the instrument, the policy intention is to allow a Committee of the Health and Care Professions Council and an Appeal Panel to hold meetings or hearings using audio and/or video conferencing facilities. That the Chair of a Panel and not a Committee or Appeal Panel is able to arrange a virtual preliminary meeting is an oversight for which the Department apologises, and which the Department undertakes to correct at the next available opportunity.

3. In relation to point 2, in furtherance of the same policy intention, the omission of the Chair of a Panel is also an oversight for which the Department apologises and which the Department undertakes to correct at the next available opportunity.

Department of Health and Social Care

14 November 2023

Appendix 7: Memorandum from the Ministry of Defence

S.I. 2023/998

Armed Forces Pensions (Remediable Service) Regulations 2023

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

i) Explain why the following definitions are included—

a) “AFRS 2020” (defined in regulations 3(2), 8(2), 18(2), 23(2)(b), 28(2)(b), 33(2)(b) and Schedule 7, inserting the new Schedule paragraph 1)

b) “remedy member” and “Scheme manager” (defined in regulation 13(c));

c) “legacy scheme service” (defined in Schedule 1 inserting new Schedule 4 paragraph 1(1), Schedule 2 inserting new Schedule 3 paragraph 1(1), Schedule 3 inserting the new Schedule paragraph 1(1), Schedule 4 inserting new Schedule 4 paragraph 1(1), Schedule 5 inserting new Schedule 3 paragraph 1 and Schedule 6 inserting new Schedule 4 paragraph 1).

ii) Explain why there are two definitions for “Scheme manager” in Schedule 2 inserting new Schedule 3 paragraph 1(1).

iii) Explain where the definitions for “FTRS 1997” and “NRPS 2011”, referred to in regulation 44(2) new paragraph 6(6), are to be found.

iv) Explain whether the reference to paragraph 63 in regulation 3(5) is correct.

v) Explain whether the reference to paragraph 62 in regulation 8(4) is correct.

2. In relation to point 1, these definitions were included in error, for which the Department apologises.  This will be remedied at the next legislative opportunity.

3. In relation to point 2, the second definition, i.e. that “Scheme manager” means the Secretary of State, was included in error, for which the Department apologises.  This will be remedied at the next legislative opportunity.

4. In relation to point 3, there are no definitions for “FTRS 1997” and “NRPS 2011” in the AFCS Order.  The AFCS Order does contain a definition for the “NRPSPS” which is the same scheme as the “NRPS 2011”, but the definition (and reference) is out-of-date.  The Department apologises for this error and will remedy it, and update the reference, at the next legislative opportunity.

5. In relation to point 4, the reference to paragraph 63 in regulation 3(5) is incorrect.  The correct reference should be to paragraph 59.  The Department apologises for this error and will remedy it at the next legislative opportunity.

6. In relation to point 5, the reference to paragraph 62 in regulation 8(4) is incorrect.  The correct reference should be to paragraph 61.  The Department apologises for this error and will remedy it at the next legislative opportunity.

Ministry of Defence

14 November 2023

Appendix 8: Memorandum from the Department for Work and Pensions

S.I. 2023/1040

Income-related Benefits (Subsidy to Authorities) Amendment Order 2023

1. The Committee has asked the Department for Work and Pensions for a memorandum on the following point:

Confirm that the reference in paragraph 2 of new Schedule 1ZB, inserted by Schedule 2, to first publication on 9 May 2023 is correct (noting that the webpage states that the Circular was uploaded on 27 April 2023).

2. The Department’s response to the Committee’s point is outlined below.

3. The Department acknowledges that the date of publication of Housing Benefit Circular HB S7/2023 in new paragraph 2 of Schedule 1ZB to the Income-related Benefits (Subsidy to Authorities) Order 1998 is incorrect. The date of publication is given as 9th May 2023. The Circular was uploaded to the website on 27th April 2023 and the Department emailed the Circular to local authorities on 24th April 2023. The Department apologises for the error.

4. The Department plans to explore with the S.I. Registrar the possibility of correcting the error by Correction Slip at the earliest opportunity.

5. The Housing Benefit Circulars are guidance documents published by the Department for Housing Benefit staff, who are experts in the housing field. The Circular number in the Order (HB S7/2023) is correct and the Circular can be identified by this number. Any local authority, or other person, who wishes to obtain a copy of the Circular will be taken to the correct version using the link provided in the associated footnote in the Order.  Any person requesting a hard copy of the Circular from the Department will be provided with a copy of the correct Circular.

Department for Work and Pensions

14 November 2023