Eighth Report of Session 2023–24

This is a House of Lords and House of Commons Committee joint report.

3 Statutory Instruments Reported.

Author: Joint Committee on Statutory Instruments

Date Published: 19 January 2024

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Contents

Instruments reported

At its meeting on 17 January 2024 the Committee scrutinised a number of instruments in accordance with Standing Orders. It was agreed that the special attention of both Houses should be drawn to three of those considered. The instruments and the grounds for reporting are given below. The relevant departmental memoranda are published as appendices to this report.

1S.I. 2023/959: Reported for unusual use of enabling power

Windsor Framework (Retail Movement Scheme: Public Health, Marketing and Organic Product Standards and Miscellaneous Provisions) Regulations 2023

Procedure: Made Negative

1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they make unusual use of the enabling power.

1.2These Regulations relate to the implementation of the Northern Ireland Retail Movement Scheme, which deals with the movement of goods between Great Britain and Northern Ireland. Schedules 1, 2 and 3 set out the applicable standards relating to public health, marketing and organic products. Those Schedules include lists of retained EU law and, in some cases, there are modifications to ensure that those pieces of legislation operate properly. However, regulations 4, 5 and 6 provide that the listed legislation is also subject to

“...such further modifications as are necessary, including those which reflect the exceptional application of those provisions in Northern Ireland in respect of a specific category of goods.”

1.3The Committee was unclear what this meant for the application of the legislation listed in the Schedules and asked the Department for Environment, Food and Rural Affairs to explain.

1.4In a memorandum printed at Appendix 1, the Department asserts that the provision is necessary to reflect the unique circumstances that the legislation listed in the Schedules only applies to goods entering Northern Ireland from Great Britain under the Retail Movement Scheme and that the legislation listed does not otherwise apply in Northern Ireland. The Department also points to two similar instances of provisions applying with “such further modifications as are necessary”.

1.5The Committee notes that in those examples the phrase appears to be a drafting device to cover any gaps left by the related modifications. The reader of the legislation is required to finish the job themselves by taking a view about what further extra-statutory modifications are necessary to make the legislation work. In the present case, these extra-statutory modifications are meant to reflect the “exceptional application” of the listed legislation in Northern Ireland in respect of specific categories of goods, and so the reader needs to do even more to make the legislation work. The Committee deprecates this approach because legislation should not be so uncertain that the readers of legislation are left to fill in the gaps to determine the correct legal position. The Committee is unclear whether it is the Department’s intention that any extra-statutory modifications will be turned into actual amendments to the legislation in due course.

1.6The Committee notes that the uncertainty created by this approach is to the Department’s advantage. The listed legislation relates to the operation of the Retail Movement Scheme and so it will be the Department’s view on what extra-statutory modifications are necessary that will take effect in the first instance. Accordingly, this approach provides the Department with significant practical influence in determining whether there are any legislative gaps and whether it is necessary to fill them. In the Committee’s view, this approach amounts to an unusual use of the powers to implement the Windsor Framework because this instrument does not make all of the changes necessary to operate the Retail Movement Scheme. Furthermore, it is unclear whether the listed legislation will in fact be subject to further extra-statutory modifications that the Department considers necessary for the administration of the Scheme. This is neither a transparent nor accountable way to approach legislation because it obscures how the listed legislation will apply in practice and provides no opportunity for Parliament to scrutinise the proposed application of that legislation.

1.7In the Committee’s view, if the Department becomes aware of a need to further modify the application of the listed legislation, it would be proper legislative practice for the Department to amend these Regulations to add to the modifications already set out in the Schedules. The Committee accordingly reports regulations 4, 5 and 6 on the ground that they make unusual use of the enabling power.

2S.I. 2023/1238: Reported for requiring elucidation

Universal Credit (Transitional Provisions) (Amendment) Regulations 2023

Procedure: Made Negative

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

2.2These Regulations are intended to provide additional amounts of income protection to new Universal Credit claimants where the claimants are entitled to the transitional severe disability premium. New paragraph 7 (inserted by regulation 2(3)) defines three terms as premiums granted under specific statutory provisions or “as the case may be, the corresponding premium[s]” The Committee was unclear about what is meant by the references to “corresponding” premiums and asked the Department for Work and Pensions to explain.

2.3In a memorandum printed at Appendix 2, the Department explains that this drafting was intentional “to ensure consistency” with previous amendments to the relevant legislation which had used the same form of words in order to avoid cross-references to other legislation where possible. The Department argues that had a different approach been taken this would have created an unhelpful inconsistency.

2.4The Committee acknowledges the value of consistency in ensuring clarity in legislation. Nevertheless, the Committee considers that the overall clarity of legislation is more important than consistency alone. In this case, by not identifying precisely the benefits which the legislation is referring to, it becomes more difficult to identify the claimants for whom this additional income protection is intended. The Committee notes that the Department does not explain in its Explanatory Memorandum or its memorandum to the Committee what the corresponding premiums are and so it remains unclear what is being referred to. The Committee accordingly reports regulation 2(3) (new paragraph 7) as requiring elucidation.

3S.I. 2023/1245: Reported for failure to comply with proper legislative practice

Immigration Act 2014 (Commencement No. 9) and Immigration Act 2014 (Commencement No. 8) (Revocation) Order 2023

Procedure: Made Negative

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

3.2S.I. 2023/1215 erroneously provided for two powers in the Immigration Act 2014 to come into force on 28 November 2023. This Order provides for the revocation of that Order to also take effect on 28 November 2023. Given that, in the case of a commencement provision, the implied power to revoke an instrument provided by section 14 of the Interpretation Act 1978 may be regarded as spent once the provision in question has come into force, the Committee was unsure whether revocation of the commencement provisions in S.I. 2023/1215 at the same moment as the provisions were due to come into force was effective. The Committee asked the Home Office to explain.

3.3In a memorandum printed at Appendix 3, the Department asserts that the provisions in question did not come into force even momentarily. The Committee does not share the Department’s confidence and there is significant uncertainty about whether those provisions did or did not come into force. This highlights a failure to comply with proper legislative practice because there should be no such uncertainty about the commencement of legislation, particularly where such uncertainty is generated by the Department unnecessarily attempting to perform two contradictory actions at the same time.

3.4If the provisions did come into force, this uncertainty is compounded because it is also unclear whether section 14 of the 1978 Act was available to revoke S.I. 2023/1215 at the same time that the provisions came into force. There are arguments both ways. Commencement powers are conferred for the purpose of bringing legislation into force (see Pritchard v Secretary of State for Work and Pensions [2020] EWHC 1495 (Admin) at [123]). From this flows an important point of principle: commencement powers are not usually conferred with the intention of being used to reverse the commencement of provisions once a provision has been brought into force, which would otherwise allow for the effective repeal of primary legislation using instruments that are not ordinarily subject to any parliamentary procedure (see further Craies on Legislation (12th ed) at 14.4.22). Applying this to section 14 of the 1978 Act, in the context of commencement powers there is typically a ‘contrary intention’ against the implied power to revoke being available once the provisions being commenced by the power have come into force, and this points away from section 14 being available in this case.

3.5On the other hand, there may be arguments in favour of section 14 applying. For instance, in this case what was being commenced were two powers to amend by order amounts in sections 23 and 25 of the Immigration Act 2014. At the moment of commencement, the only legal effect was that these powers became available to the Secretary of State. No individual rights or interests were affected by the mere commencement of these provisions. Furthermore, this Order is unusual because it is a commencement instrument that is subject to a parliamentary procedure (see section 74(7) of the 2014 Act). As a result, any use of the implied power in section 14 to revoke S.I. 2023/1215 is subject to a degree of parliamentary oversight, which to some extent addresses the point of principle identified above. These factors could point towards the implied power in section 14 being available in the particular circumstances of this case.

3.6The Committee does not propose to reach a final view about these difficult points, but it highlights these arguments to show the complexities produced by the Department’s approach to what was otherwise a relatively simple legal problem. The Department recognises that it could have been clearer if S.I. 2023/1215 had been revoked before 28 November 2023. The Committee agrees and notes that steps should have been taken to prevent this issue from arising, particularly when it could have been avoided so easily. The Committee accordingly reports this Order for failure to comply with proper legislative practice, acknowledged in part by the Department.

Instruments not reported

At its meeting on 17 January 2024 the Committee considered the instruments set out in the Annex to this Report, none of which were required to be reported to both Houses.

Annex

Instruments requiring affirmative approval

S.I. Numbers

S.I. Title

S.I. 2023/1314

Iran (Sanctions) Regulations 2023

S.I. 2023/1364

Russia (Sanctions) (EU Exit) (Amendment) (No. 4) Regulations 2023

S.I. 2023/1367

Russia (Sanctions) (EU Exit) (Amendment) (No. 5) Regulations 20231

S.I. 2023/1397

Civil Procedure (Amendment No. 4) Rules 2023

Draft instruments requiring affirmative approval

S.I. Numbers

S.I. Title

Draft

Waste Enforcement (Fixed Penalty Receipts) (Amendment) (England and Wales) Regulations 2023

Draft

Representation of the People (Postal and Proxy Voting etc.) (Amendment) Regulations 2024

Draft

Sea Fisheries (International Commission for the Conservation of Atlantic Tunas) (Amendment) Regulations 2024

Draft

Anaesthesia Associates and Physician Associates Order 2024

Draft

Animal Welfare (Primate Licences) (England) Regulations 2023

Draft

Occupational Pension Schemes (Collective Money Purchase Schemes) (Amendment) Regulations 2023

Draft

Pneumoconiosis etc. (Workers’ Compensation) (Specified Diseases and Prescribed Occupations) (Amendment) Regulations 2024

Draft

East Midlands Combined County Authority Regulations 2024

Draft

European Organization for Astronomical Research in the Southern Hemisphere and the European Space Agency (Immunities and Privileges) (Amendment) Order 2023

Draft

Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2024

Draft

Limited Liability Partnerships (Application of Company Law) Regulations 2024

Draft

Principal Office Address (Rectification of Register) Regulations 2024

Draft

Registered Office Address (Rectification of Register) Regulations 2024

Draft

Service Address (Rectification of Register) Regulations 2024

Draft

Terrorism Act 2000 (Proscribed Organisations (Amendment) Order 2024

Instruments subject to annulment

S.I. Numbers

S.I. Title

S.I. 2023/911

Building Regulations etc. (Amendment) (England) Regulations 2023

S.I. 2023/1221

Data Protection (Law Enforcement) (Adequacy) (Bailiwick of Jersey) Regulations 2023

S.I. 2023/1243

Controlled Waste (England and Wales) (Amendment) (England) Regulations 2023

S.I. 2023/1250

Non-Domestic Rating (Small Business Rate Relief) (England) Regulations 2023

S.I. 2023/1254

Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2023

S.I. 2023/1256

Civil Enforcement of Parking Contraventions Designation (No. 2) (West Sussex) (Chichester and Crawley) (Amendment) and the Civil Enforcement of Parking Contraventions Designation Order 2023

S.I. 2023/1257

Car, Van and Heavy Duty Vehicle Carbon Dioxide Emissions Performance Standards (Civil Penalties and Miscellaneous Amendments) Regulations 2023

S.I. 2023/1258

Short Selling (Notification Threshold) Regulations 2023

S.I. 2023/1261

Adoption Support Agencies (England) (Amendment) Regulations 2023

S.I. 2023/1265

Occupational Pensions (Revaluation) Order 2023

S.I. 2023/1267

National Security Act 2023 (Consequential Amendments of Subordinate Legislation) Regulations 2023

S.I. 2023/1270

State Pension Debits and Credits (Revaluation) Order 2023

S.I. 2023/1322

Civil Legal Aid (Remuneration) (Amendment) Regulations 2023

S.I. 2023/1347

Insurance and Reinsurance Undertakings (Prudential Requirements) Regulations 2023

S.I. 2023/1350

Animals (Penalty Notices) (England) Regulations 2023

S.I. 2023/1398

Financial Services and Markets Act 2023 (Digital Securities Sandbox) Regulations 2023

S.I. 2023/1404

Health and Social Care Act 2008 (Regulated Activities) (Amendment) (No. 2) Regulations 2023

Draft instruments subject to annulment

S.I. Numbers

S.I. Title

Draft

Dudley (Electoral Changes) Order 2024

Draft

Northumberland (Electoral Changes) Order 2024

Draft

Shropshire (Electoral Changes) Order 2024

Draft

Tandridge (Electoral Changes) Order 2024

Draft

Worcester (Electoral Changes) Order 2024

Instruments not subject to parliamentary proceedings not laid before Parliament

S.I. Numbers

S.I. Title

S.I. 2023/1262

Animals (Penalty Notices) Act 2022 (Commencement) Regulations 2023

S.I. 2023/1272

National Security Act 2023 (Commencement No. 1 and Saving Provision) Regulations 2023

S.I. 2023/1374

Inspectors of Education, Children’s Services and Skills (No. 5) Order 2023

S.I. 2023/1378

Chief Regulator of Qualifications and Examinations Order 2023

S.I. 2023/1392

Designation of Schools Having a Religious Character (England) (No. 2) (Amendment) Order 2023

S.I. 2023/1396

Local Audit and Accountability Act 2014 (Commencement No. 7, Transitional Provisions and Savings) (Amendment) Order 2023

S.I. 2023/1400

Designation of Rural Primary Schools (England) Order 2023

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

S.I. 2023/959

Windsor Framework (Retail Movement Scheme: Public Health, Marketing and Organic Product Standards and Miscellaneous Provisions) Regulations 2023

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

In relation to regulations 4, 5 and 6, explain what is the intended effect of applying the legislation listed in Schedules 1, 2 and 3 subject to “such further modifications as necessary”.

In particular, explain—

(1) the circumstances this is intended to cover (including an explanation of what is meant by circumstances that “reflect the exceptional application of such provisions in Northern Ireland”);

(2) who in practice will decide when it is necessary to apply the legislation with such further modifications;

(3) how legislative effect will be given to any such further modifications of that legislation.

Question 1

2)Regulations 4, 5 and 6 apply the legislation listed in Schedules 1, 2 and 3 to retail goods which enter Northern Ireland under the Retail Movement Scheme (RMS). Under Article 1(2) and Annex 1 of Regulation (EU) 2023/1231 of the Windsor Framework, the standards in directly applicable EU law are disapplied in relation to retail goods moving under the RMS. Regulations 4, 5 and 6 apply the relevant standards applicable in Great Britain to those goods subject to the specified modifications and “such further modifications as necessary”.

3)This provision is needed to ensure that the legislation listed in Schedules 1 to 3 can be read with necessary modifications to reflect the unique circumstances that these provisions only apply to retail goods entering into Northern Ireland from Great Britain under the RMS. The wording “reflect the exceptional application of such provisions in Northern Ireland” is to deal with the fact that the legislation listed in Schedules 1 to 3 does not otherwise apply in Northern Ireland.

4)There are precedents in both primary and secondary legislation for using modification provisions of this nature (see, for example, section 107(1) of the Police, Crime, Sentencing and Courts Act 2022 (c. 32)) and the Windsor Framework (Enforcement etc.) Regulations 2023 (SI 2023/1056) (to which this instrument relates) includes a similar provision in regulation 9(3). In this context, the Department considers that the modification provisions in regulations 4, 5 and 6 are appropriate.

Question 2

5)It would be for the court to ultimately determine when it is necessary to construe the provisions with such further modifications.

Question 3

6)Any future amendments to the legislation listed in Schedules 1, 2 and 3 will attach to the provisions in this instrument by virtue of regulation 2(2) which states that “any reference to provisions of the instruments listed in Schedules 1 to 3 of Part 2 is a reference to those provisions as amended from time to time”.

Department for Environment, Food and Rural Affairs

19 December 2023

Appendix 2: Memorandum from the Department for Work and Pensions

S.I. 2023/1238

Universal Credit (Transitional Provisions) (Amendment) Regulations 2023

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

Explain why the definitions in paragraph 7 (inserted by regulation 2(3)) do not state the statutory provisions under which the “corresponding premium in relation to income support” or the “corresponding premium in relation to income support or income-based jobseeker’s allowance” are awarded.

2)This drafting was intentional and the approach taken was used to ensure consistency with the Universal Credit (Transitional Provisions) Regulations 2014 (S.I. 2014/1230) as amended (in particular by S.I. 2019/1152, S.I. 2021/4 and S.I. 2023/543). Each of these instruments amended Schedule 2 to S.I. 2014/1230 and adopted the same approach as here, namely to refer to the specific provisions for the premium in the regulations where it is most relevant and then refer to the corresponding provisions in relation to the other benefits. We understand that the existing provisions were drafted in this way so as not to define terms where the meaning is clear and so as to avoid cross references to other legislation where possible. In this case the reader would not need to refer to those other provisions to understand the meaning and intent of the amending provisions.

3)S.I. 2023/1238 inserts a new Schedule 3 into S.I. 2014/1230. Schedule 3 closely interacts with Schedule 2, which takes the same drafting approach in relation to premiums. Schedule 3 extends the existing payment scheme in Schedule 2 to those who had been entitled to other premiums, which are similarly replicated across several other benefits; claimants must meet the criteria in Schedule 2 in order to be entitled under the new scheme (see Schedule 3 paragraph 1(a)). (S.I. 2014/1230 also takes the same approach elsewhere, for example in regulations 41 and 42.)

4)The provisions in Schedule 2 have been closely scrutinised in a judicial review2 and numerous First tier Tribunal and Upper Tribunal decisions and the meaning of the ‘corresponding premium’ provisions has not been questioned. If the drafter had followed a different approach in Schedule 3 that would have created an inconsistency that risked calling the meaning of Schedule 2 into question.

5)The provisions in the new Schedule 3 were therefore drafted to ensure that they were consistent with the approach taken in the existing Schedule 2 and to avoid creating confusion over the meaning of the Schedules. We did not want to risk calling the meaning of existing Schedule 2 into question by inconsistent drafting in new Schedule 3. This was particularly so given that the provisions in Schedule 2 have been considered by the Courts.

Department for Work and Pensions

19 December 2023

Appendix 3: Memorandum from the Home Office

S.I. 2023/1245

Immigration Act 2014 (Commencement No. 9) and Immigration Act 2014 (Commencement No. 8) (Revocation) Order 2023The Committee has asked the Home Office for a memorandum on the following point(s):

Given that S.I. 2023/1215 commenced provisions of the Immigration Act 2014 on 28 November 2023, explain the basis on which that instrument was purportedly revoked by article 3 of this instrument also on 28 November 2023, addressing in particular the availability of the implied power in section 14 of the Interpretation Act 1978.

1)As the Department has set out in the Explanatory Memorandum to S.I. 2023/1215, shortly after that order was made it was discovered that it contained an error in article 2 as the day appointed for the coming into force of sections 23(6) and 25(5) of the Immigration Act 2014 was stated to be 28 November 2023, whereas it should have stated 6 December 2023.

2)S.I. 2023/1215, unusually for a commencement order, was subject to the negative procedure. It followed the precedent of the Immigration Act 2014 (Commencement No. 6) Order 2016 (S.I. 2016/11), in that it did not contain a coming into force provision in article 1. In the course of considering how best to address the error that had been identified, the Department considered that there could be scope for confusion as to whether S.I. 2023/1215 came into force on 6 December 2023 (as per the italic coming into force date information) or immediately on making (as is normal for a commencement order and as might be inferred from the lack of a commencement provision in article 1). It was therefore decided revocation would provide greater clarity.

3)The Department relied on section 14(b) of the Interpretation Act 1978 to revoke S.I. 2023/1215 and to provide for revised commencement dates. The Department is mindful that a power to commence a provision of primary legislation may be regarded as spent once that provision has been brought into force. However, the Department considers that by providing (on 21 November) for articles 1 and 3 of S.I. 2023/1245 to come into force on 28 November, S.I. 2023/1215 was revoked from the time when it would have brought into force provisions of the Immigration Act 2014, and therefore those provisions were not brought into force, even momentarily.

4)In hindsight, however, the Department acknowledges that it could have been clearer if the revocation of S.I. 2023/1215 had taken effect before 28 November.

Home Office

19 December 2023

Appendix 4: Voluntary Memorandum from the Foreign, Commonwealth and Development Office

S.I. 2023/1367

Russia (Sanctions) (EU Exit) (Amendment) (No. 5) Regulations 20233

5)The Foreign, Commonwealth and Development Office anticipates that the Committee will request a memorandum on the following points:

whether the department accepts that there was an error in new regulation 60GC(2)(d) of the Russia (Sanctions) (EU Exit) Regulations 2019 (“the Russia Regulations”) which was inserted by regulation 5 of the Russia (Sanctions) (EU Exit) (Amendment) (No. 5) Regulations 2023, and

that being the case, when the department plans to correct the instrument.

6)If the Committee is minded to request such an explanation, the department submits this voluntary memorandum to assist the Committee in its deliberations. The department would not therefore want to take advantage of the opportunity, given to it by House of Commons Standing Order 151(9), to comment further on these points.

7)The department accepts that there was an error in new regulation 60GC(2)(d) of the Russia Regulations in referring to the prohibition at regulation 46Z16O(1)(b) where it should instead have referred to the arrangements falling within regulation 46Z16O(1)(b).

8)The department will be laying an amending instrument in April that will correct this error, and that instrument will come into force as soon after laying as possible. It will be offered free of charge to all known recipients of the instrument and contain the appropriate headnote.

9)We consider that the Russia Regulations can stand as they are in the meantime because whilst the incorrect terminology was used, the meaning of new regulation 60GC(2)(d) of the Russia Regulations remains clear, which is to exclude, from the trade prohibition in the Russia Regulations, brokering services relating to diamonds and diamond jewellery located in the UK or Isle of Man (and lawfully imported here) where those brokering services are provided in relation to the provision of financial services or funds in connection with an arrangement who object or effect is to acquire diamonds or diamond jewellery which originate in or are located in Russia.

10)The department also anticipates that the Committee will want to know what steps the department has taken to ensure that such errors do not occur in future. Due to a truncated timetable to meet a political commitment to make the SI before the end of December 2023 FCDO took the decision to forego JCSI pre-scrutiny. We have reflected on whether our internal checking procedures are robust enough, and concluded that we will always look to include pre-scrutiny where we can to avoid such an issue arising in the future.

Foreign, Commonwealth and Development Office

10 January 2024

Formal Minutes

Wednesday 17 January 2024

Members present

Jessica Morden, in the Chair

Lord Beith

Lord Chartres

Baroness D’Souza

Peter Grant

Damien Moore

Lord Sahota

Baroness Sater

Lord Smith of Hindhead

Lord Watson of Wyre Forest

Report consideration

Draft Report (Eighth 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 3.6 read and agreed to.

Annex agreed to.

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

Resolved, That the Report be the Eighth 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 24 January at 3.40 p.m.


Footnotes

1 A voluntary memorandum from the Department on this instrument has been included in this Report (see Appendix 4)

2 TP and AR No. 3 v SSWP [2022] EWHC 123 (Admin).

3 This relates to a made affirmative instrument that has not been reported listed in the Annex.