Second Report of Session 2023–24

Instruments reported

At its meeting on 15 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 one of those considered. The instrument and the grounds for reporting are given below. The relevant departmental memorandum is published as an appendix to this report.

1S.I. 2023/956: Reported for defective drafting

Windsor Framework (Financial Assistance) (Marking of Retail Goods) Regulations 2023

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

1.2This instrument, which is subject to the negative resolution procedure, establishes a financial assistance scheme to support businesses in implementing new labelling requirements under the Windsor Framework. Regulation 11 creates a right of appeal and the process by which that right can be exercised. It requires the Secretary of State to “appoint a person or persons, up to a maximum of three (‘the appointed person’) to consider an appeal” (paragraph (3)); “the appointed person” must, upon considering the appeal, report in writing to the Secretary of State containing conclusions and a recommendation as to how the appeal should be determined (paragraph (4)). It was not clear to the Committee whether the expression “the appointed person” is intended, where more than one person is appointed, to refer to the panel as a whole or to each individual member. It asked the Department for Environment, Food and Rural Affairs to explain.

1.3In a memorandum printed at Appendix 1, the Department explains that the term is meant to refer to the panel as a whole. The Committee is concerned that the drafting of regulation 11(3) is not sufficiently clear to achieve this policy intent, especially having regard to the presumption that words in the singular include the plural. This leads to a further lack of clarity as to whether the duty to report with conclusions and a recommendation is intended to be conferred on the panel or on its individual members, which is only resolved by reference to the Department’s stated intention as to the meaning of “the appointed person”, not easily from the drafting itself. The Committee accordingly reports regulation 11(3) for defective drafting.

Instruments not reported

At its meeting on 15 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

Instruments subject to annulment

Draft instruments subject to annulment

Instruments not subject to Parliamentary proceedings not laid before Parliament

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

S.I. 2023/956

Windsor Framework (Financial Assistance) (Marking of Retail Goods) Regulations 2023

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

In relation to regulation 11(3) and (4), explain—

(1) whether the term “the appointed person” is intended to refer to each individual person appointed to consider an appeal or, where more than one is appointed, to the appeals panel as a whole; and

(2) where more than one person is appointed—(a) whether the duty in paragraph (4) is intended to be conferred on each

appointed individual or on the whole panel collectively; and

(b) if the former, how disagreement between or among the appointed individuals as to the conclusions and recommendation is intended to be resolved.

Question 1

2. In relation to regulation 11(3) and (4), the term “appointed person” is intended to refer to the appeals panel as a whole, in the event that more than one person is appointed.

Question 2

3. Where more than one person is appointed, the normal expectation is that having

considered the appeal, one report is provided to the Secretary of State with a single

agreed set of conclusions and a recommendation as to the manner in which the

matter should be finally determined by the Secretary of State.

4. In the event of disagreement between or among the appointed individuals, the

Department would encourage the resolution of any such disagreements within the

panel before the report was prepared. However, in the Department’s view, the

wording of regulation 11(4) does not preclude the possibility of the report and its

conclusions and recommendations mentioning that individual panel members do not

support particular conclusions or recommendations.

5. The only decision taken in this situation is the one taken by the Secretary of State

under regulation 11(5), who will be able to reach a single conclusion and decision on

all aspects of the appeal. The appointed person’s role is to assist with that decision

making process and we consider that it will in practice do so.

Department for Environment, Food and Rural Affairs

31 October 2023

Formal minutes

Wednesday 15 November 2023

Members present

Jessica Morden, in the Chair

Lord Beith

Lord Chartres

Peter Grant

Lord Sahota

Baroness Sater

Lord Smith of Hindhead

Liz Twist

Report consideration

Draft Report (Second 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 1.3 read and agreed to.

Annex agreed to.

A Paper was appended to the Report as Appendix 1.

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.

Adjournment

Adjourned till Wednesday 22 November at 3.40 p.m.