Instruments reported
At its meeting on 25 June 2025 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 two of those considered. The instruments and the grounds for reporting are given below. The relevant departmental memoranda are published as appendices to this report.
1 S.I. 2025/558: Reported for failure to comply with proper legislative practice
The Police (Conduct, Performance and Complaints and Misconduct) (Amendment) Regulations 2025
Procedure: Made negative
1.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in one respect.
1.2 These Regulations make changes to regulations which determine the processes for police officer dismissals. Regulations 7, 10 and 14 correct errors in earlier regulations. Current legislative practice requires that where an instrument introduces new amending provisions at the same time as correcting a defective instrument, a department should consult with the S.I. Registrar as to whether to provide free replacement copies of the instrument to everyone who received the original instrument. The Committee asked the Home Office to explain whether this consultation took place.
1.3 In a memorandum printed at Appendix 1, the Department explains that it did not consult the S.I. Registrar before these Regulations were made but has subsequently done so. The Department undertakes to consult the S.I. Registrar in good time before correcting defective instruments in the future. The Committee notes that in accordance with paragraph 4.7.6 of Statutory Instrument Practice, when a defective instrument is corrected, the Explanatory Memorandum should state whether or not the free issue procedure has been applied together with the reasons for the decision. The Committee accordingly reports regulations 7, 10 and 14 for failure to comply with proper legislative practice, acknowledged by the Department.
2 S.I. 2025/571: Reported for doubt as to vires
The Wireless Telegraphy (Spectrum Trading and Register) (Amendment) Regulations 2025
Procedure: Not subject to Parliamentary procedure
2.1 The Committee draws the special attention of both Houses to these Regulations on the ground that there is doubt as to whether they are intra vires in one respect.
2.2 Regulation 3 of these Regulations enables Ofcom to provide information about the additional shared access licences (referred to in regulation 2) in its Wireless Telegraphy Register. Section 31(2) of the Wireless Telegraphy Act 2006 allows Ofcom to include relevant information in the register “if, and only if” it is relevant information of a description prescribed by regulations under that section. However, section 31(2) is not cited in the preamble and the Committee asked Ofcom to explain the exclusion.
2.3 In a memorandum printed at Appendix 2, the Department accepts that section 31(2) should have been cited in the preamble (even though its initial view was that section 31(1) which provides the Department with the power by regulations to “make provision for the establishment and maintenance of a register of relevant information” was sufficient). The Committee agrees that the citation of section 31(1) may have been sufficient were it not for the more specific power in section 31(2). Where a specific power is available for any provision, that power should be relied upon rather than any general power which could arguably enable the same provision. 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 3 for doubt as to whether it is intra vires, acknowledged by the Department.
Instruments not reported
At its meeting on 25 June 2025 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
|
S.I. Numbers |
S.I. Title |
|
S.I. 2023/1144 |
|
|
S.I. 2023/1220 |
The Electronic Communications Code (Jurisdiction) (Amendment) Regulations 2023 |
|
S.I. 2024/708 |
The Code of Practice (Dismissal and Re-engagement) Order 2024 |
|
S.I. 2024/832 |
The Human Medicines (Amendments relating to the Windsor Framework) Regulations 2024 |
|
S.I. 2025/604 |
The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2025 |
|
S.I. 2025/638 |
|
|
S.I. 2025/651 |
The Register of Overseas Entities (Annotation) Regulations 2025 |
|
S.I. 2025/658 |
Draft instruments subject to annulment
|
S.I. Numbers |
S.I. Title |
|
Draft |
Appendix 1: Memorandum from the Home Office
S.I. 2025/558
The Police (Conduct, Performance and Complaints and Misconduct) (Amendment) Regulations 2025
1. The Committee has asked the Home Office for a memorandum on the following point(s):
Given that regulations 7, 10 and 14 correct errors in S.I. 2020/4, explain whether the S.I. Registrar was consulted as to whether the free issue procedure should apply.
2. The Home Office did not consult the S.I. Registrar as to whether the free issue procedure should apply before these Regulations were made. The Home Office has apologised to the S.I. Registrar for this oversight and apologises now to the Committee.
3. The S.I. Registrar has subsequently confirmed that the free issue procedure does not apply. This is because these Regulations qualify for an exemption on the basis of proportionality.
4. The Home Office acknowledges paragraph 4.7.6 of Statutory Instrument Practice. It will seek to consult the S.I. Registrar in good time before correcting defective instruments in the future.
Home Office
16 June 2025
Appendix 2: Memorandum from the Office of Communications
S.I. 2025/571
The Wireless Telegraphy (Spectrum Trading and Register) (Amendment) Regulations 2025
1. The Committee has asked the Office of Communications for a memorandum on the following point(s):
Explain why it was not considered necessary to cite section 31(2) of the Wireless Telegraphy Act 2006 in the preamble.
2. The Office of Communications (‘Ofcom’) is grateful for the Committee’s consideration of this instrument and for bringing this point to Ofcom’s attention.
3. Ofcom’s initial view had been that, insofar as the Regulations are amending the Wireless Telegraphy (Register) Regulations 2012 (‘the Register Regulations’), it would be sufficient to reference section 31(1) of the Wireless Telegraphy Act 2006 (‘the Act’) as the enabling provision from which the Regulations derive their validity. This is because section 31(1) provides Ofcom with the power “by Regulations to make provision for the establishment and maintenance of a register of relevant information”.
4. It was not clear to us that it would be necessary to cite section 31(2) of the Act in the preamble as we read that provision as being prohibitive in nature (i.e. Ofcom cannot include information in the Wireless Telegraphy Register unless that information is specified in regulations). Our initial view was that section 31(1) is by itself sufficiently broad to enable the instrument to be made in its current form, and that section 31(2) provided additional detail rather than conferring on Ofcom an enabling power.
5. However, we recognise that the Register Regulations do themselves cite section 31(2) of the Act in their preamble and that our decision to not cite section 31(2) was an error.
6. We apologise and would of course welcome the Committee’s views regarding what steps (if any) Ofcom should take to rectify this. We also thank the Committee again for bringing this point to Ofcom’s attention.
Office of Communications
16 June 2025
Formal Minutes
Wednesday 25 June 2025
Members present
Lord Brady of Altrincham
Lord Carter of Haslemere
Helena Dollimore
Lord Meston
Andrew Pakes
David Pinto-Duschinsky
Lord Sahota
Baroness Sater
Gareth Snell
Lord Watson of Wyre Forest
In the absence of the Chair, Baroness Sater was called to the chair.
Report consideration
Draft Report (Twenty-ninth 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 2.3 read and agreed to.
Annex agreed to.
Papers were appended to the Report as Appendices 1 to 2.
Resolved, That the Report be the Twenty-ninth 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 2 July at 3.40 p.m.
List of Reports from the Committee during the current Parliament
All publications from the Committee are available on the publications page of the Committee’s website.
Session 2024–25
|
Number |
Title |
Reference |
|
28th |
1 Statutory Instrument Reported |
HC 291-xxviii |
|
27th |
3 Statutory Instruments Reported |
HC 291-xxvii |
|
26th |
3 Statutory Instruments Reported |
HC 291-xxvi |
|
25th |
2 Statutory Instruments Reported |
HC 291-xxv |
|
24th |
2 Statutory Instruments Reported |
HC 291-xxiv |
|
23rd |
2 Statutory Instruments Reported |
HC 291-xxiii |
|
22nd |
3 Statutory Instruments Reported |
HC 291-xxii |
|
21st |
2 Statutory Instruments Reported |
HC 291-xxi |
|
20th |
5 Statutory Instruments Reported |
HC 291-xx |
|
19th |
No Statutory Instruments Reported |
HC 291-xix |
|
18th |
2 Statutory Instruments Reported |
HC 291-xviii |
|
17th |
No Statutory Instruments Reported |
HC 291-xvii |
|
16th |
1 Statutory Instrument Reported |
HC 291-xvi |
|
15th |
1 Statutory Instrument Reported |
HC 291-xv |
|
14th |
No Statutory Instruments Reported |
HC 291-xiv |
|
13th |
8 Statutory Instruments Reported |
HC 291-xiii |
|
12th |
2 Statutory Instruments Reported |
HC 291-xii |
|
11th |
2 Statutory Instruments Reported |
HC 291-xi |
|
10th |
2 Statutory Instruments Reported |
HC 291-x |
|
9th |
2 Statutory Instruments Reported |
HC 291-ix |
|
8th |
4 Statutory Instruments Reported |
HC 291-viii |
|
7th |
1 Statutory Instrument Reported |
HC 291-vii |
|
6th |
4 Statutory Instruments Reported |
HC 291-vi |
|
5th |
5 Statutory Instruments Reported |
HC 291-v |
|
4th |
2 Statutory Instruments Reported |
HC 291-iv |
|
3rd |
10 Statutory Instruments Reported |
HC 291-iii |
|
2nd |
No Statutory Instruments Reported |
HC 291-ii |
|
1st |
2 Statutory Instruments Reported |
HC 291-i |