Fourth Report of Session 2024–25

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

2 Statutory Instruments Reported

Author: Joint Committee on Statutory Instruments

Date Published: Friday 8 November 2024

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Contents

Instruments reported

At its meeting on 6 November 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 2 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 Draft S.I.: Reported for defective drafting

Draft Gloucestershire (Electoral Changes) Order 2024

Procedure: Draft negative

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

1.2 This draft Order changes the electoral arrangements for Gloucestershire. In doing so, it provides that changes to the electoral divisions are to come into force on 15 October 2024 (article 1(3)(a)). At the time the Committee scrutinised this instrument this date was in the past and so if the Order was made it would appear to have retrospective effect. Given that retrospective provision usually needs to be expressly authorised by the enabling power, the Committee asked the Local Government Boundary Commission for England to explain if that was the intended effect and, if so, what power was relied upon.

1.3 In a memorandum printed at Appendix 1, the Department explains that the reference to 15 October 2024 is incorrect and that the changes to the electoral divisions were intended to come into effect the day after the Order was made. It undertakes to withdraw the draft Order and relay a corrected version as soon as possible. The Committee understands that delays can occur when making legislation but stresses that where an instrument refers to specific dates, it is important to check that these dates do not accidentally purport to have retrospective effect if that is not the intention. The Committee accordingly reports article 1(3)(a) for defective drafting, acknowledged by the Department.

2 S.I. 2024/1007: Reported for defective drafting

Council Tax (Prescribed Classes of Dwellings and Consequential Amendments) (England) Regulations 2024

Procedure: Made Negative

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

2.2 These Regulations set out several exceptions from council tax premiums that can be charged on second homes and empty homes. These include exceptions that are intended to relate to dwellings that are being marketed for sale and dwellings that are being marketed for let (referred to in the Regulations as Class G and Class H respectively (regulation 2(5)).

2.3 The exception for dwellings that are being marketed for sale is set out as follows—

“The class of dwellings described in this regulation (“Class G”) comprises every chargeable dwelling in England—

(a) that is being marketed for sale at a price that is reasonable for the sale of the dwelling,

(b) in relation to which an offer to purchase the dwelling has been accepted (whether or not the acceptance is subject to contract) but the sale has not been completed[…]”

2.4 The exception for dwellings that are being marketed for let is set out in similar terms.

2.5 The Committee asked the Ministry of Housing and Communities and Local Government to explain whether paragraphs (a) and (b) are intended to be read conjunctively (and separated by an “and”) or disjunctively (and separated by an “or”).

2.6 In a memorandum printed at Appendix 2, the Department explains that paragraphs (a) and (b) are intended to work disjunctively and so should have been separated by an “or”. The Department undertakes to correct this error as soon as practicable. The Committee notes that this error may render new Class G and Class H ineffective. The Committee accordingly reports regulation 2(5) for defective drafting, acknowledged by the Department.

2.7 The Committee also noticed that the way in which regulation 2(5) defines what amounts to marketing a dwelling for sale appeared unclear. This is set out as follows—

“For the purposes of this regulation—

(a) marketing a dwelling for sale includes the marketing for sale of—

(i) the freehold; or

(ii) a leasehold for a term of seven years or more[…]”

2.8 The Committee asked the Department to explain whether this definition is intended to be non-exhaustive (as indicated by the word “includes”), thereby allowing for other forms of transaction to potentially come within that definition.

2.9 In its memorandum, the Department confirms that the intention is for the definition to be exhaustive and accepts the uncertainty created by the non-exhaustive definition. The Department undertakes to correct this error as soon as possible. The Committee accordingly further reports regulation 2(5) for defective drafting in this additional respect, acknowledged by the Department.

Instruments not reported

At its meeting on 4 November 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

Draft instruments requiring
affirmative approval

S.I. Number

S.I. Title

Draft

Barnsley and Sheffield (Boundary Change) Order 2024

Draft

Aviation Safety (Amendment) Regulations 2024

Draft

Environmental Protection (Single-use Vapes) (England) Regulations 2024

Draft

Insurance Distribution (Regulated Activities and Miscellaneous Amendments) Regulations 2024

Draft

Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024

Draft

Contracts for Difference (Miscellaneous Amendments) Regulations 2024

Draft

Movement of Goods (Northern Ireland to Great Britain) (Animals, Feed and Food, Plant Health etc.) (Transitory Provision and Miscellaneous Amendments) Regulations 2024

Draft

Road Transport (International Passenger Services) (Amendment) Regulations 2024

Draft

Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2025

Instruments subject to annulment

S.I. Number

S.I. Title

S.I. 2024/809

Electricity (Individual Exemption from the Requirement for a Supply Licence) (Green Volt) (Scotland) Order 2024

S.I. 2024/815

Illegal Migration Act 2023 (Amendment) Regulations 2024

S.I. 2024/819

Electricity (Class Exemptions from the Requirement for a Licence) (Amendment) Order 2024

S.I. 2024/822

Social Security (Contributions) (Amendment No. 4) Regulations 2024

S.I. 2024/830

Goods Vehicles (Licensing of Operators and International Road Transport Permits) (Amendment) Regulations 2024

S.I. 2024/841

M6 Motorway (Junctions 21a to 26) (Variable Speed Limits) Regulations 2024

S.I. 2024/868

Medicines (Gonadotrophin-Releasing Hormone Analogues) (Emergency Prohibition) (Extension) Order 2024

S.I. 2024/869

Social Fund Winter Fuel Payment Regulations 2024

S.I. 2024/880

Local Government Pension Scheme (Information) Regulations 2024

S.I. 2024/889

Civil Legal Aid (Standard Civil Contract - Miscellaneous Amendments) Regulations 2024

S.I. 2024/892

Charges for Residues Surveillance (Amendment) (England) Regulations 2024

S.I. 2024/893

Warm Home Discount (Reconciliation) (Amendment) Regulations 2024

S.I. 2024/894

National Health Service (Pharmaceutical and Local Pharmaceutical Services) (Amendment) (No. 2) Regulations 2024

S.I. 2024/895

Personal Injuries (NHS Charges) (Amounts) (Amendment) (No. 2) Regulations 2024

S.I. 2024/8981

Social Fund Winter Fuel Payment (Amendment) Regulations 2024

Draft instruments subject to annulment

S.I. Number

S.I. Title

Draft

Calderdale (Electoral Changes) Order 2024

Draft

Essex (Electoral Changes) Order 2024

Draft

Worcestershire (Electoral Changes) Order 2024

Instruments not subject to Parliamentary proceedings laid before Parliament

S.I. Number

S.I. Title

S.I. 2024/963

Insolvency Proceedings (Fees) (Amendment) Order 2024

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. Number

S.I. Title

S.I. 2024/824

Higher Education (Freedom of Speech) Act 2023 (Commencement No. 2) (Revocation) Regulations 2024

S.I. 2024/836

Police and Crime Commissioner Elections (Designation of Local Authorities and Police Area Returning Officers) (Amendment) Order 2024

S.I. 2024/935

Agricultural Credits Fees Order 2024

S.I. 2024/951

United Lincolnshire Hospitals National Health Service Trust (Establishment) (Amendment) Order 2024

S.I. 2024/957

Energy Act 2023 (Commencement No. 3) Regulations 2024

S.I. 2024/976

Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 2 and Saving Provisions) (Revocation) Regulations 2024

S.I. 2024/993

National Security Act 2023 (Sovereign Base Areas) Order 2024

Appendix 1: Memorandum from the Local Government Boundary Commission for England

Draft S.I.

Gloucestershire (Electoral Changes) Order 2024

1. The Committee has asked the Local Government Boundary Commission for England for a memorandum on the following point(s):

‘Explain whether article 3 will have retrospective effect by virtue of article 1(3)(a) when this Order is made and if so, explain which enabling power is being relied on for such a retrospective provision.’

2. In response, we can confirm that the text in article 1(3)(a) is incorrect. It should read:

“(3) Article 3 comes into force—

(a) for the purpose of proceedings preliminary or relating to the election of councillors, on the day after the day on which this Order is made;”.

3. The Commission both notes and apologises for this error. It will withdraw this draft statutory instrument and re-lay it as soon as possible.

Local Government Boundary Commission for England

29 October 2024

Appendix 2: Memorandum from the Ministry of Housing, Communities and Local Government

S.I. 2024/1007

Council Tax (Prescribed Classes of Dwellings and Consequential Amendments) (England) Regulations 2024

1. The Committee has asked the Ministry of Housing, Communities and Local Government for a memorandum on the following point(s):

In relation to new Class G and H (new regulations 11 and 12, inserted by regulation 2(5)), explain whether in paragraph (1) of both regulations sub-paragraphs (a) and (b) are intended to be read conjunctively or disjunctively.

In relation to regulation 11(3) (inserted by regulation 2(5)), explain whether the definition of marketing a dwelling for sale was intended to be non-exhaustive, thereby allowing for other forms of transaction to potentially come within that definition.

2. The intention in relation to paragraph (1) of new regulations 11 and 12 is that (a) and (b) should be read disjunctively. The department accepts that this could have been made clearer by the inclusion of “or” at the end of (a), in each case.

3. The intention in relation to new regulation 11(3) is for the definition to be exhaustive, including only the matters contained in (a) and (b). The department accepts that the word “includes” in the opening words of paragraph (3)(a) might suggest that the definition is intended to be non-exhaustive.

4. The department is grateful to the Committee for drawing these matters to its attention and will amend the regulations in relation to both matters as soon as practicable.

Ministry of Housing, Communities and Local Government

28 October 2024

Appendix 3: Voluntary Memorandum from the Department for Work and Pensions 2

S.I. 2024/869

Social Fund Winter Fuel Payment Regulations 2024

and

S.I. 2024/898

Social Fund Winter Fuel Payment (Amendment) Regulations 2024

1. This is a voluntary memorandum produced by the Department for Work and Pensions to apologise to the Committee for minor errors in the Social Fund Winter Fuel Payment Regulations 2024 (S.I. 2024/869). We have made the Social Fund Winter Fuel Payment (Amendment) Regulations 2024 (S.I. 2024/898) to correct those errors. We would be grateful if this memorandum could be brought to the attention of the Committee for consideration with those instruments.

2. S.I. 2024/869 was drafted over a 3-week period, was made and laid on 22 August 2024 and comes into force on 16 September 2024, complying with the 21-day rule. Some minor errors have since been identified in regulation 7(1) of, and Schedule 2 to, S.I. 2024/869. Regulation 7(1) makes provision for the revocation of various statutory instruments as set out in Schedule 2.

3. S.I. 2024/898 amends regulation 7(1) of, and Schedule 2 to, S.I. 2024/869. Regulation 7(1) is amended by adding after “Regulations” the additional words “and Orders” to make it clear that provisions of both Regulations and Orders are being revoked and not just Regulations. The heading to Schedule 2, and the heading to the first column of the table in that Schedule, are similarly amended for the same purpose.

4. Row 11 of the table of revocations in Schedule 2 to S.I. 2024/869 mistakenly revokes paragraph 34 of Schedule 3 to the Civil Partnership (Pensions, Social Security and Child Support) (Consequential, etc Provisions) Order 2005 (S.I. 2005/2877) whereas it should revoke paragraph 32 of Schedule 3 to that instrument.

5. Paragraph 34 of Schedule 3 to S.I. 2005/2877 amends the Social Security (Loss of Benefit) Regulations 2001 (S.I. 2001/4022) whereas paragraph 32 of Schedule 3 to S.I. 2005/2877, the provision that we intended to revoke, amends the Social Fund Winter Fuel Payment Regulations 2000 (S.I. 2000/729), which are themselves revoked by row 1 of Schedule 2 to S.I. 2024/869.

6. Social Care Act 2008 (Miscellaneous Consequential Amendments) Order 2010 (S.I. 2010/1881) and is amended by S.I. 2024/898 to refer to Article 10 of that instrument rather than to refer incorrectly to Regulation 10.

7. The amendments in S.I. 2024/898 will come into force immediately before the 2024 Regulations. This ensures that the unintended revocation of S.I. 2001/4022 will never be made and that the intended revocation of S.I. 2005/2877 will be happen at the correct time when S.I. 2024/869 comes into force. As a result, this instrument will unfortunately breach the 21-day rule. We have made S.I. 2024/898 as quickly as possible once we identified the errors and commenced it as late as possible to give Parliament as much time as possible to consider S.I. 2024/898 before it comes into force. We apologise that S.I. 2024/898 nevertheless breaches the 21-day rule.

Department for Work and Pensions

3 September 2024

Formal Minutes

Wednesday 6 November 2024

Members present

Sir Bernard Jenkin, in the Chair

Lord Beith

Lord Chartres

Mark Ferguson

Charlie Maynard

Lord Meston

Julie Minns

Lord Sahota

Baroness Sater

Lord Watson of Wyre Forest

Report consideration

Draft Report (Fourth 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 2.9 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 3.

Resolved, That the Report be the Fourth 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 13 November at 3.40 p.m.


Footnotes

1 The Committee received a voluntary memorandum for these instruments, published as Appendix 3.

2 This memorandum relates to two instruments not drawn to the Houses’ attention (see Annex)