This is a House of Lords and House of Commons Committee joint report.
Joint Committee on Statutory Instruments
Date Published: Friday 15 November 2024
At its meeting on 13 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 five of those considered. The instruments and the grounds for reporting are given below. The relevant departmental memoranda are published as appendices to this report.
Procedure: Made negative
1.1 The Committee draws the special attention of both Houses to Regulations on the grounds that they fail to follow proper legislative practice in one respect and are defectively drafted in one respect.
1.2 These Rules amend the Criminal Procedure Rules 2020. The Committee noticed that there appeared to be some small drafting errors. For instance, rule 12(d) purports to insert text into rule 41.4(1) after the words “point of law”; however, those words do not appear in rule 41.4(1). The Committee then noticed that the version of these Rules published by the King’s Printer on the legislation.gov.uk website was materially different from the version sent to the Committee. In particular, the amendment to rule 41.4(1) and other errors had been corrected. The Committee asked the Ministry of Justice to explain.
1.3 In a memorandum printed at Appendix 1, the Department explains that the version published by the King’s Printer is the “intended version” and corrects the errors identified by the Committee. However, the Department states that this published version was not the version that was submitted to the Lord Chancellor for signature, made and laid before Parliament.
1.4 In the Committee’s view what has occurred raises serious concerns; the unpublished version of the instrument is the version that has legal effect. It is a basic feature of the rule of law that the law must be accessible. The creation of secret law is contrary to this principle. Whilst the original errors identified by the Committee were comparatively small scale, the principle could not be more important.
1.5 The Department’s memorandum does not reflect the gravity of this situation. The Department undertakes to amend the version of the instrument that was made in January 2025. That will bring the instrument into line with the “intended version” that is currently published online. However, those proposed amendments would make no sense to the public because they would appear to make amendments where none were needed; only if the public had access to the unpublished version of the instrument would the amendments be intelligible.
1.6 In the Committee’s view, the better solution would be to liaise with the King’s Printer to ensure that the published version of the instrument is the version signed by the Lord Chancellor, and then make the proposed amendments to that version of the instrument. The Committee also expects the Department to put in place arrangements to prevent errors of this kind occurring again. It is essential that the published instrument is the instrument that was signed by the Lord Chancellor and that the version of the instrument sent to the Committee is that published version. Otherwise, the law on the statute book is defective and the Committee’s constitutional role in assuring that the powers granted by Parliament to make delegated legislation are being used properly will be made significantly, and unnecessarily, more difficult. The Committee accordingly reports the instrument for failure to comply with proper legislative practice.
1.7 New rule 9.5(1)(c)(ii) inserted by Schedule 1 includes a reference to the term “low-level shoplifting”. This term is not defined. In its memorandum, the Department explained that this an error; other rules and notes to rules inserted by Schedule 1 use the expression “low-value shoplifting”, the expression defined in section 22A(3) of the Magistrates’ Courts Act 1980. The Department apologises for this error, which it undertakes to correct by a statutory instrument due to be made in January 2025. The Committee accordingly reports Schedule 1 for defective drafting, acknowledged by the Department.
Procedure: Made negative
2.1 The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.
2.2 This Order revokes the London Legacy Development Corporation (Planning Functions) Order 2012 and the Schedule makes related transitional provision. Paragraph 8(7) of that Schedule refers to a neighbourhood development plan proposal to which paragraph 9 applies. However, the Committee noticed that there is no “paragraph 9” in this Order. The Committee asked the Ministry of Housing, Communities and Local Government to explain.
2.3 In a memorandum printed at Appendix 2, the Department states that the reference to paragraph 9 should have been a reference to “paragraph 8”. The Department undertakes to correct the error and has written to the SI Registrar to request a correction slip. Given that the change will be made within paragraph 8, the Committee assumes that “paragraph 9” will actually be replaced with a reference to “this paragraph” as referring to paragraph 8 might create further confusion. The Committee accordingly reports paragraph 8(7) of the Schedule for defective drafting, acknowledged by the Department.
Procedure: Not subject to Parliamentary procedure
3.1 The Committee draws the special attention of both Houses to this Rules on the ground that they fail to follow proper legislative practice in one respect.
3.2 These Rules replaces the Land Charges Fees Rules 1990, making changes to fees for Land Charges applications.
3.3 The Committee noticed that the instrument is signed by Matthew Pennycook, who is identified in the signature block as a Parliamentary Under Secretary but who is in fact a Minister of State. The Committee asked the Ministry of Housing, Communities and Local Government to explain the discrepancy and to clarify the Carltona arrangements within the Department. In a memorandum printed at Appendix 3, the Department confirms that its Carltona arrangements do permit both a Parliamentary Under Secretary and a Minster of State to sign an instrument in these circumstances. It further confirms that this instrument was signed by Matthew Pennycook but that his title was incorrect in the signature block of the instrument. The Committee accordingly reports the instrument for failure to comply with proper legislative practice, acknowledged by the Department.
Procedure: Made negative
4.1 The Committee draws the special attention of both Houses to these Regulations on the grounds that it is defectively drafted in two respects and makes unusual use of the enabling power in another respect.
4.2 These Regulations set out the charges payable in connection with services regarding the recognition of certain overseas qualifications. The Committee asked the Department for Education to explain why regulation 2(1) includes a definition of “refugee organisation” when that term is not used in the instrument.
4.3 In a memorandum printed at Appendix 4, the Department states that this definition is included for the purposes of clarity. The Committee takes the opposite view: unused and superfluous definitions detract from the clarity of instruments because the reader is left wondering what purpose is served by the definition. The Committee accordingly reports regulation 2(1) for defective drafting.
4.4 Schedule 1 provides that an increased fee can be paid for applications to be dealt with under a “super priority service”, which is faster than a “priority service”. The Committee asked the Department why time periods are not specified in relation to these services and noted that the Passport (Fees) Regulations 2022 includes time frames for equivalent priority services.
4.5 In its memorandum, the Department states that the time periods for each service may be variable depending on the application in question. The Department also points to similar terms used in the Nationality (Fees) Regulations 2018. Those terms were inserted into the 2018 Regulations by S.I. 2020/966, which the Committee brought to the attention of both Houses in its Twenty-Ninth Report of Session 2019–21. In its report the Committee expressed concern that the terms “priority service” and “super priority service” fail to make a clear distinction between those two services and do not provide a clear and justiciable legal meaning. Those concerns apply equally to this instrument and the Committee remains unsure whether Parliament could have expected significant fee uplifts to be charged without any clear and justiciable distinction between the lower-priced and the higher-priced services. The Committee accordingly reports Schedule 1 for making unexpected use of the enabling power.
4.6 Schedule 4 sets out charges for ancillary services, which includes the provision of training regarding those ancillary services (Table 1, charges 4.3 and 4.4). This appeared to the Committee to create a circularity because a fee could be paid to understand why the same fee is being paid. In its memorandum, the Department explains that charges 4.3 and 4.4 are intended to cover additional optional training that an organisation, such as a university, may find helpful. The Committee acknowledges that this may be how the charging scheme is intended to operate in practice, but this does not resolve the circularity identified. Accordingly, the Committee reports Schedule 4 for defective drafting in this additional respect.
Procedure: Made negative
5.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to follow proper legislative practice in one respect.
5.2 These Regulations approve a code of practice regarding the management of student living accommodation that is managed or controlled by specified educational establishments.
5.3 The Committee noticed that the instrument is signed by Matthew Pennycook, who is identified in the signature block as a Parliamentary Under Secretary but who is in fact a Minister of State. The Committee asked the Ministry of Housing, Communities and Local Government to explain the discrepancy and to clarify the Carltona arrangements within the Department. In a memorandum printed at Appendix 5, the Department confirms that its Carltona arrangements do permit both a Parliamentary Under Secretary and a Minster of State to sign an instrument in these circumstances. It further confirms that this instrument was signed by Matthew Pennycook but that his title was incorrect in the signature block of the instrument. The Committee accordingly reports the instrument for failure to comply with proper legislative practice, acknowledged by the Department.
At its meeting on 13 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.
S.I. Number |
S.I. Title |
Draft S.I. |
National Security Act 2023 (Consequential Amendment of Primary Legislation) Regulations 2025 |
Draft S.I. |
Police Act 1997 (Authorisations to Interfere with Property: Relevant Offence) Regulations 2025 |
Draft S.I. |
Environmental Permitting (Electricity Generating Stations) (Amendment) Regulations 2024 |
Draft S.I. |
Companies and Limited Liability Partnerships (Protection and Disclosure of Information and Consequential Amendments) Regulations 2024 |
Draft S.I. |
Financial Services and Markets Act 2023 (Addition of Relevant Enactments) Regulations 2024 |
Draft S.I. |
Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) (Northern Ireland) Order 2024 |
Draft S.I. |
Unique Identifiers (Application of Company Law) Regulations 2024 |
Draft S.I. |
Recognition of Professional Qualifications and Implementation of International Recognition Agreements (Amendment) (Extension to Switzerland etc.) Regulations 2024 |
S.I. Number |
S.I. Title |
S.I. 2024/9191 |
Social Security (Scotland) Act 2018 (Disability Assistance) (Consequential Amendments) Order 2024 |
S.I. 2024/990 |
Air Navigation (Amendment) Order 2024 |
S.I. 2024/991 |
Transfer of Functions (Secretary of State for Housing, Communities and Local Government) Order 2024 |
S.I. 2024/1013 |
Payment Services (Amendment) Regulations 2024 |
S.I. 2024/1015 |
Seafarers’ Wages Regulations 2024 |
S.I. 2024/1016 |
Family Procedure (Amendment) Rules 2024 |
S.I. 2024/1017 |
Architects (Fees, Electronic Communications and Miscellaneous Amendments) (Amendment) Regulations 2024 |
S.I. 2024/1019 |
Levelling-up and Regeneration Act 2023 (Miscellaneous Amendment) Regulations 2024 |
S.I. 2024/1024 |
Building Societies Act 1986 (Amendment of Small Business Turnover Limit) Order 2024 |
S.I. Number |
S.I. Title |
S.I. 2024/1018 |
Leasehold and Freehold Reform Act 2024 (Commencement No. 1) Regulations 2024 |
S.I. 2024/1021 |
Investigatory Powers (Amendment) Act 2024 (Commencement No. 1 and Transitional Provisions) Regulations 2024 |
1. The Committee has asked the Ministry of Justice for a memorandum on the following points:
(1) Explain why the instrument laid before Parliament and the version of the instrument that can be found on www.legislation.gov.uk are different (see for example: rule 12(d) making an amendment purportedly after the words “point of law” in the former version and after the words “notice of reference” in the latter; rule 13(a)(v) appearing in the former version but not the latter; and Schedule 2 paragraph 5 containing sub-paragraphs (a) and (b) in the former version but not the latter).
(2) Explain the legal meaning of the term “low-level shoplifting” in new rule 9.5(1)(c)(ii) inserted by Schedule 1.
The Ministry of Justice is grateful for the Committee’s consideration of this instrument. The response to each of the points raised is set out below.
Point (1):
2. The instrument published at https://www.legislation.gov.uk/uksi/2024/842/contents/made is the intended version of the instrument. Rule 12(d) should read “in rule 41.4 (Respondent’s notice) in paragraph (1) after “defendant on whom” insert “under rule 41.2” and after “notice of reference” insert “of a point of law under section 36 of the Criminal Justice Act 1972””. Rule 13(a)(iv) should read “after the seventh paragraph of the note to the rule insert—“Under section 6A(8) or section 6B(7) of the European Union (Withdrawal) Act 2018 a party may appeal to the Supreme Court from a decision of the Court of Appeal on a reference to that court under either of those sections. See also Part 41.””. There should be no rule 13(a)(v). Schedule 2, paragraph 5, should read “In rule 24.11 (Procedure if the court convicts), in the final paragraph of the note to the rule for “9.15” substitute “9.24”.”
3. In error, a draft version of the instrument containing the errors identified by the Committee was submitted to the Lord Chancellor, made, and laid before Parliament. On the following day, the legislation publishers asked for the correction of some web publication errors in the electronic text. Those corrections were provided in the intended text of the instrument: but that was not the text that had been made and laid before Parliament. The department apologises for that and for the drafting errors contained in the instrument as made and laid. Those drafting errors will be corrected by a statutory instrument due to be made in January, 2025.
Point (2):
4. The use of the expression “low-level shoplifting” in new rule 9.5(1)(c)(ii) is an error. Other rules and notes to rules inserted by Schedule 1 use the expression “low-value shoplifting”, the expression defined in section 22A(3) of the Magistrates’ Courts Act 1980 (to which section those notes refer). The department apologises for that further error, which will be corrected by a statutory instrument due to be made in January, 2025.
Ministry of Justice
5 November 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 paragraph 8(7) of the Schedule, explain the reference to “paragraph 9”
2. The department would like to thank the Committee for drawing this to our attention. The reference to “paragraph 9” is an error, and should be a reference to “paragraph 8”. The department apologises for the error and has written to the SI Registrar to request a correction slip.
Ministry of Housing, Communities and Local Government
5 November 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 the signature block, confirm whether the designation Parliamentary Under-Secretary correctly reflects the Carltona arrangements within the Department, in which case explain why a Minister of State has signed, or whether the Carltona arrangements extend to permitting the Minister of State to sign in these circumstances (in which case confirm that Matthew Pennycook is described as a Parliamentary Under-Secretary in error).
2. In the Ministry of Housing, Communities and Local Government, both Ministers of State and Parliamentary Under Secretaries of State are authorised by the Secretary of State to make statutory instruments.
3. The description of Minister Pennycook as a Parliamentary Under Secretary of State in the signature block was an error, but this does not affect the validity of the instrument made.
Ministry of Housing, Communities and Local Government
1 November 2024
1. The Committee has asked the Department of Education for a memorandum on the following point(s):
Explain why the definition of “super priority service” in Schedule 1 does not contain a time period by which a person can distinguish such a service from the “priority service” or alternatively, why both “super priority service” and “priority service” are not defined by reference to time periods (in the same way that S.I. 2022/660 defined different types of service by reference to tangible time periods).
Explain why regulation 2(1) defines “refugee organisation”.
In relation to Schedule 4, explain whether it is intended for a charge to apply in order for a person to understand the charges that apply under regulations 3 to 6. If so, does the lack of clarity derive from the inclusion of “including, but not limited to” in the definitions of certain services in regulation 2.
2. We are grateful for the Committee’s questions, and set out below our response to each of the three points in turn. We hope that our response provides the explanation required.
Question 1:
Following careful consideration, the definitions deliberately do not refer to time periods. This is because:
a. In practice, there is not an absolute fixed timeframe for performance of the service. For example, if there are queries about the application or about the user’s documents, then this may delay completion of the service. Similarly, some applications may require additional research, which means that the evaluation process may take longer. In essence, there are legitimate reasons why time limits would be inappropriate to set out in legislation, given the potential for variation.
b. The definitions of ‘priority service’ and ‘super priority service’ are adapted from the same defined terms in the Immigration and Nationality (Fees) Regulations 2018 (S.I. 2018 No. 330). Although the same supplier delivers services to the Home Office, the services contained in this SI are for different purposes. Given it is necessary to differentiate between the services being provided, the descriptors chosen to differentiate between degrees of expedition were, after careful consideration, thought to the most appropriate and clear for end users.
Question 2:
3. “refugee organisation” is defined for clarity to ensure that a sufficiently wide range of organisations are captured, to reflect those who avail themselves of the service in practice:
a. The start of the definition relating to “organisation” (“includes any body corporate or unincorporated association and any combination of persons”) is to capture not just organisations that are companies, but those that are simply groups of people too. This phrasing is used in the definition of “organisation” in section 379(1) of the Companies Act 2006.
b. The remainder of the definition (“as part of or all of its service, provides help or information to refugees”) is to clarify that a refugee organisation does not have to solely provide services to refugees. It avoids any misinterpretation or queries around the extent to which such organisations must solely or mostly provide services to refugees. We wanted to put beyond doubt that organisations are captured who provide services to those including, but not exclusively constituting, refugees.
Question 3:
4. Please may we just double check whether question 3 is asking whether (on the basis of Schedule 4, combined with the definition in regulation 2) training is needed to explain the full description of all elements of the services? On the assumption that is the question being asked, we have answered as follows:
5. In practice, it is not essential for a service user to undertake training to understand the services referred to in regulations 3 to 6. A service user would be able to understand the available services for free, including by perusing the provider’s website where the services are explained.
6. The charges numbered 4.3 and 4.4 are for additional optional training that the service provider may provide. For example, an organisation (such as a university) may request training from the provider about the services provided in Regulations 3 – 6 and more broadly in relation to the recognition of overseas qualifications.
Department for Education
5 November 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 the signature block, confirm whether the designation Parliamentary Under-Secretary correctly reflects the Carltona arrangements within the Department, in which case explain why a Minister of State has signed, or whether the Carltona arrangements extend to permitting the Minister of State to sign in these circumstances (in which case confirm that Matthew Pennycook is described as a Parliamentary Under-Secretary in error).
2. In the Ministry of Housing, Communities and Local Government, both Ministers of State and Parliamentary Under Secretaries of State are authorised by the Secretary of State to make statutory instruments.
3. The description of Minister Pennycook as a Parliamentary Under Secretary of State in the signature block was an error, but this does not affect the validity of the instrument made.
Ministry of Housing, Communities and Local Government
1 November 2024
1. The Committee has asked the Department for Work and Pensions for a memorandum on the following points:
In relation to article 27(6)(c), explain whether the policy intention was to also insert “pension age disability payment” after “attendance allowance” in paragraph 14(2)(a)(i) of Schedule 4 to S.R. 2006/405.
Explain why the amendment contained in Part 2 only applies to England and Wales.
Article 27
2. Article 27 amends the Housing Benefit Regulations (Northern Ireland) 2006 (S.R. 2006 No. 405) (“the 2006 Regulations”). Regulation 5 of the 2006 Regulations provides that those regulations apply to claimants who have not attained the qualifying age for state pension credit, or who are (or if they have a partner, where the partner is) entitled to the income-related benefits specified.
3. Paragraph 14(2)(a) of Schedule 4 to the 2006 Regulations concerns a single claimant, a lone parent or a person treated as not having a partner. It is therefore necessary for the claimant to be entitled, as a single person, to one of the income-related benefits listed in regulation 5(1)(b) for paragraph 14(2)(a) to apply to that claimant.
4. However, the basic conditions of entitlement for those income-related benefits exclude either claimants who have attained the qualifying age for state pension credit or those who have reached pensionable age. Following the equalisation of pensionable age for men and women, the qualifying age for state pension credit and pensionable age are, in fact, the same age. This means that single claimants of pensionable age will not be entitled to the income-related benefits.
5. Regulation 17(1) of the Disability Assistance for Older People (Scotland) Regulations 2024 (S.S.I. 2024/166) provides that pension age disability payment can only be paid to those who have reached pensionable age.
6. The cohort of claimants of housing benefit that are referred to in paragraph 14(2)(a) would therefore not be eligible to receive pension age disability payment.
7. It was not considered necessary, or appropriate, to insert reference to pension age disability payment into paragraph 14(2)(a). It was also not considered necessary to include in the Explanatory Memorandum an explanation about these claimants to whom the legislation does not apply.
8. However, in paragraph 14(2)(b) of Schedule 4, a reference to pension age disability payment is required because the paragraph provides for circumstances where the claimant or their partner (who may be of working age) receives a disability benefit.
9. Article 28 amends the provision of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006 (S.R. 2006 No. 406) that is equivalent to paragraph 14(2)(a) of Schedule 4 to the 2006 Regs. That is because individuals who have attained the qualifying age for state pension credit are the intended claimant cohort both under those regulations and S.S.I 2024/166. The receipt of pension age disability payment can affect entitlement for claimants who are single, as well as in a couple, under the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006.
Amendment in Part 2
10. As a result of the Scotland Act 2016, it is a function of Scottish Ministers to make secondary legislation, as regards Scotland, under powers relating to carer benefits that pre-dated the amendments to the devolution settlement flowing from the Scotland Act 2016. In other words, in Scotland, the powers in relation to carers allowance are exercisable by Scottish Ministers.
11. The devolution landscape is complex and the power under section 104 of the Scotland Act 1998 has, where appropriate, been used to make provision across Great Britain (and, indeed, Northern Ireland) notwithstanding that consequential amendments could be made by Scottish Ministers insofar as those amendments are to legislation that falls within devolved competence.
12. However, in this particular case, the Scottish Ministers made regulations on 9 May 2024 that included an amendment to regulation 9 of the Social Security (Invalid Care Allowance) Regulations 1976 (insofar as that provision extends to and applies as regards Scotland) to take account of the introduction of pension age disability payment; see the Disability Assistance for Older People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2024 (S.S.I 2024/141), regulation 2.
13. It was therefore appropriate to limit to England and Wales the extent of the consequential amendments made to the same regulation by the Secretary of State. As a result of limiting the extent of Part 2 to England and Wales, the application is necessarily limited to England and Wales as well. The amendments in S.S.I 2024/141 apply in Scotland.
14. This approach respects the devolution settlement and that Scottish Ministers chose to make the consequential amendment for Scotland (that was required due to the introduction of pension age disability payment) via their own legislative vehicle.
Department for Work and Pensions
5 November 2024
Sir Bernard Jenkin, in the Chair
Lewis Atkinson
Lord Beith
Lord Chartres
Claire Hughes
Charlie Maynard
Gordon McKee
Lord Meston
Ms Julie Minns
Lord Sahota
Baroness Sater
Lord Watson of Wyre Forest
Draft 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 5.3 read and agreed to.
Annex agreed to.
Papers were appended to the Report as Appendices 1 to 6.
Resolved, That the Report be the Fifth 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.
Adjourned till Wednesday 20 November at 3.40 p.m.
1 This Committee requested a memorandum on this instrument and a satisfactory response was received. The memorandum is appended to this Report as Appendix 6.