Sixth Report of Session 2024-25

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

4 Statutory Instruments Reported

Author: Joint Committee on Statutory Instruments

Date Published: Friday 22 November 2024

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Contents

Instruments reported

At its meeting on 20 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 four 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. 2024/839: Reported for elucidation re: whether free issue procedure is appropriate

Civil Procedure (Amendment No. 3) Rules 2024

Procedure: Made negative

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

1.2 These Rules amend the Civil Procedure Rules 1998. Paragraph 5.11 of the Explanatory Memorandum indicates that various minor corrections to address inaccurate cross references were made. Current legislative practice requires that where an instrument introduces new amending provisions at the same time as correcting a defective instrument, the 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 Ministry of Justice to explain whether this consultation took place. In a memorandum printed at Appendix 1, the Department confirms that it did consult the S.I. Registrar and a decision was taken that, given the brevity and minor nature of the corrections, it was disproportionate to use the free issue procedure. The Committee notes that in accordance with paragraph 4.7.6 of Statutory Instrument Practice (5th Edition), the Explanatory Memorandum should have stated whether or not the free issue procedure was applied together with the reasons for the decision. The Committee accordingly reports these Regulations for requiring elucidation, provided by the Department.

2S.I. 2024/853: Reported for regulations being subject to unstated further modifications as are necessary

Windsor Framework (Retail Movement Scheme: Plant and Animal Health) (Amendment) (Etc.) Regulations 2024

Procedure: Made negative

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

2.2 These Regulations implement the Windsor Framework in respect of the movement of certain retail goods from Great Britain to Northern Ireland. Regulation 9(1) provides that the provisions listed in regulation 6(2) which impose entry conditions regarding animal health are to be interpreted “with such further modifications as are necessary” to ensure they operate effectively in relation to poultry meat products from China or Thailand entering Great Britain. The Committee asked the Department for Environment, Food and Rural Affairs to explain the circumstances that this is intended to cover, who in practice will decide when it is necessary to apply the legislation with such further modifications and why it is not possible to set out these further modifications given that they will have legal effect.

2.3 In a memorandum printed at Appendix 2, the Department explains that the wording “such further modifications as are necessary” is intended to account for any additional modifications unforeseen during the drafting of the Regulations which might otherwise produce an illogical or absurd result. The Department states that it will ultimately be for a court to determine when it is necessary to construe the relevant provisions with further modifications.

2.4 As stated in its Eighth Report of Session 2023/24 in relation to S.I. 2023/959, the Committee deprecates this approach; legislation should not leave gaps that users of legislation are left to fill to determine the correct legal position. Although the Committee agrees that it will ultimately be for a court to determine when it is necessary to construe the relevant provisions with further modifications, it notes that in the first instance it will be the Department’s view on what further modifications are necessary that will take effect. Accordingly, this approach provides the Department with significant practical influence in determining whether it is necessary to fill any legislative gaps. This is neither a transparent nor accountable way to approach legislation and provides no opportunity for Parliament to scrutinise the proposed application of that legislation. The Committee accordingly reports regulation 9(1) for making an unusual use of the enabling power.

2.5 In the Committee’s view, if the Department becomes aware of a need to further modify these Regulations, it would be proper legislative practice for the Department to amend this instrument at that time.

3S.I. 2024/858: Reported for defective drafting of commencement provision

Media Act 2024 (Commencement No.1) Regulations 2024

Procedure: Not subject to Parliamentary procedure

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

3.2 These Regulations bring into force certain provisions of the Media Act 2024. Regulation 4(b) and (c) provides for paragraphs 53 and 54 of Schedule 4 to respectively come into force on the dates on which paragraphs 5 and 6 of Schedule 12 to the Communications Act 2003 come into force. However, regulation 2(1)(x) appears to have brought those paragraphs into force on 23 August 2024. The Committee asked the Department of Culture, Media and Sport to explain the discrepancy.

3.3 In a memorandum printed at Appendix 3, the Department acknowledges that paragraphs 53 and 54 should also have been included in the carve out in regulation 2(1)(x) and confirms that those paragraphs are intended to come into force in accordance with regulation 4(b) and (c). The Department asserts that it is sufficiently clear that regulation 4(b) and (c) should take precedence and that therefore no correction is needed. The Committee does not share the Department’s confidence as to the legislative intent and considers that a correction is preferable. The Committee accordingly reports regulation 2(1)(x) for defective drafting, acknowledged by the Department.

4S.I. 2024/896: Reported for failure to cite statutory pre-condition in the preamble

Ionising Radiation (Medical Exposure) (Amendment) Regulations 2024

Procedure: Made negative

4.1 The Committee draws the special attention of both Houses to these Regulations on the grounds that they fail to comply with proper legislative practice in one respect.

4.2 These Regulations make amendments to the Ionising Radiation (Medical Exposure) Regulations 2017 to reflect current healthcare delivery practices. Regulation 5 relates to the processing of personal data. Article 36(4) of the UK General Data Protection Regulation (EU 2016/679) requires consultation with the Information Commissioners Office where a legislative measure relates to processing. In paragraph 7.2 of the Explanatory Memorandum, the Department of Health and Social Care confirms that this consultation took place. The Committee asked the Department to explain why this consultation is not also recited in the preamble.

4.3 In a memorandum printed at Appendix 4, the Department explains that it did not consider it necessary to recite the consultation in the preamble as the requirement is not contained in the enabling Act (as stated in paragraph 3.11.28 of Statutory Instrument Practice (5th Edition)). In the Committee’s view, given the proliferation of certain statutory pre-conditions beyond the enabling Act, it is good legislative practice to cite in the preamble all relevant statutory pre-conditions. This includes those pre-conditions that require a certain step or event to have occurred before the power to make the provision can be exercised. The Committee accordingly reports the preamble for failure to comply with proper legislative practice.

Instruments not reported

At its meeting on 20 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 S.I.

Draft Local Digital Television Programme Services (Amendment) Order 2024

Draft S.I.

Draft Silicon Valley Bank UK Limited Compensation Scheme Order 2024

Draft S.I.

Draft Financial Services and Markets Act 2000 (Designated Activities) (Supervision and Enforcement) Regulations 2024

Draft S.I.

Draft Financial Services and Markets Act 2000 (Ring-fenced Bodies, Core Activities, Excluded Activities and Prohibitions) (Amendment) Order 2024

Draft S.I.

Draft Representation of the People (Northern Ireland) (Amendment) Regulations 2025

Draft S.I.

Draft Short Selling Regulations 2024

Instruments subject to annulment

S.I. Number

S.I. Title

S.I. 2024/908

Education (School Inspection) (England) (Amendment) Regulations 2024

S.I. 2024/946

Mali (Sanctions) (EU Exit) (Amendment) and Sanctions (Miscellaneous Amendments) Regulations 20241

S.I. 2024/915

Land Compensation (Additional Compensation) (England) Regulations 2024

S.I. 2024/920

Police Pensions (Employer Contributions) (Amendment) Regulations 2024

S.I. 2024/928

Immigration and Nationality (Fees) (Amendment) Regulations 2024

S.I. 2024/934

Teesport (Extension of Limits) Harbour Revision Order 2024.

S.I. 2024/948

Trade, Aircraft and Shipping Sanctions (Civil Enforcement) Regulations 2024

S.I. 2024/949

Supreme Court Rules 2024

S.I. 2024/954

Gas and Electricity Regulated Providers (Redress Scheme) (Amendment) Order 2024

S.I. 2024/964

Social Security (Infected Blood Capital Disregard) (Amendment) Regulations 2024

S.I. 2024/989

Scotland Act 1998 (Agency Arrangements) (Specification) Order 2024

S.I. 2024/1029

Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) (Amendment No. 2) Order 2024

Appendix 1: Memorandum from the Ministry of Justice

S.I. 2024/839

The Civil Procedure (Amendment No. 3) Rules 2024

1. The Committee has asked the Ministry of Justice for a memorandum on the following points:

Given that this instrument addresses inaccurate cross references (as stated in paragraph 5.11 of the Explanatory Memorandum), explain whether the S.I. Registrar was consulted as to whether the free issue procedure should be used.

2. The Ministry of Justice is able to confirm to the Committee that the Ministry engaged with the S.I Registrar as to whether the free issue procedure should be used in relation to the instrument in July 2024.

3. The S.I Registrar explained to the Ministry that while there was an argument that the free issue procedure should always be used, given the brevity and minor nature of the correction, the Ministry could take the view that it would be disproportionate in this instance to use the free issue procedure. The S.I Registrar was clear that it was ultimately a decision for the Ministry.

4. Following those communications, the Ministry took the view that it was disproportionate in this instance to use the free issue procedure and as such, the free issue procedure was not used.

Ministry of Justice

12 November 2024

Appendix 2: Memorandum from the Department for Environment, Food and Rural Affairs

S.I. 2024/853

Windsor Framework (Retail Movement Scheme: Plant and Animal Health) (Amendment) (Etc.) Regulations 2024

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 9(1), explain the intended effect of applying the relevant provisions subject to “such further modifications as [are] necessary”.

In particular, explain—

(1) the circumstances this is intended to cover (including an explanation of how this will result in the relevant provisions operating “effectively in relation to the entry into Great Britain of poultry meat products from” China and Thailand);

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

(3) why it is not possible to set out these further modifications in legislation, given that they will have legal effect.

Question 1

2. Regulation 6 incorporates relevant provisions of EU law (as defined in regulation 6(2)) into the domestic law of Great Britain, but only in relation to the entry of specified goods.

3. The incorporated provisions are subject to the interpretative provisions set out in regulation 9 and regulation 10(3). Those interpretative provisions are intended to ensure that the relevant provisions can be read so as to be effective within domestic law.

4. The wording “such further modifications as are necessary” serves to acknowledge that the relevant provisions were drafted to have effect within the legal system of the European Union and in relation to a wide range of goods. The wording is intended to ensure that the relevant provisions are able to remain effective in domestic law in the event that there are any additional modifications that might need to be read into the relevant provisions, to avoid producing an illogical or absurd result.

5. The powers under which the Regulations are made include the power “…to make any provision that could be made by an Act of Parliament…”(1). The Department notes that there are precedents in 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).

Question 2

6. Circumstances in which Government or other appropriate authority relies on the provision allowing for further modifications are expected to be unusual, given the interpretative provisions which are already included within the Regulations. It would ultimately be for the court to determine when it is necessary to construe the relevant provisions with further modifications.

Question 3

7. The interpretative provisions already contained within the Regulations are intended to address the modifications necessary for the effective interpretation of the relevant provisions. Whilst we have endeavoured to identify all of the necessary changes which are needed to ensure the provisions operate properly in relation to a different set of circumstances, and have set those out in regulations 9 and 10, as noted above the wording “such further modifications as are necessary” is intended to account for any additional modifications not foreseen during the drafting of the regulations which might otherwise produce an illogical or absurd result.

Department for Environment, Food and Rural Affairs

12 November 2024

Appendix 3: Memorandum from the Department of Culture, Media and Sport

S.I. 2024/858

The Media Act 2024 (Commencement No.1) Regulations 2024

1. The Committee has asked the Department for Culture, Media & Sport for a memorandum on the following point:

Explain whether it is intended that paragraphs 53 and 54 of Schedule 4 come into force in accordance with regulation 2(1)(x) or regulation 4(b) and (c).

2. The intention is that paragraphs 53 and 54 of Schedule 4 come into force in accordance with regulation 4(b) and (c).

3. The Department is aware that amendments should not be brought into force before the provision they amend comes into force, so regulation 4 follows the recommended practice of providing for linked commencement.

4. The Department acknowledges that paragraphs 53 and 54 should also have been included in the carve out in regulation 2(1)(x). This was an oversight that was unfortunately only spotted after the SI had been made.

5. The Department considered, at that time, whether a correction was needed, but took the view that it was sufficiently clear that regulation 4(b) and (c) should take precedence. Regulation 4(b) and (c) sets out an express intention in relation to those specific paragraphs, which would be rendered redundant if one took the view that those paragraphs had already been commenced by regulation 2(1)(x).

6. This interpretation is further supported by the explanatory note. This explains that regulation 4 provides for linked commencement where provisions of the Media Act 2024 make amendments to legislation that is subject to amendments made by the Communications Act 2003, but which have not been commenced yet, and that this is in order to ensure that the amendments made by the Media Act will come into effect at the correct time.

7. As a result, the Department’s view is that there can be no real doubt as to legislative intent, with the only appropriate construction being that paragraphs 53 and 54 are to come into force in accordance with regulation 4(b) and (c). However, the Department recognises that an appropriate carve out for the provisions should have been included in regulation 2(1)(x).

Department for Culture, Media & Sport

10 November 2024

Appendix 4: Memorandum from the Department of Health and Social Care

S.I. 2024/896

The Ionising Radiation (Medical Exposure) (Amendment) Regulations 2024

1. The Committee has asked the Department of Health and Social Care for a memorandum on the following point:

Explain why the consultation undertaken in accordance with Article 36(4) of the UK General Data Protection Regulation ((EU) 2016/679) is not recited in the preamble.

2. The Department did not consider it necessary to recite the consultation in the preamble.

3. Paragraph 3.11.28 of Statutory Instrument Practice provides: “The preamble should also set out the fulfilment of any condition that the enabling Act requires before the SI can be made.”.

4. The Department does not consider this to apply to consultation under Article 36(4) of the UK General Data Protection Regulation since it is not an “enabling Act”.

Department of Health and Social Care

12 November 2024

Appendix 5: Memorandum from the Foreign, Commonwealth and Development Office

S.I. 2024/946

The Mali (Sanctions) (EU Exit) (Amendment) and Sanctions (Miscellaneous Amendments) Regulations 2024

1. The Committee has asked the Foreign, Commonwealth and Development Office for a memorandum on the following point(s):

Given that this instrument does not contain UN regulations and regulation 2(2)(a) omits the stated purpose of compliance with a UN obligation in the regulations being amended (S.I. 2020/705), explain why the procedure in section 55(3) of the Sanctions and Anti-Money Laundering Act 2018 was not followed.

2. The effect of the provisions in this instrument, which amend the Mali (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/705) (“the 2020 Mali Sanctions Regulations”), is:

a. to revoke the provisions of the 2020 Mali Sanctions Regulations which give effect to the expired UN obligations, and

b. to make amendments to the provisions of those Regulations which relate to non-UN sanctions.

These Regulations therefore amend both the UN and non-UN sanctions in the 2020 Mali Sanctions Regulations, which were themselves subject to the section 55(6) negative Parliamentary procedure in the Sanctions and Anti-Money Laundering Act 2018 (“SAMLA”).

3. Section 55 of SAMLA sets out the Parliamentary procedures which apply to regulations. Subsection (1) provides that the affirmative Parliamentary procedure under subsection (3) applies to regulations which contain non-UN regulations under section 1 and do not contain any UN regulations under that section. The affirmative Parliamentary procedure under subsection (3) does not therefore apply to regulations which contain any UN regulations. Subsection 6 further provides that “UN regulations” includes regulations which “amend regulations under section 1 the stated purpose of which, or one of the stated purposes of which, is compliance with a UN obligation”.

4. As indicated, this instrument amends the 2020 Mali Sanctions Regulations, one of whose stated purposes was to comply with UN obligations (and the amendments to which include revoking the provisions giving effect to UN obligations). The instrument therefore falls within the definition of “UN regulations” for the purposes of section 55 notwithstanding that it also makes amendments to the provisions of the 2020 Mali Sanctions Regulations which relate to non-UN sanctions. As such subsection (6), which provides for the negative Parliamentary procedure, applies.

Foreign, Commonwealth and Development Office

12 November 2024

Formal Minutes

Wednesday 20 November 2024

Members present

Sir Bernard Jenkin, in the Chair

Lewis Atkinson

Lord Beith

Lord Chartres

Claire Hughes

Charlie Maynard

Lord Meston

Ms Julie Minns

Lord Sahota

Baroness Sater

Lord Watson of Wyre Forest

Report consideration

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 4.3 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 5.

Resolved, That the Report be the Sixth 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 27 November at 3.40 p.m.


Footnotes

1 The Committee asked a question on this instrument and a satisfactory response was received. The memorandum can be found at Appendix 5 of this report.