Instruments reported
At its meeting on 11 November 2020 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 it are given below. The relevant departmental memorandum is published as an appendix to this report.
1S.I. 2020/1154: Reported for failure to comply with proper legislative practice and for defective drafting
Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium, High and Very High) (England) (Amendment) Regulations 2020
1.1The 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 and are defectively drafted in other respect.
1.2These Regulations amend the three-tier COVID-19 regulations that applied in England at the time.
1.3Regulation 4(6)(e) inserts new paragraphs 3 and 4 into Schedule 2A to the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020 (S.I. 2020/1105). The commencement arrangements for the two new paragraphs are different. Because they are inserted by a single paragraph, regulation 1(2)(d) has to use an unwieldy formula to commence them at different times (“regulation 4(6)(e), for the purpose of inserting paragraph 4 into Schedule 2A of the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020”). It would have been simpler to have each new paragraph inserted by a separate sub-paragraph of regulation 4(6) (which is already subdivided) and commenced independently. The Committee put the point to the Department of Health and Social Care. In a memorandum printed at Appendix 1, the Department accepts that this would have been possible but asserts that the drafting of the differential commencement of those paragraphs is equally effective. The Committee agrees that the two methods are equally effective as a matter of law; but requiring provisions to be commenced differentially for different purposes is less clear for the reader than simply commencing different provisions on different days. Given the innate complexity of regulations such as these which are amending other regulations, it is good legislative practice to keep them as simple as possible. The Committee accordingly reports regulation 4(6)(e) for failure to comply with proper legislative practice.
1.4Regulation 3(4) is a saving provision that, in effect, provides that the removal of certain prohibited activities from a list does not prevent the post-removal prosecution of offences committed before removal. That would be true without the saving provision, because of section 16 of the Interpretation Act 1978. The Committee asked the Department to justify the saving provision. In its memorandum, the Department acknowledges that the saving provision is unnecessary, but argues that it adds “clarity on the face of the Regulations”. Unnecessary provisions rarely add clarity, but they inevitably create confusion (at least) where inserted inconsistently. That has happened here, as the Department failed to insert a similar saving for the amendments made by regulation 4(6)(b)(iii), an omission which the Department acknowledges; accordingly the Committee reports regulations 3(4) and 4(6)(b)(ii) for defective drafting, acknowledged by the Department.
Published: 13 November 2020