1.In its letter to the Department of Health and Social Care of 4 November 2020, the Committee requested a memorandum on the following points:
1. Given the differential commencement of new paragraph 3 and new paragraph 4 of Schedule 2A to the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020, explain why they are not inserted by separate paragraphs of regulation 4 of these Regulations.
2. Explain:(a) what effect is achieved by regulation 3(4) that would not be achieved by a combination of section 16 of the Interpretation Act 1978 and silence; and (b) why that effect is not equally required in relation to the amendments made by regulation 4(6)(b)(iii).
2.As a preliminary point, these Regulations (“the principal Regulations”) are now spent as the provisions affected by them have been revoked by regulation 25 of S.I. 2020/1200 (“the National Lockdown Regulations”). This includes paragraphs 3 and 4 of Schedule 2A to the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020 (“the Very High Regulations”) which is the subject of point (1) of the Committee’s request.
3.In response to point (1), the Department acknowledges that paragraphs 3 and 4 of Schedule 2A to the Very High Regulations could have been inserted by separate paragraphs of regulation 4 of the principal Regulations, but considers that the drafting of the differential commencement of those paragraphs is an equally effective way of achieving the intended objective. The Department notes that there is precedent for differentially commenced provisions to be inserted by a single provision (for example, article 5(b) of S.I. 2018/623 amends article 23(3) of the Air Navigation Order 2016 to insert references to various articles; article 1 provides for article 5(b) to come into force on 30 November 2019 for the purposes of inserting two of those references and otherwise on 30 July 2018).
4.In response to point (2)(a), the Department acknowledges that the effect of regulation 3(4) could have been achieved by a combination of section 16 of the Interpretation Act 1978 and silence, however regulation 3(4) was enacted for consistency with other Coronavirus instruments, including, for example, paragraph 7 of Schedule 3 to S.I. 2020/1103, and to provide clarity on the face of the Regulations in question.
5.In response to point 2(b), the inconsistency between regulation 3(4) and regulation 4(6)(b)(iii) of the principal Regulations was an oversight for which the Department apologises. However, as mentioned in paragraph 1 above, regulation 4(6)(b)(iii) is spent (along with the rest of the principal Regulations) in any event.
6 November 2020
Published: 13 November 2020