At its meeting on 25 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 five of those considered. The instruments and the grounds for reporting them are given below. The relevant departmental memoranda are published as appendices to this report.
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
1.2These Regulations set out the conduct, performance and appeals tribunals regulations for the Ministry of Defence Police. Under regulation 35 (Schedule 1) representations may be made to the chair of a misconduct hearing in relation to certain matters. This includes (at paragraph (5)) written representations “by any journalist or other representative of the media.” Under regulation 53(5) of the same Schedule there is a similar provision in relation to an accelerated misconduct hearing but that regulation refers to representations being made “by any representative of the media”. The Committee asked the Ministry of Defence to explain the difference in meaning. In a memorandum printed at Appendix 1, the Department confirms that there is no intended difference in meaning and undertakes to amend regulation 35(5) to be consistent with the wording of regulation 53(5) at the next available opportunity. It is an important principle of statutory interpretation that a change of wording should imply a change of meaning and the Committee accordingly reports regulation 35(5) of Schedule 1 for defective drafting, acknowledged by the Department.
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unusual use of the enabling power in two respects and are defectively drafted in one respect.
2.2These Regulations make provision for same-sex couples to convert a civil partnership to a marriage, and opposite-sex couples to convert a marriage to a civil partnership in Northern Ireland. Conversion must follow one of four procedures (regulation 7) and each procedure has two parts: provision of the required information and signing of the conversion declaration. In the case of the two-stage procedure the second part of the procedure must take place within a year of the first part of the procedure (regulation 7(6)(b)). Under the special procedure and the procedure for detained persons the second part of the procedure takes place on the same day as the first part of the procedure or “on a later day” (regulations 7(8)(b) and 7(10)(b)). The Committee asked the Northern Ireland Office to confirm that there is no time constraint on when “a later day” may be in those regulations. In a memorandum printed at Appendix 2, the Department confirms that the time constraint will not apply to the special procedure or the procedure for detained persons and asserts that they do not expect any delay to be a problem given the incentives for parties following these procedures to act quickly. The Department explains that the policy rationale for the time constraint in regulation 7(6)(b) is that an extensive period between the two stages could give rise to administrative difficulties for the General Register Office (Northern Ireland). The Committee presumes that the same administrative difficulties would arise if there was an extensive period between the two stages of the special procedure or the procedure for detained persons and finds it surprising that the Department has chosen to rely on the incentives for people to act quickly rather than making the same legislative provision as for the other procedures. The Committee accordingly reports regulations 7(8)(b) and 7(10)(b) for unusual use of the enabling power.
2.3If the conversion is to follow the special procedure one of the required documents is a statement from a registered medical practitioner stating that the party to the intended conversion by reason of serious illness or disability should not be moved from the place where they are for three months from the date on which the statement/certificate is given (regulations 8(6) and 9(6)). It appeared to the Committee that the three-month period referred to in the statement could have expired before the conversion takes place and that the “immovable party” could by that time be able to move from the place where they are. It seems surprising that the special procedure is capable of applying after the expiry of the three-month period. The Committee asked the Department to clarify. The Department’s memorandum does not address the point and the Committee accordingly reports regulations 8(6) and 9(6) as making an unusual or unexpected use of the enabling power.
2.4The Committee asked the Department to confirm whether the reference in regulation 28(4) to “civil partnership” should be to “marriage”. In its memorandum, the Department confirms this and proposes to change the reference by correction slip. The Committee has made its view known (see, in particular, Transparency and Accountability in Subordinate Legislation, First Special Report of Session 2017–19, paras. 3.1–3.15) that correction slips should not be used to change the operative text of an instrument, whether or not the Government and the Queen’s Printer believe that the change makes a difference to the meaning in a particular context. If an error is obvious, the reader will be able to see what is meant without a correction slip; and the courts will if necessary exercise their judicial discretion to give a rectifying construction in accordance with the rule in Inco Europe v First Choice Distribution  1 WLR 586 (HL). Apart from that, the only lawful method of altering the text of a statutory instrument is by an amending instrument. The Committee accordingly reports regulation 28(4) for defective drafting, acknowledged by the Department, and notes that a correction slip should not be used to rectify the defect.
3.1The Committee draws the special attention of both Houses to these regulations on the grounds that they require elucidation in two respects and are defectively drafted in one respect.
3.2These Regulations (which have since been revoked) changed the COVID-19 alert level applicable to a number of areas and made minor amendments to the Alert-level Regulations. Regulation 4(5) inserted provisions in the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020.
3.3Inserted paragraph 8 prohibited off-licences from selling alcohol between 9 pm and 5 am. It contained an application of a definition in a previous paragraph as a result of which, amongst other things, it would be lawful for an off-licence to sell alcohol “for consumption in an area adjacent to the premises of the business where customers gather to drink outside the business”. The Committee thought this a surprising exemption and asked the Department of Health and Social Care to confirm that it was intended. In a memorandum printed at Appendix 3, the Department confirms the policy intention and provides an explanation. The Committee accordingly reports regulation 4(5) for requiring elucidation provided by the Department’s memorandum in relation to inserted paragraph 8.
3.4Inserted paragraph 11 prohibited trade shows and defined them as events held to bring together members of a particular industry to display to members of the public. The Committee was surprised that this definition would exclude a trade show involving only members of an industry, such as manufacturers or wholesalers displaying to retailers. In its memorandum the Department agrees that this was an unintended and undesirable effect and undertakes to ensure that in replacement instruments the policy is correctly reflected. The Committee accordingly reports regulation 4(5) for defective drafting acknowledged by the Department in relation to inserted paragraph 11.
3.5Inserted paragraph 12 provided exceptions from some of the previously listed prohibitions. The Committee noticed that as a result of one exception an off-licence, during times when it was required to be closed, could still operate a system where a person entered, selected alcohol they wished to buy, left the premises, telephoned the shopkeeper from immediately outside the premises to order the alcohol, returned to the premises and collected and paid for the alcohol. The Committee considered this an obvious avoidance opportunity and asked the Department to explain. In its memorandum the Department confirms that this was the intention and says that consideration was given to ways of limiting the option for collection but that “on balance, it was considered that permitting collections after 21:00 without restrictions, was the most proportionate approach in all the circumstances”. The Committee appreciates that it is difficult to craft prohibitions and exemptions in the present extraordinary circumstances that combine effectiveness with proportionality. The Committee notes, however, that the effectiveness of public health regulations depends in large part on their being seen by the public to be both rigorous and logical. Without understating the difficulty of the task that Departments face in crafting these regulations, the Committee invites Departments on future occasions to consider whether anomalies and avoidance opportunities as obvious and wide as this one risk undermining the effectiveness of the regulations and the public respect with which they need to be treated. The Committee accordingly reports regulation 4(5) for requiring elucidation in respect of inserted paragraph 12.
4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
4.2These Regulations place restrictions on persons leaving the place where they are living and on gatherings. Regulation 13 contains an exception to the restriction on gatherings; a household can link with another household (a linked childcare household) for the purposes of informal childcare in accordance with that regulation. Regulation 2(1) defines childcare as having the meaning given in section 18 of the Childcare Act 2006; and section 18(4) of that Act excludes childcare provided by a relative. The Committee asked the Department of Health and Social Care to confirm whether, as a result of this definition, a household cannot form a linked childcare household with another household containing a relative of the child. In a memorandum printed at Appendix 3, the Department confirms that it did not intend to prevent a household forming a linked childcare household with another household containing a relative of the child. The Department asserts that “informal childcare” in regulation 13 is intended to have a different meaning to “childcare” as defined in regulation 2(1) and that “informal childcare” could “arguably” encompass childcare provided by a relative. The Committee disagrees. The defined term is “childcare”, and the definition excludes childcare provided by relatives. Adding the word “informal” could be intended to have a range of effects, and it is, at the least, insufficiently clear that it is intended to disapply the restriction on the meaning of “childcare” that has been expressly imported by a reference in the definition of “childcare” to another enactment. If the intention was for the exclusion of relatives to be disapplied in relation to informal childcare, that should have been stated clearly. As drafted, the effect of the instrument is that a household cannot form a linked childcare household with another household containing a relative of the child, which is clearly not the Department’s intention. The Committee accordingly reports regulation 13 for defective drafting.
5.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in one respect and make unusual or unexpected use of the enabling powers in one respect.
5.2Regulation 7(9) has the effect of inserting a new Part 6A into the Export Control Order 2008 (“the 2008 Order”). The purpose of the new Part is to implement or supplement EU instruments relating to strategic export controls, as those instruments have effect by virtue of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement. Part 6A includes article 42N(2) which makes provision about the transfer by non-electronic means of software or technology intended for WMD purposes.After IP completion day, article 12 of the 2008 Order will generally prohibit such a transfer where it is to a destination outside the UK. The effect of article 42N(2) is to disapply this prohibition, in relation to transfers from Northern Ireland to destinations in the EU customs territory, where both the following conditions set out in sub-paragraphs (a) and (b) of article 42N(2) are met:
5.3It appeared to the Committee that the exception in article 42N(2) may have been drawn too narrowly in requiring both the conditions in sub-paragraphs (a) and (b) to be met. It is inconsistent with the position under article 12 of the 2008 Order as it currently has effect before IP completion day. The current position is that a transfer to a destination within the EU customs territory is allowed if either the final destination for the transfer is within the EU customs territory, or the software or technology will be subject to processing or working within the EU customs territory. In a memorandum printed at Appendix 5, the Department for International Trade acknowledges this error.
5.4Since this is a draft statutory instrument, it would have been open to the Department to withdraw the instrument and re-lay it before Parliament with the defect in article 42N(2) corrected. The Department explains that it has not done this because it intends to include the correction in amending legislation to be made early in 2021. It considers the likelihood to be very low of the defect in the legislation having any practical impact before the correcting legislation is made. The Committee is not convinced by this explanation. In the view of the Committee, the Government should not make legislation which it knows will have an effect which is significantly different from what is intended, unless doing so cannot reasonably be avoided. Nothing is said in the Department’s memorandum to indicate that laying a corrected draft would not have been practicable. The Committee accordingly reports regulation 7(9) for defective drafting, acknowledged by the Department.
5.5Part 5 of the draft Regulations amends the Trade in Torture etc. Goods (Amendment) (EU Exit) Regulations 2020 (‘Trade in Torture Regulations”). The Trade in Torture Regulations have not yet been made and accordingly the Committee asked the Department to explain why Part 5 of these Regulations is being used to amend another statutory instrument which has not yet been made, rather than making that other instrument with the necessary changes incorporated in it.
5.6In its memorandum, the Department explains that the Trade in Torture Regulations were approved by both Houses in April 2019 at a time before the EU withdrawal agreement had been entered into, and as a result they need to be amended before they come into force. The Department also explains that it is proceeding with the original Regulations because the required amendments are technical and not substantive, and therefore it avoids requiring Parliament to debate again what are in substance unchanged Regulations. The Department also refers in its memorandum to another instrument from 2019 where a similar approach was adopted.
5.7The Committee is not convinced by the Department’s explanation. It seems to the Committee that Government should as a matter of general principle avoid making legislation which it knows to be defective. In this case, the Trade in Torture Regulations were approved in draft by both Houses more than 18 months ago. Since that time there has been a significant change in circumstances in that the EU withdrawal agreement has been entered into, including the Protocol on Ireland/ Northern Ireland. The amendments made by Part 5 include amendments in regulation 15 which are needed to take account of the effect of the Protocol. Accordingly, the Committee reports Part 5 of the Regulations as making an unusual or unexpected use of the enabling powers.
* “WMD purposes” is defined by article 2 of the 2008 Order to mean use in connection with the development, production etc. of chemical, biological or nuclear weapons and other connected uses.