Thirty-Third Report of Session 2019-21 Contents

Instruments reported

At its meeting on 2 December 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 four 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.

1S.I. 2020/1126: Reported for defective drafting

National Health Service (Charges and Pharmaceutical and Local Pharmaceutical Services) (Amendment) Regulations 2020

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 introduce changes relating to new services and service updates for community pharmacies as part of the Community Pharmacy Contractual Framework deal. They also introduce changes relating to the coronavirus pandemic.

1.3Regulation 14 amends paragraph 28 of Schedule 4 to the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 (S.I. 2013/349) so that in four places the words “for the promotion of healthy living” and “the promotion of healthy living” are inserted after the words “clinical governance” and “an appropriate environment in which to receive health care”. The Committee asked the Department of Health and Social Care to explain how the inserted phrase follows from the words before it. In a memorandum printed at Appendix 1, the Department offers an explanation, but not one that satisfies the Committee that the inserted phrase has a sufficiently clear meaning in the context. The Committee accordingly reports regulation 14 for defective drafting.

1.4(The Department’s memorandum also confirms the intended parameters of an amendment made by regulation 10 to paragraph 11 of Schedule 4 to the 2013 Regulations, in response to a question raised by the Committee about an apparent inconsistency with the Explanatory Memorandum to the Regulations.)

2S.I. 2020/1175: Reported for defective drafting

Health Protection (Notification) (Amendment) (Coronavirus) Regulations 2020

2.1The Committee draws the attention of both Houses to these Regulations on the ground that they are defectively drafted in three respects.

2.2This instrument amends the Health Protection (Notification) Regulations 2010 (S.I. 2010/659) as they relate to tests for influenza virus and SARS-CoV-2.

2.3Under regulation 4 of the 2010 Regulations, the operator of a diagnostic laboratory must notify Public Health England where a human sample tests positive for a “causative agent”, such as influenza virus or SARS-CoV-2. Regulation 3(d)(iii) of this instrument (inserted sub-paragraph (l)) requires notification of a positive test result for SARS-CoV-2 to include a person’s telephone number and email address. Regulation 4 (inserted regulation 4A) imposes similar notification requirements on test providers that are not diagnostic laboratories, but it requires a telephone number and email address to be included in notifications for both positive and indeterminate SARS-CoV-2 test results. The Committee asked the Department of Health and Social Care to explain the discrepancy. In a memorandum printed at Appendix 2, the Department acknowledges that regulation 3(d)(iii) ought to have inserted the same requirement for indeterminate SARS-CoV-2 test results notified by diagnostic laboratories and undertakes to correct the error at the earliest opportunity. The Committee accordingly reports regulation 3(d)(iii) for defective drafting, acknowledged by the Department.

2.4Regulation 5 of this instrument amends regulation 7 of the 2010 Regulations with the effect that a test provider other than a diagnostic laboratory may use electronic communications to notify PHE of any test result—whether positive, negative, indeterminate or void—for influenza virus or SARS-CoV-2. A diagnostic laboratory, however, may only use electronic communications to notify PHE of a positive or indeterminate SARS-CoV-2 test result or a positive influenza test result. The Committee asked the Department to explain the discrepancy. In its memorandum, the Department acknowledges that it ought to have made the same provision for diagnostic laboratories as for other test providers and undertakes to correct the error at the earliest opportunity. The Committee accordingly reports regulation 5 for defective drafting, acknowledged by the Department.

2.5The Committee also asked the Department to confirm that in regulation 4, inserted regulation 4A(7)–(10) should be numbered 4A(6)–(9), and that both cross-references in what is now regulation 4A(7) should be to paragraph (5). In its memorandum, the Department acknowledges the errors and undertakes to correct them at the earliest opportunity. The Committee accordingly reports regulation 4 (inserted regulation 4A) for defective drafting, acknowledged by the Department.

3S.I. 2020/1199: Reported for defective drafting

Wireless Telegraphy (Licence Award) Regulations 2020

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

3.2These Regulations are drafted by Ofcom and set out the procedure that will govern the award of wireless telegraphy licences at specified frequencies. Regulation 18(1) provides:

(1) Before the first principal stage round OFCOM shall—

(a) determine for each bidder; and

(b) notify to each bidder an overall bid constraint.

3.3The Committee asked Ofcom to confirm that the words “an overall bid constraint” in sub-paragraph (b) are intended also to apply to sub-paragraph (a), and should therefore form a separate line after sub-paragraph (b). In a memorandum printed at Appendix 3, Ofcom acknowledges the error, and the Committee accordingly reports regulation 18(1) for defective drafting, acknowledged by the Department.

4S.I. 2020/1290: Reported for requiring elucidation and for defective drafting

Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020

4.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in one respect and are defectively drafted in another respect.

4.2These Regulations prevent the enforcement of evictions against residential tenants for a certain period and prevent the use of the taking control of goods procedure inside homes while the national health protection regulations are in force.

4.3Regulation 2(1) prevents a person from attending a dwelling house for the purposes of executing certain writs or warrants or delivering an eviction notice. Paragraphs (2), (3) and (5) of regulation 2 contain exceptions to that basic prohibition where “the court is satisfied” as to certain matters. The Committee asked the Ministry of Justice to explain how, and at what point in the proceedings, the court will certify satisfaction of the matters specified in regulation 2(2), (3) and (5). In a memorandum printed at Appendix 4, the Department helpfully explains the guidance that has been promulgated within the court service for this purpose. The Committee accordingly reports regulation 2 for elucidation, provided by the Department’s memorandum.

4.4Regulation 4(3) is a saving provision which states that the expiry of these Regulations “does not affect the validity of anything done or not done pursuant to these Regulations before they expire.” 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 and to explain the meaning of the phrase the “validity … of anything not done”. In its memorandum, the Department acknowledges that this saving provision probably adds nothing to the Interpretation Act 1978 and is therefore probably unnecessary and explains its inclusion only by reference to another instrument in which something similar was included. There will be contexts in which it is both meaningful and desirable, or even necessary, to make provision replicating a provision of the Interpretation Act that may have been, or may be thought to have been, contra-indicated in the context. The Department identifies no such desirability or necessity in this case; and the Committee repeats its frequent observation that unnecessary provisions rarely add clarity but regularly cause confusion and should therefore be avoided. In relation to the phrase the “validity of anything … not done”, the Department explains that the reference “was intended to avoid argument that a decision not to enter a property or take other steps towards execution of a writ or warrant on account of the restrictions in the instrument might be able to be impugned as not being something “done” under the instrument.” The Committee does not understand in what sense a decision not to enter a property might be “impugned” or how it could be attacked as “invalid”. It might be necessary to extend the permitted timeframe for the performance of an action which was omitted by reason of the Regulations; and it might be necessary to indemnify against some kind of penalty for inaction that was referable to the Regulations; but preserving the “validity” of something not done achieves neither these aims nor any other aim and is simply not a meaningful legislative proposition. The Committee accordingly reports regulation 4(3) for defective drafting.




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