Thirty-Fourth Report of Session 2019–21 Contents

Instruments reported

At its meeting on 9 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.

1Draft S.I.: Reported for requiring elucidation

Health Protection (Coronavirus, Testing Requirements and Standards) (England) Regulations 2020

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

1.2These Regulations, which are subject to the draft affirmative procedure, will require providers of tests for the detection of coronavirus to be accredited by the United Kingdom Accreditation Service, rather than having to register with and be regulated by the Care Quality Commission (“CQC”). CQC regulatory requirements relating to both tests for the detection of coronavirus and tests for the presence of coronavirus antibodies are set to be removed by the Draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2020 (“the Regulated Activities Regulations”). The Committee asked the Department for Health and Social Care to explain why the definition of an “applicable test” in regulation 3 of this instrument does not cover antibody tests, in contrast to the Regulated Activities Regulations. In a helpful memorandum printed at Appendix 1, the Department explains the intention behind the different approach in the two sets of regulations. The Committee accordingly reports regulation 3 for requiring elucidation, provided in the Department’s memorandum.

2S.I. 2020/1221: Reported for requiring elucidation

Heat Network (Metering and Billing) (Amendment) Regulations 2020

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in two related respects.

2.2These Regulations, among other things, provide for metering devices which measure consumption of heating, cooling or hot water by each final customer to be installed in buildings where the heat supplier determines that such installation is cost effective and technically feasible. Regulation 6(2) (inserted regulation 4(2B)) states that a heat supplier must install meters in certain buildings before 1 September 2022 where the determination is made before 1 September 2022 (inserted regulation 4(2C)(b)). The Committee asked the Department for Business, Energy and Industrial Strategy to confirm whether the combined effect of regulations 4(2B) and (2C)(b) means that if, for example, the heat supplier made the determination on 31 August 2022, that supplier would be required to install meters on that day. (Similarly, for heat cost allocators etc (regulation 8(2), inserted regulations 6(2A) and (2B)). In a helpful memorandum printed at Appendix 2, the Department confirms the intention and explains how it is expected to work in practice. The Committee accordingly reports regulations 6(2) and 8(2) for requiring elucidation, provided by the Department’s memorandum.

3S.I. 2020/1239: Reported for defective drafting

Health Protection (Coronavirus, Travel from Denmark) (England) Regulations 2020

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

3.2These Regulations (which have now been revoked) prohibited aircraft and maritime vessels whose last departure point was Denmark from landing or mooring at a port in England. An “operator” of a conveyance committed an offence if the aircraft or vessel was allowed to land or moor in contravention of the Regulations. Regulation 1 defined “operator” in relation to a commercially operated conveyance as “the person who has management of the conveyance” and in relation to any other conveyance as “the individual in control of the conveyance”. The Committee asked the Department to clarify the difference between the two definitions. In a memorandum printed at Appendix 3, the Department explains the intention for liability in commercial cases to rest with the managing company and not the pilot. The Committee notes the intended policy, but is concerned that it is not provided for sufficiently clearly, as the phrase “person who has management of the conveyance” could reasonably be construed as including physical management as well as corporate governance. The definition should have referred, in some form or another, to management of the entity owning the conveyance, not management of the conveyance. The Committee accordingly reports regulation 1 for defective drafting.

4S.I. 2020/1251: Reported for requiring elucidation

Antarctic Act 1994 (Convention for the Conservation of Antarctic Marine Living Resources) Regulations 2020

4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.

4.2These Regulations implement key provisions of the Convention for the Conservation of Antarctic Marine Living Resources. Regulation 6(1)(c) allows the Secretary of State to publish guidance on “any other matters which the Secretary of State considers to be relevant”. The Committee asked the Foreign, Commonwealth and Development Office to explain the range of matters contemplated by regulation 6(1)(c) and, if any of those matters are legislative rather than administrative, identify the power for making that regulation. In a memorandum printed at Appendix 4, the Department sets out the matters which the guidance may cover; the Committee finds the list helpful and confirms that none of the entries in it appears to be legislative. The Committee accordingly reports regulation 6(1)(c) for requiring elucidation, provided by the Department’s memorandum.




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