Thirty-Sixth Report of Session 2019-21 Contents

Instruments reported

At its meeting on 13 January 2021 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 seven 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. 2020/1298: Reported for defective drafting

Armed Forces Redundancy Scheme Order 2020

1.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in three respects.

1.2This Order, which is subject to the negative resolution procedure, amends two previous armed forces redundancy scheme Orders and establishes a new 2020 redundancy scheme.

1.3Articles 4 and 10 both insert provisions including a definition of “part-time service”, but the definitions are different in form. The Committee asked the Ministry of Defence to explain the intended difference in meaning (it being a core principle of legislation that a change of language should import a change of meaning). In a memorandum printed at Appendix 1, the Department states that there is no intended difference in meaning, and that the words found in one definition but not the other should have been included in both. The Committee accordingly reports article 10 for defective drafting, acknowledged by the Department.

1.4There is a reference in paragraph 4(2) of the Schedule to “pensionable earnings” which the Committee suspected should be a reference to “relevant earnings”. The Committee put the point to the Department. In its memorandum, the Department confirms the Committee’s suspicion. The Committee accordingly reports paragraph 4(2) of the Schedule for defective drafting, acknowledged by the Department.

1.5A formula is used in paragraph 14(3)(b)(iii) and (iv) of the Schedule which contains references to quantities “A” and “E”, the meaning of which the Committee could not identify. The Committee asked the Department to explain the intention of these references. In its memorandum, the Department admits that these quantities were included in error, and in each case the reference should have been to the quantity “F”. The Committee accordingly reports paragraph 14(3)(b) of the Schedule for defective drafting, acknowledged by the Department.

1.6In the case of each of these errors the Department undertakes to amend at the next available opportunity. Since these errors go to the heart of the operation of the provisions affected, the Committee expects the Department not to wait for the next occasion on which it wishes to make substantive change, but to bring forward amendments as soon as is reasonably practicable. In the meantime, the Committee expects the Department to bear in mind the Committee’s repeated warning (see, most recently, the report on S.I. 2020/445 in the Twelfth Report of Session 2019–2021) that Departments cannot lawfully operate legislation as if it were in the form in which they wish they had enacted it, rather than in in the form in which they did enact it.

2S.I. 2020/1336: Reported for requiring elucidation

Producer Responsibility Obligations (Packaging Waste) (Amendment) (England) Regulations 2020

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

2.2These Regulations, which are subject to the negative resolution procedure, replace EU recovery and recycling targets with recycling targets on producers and remove the recovery targets. The instrument is made under section 93 of the Environment Act 1995. Regulations made under that section are subject to the draft affirmative resolution procedure unless they only contain “regulations varying any relevant targets” (section 93(11)). The Committee asked the Department for Environment, Food and Rural Affairs to explain why the Regulations were not made under the affirmative resolution procedure. In a memorandum printed at Appendix 2, the Department explains that recovery and recycling are inextricably linked and that the targets are intended to be viewed as a whole. On that basis the Department asserts that the reference to “regulations varying any relevant targets” in section 93(1) includes “regulations changing the size, amount, degree or nature of a target, provided, in the case of a change to the nature of a target, that it is not such a substantial change that the amended provision should be regarded as a separate, new target.” The Committee notes the Department’s argument, accepts that it is at least a possible interpretation of the enabling power, and accordingly reports the Regulations for requiring elucidation.

3S.I. 2020/1337: Reported for defective drafting

Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 26) Regulations 2020

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

3.2These Regulations, which are subject to the negative resolution procedure, set out the circumstances in which a person who would otherwise be required to self-isolate on their arrival in England may leave self-isolation if they test negative for coronavirus. In accordance with regulation 2(7) (new Schedule 2A, paras.2(1)(c)(iii) and 3(f)), for the test to be “appropriate” it must use a “suitable” device for testing people of the relevant age and the provider must follow “appropriate standard operating procedures”.

3.3The Committee asked the Department for Transport to explain what criteria will be used to determine “suitability” of devices. In a memorandum printed at Appendix 3, the Department explains that “this will be determined by reference to the test product specifications”, and that “If a test manufacturer declares on the product specification that the test device is not suitable for any particular age group, then the test device should not be used for an international arrival of that age”. If the policy is that any device is suitable for an age-group so long the manufacturer’s specification does not expressly exclude it, that should have been stated on the face of the Regulations. If there were intended to be additional criteria for suitability, they too should have been stated. As drafted, it is simply unclear how suitability is to be assessed. The Committee accordingly reports regulation 2(7) ((inserted paragraph 2(1)(c)(iii)) for defective drafting.

3.4(The Committee also asked the Department to explain what criteria will be used to determine “appropriate standard operating procedures”. In its memorandum, the Department refers to guidance on standards issued by the Department for Health and Social Care. That guidance could (having regard to the enabling powers in this case) have been referred to expressly in the Regulations, which would have given the reader authoritative elucidation of the meaning of “appropriate”. As drafted, the Regulations are unclear and it is not lawful for the Department to deploy the guidance, purely informally, to tighten up the otherwise loose language of the legislation. The Committee accordingly reports regulation 2(7) ((inserted paragraph 3(f)) for defective drafting.

4S.I. 2020/1374: Reported for defective drafting

Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020

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, which are subject to the made affirmative resolution procedure, impose restrictions on gatherings and on businesses in England, including a framework consisting of three tiers of restrictions.

4.3Under regulation 6, a gathering is a “permitted organised gathering” either if it takes place at premises operated by a specified class of body (regulation 6(2)) or if it takes place in a public outdoor space and has been organised by a specified class of body with the organiser taking specified precautions (regulation 6(3)). The Committee asked the Department of Health and Social Care why the requirement to take precautions applies only to regulation 6(3) and not to regulation 6(2). In a memorandum printed at Appendix 4, the Department asserts that the requirement for precautions is implicit in the case of premises and refers to guidance on “COVID secure locations”. The Committee does not agree: there is nothing in regulation 6(2) to incorporate the requirements of guidance, so if precautions are required for both limbs of the definitions of “permitted organised gathering” that should have been provided for expressly (whether by reference to the guidance or otherwise). The Committee accordingly reports regulation 6 for defective drafting.

4.4The Department also confirms that (somewhat counter-intuitively) a social gathering such as a birthday party could lawfully take place on premises operated by a business or other specified body in reliance on regulation 6(2) provided that those attending “participate alone or as a member of a qualifying group”.

5S.I. 2020/1375: Reported for defective drafting

Health Protection (Coronavirus, Restrictions) (Local Authority Enforcement Powers and Amendment) (England) Regulations 2020

5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two respects.

5.2These Regulations, which are subject to the made affirmative resolution procedure, provide local authorities with new enforcement powers relating to coronavirus restrictions.

5.3A designated local authority officer may issue three types of enforcement notices where the person is contravening one or more specified coronavirus-related statutory provisions. These notices may not be issued in relation to premises which form part of “essential infrastructure”. The Committee asked the Department to clarify the intended meaning of “essential infrastructure”. In a memorandum printed at Appendix 4, the Department asserts that the expression can be given “its ordinary meaning” and that the context of the instrument and the power given to local authority officers “mean it is obvious how the words should be interpreted”; the Department adds that although the meaning is obvious, guidance issued in the context of other coronavirus regulations will elucidate if required. The Committee disagrees: “essential infrastructure” can bear a wide range of meanings, and there is nothing about the context of these Regulations that provides sufficient legal certainty. The Department has no power to dictate the meaning informally by reference to guidance or otherwise. The principles set out in the guidance to which the Department refers should have been distilled into statutory criteria in the Regulations by reference to which readers, including but not limited to local authority officers, would know with a reasonable degree of practical certainty when the powers under the Regulations can and cannot be exercised. The Committee accordingly reports regulation 3(2), 4(2) and 5(2) for defective drafting.

5.4Failure to comply with an enforcement notice is a criminal offence. Regulation 7 states that proceedings for an offence may be brought by a local authority, the Crown Prosecution Service and any person designated by the Secretary of State and adds “(but this does not affect any other power to bring proceedings for such an offence)”. The Committee asked the Department to identify the “other powers” referred to in the parenthetical saving. In its memorandum, the Department explains that the saving was intended “as a belt and braces savings provision” and refers to “prosecution authorities such as the Attorney General and powers … to bring a private action”. The Attorney General has no general power to prosecute for breach of statutory duty. As to private prosecutions, even if it were intended to permit them for failure to comply with enforcement notices (which seems most unlikely) the general reference to “power to bring proceedings” adds no more certainty in this respect than would have been achieved by silence. A “belt and braces” attitude to legislative drafting is not good practice, as duplication and redundancy are always potential sources of argument and confusion. The Committee accordingly reports regulation 7 for defective drafting.

6S.I. 2020/1518: Reported for defective drafting

Health Protection (Coronavirus, Restrictions) (Self-Isolation and Linked Households) (England) Regulations 2020

6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

6.2These Regulations, which are subject to the made affirmative resolution procedure, alter the period of self-isolation for close contacts of persons who test positive for coronavirus. The regulations use different formulations when expressing a particular day: “date after the date”; “day after the date”; and “day after the day”. The Committee asked the Department of Health and Social Care to explain the intended difference in meaning (it being a core principle of legislation that a change of language should import a change of meaning). In a memorandum printed at Appendix 5, the Department admits that there was no intended difference in meaning, accepts the need to avoid linguistic inconsistency and undertakes to amend at the next available opportunity. The Committee accordingly reports the Regulations for defective drafting, acknowledged by the Department.

7S.I. 2020/1611: Reported for defective drafting

Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) Regulations 2020

7.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

7.2These Regulations, which are subject to the made affirmative resolution procedure: (a) amend the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 to introduce an additional tier of restrictions (“Tier 4”); (b) move all 32 London boroughs and the City of London and some local authority areas in the east and south east of England from Tier 3 to Tier 4; and (c) amend the Christmas period exception to the gathering limits in Tiers 1, 2 and 3.

7.3The preamble records the Secretary of State’s satisfaction that the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 as amended by these Regulations satisfy the proportionality test. It does not include the same statement in respect of the other instrument amended by these Regulations, and the Committee asked the Department of Health and Social Care to explain. In a memorandum printed at Appendix 6, the Department acknowledges that the preamble should have recorded proportionality satisfaction in relation to both amended instruments. The Committee accordingly reports the preamble for defective drafting, acknowledged by the Department.

7.4The Committee was also concerned about the timing of the Regulations. They came into force at 07.00 on 20 December 2020, having been signed at 06:00. The Committee asked the Department to clarify when the Regulations were published. In its memorandum, the Department explains that the Regulations were published on legislation.gov.uk at 06:47:44. For most practical purposes, therefore, those likely to be affected by the Regulations had almost no notice of their effect before they came into force. The Committee of course recognises the extreme pressures on the Government in relation to the pandemic, and that it will sometimes simply not be possible to apply usual legislative process standards to emergency regulations. But the Committee takes the opportunity to reassert the importance of ensuring that people are given as much notice as possible, particularly in the case of regulations which criminalise a wide range of commercial and personal activity. The Committee expects the Government to maximise notice by any practicable means (including, where feasible, the publication of draft instruments before signature, so as to give advance notice of their precise expected content). In this instance the Committee assumes that the Government did everything in its power to publish as early as possible, and accordingly reports the publication arrangements of the Regulations for requiring elucidation provided by the Department’s memorandum.

7.5The Committee was also concerned that the lack of notice was exacerbated by apparent confusion about when the Regulations came into force. Following the Prime Minister’s press conference on 19 December in which he said “these measures will take effect from tomorrow morning”, there were multiple references in the media on 19 and 20 December to the new Regulations becoming law at midnight on 19 December. The Secretary of State for Health and Social Care was reported by the Guardian newspaper on 20 December as stating “… the law came into force in the early hours of this morning”. And the Committee noticed that on 20 December the Minister of State for Digital and Culture issued a statement that “From 00:01 on Sunday 20 December 2020 Gosport Borough moved to Tier 4”, which was clearly incorrect. The Committee asked the Department to explain (mindful of the fact that, as explained above, until 06:47 on 20 December there was no published text by reference to which the public could check the commencement arrangements). In its memorandum, the Department disclaims responsibility for the Minister’s statement on the ground that it was “on a constituency website”. The Committee reasserts the importance of clarity about commencement for all legislation, but particularly for emergency regulations, so that people are not misled as to when restrictions do and do not apply. The Committee expects the Government to take all reasonable steps to provide the media with clear and accurate information about the commencement of emergency regulations, and to avoid making inaccurate statements about commencement whether on constituency websites or elsewhere.




Published: 15 January 2021 Site information    Accessibility statement