Thirty-Eighth Report of Session 2019-21 Contents

Instruments reported

At its meeting on 27 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 three 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. 2020/1417: Reported for requiring elucidation

Channel Tunnel (Customs and Excise) (Amendment) (EU Exit) Order 2020

1.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect.

1.2This Order, which is subject to the negative resolution procedure, amends the importation time of goods at the Eurotunnel site in Coquelles to deal with the anomaly that the duty-free shop is currently sited outside of the control zone. The amendment is designed to ensure that when a traveller enters the control zone more than once, any previous importation before boarding the train is disregarded and consequently only one set of duty-free allowances can apply to the goods the traveller is importing. The Committee noticed that new article 5(8) (inserted by article 2(2)(b)) refers to the goods being removed from a control zone and not to the person importing those goods leaving the control zone and asked HM Revenue and Customs to explain how that article would apply to a person who buys goods outside the control zone, enters the control zone, leaves the goods in the control zone (perhaps with a fellow traveller), exits the control zone, buys more goods, and re-enters the control zone and whether, in that case, the person would benefit from the duty-free limits more than once. In a memorandum printed at Appendix 1, the Department explains that this possibility has not been provided for in the Order because it is not presently expected to be capable of occurring, as a result of the configuration of the site. The Department also explains that the arrangements provided for by the Order are, in effect, only a transitory arrangement pending the completion of planned infrastructure changes. The Committee accordingly reports article 5(8) for requiring elucidation, provided by the Department’s memorandum.

2S.I. 2020/1455: Reported for requiring elucidation

International Waste Shipment (Amendment of Regulation (EC) No 1013/2006) 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, which are subject to the negative resolution procedure, implement changes to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal to enhance controls on shipments of plastic waste.

2.3The preamble to the Regulations cites that they are made “in exercise of the power conferred by Article 58(1)(a) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste”; a footnote to the preamble adds that “Article 58 of Regulation (EC) No 1013/2006 as it forms part of domestic law on and after IP completion day (see section 3 of the European Union (Withdrawal) Act 2018 (c. 16)) was amended by S.I. 2019/473 so that the power contained in that Article is now vested in the Secretary of State”.

2.4The amending instrument (the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/473)) did not come into force until IP completion day, some three weeks after these Regulations were made. These Regulations are therefore being made as an anticipatory exercise of the powers to make them. Section 13 of the Interpretation Act 1978 provides for anticipatory exercise in some circumstances and is applied to subordinate legislation by section 23. Section 23ZA of the 1978 Act applies specified provisions of the 1978 Act “to any retained direct EU legislation so far as it … is amended by … subordinate legislation”, but section 13 is expressly excluded from the applications under section 23ZA.

2.5The Committee asked the Department for Environment, Food and Rural Affairs to identify the authority for anticipatory exercise in this case. In a memorandum printed at Appendix 2, the Department asserts that it relies on section 13 of the 1978 Act as attracted by section 23(1). The Department also explains why it did not include a reference to the amending instrument in the preamble to the Regulations. The implication of the Department’s memorandum is that the express exclusion of section 13 from section 23ZA is not to be taken as suggesting a policy intent to prohibit anticipatory exercise in the case of powers added to retained EU legislation by amendment, but simply as reflecting the fact that it will always be possible to rely on section 13, either directly or as attracted by section 23(1), when operating under amended retained EU legislation. The Committee accepts that on balance that is the more likely of the two constructions of the exclusion. But retained EU legislation is a novel concept for the UK statute book, and much about it is less than entirely intuitive: that being so, it is helpful to have on the record as much as possible of the Government’s reasoning and policy in relation to this new class of legislation. The Committee accordingly notes the Government’s assertion in relation to the attraction of section 13 of the 1978 Act and reports the preamble for requiring elucidation, provided by the Department’s memorandum.

2.6The Committee also asked whether the amending statutory instrument should have been cited in the preamble. The Committee notes the Department’s response in the memorandum based on precedent. Precedent as to anticipatory exercise aside, the concept of an instrument being made under a provision of retained EU legislation as amended by a statutory instrument is both novel and potentially confusing for readers, and preambles should be cast in a way that maximises legal certainty and clarity, and on that basis there might have been a case for including the amending domestic legislation in the preamble. Ultimately the Committee recognises that this is a matter of practice for the Government to determine, provided that it acts consistently across the range of statutory instruments and provided that the reader has the necessary information to understand the authority for the instrument (which in this case the Department has achieved adequately through the use of a footnote). On that basis the Committee reports the preamble for requiring elucidation on this additional ground, provided by the Department’s memorandum.

3S.I. 2021/8: Reported for requiring elucidation and for defective drafting

Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021

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 are subject to the made affirmative resolution procedure, amend the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (S.I. 2020/1374—the “All Tiers Regulations”) to impose a national lockdown across England. They do this by placing every area of England under the Tier 4 restrictions set out in Schedule 3A to the All Tiers Regulations.

3.3The intention to impose a national lockdown was announced by the Prime Minister on Saturday 4 January 2021, with guidance published the same day. The guidance directs: “You should follow this guidance immediately. The law will be updated to reflect these new rules.” The guidance directs people to limit exercise to once a day, not to “travel outside your local area”—which is defined as “avoiding travelling outside of your village, town or the part of a city where you live”, to maintain a set distance from people not in their household or support bubble, and to leave home to shop only for “basic necessities”. The Regulations were made at 4.30 p.m. on 5 January and came into force at midnight on 6 January. None of the restrictions quoted above were included in the Regulations. The Committee asked the Department for Health and Social Care to confirm that the “rules” relating to limited exercise, local travel, social distancing and shopping only for basic necessities amount to non-statutory advice or guidance that is not legally enforceable. In a memorandum published at Appendix 3, the Department confirms that this is the case. The Committee remains concerned that guidance continues to be used in the context of the emergency pandemic response in a way that appears to purport to impose more severe restrictions than are imposed by law. The “new rules” were widely reported before the Regulations were published and have been the focus of public and media attention. The Committee is concerned that many readers will not readily appreciate the distinction in rule of law terms between provisions of regulations and paragraphs in government guidance; and a statement such as “the law will be updated to reflect these new rules” is likely to add to the confusion by suggesting exact correspondence between the “rules” (which are not in fact rules but guidance) and the law. The Committee considered it important to have confirmed on the record that a number of specific provisions of the guidance, despite being described by Ministers as “rules” and using imperative language, are in fact no more than guidance , and accordingly reports the Regulations for requiring elucidation, provided in the Department’s memorandum.

3.4These Regulations also tighten some of the Tier 4 restrictions. Paragraphs (4)(d) and (e) and (6)(a) and (b) of regulation 3 amend childcare-related exceptions to the prohibition on leaving home so that it is permitted for a critical worker to leave their home, or for a gathering to take place indoors or outdoors, if it is reasonably necessary for the purposes of “later years provision, within the meaning of section 96(6) of the Childcare Act 2006”. The Committee asked the Department to explain an apparent discrepancy between these references to later years provision and the description of the effect of the amendments in paragraph 6.16 of the Explanatory Memorandum. In its memorandum, the Department explains the apparent discrepancy, and helpfully acknowledges that the Explanatory Memorandum could have been worded more clearly and undertakes to correct it. The Committee accordingly reports the Explanatory Memorandum to this instrument for requiring elucidation, provided by the Department’s memorandum.

3.5Paragraphs (4)(e) and (6)(b) of regulation 3 also define who is a critical worker for the purposes of the childcare exceptions by reference to the description of a critical worker in a piece of guidance published by the Cabinet Office and updated on 5 January 2021. A link to an electronic version of that guidance is provided in a footnote to regulation 3(4), but when the Committee considered the instrument, the link led to a version of the guidance updated on 8 January 2021. The Committee asked the Department to explain whether the definition of “relevant guidance” inserted by regulation 3 is intended to be ambulatory and, if not, where the “relevant guidance” that matches the definition may be found. In its memorandum, the Department explains that the definition is not intended to be ambulatory, provides the correct link to the 5 January guidance, and undertakes to correct the footnote by correction slip (which the Committee agrees would be a proper use of that procedure). The Committee notes that particular care should be taken to cite external documents correctly where, as here, they contain information that is necessary in order to understand the legislation. The Committee accordingly reports regulation 3(4) for defective drafting, acknowledged by the Department.

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