At its meeting on 17 March 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 eight 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 grounds that they require elucidation in one respect and that they are defectively drafted in another respect.
1.2These Regulations, which are subject to the negative resolution procedure, amend the retained EU law version of Commission Decision 2000/572/EC (“the Decision”) so that it applies to the import into England of meat from third countries, and so as to remove temporarily the prohibition on importing chilled meat products from the EEA that would otherwise have applied from the end of the transition period. They are made under paragraph 11A(1) of Schedule 2 to S.I. 2011/1197, which provides:
The Secretary of State may by regulations impose special import conditions in respect of imports from third countries of products of animal origin intended for human consumption, having regard to the animal health situation of the third country or countries concerned, and may for that purpose amend, modify or revoke any retained direct minor EU legislation made under Article 8(4) of Council Directive 2002/99/EC (“the 2002 Directive”; emphasis added).
1.3The Committee asked the Department for Environment, Food and Rural Affairs to explain the basis on which this enabling power is relied on, given that the Decision was made under Council Directive 94/65/EC (“the 1994 Directive”).
1.4In a memorandum printed at Appendix 1, the Department notes that the 1994 Directive was later repealed and, thanks to a provision in the repealing instrument, references to it in other EU legislation are to be construed as references to the 2002 Directive. The Department asserts that this gloss must be applied to such references where they appear in the recitals to the Decision as retained EU law (as it would have been in EU law immediately before the end of the transition period), and that the Decision must consequently be read as having been made under the 2002 Directive for the purposes of the enabling power. The Committee: accepts that the courts are likely to be forced to this conclusion; notes that it would have been helpful to readers, in the light of the general complexity of retained EU law and the particular complexities of this case, to have explained the chain of amendments by way of footnote to the instrument; and accordingly reports the preamble to these Regulations as requiring elucidation, provided in the Department’s memorandum.
1.5Regulation 1(2) provides that these Regulations come into force “on the day after the day on which IP completion day falls, immediately following the coming into force” of specified provisions that come into force on IP completion day. “IP completion day” is defined in section 39 of the European Union (Withdrawal Agreement) Act 2020 as 31 December 2020 at 11pm. Consequently, and by operation of section 4 of the Interpretation Act 1978, provisions expressed to come into force “on the day after the day on which IP completion day falls” do so at the beginning of 1 January 2021. It appeared to the Committee that this was incompatible with commencing immediately after 11pm on 31 December 2020. It asked the Department to explain when it intended these Regulations to come into force. In its memorandum, the Department asserts that regulation 1(2) should be construed as providing “for the instrument to come into force on the day after the day on which IP completion day fell, but not earlier than immediately after the coming into force of” the specified provisions. Despite the Department’s explanation in its memorandum of why it had thought it necessary to include the second proposition, the result simply does not make sense: once it is provided that the regulations come into force on the day after the day of IP completion, it adds nothing to say that they come into force not earlier than the coming into force of provisions which commenced at 11pm the previous day. (The possibility of change to IP completion day could have been addressed by a “whichever is the later” commencement provision.) As drafted, the commencement provision simply contains two propositions that are inherently contradictory, and the Committee accordingly reports regulation 1(2) for defective drafting.
2.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect.
2.2This Order, which is subject to the negative resolution procedure, amends the General Pharmaceutical Council Rules to ensure that the Council’s processes can continue during the coronavirus pandemic. The Order comes into force on 4 March 2021 (49 days after it is laid before Parliament) and most of the amendments made by the Rules (set out in the Schedule) expire on 1 May 2021. The Committee asked the Department of Health and Social Care to explain the reasons for the commencement date and the expiry date. In a memorandum printed at Appendix 2, the Department explains that as the instrument was also laid before the Scottish Parliament, the instrument came into force on 4 March 2021 to reflect the need to lay negative procedure instruments before the Scottish Parliament for at least 40 days before they come into force. In relation to the expiry date, the Department explains that the Council indicated in the consultation on the Rules that they would only remain in place until 1 May 2021 and the short period during which the Rules are in place will be used to assess their impact with a view to introducing new Rules later in the year if appropriate. The Committee is grateful for these explanations and accordingly reports this Order for requiring elucidation, provided by the Department’s memorandum.
3.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect and that there is doubt as to whether it is intra vires in four related respects.
3.2This Order, which is subject to the negative resolution procedure, amends the Health and Care Professions Council Rules to ensure that the Council’s processes can continue during the coronavirus pandemic and future emergencies. The Order comes into force 49 days after it is laid before Parliament, and the Committee asked the Department of Health and Social Care to explain why. In a memorandum printed at Appendix 3, the Department gives an explanation similar to that discussed in relation to S.I. 2021/26 above, and the Committee accordingly reports this Order for requiring elucidation, provided by the Department’s memorandum.
3.3The Order inserts into four sets of rules a provision relating to emergency virtual meetings and hearings. As a result of the inserted provision, when an emergency exists a meeting or hearing arranged under each set of rules can be conducted virtually. An emergency exists “where the Registrar considers that an emergency, as defined in Article 9A(12) of the [Health Professions Order 2001], has occurred, is occurring or is about to occur” (inserted paragraph 2A(3) in each of paragraphs 2(2), 3(2), 4(2) and 5(2) of the Schedule). The Committee asked the Department to identify the enabling power for this sub-delegation. In its memorandum, the Department concedes that there is no power that permits this element of sub-delegation and undertakes to rectify the issue as soon as possible (which the Committee takes as an undertaking to amend the instrument to provide objective criteria for the invocation of the new powers, as soon as can be arranged). The Committee accordingly reports inserted paragraph 2A(3) in each of paragraphs 2(2), 3(2), 4(2) and 5(2) of the Schedule for doubt as to whether they are intra vires.
4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they make unusual or unexpected use of the enabling power in one respect.
4.2These Regulations, which are subject to the negative resolution procedure, introduce requirements for operators of commercial transport services to ensure that passengers travelling to England from outside the common travel area complete a Passenger Locator Form and possess notification of a negative test result. An operator who fails to ensure that a passenger has completed a Passenger Locator Form commits an offence (regulation 8(1)). It is a defence for an operator to show that it recorded a unique passenger reference number for the relevant passenger before that passenger boarded the relevant service (regulation 8(3)). (A unique passenger reference number is a number received by the passenger from the Home Office on completion of the Passenger Locator Form.)
4.3Regulation 8(5) defines “unique passenger reference number” as “a reference number which has been provided by or on behalf of the relevant passenger and which includes the letters “UKVI” followed immediately by an underscore and thirteen alphanumeric characters.” The Committee asked the Department for Transport to explain how an operator will know whether the unique passenger reference number provided by the passenger is a number received from the Home Office rather than a number falsified by the passenger in the correct format. In a memorandum printed at Appendix 4, the Department explains that operators are not required to verify the reference number as real time verification would impose a significant burden. The Department recognises that this approach does not ensure that every passenger will have completed a Passenger Locator Form before boarding and accepts that it is possible for a passenger to falsify a unique passenger reference number. The Committee finds this surprising: legislation is not the place for the expression of hopes and requests, and if an obligation is placed on a person there should be a means of ensuring and enforcing compliance. The Committee does not understand the logic of creating an offence that can be committed by the operator subject to a defence that a passenger gave them a number, if that number can be a complete fabrication. The result appears to create such obvious avoidance opportunities that the Committee reports regulation 8 for making unusual or unexpected use of the enabling power.
4.4(The Committee also asked the Department to explain what criminal or other legal consequences arise from a passenger falsifying a unique passenger reference number. In its memorandum, the Department confirms that providing a false passenger reference number to an operator is not specifically prohibited. This compounds the illogicality of the result described in the previous paragraph.)
5.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in one respect, are defectively drafted in three respects and fail to comply with proper legislative practice in one respect.
5.2This Order, which is subject to the negative resolution procedure, modernises and consolidates the statutory harbour powers applying to Weymouth Harbour.
5.3The Committee asked the Marine Management Organisation to explain the meaning of an “appropriate interest” in land in articles 34 and 35. In a memorandum printed at Appendix 5, the Department explains that the meaning of “appropriate interest” was intended to include interests in land which fall short of freehold ownership or lease (such as easements). Having reconsidered the matter and the definition of “land” in the Interpretation Act 1978, however, the Department accepts that the word is not necessary and undertakes to ensure the error does not occur again. Unnecessary replication of provisions of the Interpretation Act has the potential for misunderstanding and confusion and the Committee accordingly reports regulations 34 and 35 for defective drafting, acknowledged by the Department.
5.4The Committee also asked the Department to explain (having regard to Schedule 1 to the Interpretation Act 1978) what the expression “person or body” in article 40(2) achieves that could not be achieved by “person” alone. In its memorandum, the Department accepts that the words “or body” are unnecessary and undertakes to ensure that the error does not occur again. The Committee accordingly reports article 40(2) for defective drafting, acknowledged by the Department.
5.5(The Committee refers to its Thirty-Ninth Report of Session 2017–19 (in relation to S.I. 2018/1093) where it noted that legislative references to “person or body” have proliferated in recent years and expressed its concern that while some legislation uses “person” alone and presumably relies on the 1978 Act, other legislation chooses to use both words, which is unnecessary (and therefore confusing) and casts doubt on the scope of references elsewhere to “person” alone. To avoid this confusion, a consistent practice should be applied throughout all legislation.)
6.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
6.2These Regulations, which are subject to the negative resolution procedure, are made under section 8(1) of the European Union (Withdrawal Act) 2018 to address failures of retained EU law to operate effectively and other deficiencies. Previous instruments made under this section have contained “(EU Exit)” in the title and the Committee asked the Department for Work and Pensions to confirm whether practice within Government has changed. In a memorandum printed at Appendix 6, the Department confirms that the practice within Government following the expiry of the Transition Period is no longer automatically to include “(EU Exit)” in the title of instruments made under section 8 of the 2018 Act, subject to exceptions such as where an instrument is amending an earlier instrument with “(EU Exit)” in the title. The Committee believes that it might have been easier for readers trying to follow statutory trails if the heading convention, once adopted and generally understood, had been maintained until the section 8 power ceased to be used; both the change of practice and the exceptions may cause some confusion. But the Committee accepts that there are arguments in both directions (presumably including an argument based on an expectation that the section 8 vires will come to be used increasingly alongside other later powers). This is ultimately a question of style which the Committee believes is a matter for the Government, and the Committee accordingly reports these regulations for requiring elucidation, provided by the Department’s memorandum.
7.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in five respects.
7.2These Regulations, which are subject to the negative resolution procedure, introduce managed quarantine for travellers from high risk countries and mandatory testing for travellers from outside the common travel area prior to those travellers arriving in England. The Committee asked the Department of Health and Social Care to explain the meaning of “variant of concern” and “variant under investigation” in regulation 20. In a memorandum printed at Appendix 7, the Department explains the meanings and asserts that the terms have a commonly understood meaning in the scientific and public health community and do not need to be defined. The Committee disagrees. Terms used in legislation should be understandable to any user of that legislation. The Committee notes that the Department itself defines “variant of concern” in regulation 19 of these regulations (inserted paragraph 6(3)(c) of Schedule 2C) for the purposes of insertion into the Health Protection (Coronavirus, International Travel) (England) Regulations 2020: if the term was insufficiently clear to the reader in that context there is no reason why it should be clear to the reader in this context. Accordingly, definitions of “variant of concern” and “variant under investigation” should have been inserted into the Health Protection (Notification) Regulations 2010 amended by regulation 20 of these regulations; and the Committee reports regulation 20 for defective drafting.
7.3The Committee also asked the Department to explain (1) whether the cross-reference in regulation 6(c)(i) to “(d) or (e)” should be to “(c) or (e)”; (2) why the words in inserted paragraph 4B(2)(c) of regulation 7 do not flow from the opening words of regulation 4B(2); (3) why Regulation 20(3) (inserted regulation 4ZA(1)(c)) refers to a paragraph 6(1)(e) which does not exist and (4) whether the cross-reference in regulation 16(b) (inserted paragraph 7(b)) should be to paragraph “10(5)” rather than “10(4)”. In each case the Department acknowledges an error. It explains that the first three errors have already been corrected by a subsequent instrument and that it intends to make regulations to address the fourth error as soon as possible. The Committee accordingly reports regulations 6, 7, 16 and 20 for defective drafting, acknowledged by the Department.
8.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect and are defectively drafted in another respect.
8.2These Regulations, which are subject to the negative resolution procedure, ban the burning (without a licence) of specified vegetation in specified areas subject to limited exceptions. The exceptions in regulation 3 and the provisions for the licensing of burning in regulation 4 both refer to a burning season, the length of which depends on whether the land is an upland area. Regulation 2 defines upland area to mean “all the land shown coloured pink on the map marked as ’Map of Upland Area in England‘ held by the Department for Environment, Food and Rural Affairs but does not include the land coloured pink in the Isles of Scilly” and a footnote refers to an address where the map can be inspected upon application. The Committee asked the Department for Environment, Food and Rural Affairs to explain whether the map is available online. In a memorandum printed at Appendix 8, the Department explains that it is currently expected that the map will be published online before the instrument comes into force. Given the current restrictions on movement due to the pandemic and presumably the need for those affected by the legislation to make preparations, it appears to the Committee that it is unsatisfactory that the map is not currently available online (especially as the Department asserts that the map is intended to contain the same information as the map referenced in regulation 2 of the Heather and Grass etc. Burning (England) Regulations 2007). The Committee accordingly reports the regulations for requiring elucidation.
8.3The Committee also asked the Department why the reference to the map is not to a specific dated version. In its memorandum, the Department argues that the map in question is clearly identified and there is no doubt as to the map referred to. The Committee disagrees; without reference to a specific dated version of the map, there is a possibility that a new version could be substituted. The Committee notes that the 2007 Regulations include a reference to a specific dated version of the map and the Committee accordingly reports regulation 2 for defective drafting.
Published: 19 March 2021 Site information Accessibility statement