Forty-Fifth Report of Session 2019-21 Contents

Instruments reported

At its meeting on 24 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 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. 2021/247: Reported for defective drafting and for requiring elucidation

Health Protection (Coronavirus) (Wearing of Face Coverings in a Relevant Place and Restrictions: All Tiers) (England) (Amendment) Regulations 2021

1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two respects and require elucidation in one respect.

1.2These Regulations, which are subject to the made affirmative resolution procedure: (a) make provision in relation to the wearing of face coverings in polling stations; and (b) require travellers intending to leave the common travel area to complete a travel declaration form and present it to relevant persons when directed to do so.

1.3Regulation 2 amends the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020. Regulation 5 of the 2020 Regulations (enforcement of requirement to wear a face covering whilst entering or remaining within a relevant place) is amended by the insertion of new paragraph (7A), which states that the powers under regulation 5 may not be exercised in respect of a polling station “so as to prevent a voter who is otherwise entitled to vote at the polling station in any such election or referendum from doing so”. The Committee asked the Department of Health and Social Care to explain whether new regulation 5(7A) is intended to amount to an exemption for persons voting at a polling station from wearing masks. In a memorandum printed at Appendix 1, the Department asserts that regulation 5(7A) is not intended to amount to an exemption from wearing a face covering, and that the intended effect is that “if a person entitled to vote at that polling station … refuses to wear a face covering, that person cannot be subject to the enforcement powers in regulation 5 … until they have had an opportunity to vote”. By analogy with a similar provision elsewhere in election law, the Department asserts that “regulation 5(7A) does not prevent the voter being in breach of regulation 3(1), and therefore being subject to removal, a fine or other sanction after they have had the opportunity to vote”. The Committee remains unclear as to the effect of this provision. The Department’s explanation suggests that a person could be permitted to enter without a mask, allowed to vote, and then penalised for having failed to wear a mask on entry. The words of the inserted provision appear to the Committee to be capable of a range of meanings. A person might argue that the regulation 5 powers were being used to prevent them from voting if they were threatened with a penalty for entering without wearing a mask, irrespective of whether the penalty was to be imposed before or after they cast their vote. On the other hand, a returning officer could refuse entry to a person not wearing a mask and argue that this was not preventing them from voting at all provided that they complied with the requirement to wear a mask. The Department’s interpretation is also possible, although, to say the least, no more intuitive than the others. If the intention is that penalties can be imposed but only after a person has cast their vote, that could and should have been expressed clearly and simply; and the Committee accordingly reports regulation 2 for defective drafting.

1.4Paragraph 2A(4)(c) of Schedule 3A (inserted by regulation 3(7)(b)) exempts a person from completing a travel declaration form where that person is travelling to a destination in the common travel area and is “not travelling on to a final destination outside the common travel area”. The Committee asked the Department to explain how a relevant person will know whether this exemption applies and what evidence will need to be produced by a person to show that the exemption applies to them. In its memorandum, the Department explains that a relevant person would need to consider any representations made to them and any evidence that the person may wish to produce such as travel documents. The Committee understands that a person will be able to produce travel documents showing that they are travelling to a destination in the common travel area, but does not understand how the person will be able to prove a negative and produce evidence (other than their word) that they are not travelling on from that destination. The Committee doubts the enforceability of this provision in the light of the evidential difficulty identified, but is content to report paragraph 2A(4)(c) of Schedule 3A (inserted by regulation 3(7)(b)) for requiring elucidation, partly provided by the Department’s memorandum.

1.5In connection with the same paragraph, the Committee also asked the Department to explain what time limit is envisaged by the words “travelling on” in paragraph 2A(4)(c) and, if the person has to be in transit, to explain why a definition similar to the definition of “transit passenger” in regulation 3(8) (inserted paragraph 5 of Schedule 4A) was not used in this context. In its memorandum, the Department explains that no specific time limit is envisaged and “travelling on” is intended to capture onward travel as part of a single journey and is intended to be slightly broader than the “transit” provisions, as a person may, for example, have to break their journey overnight for a connecting flight. The Department states that whether a person is “travelling on” is ultimately a matter of assessment by the relevant person based on individual circumstances. The Committee observes that the relevant person has been provided with no criteria on which to base that judgment (and nor have the courts been provided with criteria against which to review a relevant person’s decisions). Clear objective criteria should have been included in the regulations to clarify what circumstances may or may not amount to “travelling on”, and in their absence the Committee reports paragraph 2A(4)(c) of Schedule 3A (inserted by regulation 3(7)(b)) for defective drafting.

2S.I. 2021/59: Reported for failure to comply with proper legislative practice and for unusual or unexpected use of enabling powers

School and Early Years Finance (England) Regulations 2021

2.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they fail to comply with proper legislative practice in one respect and make unusual or unexpected use of the enabling power in two respects.

2.2These Regulations, which are subject to the negative resolution procedure, relate to local authorities’ education budgets for the financial year 2021–2022.

2.3In two places the Regulations refer to the “2014 Document” which is defined in regulation 1(4). The footnote to the definition gives details of how to inspect the document at a specified address on request but does not take the usual step of providing a link to an electronic version. The Committee asked the Department for Education why an electronic link was not provided. In a memorandum printed at Appendix 2, the Department acknowledges the error and undertakes to correct it by way of correction slip. The Committee agrees that a correction slip would be appropriate. The Committee accordingly reports regulation 1(4) for failure to comply with proper legislative practice, acknowledged by the Department.

2.4The Regulations also make changes to meetings of school forums. School forums are required to hold public meetings. During the pandemic, a temporary change was made to allow these meetings to be held remotely (S.I. 2020/540). This change is now made permanent. The Committee asked the Department to explain how members of the public who do not have access to digital and telephone systems will have access to public meetings held by school forums. In its memorandum, the Department explains that it will be made clear in guidance that school forums should provide support or alternative arrangements where a person cannot attend a remote meeting by telephone or online. As drafted, however, the legislation makes no provision for attendance by those without remote access; and the possibility of supplementary provision being made by way of recommendations in guidance (that may or may not be implemented in practice) is not a substitute for a legal right to attend. The Committee does not consider that Parliament can have intended permanently to discriminate against people without ready access to internet or telephonic communications in this way, and accordingly reports regulation 35 for making unusual or unexpected use of the enabling power.

2.5Finally, the Regulations contain a list of items that may be removed from certain school budget shares (Part 6 of Schedule 2). The Committee noted that whilst the list included expenses in relation to “a woman on maternity leave or a person on adoption leave” it did not include expenses in relation to a person on paternity leave or shared parental leave. The Committee asked the Department to explain why. In its memorandum, the Department explains that it regrets the oversight and undertakes to address this in the instrument made for the 2022–2023 financial year. The Committee trusts the Department will neither operate the law, nor encourage anyone else to operate the law, in the form in which they wish it was made, rather than in the form in which it is made (see the Sixty-fifth Report of Session 2017–19 in relation to 2019/983); so until the amending instrument comes into force paternity leave and shared parental leave cannot lawfully be treated in the same way as maternity leave and adoption leave. Although the omission of paternity leave and shared parental leave does not amount to unlawful discrimination in this instance because the provision impacts on school budgets and not (directly) on individuals, the Committee does not believe that Parliament can have intended the Regulations to include maternity leave and adoption leave but to exclude paternity leave and shared parental leave (and indeed the Department admits that this was not the policy). The Committee accordingly reports Part 6 of Schedule 2 for making unusual or unexpected use of the enabling power, acknowledged by the Department.

3S.I. 2021/80: Reported for failure to comply with proper legislative practice

Criminal Legal Aid (Remuneration) (Amendment) Regulations 2021

3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in one respect.

3.2These Regulations, which are subject to the negative resolution procedure, correct two errors introduced by the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2020 (S.I. 2020/903) in relation to the rates at which criminal defence advocates and litigators are paid for reviewing unused material. The Committee asked the Ministry of Justice to explain why, that being the case, these Regulations are not being issued free of charge to everyone known to have received the earlier defective instrument (as set out in paragraph 3.5.20 of Statutory Instrument Practice, 5th Ed.). In a memorandum printed at Appendix 3, the Department acknowledges and apologises for the omission. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice, acknowledged by the Department.




Published: 26 March 2021 Site information    Accessibility statement