Instruments reported
At its meeting on 21 April 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. 2021/182: Reported for defective drafting
High Speed Rail (West Midlands—Crewe) (Planning Appeals) (Written Representations Procedure) 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.
1.2These Regulations, which are subject to the negative resolution procedure, make provision for the way written representations must be made in appeals against planning decisions relating to the HS2 railway between Fradley Wood (Staffordshire) and Crewe.
1.3Several regulations impose time limits within which specified actions must be taken. Some are drafted by reference to “a period of X days beginning with” a specified date. But regulations 4(3) and 9(5) only refer to an action being taken “within 7 days of receipt” of a document. The Committee asked the Departments for Transport and Housing, Communities and Local Government to explain whether, in those cases, the seven-day period is intended to include the date of receipt. In a memorandum printed at Appendix 1, the Department for Transport explains that this is the intent and asserts that it is achieved by the use of “within”. The Committee disagrees: the formula “within X days of receipt” is ambiguous as to whether time begins to run from the date of receipt or from the following day. The ambiguity is particularly undesirable since a different and clear formula is used elsewhere in the same Regulations. The Committee accordingly reports regulations 4(3) and 9(5) for defective drafting, partly acknowledged by the Department.
1.4Regulation 2(2) requires written representations made in the context of appeals to be made “in writing”, which is defined in regulation 2(1) as “including” transmissions sent electronically. Regulation 4 provides that where the Regulations require documents to be submitted or copied to various parties, this may be done either electronically (where the party has consented to electronic transmission and has not withdrawn that consent) or by post. Section 7 of the Interpretation Act 1978 will, of course, provide a presumption of receipt in accordance with “the ordinary course of post”; but that does not provide a clear date of receipt for the purposes of commencing a time period. The Committee therefore asked the Department to explain how it is intended that the date of receipt be determined for the purposes of regulation 9(5) where a document has been sent by post. In its memorandum, the Department asserts that “it is expected that arrangements would be made by the Planning Inspectorate (who undertakes the appeal process) to ensure that controls were put in place for the appropriate acknowledgment of receipt”. Administrative arrangements of this kind, even if operated consistently and effectively, cannot compensate for the legal uncertainty, which could have been avoided if the time period had been expressed to start from the date of the sending of the document (as has been done elsewhere in the Regulations) or in some other equally clear way. The Committee accordingly reports regulation 9(5) for defective drafting.
2S.I. 2021/184: Reported for failure to comply with proper legislative practice
Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2021
2.1The 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.
2.2These Regulations, which are subject to the negative resolution procedure, bring into force guidance relating to adults at risk in immigration detention, which was laid before Parliament in draft on 22 February 2021. The Explanatory Note and the Explanatory Memorandum state that the guidance “will be published” in hard copy and that it “will also be available” on the gov.uk website. The Committee asked the Home Office to explain why the guidance had not been published to coincide with the making of the instrument. In a memorandum printed at Appendix 2, the Department provides details of, and a link to, the publication of the draft guidance. The Committee believes that where the sole purpose of Regulations is to give effect to a document, the document should be published in final form at the same time as the Regulations. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.
3S.I. 2021/252: Reported for unjustifiable delay and for unusual or unexpected use of enabling powers
Health Protection (Coronavirus, International Travel and Information for Passengers) (England) (Amendment) Regulations 2021
3.1The Committee draws the special attention of both Houses to these Regulations on the grounds that there was an unjustifiable delay in laying them before Parliament and that they make unusual or unexpected use of the enabling powers in one respect.
3.2These Regulations, which are subject to the negative resolution procedure, amend the Health Protection (Coronavirus, Public Health Information for Passengers Travelling to England) Regulations 2020 (S.I. 2020/567) by imposing a duty on operators of commercial passenger transport services to provide specified information to passengers who are leaving England for a place outside the common travel area and are required by other Regulations to fill out a “travel declaration form”.
3.3The instrument was made on Friday 5 March. Most of it came into force at 4am on Monday 8 March, before the instrument was laid before Parliament. The Committee asked the Department for Transport to explain why the instrument could not have been made in time to be laid before Parliament before coming into force, given that the document setting out the policy as to travel declaration forms was published on 22 February, and that the Regulations which implemented that policy (S.I. 2021/247) were made at 12:38pm on 5 March and laid at 2:25pm the same day. In a memorandum printed at Appendix 3, the Department explains that as this instrument was not made until after S.I. 2021/247 for reasons of certainty, there was not enough time for the relevant administrative steps to be taken to lay it on the same day. The Committee has been clear that cross-Government business planning is not an acceptable reason to delay laying instruments before Parliament (see paragraphs 2.8 to 2.14 of its special report Transparency and Accountability in Subordinate Legislation), and although the Committee is normally only troubled by unjustifiable delay when it amounts to several days, in cases where an instrument has already come into force even a delay of a few hours becomes unacceptable. The Committee has noted with growing concern the number of coronavirus-related instruments that have come into force before being laid. Although section 4 of the Statutory Instruments Act 1946 implicitly acknowledges that this may at times be “essential”, that Act also makes the link between accessibility of subordinate legislation and enforceability (see, in particular, section 3(2)). It is inherently and obviously undesirable in rule of law terms for law to come into force before its text is available to the public who are bound to comply with it, and the Committee expects the Government to make every effort to avoid such a situation. In this case, particularly considering the two-week gap between the publication of the policy and the making of the implementing legislation, the Department should have taken the necessary administrative steps to ensure that this instrument was made and laid immediately after S.I. 2021/247 and before it came into force. The Committee accordingly reports this instrument for an unjustifiable delay in laying before Parliament.
3.4Regulation 13 sets out the information that operators must provide to outbound travellers. It includes the statements “you can only travel for essential reasons” and “you can only travel internationally from England for legally permitted reasons. This does not include holidays”. The Committee asked the Department to identify the specific provisions where these restrictions are enacted. In its memorandum, the Department acknowledges that outbound international travel was not expressly restricted at the time this instrument was made. It asserts that because Schedules 3A and 4 of S.I. 2020/1374 prohibited a person in England from being outside the place where they were living without reasonable excuse, “leaving home to take a holiday abroad was effectively prohibited”. It makes no comment as to the statement about travelling “only for essential reasons”. The Department also asserts that “communications for the general public should focus on the consequences of measures” and that “an explanation of the indirect nature of the prohibition would not have assisted public understanding”. The Committee does not accept this. There has never been a prohibition on travel (or leaving home) for reasons that were not “essential”—they only needed to be “reasonable”. Even when the Government legislated on 22 March to restrict international travel they did so by reference to a non-exhaustive list of reasonable excuses, so to say that foreign holidays are “effectively prohibited” is still a gloss on the regulations rather than a statement of the law. A statement of the law in a prescribed statutory form must be an accurate reflection of the law as it is. A statement that purports to reflect what the law is, but in fact represents what the Government would like the law to be, is dangerously misleading; and the Committee is troubled by the suggestion that meticulous accuracy in stating the effect of the law “would not have assisted public understanding”. The Committee does not believe that Parliament intends enabling powers to be used to prescribe forms containing misleading statements about the law, and accordingly reports regulation 13 for making an unusual or unexpected use of the enabling powers.
Published: 23 April 2021 Site information Accessibility statement