At its meeting on 28 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 five 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 ground that they require elucidation in one respect.
1.2These Regulations, which are subject to the made affirmative resolution procedure, amend S.I. 2021/364 (“the Steps Regulations”) and S.I. 2021/1375 (“the Enforcement Regulations”). Each of those instruments includes a statement, as required by section 45D(1) of the Public Health (Control of Disease) Act 1984, that the Minister considers the restrictions or requirements it imposes under section 45C(3)(c) of that Act to be proportionate to what they seek to achieve. The preamble to these Regulations contains a statutory proportionality statement in respect of the Steps Regulations but not in respect of the Enforcement Regulations. The Committee asked the Department of Health and Social Care to explain the omission. In a memorandum printed at Appendix 1, the Department asserts that no statement is required for the amendment of the Enforcement Regulations made by regulation 3, because it does not impose a restriction or requirement under section 45C(3)(c). The Committee believes there are arguments either way, based in part on the difference between imposing a restriction or requirement and enabling a restriction or requirement to be imposed and in part on construction of Part 2 of the Enforcement Regulations. But the Committee notes the Department’s approach and accordingly reports regulation 3 for requiring elucidation, provided in the Department’s memorandum.
2.2 These Regulations, which are subject to the negative resolution procedure, impose a domestic sanctions regime in respect of Libya to replace the equivalent EU regime that applied while the United Kingdom was an EU member State. Regulation 42 sets out powers and prohibitions relating to aircraft being used to transport military goods or armed personnel to Libya. Paragraph (2) prohibits such aircraft from taking off from, overflying or landing in the United Kingdom. Paragraphs (3) to (5) allow air traffic control to refuse such aircraft permission to enter, or require them to leave, UK airspace, and to issue related instructions. Paragraph (6) requires airport operators to prohibit such aircraft from taking off from or landing at the airport. Paragraph (8) creates offences in relation to paragraphs (2) and (6). The Committee asked the Foreign, Commonwealth and Development Office to explain how contravention of a prohibition, or failure to comply with a requirement or instruction, under paragraphs (3) to (5) will be enforced. In a helpful memorandum printed at Appendix 2, the Department provides that explanation. The Committee accordingly reports regulation 42 for requiring elucidation, provided in the Department’s memorandum.
3.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are require elucidation in one respect and are defectively drafted in another respect.
3.2 These Regulations, which are subject to the negative resolution procedure, remove the cap (imposed by the Restriction of Public Sector Exit Payments Regulations 2020) which restricted prescribed public sector bodies from making exit payments above £95,000 in connection with a person leaving employment or vacating office. Regulation 4(3) provides for a person who has been paid an exit payment which was capped by the 2020 Regulations to receive an additional payment representing the difference between the amount of the payment made and the amount that would have been payable had the 2020 Regulations never applied plus interest. It appeared to the Committee that HM Treasury were relying on the power in section 161(2)(e) of the Small Business, Enterprise and Employment Act 2015 for this retrospective effect. That power allows regulations to make “incidental, supplementary, consequential, transitional or transitory provision or savings”. The Committee asked the Department to justify making retrospective provision in reliance on such a general provision. In a memorandum printed at Appendix 3, the Department argues that the Regulations do not have retrospective effect. But the Department asserts that “the obligation to pay the additional payment enables the individual to receive what she would have been entitled to receive as a result of any contractual or statutory entitlement had the cap not applied thereby achieving fairness and legal certainty for individuals and authorities in consequence of those court proceedings”. The Committee sees that as a clear case of changing legal rights and obligations with effect from a time before the Regulations were made, which is the essence of retrospective legislation. As a general principle, retrospective provision requires express cover in the enabling powers. In some contexts, making retrospective provision in reliance on general words would raise a significant doubt as to vires; in this context, however, the Committee is satisfied that the provision made falls within the reasonable contemplation of the power to make transitional provision, and is content to report regulation 4 for requiring elucidation.
3.3 The Committee also asked the Department to confirm that in regulation 4(3) the cross-reference should be to the greater amount referred to in paragraph 2(b) (rather than to paragraph 3(b)). In its memorandum, the Department confirms the error and the Committee accordingly reports regulation 4(3) for defective drafting, acknowledged by the Department.
4.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
4.2 These Regulations, which are subject to the negative resolution procedure, set the public sector apprenticeships target for specified public sector bodies. Regulation 6 amends the Public Sector Apprenticeship Targets Regulations 2017 (S.I. 2017/513) to omit the definition of “active period” and wording referring to that phrase. As one reference to “active period” remains in the regulation, the Committee asked the Department to explain the omission of the definition. In a memorandum printed at Appendix 4, the Department acknowledges that the remaining reference to “active period” should also have been omitted. The Department asserts that the erroneous reference does not affect the calculation of the apprenticeship target. The Committee does not agree. The 2017 Regulations as amended include a target figure that is arrived at by reference to a phrase that is not defined and which has no natural meaning (which is why it was formerly defined). The Committee accordingly reports regulation 6 for defective drafting, acknowledged by the Department.
5.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
5.2 These Regulations, which are subject to the negative resolution procedure, provide exemptions from managed self-isolation for severe medical and vulnerable cases and for those who have travelled to visit a severely ill or dying relative. In both cases four conditions are set out in paragraphs (a) to (d) of the exemption (paragraphs 18(3A) and 18(3C) of Schedule B1A (inserted by regulation 5(3)). The Committee was unclear whether these conditions were intended to be cumulative as the word “and” does not appear before the respective sub-paragraphs (d) and, in particular, because an existing similar exemption in paragraph 18(3) of Schedule B1A (children attending boarding school) does contain the word “and” before sub-paragraph (d) of that paragraph. The Committee asked the Department of Health and Social Care to confirm whether the conditions in paragraphs (a) to (d) of new paragraphs 18(3A) and (3C) are intended to be cumulative. In a memorandum printed at Appendix 5, the Department gives the required confirmation and accepts that it would have been preferable for paragraph (d) in sub-paragraphs (3A) and (3C) to have been preceded by “and”. The Committee accordingly reports regulation 5(3) for defective drafting, acknowledged by the Department.