Instruments reported
At its meeting on 6 May 2020 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 seven 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. 2020/236: Reported for unjustifiable delay
Animals (Scientific Procedures) Act 1986 (Fees) Order 2020
1.1The Committee draws the special attention of both Houses to this Order on the ground that there was unjustifiable delay in laying before Parliament.
1.2This Order prescribes an increase of the licence fees payable under the Animals (Scientific Procedures) Act 1986. It was made on 12 February 2020 but not laid before Parliament until 6 March. (It comes into force on 6 April.) In the Explanatory Memorandum the Home Office explains that the long delay between the making and laying of this instrument was due to “administrative oversight”. On being invited by the Committee to amplify this explanation the Department acknowledges that this situation should not have occurred, apologises and states that measures have been put in place to prevent repetition. In its First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation at paragraph 2.8, the Committee observed that “laying before Parliament is not a meaningless formality, but an important part of access to justice and the rule of law … [and] part of the required formal measures by which publicity is assured. … Even if the instrument comes into force some months later after being made, Parliament and the general public are entitled to as much notice of the prospective law as the Government has itself, and the legal and practical effects of an instrument may be felt long before the date on which it comes into force.“ Despite the present difficult circumstances, there is no reason why an instrument should not be laid as soon as being made. The Committee is grateful to the Department for acknowledging the seriousness of what occurred on this occasion and undertaking to avoid repetition, and will monitor the laying dates of Home Office instruments to confirm that the necessary lessons have been learned at Departmental level. The Committee accordingly reports this Order for unjustifiable delay in laying before Parliament, acknowledged by the Department.
2S.I. 2020/293: Reported for requiring elucidation
Legal Services Act 2007 (Designation as a Licensing Authority) Order 2020
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 designates the Institute of Chartered Accountants in England and Wales (“ICAEW”) as a licensing authority in relation to the administration of oaths. The procedure for making such a designation is set out in Schedule 10 to the Legal Services Act 2007: it requires, among other things, an application to the Legal Standards Board (“LSB”), a final decision by the Lord Chancellor, and action within certain time limits. The Explanatory Memorandum to this Order states that the ICAEW applied in June 2016 to be designated in relation to five reserved legal activities (including the administration of oaths) and provides a link to “all referenced documents” on the LSB website; when the Committee considered this Order, these included a single decision notice from the Lord Chancellor, which was dated 21 September 2017 and recorded his decision “not to make the Orders at this time”. The Committee asked the Ministry of Justice to explain the basis on which this Order is made, given the decision of 21 September 2017. The Committee also asked the Department to explain the reason for the apparent delay in making this Order, given the date of the application. In a memorandum printed at Appendix 2, the Department explains that the Lord Chancellor’s decision was quashed in judicial review proceedings in so far as it concerned the administration of oaths, and a new decision notice was issued on 21 May 2019 in relation to that part of the application only. The Department asserts that as the second decision notice was issued in May 2019, there was no unreasonable delay. The Committee finds this explanation helpful and accordingly reports this Order for requiring elucidation, provided by the Department’s memorandum.
3S.I. 2020/314: Reported for defective drafting
First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2020
3.1The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in one respect.
3.2This Order introduces a means-tested scheme to the First-tier Tribunal (Immigration and Asylum Chamber) for remission of fees for appellants who are in the United Kingdom when they bring the appeal. Paragraph 15(1) of the new Schedule (inserted by article 2(4)) states “An application for remission of a fee must be made at the time when the fee would otherwise be payable.” Paragraph 15(3) states “Where an application for remission of a fee is made on or before the date on which the fee is payable, the date for payment of the fee is disapplied.” The Committee asked the Ministry of Justice to explain this inconsistency. In a memorandum printed at Appendix 3, the Department acknowledges the apparent inconsistency but states that the drafting accurately reflects the Department’s policy that an application for remission should be submitted at the time the fee becomes payable. The Department goes on to say that as a matter of “operational pragmatism” it is also willing to accept remission applications which are submitted earlier and that accordingly paragraph 15(3) provides that an application which is submitted earlier than paragraph 15(1) requires will nonetheless also lead to a suspension of the payment deadline. As a matter of legislative practice this is unacceptable: the public is entitled to expect legislation to be drafted in clear and unambiguous propositions. Either it is a legal requirement to apply for remission at the time when the fee would be payable, or one can also apply before. If the policy is to require application at the due date ordinarily, but to permit early application in exceptional circumstances, that should have been stated and the legislation should have set criteria for determining exceptionality in the context. Paragraphs 15(1) and (3) are simply inconsistent. The Committee accordingly reports paragraph 15 of the new Schedule (inserted by article 2(4)) for defective drafting.
4S.I. 2020/345: Reported for defective drafting
Abortion (Northern Ireland) Regulations 2020
4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
4.2Regulation 10(1) requires a registered medical professional who terminates a pregnancy to give the Chief Medical Officer of the Department for Health in Northern Ireland notice of the termination, together with the other information specified in the Schedule to the Regulations. Paragraph 7 of the Schedule requires the information to include the certified grounds for terminating the pregnancy and also, in specified cases, medical information about the mother or the fetus. Paragraph 7(c), which requires information about fetal abnormalities, is expressed to apply “in a case falling within regulation 8”. The reference to regulation 8 appears to be incorrect because that regulation relates to places where treatment for terminations may be carried out. Accordingly, the Committee asked the Northern Ireland Office to explain the reference to regulation 8 in paragraph 7(c) and whether there are any other errors in the references to regulations in that paragraph.
4.3In a memorandum printed at Appendix 4, the Department acknowledges the following cross-referencing errors in paragraph 7 of the Schedule:
a)in sub-paragraph (a), the reference to regulations 5 and 6 should be to regulations 4 and 5;
b)in sub-paragraph (b), the reference to regulation 7 should be to regulation 6; and
c)in sub-paragraph(c), the reference to regulation 8 should be to regulation 7.
4.4The Department states that the Regulations will be corrected when a suitable opportunity arises. The lack of urgency to make the necessary changes appears to be based on a belief that those required to provide the information, because they are provided with notification forms, will provide the information that would have been required had paragraph 7 been correctly drafted and that they will not be misled as to what data to provide. The Committee does not consider this provides a good reason for a delay in making the necessary changes to the Regulations. In the view of the Committee, it is not appropriate, where a statutory duty is imposed on a person backed by a criminal offence (as is the case here), to rely on that person doing something other than what the legislation requires because the provision is defectively drafted. The Committee considers that the Department should make the changes at the earliest available opportunity. The Committee accordingly reports paragraph 7 of the Schedule for defective drafting, acknowledged by the Department.
5S.I. 2020/351: Reported for defective drafting
National Health Service (Amendments Relating to the Provision of Primary Care Services During a Pandemic etc.) Regulations 2020
5.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in two respects.
5.2These Regulations are made in response to the Covid-19 emergency. They amend terms governing primary care services provided to the NHS in England; the amendments are drafted broadly so that they may also be triggered in relation to any future pandemic.
5.3Regulations 16 and 21 amend provisions that enable patients to book appointments directly by NHS 111: as a result of the amendments, patients will also be able to book appointments using a service “accessed via NHS 111”. The Committee asked the Department of Health and Social Care to explain whether it intends that relevant cross-references to direct booking by NHS 111 should also apply to booking using a service “accessed via NHS 111”. In a memorandum printed at Appendix 5, the Department acknowledges that this is its intent and undertakes to correct the relevant cross-references when a suitable opportunity arises. The Committee welcomes the Department’s undertaking and accordingly reports regulations 16 and 21 for defective drafting, acknowledged by the Department.
5.4Throughout these Regulations, the event that triggers amendment of the relevant terms of service is an announcement made by the NHS Commissioning Board with the agreement of the Secretary of State. The Committee asked the Department whether the formula “may make an announcement” used in regulations 14 and 19 is intended to have a different meaning from the formula “has made an announcement” used in regulations 15 and 20 (and elsewhere in the Regulations). In its memorandum, the Department acknowledges that it should have used the latter formula consistently as no difference of meaning was intended, and it undertakes to correct the error. The Committee accordingly reports regulations 14 and 19 for defective drafting, acknowledged by the Department.
6S.I. 2020/360: Reported for failure to comply with proper legislative practice and for unjustifiable delay
Investigatory Powers (Temporary Judicial Commissioners and Modification of Time Limits) Regulations 2020
6.1The 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 that there was unjustifiable delay in sending the notification under the proviso to section 4(1) of the Statutory Instruments Act 1946.
6.2These Regulations ensure that warrants can continue to be approved by Judicial Commissioners under the Investigatory Powers Act 2016 during the coronavirus pandemic. Regulation 1(2) states that the Regulations come into force “on the day after they are made” whereas paragraph 3.1 of the Explanatory Memorandum states that the instrument commences “the day after the day on which it is laid”. The Committee asked the Home Office to explain the inconsistency. In a memorandum printed at Appendix 6, the Department confirms that the Explanatory Memorandum was incorrect and undertakes to lay a revised version. For obvious reasons it is important that the Explanatory Memorandum to an instrument (which may be what some citizens rely on in order to understand the change in the law) is consistent with the provisions of the instrument. The Committee accordingly reports the Explanatory Memorandum for failure to comply with proper legislative practice, acknowledged by the Department.
6.3The combined effect of regulation 1(2) and sections 4(a) and 23(1) of the Interpretation Act 1978 means that this instrument came into force before it was laid before Parliament. The proviso to section 4(1) of the Statutory Instruments Act 1946 provides that if it is essential that an instrument comes into operation before copies can be laid, notification must be sent to the Speaker of the House of Commons and the Speaker of the House of Lords drawing attention to that fact and explaining why such copies were not laid before the instrument came into operation. The Committee asked the Department to confirm whether these notifications were sent. In its memorandum, the Department explains that the notification requirement was overlooked due to the urgent need to ensure the resilience of the investigatory powers warrant process. The Department undertakes to send the required notifications and to make reference to such notifications in the revised Explanatory Memorandum. The Committee accordingly reports these Regulations for unjustifiable delay in sending the notification under the proviso to section 4(1) of the Statutory Instruments Act 1946, acknowledged by the Department.
7S.I. 2020/364: Reported for defective drafting and for doubtful vires
Nursing and Midwifery Council (Emergency Procedures) (Amendment) Rules 2020 Order of Council 2020
7.1The Committee draws the special attention of both Houses to this Order on the grounds that it is defectively drafted in one respect and there is doubt as to whether it is intra vires in two respects.
7.2This Order is made in response to the Covid-19 emergency. It amends several provisions relating to the operating procedures of the Nursing and Midwifery Council (“NMC”). Rule 2 provides that the amendments come into effect and cease to have effect when the Secretary of State advises the Registrar of specified matters. The Committee asked the Department of Health and Social Care to explain what powers are relied on to sub-delegate those decisions to the Secretary of State, and how people affected by amendments in this instrument will know when the Secretary of State has advised the Registrar of the matters in question.
7.3In a memorandum printed at Appendix 7, the Department asserts that there is no sub-delegation because “Rule 2 provides a condition for triggering the switching on and off of the modifications made by the instrument. That condition is by reference to an external event which is entirely unrelated to the making of the instrument itself, namely the issuing of a notification by the Secretary of State under article 9A of the [Nursing and Midwifery Order 2001] (as inserted by the Coronavirus Act 2020), as regards the occurrence or ending of an emergency or the expiry of section 2 of, and Schedule 1 to, the Coronavirus Act 2020”. It may be that the policy intention was for these Rules to lapse when the Secretary of State advises the Registrar under article 9A(7) of the 2001 Order that the emergency is over, but that is not what rule 2 achieves: it provides for the amendments to lapse when the Secretary of State advises the Registrar under rule 2. That could be at the same time as the advice under rule 9A(7), but it could be at a different time. As the instrument is drafted, therefore, rule 2 sub-delegates to the Secretary of State the power to end its effect, without express cover in the enabling power, and the Committee accordingly reports rule 2 on the ground that there is a doubt as to whether it is intra vires.
7.4In its memorandum the Department also explains that administrative steps have already been taken for the NMC and other affected parties to be made aware that the amendments have come into effect; it presumes similar steps will be taken for the same parties to be made aware that the amendments have ceased to have effect. The Committee is not persuaded that a presumption as to what administrative steps the Secretary of State and the NMC are likely to take provides the degree of certainty that legislation requires, and accordingly reports rule 2 for defective drafting.
7.5Rule 5(2) amends rules relating to the quorum and composition of the NMC’s Practice Committees (i.e., the Investigating Committee and the Fitness to Practice Committee). The Committee asked the Department to clarify which enabling powers are relied on to make this rule. In its memorandum, the Department states that it relies on articles 26(3) and 32(1) of the Nursing and Midwifery Order 2001, which provide for the NMC to make rules as to the procedure to be followed by each of those Committees. The Department acknowledges that it ought also to have cited paragraph 17(1) of Schedule 1 to the 2001 Order, which provides expressly for the NMC to make rules as to the Committees’ quorum and composition; it undertakes to correct the error when a suitable opportunity arises. The Committee welcomes this undertaking. As it has noted before, since the decision of the Court of Appeal in Vibixa Ltd v Komori UK Ltd [2006] EWCA Civ 536, failure to cite a necessary enabling power in the preamble renders a provision ultra vires. Accordingly, the Committee reports this Order on the ground that the omission from the preamble, acknowledged by the Department, gives rise to a doubt as to whether rule 5(2) is intra vires.
Published: 8 May 2020