At its meeting on 20 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 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.
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.
1.2These Regulations transpose the revised EU Posting of Workers Directive (Directive 2018/957/EU) into domestic law. The preamble states that the Secretary of State and Lord Chancellor are acting jointly in making the Regulations. It appeared to the Committee that joint exercise was not available in relation to the provisions made under section 2(2) of the European Communities Act 1972, as the European Communities Designation Order 2000 designates the Secretary of State alone in relation to measures relating to employment rights and duties. The Committee asked the Department for Business Energy and Industrial Strategy to explain. In a memorandum printed at Appendix 1, the Department acknowledges that the preamble should have asserted that the Secretary of State and the Lord Chancellor were acting jointly only in exercise of the powers conferred by section 18(8) and (9) of the Employment Tribunals Act 1996; and the Secretary of State alone was exercising the powers under section 2(2) of the European Communities Act 1972 in accordance with the designation. The Committee accordingly reports the preamble for defective drafting, acknowledged by the Department.
2.1The Committee draws the special attention of both Houses to this Order on the ground that there is doubt as to whether it is intra vires in one respect.
2.2This Order is made in response to the coronavirus public health emergency. It disapplies certain prohibitions set out in the Competition Act 1998 in order to permit independent healthcare providers to work together to support the NHS in Wales. This collaboration is only allowed during the “healthcare disruption period”, which article 2 defines as beginning on 1 March 2020 and ending on a date specified by the Secretary of State under article 5(1). The Committee asked the Department for Business, Energy and Industrial Strategy to explain what powers are relied on to sub-delegate the decision as to the date on which the healthcare disruption period will end. In a memorandum printed at Appendix 2, the Department argues that “an emergency reserve power [of the kind relied on to make this Order] would have been intended to be construed widely and that it would have been in the contemplation of Parliament that some small elements of discretion of an administrative kind should be left to the Secretary of State”. It asserts that arriving at a reasonably held view that “there is no longer a significant disruption or a threat of significant disruption to the provision of health services to patients in Wales as a result of coronavirus” is a small element of discretion of an administrative kind. The Committee disagrees. The presumption against sub-delegation in legislation is long-standing and strong, so where Parliament intends to confer legislative discretion it must do so by express words or (exceptionally) by necessary implication. The decision as to the duration of the disruption to health services and whether it continues to justify the disapplication of antitrust laws goes to the heart of this instrument and cannot be categorised as merely administrative. The Committee accordingly reports articles 2 and 5(1) on the ground that there is doubt as to whether they are intra vires.
3.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in three respects and are defectively drafted in one respect.
3.2These Regulations are made in response to the coronavirus public health emergency. They make temporary amendments to ten instruments relating to children’s social care by (according to the Explanatory Memorandum) “relaxing some administrative and procedural obligations to support delivery of children’s services but maintaining appropriate safeguards”. Regulations 3(2) and 11(3) add a qualification of “reasonable endeavours” in order to amend duties on those in charge of residential family centres and children’s homes. The Committee asked the Department for Education to explain what difference that qualification makes, having regard to the principles of administrative law that apply reasonableness as a test of compliance with open-ended duties. In a memorandum printed at Appendix 3, the Department helpfully explains its intentions as to the effect of that qualification. The Committee accordingly reports regulations 3(2) and 11(3) for requiring elucidation, provided by the Department’s memorandum.
3.3Regulation 3(2) amends regulation 10(1) of the Residential Family Centres Regulations 2002 by adding a qualification of “reasonable endeavours” to the opening words of that provision. The Committee asked the Department to explain that change particularly in relation to health and welfare, which the explanatory materials did not address. In its memorandum, the Department explains that the policy intent is that if, having used “reasonable endeavours” to discharge the duty to ensure that a residential family centre is conducted so as to promote and make proper provision for the health and welfare of the residents, the person in charge “was unable to comply with that duty fully or in part”, that person would not be in breach of the regulations. Adding reasonable endeavours as an express test probably adds little or nothing to the implicit test of reasonableness applied by administrative law to the application of the original duties; but given the Department’s view of the effect of adding these words, the Committee finds it surprising that the change, which according to the Department amounts to a diminution of social care responsibilities at a time of crisis, was omitted from the explanations in the explanatory materials. The Committee accordingly reports regulation 3(2) for requiring elucidation, provided by the Department’s memorandum.
3.4Regulation 4 amends the Adoption Agencies Regulations 2005 by, among other things, relaxing aspects of the pre-assessment process. That process requires the adoption agency to carry out police checks (regulation 25) and obtain other pre-assessment information (regulation 26(b) and (e)) about a prospective adopter. Normally, the agency is obliged to take this information into account when deciding whether a person is suitable to adopt. Regulation 4(7) and (8) of this instrument purports to relax that obligation by making regulation 26(b) and (e) subject to a new provision which allows the agency to make its decision “even if the information requested under regulation 25 and 26(b) has yet to be obtained”. The Committee asked the Department to explain why regulation 26(b) and (e), but not regulation 25, is subject to the new provision, while the new provision applies in relation to regulations 25 and 26(b), but not 26(e). In its memorandum, the Department acknowledges that these are errors: its intent is that the agency may make its decision even if the information requested under all three provisions (regulation 25, 26(b) and 26(e)) has yet to be obtained. The Committee accordingly reports regulation 4(7) and (8) for defective drafting, acknowledged by the Department.
3.5(The Department proposes that as the amendments are only temporary, it will not correct the errors but liaise with Ofsted, which it expects “to take a pragmatic approach”. The Committee refers the Department to its comments on S.I. 2019/983 in its Sixty-fifth Report of Session 2017–19 and trusts that the Department will neither operate the law, nor encourage anyone else to operate the law, in the form in which they wish they had made it, rather than in the form in which they did make it.)
3.6Regulations 18 and 19 provide for savings in relation to the Care Planning, Placement and Case Review (England) Regulations 2010. Where a child was placed with a foster parent under regulation 19 or 23 of the 2010 Regulations while the temporary amendments made by this instrument were in place, the responsible authority may proceed or the placement has effect “as if the amendments made by these Regulations remain in force”. The Committee asked the Department to explain whether regulations 18 and 19 are intended to save all the amendments made by this instrument to the 2010 Regulations, or only the amendments made to regulations 19 and 23 of the 2010 Regulations. In its memorandum, the Department explains that the former is intended, to avoid a local authority “finding itself with little or no time to comply with the original provisions when the amendments expire on 25th September”. The Committee is not clear why this concern is relevant to amendments that have effect indefinitely; but it notes the Department’s clarification and accordingly reports regulations 18 and 19 for requiring elucidation, provided by the Department’s memorandum.
Published: 22 May <2020>2020>