At its meeting on 3 June 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 four 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 and require elucidation in one related respect.
1.2For the period that restrictions on movement are in place due to the coronavirus emergency, these Regulations impose restrictions on enforcement agents taking control of goods and extend the time periods for enforcement. The Regulations insert text into the Taking Control of Goods Regulations 2013. The inserted text uses the word “month” or “months” in four places; in one place only it is qualified as “calendar month”. The Committee was unsure why the qualification was felt necessary in just one place. Moreover, the Interpretation Act 1978 provides that “month” means “calendar month” except where the contrary is implied; and the Committee was concerned that for the Regulations to provide expressly for “month” to mean “calendar month” in one place, might be seen as implicitly disapplying the general 1978 Act definition in so far as it would otherwise apply to the other three places. The Committee asked the Ministry of Justice to explain. In a memorandum printed at Appendix 1, the Department accepts that “calendar month” is a superfluous term, confirms that it was not intended to displace the Interpretation Act 1978 in relation to the other uses of the term “month” in the instrument, and undertakes to amend the term at the next available opportunity. The Committee accordingly reports regulation 2(3)(b) (inserted regulation (6)) for defective drafting, acknowledged by the Department.
1.3The Committee also asked the Department to explain (using examples) (i) when the period referred to in regulation 2(3)(b) (inserted regulation (5)) begins; (ii) when the period referred to in regulation 3(3)(c) (inserted regulation (3)) ends and (iii) which day is the relevant day referred to regulation 3(3)(c) (inserted regulation (4)). In its memorandum, the Department gives examples indicating that “month” should be construed as “calendar month” in each instance. Given the uncertainty caused by the issues discussed above, it is helpful to have the Department’s clarification of how the instrument is intended to operate, and the Committee accordingly reports regulation 2(3)(b) (inserted regulation (5)) and regulation 3(3)(c) as requiring elucidation, provided by the Department’s memorandum.
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
2.2These Regulations suspend the legal duties of providers of NHS services for the reporting period 1 April 2019 to 31 March 2020 to seek assurance on their Quality Accounts by 30 April 2020, and to publish them and provide a copy to the Secretary of State by 30 June 2020. The instrument provides that, for the reporting period ending with 31 March 2020, the relevant documents may be provided later than the dates specified in the regulations without substituting new fixed dates (though providers remain under a statutory duty to publish their Quality Accounts for the reporting period). The Explanatory Memorandum states that revised timelines and guidance in relation to the production and publication of Quality Accounts for the reporting period 2019/20 will be issued by NHS England and NHS Improvement. The Committee asked the Department of Health and Social Care whether it is intended that revised timelines will only be issued by NHS England and NHS Improvement (rather than in legislation) and to identify the power which allows that. In a memorandum printed at Appendix 2, the Department explains that it agreed with NHS England and NHS Improvement that the regulations should not substitute new fixed dates because providers of NHS services are facing an uncertain challenge during the coronavirus emergency. The Department helpfully acknowledges that any new recommended dates in guidance will not be substitutes for the previous legislative time limits in the sense that they do not form part of the law and cannot be enforced, but adds that it expects voluntary compliance with the new dates. The Committee accordingly reports these regulations for elucidation, provided by the Department’s memorandum.
3.2This instrument amends the Misuse of Drugs Regulations 2001 to allow, among other things, pharmacists at a registered pharmacy business to supply certain controlled medicines without a prescription and, in certain circumstances, to change the intervals on instalment prescriptions without the immediate need for a new prescription. These regulatory relaxations are to be turned on and off by an announcement of the Secretary of State. The Committee asked the Home Office to identify the power for this sub-delegation of legislative power. In a memorandum printed at Appendix 3, the Department argues that the presumption against sub-delegation is overridden by the “strongly adverse consequences” that would ensue as a result of the “inability of the Secretary of State to provide for the reasonable and proportionate response as set out in the Regulations”. The Committee rejects this argument. If it were essential in the present emergency that the Secretary of State should acquire power to turn regulatory restrictions on and off by administrative action, the Department could have made regulations under the Civil Contingencies Act 2004, which provide the vires for sub-delegation. The vires used for these Regulations do not permit sub-delegation, and they should be made when required, commenced by commencement provision in the ordinary way, and revoked when no longer required, in the usual way. Other instruments to deal with the coronavirus public health crisis have operated in that way. The Committee is concerned that the present emergency should not be taken as an opportunity to relax the principles of the rule of law, of which the presumption against sub-delegation is a key component. The Committee accordingly reports regulations 4 and 5 on the ground that there is doubt as to whether they are intra vires.
3.3(In its memorandum the Department surprisingly asserts that the judgment of Lord Briggs in Project Blue Limited v Commissioners for Her Majesty’s Revenue and Customs  UKSC 30 endorses “a modern contextual approach to the construction of statutes, where regard is to be had to the consequences” which “represents a significant difference from earlier authorities in which sub-delegation was considered unlawful even if convenient and desirable”. Had the case been about sub-delegation (which wasn’t mentioned), and had Lord Briggs been in the majority (rather than a 4:1 minority), and had his comments about contextual construction and consequences added anything to the accepted doctrines of convenience and absurdity (see Craies on Legislation, 11th Edition, Chapter 19), the Department might have a point: as it is, the Committee strongly rejects the suggestion that modern contextual construction has overridden the long-standing presumption against sub-delegation in favour of sub-delegation where “convenient and desirable” and very much hopes that the Government is not intending to assert this more generally.)
4.1The 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.
4.2This Order excludes from competition prohibitions agreements between dairy produce suppliers and agreements between logistics service providers intended to address the effects of the coronavirus emergency on the demand for dairy produce in the United Kingdom. The provisions are in effect for “the dairy produce demand disruption period” which begins on 1 April 2020 and ends on the expiry of the period of three months beginning with the day the Order comes into force or on an earlier date specified by the Secretary of State in a notice (in the circumstances set out in article 7). The Committee asked the Department for Business, Energy and Industrial Strategy to identify the power for the sub-delegation in article 7. In a memorandum printed at Appendix 4, 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 demand for dairy produce as a result of coronavirus” is a small element of discretion of an administrative kind. The Committee disagrees. Turning legislation on and off is a legislative function. 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 dairy produce demand disruption period 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 article 7 on the ground that there is doubt as to whether it is intra vires.
Published: 5 June 2020