At its meeting on 1 July 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 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 set out the rules and procedures which the Office of Communications (“OFCOM”) will follow when assessing the extent of the financial burden associated with the provision of a universal service and, where appropriate, compensating a universal service provider for those costs in exercise of the powers under sections 70 and 71 of the Communications Act 2003. Regulations 7(2)(a) and (3) and 15(2)(e) refer to compensation being paid from “central funds”. In the absence of a definition of that expression in the instrument or the enabling powers, the Committee asked OFCOM to clarify. In a memorandum printed at Appendix 1, the Department explains that these were intended to be references to money provided by Parliament. They add that they used the term “central funds” in purported reliance on the definition in Schedule 1 to the Interpretation Act 1978. That definition applies, however, only in relation to enactments “providing in relation to England and Wales for the payment of costs out of central funds”, which does not cover the references to compensation in these Regulations. A reference to money provided by Parliament should therefore have been used, although the legislative intent is reasonably easy to divine from the expression “central funds” and the Department has now put its intentions beyond doubt by way of its memorandum. The Committee accordingly reports regulations 7(2)(a) and (3) and 15(2)(e) for 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 fail to comply with proper legislative practice in one respect.
2.2These Regulations ensure enforcement powers are in place to implement EU Regulation 2017/625 in relation to plant protection products. The EU Regulation has been directly applicable in the United Kingdom since 14 December 2019 but this instrument was made on 22 May 2020. The Committee asked the Department for Environment, Food and Rural Affairs to explain why this instrument was not made in time to ensure that enforcement powers were in place in relation to plant protection products from the day the EU Regulation became directly applicable in the United Kingdom. In a memorandum printed at Appendix 2, the Department accepts that the delay was regrettable and explains that “policy issues were identified at a very late stage…so it was not possible to make these Regulations at the time the EU Regulation came into force.” As the Committee has said on several occasions (most recently in its Fourteenth Report of the present Session in relation to S.I. 2020/485), it is wrong in principle for Ministers to purport to make legislation which they cannot enforce (or to allow EU legislation to apply to the UK without being enforceable). It is the essence of legislation that it imposes enforceable duties and confers enforceable rights. (And in this case where legal obligations derive directly from EU legislation, delay in providing an enforcement mechanism also amounts to breach of the duty to transpose or implement the EU legislation.) The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.
3.2These Regulations set out the detailed arrangements for the conduct of the 2021 Census in England and prescribe the questionnaires that will be used. Regulation 9 requires the Statistics Board to send household packs and individual packs by post. There are two kinds of each pack: online (a letter with a login code to access the census questionnaire online) and paper (a printed questionnaire). The Committee asked the Cabinet Office whether regulation 9 is intended to give the Board a choice of which it uses and, if it is, how that choice will be made. In a memorandum printed at Appendix 3, the Department confirms that regulation 9 is intended to allow for a choice between online and paper packs, and sets out the criteria expected to be applied in making the choice. The Committee accordingly reports regulation 9 for requiring elucidation, provided by the Department’s memorandum.
3.3The Committee asked the Department to clarify whether “hands” a household pack and “hands” an individual pack (regulation 10(4)), “delivers” the census packs (regulation 11(4)) and “leaves” the census pack (regulations 10(4)(a) and 11(4)(a)) are intended to have different meanings. In its memorandum, the Department asserts that the terms are intended to have slightly different meanings; “hands” is used to describe the transfer of possession of a single census pack by the census officer to the householder, “delivers” is used to describe the transfer of possession of multiple census packs for that communal establishment to the person in charge of that establishment and “leaves [with]” is “intended to convey that where the intended recipient is not available, the pack(s) may be “left with” a responsible person acting on behalf of the intended recipient”. The Committee is not convinced that these distinctions are as clear as the Department suggests, and should challenges arise as to whether the statutory requirements have been met the Department may come to wish that it had given either less detail (leaving methods of delivery to be dealt with administratively) or more detail (putting the intention of each different term beyond conjecture). Since, however, the Department has given a reason for the different terms in each place the Committee does not object to their use, and reports regulations 10(4) and 11(4) for requiring elucidation.
3.4(The Committee also asked the Department whether, having regard to the complexity of, for example, regulation 13(2)(a) and the matters referred to above, consideration was given to leaving administrative matters to be dealt with in guidance rather than in legislation. In its memorandum, the Department explains that it concluded that the amount of administrative detail in the regulations was necessary so that Parliament may be satisfied as to the exact form of the questionnaires and the obligations on respondents on how they must complete and submit census returns.)
4.1The Committee draws the special attention of both Houses to these Regulations on the grounds that there is doubt as to whether they are intra vires in three respects.
4.2These Regulations require operators of commercial transport services for passengers travelling to England from outside of the common travel area to ensure certain information relating to coronavirus and related duties is provided to them before booking their travel, at check-in and whilst they are on board the vessel, aircraft or train. The Regulations expire 12 months after they come into force but within that period can be turned on and off (through the use of exemption periods) by the Secretary of State by a notice on the gov.uk website (regulation 5); and the required information and the manner in which it is to be provided is specified from time to time by the Secretary of State on the gov.uk website (regulation 4). The Committee asked the Department for Transport to provide evidence (comparing section 22(3) of the Civil Contingencies Act 2004) that the power in section 45F(2)(a) of the Public Health (Control of Disease Act) Act 1984 to “confer functions on local authorities and other persons” was intended to allow the sub-delegation in regulations 4 and 5.
4.3In a memorandum printed at Appendix 4, the Department asserts that the power in regulation 5 does not amount to a power to turn the regulations on and off as the regulations expire after 12 months and an exemption period only operates during the time when the Regulations are in force and enforcement may continue during an exemption period in relation to passengers who arrived outside an exemption period. The Department asserts that setting of exemption periods is properly regarded as an administrative function rather than a legislative one. In relation to regulation 4, the Department asserts that the precise content of information and the manner in which it is to be provided, is a matter of technical detail and the determination of such matters again amounts to an administrative function rather than a legislative one.
4.4The Committee disagrees. The setting of exemption periods is a decision as to whether the regulations are going to apply for that period or not. It is a decision that goes to the heart of the instrument and cannot be characterised as merely administrative; such periods should be set out in legislation (or made in an instrument, such as Emergency Regulations, under enabling powers that expressly permit legislative delegation). Similarly, the core information required to be provided by operators of commercial transport services goes to the heart of the legal duties imposed by this instrument and cannot be characterised as a mere matter of administration. The core information required should have been specified on the face of the regulations and if that core information changes the regulations should be amended in the usual way.
4.5The Committee accepts the Department’s observations about the breadth of the power to confer functions in section 45F(2)(a) of the Public Health (Control of Disease Act) Act 1984. But the wider the terms of a power the more necessary it is to remember the constraints on apparently open powers applied by the courts (see Craies on Legislation, 11th Edition, paras. 12.2.5–188.8.131.52). The presumption against sub-delegation in legislation is long-standing and strong, so where Parliament intends to confer power to delegate matters that go to the core effect of the legislation it must do so by express words or (exceptionally) by necessary implication. The Committee accordingly reports regulations 4 and 5 on the ground that there is doubt as to whether they are intra vires.
4.6The Committee also asked the Department to provide evidence that the power in section 45F(2)(a) was intended to allow the minister who makes the regulations to confer power on himself or herself. In its memorandum, the Department asserts that the phrase “local authorities or other persons” in section 45F(2)(a) places no limit on the “other persons”. That is true, but again the presumption that Parliament does not intend Ministers to use formal instruments to give themselves informal powers is sufficiently strong to require express rebuttal. (The Committee does not consider that the reference to conferring powers on officers of Revenue and Customs to which the Department refers amounts to a sufficient rebuttal: it is only establishing that if administrative matters are to be delegated to HMRC officers, they may not be so delegated without the approval of the Commissioners.) The Committee accordingly reports regulations 4 and 5 on the grounds that there is doubt as to whether they are intra vires.
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect and are defectively drafted in one respect.
5.2These Regulations require all passengers arriving in England from outside the common travel area (or arriving from the common travel area where they have been outside that area in the past 14 days) to provide their contact details and travel information and, subject to certain exceptions, to self-isolate for 14 days. A passenger may provide the required information on the online passenger locator form in the 48 hours before they are required to do so and in such a case regulation 3(7) requires a passenger to provide evidence (if requested by an immigration officer) that they have provided the required information in advance. The Committee asked the Department for Health and Social Care to explain what evidence is envisaged. In a memorandum printed at Appendix 5 the Department sets out two acceptable forms of evidence: the digital receipt received upon completion of the passenger locator form or the stored details on that form (obtained by logging into the system again). The Committee is grateful for the clarification and accordingly reports regulation 3(7) for requiring elucidation, provided by the Department’s memorandum.
5.3Regulation 4(4) sets out the acceptable places of self-isolation, including at paragraph (c) “a hotel, hostel, bed and breakfast accommodation or other suitable place.” The Committee asked the Department to explain what criteria are intended to be used to determine suitability. In its memorandum, the Department states that a suitable place to self-isolate “should be understood as any place in which a person can properly self-isolate in accordance with regulation 4…” The Committee does not find that this adds anything to the terms of the instrument, and is concerned that the word “suitable” in this context is insufficiently clear. Legal certainty requires that when duties are imposed on people, they are given enough information to be able to satisfy themselves that they are complying; in this case there are neither express criteria for determining suitability nor sufficient implicit indications of what is intended for compliance (or, indeed, non-compliance) with this duty to be reasonably capable of being demonstrated. The Committee accordingly reports regulation 4(4)(c) for defective drafting.
Published: 3 July 2020