At its meeting on 24 November 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 this Order on the ground that it is defectively drafted in one respect.
1.2This Order, which is subject to the negative resolution procedure, creates requirements to notify the Civil Aviation Authority of specified details relating to en-route obstacles the height of which is 100 metres or more above ground level. In relation to existing en-route obstacles, article 8 (inserted article 225A(7)) places the obligation to notify on the “person in charge” of that obstacle. The Committee asked the Department for Transport to explain what it is about the context that puts it beyond doubt who the “person in charge” of an existing en-route obstacle is and how the person in charge is meant to know that they satisfy the criteria for being in charge. In a memorandum printed at Appendix 1, the Department explains that “in most cases” it will be clear who the person in charge is, for example, the owner of the building or the person in occupation, the user of the obstacle (where, for example, the obstacle is a crane) or the site developer where the obstacle is part of a construction site. The Department refers to guidance relating to obstacles in other situations where “person in charge” is used in the Air Navigation Order 2016 and refers to guidance on the en-route obstacle notification process published on their own and other websites. Whilst this guidance may provide useful context, guidance cannot be relied on to remedy lack of clarity in the meaning of the legislative text. It should always be clear on the face of legislation on whom an obligation is being imposed. In this case, it will not always be clear as a matter of natural language usage who is “in charge” of a property, particularly as between owners and occupiers, or as between different occupiers. The Committee accordingly reports article 8 (inserted article 225A(7)) for defective drafting.
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that there is doubt as to whether they are intra vires in one respect.
2.2These Regulations, which are subject to the negative resolution procedure, make provision about the form and content of annual reports that relevant local authorities are required to submit to the Secretary of State under section 59 of the Domestic Abuse Act 2021. Regulation 7 provides that the section 59 report must be in the form specified by the Secretary of State from time to time by notice to the relevant local authority. It appeared to the Committee that this sub-delegation of power was not permitted by the enabling power—section 59(2) of the Domestic Abuse Act 2021—which states that “The Secretary of State may by regulations make provision about (a) the form of the report, and (b) the content of the report.” The Committee asked the Department for Levelling Up, Housing and Communities to explain. In a memorandum printed at Appendix 2, the Department argues that the power in section 59(2)(a) is broad and is not limited to specifying the form of a report in the regulations themselves. The Committee disagrees. By conferring express power to make provision about the form and content of the report by subordinate legislation, the enabling power provides a single legislative mechanism for dealing with those matters, and it is not open to the Department to create another parallel route by sub-delegating powers to itself. As to the breadth of a power to “make provision”, the Committee refers to its Fifth Report of Session 2019–21 in relation to S.I. 2020/41, where it recorded that the general power to “make provision” does not rebut the strong presumption against sub-delegation. The Committee accordingly reports regulation 7 for doubt as to whether it is intra vires.
3.1The Committee draws the special attention of both Houses to these Regulations on the ground that there is doubt as to whether they are intra vires in one respect and that they fail to comply with proper legislative practice in another respect.
3.2These Regulations, which are subject to the negative resolution procedure, amend the National Health Service (General Medical Services Contracts) Regulations 2015 and the National Health Service (Personal Medical Services Agreements) Regulations 2015 to make it easier for Crown servants and their dependants returning from overseas postings to register with contactors (GPs) in a timely way when returning to the UK.
3.3Section 89(3) of the National Health Service Act 2006 (which is cited as an enabling power) covers general medical services contracts and states that regulations must make provision as to the circumstances in which a contractor must or may accept a patient, may decline to accept a patient or may terminate responsibility for a patient. Section 94(8) contains a similar provision in respect of personal medical services agreements but section 94(8) is not cited in the preamble. The Committee asked the Department of Health and Social Care to explain the discrepancy in the citations. In a memorandum printed at Appendix 3, the Department argues that while section 94(8) requires regulations made under section 94(1) to contain certain provisions, it is not itself an enabling power upon which the validity of the Regulations depends. The Department accepts that, on that basis, section 89(3) should not have been cited in the preamble. The Committee notes that there are several previous instruments in which section 89(3) and/or section 94(8) have been cited as enabling powers by the Department. The Committee reminds Departments that it is important to be consistent in relation to what is and is not cited in preambles, particularly as this goes to vires since the decision in Vibixa Ltd and Polestar Jowetts Ltd v Komori UK Ltd  EWCA Civ 536. This being a case where the Department has omitted from the preamble a provision which is cited in other preambles in similar contexts, the Committee reports new Part 2A (inserted by paragraph 3(e) of Schedule 2) for doubt as to whether it is intra vires.
3.4Paragraph 1 of Schedule 1 (inserted regulation 27A(5)) includes inert parenthetical material: “(this means, for example, that “the next financial year”, in relation to the financial year ending 31st March 2021, is the financial year ending 31st March 2022).” Having regard to the principle that inert parenthetical material should be included in subordinate legislation sparingly and only where it adds needed clarity to the operative text, the Committee asked the Department to explain whether it considers the parenthetical explanation justified. In its memorandum, the Department explains that it considers the explanation justified on the basis that it aids readers of the legislation. As the Committee states in its First Special Report of Session 2013–14, Excluding the inert from secondary legislation, Departments should separate provisions that need to be included in legislation from those that do not properly belong there. In this case, the Committee considers that the parenthetical words add nothing significant to the clarity of the natural language meaning of the phrase “the next financial year”. The Committee accordingly reports paragraph 1 of Schedule 1 (inserted regulation 27A(5)) for failure to comply with proper legislative practice.
4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.
4.2These Regulations, which are subject to the negative resolution procedure, raise the minimum age at which a person may sell a National Lottery ticket to 18, unless the person has attained the age of 16 and either the sale has been specifically approved by a responsible person or the person has been authorised to sell National Lottery tickets by an authorising person (regulation 3(2), inserted regulation 3(2)). Paragraph 7.5 of the Explanatory Memorandum purports to explain the effect of the requirement for a sale to be “specifically approved” and appears to require approval to be “in the moment”, rather than at any time but relating to one or more specified sales. The Committee asked the Department for Digital, Culture, Media and Sport to explain. In a memorandum printed at Appendix 4 the Department explains that it expects that specific approval will generally be given “in the moment” before any sale is made (as is the general approach adopted by retailers in respect of alcohol sales) but acknowledges that the Regulations do not preclude other approaches. The Committee accordingly reports regulation 3(2) (inserted regulation 3(2)(b)) for requiring elucidation, provided by the Department’s memorandum.
5.1The Committee draws the special attention of both Houses to these Regulations on the ground that there is a doubt as to whether they are intra vires in one respect and require elucidation in two respects.
5.2These Regulations, which are subject to the negative resolution procedure, amend the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 (S.I. 2021/582).
5.3Regulation 12 introduces new exemptions from testing and self-isolation requirements. There is a new exemption for a “performing arts professional”. The definition includes the requirement that the individual holds a certificate issued by Arts Council England in accordance with ‘Travelling or returning to England for work as a performing arts professional during COVID-19: Self-isolation Exemptions Guidance’ published by Arts Council England on 17th September 2021. The Committee asked the Department of Health and Social Care to explain which power is relied on to define the term by reference to a certificate issued by Arts Council England, the obtaining of which will require satisfying criteria set by Arts Council England. In its memorandum, the Department explains that the criteria were developed by the Department for Culture, Media and Sport and approved by the Minister and that the guidance was published in advance of the Regulations being made. The Department asserts that the guidance is tightly drafted and that Arts Council England serves an administrative function only. The Committee does not agree. On their face, the eligibility criteria require Arts Council England to take a view as to whether the criteria have been met; for example, the provision of media recognition of their work will require Arts Council England to consider and assess whether what is presented suffices, without reference to prescribed standards. This is more than an administrative function and means that the decision on whether a person falls within “performing arts professional” and therefore comes within the exemption is sub-delegated to Arts Council England. In the absence of a power to do so, the Committee reports new paragraph 50(2)(e)(iii), as inserted by regulation 12(6), on the ground that there is a doubt as to whether it is intra vires.
5.4Regulation 10(3) adds to the list of reasonable excuses for failing to possess notification of a negative test result the excuse that P took a test onboard the cruise ship on which P arrived in England, that the test was positive and it was not reasonably practicable for P to disembark other than in England. Paragraph 7.21 of the Explanatory Memorandum explains that this amendment is made to resolve a conflict with the cruise industry’s COVID-19 Framework, which covers the safe return of UK residents who test positive for COVID-19 on board. In the light of this, the Committee asked the Department to explain why the exemption is not limited to returning UK residents. In its memorandum printed at Appendix 5, the Department explains that it was the policy intention for this exemption to also apply to non-UK residents. The Committee finds the Explanatory Memorandum misleading in this respect and reports paragraph 7.21 of the Explanatory Memorandum for requiring elucidation, provided by the Department.
5.5A vessel is not permitted to moor at a port in England if the last point of departure was a country listed in paragraph 5 of Schedule 13 of the amended regulations. Regulation 16(3) removes the last country contained within that list. The Committee asked the Department to explain why paragraph 3, which sets out the prohibition, and paragraph 5 of Schedule 13 were not also omitted, having regard to the need for clarity in this fast-changing area of law. In its memorandum, the Department explains that in future there may be a need to reinstate such prohibitions and given the unpredictable nature of the COVID-19 pandemic and the need to respond quickly, retaining the provisions had a practical purpose. The Committee has some sympathy with this line of reasoning: but it must be balanced against the needs of clarity and simplicity for readers of legislation from time to time. The Committee encourages the Government to think carefully before leaving “empty” provisions on the face of the statute book in case they may come to be re-populated by later amendment. At times of particular volatility of legislation (such as earlier in the pandemic) this technique may be helpful or inevitable; but the Committee thinks that at this point in the evolution of COVID-19 legislation the line of least complexity, and therefore of greatest ease of understanding for the readers, would have been to remove the entire provision until it was needed again (if ever). Having said that, the Committee is content to report regulation 16 for requiring elucidation, provided by the Department’s memorandum.
(The Committee also asked the Department to explain whether the new definition of “non-disembarking cruise passenger” should have captured persons who do not disembark from the cruise ship while it is in the territorial waters in England. The Committee is satisfied with the Department’s explanation.)