Seventeenth Report of Session 2021-22 Contents

Instruments reported

At its meeting on 1 December 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.

1S.I. 2021/1001: Reported for requiring elucidation

Tuberculosis in Animals (England) Order 2021

1.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect.

1.2This Order, which is not subject to any express parliamentary procedure, consolidates tuberculosis control legislation that applies to various animals. Article 5(1) creates a duty to notify the Secretary of State of a suspicion that an animal has or may have tuberculosis. The duty is imposed on three classes of person: the keeper of an animal; a veterinary surgeon who examines or inspects an animal; and a person who inspects an animal in the course of their duty. Paragraph (2) requires “a keeper who has made a notification under paragraph (1)” to take steps in relation to the animal in question to prevent the potential spread of tuberculosis. There is no equivalent requirement where a notification has been made by a person other than the keeper. The Committee asked the Department for Environment, Food and Rural Affairs to explain the discrepancy. (The Committee had noted that similar provisions in S.I. 2014/2383 and S.I. 2014/2337, which this instrument replaces, were not entirely clear on the point.) In a memorandum printed at Appendix 1, the Department explains that the provision as drafted does reflect the policy intent. It acknowledges, however, that it might have been preferable for the provision to have dealt expressly with a situation where notification was made by a person other than the keeper and undertakes to consider making an appropriate amendment at the next opportunity. The Committee accordingly reports article 5 for requiring elucidation, acknowledged by the Department and provided in the Department’s memorandum.

2S.I. 2021/1035: Reported for failure to comply with proper legislative practice

Immigration and Nationality (Replacement of T2 Sportsperson Route and Fees) (Amendment) Regulations 2021

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, which are subject to the negative resolution procedure, amend two statutory instruments by inserting “, or the dependent partner or dependent child” after “the dependant partner or dependant child” and by adding a deeming provision that where an Appendix to the immigration rules uses “dependent” as an adjective and the amended instrument uses “dependant”, there is no difference in meaning. The Committee asked the Home Office why any of this was thought necessary. In a memorandum printed at Appendix 2, the Department asserts that doing nothing “appeared to risk uncertainty” where interpretation provisions in legislation use one spelling but the immigration rules use another and changing “dependant” to “dependent” across the relevant legislation to match the predominant (though admittedly not exclusive) spelling of the adjective in the immigration rules “appeared to attach greater significance to the issue than was merited”. The Committee disagrees. If the Department really thought that people might be misled as to the meaning of the law by discrepancies in the spelling of the word “dependant”, then it should have made a textual amendment in each place to ensure consistent spelling. If the issue did not merit thorough textual amendment (and the Committee thinks it does not) then it would have been better to do nothing at all. Apart from being unnecessary, as dispelling a doubt that in the Committee’s opinion could never arise, a provision of this kind could actually create legal doubt in relation to other instances of inconsistent variant language usage and, like all unnecessary legislative provisions, should be avoided. The Committee accordingly reports paragraph 2(b) and (c) of Schedule 1 and paragraphs 4(2) and 5(2) of Schedule 2 for failure to comply with proper legislative practice.

3S.I. 2021/1048: Reported for failure to comply with proper legislative practice

Co-operative and Community Benefit Societies (Administration) (Amendment) Order 2021

3.1The Committee draws the special attention of both Houses to this Order on the ground that it fails to comply with proper legislative practice in one respect.

3.2This Order, which is subject to the negative resolution procedure, amends S.I. 2014/229 so that temporary measures enacted by the Corporate Insolvency and Governance Act 2020 remain in place after 30 September 2021, the date on which they had been set to expire. The Order was made and laid before Parliament on 15 September and came into force 15 days later, in breach of the convention that a negative instrument should be laid at least 21 days before it is due to come into force. The breach is justified, at paragraph 3 of the Explanatory Memorandum, on the basis that there should be no gap between the commencement of the Order and the expiry of the provisions it re-enacts. Given that the expiry date had been known since 22 March 2021, when it was set by S.I. 2021/375, the Committee asked Her Majesty’s Treasury why the Order could not have been made earlier to comply with the 21-day rule. In a memorandum printed at Appendix 3, the Department sets out the sequence of events that led to the breach of the 21-day rule: a last-minute technical complication requiring a cross-departmental reassessment and a redrafting of the instrument. It acknowledges that the resultant delay “is not ideal”, identifies steps it has taken to learn from the experience, and undertakes to apply these lessons to avoid similar outcomes in future. The Committee welcomes the Department’s reflective approach and its undertaking. It emphasises again that delays within Government and time required for cross-departmental collaboration do not justify a failure to give adequate notice of changes to the law. The Committee also reiterates that where an instrument cannot comply with the 21-day rule, the Explanatory Memorandum should explain not just why the instrument must come into effect on a specified day, but also why it could not have been made and laid sooner to avoid the breach, as well as any consequences of the delay (see paragraph 2.21 of the Committee’s First Special Report of Session 2017–19: Transparency and Accountability in Subordinate Legislation). The Committee accordingly reports this instrument for failure to comply with proper legislative practice, acknowledged by the Department.

4S.I. 2021/1093: Reported for requiring elucidation

Education (School Teachers’ Qualifications) (England) (Amendment) Regulations 2021

4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in two respects.

4.2These Regulations, which are subject to the negative resolution procedure, correct an error recently identified in provisions governing the accreditation of institutions that deliver initial teacher training (“ITT”) leading to qualified teacher status. The error meant that only a further education institution or an institution within the higher education sector could be accredited under the Education (School Teachers’ Qualifications) (England) Regulations 2003 (S.I. 2003/1662). This restriction was not observed in practice: School-Centred ITT (“SCITT”) providers were accredited that did not fall into either category. The Explanatory Memorandum to this instrument asserts, at paragraph 11.1, that the Department for Education intends to “write to all existing SCITT providers where appropriate to confirm their accreditation status”. The Committee asked the Department to explain the legal basis for “confirming” an accreditation status that could not lawfully have been granted. In a memorandum printed at Appendix 4, the Department explains that its intention is to accredit the relevant providers under the 2003 Regulations as amended, but in reliance on evidence obtained in its original assessment. The Committee finds this explanation helpful, and accordingly reports the Explanatory Memorandum to these Regulations as requiring elucidation, provided in the Department’s memorandum.

4.3It also appeared to the Committee that problems might arise where people had obtained qualified teacher status as a result of training or an assessment that was, at the time, not lawfully accredited. It asked the Department to explain what it intends to do in relation to these individuals. In its memorandum, the Department notes that it has considered the matter and is satisfied that the existing qualification can be relied on without further action because it was “obtained at a time when both provider and recipient were acting in good faith in the belief that the institution was accredited and when the institution had been subject to both the accreditation process and subsequent inspection”. The Committee accordingly reports the Explanatory Memorandum to these Regulations as requiring elucidation, provided in the Department’s memorandum.

5S.I. 2021/1107: Reported for defective drafting and for requiring elucidation

Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (No. 13) Regulations 2021

5.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in three respects and require elucidation in one respect.

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 6 inserts a new Part into the amended regulations. New regulation 3A(2) contains the definition “Crown servant”. As this term is used in connection with the United Kingdom vaccine roll-out overseas, the Committee asked the Department for Health and Social Care to explain why Crown servant was defined by reference to all the categories in section 12(1)(a) to (e) of the Official Secrets Act 1989, which include amongst others, a member of the Scottish Government, the First Minister for Wales and a person appointed under section 8 of the Northern Ireland Constitution Act 1973 (which was repealed in 1998). In a memorandum printed at Appendix 5, the Department asserts that whilst the most likely scenario is for it to be relevant for a member of Her Majesty’s Diplomatic Service (section 12(1)(c) of the 1989 Act), this is not the sole scenario that might arise in practice. The Committee does not believe that the Department actually wanted to provide for application of this provision to Welsh Ministers or Scottish Ministers “posted or based overseas”. As always, the fact that a definition is apt in one place does not make it apt in another, and when copying definitions care should be taken to ensure that each limb is relevant in the new context. The Committee accordingly reports new regulation 3A(2), as inserted by regulation 6, for defective drafting.

5.4The Regulations introduce new categories of “eligible traveller”. New regulation 3I provides that an eligible traveller who is a worker within the descriptions set out in regulation 5(3) of the amended regulations is “to be treated for the purposes of these Regulations as if regulation 5(4) ... applies to them”. As regulation 5(4) states that regulation 7, and the requirement to undertake workforce tests, also applies to a person that would have come within regulation 5(3) had they arrived from a category 2 country rather than a category 1 country, the Committee asked the Department to explain the reference to regulation 5(4). In its memorandum, the Department distinguishes regulation 5(3) from regulation 5(4) by explaining that workers falling within the latter category are not required to self-isolate under regulation 9 and that eligible travellers that are workers will need to undertake more regular testing compared to non-worker eligible travellers. On its face, all regulation 5(4) achieves is to bring a person arriving from a country listed as a category 1 country, of which there are currently no countries listed, into regulation 5(3). However, the Committee notes that regulation 7 stipulates that persons coming within regulation 5(3) will need to undertake more tests than a person coming within regulation 5(4). Thus, whilst the Committee considers the provisions to be rather convoluted and that the assertion that there will be more regular workforce tests for workers will only be accurate where that person enters and leaves England daily or at intervals of no greater than two days, the Committee accepts the Department’s explanation and is content to report new regulation 3I(a), as inserted by regulation 6, for requiring elucidation.

5.5Regulation 13 amends the list of “required evidence” that an operator is required to ensure a passenger is in possession of. This is to reflect the new categories of “eligible traveller”. The Committee asked the Department to explain why proof of meeting the clinical exemption condition was not included in the amended list. In its memorandum, the Department acknowledges that this should have been included and undertakes to correct the error at the earliest opportunity. The Committee accordingly reports regulation 13(3)(a) for defective drafting, acknowledged by the Department.

5.6Additionally, the amended “required evidence” list refers to evidence of the description in regulation 3C(1)(c). The Committee asked the Department to confirm whether the reference should have instead been to new regulation 3C(1)(e). The Department confirmed the error and the Committee accordingly reports regulation 13(3)(a) for defective drafting in this additional respect, acknowledged by the Department.




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