At its meeting on 8 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 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 there was unjustifiable delay in laying them before Parliament and that there is doubt as to whether they are intra vires in one respect.
1.2These Regulations, which are subject to the negative resolution procedure, replace references to Public Health England with references to the UK Health Security Agency. The Regulations were made on 1 October 2021 and laid before Parliament on 11 October 2021. The Committee asked the Department for Business, Energy and Industrial Strategy to explain the reason for the delay between the making and laying of this instrument. In a memorandum printed at Appendix 1, the Department agree to review their internal processes to avoid such a delay happening again. The Committee refers to paragraphs 2.2 to 2.14 of its First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation which emphasised the importance of early laying as a core component of access to legislation. As a general rule, the Committee considers that a delay of 10 calendar days or more will amount to an unjustifiable delay. The Committee accordingly reports these Regulations for unjustifiable delay in laying before Parliament.
1.3Regulation 2(4) (inserted paragraph 8A) states that if the UK’s emergency reference levels have not been published by the UK Health Security Agency, the levels published by Public Health England must be used instead. The Committee considered this an ambulatory reference and therefore that section 15(4)(b) of the Health and Safety at Work etc. Act 1974 (which provides the power for references in the regulations to any specified document to operate as references to that document as revised or re-issued from time to time) should have been cited in the preamble. The Committee asked the Department to explain. In its memorandum, the Department asserts that it does not consider section 15(4)(b) is appropriate in this case as any replacement document issued by the new executive agency is not “revised or reissued”. The Committee might accept this analysis where the document is published in the same form by the new executive agency. However, there is no indication in the instrument that the document will be in same form and the Explanatory Note refers to provision being made “to account for any future updates to the United Kingdom’s Emergency Reference Levels”. The Committee repeats that it is important to cite all the relevant enabling powers in the preamble, particularly as this goes to vires since the decision in Vibixa Ltd and Polestar Jowetts Ltd v Komori UK Ltd [2006] EWCA Civ 536. The Committee accordingly reports regulation 2(4) for doubt as to whether it is intra vires.
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, which are subject to the negative resolution procedure, make changes to the process by which the Secretary of State arranges for identity and right to work checks on certain people to be made. It is no longer mandatory for the Secretary of State to carry out the applicable checks, but they will be able, instead, to request another person to make the check. In relation to the identity check, regulation 2(3)(d) (inserted paragraph (5)(b)) uses the following wording—the Secretary of State “requests the individual or another person that checks are made for the purposes of confirming the individual’s identity”. Similar wording is used in relation to both identity and right to work checks in regulation 2(3)(d) (inserted paragraph (6)), regulation 3(2)(a)(iii) (inserted paragraphs (d)(ii) and (e)(ii)) and regulation 3(2)(b)(iii) (inserted paragraphs (d)(ii) and (e)(ii)). The Committee asked the Department for Education to explain the intention of the quoted wording, in particular, whether it is intended that the checks can be made by the individual whose identity or right to work in the UK is being checked. In a memorandum printed at Appendix 2, the Department confirms that intention (and accepts that it could have been made clearer in the Explanatory Memorandum). The Department also sets out how it expects that any checks made by the individual would be made (while stating that it is the current intention of the Department to carry out checks relating to the right to work in the UK itself). The Committee accordingly reports regulations 2(3)(d), 3(2)(a)(iii) and (b)(iii) for requiring elucidation, provided by the Department’s memorandum.
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.
3.2These Regulations, which are subject to the negative resolution procedure, enable examiners appointed by any of the Ministry of Defence, police, fire and rescue, and ambulance services to conduct driving tests for each other (cross-testing). In order to conduct cross-testing, a person must have the prior written approval of the Secretary of State. Regulation 4(b) (inserted paragraph (1A)) and regulation 6(b) (inserted paragraph (1E)) allow the Secretary of State to grant this approval “subject to such conditions as the Secretary of State thinks fit” and they “may vary any such conditions by notice in writing given to the person to whom the approval was granted.” The Committee asked the Department for Transport to indicate the power used to make these provisions. In a memorandum printed at Appendix 3, the Department state the power relied on is section 89(3)(b) of the Road Traffic Act 1988. This power states that “Regulations may make provision with respect to … conditions which must be satisfied during the currency of an appointment” of an examiner. This provides a single legislative mechanism for dealing with those matters. It is not open to the Department to sub-delegate powers to itself to vary those conditions by notice. The general power to “make provision” does not rebut the strong presumption against sub-delegation. (See also the Committee’s Sixteenth Report of Session 2021–22 in relation to S.I. 2021/990 and Fifth Report of Session 2019–21 in relation to S.I. 2020/41.) The Committee accordingly reports regulations 4(b) and 6(b) for doubt as to whether they are intra vires.
Published: 10 December 2021 Site information Accessibility statement