Twenty-First Report of Session 2021–22

This is a House of Lords and House of Commons Report.

Author: Joint Committee on Statutory Instruments

Date Published: 21 January 2022

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Contents

Instruments reported

At its meeting on 19 January 2022 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.

1S.I. 2021/1178: Reported for defective drafting and for requiring elucidation

Payment and Electronic Money Institution Insolvency (England and Wales) Rules 2021

1.1The Committee draws the special attention of both Houses to these Rules on the grounds that they are defectively drafted in two respects and require elucidation in one respect.

1.2This instrument, which is subject to the negative resolution procedure, sets out the rules that apply to special administration processes established by S.I. 2021/716 to operate as alternatives to liquidation or administration.

1.3In connection with statements of an institution’s affairs and of the administrator’s proposals regarding the administration, rules 22 and 27 allow an administrator to apply for limited disclosure. Under paragraph (7) of each rule, the court “may make any order for disclosure subject to any conditions as to:

a)confidentiality,

b)duration,

c)the scope of the order in the event of any change of circumstances, or

d)other matters as it thinks just.”

1.4The Committee asked Her Majesty’s Treasury to confirm that the words “as it thinks just” should have appeared after rather than in sub-paragraph (d) to qualify all four sub-paragraphs of rules 22(7) and 27(7). In a memorandum printed at Appendix 1, the Department asserts that the words are not intended to qualify sub-paragraphs (a) to (c). The Committee is clear, however, that in cases where a court’s powers are expressly limited by reference to justice (something that is often better left implicit) the limitation should extend to all aspects of the court’s powers (as in, for example, rule 204, rule 86.5 of the Civil Procedure Rules 1998, section 58(7) of the Consumer Rights Act 2015 and section 78(6) of the Charities Act 2011). On that basis, and on the basis that the Committee does not agree with the Department’s suggestion that in the existing rules the phrase “as it thinks just” is confined to what is now paragraph (d), the Committee reports rules 22(7) and 27(7) for defective drafting.

1.5The Committee noticed that several different rules expressed deadlines in three different ways (within X days from, within X days of, and within X days after). It asked the Department to explain the intended differences in meaning. In its memorandum, the Department asserts that no difference in meaning is intended and explains that the wording was copied verbatim from S.I. 2011/1301 so as not to cause confusion. While the Committee regrets that such inconsistencies appeared on the statute book and are now being replicated (and while it does not agree that such inconsistencies are insignificant), it is content to report rules 62, 63, 82, 142, 143, 156, 166, 238 and 239 for requiring elucidation, provided in the Department’s memorandum.

1.6The Rules envisage several types of meeting in the course of a special administration: meetings of a creditors’ committee, meetings of creditors, creditors and customers or customers, and meetings of contributories or members. Rule 291(1) sets out the procedure for remote attendance and provides that it “applies to any meeting held under these Rules”, but subparagraphs (f) and (g) refer only to the legitimate interests of, requests by, and meetings of creditors or customers. Rules 80 and 81 make nearly identical provision to rule 291(1), but in respect of and expressly referring only to creditors’ committee meetings. None of these rules expressly refers to contributories or members. In light of these inconsistencies, the Committee asked the Department to explain how rules 291(1), 80 and 81 are intended to operate. In its memorandum, the Department acknowledges that the duplication in these rules, the general opening words of rule 291(1), and the silence in subparagraphs (f) and (g) regarding contributories and members could cause confusion. It undertakes to amend the relevant subparagraphs to include such reference and to make it clear that rule 291(1) does not apply to creditor committee meetings. The Committee accordingly reports rule 291(1) for defective drafting, acknowledged by the Department.

2S.I. 2021/1221: Reported for failure to comply with statutory duties and for failure to comply with proper legislative practice

Public Procurement (Agreement on Government Procurement) (Thresholds) (Amendment) Regulations 2021

2.1The Committee draws the special attention of both Houses to these Regulations on the ground of a failure to comply with statutory duties in one respect and on the ground of failure to comply with proper legislative practice in one respect.

2.2These Regulations, which are subject to the negative resolution procedure, amend four different public procurement regulations in order to change the financial thresholds which govern the procedures for the award of public contracts for goods, works and services. Three of the enabling powers require the Minister for the Cabinet Office to review the financial thresholds every two years; and if regulations are made to amend the thresholds, they must be made and laid before Parliament “before” 1 November. As these Regulations were laid on 1 November 2021, the Committee asked the Cabinet Office to explain how the duty set out in regulation 5A(5)(a) of S.I. 2015/102, regulation 9A(5)(a) of S.I. 2016/273 and regulation 16A(5)(a) of S.I. 2016/274 has been complied with. In a memorandum printed at Appendix 2 the Department acknowledges that the duties have not been complied with in this respect and explains that this was the result of an administrative error. A delay in laying of one day may be significant or insignificant depending on the circumstances; in any event, however, a statutory duty to meet a particular deadline should be complied with precisely. The Committee accordingly reports these Regulations for failing to comply with statutory duties in relation to the timing of laying before Parliament, acknowledged by the Department.

2.3The preamble does not cite the provision enabling transitional provision (and does, unnecessarily and contrary to the Government’s internal guidance including Statutory Instrument Practice, cite purely procedural provisions). The Committee asked the Department to explain. In its memorandum, the Department accepts that the preamble should have cited the powers to make transitional provision (and should have omitted the procedural provisions). The Committee accordingly reports the preamble to these Regulations for failing to comply with proper legislative practice, acknowledged by the Department.

3S.I. 2021/1273: Reported for requiring elucidation

Product Safety and Metrology etc.(Amendment) Regulations 2021

3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in one respect.

3.2These Regulations, which are subject to the negative resolution procedure, make technical amendments to product safety and metrology legislation as a consequence of Brexit and the Protocol on Ireland/Northern Ireland in the withdrawal agreement. They are made partly in reliance on section 8C of the European Union (Withdrawal) Act 2018. Under paragraph 8F of Schedule 7 to that Act, if an instrument made under section 8C “facilitates the access to the market within Great Britain of qualifying Northern Ireland goods”, it must be made by affirmative resolution. The Committee asked the Department for Business, Enterprise and Industrial Strategy to explain whether it considers amendments made by regulations 11(5) and (6) and 12(4) and (5) to facilitate such access and so require to be made by affirmative resolution. In a memorandum printed at Appendix 3, the Department explains that it does not: although those provisions do amend regulations that set out the circumstances in which Northern Ireland goods may be lawfully placed on the market in Great Britain, they only have effect in relation to goods already placed on that market (by putting a gloss on provisions relating to disqualification and requalification). They also do not amend the provisions that set out how access to the market in Great Britain for Northern Ireland goods can be achieved. The Committee finds this explanation helpful and accordingly reports these Regulations for requiring elucidation, provided in the Department’s memorandum.

4S.I. 2021/1416: Reported for failure to comply with proper legislative practice, for requiring elucidation and for unusual or unexpected use of enabling powers

Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) Regulations 2021

4.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they fail to comply with proper legislative practice in one respect, require elucidation in one respect and make unusual or unexpected use of the enabling powers in one respect.

4.2These Regulations, which are subject to the made affirmative resolution procedure, establish a scheme under which a person may be required to provide proof of COVID-19 status to enter certain venues or attend certain events.

4.3The preamble cites section 45C(3)(c) of the Public Health (Control of Disease) Act 1984 as one of the enabling powers. Section 45D(1) prohibits the imposition of a restriction or requirement under that subparagraph unless it is considered to be proportionate to what is sought to be achieved by imposing it. The Committee asked the Department of Health and Social Care to explain why the proportionality statement in the preamble refers to requirements but not restrictions, having regard to regulation 4 (which provides for venues and events to be “subject to restrictions under these Regulations”) and regulations 13 and 14 (which make provision about Restriction Notices). In a memorandum printed at Appendix 4, the Department acknowledges that it would have been preferable for the preamble to refer to both restrictions and requirements and confirms that the Secretary of State is satisfied that all provisions in the instrument are proportionate to what they seek to achieve. The Committee accordingly reports the preamble to these Regulations for failing to comply with proper legislative practice, in essence acknowledged by the Department.

4.4Regulation 5(1) provides that a person responsible for a venue or event must “take reasonable steps” to ensure that a person is only admitted to, or present in, a specified venue or event if they meet one of the criteria in regulation 8(1), are exempt under regulation 8(2) or are a person referred to in regulation 10. Regulation 5(3) provides that one of those reasonable steps must be a check that each person seeking admission has evidence that they fall within one of those provisions. Regulation 9 sets out numerous types of admissible evidence, including certificates in English, French or Spanish issued by “the competent health authority of a relevant country” and “a maternity certificate which satisfies the requirements of” specific statutory provisions. Given the number, variety and specificity of acceptable proofs, the Committee asked the Department to explain how it is expected that the “reasonable measures” required by regulation 5(1) will be capable of being applied to the required checks. In its memorandum, the Department explains that checks can be made easier, and avoid language barriers and specialist knowledge by staff members, where venues use the free NHS COVID Pass Verifier App. For international attendees, the Department explains that certification is to be checked on the same basis as required for international travel, which ensures “alignment with the evidence recognised at the border and consistent messaging for travellers to England”; it predicts that only “a very small number” of attendees would rely on vaccination certificates in French or Spanish. The Committee has doubts about the practicability of the enforcement of these regulations having regard to reliance on voluntary use of technology and to cases relying on foreign language certificates, but on the basis of the Department’s explanation the Committee is content to report regulation 5(1) and (3) for requiring elucidation, provided in the Department’s memorandum.

4.5Under regulation 4(4) and (5) and paragraphs 2 and 3 of Schedule 1, the requirements in regulation 5(1) only apply (and so, among other things, checks of COVID-19 status are only required) where people are expected or likely “to stand or move around during all or part of” an event. Regulation 4(8) clarifies that this does not include a person who only leaves their seat to use toilet facilities, obtain food or drink or leave. The Committee asked the Department to explain what is intended to amount to “part of the event” and how it is intended that a responsible person will be able to satisfy themselves that the extent of the movements of attendees is not likely to reach that threshold. In its memorandum, the Department asserts that it will be possible to assess whether attendees are likely to move around for part of an event “by reference to the seating arrangements, any space made available for attendees to mingle with other attendees (e.g. a dancefloor), and the nature of the event taking place”. It provides a few examples and refers to related guidance. Notwithstanding these examples, the Committee is not persuaded that the regulations are sufficiently precise to give responsible persons the necessary degree of clarity as to when the requirements in regulation 5(1) do not apply, and therefore leave significant doubt as to whether they will be capable of being consistently applied and enforced. This is of particular concern given that the requirements are onerous and failure to comply with them is an offence (concerns which are elaborated in the Committee’s Special Report Rule of Law Themes from COVID-19 Regulations, at paragraphs 36 to 38). The Committee accordingly reports regulation 4(4), (5) and (8) and paragraphs 2 and 3 of Schedule 1 for making an unusual or unexpected use of the enabling powers.

Instruments not reported

At its meeting on 19 January 2022 the Committee considered the instruments set out in the Annex to this Report, none of which was required to be reported to both Houses.

Annex

Draft Instruments requiring affirmative approval

Draft

Competition Appeal Tribunal (Recording and Broadcasting) Order 2022

Draft

Greenhouse Gas Emissions Trading Scheme (Amendment) Order 2022

Draft

Microchipping of Dogs (England) (Amendment) Regulations 2022

Draft

Passenger, Crew and Service Information (Civil Penalties) (Amendment) Regulations 2022

Draft

Money Laundering and Terrorist Financing (Amendment) Regulations 2022

Draft

Non-Domestic Rating (Levy and Safety Net) (Amendment) Regulations 2022

Instruments subject to annulment

S.I. 2021/1300

UK Statistics (Amendment etc.) (EU Exit) Regulations 2021

S.I. 2021/1308

Occupational Pensions (Revaluation) Order 2021

S.I. 2021/1309

Environmental Authorisations (Scotland) Regulations 2018 (Transitional and Savings Provisions) Order 2021

S.I. 2021/1312

Customs Importation (Miscellaneous Provisions and Amendment) (EU Exit) Regulations 2021

S.I. 2021/1343

Local Authorities (Funds) (England) (Amendment) (Coronavirus) Regulations 2021

S.I. 2021/1367

Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (No. 22) Regulations 2021

S.I. 2021/1371

Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (No. 23) Regulations 2021

S.I. 2021/1434

Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (No. 24) Regulations 2021

S.I. 2021/1449

Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (No. 25) Regulations 2021

Instruments not subject to parliamentary proceedings not laid before Parliament

S.I. 2021/1302

Pensions Act 2004 (Code of Practice) (Contribution Notices: Circumstances in Relation to the Material Detriment Test, the Employer Insolvency Test and the Employer Resources Test) Appointed Day Order 2021

S.I. 2021/1305

Avian Influenza (H5N1 in Wild Birds) (England) (Amendment) Order 2021

S.I. 2021/1307

Avian Influenza (H5N1 in Wild Birds) (England) (Amendment) (No. 2) Order 2021

Appendix 1

S.I. 2021/1178

Payment and Electronic Money Institution Insolvency (England and Wales) Rules 2021

1. The Committee has asked HM Treasury for a memorandum on the following points:

1. In relation to rules 22(7) and 27(7), confirm that the words “as it thinks just” should have appeared after rather than in sub-paragraph (d), so as to qualify all four sub-paragraphs.

2. Explain the intended difference in meaning where deadlines are expressed in the following different forms—

-“within X days from” a date or event (e.g., in rules 62, 142),

-“within X days of” a date or event (e.g., in rules 63, 82, 143, 166, 239), and

-“within X days after” a date or event (e.g. ,in rules 156, 238).

3. Having regard to the statement in rule 291(1) that it applies “to any meeting held under these Rules”, explain:

a. the need for rules 80 and 81;

b. whether rule 291(1) applies to a meeting of contributories or a meeting under paragraph 62; and

c .whether rule 291(1)(f) is appropriate for meetings of a creditors’ committee, members or contributories.

2. HM Treasury’s response is as follows.

3. In relation to point 1, in Rules 22(7) and 27(7) the words “as it thinks just” were deliberately confined to sub-paragraph (d) and do not apply to all four sub-paragraphs. The intention is the same as in the equivalent provisions of the Investment Bank Special Administration (England and Wales) Rules 2011, S.I. 2011/1301 (see Rules 55(8) and 60(8)) and the Insolvency (England and Wales) Rules 2016 (see Rule 3.46(4)). Although these earlier rules (referred to in this memorandum as the 2011 Rules and the 2016 Rules) do not apply where the 2021 Rules apply, they have common readers (the Courts, insolvency practitioners and insolvency lawyers). Detailed comparisons between the Rules are likely to be made.

4. Each element in the 2011 and 2016 Rules is separated by a comma. Had the words “as it sees just” been intended to qualify all of the items in the relevant Rules we consider there would have been an additional comma after the words “or any other matters”, as follows: “…confidentiality, duration, the scope of the order in the event of any change of circumstances, or other matters, as it sees just”.

5. We consider that this is the correct interpretation of the 2011 Rules and the 2016 Rules. To draft the equivalent provisions of the 2021 Rules differently could easily have been misinterpreted as a deliberate move away from equivalent wording in the 2011 and 2016 Rules and potentially caused unintended discrepancies in meaning across the different regimes.

6. In relation to point 2, there is no intended difference in meaning in the expressions referred to by the Committee. While HM Treasury accepts the general principle that there is a need for internal consistency regarding the use of expressions in statutory instruments, in this case the choice of wording was influenced by that of the equivalent rules for investment banks which were considered by the Committee in 2011. Presumably the inconsistencies were considered insignificant at that point, and we are not aware of any occasions on which they have created difficulties in their application to investment banks over the past 10 years. If we were to address the slight inconsistencies in wording now by amending Rules 62, 142, 156 and 238 of the 2021 Rules, this could cause confusion about whether a deliberate departure is being made from the equivalent provisions of the 2011 Rules.

7. Regarding point 3(a), we accept that the specific provision made in Rules 80 and 81 replicates the general provision made by rule 291(1) in relation to meetings of creditors’ committees. This lengthened the instrument by over one page. However, Rules 80 and 81 were included in the Chapter on the creditors’ committee to assist the reader, who might easily miss the general provision much later in the Rules. This was made more likely by the fact that the 2011 Rules do not provide for remote attendance at meetings generally, but they do make such provision relating to meetings of creditors’ committees specifically in the Chapter dealing with creditors’ committees (see Rule 115 of the 2011 Rules). Given that there is no conflict between the specific provision made by Rules 80 and 81 of the 2021 Rules and the general provision in rule 291(1) of the 2021 Rules, we did not expressly provide in Rule 291(1) that it was subject to Rules 80 and 81.

8. Regarding point 3(b), Rule 62 applies where the administrator chooses to use correspondence rather than hold a meeting. Under Rule 62(8) the administrator must call a meeting if no valid vote is received by the specified date using the correspondence route. The meeting would then take place in accordance with Rule 291(1).

9. Regarding point 3(c), taking meetings of the creditors’ committee, members and contributories in turn:

a) As referred to above, creditor committee meetings are covered in Rules 80 and 81, and Rule 80(7) is the equivalent to Rule 291(1)(f), so it is right that creditor committees are not referred to in Rule 291(1)(f).

b) Rule 291(1)(f) and (g) only refer to creditors and customers and not also to contributories or members. Meetings of contributories and meetings of members are both examples of types of “meeting held under these Rules” for the purposes of the opening words of this paragraph. The silence in rule 291(f) and (g) regarding contributories and members was an oversight for which we apologise to the Committee. HM Treasury proposes to amend Rule 291(f) and (g) to include references to contributories and members and to make it clear that Rule 291(1) applies to all meetings other than creditor committee meetings. Such a change would require consultation with the Insolvency Rules Committee.

10. We thank the Committee for considering this instrument.

HM Treasury

4 January 2022

Appendix 2

S.I. 2021/1221

Public Procurement (Agreement on Government Procurement) (Thresholds) (Amendment) Regulations 2021

1. The Committee has asked the Cabinet Office for a memorandum on the following points:

1. Explain how these regulations have complied with the duty in regulation 5A(5)(a) of S.I. 2015/102, regulation 9A(5)(a) of S.I. 2016/273 and regulation 16A(5)(a) of S.I. 2016/274 to lay the instrument before 1 November.

2. Explain why it was considered necessary for the preamble to include regulation 84A(1) and (3) of S.I. 2015/102, regulation 65ZA(1) and (3) of S.I. 2016/273 and regulation 119A(1) and (3) of S.I. 2016/274 but not the power to make transitional provision.

2. The Cabinet Office is grateful for the Committee’s consideration of these Regulations and its response is set out below.

3. In relation to the first point: The Cabinet Office acknowledges that as the Regulations were laid on 1st November, and not before, it has failed to fully comply with the duty in regulation 5A(5)(a) of S.I. 2015/102, regulation 9A(5)(a) of S.I. 2016/273 and regulation 16A(5)(a) of S.I. 2016/274. This is the result of an administrative error due to the laying of the Regulations directly coinciding with a change of personnel within the Cabinet Office with the responsibility for laying SIs. It appears there was a miscommunication in the handover process which resulted in these Regulations not being actioned as promptly as needed after they were signed by the Minister on Friday, 29th October (in partial compliance with the duty set out in the relevant regulations), and instead were laid on the next possible day, Monday, 1st November. An internal examination of the circumstances which led to this error is being carried out to ensure it does not happen in the future.

4. The Cabinet Office apologises for the error and for the lack of acknowledgement of the delay in the Explanatory Memorandum. At the time of drafting the EM, and at the time of approval for laying by the Minister, a delay in the laying date was not expected or anticipated and therefore was not mentioned in the EM.

5. The Cabinet Office notes that the primary reason behind the duty to lay the update to the thresholds, as made by these Regulations, before 1st November when the change only comes into effect from 1st January (rather than just the usual 21 days for negative instruments), is to allow contracting authorities sufficient time to take account of the new thresholds when planning forthcoming procurements. Given the Regulations were laid only one day late, on 1st November, it is not anticipated that this will cause more than a minimal impact on contracting authorities.

6. In relation to the second point: The Cabinet Office acknowledges that in the preamble the correct power to cite should have been regulation 84A(7) of S.I. 2015/102, regulation 65ZA(6) of S.I. 2016/273 and regulation 119A(7) of S.I. 2016/274 rather than paragraphs (1) and (3), in each case, of those regulations. The Cabinet Office apologises for this error and will be providing further training to drafting lawyers as to the correct citation of enabling powers, as set out in the Statutory Instrument Practice and the GLS Statutory Instrument Drafting Guidance, to prevent a reoccurrence.

Cabinet Office

21 December 2021

Appendix 3

S.I. 2021/1273

Product Safety and Metrology etc.(Amendment) Regulations 2021

1. The Committee has asked the Department for Business, Enterprise and Industrial Strategy for a memorandum on the following point:

Explain whether amendments made by regulations 11(5) and (6) and 12(4) and (5) are considered to “facilitate the access to the market within Great Britain of qualifying Northern Ireland goods” and, if so, why those provisions were not made by affirmative resolution

2. Regulations 11 and 12 of the Product Safety and Metrology etc. (Amendment) Regulations 2021 (“the 2021 Regulations”) amend the Non-automatic Weighing Instruments Regulations 2016 (“the NAWI Regulations”) and the Measuring Instruments Regulations 2016 (“the MI Regulations”) respectively. Each has substantially the same objective and effect in relation to the regulations they amend, which is to clarify the procedure for disqualification and requalification for measuring and weighing instruments they regulate, in order to ensure they remain accurate after they have been given access to the market.

3. Disqualification and requalification are processes that have been in place for many years and are there to ensure that regulated weighing instruments (such as weighing scales in supermarkets) and regulated measuring instruments (such as petrol pumps) continue to give accurate measurements once they are already on the market and are in service, throughout their lifetime.

4. If a measuring or weighing instrument that is already on the market is found not to meet the applicable essential requirements (that is, that it is no longer given accurate measurements), local weights and measures authorities may place a disqualification mark on the instrument, signifying that it can no longer be used for regulated purposes. The commercial user of the instrument can apply to have the instrument re-qualified once it is brought into compliance and if a requalification authority assesses the instrument as meeting the applicable requirements, they may affix the requalification mark.

5. Pursuant to the provisions of the Protocol on Ireland/Northern Ireland in the Withdrawal Agreement, the requirements that apply in Northern Ireland follow EU requirements and are therefore not exactly the same as those that apply in Great Britain. Regulation 32D of the NAWI Regulations and regulation 33D of the MI Regulations provide that, in effect, where the requirements of the two sets of Regulations are met as they have effect in Northern Ireland and they are qualifying Northern Ireland goods, they may also be lawfully placed on the market in Great Britain. The provisions that set out how access to the market within Great Britain of qualifying Northern Ireland goods can be achieved have not been changed by the 2021 Regulations. The 2021 Regulations therefore do not facilitate the access to the market within Great Britain of qualifying Northern Ireland goods; the existing provisions do that, and they have not been amended in this respect.

6. However, since the requirements that must be met before these instruments are placed on the market are not the same, the disqualification and requalification procedures also cannot be the same. Regulation 11(5) and (6) and 12(5) and (6) essentially gloss the provisions in each set of regulations that deal with disqualification and requalification to make sure that they work effectively for qualifying Northern Ireland goods which have already been lawfully placed on the market within Great Britain under regulation 32D of the NAWI Regulations or regulation 33D of the MI Regulations, ensuring that after these instruments have access to the market of Great Britain, consumers and other end users can continue to be assured of their accuracy.

7. Since these provisions do not facilitate access to the market within Great Britain of qualifying Northern Ireland goods, they do not fall to be made by affirmative resolution.

Department for Business, Energy and Industrial Strategy

20 December 2021

Appendix 4

S.I. 2021/1416

Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) Regulations 2021

1. In its letter to the Department of 15 December 2021, the Committee requested a memorandum on the following points:

(1) Explain why the proportionality statement in the preamble does not refer to restrictions, having regard in particular to regulations 4, 13 and 14 and to the statutory precondition in section 45D(1) of the enabling Act.

(2) Given the number of forms of acceptable evidence listed in regulation 9, and the fact that they can be issued by different countries and in different languages but are subject to specific criteria (e.g. that a certificate under paragraph (3)(f) can only be issued by a “relevant country” and a certificate under paragraph (8)(d) must comply with statutory requirements), explain how it is expected that the requirements will be capable of being enforced by the application of the “reasonable measures” specified in regulation 5(1).

(3) Having regard to the exceptions listed in regulation 4(8), explain—

(a) what is intended to amount to “part of the event” in paragraphs (4) and (5) of that regulation and paragraphs 2 and 3 of Schedule 1; and

(b) how it is intended that responsible persons will be able to satisfy themselves that the extent of the movements of persons attending the event is not likely to reach that threshold (and that the venue or event is therefore not subject to restrictions under these Regulations).

2. The Department’s response to the Committee’s points is as follows.

3. In relation to point (1), the Secretary of State has considered and is satisfied that all the provisions in these Regulations are proportionate to what they seek to achieve. While with hindsight it may have been preferable to refer to both restrictions and requirements in the preamble for the avoidance of doubt, we consider that the reference to requirements is an accurate way of referring to all the provisions in these Regulations. For example, the reference in regulation 4 to a venue and event being subject to restrictions under these Regulations is a reference to the fact that the requirements in the Regulations, and in particular in regulations 5 and 7, apply in relation to those venues and events (see regulation 4(3)). Regulation 13 provides for Coronavirus Immediate Restriction Notices, but makes it clear that these notices operate by imposing requirements—see regulation 13(2) and (3). The same applies in relation to Coronavirus Restriction Notices. Despite the title of the notice, it operates by imposing requirements on the person to whom it is issued. See regulation 14(2), (3) and (4).

4. In relation to point (2), regarding checks on acceptable evidence, our policy is designed to ensure that checks on individuals’ COVID-19 status are carried out effectively, while minimising burdens on businesses. The person responsible for the event or venue is expected to take reasonable measures to ensure that all attendees aged 18 or over have the NHS COVID Pass, an approved international equivalent, or valid proof that they have completed a negative PCR or LFD test. Technology plays an important role in supporting venues to effectively check certification. Venues are strongly recommended to check proof of COVID-19 status through the use of the free NHS COVID Pass Verifier App wherever possible. This will ensure that passes are valid and minimise the risk of fraud without the need for specialist knowledge of staff members. The NHS COVID Pass Verifier App provides the most secure verification of NHS COVID Passes as well as verification of passes from the rest of the UK and 62 countries that are part of the EU Gateway. The NHS COVID Pass Verifier App is in English, eliminating any language barriers with certificates from the 62 countries in the EU Gateway verified through the App. The NHS COVID Pass Verifier App has been freely available for a number of months.

5. The NHS COVID Pass can demonstrate a person’s COVID-19 status on the basis of vaccination, a negative COVID test, clinical trial participation, or a medical exemption. Without the NHS COVID Pass, proof of a negative test can also be verified using visual checks of a text or email confirming a negative test from NHS Test & Trace. These will all be in English, eliminating potential language barriers for staff.

6. International attendees’ certification is to be checked on the same basis that airlines have been checking COVID-19 status for a number of months under the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 (S.I 2021/582), where the traveller is from a country outside of the EU Gateway. The list of approved vaccines and proof of vaccination is kept under consistent review, and can be found at www.gov.uk/guidance/countries-with-approved-covid-19-vaccination-programmes-and-proof-of-vaccination. While this may result in a very small number of attendees to events and venues relying on vaccination certificates in French or Spanish, this is a balanced approach, in order to ensure alignment with the evidence recognised at the border and consistent messaging for travellers to England.

7. In relation to points (3)(a) and (b), concerning regulation 4(8) and what amounts to ‘part of the event’, the intention of paragraphs (4) and (5) in regulation 4, and of paragraphs 2 and 3 of Schedule 1, is to prevent venues from permitting or encouraging attendees to move around for reasons other than to use toilet facilities, obtain food or drink, or to leave the event. For example, the policy intends that certification requirements would apply to a seated reception where attendees are likely to leave their seats to dance, but does not intend certification to apply to a seated theatre performance where attendees will only leave their seat to purchase food or to go to the toilet. Guidance on gov.uk sets out that:

Attendees should not be counted as expected to stand or move around if:

  • they remain seated for the duration of the event apart from leaving their seat to use toilet facilities, or to get food or drink
  • they are assigned a seat when booking or when they arrive at the venue and they choose to stand next to their assigned seat for the duration of the event
  • they only leave their seat to leave the event

8. The intention is that an event where persons are likely to move around and mingle, even for only a small part of the event, is required to implement certification. For example, if there is an award ceremony or reception, where persons will be seated for 4 hours of the evening during dinner and speeches, but 1 hour of the event will involve attendees being able to move from table to table, to dance together, or to stand together at the back of the room, then attendees will be standing or moving around for ‘part of the event’. By contrast, for a seated theatre performance where persons are expected to stay in their assigned seat for the duration of the performance, and will only leave their seat in the interval to obtain food and drink or use toilet facilities, that event will not require certification. Therefore, by reference to the seating arrangements, any space made available for attendees to mingle with other attendees (e.g. a dancefloor), and the nature of the event taking place, responsible persons will be able to satisfy themselves that persons are or are not likely to mingle and move around for all or part of the event.

9. We hope that this answers your questions, but, as ever, we would be very happy to answer any further queries you may have.

Department of Health and Social Care

21 December 2021

Formal Minutes

Wednesday 19 January 2022

Virtual meeting

Members present:

Jessica Morden, in the Chair

Dr James Davies

Baroness D’Souza

Baroness Gale

Lord Haskel

Paul Holmes

John Lamont

Baroness Newlove

Baroness Scott of Needham Market

Lord Smith of Hindhead

Richard Thomson

Liz Twist

Draft Report, proposed by the Chair, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1.1 to 4.5 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 4.

Resolved, That the Report be the Twenty-First Report of the Committee to both Houses.

Ordered, That the Chair make the Report to the House of Commons and that the Report be made to the House of Lords.

[Adjourned till Wednesday 26 January at 3.40 p.m.