Twenty-Eighth Report of Session 2021–22

Instruments reported

At its meeting on 16 March 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 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. 2022/19: Reported for requiring elucidation and for defective drafting

National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2022

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

1.2These Regulations, which are subject to the negative resolution procedure, introduce an exemption from charging for use of certain NHS services for overseas participants in the Birmingham Commonwealth Games. The exemption applies to overseas visitors who are in the UK for the period of the Games, have been given an accreditation badge by the Organising Committee to allow them to participate in the Games and who “are not part of the Games Workforce” (regulation 2(3)(b) (inserted regulation 24(2)). The Committee asked the Department of Health and Social Care to explain how it will be determined whether a person falls within this exemption, in particular, what evidence will need to be produced to show that a person is not part of the Games Workforce. In a memorandum printed at Appendix 1, the Department explains that individuals in the Games Workforce will have different accreditation codes on their accreditation badges to those individuals who are entitled to the exemption. The Department explains that it will be issuing guidance to NHS Trusts as to which accreditation codes will demonstrate eligibility for the exemption. The Committee accordingly reports regulation 2(3)(b) for requiring elucidation, provided by the Department’s memorandum.

1.3Regulation 2(3)(b) (inserted regulation 24(3)) defines “Games Workforce” to mean “(a) a person engaged by the Organising Committee; or (b) a person engaged to a supplier, contractor or sub-contractor of the Organising Committee.” The Committee also asked the Department to explain the intended meaning of “engaged” and, in particular, the difference between “engaged by” in paragraph (a) and “engaged to” in paragraph (b). In its memorandum, the Department explains that the term “engaged” was used to capture persons with different relationships with the Organising Committee or with a supplier, contractor or sub-contractor of the Organising Committee, for example, employees, sub-contractors and volunteers. The Department explains that it used “engaged by” for those with a direct relationship with the Organising Committee whereas “engaged to” was to allow for indirect relationships to the Organising Committee, for example, those employed by, or sub-contracting or volunteering with, suppliers, contractors or sub-contractors of the Organising Committee. The Committee notes the policy intention but considers that the differential usage of “to” and “by” is too subtle to be an effective way of enacting the policy in a certain and clear way; the intended breadth in each component should have been articulated clearly on the face of the instrument. The Committee accordingly reports regulation 2(3)(b) for defective drafting.

2S.I. 2022/21: Reported for requiring elucidation

Private Storage Aid for Pigmeat (England) (Amendment) Regulations 2022

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, use powers in retained EU legislation to amend the Private Storage Aid for Pigmeat (England) Regulations 2021 (the 2021 Regulations) to extend the window for applications for private storage aid for pigmeat. The window is extended from noon on 2 February to the earlier of noon on 31 March 2022 or the last working day on which the Secretary of State’s declaration of exceptional market conditions (made under section 20 of the Agriculture Act 2020 on 11 November 2021), as extended or revoked, has effect (regulation 2). The Committee asked the Department for Environment, Food and Rural Affairs to explain, in circumstances where the Secretary of State’s declaration is extended or revoked after the coming into force of these Regulations (as was the case on 7 February when the declaration was extended), what powers are relied on to sub-delegate the decision as to the closing date for applications for private storage aid. In a memorandum printed at Appendix 2, the Department asserts that regulation 2 does not sub-delegate the decision as to the closing date for applications but establishes the closing date in accordance with the statutory provisions concerning the duration and effect of a declaration of exceptional market conditions to which the 2021 Regulations relate. The Department notes that the declaration of exceptional market conditions triggers the availability of the powers in section 21 of the Agriculture Act 2020 including section 21(3) which provides that the Secretary of State may make use of powers in retained EU legislation providing for the operation of private storage aid in response to a declaration under section 20 for so long as that declaration has effect. It appears to the Committee that the Department is arguing that it is necessary for the powers in section 21 to be in effect for the Secretary of State to use retained EU legislation relating to private storage aid and that those powers must remain in effect for the duration of the application period—consequently the statement in regulation 2 that the expiration date for applications must be earlier than 31 March 2022 if the declaration under section 20 is revoked before that date is not an exercise of discretion. The Committee accepts this as a possible interpretation (although it notes that the previous version of regulation 5(1) of the 2021 Regulations did not contain an expiration date by reference to revocation of the declaration). The Committee is accordingly content to report regulation 2 for requiring elucidation, provided by the Department’s memorandum.

3S.I. 2022/44: Reported for requiring elucidation

Family Procedure (Amendment) Rules 2022

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

3.2These Rules, which are subject to the negative resolution procedure, give procedural effect to the revised legislative framework under the Divorce, Dissolution and Separation Act 2020. An application for divorce must be served on the respondent within 28 days (rule 10 (inserted rule 6.6A)). However, rule 10 (inserted rule 6.6B(3)) envisages that an application for an extension of time to serve the divorce application may be made outside of the 28-day period if the applicant has good reason for not making an extension of time application within that period. The Committee asked the Ministry of Justice to explain what consequences would flow from the situation where the applicant has not served the application on the respondent within 28 days, does not have good reason for not making the extension of time application within that period and the court does not grant the extension of time order after considering the circumstances in rule 6.6B(4). In a memorandum printed at Appendix 3, the Department explains that the consequence would be that the application could no longer be validly served without the leave of the court; the application could be withdrawn by giving notice to the court in writing (new rule 7.6) and the applicant could issue fresh proceedings. The Department notes that other consequences are possible (depending on the circumstances) and the court has a number of case management powers available which are exercisable on an application or of its own initiative. The Committee accordingly reports new rule 6.6B for requiring elucidation, provided by the Department’s memorandum.

4S.I. 2022/73: Reported for defective drafting

Domestic Abuse Act 2021 (Commencement No. 3) Regulations 2022

4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two related respects.

4.2These Regulations, which are not subject to Parliamentary procedure, are made to commence section 3 of the Domestic Abuse Act 2021. Whilst regulation 1(2) defines “the Act”, these words are missing from regulation 2, which simply states that “[s]ection 3 (children as victims of domestic abuse) comes into force” on the specified date. The Committee asked the Home Office to confirm that regulation 2 should have included a reference to “the Act”. In a memorandum printed at Appendix 4, the Department states that the intended effect of the Regulations was to bring into force section 3 of the 2021 Act and accepts that “further clarity” could have been provided to the reader if regulation 2 had expressly referenced the Act. The Committee disagrees that this is merely an issue of providing “further clarity”. Defining a term and then not using it is simply defective drafting; as is specifying a section number and not the Act to which it refers. The fact that the courts will probably be able to work out the intended effect of the provisions from their context may be a comfort, but it is not an excuse. The Committee accordingly reports regulations 1(2) and 2 for defective drafting.

5S.I. 2022/86: Reported for defective drafting

Apprenticeships (Miscellaneous Provisions) (Amendment) (England) Regulations 2022

5.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

5.2These Regulations, which are subject to the negative resolution procedure, amend the Apprenticeships (Miscellaneous Provisions) Regulations 2017 to allow for flexible apprenticeships within certain sectors. Apprentices working to achieve an “approved standard” will be able to move between different arrangements throughout their apprenticeship provided certain conditions are met. The Committee asked the Department for Education to explain why regulation 2(9)(a) defines “approved standard” for the purposes of paragraph 8 when the same phrase is used elsewhere in the amended Regulations without being defined, by virtue of the definition being found in the enabling Act. In a memorandum printed at Appendix 5, the Department confirms that the definition was unnecessary. The Committee accordingly reports regulation 2(9)(a) for defective drafting, acknowledged by the Department.

Instruments not reported

At its meeting on 16 March 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

Instruments requiring affirmative approval

Instruments subject to annulment

Instruments not subject to parliamentary proceedings laid before Parliament

Appendix 1: Memorandum from the Department of Health and Social Care

S.I. 2022/19

National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2022

1. In its letter to the Department of 2 March 2022, the Committee requested a memorandum on the following points:

(1) Explain how it will be determined whether a person falls within the exemption from charging in regulation 2(3)(b) (inserted regulation 24(2) and (3)), in particular, what evidence will need to be produced to show that a person is not part of the Games Workforce.

(2) In the definition of “Games Workforce” (regulation 2(3)(b)), explain the intended meaning of “engaged” and, in particular, “engaged by” in paragraph (a) and “engaged to” in paragraph (b).

2. The Department comments on each point as follows.

3. In relation to point (1), there will be two different groups accredited by the Organising Committee (for the 2022 Commonwealth Games). One group will be the Games Workforce and they will not fall within the exemption from charging, whereas the second group will include athletes and team officials, dignitaries, sponsors, members of international federations, broadcasters, press and photographers (“the Games Family”), and this second group will fall within the exemption. Individuals in both groups will receive an accreditation pass which will display personal identification information, including their role in the Games, which will be signified by an accreditation code.

4. Individuals in the Games Workforce will have different accreditation codes on their accreditation passes to those individuals in the Games Family. The differences between the two groups’ accreditation passes will reveal whether an individual is part of the Games Family, and this is therefore the evidence they will need to produce to demonstrate whether they fall within the exemption from charging. The Department will be issuing guidance to NHS Trusts as to which accreditation codes will demonstrate eligibility for the exemption.

5. In relation to the first part of point (2), when drafting the definition of “Games Workforce” in regulation 2(3)(b), the Department used the term “engaged” because the intention was to include persons with different categories of relationship with the Organising Committee or with a supplier, contractor or sub-contractor of the Organising Committee. This would include employees with a contract of employment at one end of the scale, to workers and sub-contractors with different types of contracts, to volunteers who may not have any sort of contract at all at the other end of the scale. The Department therefore referred to “engaged” in order to capture all these forms of relationship.

6. In relation to the second part of point (2), the Department used “engaged by” in paragraph (a) for those with a direct relationship with the Organising Committee whereas “engaged to” in paragraph (b) was to allow for indirect relationships to the Organising Committee, so those employed by, or sub-contracting or volunteering with, suppliers, contractors or sub-contractors of the Organising Committee.

Department of Health and Social Care

8 March 2022

Appendix 2: Memorandum from the Department for Environment, Food and Rural Affairs

S.I. 2022/21

Private Storage Aid for Pigmeat (England) (Amendment) Regulations 2022

1. The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following point:

In relation to regulation 2, in circumstances where the Secretary of State’s declaration under section 20 of the Agriculture Act 2020 is extended or revoked after the coming into force of these Regulations, explain what powers are relied on to sub-delegate the decision as to the closing date for applications for private storage aid.

2. It is the Department’s view that Regulation 2 of the Private Storage Aid for Pigmeat (England) (Amendment) Regulations (the Regulations) does not sub-delegate the decision as to the closing date for applications for private storage aid (PSA), but rather establishes the closing date in accordance with the statutory provisions concerning the duration and effect of a declaration of exceptional market conditions to which the amended statutory instrument relates.

3. Regulation 2 makes provision with reference to events contemplated in section 20 of the Agriculture Act 2020 (the Act). Section 20 of the Act provides the Secretary of State with power to make a declaration of exceptional market conditions (subsection (1)) and the further discretion to decide to make and publish a further declaration to extend the effect of an original declaration, or to decide to revoke a declaration—see subsections (5) and (6). Any decision to revoke or extend the effect of a declaration is separate to the decision about the end of the application period for the PSA scheme.

4. The declaration of exceptional market conditions triggers the availability of the powers in section 21 of the Act. It should be noted that section 21(3) of the Act provides that the Secretary of State may make use of powers in retained EU legislation providing for the operation of PSA, in response to a declaration under section 20 of the Act. This applies during the period for which a declaration has effect, by virtue of section 21(1) of the Act. The Department’s view is therefore that whilst it is both appropriate and necessary for Regulation 2 to acknowledge the legislative requirement for the declaration to be in effect in order to trigger the availability of the powers in section 21 of the Act (which the Department considers are necessary for the Secretary of State to use retained EU legislation relating to PSA, including in relation to the duration of the application period), Regulation 2 does not confer discretion to decide when the application window for the PSA scheme comes to an end.

5. At the time that the Regulations were laid, the declaration of exceptional market conditions made by the Secretary of State on 11 November 2021 was in effect. The effect of this declaration was extended for a further three months by a declaration made and published on 7 February 2022 (not in these Regulations).

6. Therefore, the powers under section 21 of the Agriculture Act 2020 (including, by virtue of subsection (3), the powers in retained direct EU legislation under which the Regulations are made) remain available for use in respect of the continuing exceptional market conditions originally declared on 11 November 2021 for 3 months beginning with 7 February 2022 (ie until early May 2022), unless the declaration is revoked sooner. Regulation 2 of this instrument reflects the policy intention that applications for the associated pigmeat PSA scheme should close either at noon on 31 March 2022, or, if the declaration is revoked with effect from an earlier date, at noon on the last working day on which the declaration has effect.

Department for Environment, Food and Rural Affairs

8 March 2022

Appendix 3: Memorandum from the Ministry of Justice

S.I. 2022/44

Family Procedure (Amendment) Rules 2022

1. The Committee has asked the Ministry of Justice for a memorandum on the following point:

Given that rule 10 (inserted rule 6.6B(3)) envisages that an application for an extension of time may be made outside the period specified in rule 6.6B(2), explain what consequences would flow from a situation where the applicant has not served the application on the respondent within 28 days, does not have good reason for not making the extension of time application within the period specified in rule 6.6B(2) and the court does not grant the extension of time order after considering the circumstances in rule 6.6B(4).

2. The Department is grateful for the Committee’s consideration of this instrument and responds as set out below.

3. If the applicant fails to take the step required by rule 6.6A to effect service and the court does not grant an extension of time order after considering the circumstances in rule 6.6B(4) the consequence would be that the application cannot be validly served thereafter without the leave of the court. Where an application has not been served it may be withdrawn by giving notice to the court and the applicant could issue fresh proceedings (new rule 7.6). Other consequences may depend on whether the application is made on notice to the respondent and whether other applications have been made by the respondent, for example to strike out. The court has a number of case management powers which it may exercise on an application or of its own initiative depending on the circumstances of a particular case.

4. If the Committee requires any further clarification the Department would be pleased to assist further.

Ministry of Justice

7 March 2022

Appendix 4: Memorandum from the Home Office

S.I. 2022/73

Domestic Abuse Act 2021 (Commencement No. 3) Regulations 2022

1. In a letter dated 2 March 2022, the Committee has asked the Home Office for a memorandum on the following point.

Explain whether regulation 2 should have included a reference to “the Act”.

2. By way of summary, the intended effect of these Regulations was to bring into force section 3 of the Domestic Abuse Act 2021 (insofar as not already in force, on 31 January 2022). This is confirmed by:

a. the title of the Regulations being the Domestic Abuse Act 2021 (Commencement No. 3) Regulations 2022;

b. the only enabling power cited in the Regulations, being section 90(6) of the Domestic Abuse Act 2021, which can only be used to bring into force provisions of that Act—it cannot do anything else;

c. regulation 1(2) which defines ‘the Act’ for the purposes of these Regulations as the Domestic Abuse Act 2021;

d. regulation 2 which refers to ‘section 3 (children as victims of domestic abuse)’ and so provides the title of the specific provision in the Domestic Abuse Act 2021 which is being commenced;

e. the fact there are no other operative provisions in the Regulations;

f. the explanatory note to the Regulations itself which refers to the purpose of regulation 2 being to commence ‘section 3 of the Act’ and that section 3 makes provision in relation to children as victims of domestic abuse.

3. We are grateful to the Committee for highlighting this issue. The Department accepts that further clarity could be provided to the reader if regulation 2 had expressly referenced the Act. However, for the reasons set out in paragraph 2 above, the Department is of the view that the Regulations can have no other intended effect than the commencement of Section 3 of the Domestic Abuse Act 2021.

Home Office

8 March 2022

Appendix 5: Memorandum from the Department for Education

S.I. 2022/86

Apprenticeships (Miscellaneous Provisions) (Amendment) (England) Regulations 2022

1. The Committee has asked the Department for Education for a memorandum on the following point:

Given that “approved standard” already exists as a phrase in the amended instrument (twice in the regulation being amended) and is left undefined by virtue of the definition being found in the enabling Act, explain the reason for defining it in regulation 2(9)(a).

2. The Department acknowledges that it was unnecessary to define the expression “approved standard”, for the reasons given by the Committee.

3. The Department apologises for this error.

4. In the Department’s view, the inclusion of this definition does not affect the operation of the instrument, and it does not intend to take any immediate action. However, the Department will ensure that this error is rectified, should the Regulations be amended in the future.

Department for Education

8 March 2022

Formal Minutes

Wednesday 16 March 2022

Virtual meeting

Members present

Jessica Morden, in the Chair

Lord Beith

Lord Chartres

Dr James Davies

Baroness D’Souza

Baroness Gale

Lord Haskel

Report consideration

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 5.2 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 5.

Resolved, That the Report be the Twenty-Eighth 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.

Adjournment

Adjourned till Wednesday 23 March at 3.40 p.m.