Fourth Report of Session 2021–22 Contents

Instruments reported

At its meeting on 9 June 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 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. 2021/432: Reported for defective drafting

Early Years Foundation Stage (Miscellaneous Amendments) and Childcare Fees (Amendment) Regulations 2021

1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

1.2These Regulations, which are subject to the negative resolution procedure, introduce a reception baseline assessment to help measure the progress children make from starting school to the end of year 6. Regulation 2(4) (inserted article 3D) contains provision enabling the Secretary of State to make delegated supplementary provisions in relation to reception baseline assessments (that is, such provisions as appear to the Secretary of State to be expedient for giving full effect to, or otherwise supplementing, the provisions made by the instrument). Inserted article 3D(3) states that the “Secretary of State must publish any delegated supplementary provisions”. Section 42(6C) of the Childcare Act 2006 states that any delegated supplementary provisions “on being published as specified in the order under which they are made, are to have effect…as if made by the order”. The Committee asked the Department for Education to explain how the requirement in section 42(6C) to specify the manner of publication of delegated supplementary provisions is complied with. In a memorandum printed at Appendix 1, the Department acknowledges that the manner of publication should have been specified and undertakes to amend the instrument at the next available opportunity. The Committee accordingly reports regulation 2(4) for defective drafting, acknowledged by the Department.

1.3(The Committee also asked the Department to explain where the delegated supplementary provisions will be published. In its memorandum the Department confirms that the gov.uk website is the usual online platform for publication. The Committee assumes that the precise url will be given in a footnote or the Explanatory Note when the instrument is amended, so as to provide a reasonable facility of access for readers.)

2S.I. 2021/461: Reported for requiring elucidation, for defective drafting and for failure to comply with proper legislative practice

Removal and Disposal of Vehicles (Amendment) (England) Regulations 2021

2.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in one respect, are defectively drafted in one respect and fail to comply with proper legislative practice in one respect.

2.2These Regulations, which are subject to the negative resolution procedure, amend an error (which subsisted for six years) in the Removal and Disposal of Vehicles Regulations 1986 which resulted in a power of civil enforcement officers being unintentionally removed—the power to remove vehicles from a road in a civil enforcement area for parking contraventions in England following the issue of a penalty charge notice. The Committee asked the Department for Transport to explain why it was thought unnecessary to include transitional provision in respect of infractions occurring before commencement. In a memorandum printed at Appendix 2, the Department provides additional explanation of the background to the change and concludes that no transitional provision was thought necessary. It may be, in any event, that transitional provision would have been ineffective to address any significant part of the legal issues that arise in respect of enforcement without the power, but this is a matter that can be decided by the courts if necessary; in the meantime the Committee is content to report regulation 1 for requiring elucidation.

2.3Regulation 1(2) states that these Regulations “extend to England and Wales and Scotland” and regulation 1(3) states that these Regulations “apply in relation to England only”. Given that the substantive provisions of this instrument expressly have no application to Scotland or Wales, the Committee asked the Department to explain why it was thought helpful to include either or both of regulation 1(2) and (3). In its memorandum, the Department explains that since January 2021, the Government Legal Department has encouraged drafters of statutory instruments to deal expressly with extent in every instrument, even where it can be inferred, in order to be helpful to lay users who may not infer extent in the absence of an express provision. Having included the extent provision, the Department explains that it considered that confirmation of a more limited application would make matters as clear as possible to the user. The Committee does not agree that this approach provides clarity if it purports to limit application in circumstances where the limitation can add nothing to the terms of the substantive provisions. It is difficult enough for readers of the statute book to cope with the increasing incidence of parallel texts for different extents; to include express limitations of application that can have no effect simply introduces another layer of unnecessary confusion for the reader and is to be avoided. The Committee accordingly reports regulation 1 for defective drafting.

2.4The Committee also asked the Department to explain, given that this instrument rectifies defective legislation, whether the Department used the free issue procedure. In its memorandum, the Department acknowledges that the free issue procedure should have been used and explains that arrangements are being made with the National Archives, for an appropriate refund to be made available for anyone who has already purchased a copy of the instrument being rectified by these Regulations. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice, acknowledged by the Department.

3S.I. 2021/467: Reported for requiring elucidation

Town and Country Planning (General Permitted Development) (England) (Amendment) (Coronavirus) Order 2021

3.1The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation in one respect.

3.2This Order, which is subject to the negative resolution procedure, introduces a new temporary permitted development right (until 1 January 2022) to allow for the provision of moveable structures on land within the curtilage of cafes, restaurants and drinking establishments. Paragraph 7.6 of the Explanatory Memorandum states that this permitted development right “is being put in place to support the economic recovery of hospitality businesses and heritage attractions by allowing for the temporary provision of moveable structures within the existing curtilage, increasing outdoor seating capacity through new spaces to eat and drink in, such as temporary marquees, and enabling heritage visitor attractions to operate while minimising the need for visitors to gather in enclosed spaces.” Given the breadth of this policy and Article 3(4) of the Town and Country Planning (General Permitted Development) (England) Order 2015 (which prohibits development contrary to any condition imposed by any planning permission granted), the Committee asked the Ministry of Housing, Communities and Local Government to explain whether the temporary permitted development rights granted by article 2 of this Order are intended to override any existing restrictive planning conditions applying to cafes, restaurants, drinking establishments and visitor attractions. In a memorandum printed at Appendix 3, the Department explains that article 3(4) continues to apply alongside the temporary permitted development rights granted by this Order and that any development subject to a restrictive planning condition prohibiting the erection of temporary moveable structures would not benefit from the new rights. The Department undertakes to consider the breadth of the wording at paragraph 7.6 of the Explanatory Memorandum when considering the explanation of any future amendments. The Committee accordingly reports article 2 of this Order for requiring elucidation, provided by the Department’s memorandum.

4S.I. 2021/486: Reported for failure to comply with proper legislative practice

Coronavirus Act 2020 (Suspension: Temporary Judicial Commissioners, Urgent Warrants and Disposal of Bodies) Regulations 2021

4.1The 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.

4.2These Regulations, which are not subject to Parliamentary procedure, suspend two sections of and two parts of a Schedule to the Coronavirus Act 2020. The preamble recites that the regulations are made with the consent of the Department of Health and Department of Justice in Northern Ireland. However, the signature block does not record that consent and the Committee asked the Department of Health and Social Care to explain. In a memorandum printed at Appendix 4, the Department explains that it considers that there is no absolute requirement that consent must be established by signature and satisfaction of the pre-condition in section 88(8) of the Coronavirus Act 2020 can be achieved by properly obtaining the requisite consent and by recording that consent in the preamble. The Committee notes that paragraph 3.20 of Statutory Instrument Practice (5th edition, November 2017) indicates that a signature is expected. Inconsistency in this matter between different instruments is an unnecessary and unhelpful source of confusion for readers and the Committee expects the Government to follow its own practice as set out in Statutory Instrument Practice consistently. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.




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