Sixth Report of Session 2021-22 Contents

Instruments reported

At its meeting on 23 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. 2021/504: Reported for requiring elucidation

National Health Service Trust (Scrutiny of Deaths) (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 Parliamentary procedure, confers power on NHS trusts to scrutinise deaths in England where the coroner has no duty to investigate or where “it is unclear whether the death is one which a registered medical practitioner would be required to notify to the relevant senior coroner under the Notification of Deaths Regulations 2019” (article 3(1)(b)). Given that the factors determining the requirement to notify the coroner under the 2019 Regulations include subjective opinions of a particular medical practitioner, the Committee asked the Department of Health and Social Care to explain how it can be clear or unclear in the abstract whether the requirement applies. In a memorandum printed at Appendix 1, the Department explains that the purpose of article 3(1)(b) is to “allow for scrutiny of a death by a medical examiner” employed by an NHS Trust where a medical practitioner is not certain whether they are required to notify the senior coroner; in such circumstances, the medical practitioner is in a position to know and to inform the NHS trust whether the practitioner considers it is unclear whether they are required to notify the senior coroner. The Committee notes this explanation (while noting that article 3(1)(b) and the wording of the Explanatory Note appear to include circumstances in addition to the referral by a medical practitioner). The Committee accordingly reports article 3(1)(b) for requiring elucidation, provided in part by the Department’s memorandum.

2S.I. 2021/509: Reported for requiring elucidation

Antarctic (Amendment) Regulations 2021

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, update the internationally recognised descriptions of places that have been designated under the Antarctic Treaty System as historic sites and monuments. Section 10(1) of the Antarctic Act 1994 makes it an offence to damage, destroy or remove any site or monument designated as a historic site and monument by the Secretary of State except in accordance with a permit granted under that section. Schedule 2 of this instrument designates the wreck of the Endurance (including all artefacts contained or formerly contained within the ship within a 150m radius of the wreck) as a historic site and monument but without giving a location of the wreck because the exact location is unknown. Given the lack of any positional information in respect of the wreck, the Committee asked the Foreign, Commonwealth & Development Office whether it is intended that there should be an exception or defence to the offence in section 10(1) of reasonable excuse or ignorance of the nature of the wreck or the provenance of fixtures and fittings. In a memorandum printed at Appendix 2, the Department explains that it shares the Committee’s concerns about the prospect of prosecution in the event of genuinely inadvertent act but believes that there is adequate mitigation without introducing a specific statutory defence. The Department adds that it intends to bring the designation of the wreck to the attention of anyone seeking authorisation for any British expedition to Antarctica with potential to encounter it and that, as proceedings for offences under section 10 may only be instituted by the relevant Secretary of State or Director of Public Prosecutions, the Department expects the discretion not to prosecute to be exercised where an offence arises from a genuine lack of knowledge as to the wreck’s location or as to an object’s provenance. Although a statutory defence of lack of knowledge might have been helpful, given the practical circumstances explained by the Department the Committee is content to report these Regulations for requiring elucidation, provided by the Department’s memorandum.

3S.I. 2021/538: Reported for requiring elucidation

Marriage (Keeping of Records in Churches and Chapels) 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 not subject to Parliamentary procedure, provide for registers of marriage services to be kept in churches and chapels of the Church of England and the Church in Wales. Regulation 2(4) states that the “register must be made of durable material.” The Committee asked the Home Office to explain (preferably by reference to industry standards, published guidance or established practice in relation to legislative usage in similar contexts) what class of material is considered sufficiently durable for this purpose or what degree of durability is regarded as acceptable. In a memorandum printed at Appendix 3, the Department explains that there are no relevant industry standards for durability in this context and no relevant published guidance and refers to other instruments where a similar requirement for registers to be made of “durable materials” have been included. The Department asserts that the long-established practice is that register books should at least be hard-backed and that “it is intended that registers must be made of materials (including the paper used for the pages of the register) which are sufficiently hard-wearing to withstand regular use without significant deterioration and to resist deterioration and damage in the ordinary course of things when these register books are kept as records in the church or chapel in question (including after they have been filled).” Although in some contexts it might be necessary or desirable to provide express statutory criteria for durability, in this context the Committee is satisfied with the information given by the Department as to the practical expectations; and on that basis the Committee is content to report regulation 2(4) for requiring elucidation, provided by the Department’s memorandum.

4S.I. 2021/582: Reported for defective drafting

Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021

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 subject to the negative resolution procedure, consolidate and replace three sets of Regulations relating to international travel, passenger information, testing and operator liability. Regulation 19(19) defines “relevant passenger” for the purposes of paragraphs (9) and (11) of that regulation. The Committee asked the Department for Transport to explain the reference to “relevant passenger” given that those words do not appear in paragraphs (9) and (11). In a memorandum printed at Appendix 4, the Department explains that paragraph (9) contains a drafting error and should have referred to the defined “relevant passenger” and that the cross-references in paragraph 19 should have been to paragraphs (9) and (10). The Department undertakes to amend these errors in the next amending instrument. The Committee accordingly reports regulations 19(9) and (19) for defective drafting, acknowledged by the Department.




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