At its meeting on 15 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 one of those considered. The instrument and the grounds for reporting it is given below. The relevant departmental memorandum is published as an appendix to this report.
1.1The Committee draws the special attention of both Houses to these Regulations on the grounds that they make unusual and unexpected use of the enabling power in three respects (two of which are related) and that they are defectively drafted in one respect.
1.2These Regulations, which are subject to the made affirmative resolution procedure, as part of the public health response to COVID-19, require people in England to wear face coverings indoors in a number of places including certain shops, shopping centres, banks, transport hubs, and when using public transport services, subject to exceptions.
1.3Regulation 3(1) requires people to wear face coverings in specified circumstances. Regulation 3(5) disapplies that requirement “in relation to any premises for which it is disapplied in a direction made by the Secretary of State under regulation 8”. Regulation 8 allows the Secretary of State to issue a disapplication direction “for the purposes of a research programme concerned with the provision of an appropriate public health response to the incidence and spread of coronavirus in England”. The Committee asked the Department of Health and Social Care to identify the power relied on by the Secretary of State to subdelegate the power to decide by informal direction which premises the criminal prohibition applies to. In a memorandum printed as an Appendix, the Department relies on provisions which allow the Regulations to enable the imposition of a restriction or requirement “by virtue of a decision taken by the appropriate Minister, a local authority or other person” and on provisions allowing the conferring of functions on local authorities and “other persons”. The Committee is not convinced that, despite its breadth, these powers were intended to permit this degree of delegation, which involves the Government giving itself powers to disapply the law entirely informally (as discussed in the Committee’s Seventeenth Report of Session 2019–21 in relation to S.I. 2020/567). A similar result could have been achieved by including a disapplication provision in the instrument itself, operating by reference to research programmes falling within an objectively defined set of criteria (which could have included an authorisation or certification by the Secretary of State or another authority). The Committee accordingly reports regulation 3(1) for making an unusual and unexpected use of the enabling power.
1.4Regulation 10 makes it an offence (inter alia) to contravene the requirements of regulation 6. Regulation 6 requires a responsible person in respect of public transport vehicles to display certain notices and to take other measures to provide information. The regulation defines “responsible person” as “a person responsible for carrying on a business in any place or providing public transport services where a person is required to wear a face covering under these Regulations”. It seemed to the Committee that more than one person could fall within that definition in respect of a particular public transport vehicle, so it asked the Department to explain how it is intended that liability will attach to specific persons in respect of any particular contravention. In its memorandum the Department asserts that “it is intended that liability for failure to display a notice, or to take other measures, as required by regulation 6(1), will attach to the person who can be said to be responsible for carrying on the business or for providing the public transport service in question. This will be a question of fact in any particular case: if there is more than one person in this category, each of them will potentially have committed the offence.” The Committee considers the terms “responsible for” and “providing” are unhelpfully vague and open in the context of the imposition of criminal liability in these circumstances. The class of potentially criminally liable person should be drawn sufficiently precisely for a person involved in the provision or management of public transport services to know the extent of their potential liability. On the basis that Parliament cannot have intended the net of criminal liability to be cast so widely and so vaguely, the Committee reports regulation 10 for making an unusual and unexpected use of the enabling power.
1.5Unlike other offences in the Regulations, the offence of contravening regulation 6 is not subject to a defence of having a reasonable excuse. The Committee asked the Department to explain the omission. In its memorandum the Department acknowledges that the failure to subject this offence to a reasonable excuse qualification was “the result of an oversight”, and apologises to the Committee. Particularly given the breadth of the potential class of persons criminally liable as discussed in the previous paragraph, it is unacceptable to have what purports to be strict liability without a reasonable excuse defence. The Committee trusts that the Department will make the necessary amendments as quickly as possible, and not leave this unacceptably wide criminal provision on the statute book for longer than can be avoided. On the basis that Parliament cannot have intended a strict liability offence of this kind, without a defence of reasonable excuse, that can be committed by every person who can be described as “responsible for carrying on a business” of or “providing” public transport services, the Committee reports regulation 10 for making an unusual and unexpected use of the enabling power, in this added respect, acknowledged by the Department.
1.6Regulation 15(1) provides that the Regulations expire at the end of 20th December 2021. Regulation 15(2) provides that expiry “does not affect the validity of anything done pursuant to these Regulations before they expire”. That would be the effect anyway by virtue of section 16(1) and (2) of the Interpretation Act 1978, so the Committee asked the Department to justify the inclusion of regulation 15(2). In its memorandum the Department acknowledges that regulation 15(2) was unnecessary. The Committee is grateful for the acknowledgment, and accordingly reports regulation 15(2) for defective drafting, acknowledged by the Department.