Thirty-First Report of Session 2022–23

Instruments reported

At its meeting on 22 March 2023 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 two of those considered. The instruments and the grounds for reporting are given below. The relevant departmental memoranda are published as appendices to this report.

1S.I. 2023/171: Reported for failure to comply with proper legislative practice and for doubtful vires

National Health Service (Amendments Relating to Pre-Payment Certificates, Hormone Replacement Therapy Treatments and Medicines Shortages) Regulations 2023

1.1The 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 and there is doubt as to whether they are intra vires in two respects.

1.2These Regulations, which are subject to the negative resolution procedure, amend four instruments.

1.3Regulation 10 provides that the Secretary of State may make arrangements for the grant of pre-payment certificates in relation to prescription items used for hormone replacement therapy. The prescription items that will be covered will be those contained within a published list and the Secretary of State may specify how applications for the grant of hormone replacement therapy only pre-payment certificates are to be made. The Committee asked the Department of Health and Social Care to explain which of the enabling powers cited in the preamble is relied on for the sub-delegation. In a memorandum printed at Appendix 1, the Department explains that the preamble should have cited section 272(8)(b) of the National Health Service Act 2006. The Department has already made an amending instrument correcting the error. On the basis that a preamble has the legal effect described by the Court of Appeal in Vibixa Ltd and another v Komori UK Ltd and others [2006] EWCA Civ 536, failure to cite an enabling provision relied on goes to vires, the Committee accordingly reports regulation 10 for doubt as to whether it is intra vires.

1.4In addition, regulation 10 provides that the pre-payment certificate is valid from the date specified in the application if that date is no more than one month prior to the date on which the application is made “(so if the application is made on 1st May, the start date may be no earlier than 1st April)” (new regulation 17A(6)(a)). Similar wording covers the scenario where the specified date is after the application is made (new regulation 17A(6)(c)). The quoted wording is inert and does not have a direct legal effect. As a general rule, inert parenthetical material should only be included in subordinate legislation sparingly and only where it adds needed clarity. With this in mind, the Committee asked the Department to explain whether, on reflection, it considers the parenthetical material to be justified. In its memorandum, the Department explains that it wished to assist the reader. Whilst being a commendable aim, the Committee considers that the inert material falls within the category that should not have been included as the words in brackets add nothing to the clear natural meaning of the operative provision (see paragraphs 8 and 12 of the Committee’s First Special Report of Session 2013–14 Excluding the inert from secondary legislation and the Committee’s Sixteenth Report of Session 2021–22 in relation to S.I. 2021/995). This is particularly so, given that similar wording already exists in regulation 16 of the amended instrument, without the added inert material. The Committee accordingly reports regulation 10, new regulation 17A(6), for failure to comply with proper legislative practice.

1.5Regulations 12 and 15 insert new provisions into the National Health Service (General Medical Services Contracts) Regulations 2015 and the National Health Service (Personal Medical Services Agreements) Regulations 2015 in order to allow the Secretary of State to supply information to GP practices via intermediaries “who would not otherwise be authorised to have that information” (paragraph 5 of the Explanatory Note). The Committee asked the Department to identify the power being relied on. In its memorandum, the Department explains that it is relying on the uncited power to sub-delegate (section 272(8)(b)), the power to prescribe what contracts must contain (section 89), the power to impose conditions (section 94) and the power to make incidental, supplemental and consequential provision (section 272(8)(a)). The Committee is not convinced that these powers are sufficient vires. Section 264A of the 2006 Act provides that regulations may require UK producers to give information about health service products to the Secretary of State. Section 264B of the 2006 Act specifies the persons to whom the Secretary of State may disclose that information and imposes a prohibition on disclosing information to “another person” (section 264B(2)(b)). The powers cited by the Department do not expressly allow for the modification of that provision. On that basis, the Committee reports regulation 12 and 15 for doubt as to whether they are intra vires.

2S.I. 2023/173: Reported for failure to comply with proper legislative practice

Policing and Crime Act 2017 (Maritime Enforcement Powers: Revised Code of Practice) Regulations 2023

2.1The 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.

2.2These Regulations, which are not subject to parliamentary procedure, bring into force a revised Code of Practice to be followed by law enforcement officers when arresting a person under the power conferred by section 90 of the Policing and Crime Act 2017 (which provides a power to arrest without warrant any person whom the officer has reasonable grounds to believe to be guilty of an arrestable offence committed on a ship). The Committee asked the Home Office why it was not thought necessary to include the date (February 2023) of the revision of the Code brought into operation by regulation 2. In a memorandum printed at Appendix 2, the Department explains that it considered that the description of the Code of Practice by reference to its name and the date on which it was laid in Parliament was sufficient to clearly identify the Code. The Committee agrees that the Code may have been sufficiently identified but considers that there is a possibility that users of the legislation may not be able to identify the correct version given that the online version of the Code states that it was presented to Parliament but does not state that it was the version presented to Parliament on 22 February 2023 with these Regulations.

2.3The Committee considers that it is proper legislative practice for the description of documents referred to in legislation to include as much identifying information as possible – in this case, the date of the Code would have been helpful. The Committee accordingly reports regulation 2 for failure to comply with proper legislative practice.

Instruments not reported

At its meeting on 22 March 2023 the Committee considered the instruments set out in the Annex to this Report, none of which were required to be reported to both Houses.

Annex

Draft instruments requiring affirmative approval

Instruments subject to annulment

Instruments not subject to Parliamentary proceedings not laid before Parliament

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

S.I. 2023/171

National Health Service (Amendments Relating to Pre-Payment Certificates, Hormone Replacement Therapy Treatments and Medicines Shortages) Regulations 2023

1. The Committee has asked the Department of Health and Social Care for a memorandum on the following points:

1. Explain which of the enabling powers cited in the preamble is relied on for the sub-delegation in the new regulation 17A, inserted by regulation 10.

2. Having regard to the principle that, as a general rule, inert parenthetical material should be included in subordinate legislation only where it adds needed clarity to the operative text, explain whether, on reflection, the Department considers the parenthetical explanation included in regulation 10, inserting new regulation 17A(6)(a) and (c) is justified.

3. Explain what power is being relied on for the new regulation 55A and 48A inserted by regulations 12 and 15.

Point 1

2. The Department recognises that it should have cited both section 272(8)(a) and (b), not just section 272(8)(a) of the National Health Service Act 2006 (“the Act”), in the preamble to these Regulations, and apologises for that error. Reliance was placed on section 272(8)(b) for the sub-delegation in the new regulation 17A, inserted by regulation 10, notwithstanding that it was not cited. Given the legal uncertainty as to the consequences of such a failure, the Department has restated regulation 17A, using all the correct powers, in an instrument which was updating the charge specified in regulation 17A(4)(a). These changes were made in the National Health Service (Charges for Drugs and Appliances) (Amendment) Regulations 2023 (S.I. 2023/300).

Point 2

3. The Department agrees that the parenthetical material in regulation 17A(6)(a) and (c) is inert and the principle highlighted by the Committee is engaged. This principle is described in paragraph 3.19.2 of Statutory Instrument Practice (5th edition) in the following terms: “It is good practice to reserve parenthesis for material that has no legislative effect and is included merely to assist the reader.”. It is also covered in the Committee’s First Special Report of Session 2013–2014: Excluding the inert from secondary legislation. The Department considers that the provisions that it has introduced in support of the HRT only Pre-Payment Certificates are examples of legislative provisions that may be consulted by a general as well as a specialist readership, and accordingly that this is an occasion when having particular regard to the need to assist the general reader is justified. Whilst the expressions “….no more than one month prior to/after the date…” have precise legal meanings, a general reader may nevertheless be unclear about what precisely they can apply for in terms of start dates for their certificates, hence the desire to assist them.

Point 3

4. The sub-delegation in the provisions inserted by regulations 12 and 15 relies on section 272(8)(b) of the Act, and this is impacted by the error in not citing that provision as is acknowledged above. As noted above, the Department has, out of prudence, already restated the affected amendments to the Charges Regulations and will consider taking similar action in relation to the provisions inserted by regulations 12 and 15 at the next suitable opportunity.

5. More broadly, the provisions inserted by regulations 12 and 15 rely on the powers to require certain conditions to be included in the two types of GP contract that are subject to statutory terms, i.e. general medical services contracts and personal medical services agreements. Those powers are the specific provisions of sections 89 and 94 of the Act that are cited in the preamble to the instrument, read with section 272(7) and (8).

6. In relation to general medical services contracts, what is key is the way in which the power in section 89(2)(a) to include provisions in general medical services contracts about the manner in which services are provided (the relevant service in this instance being prescribing services) sits within the broad power in section 89(1), which states that general medical services contracts “…must contain such provision as may be prescribed…”. On this occasion, although the new provision relates to the manner in which prescribing services are provided (the medicines shortages information will be used at point of prescribing), it does not directly impose conditions on how that prescribing service is provided, so essentially reliance is being placed on the broad power in subsection (1) – and to the extent that obligations are placed on persons who are not parties to the contract (for example, the confidentiality obligations placed on suppliers of prescribing software), on subsection (1) read with the powers to make incidental, supplemental and consequential provision in section 272(8)(a).

7. A similar analysis applies in respect of the terms included in personal medical services agreements – but with the broad power being section 94(1), and the particular power about service provision being the power to impose conditions under subsection (3)(d) which is simply a power to impose conditions on the persons performing services under the agreement rather than referencing the manner in which services are provided. Similar use is again made of the powers to make incidental, supplemental and consequential provision in section 272(8)(a).

Department of Health and Social Care

14 March 2023

Appendix 2: Memorandum from the Home Office

S.I. 2023/173

Policing and Crime Act 2017 (Maritime Enforcement Powers: Revised Code of Practice) Regulations 2023

1. The Committee has asked the Home Office for a memorandum on the following point:

Explain why it was not thought necessary to include the date (February 2023) of the revision of the Code brought into operation by regulation 2.

2. The preamble to the Policing and Crime Act 2017 (Maritime Enforcement Powers: Revised Code of Practice) Regulations 2023 (“the Regulations) sets out that the revision of the Code of Practice brought into practice by the Regulations “is laid before Parliament with these Regulations.”

3. The Regulations were signed and made on 20 February 2023, and the Regulations and the revision of the Code of Practice were laid in Parliament with the S.I. on 22 February 2023, as set out on the face of the Regulations. The revision of the Code was also published on gov.uk on that date, and can be accessed here: Maritime enforcement powers: code of practice (Code Of Practice) - GOV.UK (www.gov.uk). As noted by the Committee, that Code of Practice has the sub-heading “February 2023”, and also states that it applies to any arrest made after 00:00 on 15 March 2023.

4. Regulation 2 provides that “the code of practice entitled “Code of Practice to be followed by law enforcement officers when arresting a person under the power conferred by section 90 of the Policing and Crime Act 2017” issued under section 94 of the Policing and Crime Act 2017 (maritime enforcement powers: code of practice) which is laid before Parliament with these regulations comes into operation on 15th March 2023.”

5. The Home Office considered that the description of the Code of Practice in Regulation 2, by reference to its name and the date on which it was laid in parliament (specified to be 22 February 2023 on the face of the S.I.), was sufficient to clearly identify the Code of Practice. On that basis, it was not thought necessary to also refer to the date “February 2023” in Regulation 2.

6. However, the Home Office is, of course, grateful for the JCSI’s views on this point, and will be happy to receive any guidance from the JCSI as to the approach which it considers the Home Office should follow.

Home Office

14 March 2022

Formal Minutes

Wednesday 22 March 2023

Virtual meeting

Members present

Jessica Morden, in the Chair

Lord Chartres

Baroness d’Souza

Peter Grant

Gareth Johnson

Lord Leong

Lord Sahota

Baroness Sater

Lord Smith of Hindhead

Maggie Throup

Report consideration

Draft Report (Thirty-First 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 2.3 read and agreed to.

Annex agreed to.

Papers were appended to the Report as Appendices 1 to 2.

Resolved, That the Report be the Thirty-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.

Adjournment

Adjourned till Wednesday 29 March at 3.40 p.m.