This is a House of Lords and House of Commons Committee joint report.
Joint Committee on Statutory Instruments
Date Published: 2 February 2024
At its meeting on 31 January 2024 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.
Procedure: Made negative
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 three related respects and are defectively drafted in one respect.
1.2These Regulations set out the survey and certification requirements that apply to small workboats and pilot boats.
1.3Regulation 5(2) refers to two Marine Guidance Notes and regulation 24(7) refers to a Merchant Shipping Notice. The Committee asked the Department for Transport to explain where hard copies of these documents are available. In a memorandum printed at Appendix 1, the Department undertakes to issue a correction slip to amend the Explanatory Note to these Regulations to include details of where these documents can be obtained in hard copy. The Committee agrees that this can properly be done by correction slip and reiterates its view (as stated in its First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation at paragraphs 4.1 to 4.8) that documents given a significance by subordinate legislation should be available both to citizens who do not have access (or ready access) to the internet and to citizens who do have such access. The Committee accordingly reports regulations 5(2) and 24(7) for failure to comply with proper legislative practice, acknowledged by the Department.
1.4Regulation 19(1) provides that where an owner or master of a certified vessel becomes aware that the vessel has been involved in an incident (as defined in regulation 19(3)), the owner or master must report that incident to the Certifying Authority at the earliest opportunity and in any event “before the vessel undertakes any further voyage”. Regulation 3(1) defines “voyage” to mean “a journey of any kind”. Given that definition, the Committee asked the Department to explain whether it is the intention that where an incident occurs at sea, the report under regulation 19(1) must be made before the vessel progresses any further. In its memorandum, the Department accepts that it is possible to construe regulation 19(1) as requiring that a report needs to be made before the vessel progresses further but asserts that the intention is that, if an incident occurs at sea, an owner or master would have to make a decision whether to continue with the voyage and that it would not be desirable to halt the progress of a vessel if the incident does not breach any requirements relating to its certificate. The Committee notes that this is the Department’s intention but points out that the drafting does not reflect that intention – the regulation requires a report to be made before the vessel progresses any further. The Committee accordingly reports regulation 19(1) for defective drafting, acknowledged in part by the Department.
Procedure: Made Negative
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 set out a new fundamental standard designed to ensure that registered providers of care homes, hospitals and hospices facilitate visits to residents and patients, that visits out of care homes are not discouraged and to enable patients to be accompanied when attending a hospital or hospice as an outpatient.
2.3Regulation 2(2) (inserted regulation 9A(2)(b)) states that unless there are exceptional circumstances, service users who are provided with accommodation in a care home, “must not be discouraged from taking visits out of that care home”. Paragraph 7.7 of the Explanatory Memorandum explains that in practice, this will mean, for example, that providers should not impose unreasonable rules on returning after a visit out that would discourage service users from taking that visit out. The Committee was unclear what other actions should be avoided and asked the Department of Health and Social Care to explain further and to indicate whether, for example, a suggestion that an outside visit be postponed due to a mild illness would be a breach of the standard.
2.4In a memorandum printed at Appendix 2, the Department explains that a registered person will need to have regard to statutory guidance about the new requirement and that in each case an assessment will need to be made taking into account the particular facts and circumstances and the needs of the service user. The Department gives further examples of actions the requirement is intended to prohibit and deals specifically with whether a suggestion that an outside visit be postponed due to a mild illness would be a breach of the regulation. The Committee accordingly reports regulation 2(2) (inserted regulation 9A(2)(b)) for requiring elucidation, provided by the Department.
At its meeting on 31 January 2024 the Committee considered the instruments set out in the Annex to this Report, none of which were required to be reported to both Houses.
S.I. Numbers |
S.I. Title |
S.I. 2024/69 |
Money Laundering and Terrorist Financing (High-Risk Countries) (Amendment) Regulations 2024 |
S.I. Numbes |
S.I. Title |
Draft |
Packaging Waste (Data Reporting) (England) (Amendment) Regulations 2024 |
Draft |
Social Housing (Regulation) Act 2023 (Consequential and Miscellaneous Amendments) Regulations 2024 |
Draft |
Bank of England Levy (Amount of Levy Payable) Regulations 2024 |
Draft |
Electricity Capacity (Supplier Payment etc.) (Amendment and Excluded Electricity) Regulations 2024 |
Draft |
Electricity Supplier Obligations (Excluded Electricity) (Amendment) Regulations 2024 |
Draft |
Energy-Intensive Industry Electricity Support Payments and Levy Regulations 2024 |
Draft |
Proceeds of Crime Act 2002 and Terrorism Act 2000 (Certain Information Orders: Code of Practice) Regulations 2024 |
Draft |
Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors: Code of Practice) Order 2024 |
Draft |
Proceeds of Crime Act 2002 (Search, Recovery of Cryptoassets and Investigations: Codes of Practice) Regulations 2024 |
Draft |
Single Source Contract (Amendment) Regulations 2024 |
Draft |
Terrorism Act 2000 (Code of Practice for Authorised Officers) Order 2024 |
Draft |
Tertiary Education and Research (Wales) Act 2022 (Consequential Amendments) Order 2024 |
S.I. Numbers |
S.I. Title |
S.I. 2023/1219 |
British Nationality (Eswatini, Gabon and Togo) Order 2023 |
S.I. 2023/1247 |
Non-Domestic Rating (Heat Networks Relief) (England) Regulations 2023 |
S.I. 2023/1269 |
State Pension Revaluation for Transitional Pensions Order 2023 |
S.I. 2023/1273 |
Financial Services and Markets Act 2023 (Panel Remuneration and Reports) Regulations 2023 |
S.I. 2023/1324 |
Family Procedure (Amendment No. 2) Rules 2023 |
S.I. 2023/1338 |
Early Years Foundation Stage (Learning and Development, Early Years Register and Welfare Requirements) (Amendment) Regulations 2023 |
S.I. 2023/1344 |
Classification, Labelling and Packaging of Substances and Mixtures (Amendment and Consequential Provision) Regulations 2023 |
S.I. 2023/1346 |
Insurance and Reinsurance Undertakings (Prudential Requirements) (Risk Margin) Regulations 2023 |
S.I. 2023/1352 |
Social Security Additional Payments (Third Qualifying Day) Regulations 2023 |
S.I. 2023/1356 |
Court Funds (Amendment No. 2) Rules 2023 |
S.I. 2023/1359 |
Immigration and Nationality (Fees) (Amendment) (No. 3) Regulations 2023 |
S.I. 2023/1365 |
Writtle University College Higher Education Corporation (Dissolution) Order 2023 |
S.I. 2024/8 |
Railways and Freight Transport etc. (Revocation) Regulations 2024 |
S.I. 2024/9 |
Ship’s Report, Importation and Exportation by Sea (Amendment) Regulations 2024 |
S.I. 2024/34 |
Public Lending Right Scheme 1982 (Commencement of Variation) Order 2024 |
S.I. Numbers |
S.I. Title |
Draft |
North Tyneside (Electoral Changes) Order 2024 |
Draft |
North Northamptonshire (Electoral Changes) Order 2024 |
S.I. Numbers |
S.I. Title |
S.I. 2023/1253 |
African Swine Fever (Import Controls) (Amendment) (England) Order 2023 |
S.I. Numbers |
S.I. Title |
S.I. 2023/1375 |
Visiting Forces (Designation) Order (No. 2) 2023 |
S.I. 2023/1405 |
Elections Act 2022 (Commencement No. 11, Transitional Provisions and Specified Day) and Levelling-up and Regeneration Act 2023 (Commencement No. 1) Regulations 2023 |
S.I. 2023/1414 |
Pensions Dashboards (Prohibition of Indemnification) Act 2023 (Commencement) Regulations 2023 |
S.I. 2023/1418 |
Public Order Act 2023 (Commencement No. 3) (England and Wales) Regulations 2023 |
S.I. 2023/1420 |
Online Safety Act 2023 (Commencement No. 2) Regulations 2023 |
S.I. 2024/35 |
Flood and Water Management Act 2010 (Commencement No. 10) Order 2024 |
1)The Committee has asked the Department for Transport for a memorandum on the following point(s):
Explain where hard copies of the Marine Guidance Notes referred to in regulation 5(2) and the Merchant Shipping Notice referred to in regulation 24(7) are available.
Given that “voyage” is defined as a journey of any kind, explain whether it is the intention that where an incident occurs at sea, the report under regulation 19(1) must be made before the vessel progresses any further
2)The Department thanks the Committee for its question and the opportunity to clarify the first point.
3)The Department accepts that the Regulations should include information as to where hard copies of the Marine Guidance Notes and the Merchant Shipping Notice referred to in regulations 5(2) and 24(7) respectively may be obtained in the interests of accessibility and having regard to paragraph 4.8 of the Committee’s First Special Report of Session 2017–19, Transparency and Accountability in Subordinate Legislation.
4)The Department will issue a correction slip to amend the Explanatory Note to these Regulations to include the words “A copy of any Marine Guidance Note or Merchant Shipping Notice referred to in these Regulations may be obtained free of charge by prior appointment with the Code Vessel Team at the Maritime & Coastguard Agency, Spring Place, 105 Commercial Road, Southampton, SO15 1EG (telephone 020 3817 2000 and email infoline@mcga.gov.uk).”.
5)The Department thanks the Committee for its question and the opportunity to clarify the second point.
6)Regulation 19(1) requires the owner or master of the vessel to report an incident to the Certifying Authority at the earliest opportunity and in any event before the vessel undertakes any further voyage. A “voyage” is defined in regulation 2(1) as a journey of any kind. The Department accepts that it is possible to construe regulation 19(1) as requiring that a report needs to be made to the Certifying Authority before the vessel progresses further.
7)The provision in regulation 19(1) requires that the incident is reported at the “earliest opportunity”, which in practical terms could be at any point during the period between the incident occurring and any new voyage or “further voyage” referred to in the regulation. When the “earliest opportunity” arises within this period is a matter for the individual circumstances of each case and it would be impractical for the legislation to be too prescriptive. For example, there may be a breakdown in radio communications on board the vessel which could prevent an incident report being made before the vessel completes the voyage. In deciding whether to continue with the voyage the vessel owner or master would have to have regard to the fact that the operation of the vessel has to be consistent with any applicable requirements relating to a certificate issued for it under the Regulations.
8)It would not be desirable to halt the progress of a vessel if the incident does not breach any requirements relating to a certificate issued under the Regulations. Indeed, in most such cases, it will be desirable for the vessel to progress to port as quickly as possible so that the incident may be fully investigated, and any remedial action is undertaken. The Department will provide further clarification in guidance.
Department for Transport
23rd January 2024
1)The Committee has asked Department of Health and Social Care for a memorandum on the following point(s):
In addition to the matters stated in paragraph 7.7 of the Explanatory Memorandum, explain what it is intended that a registered person must do to comply with regulation 2(2) (inserted regulation 9A(2)(b)), for example, would a suggestion that an outside visit be postponed due to a mild illness be a breach of the regulation.
2)The requirement in new regulation 9A(2)(b) that a service user must not be “discouraged” from taking a visit out of a care home is intended to be interpreted in accordance with its ordinary meaning, applying a common-sense construction and with an expectation of reasonableness on the part of the registered person. In this context, as it is a prohibitive requirement, there are no particular active measures that a registered person must take. Instead, the obligation is a negative one i.e. in order to comply with the duty, a registered person is primarily required to avoid doing certain things.
3)Accordingly, other than where there are exceptional circumstances, a registered person must refrain from doing anything which would discourage a service user from taking a visit out of a care home. Some actions that the requirement is intended to prohibit are:
4)In considering whether a particular action complies with new regulation 9A(2)(b), much will depend on the facts of the particular case such as the needs of the particular service user. In making case-by-case assessments, a registered person will need to have regard to the statutory guidance about the new requirement to be issued by the Care Quality Commission.
5)The requirement in regulation 9A(2)(b) is to be read alongside the other fundamental standards in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 which, taken together (including the requirements in regulation 9A), operate as a coherent whole. This includes, for example, regulation 9 (person-centred care) which requires the registered person to enable and support service users to understand the care or treatment choices available to them, and to make decisions relating to their care and treatment to the maximum extent possible.
6)Taking the example of a suggestion that an outside visit be postponed due to a mild illness and whether this would be a breach of the regulation, it would depend on the facts and circumstances. Thus, a mere suggestion that an outside visit be postponed due to a mild illness where this was made with a view to opening up a discussion or dialogue in relation to the choices and options available to a service user, i.e. to support them to make an informed decision based on a proper understanding of the risks and benefits, would be unlikely to amount to discouragement and would thus be unlikely to constitute a breach of the regulation. Alternatively, even in circumstances where the facts were such that the nature of the suggestion amounted to discouragement, if there were exceptional circumstances (for example even a mild illness could pose a significant risk in some cases) again this would be unlikely to constitute a breach.
Department of Health and Social Care
23 January 2024
Jessica Morden, in the Chair
Lord Beith
Lord Chartres
Peter Grant
Lord Haselhurst
Baroness Sater
Liz Twist
Draft Report (Tenth 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 2.4 read and agreed to.
Annex agreed to.
Papers were appended to the Report as Appendices 1 to 2.
Resolved, That the Report be the Tenth 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.
Adjourned till Wednesday 7 February at 3.40 p.m.