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Thirty First Report Contents

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Instruments drawn to the special attention of the House

Draft Definition of Qualifying Northern Ireland Goods (EU Exit) Regulations 2020

Date laid: 7 October 2020

Parliamentary procedure: affirmative

These draft Regulations propose a definition of qualifying Northern Ireland goods, as part of the Government’s commitment to legislate to guarantee unfettered access for businesses in Northern Ireland to the UK internal market. The instrument is politically significant as it underpins the UK Internal Market Bill which is to deliver the broader elements of the unfettered access policy.

The draft Regulations are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.

1.These draft Regulations, laid by the Cabinet Office with an Explanatory Memorandum (EM), propose a definition of qualifying Northern Ireland goods. This definition is necessary in the context of the Government’s commitment to legislate to guarantee unfettered access for businesses in Northern Ireland to the whole of the UK internal market through the UK Internal Market Bill (“the UKIM Bill”). The legislation needs to be in force when the Transition Period (TP) ends on 31 December 2020.

Context

2.The EM states that the draft Regulations should be seen in the wider context of proposed legislation to deliver unfettered access and to avoid any disruption in trade between Northern Ireland and the rest of the UK after the end of the TP. While this instrument sets out the initial definition of qualifying Northern Ireland goods, the broader elements of unfettered access policy are being delivered through the UKIM Bill which is currently before the House and which, according to the Cabinet Office, contains provisions that:

• prohibit any new checks or controls, or existing checks or controls being used for the first time or for a new purpose or extent, on qualifying Northern Ireland goods; and
• apply the principles of mutual recognition and non-discrimination to qualifying Northern Ireland goods, so that they can be freely placed on the market throughout Great Britain.

3.The definition of qualifying Northern Ireland goods, as set out in this instrument, will underpin those provisions in the UKIM Bill. Several other statutory instruments will be required to implement fully the unfettered access policy.

Definition of “unfettered access”

4.The Cabinet Office says that unfettered access is based on several elements:

• the absence of customs and regulatory checks and processes for qualifying Northern Ireland goods moving from Northern Ireland to Great Britain, with “only limited exceptions”, such as when upholding international obligations such as those concerning the movement of endangered species;
• no requirements for additional authorisations or approvals for placing qualifying Northern Ireland goods on the market in the rest of the UK, with “only very limited exceptions for very high-risk goods”; and
• recognising qualifying Northern Ireland goods for sale on the UK market, irrespective of the fact that the goods are made according to the rules applied by the Northern Ireland Protocol, and ensuring that these goods are not discriminated against on the basis of having to adhere to those rules.

5.We asked the Cabinet Office for an explanation of the type of international obligations that may require customs and regulatory checks and processes in relation to Northern Ireland goods being placed on the market in the rest of the UK. This is an issue that we have considered previously.1 The Cabinet Office told us that:

“This refers to a very limited number of international obligations binding on the UK via Article 6(1) of the [Northern Ireland] Protocol (or where the UK is a signatory in its own right). The operation of Article 6(1) is a matter for ongoing discussion within the UK-EU Joint Committee, and as such we will provide for these requirements in full through legislation to be taken forward in the remainder of the year. Some measures have, though, already been laid - such as with respect to the Stockholm Convention on Persistent Organic Pollutants, where the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 20202 is already before Parliament. Further measures, for example on the Kimberley Process3 will be brought forward before the end of the year.”

6.We also asked for further information about the high-risk goods that may require additional authorisations or approvals for being placed on the market in the rest of the UK. The Cabinet Office explained that:

“This refers to a very limited range of goods where further requirements may be necessary in order to ensure UK authorities and regulators have the information required to protect animal, human or environmental health. These requirements will apply to very minimal volumes of trade, and will have no overall effect on the vast majority of goods moving from NI to GB. These exceptions will be given effect through secondary legislation to be laid before the end of the year - for example, the Pesticides (Amendment) (EU Exit) Regulations 2020.”4

Definition of “qualifying goods” in this instrument

7.The instrument proposes a definition of a qualifying Northern Ireland good as any good that falls within one of two categories:

(1)goods that are lawfully present in Northern Ireland and are not subject to customs control, other than customs procedures arising on export from Northern Ireland; or

(2)goods that are Northern Ireland processed products.

8.According to the Cabinet Office, the second category of goods “seeks to ensure that goods that have undergone processing in Northern Ireland can qualify for the definition even where they have been moved under customs control”. The Cabinet Office says that this “initial broad definition best ensures continuity and avoids any disruption” from the end of the TP, in line with the broader approach being taken for goods arriving into Great Britain from the EU for the first half of next year under the Border Operating Model.5

9.Asked for an example of goods that have undergone processing in Northern Ireland and will qualify for unfettered access even where they have been moved under customs control, the Cabinet Office provided the following:

“A practical example of this would in the agri-food sector where a GB business may move a beef carcass from Great Britain to Northern Ireland for de-boning and processing under customs supervision, therefore not needing to comply with full import formalities on entry into NI, before being returned to GB to be placed on the market there. The product will not be in free circulation in Northern Ireland, but would clearly be a good that should benefit from unfettered access protections. This second limb of the [Qualifying Northern Ireland Goods] definition therefore ensures that these goods are able to return to GB, enjoying unfettered access during that movement.”

Further legislation

10.The Cabinet Office explains that the instrument is part of a phased approach and will be followed by further proposals from the UK Government, developed with Northern Ireland businesses, for qualifying status in the longer-term. This is to be taken forward through the UKIM Bill and further statutory instruments to be laid under the European Union (Withdrawal) Act 2018, with the aim of providing “robust protections that guarantee Northern Ireland goods continue to enjoy unfettered access to the UK market”. Asked about the timing of the next phase, the Cabinet Office said that:

“The second phase of the regime will be given effect during the course of 2021. However the approach there is subject to ongoing engagement with Northern Ireland business and the Northern Ireland Executive. Further details on timing will be set out in the light of that further work. As we have done more broadly, it is right to take sensible, practical steps to phase in our approach in a way that is supported by business.”

11.The Cabinet Office says some businesses may seek to “inappropriately re-route goods [through Northern Ireland] in order to avoid otherwise applicable import formalities”, adding that this will be addressed “by means of separate legislation, to be brought forward before the end of the year, which would enable action to be taken where any business looked to re-route their goods through [Northern Ireland] for this purpose”. Asked for further information about this additional legislation, the Cabinet Office explained that:

“This instrument will be accompanied by anti-avoidance measures to enable action to be taken where businesses look to abuse its provisions. This will mean that action can be taken where a business looks to re-route their goods solely to avoid otherwise applicable import formalities. That legislation will be in place by the end of the year. The vehicle is at the discretion of HMT/HMRC who are leading on these provisions.”

Conclusion

12.These draft Regulations propose a definition of qualifying Northern Ireland goods, as part of the Government’s commitment to legislate to guarantee unfettered access for businesses in Northern Ireland to the whole of the UK internal market. The instrument is politically significant as it underpins the UKIM Bill which is to deliver the broader elements of the unfettered access policy. While the definition provides a framework, the full impact of the Regulations will not be known until further instruments are brought forward to apply the definition to specific sectors and to set out measures to prevent potential abuse of the new arrangements. The draft Regulations are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.

Non-Contentious Probate (Amendment) Rules 2020 (SI 2020/1059)

Date laid: 30 September 2020

Parliamentary procedure: negative

This instrument amends the Non-Contentious Probate Rules 1987 (SI 1987/2024) to increase use of the online probate service by solicitors and other probate practitioners. The instrument also inserts into the Rules an “overriding objective” that probate business is “to be dealt with justly and expeditiously by the court and the registry”. We do not find that this adds value or clarity to the law and, therefore, it does not belong in legislation. We welcome the Ministry of Justice’s intention to serve the public well, but take the view that that intention would be better expressed in operational guidance or performance indicators.

These Rules are drawn to the special attention of the House on the ground that they are politically or legally important or give rise to issues of public policy likely to be of interest to the House.

13.This instrument has been laid by the Ministry of Justice (MOJ) and is accompanied by an Explanatory Memorandum (EM). The instrument amends the Non-Contentious Probate Rules 1987 (SI 1987/2024) which govern practice and procedure in the Probate Registry. The amendments relate to increasing use of the online probate service by solicitors and other probate practitioners by mandating use of the online process for certain types of probate application.

14.The instrument also inserts into the Rules an “overriding objective”:

“3A. The overriding objective of these Rules is to enable non-contentious and common form probate business to be dealt with justly and expeditiously by the court and the registry.”

15.The EM justifies this by saying: “It is felt that this new rule will assist in applications being dealt with efficiently and expeditiously.” Both the insertion and the wording seemed rather unusual, so we asked the MOJ for further background. It replied:

“The role of an overriding objective in a set of rules is to set out explicitly an underlying principle guiding the formation and application of the procedural rules by the courts and parties. It sets out how courts will manage cases and in turn the rights and responsibilities of parties and it becomes a guiding principle in which future rule changes are measured–will they further the overriding objective of dealing with cases justly, and so forth.

The query of whether it is necessary to add it at all is an understandable one, in the sense that all procedural rules are designed to ensure that courts determine cases in as fair, timely, effective and economic a way as possible.

The Ministry considered that it would be beneficial to mirror provisions in the Civil and Family Procedure Rules which include an Overriding Objective provision (see, for example, Rule 1.1 of the Civil Procedure Rules1), and it also noted a recommendation from a working group established by the President of the Family Division in 20132 that one should be added to the Non-Contentious Probate Rules.

The advantages in doing so include making it explicit that the Court and Registry will, in dealing with probate applications:

• Manage them justly and fairly;
• Manage them proportionately–for example identifying issues in complex cases early and addressing those, while expeditiously processing straightforward applications;
• Make use of technology to improve the efficiency of processing cases;
• Encourage co-operation from parties in presenting all of the relevant information to support an application in an accurate and timely manner; and
• In the case of disputes, encourage co-operation between parties.
• In addition to setting out clearly the respective roles and responsibilities, in practical terms the new rule will assist courts and registrars in making case management decisions and intervening decisively in cases to expedite them and prevent costs rising disproportionately.”

16.We also asked what recourse there was if an Executor suggested that their application had not been dealt with expeditiously, and—whether there was any appeal mechanism or redress.M OJ replied:

“There is no separate appeal mechanism for the new rule as it essentially embodies the aims of the existing rules and standards of service.”

17.We remain unconvinced how inserting that sentence in regulation 3 of the original instrument “made it explicit” that all those positive outcomes listed would happen. It reads more as an operational statement than as enforceable law—particularly as there is no direct redress if someone feels they have not been dealt with “justly and expeditiously”.

18.MOJ’s response indicates that the same device has been used in a previous instrument—which raises the question whether, if the MOJ’s Rules do not include such a phrase, the requirement to deal with matters “justly and expeditiously” does not apply?W e think it would be assumed that all public service activities should be dealt with promptly and efficiently and do not see the benefit of inserting a statement to that effect.

19.The Joint Committee on Statutory Instruments some time ago issued a report on Excluding the inert from Secondary Legislation6 which said:

“We remain firmly of the opinion that Departments should remain constant in distinguishing provisions that need to be included in legislation from those that do not properly belong there.”

20.We concur; this “overriding objective” does not appear to us to add value or clarity to the law and therefore does not belong in legislation. We welcome the MOJ’s intention to serve the public well but take the view that that it would be better expressed in operational guidance or performance indicators.

Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020 (SI 2020/1103)

Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020 (SI 2020/1104)

Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020 (SI 2020/1105)

Date laid: 12 October 2020

Parliamentary procedure: made affirmative

Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) (Amendment) Regulations 2020 (SI 2020/1128)

Date laid: 15 October 2020

Parliamentary procedure: made affirmative

Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) (Amendment) Regulations 2020 (SI 2020/1131)

Date laid: 16 October 2020

Parliamentary procedure: made affirmative

We, in common with others, have found the previous system of locally-tailored restrictions, repeatedly amended, hard to follow. We therefore welcome the Government’s new approach of restructuring the restrictions into standardised tiers. However, it is essential that the Government should also be more transparent in explaining their decision-making process, in particular explaining (in the Explanatory Memoranda accompanying future instruments) the balance between the health, social and economic interests that have been taken into account. We urge the Government to provide more information about theird ecision-making process and to include in the Explanatory Memorandum accompanying a relevant future instrument the data relied on in any decision to move an area between tiers.

These Regulations are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.

21.The first three of these instruments were laid by the Department for Health and Social Care (DHSC), each accompanied by an Explanatory Memorandum (EM), on 12 October 2020. They follow the made affirmative procedure, and came into effect on 14 October 2020, the day that they were debated in the House of Lords. Two further amending instruments, SIs 2020/1128 and 2020/1131, were laid in in quick succession, also accompanied by an EM, and are included in this report.

Restructuring

22.We, in common with others, have found the previous system of locally-tailored restrictions, repeatedly amended, hard to follow. We therefore welcome the Government’s new approach of restructuring the restrictions into standardised tiers. We believe that the new approach will make it easier to communicate to the public which restrictions apply in their area and, in turn, increase the likelihood of compliance.

23.The core restrictions from the previous legislation have been remodelled into a three-tiered system of Local COVID Alert Levels (LCAL) in England, set at Medium, High and Very High. Non-essential retail, schools and universities will remain open in all levels. Masks and social distancing are required at all levels.

Tier 1: Medium

• People must not socialise in groups of more than six (referred to as the ‘rule of six’) if meeting indoors or outdoors.
• Bars, pubs and restaurants and places of entertainment must close between 10pm and 5am.
• Weddings and funerals can go ahead with restrictions on the number of attendees.
• Organised gatherings can only be held outdoors and must not exceed 30 people.
• Organised indoor sport and exercise classes can continue to take place, provided the rule of six is followed.
• All businesses and venues can continue to operate, in a COVID-19 secure manner, other than those required to remain closed in law, such as nightclubs.

Tier 2: High

24.This is for areas with a higher level of infections, all the Medium restrictions continue to apply except where more stringent limits are applied by the High Alert Regulations.

• People must not socialise indoors with people who are not in their household or support bubble.
• Rule of six applies outdoors, including in a garden or other space.
• Associated guidance states people should aim to reduce the number of journeys they make where possible. If they need to travel, they should walk or cycle where possible, or plan ahead to avoid busy times and routes on public transport.

Tier 3: Very High

25.All Medium and High restrictions apply except where stricter limits are applied by the Very High Alert Regulations. These Regulations are particularly directed towards reducing household to household transmission. This legislation acts as a baseline, additional measures can be agreed locally (see Schedule 2A to the Regulations).

• People must not socialise with people who are not in their household or support bubble indoors or outdoors, including in pub gardens or private gardens.
• The rule of six continues to apply for meetings in other outdoor areas, such as parks, beaches or the countryside.
• Pubs and bars can only remain open if they operate as if they were a restaurant. They can only serve alcohol with a meal.
• Associated guidance states people should avoid travelling outside these areas. Exceptions to this include if people are travelling for work, education, youth services or to meet caring responsibilities.
• Associated guidance states that people resident in these areas should avoid staying overnight in another part of the UK.

  1.Although described as three tiers, there is in fact a notional fourth tier, which would be where no restrictions at all apply. Given that infection rates are comparatively low in some parts of the country, for example, the South West and East Anglia, the House may wish to ask the justification for including all areas in the Medium restrictions, and what criteria might eventually be used to remove local areas out of the Medium Alertr estrictions altogether.

  How are places moved between levels–triggers

  26.Although the restrictions have been rationalised into tiers, the triggers that lead to an area being moved into or out of those tiers remain unclear.D uring the approval motion debate in the House of Lords, on 14 October, a number of speakers asked why a certain area was in the High Tier but an area with a higher R value7 was in the Medium Tier. Lord Bethell, Parliamentary Under-Secretary for Health and Social Care, said:

  “There is no automatic trigger for an area to move into higher restrictions. Government, working with local authorities and directors of public health, will consider several factors, including the number of cases in the area, the rate of transmission, the effectiveness of current interventions, hospitalisations, the national picture and an assessment of the capacity of local health services.”8

  27.The Prime Minister’s announcement, on 12 October 2020, said factors would include: “incidence and test positivity, including amongst older and more at-risk age groups, as well as the growth rate, hospital admissions and other factors”.9

  28.In response to our questions the DHSC described its methodology as follows:

  “Decisions about the appropriate Alert Level in each area are made by the Government in discussion with local leadership and Directors of Public Health. Decisions are not based upon a single epidemiological factor, nor is there an automatic trigger for escalation. Instead decisions are based upon recommendations provided by the Joint Biosecurity Centre and COVID-19 Task Force based upon the close monitoring of data and the spread of the virus across local areas. As part of this, the Joint Biosecurity Centre will consider prevalence, particularly in the over-60s, and positivity rates, as well as the capacity of local health services and the effectiveness of current interventions in the area.

  In addition consideration will be given to the specific of individual cases, e.g. specific outbreaks or characteristics and the impact of changes on the local economy and peoples’ lives.”

  29.While it is understandable that multiple factors should be taken into account, the methodology being used for weighing them is not transparent—for example, to what degree economic factors, local levels of unemployment or the impact on the treatment of other health issues are also taken into consideration. The EM to SI 2020/1128, which moves a number of areas into Tier 2, simply says it does so “in response to recent data”. We urge the Government to provide more information about the underlying data relied on in any decision to move an area between tiers.

  Where will different local alert levels be in force?

  30.The Government have published a full list of the areas in each tier.10

  31.Under the three original Regulations, from 14 October 2020:

  • Liverpool City Region will be in Tier 3, the Very High alert level.
  • Tier 2, High alert, will include areas where previous local lockdown regulations had been in place. These include areas in Cheshire, Greater Manchester, the High Peak area of Derbyshire, Lancashire, West Yorkshire, South Yorkshire, Durham, Northumberland, Tyne and Wear, Tees Valley, West Midlands, Leicestershire and Nottinghamshire.
  • The rest of England will be on the Medium alert level.

  32.From 17 October:

  • SI 2020/1128 added the following into the High alert level: Barrow-in-Furness, Chesterfield and further parts of Derbyshire, most of Essex, Elmbridge in Surrey, York and all 32 London boroughs plus the City of London.
  • SI 2020/1131 moved Lancashire into the Very High alert level. Additional measures included, at the request of the local authorities in Lancashire, the closure of betting shops and adult gaming centres, casinos, bingo halls, soft play areas (with the exception for use by the disabled) and car boot sales.

  33.DHSC explained, in response to our questions, that these additional requirements were an example of co-operation with the local authority, which it hoped would be the way forward:

  “For any area recommended for Local COVID Alert Level (LCAL) Very High, local authorities should co-design the package of additional measures that will apply in their area to ensure that the measures are relevant to that particular area’s economic, social and public health situation. Given the severity of the public health situation in areas recommended for this level of intervention, should local areas not be prepared to work with the Government to co-design a package of measures, the Government reserves the right to impose measures if that is what is needed to reduce transmission and save lives.”

  Review

  34.The three-tier regulations will lapse after six months. The Secretary of State must review the need for each of the restrictions in each tier at least once every 28 days from their date of coming into effect, with the first review to be carried out by 11 November 2020.

  35.The Secretary of State must also review whether each area in Tier 2 needs to continue to be part of Tier 2 at least once every 14 days, with the first review to be carried out by 28 October 2020.

  36.All Tier 3 areas are initially designated for 28 days from the day on which their entry into Schedule 2 of the Regulations came into force.11 It would automatically revert to Tier 1. Should it still need to continue in Tier 3 after 28 days or be included in Tier 2 instead, a new statutory instrument will need to be laid after consultation with the local area authorities.

  37. As well as these statutory review points, DHSC have told us their operational timetable for wider review:

  “Areas will be moved between LCALs when necessary through an amendment to the corresponding statutory instruments. The public health situation in each local area is kept under constant review and assessed through the weekly Local Action Committee framework. Public health recommendations to move areas between LCALs will typically take place on Wednesdays at the sitting of the GOLD Local Action Committee. For moves between LCAL Medium and LCAL High this means that ministerial decisions will generally take place after the sitting of the Committee on the Wednesday, with a public announcement on Thursday, and amendments to the corresponding statutory instruments to take effect at midnight on the Saturday.

  Decisions to move areas to LCAL Very High may sometimes take place to a different timescale as these moves will be subject to consultation with local areas, with the intention that local areas should co-design the package of measures implemented.”

  Enforcement

  38.Although the tiers are simpler to understand, the exemptions have been carried forward and, as was observed during the debate in the House of Lords,t here would be some difficulty in implementing a gatherings ban that has 17 complex exceptions.12 We also note that SI 2020/1131 makes corrections to the Very High Alert Regulations laid two days previously because even the DHSC had difficulties dealing with the complexity of the exceptions.

  39.One exemption, for example, allows people to participate in a gathering of any size, inside or outside, in a Tier 2 area, if it is “reasonably necessary for work purposes”: would that include team building exercises or is it more limited to actual job functions?—the definition is not clear.

  40.The system of offences punishable by fines and fixed penalty notices has been broadly maintained. For individuals, the first offence carries a £200 penalty, which is halved if paid within 14 days, and the fine doubles for every subsequent offence up to a maximum of £6,400. For businesses and services, the first offence is £1,000, followed by £2,000, £4,000 and then £10,000 for every offence committed thereafter. The House may wish to ask the Minister how many fines have been issued in each category and how effective enforcement action has been to date.

  Evidence

  41.Very few of the individual local lockdown regulations that we have seen so far have included information in the EM about the infection rate in that area. None of the EMs accompanying the three original tiers regulations provide evidence of the reasons for selecting those areas for the tier to which they have been assigned. Neither SIs 2020/1105 or 2020/1131, placing Liverpool and Lancashire in the Very High tier, nor SI 2020/1128 adding a number of areas to Tier 2, provide detailed evidence for doing so—simply stating that it is “in response to recent data”. The House may wish to ask the Minister for an assurance that the Government will provide more detailed evidence underpinning movement between tiers in the EMs accompanying the associated statutory instrument.

  42.It is also customary, when a scheme is changed after it has been operating for a while, to explain in the EM what has worked well and what has been amended because performance has not achieved the desired effect. Apart from acknowledging that the system of local lockdowns had become confusing, there is no mention of any evaluation of the previous schemes’ effectiveness in reducing infection nor any indication of how the new tiered system builds on the lessons learned from the first scheme.

  43.Concern over the lack of clear explanation to support the decisions effected by these instruments has been exacerbated by the publication, on 12 October 2020, of the Scientific Advisory Group for Emergencies (SAGE) minutes of the advice it had given to the Government on 20 September 202013 on measures to combat the spread of COVID-19. This included a number of recommendations that the Government did not implement. The Government have not explained why they did not follow this advice and what other factors they had taken into account.

  44.A question raised several times during the approval motion debate in the House of Lords related to the rationale for closing hospitality venues at 10pm, where the SAGE minutes specifically stated that a 10pm curfew would have a “marginal” effect on transmission. Similarly, Government data published in the weekly National Surveillance report showed that only around 5% of acute respiratory infections were associated with food outlets and restaurants.14 The House may wish to ask the Minister, in the light of this data, how effective the Government believe the 10pm curfew is likely to be.

  Conclusion

  45.While the new tiered approach appears sensible, it will be important, if public trust is to be maintained, for the Government to be more transparent in explaining the basis of their decision-making. That includes routinely setting out in the Explanatory Memorandum how they have balanced the competing health, social and economic interests and the data to support their decision.T his is all the more important given the speed at which this legislation has been brought into effect and the consequences, in particular, for those areas placed in the higher tiers.

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