Appendix
Letter from the Department for Environment, Food
and Rural Affairs to the Clerk of the Committee
Proposal for the Regulatory Reform (Joint Nature
Conservation Committee) Order 2005: response to request for information
Thank you for your letter of 3 November. Defra's
responses to the points raised and your specific questions are
set out below.
New burdens and proportionality between burdens
and benefits
Q 1 Please describe each of the series of
obligations allocated to JNCC under the Proposal.
A1 - The proposal would transfer a number of functions
or obligations from the 3 country bodies (English Nature, the
Countryside Council for Wales, and Scottish Natural Heritage)
to the Joint Nature Conservation Committee. These are:-
the employment of staff working at the JNCC;
payment of remuneration and other allowances
to those staff;
payment of pensions for those staff and former
employees;
the maintenance of pension schemes
the provision of accommodation and other facilities
for the JNCC;
payment of remuneration, pensions, allowances
and gratuities to the JNCC Chairman, 3 independent members, all
appointed by the Secretary of State, and 2 non- voting members.
If the option of setting up a Company Limited by
Guarantee under were to be used, the JNCC would also be obliged
to take responsibility for the company's governance and ensuring
it met the requirements of the Companies Acts.
Q 2 What consideration has Defra given to
whether the imposition of these obligations satisfies the conditions
of proportionality between burdens and benefits set out in section
1 of the Regulatory Reform Act 2001 and the fair balance and desirability
tests set out in section 3?
A2 - Although the draft order re-allocates obligations
from the country bodies to the JNCC, this does not mean, in the
Department's view, that it creates new burdens on the JNCC in
the meaning of the Regulatory Reform Act. Our understanding of
the Act is that it provides powers to remove, reduce, re-enact
or create burdens, but not, directly at least, to remove, reduce
etc. functions, of which obligations or duties are a category.
The central object of the proposed reform is to remove
the burden the JNCC faces in not being able to employ its own
staff, or to do a number of ancillary things for itself. The burdens
being removed are the limitations on the JNCC's powers preventing
it from being able to do these things. Giving the responsibility
to the JNCC would be lifting a burden (in the sense of section
2(1)(b) of the Regulatory Reform Act), rather than imposing one.
Being responsible for such matters as paying the
employees and maintaining a pension scheme for their benefit is
clearly consequentially related to being able to employ them.
Where obligations are "transferred" to
the JNCC, the safeguarding roles of the Secretary of State and
Treasury have in each case been preserved. These safeguards are
a limitation on the powers conferred, and are thus burdens, either
new or re-enacted, in RRA terms.
The Department is satisfied that, as well as offering
necessary protection, these limitations are proportionate as
they reflect the 1990 arrangements, the JNCC are content to be
subject to them, the benefits they provide by way of safeguards
are desirable, and it would be inappropriate for the JNCC not
to be subject to similar safeguards in respect of staff numbers
and payments etc. as the country bodies continue to be in respect
of their own employees etc. under Schedule 6 to the Act, or under
Schedule 1 to the Natural Heritage (Scotland) Act 1991 in respect
of Scottish Natural Heritage. The Department is satisfied that
for the same reasons their inclusion maintains a fair balance
between the public interest and the interests of the JNCC, which
will be subject to the new or re-enacted burdens. It also considers
that, having regard to the benefits arising from the removal of
the central burden on the JNCC, it is desirable that the order
be made.
Maintenance of necessary protection
Q 3 What progress has Defra made on providing
indemnities to JNCC members who participate in any company limited
by guarantee?
A3 - Defra has been in discussion with the Treasury
to clarify how suitable indemnities can be given. We anticipate
that the Department will lay a minute before the House stating
that Government will indemnify JNCC Committee Members liabilities
incurred where they act honestly and in good faith both as Committee
Members and through any role in a Company Limited by Guarantee.
These indemnities will be analogous to those provided for other
NDPB members and in line with paragraph 8.3.18 of Government Accounting.
Expectation as to the exercise of rights and
freedoms
Q 4 Please supply a copy of the current Government
guidance on applying the principles of TUPE to public sector transfers.
A4 - A copy of the Cabinet Office publication 'Staff
Transfers in the Public Sector - Statement of Practice" is
attached.
Q 5 Please supply the Committee with an authoritative
statement committing the Government and JNCC to following the
Government guidance on applying the principles of TUPE to public
sector transfers, in respect of staff transferring to JNCC.
A5 - The country bodies and JNCC are committed to
applying the Government guidance on applying the principles of
TUPE in respect of staff transferring to the JNCC. Government
fully endorses and strongly supports that commitment. The only
public statement made to date is that within the Explanatory Memorandum
which is, of course, a public document. The JNCC offer of employment
to staff currently working at JNCC (see also the answer to question
6 below) will reflect the principles of TUPE. We and JNCC are
happy to be guided by the Committee on this matter if it is felt
that some additional form of statement would be helpful.
Estimates of costs, savings and other benefits
Q 6 What assessment has Defra made of the
effect of the Order on the number of secondments from the country
bodies to JNCC, after JNCC begins to employ its own staff, and
how any reduction in secondments might affect JNCC's interaction
with the country bodies?
A6 - As of 11th November, 2004 there were
111 staff assigned to the JNCC from the 3 country bodies (60 from
English Nature, 35 from SNH and 16 from CCW). These staff are
assigned indefinitely to the JNCC rather than seconded for a fixed
period.
Exchange between the JNCC and country agencies is
encouraged by allowing access to each others vacancies and offering
continuity of employment to successful applicants. (See Q&A
9 on the Common Trawling Agreement). However in practice this
tends to generate a relatively low level of applications for JNCC
posts from country agency employees and, accordingly, the vast
majority of vacancies are filled by external recruits who have
not previously held posts within the country agencies. Similarly,
only a small proportion of staff leaving the JNCC do so to take
up country agency posts. As JNCC will be party to the Common Trawling
Agreement the amount of exchange is not expected to fall, indeed,
an increase in morale as a result of the changes could increase
the exchange.
Whilst the exchange of staff between the bodies is
fairly limited as described there is extensive interaction between
staff assigned to the JNCC and staff employed within the country
bodies. Liaison takes place between individual staff members at
all levels and through a wide variety of inter-agency working
and governance groups. The changes will not affect these arrangements.
It is too early to be able to make a full assessment
of the implications of the proposal in respect of numbers of staff
who will opt to transfer to JNCC or return to their employing
country body. Staff will be invited to opt to 'transfer' to the
JNCC or 'remain' with their employing agency, subject to the Order
being made, in November and December, 2004. JNCC is, however,
confident that the overwhelming majority of staff currently assigned
to JNCC will opt to 'transfer' to the JNCC.
Consultation
Q 7 Please explain why Welsh Assembly approval
would be required and why the preamble to the draft Order does
not reflect that.
A7 - The reference in the question is to paragraph
4 of the Department's Explanatory Statement states that the draft
Order will be subject to separate approval by the Welsh Assembly.
This statement is no longer relevant. Defra was informed in late
October that by the Welsh Assembly Government considered the draft
Order did not need to be submitted for approval by the Assembly
under its Standing Order 24 provisions since, whilst the Order
would extend to Wales, it does not seek to remove or amend any
of the Assembly's functions. We apologise for not ensuring that
the Explanatory Memorandum was amended to take account of this
revised advice prior to submission.
Q 8 What conclusions has Defra reached on
the exercise of the provision in the draft Order for the Secretary
of State to impose conditions on the JNCC in the setting up of
a company limited by guarantee, in particular in connection with
the winding up of such a company?
A8 - Defra has, to date, had preliminary discussions
with the Devolved Assemblies about the conditions which the Secretary
of State might wish to impose when considering an application
to set up a Company Limited by Guarantee. Without prejudice to
any application which might be received once the Order is in force,
Defra would anticipate imposing a condition which would require
the Secretary of State's prior approval before any such Company
was wound up. The purpose of such a condition would be to provide
additional assurances for staff who might be employed by JNCC
through a Company Limited by Guarantee (CLG).
Defra also anticipates imposing conditions which
would require further approval for setting up any subsidiary to
the Company Limited by Guarantee and for changes to the CLG's
objectives and purpose as set out in the Memorandum and Articles
of Association. We are also looking at conditions which would
specify minimum numbers of members and directors for the CLG in
order to ensure the members and directors are broadly representative
of the JNCC but we hope that all JNCC members will wish to become
members of the CLG and will encourage them to do so.
Q 9 What assurance can Defra give about the
operation of the Common Trawling Agreement
once the Order came into force?
A9 - The proposed Common Trawling Agreement is a
concordat which the 3 country bodies and JNCC have negotiated
which will give employees of any of the 4 agencies common access
to vacancies arising in the other three. Defra and the Devolved
Administrations fully support this initiative and have asked that
the Agreement be finalised before the Order comes into force.
The agreement will help JNCC and the country bodies retain valuable
expertise and offer staff better career development opportunities.
A copy of the draft Agreement, which has now been agreed by the
JNCC, SNH and CCW Trade Union Sides, is enclosed.
Compatibility with obligations arising from
membership of the European Union
Q 10 What account was taken in drawing up
the draft Order of any relevant obligations resulting from membership
of the European Union?
A10 - The Government does not consider there are
obligations arising from membership of the European Union that
are relevant to this proposal.
Drafting
We note the error in the drafting of paragraph (d)
of the preamble (which refers to the Deregulation and Regulatory
Reform Committee) and are grateful to you for drawing this error
to our attention, and will amend the draft accordingly.
Q 11 New sub-paragraph (5)(a) of paragraph
7 of Schedule 7 to the Environmental Protection Act 1990 (introduced
by article 4(3)(c) of the draft Order) refers to the provision
of administrative and corporate support services to the JNCC "for
the purposes of the special functions". Section 133(1) of
the Act defines "special functions" for the purposes
of that section, but the term does not appear to be defined for
the purposes of Schedule 7. Does the department agree that, if
the term is used in the amendments to Schedule 7, a definition
should be added?
A11 - The Department does agree with the Committee's
observation, and are grateful for it. We will provide certainty
by including "(within the meaning of section 133 of this
Act)" in the proposed new paragraph 7(5)(a) of Schedule 7.
Q 12 Alternatively, given that the "special
functions" are functions of the Councils rather than of the
JNCC, might it be preferable for new paragraph 7(5)(a) to refer
to the functions of the committee under section 133(3)?
A12 - Although the special functions are required
to be discharged through the JNCC, they are still functions of
the Councils, rather than of the Joint Committee. Thus the Department
does not think the alternative proposed here would be technically
correct, and would prefer the solution agreed to in the above
response to Q11.
Q 13 Article 5 of the draft Order states that
it applies to a person who is an employee of one of the Councils
for the purposes of section 128(4) of the 1990 Act.
Explain the meaning of the underlined words. Is it intended to
refer to employees who are provided to the JNCC under paragraph
7 of Schedule 7?
A13 - The wording in question arises out of the re-organisation
effected by the Scottish Natural Heritage Act 1991. As originally
enacted, "the Councils" in section 128(1) of the Environmental
Protection Act referred to the three country bodies as then established.
As a result of amendments in the 1991 Act, "the Councils"
in s.128(1) now refers only to the English and Welsh bodies. However,
savings are made by the 1991 Act so that the new Scottish body,
Scottish Natural Heritage, is included in "the Councils"
in respect of those provisions concerning the JNCC (please see
the relevant footnote in the draft Order). Thus the phrase "one
of the Councils for the purposes of section 128(4) of the 1990
Act" has the effect of making it clear that we are here talking
about [employees of] the Countryside Council for Wales, English
Nature or Scottish Natural Heritage (rather than just of the first
two).
Yes, it is concerned with employees who are provided
to the JNCC by the country bodies under paragraph 7 of Schedule
7.
Q 14 Does the Department agree that, in view
of the references in article 5 of the draft Order to "the
1990 Act", that expression should be defined?
A14 - Yes, indeed. We are grateful for this observation,
and will amend the draft accordingly, to include a definition
of "the 1990 Act".
I trust the above answers all the Committees concerns
but if additional information is required, please let me know
and we will endeavour to provide further clarification speedily.
18 November 2004
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