Thirty-fourth Report of Session 2017–19 Contents

Instruments reported

At its meeting on 17 October 2018 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 four of those considered. The Instruments and the grounds for reporting them are given below. The relevant Departmental memoranda are published as appendices to this report.

1S.I. 2018/850: Reported for requiring elucidation

Marine Licensing (Application Fees) (Amendment) Regulations 2018

1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in two respects.

1.2These Regulations amend the fee structure and fee rates for marine licence applications made under Part 4 of the Marine and Coastal Access Act 2009. The amendments include increasing the hourly fee rate for certain marine licence applications by 30 per cent and introducing a new travel fee. In the Explanatory Memorandum, the Department for Environment, Food and Rural Affairs assert that the increase is necessary to ensure that applicants meet all costs associated with the determination of a marine licence application.

1.3The Committee asked the Department to summarise the objections made to the increases in the hourly fee rate and the new travel fee referred to in paragraph 8.2 of the Explanatory Memorandum and, in particular, to identify whether any consultees asserted that the new fees are above reasonable cost recovery rates.

1.4In a memorandum printed at Appendix 1, the Department explains that a large majority of respondents did not object to the increase in hourly fee rate though a small number asserted that it was more than that charged for similar commercial activity or otherwise that the increase was too high. In relation to the new travel fee, the Department again explains that a large majority of respondents did not provide comments though some were concerned that travel should be undertaken in the most cost-effective manner. The Department notes that the Government has confirmed that the Marine Management Organisation (MMO) will agree all travel arrangements with applicants in advance and the MMO has committed to publish updated internal and external guidance to ensure that the circumstances in which travel costs are charged are clearly understood. The Committee accordingly reports these Regulations for requiring the elucidation provided by the Department’s memorandum.

2S.I. 2018/901: Reported for defective drafting

Independent Educational Provision in England (Provision of Information) and Non-Maintained Special Schools (England) and Independent School Standards (Amendment) Regulations 2018

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

2.2These Regulations set out the information which independent schools must supply to the Secretary of State in an application for registration as an independent school, in an initial return and in annual returns. Paragraph 15(2)(b) of the Schedule defines “relevant year” for an annual return (other than the first annual return) for which certain information must be provided as:

“(i) the period of one year ending on the day before the date to which the return is made up; and

(ii) the two years immediately before that.”

2.3The Committee asked the Department for Education to explain how paragraph 15(2)(b) of the Schedule is intended to work in the case of the second annual return. In a memorandum printed at Appendix 2, the Department explains that paragraph 15(2)(b) is intended to require schools to provide the relevant figure for each of the three years prior to the date of the return, including a nil return for years in which it did not operate. However, the Department acknowledges that there is a lacuna in the drafting. Where a school has been registered for less than three complete calendar years, it will not be possible for it to comply with the requirement in paragraph 15(2)(b)(ii) where it was in operation before registering as an independent school and, for example, does not have recorded data for that period.

2.4The Department undertakes to address this by amending the Regulations at the next available opportunity and in the meantime will take no action where a school does not comply with the requirement in paragraph 15(2)(b) because it cannot. The Department also undertakes to include reference to this issue in guidance and an explanation of how schools are expected to deal with years in which they were not operating or required to register. The Committee accordingly reports paragraph 15(2)(b) of the Schedule for defective drafting, acknowledged by the Department.

3S.I. 2018/930: Reported for defective drafting

Local Government (Structural Changes) (General) (Amendment) Regulations 2018

3.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two respects.

3.2These Regulations continue the process of implementing changes to the structure of local government in England as set out in the Local Government and Public Involvement in Health Act 2007.

3.3Regulation 3(4) modifies the community right to challenge under Part 5 of the Localism Act 2011 to reflect the creation of and transition to single-tier councils. The modifications apply in specific circumstances and require a reference to an authority to be read as a reference to the single-tier council. There are exceptions where the modifications do not apply. The Committee asked the Ministry of Housing, Communities and Local Government to clarify the intended meaning of “relevant authority” in those excepted provisions, having regard to the fact that the modifications are expressed to operate on the definition of “relevant authority”.

3.4In a memorandum printed at Appendix 3, the Department states that in sections 81(1)(a) and 82(1) to (3) “relevant authority” is intended to continue to have the original meaning in the unmodified primary legislation and to mean the predecessor council, to which the expression of interest was submitted. The Committee does not agree with the Department’s assertion that this intention is clear. The original definition did not refer to the predecessor council and the application of the modifications to the definition means that there is no longer a clear result when searching for the meaning of “relevant authority”, particularly in relation to section 82. The Committee accordingly reports regulation 3(4) for defective drafting.

3.5Regulation 4(3) amends regulation 10 of the Local Government (Structural Changes) (Transfer of Functions, Property, Rights and Liabilities) Regulations 2008 to allow a proportion—rather than the entirety—of a predecessor council’s financial reserves to be held on trust for successor councils.

3.6In regulation 10, beneficiaries of the trust, which also have decision-making powers relating to its distribution, are referred to as “the successor councils concerned”, a term which is defined for the purposes of regulation 10. The amendments refer simply to “the successor councils”, and the Committee asked the Department to clarify whether the expression is intended to have the same meaning as the defined term “the successor councils concerned”. In a memorandum printed at Appendix 3, the Department confirms that it does. Given the Department’s confirmed intention, the defined term should have been used, and the Committee accordingly reports regulation 4(3) for defective drafting on this additional ground.

4S.I. 2018/932: Reported for requiring elucidation

Social Security (Treatment of Arrears of Benefit) Regulations 2018

4.1The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation in two respects.

4.2These Regulations make provision about the circumstances in which payment of arrears of child benefit will be disregarded in calculations relating to income-related benefits and Universal Credit.

4.3Regulation 8 amends the Universal Credit (Transitional Provisions) Regulations 2014 by inserting new regulation 10A, which provides that arrears payments of £5,000 or more will be disregarded from the calculation of the claimant’s capital in certain circumstances. The Committee asked the Department for Work and Pensions to clarify what periods of time were meant by the phrases “during the current award” and “during an award of an existing benefit”.

4.4In a memorandum printed at Appendix 4, the Department explained that this refers in each case to the period of time during which the claimant is entitled to an award of the relevant benefit, in accordance with the legislation governing that benefit (e.g. by meeting the basic and financial conditions specified in sections 4 and 5 of the Welfare Reform Act 2012). That period of time starts at the point the award of the benefit is made and ends when the award of the benefit terminates. Although the expression does not appear to be used generally in this sense in the Regulations and is not immediately intuitive, the Committee accepts that the meaning asserted by the Department is likely to be the only one that can be attributed to the expression in this context.

4.5The Committee also asked the Department to explain the circumstances in which a payment to which new regulation 10A(2) applies would, but for that paragraph, fall to be taken into account in calculating a claimant’s capital.

4.6In its memorandum, the Department clarified that regulation 10A(2) creates an exception to the general rule for disregarding capital in calculating Universal Credit entitlement, which is set out in regulation 48 of and paragraph 18 of Schedule 10 to the Universal Credit Regulations 2013. Whereas payments of arrears of benefit are normally disregarded for only 12 months from the date of payment, regulation 10A(2) provides that where certain conditions are met, such payments may be disregarded until the end of a claimant’s entitlement to Universal Credit even where that is later than 12 months after the date of payment. The Committee notes the Department’s explanation.

4.7The Committee accordingly reports regulation 8 as requiring elucidation on the two matters set out in the Department’s memorandum.

Published: 19 October 2018