Select Committee on Merits of Statutory Instruments Nineteenth Report


Nineteenth Report


Instruments drawn to the special attention of the house

The Committee has considered the following instruments and has determined that the special attention of the House should be drawn to them on the grounds specified.

A.  Draft Sexual Offences (Northern Ireland) Order 2008

Draft Sexual Offences (Northern Ireland Consequential Amendments) Order 2008

Summary: These Orders consolidate for Northern Ireland legislation on sexual offences following similar legislation for England and Wales in the Sexual Offences Act 2003. Until police and criminal justice matters are devolved to the Northern Ireland Assembly, such legislation is made by Order in Council following consideration by the Assembly under section 85 of the Northern Ireland Act 1998. The Assembly and other consultees were broadly in favour of the legislation but opposed to the lowering of the age of sexual consent from 17 to 16. The Secretary of State has none the less decided to lower the age of consent for the sake of consistency across the United Kingdom.

These draft Orders are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.

1.  The Northern Ireland Office (NIO) have laid these draft Orders under section 85 of the Northern Ireland Act 1998 together with an Explanatory Memorandum (EM). Under that section, the Northern Ireland Assembly has the right to consider and report[1] on the Secretary of State's proposal for a draft order. A summary of the representations made to the consultation exercise, which includes a list of the recommendations made by the Northern Ireland Assembly, has been published on the Northern Ireland Office website.[2] Of approximately 370 replies to the consultation exercise, 340 related to the age of consent. We too have received written evidence on this subject from the Christian Institute, printed at Appendix 1.

2.  These Orders replicate for Northern Ireland legislative provision which already exists in England and Wales, chiefly in the Sexual Offences Act 2003, in setting out the interpretation of, and appropriate penalties for, sexual offences. The Orders draw together other legislation on the subject to consolidate it into one statute. The Orders gender-neutralise all offences and lower the age of sexual consent for both sexes from 17 to 16.

3.  Until police and criminal justice matters are devolved to the Northern Ireland Assembly, such legislation is made by Order in Council following consideration by the Assembly under section 85 of the Northern Ireland Act 1998. An Assembly Select Committee considered the proposals for these instruments: the Committee generally welcomed the adoption of the same rules as for England and Wales, with the exception of certain specific issues. In particular, the Committee wished to retain 17 as the age of consent and have sports coaches included in the definition of "position of trust". The Assembly endorsed the Committee's conclusions and so reported to the Secretary of State.

4.  In the draft Orders before the House, the Secretary of State has retained the proposal to lower the age of consent to 16, overruling the Assembly's views on the ground of making sexual offences legislation consistent throughout the United Kingdom.

5.  On whether sports coaches should be included in the definition of position of trust, the department report that this issue was raised in the consultation which preceded the English legislation. The Department for Culture, Media and Sport and the Home Office took evidence on the issue, but decided that there was insufficient evidence of abuse to warrant a change to the legislation.

B.  Bathing Water Regulations 2008 (SI 2008/1097)

Summary: These Regulations implement the revised Bathing Water Directive. In consultation, the Government sought views on alternative approaches: either to meet the minimum requirements of the Directive, or to go beyond the minimum. While a majority of respondents supported the more ambitious alternative, the Environment Agency and the water and farming industries argued for meeting the minimum requirements. The Government have been persuaded by the arguments of the latter group, not least because of the priority which they place on keeping water and sewerage charges affordable and on the viability of agriculture. It will be important that the Government set out clearly what their chosen approach means for the quality of bathing waters in this country.

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

6.  The Department for Environment, Food and Rural Affairs (DEFRA) have laid the Bathing Water Regulations 2008 under section 2(2) of the European Communities Act 1972. An Explanatory Memorandum (EM), Transposition Note and Impact Assessment (IA) have been provided.

7.  The EM states that the Regulations transpose the requirements of the revised Bathing Water Directive (agreed in 2006),[3] and that they revoke the legislation transposing the current Bathing Water Directive (agreed in 1976).[4] The Regulations primarily place a duty on the Environment Agency ("the Agency") to use its powers to achieve compliance with the revised Directive, in particular, to meet the new bathing water quality standards by the end of the 2015 bathing season. Obligations are placed on beach operators to display bathing water quality information on beach signage during the bathing season and to work with the Agency, local authorities and sewerage undertakers during pollution incidents, and for each party to take adequate measures to protect bathers' health.

CURRENT BATHING WATER DIRECTIVE (76/160/EEC) - "CBWD"

8.  The EM explains that the cBWD, which came into force 30 years ago, requires Member States to identify popular bathing areas and to monitor water quality at these bathing waters throughout the bathing season, which runs from mid-May to September in England and Wales. The cBWD sets a number of microbiological and physico-chemical standards that bathing waters must either comply with (the "mandatory" standards) or endeavour to meet (the "guideline" standards).

9.  The EM notes that it was only in the early 1990s that the UK undertook formal transposition of the cBWD. As a result, water companies in England and Wales have invested over £2 billion to improve sewerage infrastructure and, in turn, to secure significant improvements in bathing water quality. The EM states that in 2007, 97.8% of bathing waters in England and 97.5% in Wales complied with the mandatory standards, compared with 79.0% and 78.0% in 1992, respectively; and that in 2007, 72.5% of all bathing waters in England and 86.3% in Wales met the guideline standards compared with 28.7% and 26.0% in 1992, respectively.

REVISED BATHING WATER DIRECTIVE (2006/7/EC) - "RBWD"

10.  The EM states that, whilst the overall objective of the rBWD remains the protection of public health, it has provided an opportunity to improve management practices at bathing waters and to standardise information provided to bathers across Europe. The rBWD takes a new approach to assessing water quality, using fewer but more stringent standards than at present.[5] It establishes four new standards of water quality ("excellent", "good", "sufficient" and "poor") and all bathing waters are to achieve at least the "sufficient" standard by the end of 2015 (with limited exceptions).

11.  DEFRA have provided the following correlation between the new, and the existing, bathing water standards:

  • excellent: approximately twice as stringent as the current guideline standard;
  • good: similar to the current guideline standard;
  • sufficient: tighter than the current mandatory standard;
  • poor: normally non-compliant water.

CONSULTATION

12.  The Government consulted on proposals for the implementation of the rBWD in England and Wales from November 2007 to February 2008. The consultation paper[6] sought comments on three possible scenarios:

1A: meeting the minimum rBWD requirements, with all bathing waters achieving at least the "sufficient" classification by 2015;

1B: meeting the minimum rBWD requirements as in 1A, but with the use of a prediction and discounting system at some bathing waters to alert and advise bathers when bathing water quality might be "poor";

2: exploring the costs and benefits of going beyond the minimum rBWD requirements by, for example, increasing the number of "excellent" bathing waters in England and Wales to increase/maintain the potential for Blue Flag beaches (assuming compatibility with future Blue Flag criteria).

13.  The consultation paper set out the way in which a system of prediction and discounting might work. The Agency would need to establish procedures to predict water quality at bathing waters subject to short-term pollution (i.e., periods of "poor" water quality not expected to last more than 72 hours) and to advise the public against bathing during such events. Where such advice had been provided, the Agency would be able to discount samples taken during this period, since the public would not be bathing, and this would allow the possibility that the bathing water could achieve a higher classification than would otherwise be the case. Use of prediction would be limited initially to a small number of bathing waters, but as the Agency's experience increased, it might be used more widely.

14.  Forty-two responses were received to the consultation paper. They came from: the water industry (10), academic/research organisations (6), private individuals (6), environmental/social NGOs 5), local government (5), recreational sports associations (3), commercial businesses (2), Government Agencies (2), the National Farmers' Union and another Government Department.

15.  DEFRA say that, while on the whole the Government's proposals were supported by stakeholders, "comments were made in relation to the Government's level of ambition and in [the] light of these, it was concluded that England and Wales should only aim to do the minimum that the rBWD requires (with the use of a prediction system where appropriate) prior to the first bathing water classifications being made at the end of the 2015 bathing season". The EM also says that, in response to consultation comments, costs and benefits associated with the implementation options have been revised: the costs have roughly doubled and the benefits associated with providing better information on beach signage are now approximately one-third of their original value. "In spite of these adjustments the benefits still significantly outweigh the costs and support the decision to aim to do the minimum (with the use of prediction) prior to 2015."

16.  DEFRA have advised the Committee that the majority of respondents (25 out of 40) who offered views on the alternative approaches to implementation of the rBWD were in favour of going beyond the minimum prior to 2015. "However, those recommending a less ambitious implementation approach tended to be the organisations/businesses with the best understanding of the potential cost associated with achieving water quality standards beyond the Directive's minimum requirements (e.g. the Environment Agency, water and farming industries) ... Ministers place a high priority on keeping water and sewerage charges affordable, particularly for those on low incomes. They also place a high priority on the viability of agriculture. For those reasons and in view of the comments described in the preceding paragraphs, DEFRA and the Welsh Assembly Government have decided to focus initially on scenario 1B." For this scenario, DEFRA now project annual costs of between £11.6m and £14.8m, and annual benefits of between £52.7m and £118m.

17.  It is noteworthy that the Environment Agency, in confirming its support for Scenario 1B, has stressed the importance of providing clear explanations to the public of the way in which the rBWD is to be implemented, in order to dispel any impression of falling standards. The Agency has commented that this impression might result from the more stringent standards required by the rBWD, and from the requirement for beach operators to advise against bathing at waters that did not meet the "sufficient" classification, and might be strengthened by the resulting media coverage.

CONCLUSION

18.  The Regulations implement the revised Bathing Water Directive. In consulting on implementation, the Government sought views on either meeting the minimum requirements of the Directive, or going beyond that minimum. While a majority of consultation respondents favoured a more ambitious approach, those responding for the Environment Agency, and for the water and farming industries, supported meeting the minimum requirements. The Government accept the arguments put forward by the latter group of respondents, not least because of the high priority which they place on keeping water and sewerage charges affordable, and on the viability of agriculture. As the Agency have commented, it will be important for the Government to set out clearly what their chosen approach means for the quality of bathing waters in this country.



1   http://www.niassembly.gov.uk/adhocs/2007mandate/sexual_offences/sexual_offences_report.htm  Back

2   http://www.nio.gov.uk/sexual_offences_(ni)_order_2008_-_statement_containing_a_summary_of_representations.pdf  Back

3   EC Directive 2006/7/EC of the European Council and of the Council concerning the management of bathing water quality and repealing Directive 76/160/EEC (OJ L64, 4.3.2006, p.37). Back

4   EC Directive 76/160/EEC concerning the quality of bathing water (OJ L31, 5.2.1976, p.1). Back

5   The EM states that the Regulations require the Agency to monitor two types of bacteria (intestinal enterococci and Escherichia coli) as indicators of the risk of mild gastrointestinal illness in bathers, and adds that under the cBWD regime the Agency is required to test for ten parameters. Back

6   "Consultation on the implementation of the revised Bathing Water Directive", November 2007:

http://www.defra.gov.uk/corporate/consult/bathingwaters/consultation.pdf  Back


 
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