Select Committee on Merits of Statutory Instruments Twenty-Second Report


Instruments of interest

DRAFT CANCELLATION OF CONTRACTS MADE IN A CONSUMER'S HOME OR PLACE OF WORK ETC. REGULATIONS 2008

1.  The Department for Business, Enterprise and Regulatory Reform (DBERR) have laid the draft Cancellation of Contracts made in a Consumer's Home or Place of Work etc. Regulations 2008. The Regulations implement Directive 85/577/EEC, which provides cancellation rights within a cooling-off period of a minimum 7 days to a consumer who enters into an agreement with a trader to buy goods and services during an unsolicited visit to the consumer's home, etc. (The Directive was originally implemented by Regulations made in 1987.) However, using powers in the Consumers Estate Agents and Redress Act 2007, the Regulations also extend those requirements to contracts made during solicited visits. DBERR consider that aligning the requirements for unsolicited and solicited visits will make the law simpler and clearer for consumers, businesses and enforcement agencies. They have explained that Directive 85/577/EEC is a "minimum harmonisation directive"; the Directive may not prevent Member States from adopting or maintaining more favourable provisions to protect consumers. The House may be interested to see the way in which the Government have chosen to extend consumer protection provisions in this area.

DRAFT HEALTH CARE AND ASSOCIATED PROFESSIONS (MISCELLANEOUS AMENDMENTS) ORDER 2008

2.  This Order follows the recommendations made in the White Paper "Trust, Assurance and Safety - the Regulation of Health Professionals in the 21st Century". It converts the governance arrangements of the General Medical Council (GMC), General Optical Council, General Osteopathic Council and the General Chiropractic Council to a fully appointed membership from partly elected. The Order also makes a number of other miscellaneous and consequential amendments, including a provision that would allow the GMC to maintain a list of people who might be temporarily registered as doctors during a major emergency such as a flu pandemic.

DRAFT HOUSING (SCOTLAND) ACT 2006 (CONSEQUENTIAL PROVISIONS) ORDER 2008

3.  The Scotland Office (SO) have laid the draft Housing (Scotland) Act 2006 (Consequential Provisions) Order 2008. In their Explanatory Memorandum, the SO state that, under Part 3 of the Housing (Scotland) Act 2006 ("the 2006 Act"), Scottish Ministers have the power to prescribe documents which a seller must make available to prospective buyers, as part of a "Home Report". One of the prescribed documents will be a survey report. However, since the 2006 Act will not give a right to rely on the terms of the survey, this Order provides that buyers may do so. The SO state that the Order is necessary because consumer protection is a matter reserved to Westminster under the Scotland Act 1998.

DRAFT TRANSFER OF TRIBUNAL FUNCTIONS ORDER 2008

DRAFT APPEALS FROM THE UPPER TRIBUNAL TO THE COURT OF APPEAL ORDER 2008

DRAFT FIRST-TIER TRIBUNAL AND UPPER TRIBUNAL (COMPOSITION OF TRIBUNAL) ORDER 2008

4.  A review conducted by Sir Andrew Leggatt[1] recommended extensive reform of the tribunals system to separate them from their various sponsoring Departments and to unify their administration under a single Tribunals Service, overseen by the Ministry of Justice. The Government responded with the Tribunals, Courts and Enforcement Act 2007 which creates two new, generic tribunals, the First-tier Tribunal and the Upper Tribunal, into which existing tribunal jurisdictions can be transferred. The Upper Tribunal is primarily, but not exclusively, an appellate tribunal from the First-tier Tribunal. These Orders set out certain operational details for the new system and transfer the first jurisdictions across to it: the Social Entitlement Chamber, the Health, Education and Social Care Chamber and the Administrative Appeals Chambers will come into effect from 3 November. Other tribunal jurisdictions will move across in a rolling programme.

TOWN AND COUNTRY PLANNING (LOCAL DEVELOPMENT) (ENGLAND) (AMENDMENT) REGULATIONS 2008 (SI 2008/1371)

5.  The Department for Communities and Local Government (DCLG) have laid these Regulations, which serve two main purposes. First, they simplify the procedures to be followed by local planning authorities throughout England in preparing or revising development plan documents. Second, and in line with changes foreshadowed in the Greater London Authority Act 2007 ("the 2007 Act"), they make provisions relating to new requirements for London borough councils (LBCs) to submit their local development schemes to the Mayor of London, and new direction-making powers provided to the Mayor of London to require changes to such schemes. The new role for the Mayor of London in relation to LBCs' local development schemes is part of a wider series of changes that have been made to the Mayor's powers by the 2007 Act. Earlier this year, DCLG laid the Town and Country Planning (Mayor of London) Order 2008 (SI 2008/580), which (among other things) lowered the threshold to trigger referral to the Mayor of applications which included the provision of new housing, from 500 housing units to 150. The Committee commented on that Order in the 16th Report of this session. In laying these Regulations, DCLG have acknowledged that relevant consultation processes conducted both before and after the 2007 Act showed considerable opposition to extending the Mayor's powers in this way. However, they have re-affirmed that the principle of mayoral involvement in local development schemes was subject to full scrutiny during the Parliamentary passage of the Bill, and they see no grounds to change their proposals in the light of consultation processes.

LOCAL GOVERNMENT (STRUCTURAL AND BOUNDARY CHANGES) (STAFFING) REGULATIONS 2008 (SI 2008/1419)

6.  DCLG have laid these Regulations, which make provision in respect of the transfer of staff and other staffing matters from one council to another, as a result of local government structural change orders made under the Local Government and Public Involvement in Health Act 2007 ("the 2007 Act"). DCLG have made seven such Orders to date, in relation to Cornwall (SI 2008/491), Durham (SI 2008/493), Northumberland (SI 2008/494), Shropshire (SI 2008/492), Wiltshire (SI 2008/490), Cheshire (SI 2008/634) and Bedfordshire (SI 2008/907); the Committee brought all these Orders to the special attention of the House (in our 7th, 10th and 15th Reports of this session). DCLG have said that the broad intention behind the Regulations is that employees of predecessor councils will enjoy the protection afforded by the Transfer of Functions (Protection of Employment) Regulations 2006 ("TUPE"). However, they also make provision in respect of appointments to certain senior posts; DCLG say that, given that the Government agree with the view generally expressed by councils consulted that it would be appropriate for the chief executive of the new single tier councils to be recruited by open competition, this has been made a requirement in the Regulations. The Committee has received additional information from DCLG which explains that, beyond the statutory requirement for open competition for the post of chief executive, the Government expect that, in each of the new single tier councils, there will in due course be a new or "refreshed" senior management team. However, the achievement of these other changes is not specified in the Regulations, since the Government recognise the importance of local flexibility to enable each new council to adopt the management structure it considers appropriate. The information from DCLG is printed at the Appendix.

STATEMENT OF CHANGES IN IMMIGRATION RULES (HC 607)

7.  Continuing the phased implementation of the Points Based System of immigration, the Statement of Changes in Immigration Rules (HC 607, laid on 9 June 2008) sets out the detail of how the points are to be calculated for the second part of Tier 1 (General Route), which is mainly for investors and entrepreneurs,[2] from 30 June 2008.

8.  This instrument also amends provisions made in the previous Statement of Changes in Immigration Rules (HC 321, laid on 6 February) in relation to General Grounds for Refusal. That instrument set new grounds for the automatic refusal of any immigration application if the applicant had sought to enter the United Kingdom by deception or had previously breached immigration rules. The length of automatic refusal of future applications to enter the UK (1, 5, or 10 years) was to be determined by whether or not the person left the country voluntarily and whether at public or private expense. The issue caused concern in both Houses and, as a result, a number of concessions have been made.[3] These are set out in the Explanatory Memorandum, paragraphs 7.37-44; in brief, they allow some discretion if the applicant was under 18 at the time, if they were seeking access to a close relative, or if the person was trafficked. Guidance will explain how this discretion is to be exercised, but the concessions will not apply where the applicant has contrived to circumvent the rules, for example by entering into a bogus marriage.


1   "Tribunals for Users - One System, One Service", published August 2001 Back

2   See written statement HL Hansard, 9 June 2008, cols WS 37-8 Back

3   See HC Hansard 13 May 2008, cols 1350-1354, and HL Hansard 17 March 2008,cols 96-100 Back


 
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