Ninth 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 Jobseeker's Allowance
(Sanctions) (Amendment) Regulations 2012
Date laid: 2 July, relaid 9 July
Parliamentary Procedure: affirmative
Summary: These Regulations are part of a wider
package of measures which seek broadly to align the Jobseeker's
Allowance (JSA) and Employment and Support Allowance (ESA) sanctions
regimes with the model to be introduced under Universal Credit
from April 2013. These Regulations make no changes to the current
requirements imposed on jobseekers, however they impose stronger
sanctions on JSA claimants who fail to meet the conditions of
their claim in respect of actively seeking a new job or making
themselves available for work or training. The sanctions are for
fixed periods, ranging between 4 and 156 weeks, and get longer
for second and third failures to comply with the conditions for
claiming benefit.
This instrument is drawn to the special attention
of the House on the grounds that it gives rise to issues of public
policy likely to be of interest to the House.
1. These Regulations have been laid by the Department
for Work and Pensions (DWP) accompanied by an Explanatory Memorandum
(EM) and an Impact Assessment (IA).
2. The reform of the Jobseeker's Allowance (JSA)
sanctions regime is part of a wider package of measures which
seek broadly to align the JSA and Employment and Support Allowance
(ESA) sanctions regimes with the model to be introduced under
Universal Credit. Universal Credit will be phased in through "pathfinder
areas" from April 2013 and nationwide from October 2013.
(We understand that the parallel changes to the ESA sanctions
regime will be made through a separate negative instrument that
will be laid around 29 October 2012 to take effect from 3rd December
2012.)
3. DWP intend the revised sanction regime to
make the consequences of non-compliance clearer and impose stronger
sanctions on claimants who repeatedly fail to meet their responsibilities.
These regulations make no changes to the current requirements
imposed on jobseekers or the flexibilities already built into
the system which allow requirements to be tailored to suit their
circumstances, for example, to allow for caring responsibilities.
4. The Regulations set out three categories of
sanctionable failure:
· When a claimant fails to comply with the
most important jobseeking requirements: for example, loses employment
through misconduct or voluntarily leaves employment without a
good reason; neglects to avail himself of a reasonable opportunity
of employment; or fails to participate in Mandatory Work Experience
(new provision). These actions are currently sanctioned with a
variable suspension of between 1-26 weeks. The revised sanction
structure will be for fixed periods so that claimants will be
clearer about the consequences of not meeting requirements, as
follows:
1) 13 weeks suspension for a first failure;
2) 26 weeks for a second failure committed within
52 weeks of the previous failure; and
3) 156 weeks (3 years) for a third or subsequent
failure committed within 52 weeks of a previous failure that resulted
in a 26 week sanction. 3 year sanctions will apply only in the
most extreme cases where claimants have serially and deliberately
breached their most important requirements, and they have not
changed behaviour after receiving previous sanctions.
If a claimant commits multiple failures within the
same two weekly signing period then the sanction will not escalate
to the next level, this applies to all 3 sanction categories.
This rule aims to ensure claimants do not accumulate lengthy sanctions
over a short period.
· When a claimant loses JSA entitlement
for not being available or actively seeking work: currently they
can reclaim JSA straightaway, losing benefit for only a few days.
Under the revised regime claimants can still re-apply straightaway
but they will be subject to a loss of benefit for 4 weeks for
a first failure and 13 weeks where there has been a previous disentitlement
sanction within the previous 12 months.
· When a claimant fails to comply with a
requirement designed to improve their chances of finding work
or preparing for work: for example, failing to attend an adviser
interview at the Jobcentre; failing to attend or take up a training
place; or losing such a place through misconduct. Again current
sanctions are variable and can end sooner if claimants re-engage
with requirements. The revised sanction for these failures will
be set at a period of 4 weeks for a first failure, and 13 weeks
for a second or subsequent failure within 52 weeks of the previous
failure.
5. Other aspects of the current regime will remain
broadly the same although JSA claimants engaged in a scheme under
the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme)
Regulations 2011 (SI 2011/917) will now be included in the hardship
payments provisions if they are subject to a fixed period sanction.
DWP are also changing their administrative approach to ensure
that a sanction will be applied to the next payment due after
the infringement to tighten the connection between non-compliance
and its consequences.
B. Statement of Changes in
Immigration Rules (Cm 8423)
Date laid: 19 July
Parliamentary Procedure: negative
Summary: This Statement of Changes in Immigration
Rules (Cm 8423) has been laid at short notice in reaction to a
judgment of the Supreme Court on 18 July in the case of Mr Alvi
who had been refused leave to remain under Tier 2 of the Points
Based System because his level of skills and salary did not meet
the published criteria. The Supreme Court quashed that decision
on the grounds that the list of skilled occupations and salary
was not part of the Immigration Rules as laid before Parliament
under section 3(2) of the Immigration Act 1971 but was published
in guidance not subject to any Parliamentary procedure. Cm 8423
contains 290 pages of the material previously published as guidance
and brings it into immediate effect as Rules to enable the Points
Based System to continue to function as intended. The House
may wish to seek clarification about the status of all cases decided
on the basis of the guidance since 2008, when the last complete
revision of the Immigration Rules was laid. As the Supreme
Court judgment makes clear, there have recently been a "rapid
succession" of cases in the courts that have turned on the
legal status of a particular element of the Immigration Rules
and accompanying guidance. While the laying of Cm 8423 will provide
a short term solution for the latest problem, wider questions
remain. For example, the Committee's 6th Report on a previous
Statement of Changes in Immigration Rules (HC 194), published
just three weeks ago, included a number of still unresolved questions
about the interaction between Immigration Rules and the European
Convention on Human Rights. Until such matters are resolved to
the satisfaction of the courts we must inevitably conclude that
the current Rules may imperfectly achieve their policy objective.
In light of the Committee's previous Reports and the Supreme Court
judgment, the House may therefore wish to seek urgent clarification
from the Minister about how the Home Secretary plans to revise
the legislation to put its application beyond question.
These Rules are drawn to the special attention
of the House on the ground that they may imperfectly achieve their
policy objective.
6. This Statement of Changes in Immigration Rules
(Cm 8423) has been laid at short notice in reaction to a judgment
of the Supreme Court on 18 July in the case of Mr Alvi.[1]
Mr Alvi, an assistant physiotherapist, applied for leave to remain
under Tier 2 of the Points Based System. He was refused it on
the grounds that his skills and salary fell below the requirements
set out in the relevant Code of Practice document. He applied
for judicial review of the decision on the grounds that the list
of skilled occupations and salary was not part of the Immigration
Rules as it has not been laid before Parliament under section
3(2) of the Immigration Act 1971. The Court endorsed this view,
stating "any requirement which, if not satisfied will lead
to an application for leave to enter or remain being refused is
a rule within the meaning of section 3(2) so ... [that] requires
that it should be laid before Parliament" (paragraphs 57,
94, 97, 122 and 128 of the judgment).
7. In consequence the Home Secretary has laid
all the previous guidance which set out the criteria such as which
documents, English tests and occupations are accepted under the
Points Based System, before the House under section 3(2) of the
Immigration Act 1971 to give it the full status of Rules, subject
to the negative resolution procedure in Parliament. We are told
that the material in Cm 8423 is unchanged from the previously
published guidance or lists that were external to the Immigration
Rules but due to the volume of the material, this Committee has
not been able to verify that. We would have expected the Home
Office to have made some distinction between what needs to be
in the Rules and what might legitimately remain in guidance, rather
than import all material on a wholesale basis.
8. The Home Office has introduced the legislation
with immediate effect to enable the Points Based System to continue
to function as intended. However, in the light of this judgment,
the House may wish to seek clarification about the status of all
cases decided on the basis of the guidance since 2008,
when the last complete revision of the Immigration Rules was laid.
9. The Supreme Court was concerned about inappropriate
sub-delegation of powers given to Ministers under the Immigration
Act 1971. It should be noted that Statements of Changes in Immigration
Rules are not Statutory Instruments so fall outside the remit
of the Joint Committee on Statutory Instruments, which means their
legal drafting and use of powers have not been scrutinised in
the way a Statutory Instrument would have been. The Supreme Court
accepted "that it is open to the Secretary of State to refer
in a Rule to another document which was available when the rule
was laid before Parliament. But it would be so only if that other
document was fixed and not open to change at the Secretary of
State's discretion without further reference to Parliament"
(paragraph 23 of the judgment). The issue is that until now the
guidance has been provided on the UK Borders Agency (UKBA) website
with the deliberate intention of giving UKBA flexibility in administering
the provisions.[2] In the
light of the judgment we would have expected the Home Office to
have made some distinction between what needs to be in the Rules
and what may legitimately remain in guidance, rather than import
all the guidance material on a wholesale basis.
10. The Committee has also received evidence
from Mr Gary Burgess querying the basis on which the salary threshold
for IT workers is calculated for applicants under Tier 2 of the
Points Based System, asserting that it is well below the average
UK salary for this type of job. The evidence is published in full
on our website.[3] As
such thresholds are now subject to Parliamentary scrutiny the
Home Office may wish to make their method for deriving them
more transparent.
PREVIOUS REPORTS BY THE COMMITTEE
11. The judgment makes a number of references
to the reports of the then Merits of Statutory Instruments Committee.
In particular it quotes some of our previous reports on Statements
of Immigration Rules where we have made similar objections, for
example our Report of 16 July 2010[4]
about Statement of Changes in Immigration Rules (HC 59 of 2010)
relating to applications under Tier 1 of the Points Based System.
Among the changes HC59 introduced was a provision which enabled
a limit to be set on the number of grants of entry allowed during
each allocation period. HC59 stated that the interim limit for
the purposes of Tier 1 would be published on UKBA's website. We
commented adversely in that Report because the limit was not given
in the material laid before the House for scrutiny and the information
available on the website at that date did not disclose what the
actual limit was (and did not actually appear for some time).
12. The Committee is also surprised that the
Home Office has not acted before this, to address the distinction
between Rules and guidance in a planned and orderly fashion. Almost
exactly two years ago, Statement of Changes in Immigration Rules
(HC 96 of 2010) was laid on an urgent basis, following two court
judgments concerning the extent to which requirements under the
Points Based System should be set out in the Immigration Rules
rather than in UK Border Agency guidance.[5]
At the time the Committee noted that HC 96 took the same
approach for Tier 2 as HC 59 took for Tier 1 providing in the
Statement for there to be limits, but leaving the actual limits
themselves to guidance.
13. Our next report[6]
included a letter from the Home Secretary explaining why another
Statement of Immigration Rules (HC 382 of 2010) was being brought
in with immediate effect. HC 382 addressed the need for Tier 2
requirements under the Points Based System relating to qualifications,
maintenance and the minimum level of course of study for non-EEA
students to be set out in the Immigration Rules, rather than in
UK Border Agency guidance following the Pankina judgment[7],
a position similar to the one currently before the House.
PRACTICALITY OF THE LEGISLATION
14. It should also be noted that Cm 8423 adds
a further 290 pages to the 488 pages already in the Rules. Although
we have commended the Home Office for keeping an on-line informal
consolidation of the Rules thus far, we note the Supreme Court
judgment's view that that the ease of updating material on a website
should not lead the Department to forget the need to make it clear
what is a Rule, and therefore has "quasi-legal status",
and what is not (paragraph 43 of the judgment).
15. We also question the practicality of 778
pages of Rules for both the applicants and staff who need to use
it and the Home Office may wish to give urgent consideration to
how it presents the revised Immigration Rules to make the material
accessible and make it absolutely clear what are Rules and what
is only guidance. We have previously raised with the Home Office
the need for consolidation. In addition we now question whether
simplification is necessary to make the Rules more efficient and
effective. The Supreme Court also questioned this stating "The
court questions whether the current system, which is now over
forty years old, is still fit for purpose today. But any changes
to it must be a matter for Parliament" (judgment paragraphs
65, 109 and 128).
CONCLUSION
16. As the judgment makes clear there have recently
been a "rapid succession" of cases in the courts that
have turned on the legal status of a particular element of the
Immigration Rules and accompanying guidance. While the laying
of Cm 8423 will provide a short term solution for the latest problem,
wider questions remain. For example, the Committee's 6th Report[8]
on a previous Statement of Immigration Rules (HC 194), published
on 4 July 2012, included a number of still unresolved questions
about the interaction between Immigration Rules and the European
Convention on Human Rights. Until such matters are resolved
we must inevitably conclude that the current Rules may imperfectly
achieve their policy objective. In light of the Committee's previous
Reports and the Supreme Court judgment, the House may therefore
wish to seek urgent clarification from the Minister about how
the Home Secretary plans to revise the legislation to put its
application beyond question.
C. Statement of Changes in
Immigration Rules (HC 514)
Date laid: 9 July
Parliamentary Procedure: negative
Summary: The purpose of these changes is to make
provision for an Entry Clearance Officer (ECO) to be satisfied
that an applicant is a genuine student before granting entry clearance
under Tier 4 of the Points Based System. The proposed change is
made on the basis of a pilot exercise which identified that 32%
of the Tier 4 visas granted under existing rules could have been
refused if these powers had been in place, many on the basis of
poor English language competence. The new approach is resource
intensive for staff overseas but, given the considerable difficulties
of removing an overstayer from the UK, the House may wish to ask
the Home Office to explain why it would not be a more effective
use of their resources to pursue this initiative more vigorously
than just on the 3-5% of high-risk applicants they currently plan
to interview under the scheme.
This instrument is drawn to the special attention
of the House on the grounds that it gives rise to issues of public
policy likely to be of interest to the House.
17. Statement of Immigration Rules (HC 514) has
been laid by the Home Office accompanied by an Explanatory Memorandum
(EM). At the same time they have published Occasional Paper 104
which gives the results of the pilot exercise on which this legislation
is based.[9]
18. The purposes of these changes are to make
provision for an Entry Clearance Officer (ECO):
· to be satisfied that an applicant is a
genuine student before granting entry clearance under Tier 4 of
the Points Based System;
· to refuse to issue entry clearance where
the applicant fails to attend an interview without providing a
reasonable explanation.
19. Since the Points Based System (PBS) for Tier
4 was implemented in 2009 applicants have not generally been interviewed
as part of the decision making process. A pilot exercise was run
from December 2011 to the end of February 2012 to assess the potential
impact of interviewing more Tier 4 applicants, and of a new power
to refuse entry clearance where ECOs doubted the applicant was
a genuine student. Data was collected on 2,316 interviews from
13 posts (Bangladesh, Burma, China, Colombia, Egypt, the Gulf,
India, Kenya, Nigeria, Pakistan, Philippines, Sri Lanka and USA/Canada)
involving both high and low risk applicants.
20. The pilot exercise found that:
· Just over a sixth (17%) of applicants
interviewed were refused entry using existing Tier 4 PBS rules.
Some applicants could have been refused on papers alone. For others,
such as those lacking basic English language competence, refusals
were only possible on the basis of an interview.
· More than one fifth (24%) of refusals
were made on the basis of English language ability. The exercise
highlighted concerns over the number of applicants in possession
of an approved English language testing certificate who were unable
to answer basic interview questions without the aid of an interpreter.
21. For the purposes of the pilot exercise ECOs
were asked to assess applicants who had already been granted a
visa on the basis of existing PBS rules. They tested credibility
based on applicants' intention to study their proposed course,
intention to leave the UK at the end of the course, ability to
maintain themselves and their dependants for the duration of the
course, and ability to study the proposed course.
22. The data shows that ECOs could potentially
have refused 32% of those visas granted in this study on the basis
of applicants' credibility. These were hypothetical refusals,
as a visa had already been granted under existing PBS rules.
23. Around three in five applicants to privately
funded Further and Higher Education colleges (61%) could potentially
have been refused on credibility grounds after interview, compared
with around one in seven (14%) applicants to universities. During
the pilot, rates of potential refusals on credibility grounds
were high for diplomas (56%), business/administration courses
(48%) and banking/finance related courses (42%) - particularly
those offered by private colleges.
24. ECOs were provided with a standard format
for interviews, but were given flexibility to deviate from this
as they felt appropriate. Interviews took place in the native
language of the applicant, but contained some questions designed
to test their English language ability. The majority (73%) were
conducted face-to-face, with the remainder conducted over the
telephone, where face-to-face interviews were not possible. Interviews
took an average of around 30 minutes across all posts and telephone
interviews generally took longer than those conducted face-to-face.
Increased interviewing impacted negatively on the productivity
of some posts, with ECOs in Pakistan suggesting that the end-to-end
application process took up to five times longer in some cases
during the pilot than under normal circumstances.
25. These changes are intended to operate as
a supplement to the current sponsorship controls, to be used sparingly,
based on risk assessments, to tackle any remaining abuse in Tier
4. Applicants from low-risk countries (listed in Appendix H to
the Immigration Rules) who already benefit from a streamlined
visa application process will be exempt from the genuine student
test.
CONCLUSION
26. We commend the Home Office on its use of
a pilot study to assess the benefit of making a change to the
procedure. The results demonstrate that a significant percentage
of dubious applications could be refused in the country where
the application is made. We understand from the Home Office that
the interview scheme will initially operate within existing resources
and that it will be used, across all posts, on about only 3-5%
of applicants selected by risk assessment. We understand that
the process is time consuming and resources are limited, but given
the considerable difficulties of removing an overstayer from the
UK the House may wish to ask the Home Office whether it would
not be a more effective use of their resources to pursue this
initiative more vigorously.
D. Further Education Loans
Regulations 2012 (SI 2012/1818)
Date laid: 12 July
Parliamentary Procedure: negative
Summary: The Further Education Loans Regulations
2012 come into force on 1 September 2012. They provide for financial
support for students taking designated further education courses
in respect of courses beginning on or after 1 August 2013. Loans
will be available for students who are 24 years or over and studying
for qualifications at Level 3 or above.
This instrument is drawn to the special attention
of the House on the grounds that it gives rise to issues of public
policy likely to be of interest to the House.
27. In November 2010, the Minister for Further
Education, Skills and Lifelong Learning announced the Government's
intention to offer loans in Further Education (FE), in a report
on "Skills for Sustainable Growth".[10]
A consultation process carried out in 2011 has culminated in these
Regulations. In a Written Statement on 12 July 2012, the Minister
said that the Regulations would allow adults over 24 to benefit
from loans for fees in further education ("24+ Advanced Learning
Loans"). He stated that "from the 2013-14 academic year,
loans will be available for learners aged 24 and above studying
courses at level 3 and above, replacing grant funding for this
group as we focus our state investment on those under 24 years
of age, those without basic skills, and those seeking work".[11]
28. The Department for Business, Innovation and
Skills (BIS) has provided an Explanatory Memorandum (EM) and Impact
Assessment (IA) to accompany the Regulations. The EM states that
the loans will be repaid on an income-contingent basis in the
same way as the loans available in Higher Education (HE) from
2012-13; they will be repaid through the tax system, once the
individual has left the course and is earning over £21,000;
repayments will be 9% above this threshold irrespective of the
loan amount; and interest rates will be variable, up to a maximum
of RPI +3% for those earning over £41,000.
29. The loans will cover all FE courses, starting
on or after 1 August 2013, at Level 3 (advanced) and Level 4 (higher),
including A-Levels, Access to HE Diplomas, and Advanced and Higher
Apprenticeship Frameworks. The loans will be available to learners
aged 24 or over at the start of the course. Access to loans will
not be based on prior attainment and there will be no impact on
subsequent access to HE loans where learners have taken out a
loan for 24+ advanced or higher level learning. Learners will
submit their applications for support to the Student Loans Company
and these will be assessed and payment made to the college or
training organisation on behalf of the learner following confirmation
of their attendance.
30. In the EM, BIS states that consultation on
24+ Advanced Learning Loans was undertaken as part of wider public
consultation in August 2011, to which overall there were 217 responses
from representative bodies and individuals. Among key areas raised
by respondents, BIS identifies the following: the need for widespread
and clear information on how loan funding will work; concerns
about the potential impact on certain groups of people; the potential
impact on progression from FE to HE; and keeping bureaucracy to
a minimum, the frequency of payments to providers and overall
budget control.
31. The funding background is set out in accompanying
IA, which states that, as a result of the Spending Review 2010,
the overall FE and Skills budget will be reduced by 25% between
2011-12 and 2014-15, and that Government must ensure that the
remaining investment in this area is targeted so as to maximise
economic impact and value for money. The IA stresses the need
to reassess the balance of contributions to the costs of FE. It
states that "the proposed changes prioritise available grant
funding on young people, those without basic skills, and those
seeking work; and remove grant funding for learners aged 24 and
over, at Level 3 and above", at the same time as income-contingent
loans are made available in order to provide access to the necessary
finance to afford contributions upfront (page 1 of IA: "policy
objectives and intended effects").
32. Noting that the potential impact of the changes
on certain groups was a concern raised by consultation respondents,
the EM explains that BIS has made available a more detailed analysis
of this impact, using research by TNS-BMRB.[12]
BIS has published an Equality Impact Assessment[13]
in which the research findings are set out in some detail. They
show that, given the planned introduction of 24+ Advanced Learning
Loans, younger age groups (23-39) were more likely to say that
they would participate in future learning than the average, but
that those aged 40 and over were less likely to say they would
participate or take a loan (paragraph 49). Moreover, while the
research found that most people felt that they would not be put
off taking out a 24+ Advanced Learning Loan once they understood
the full details, "those aged 40 and over seeking a route
back into the labour market were still negative": only a
minority in this age group thought that they would be likely to
take out a loan (paragraph 51).
33. In the EM, BIS states that, while the research
showed "little evidence of disadvantage" for most groups,
the Government will do more to investigate the impact on those
in the 40 plus age group; we consider it important that this research
is conducted and made generally available. The House may wish
to hear more from the Government about the further research, and
about its views of the desirability of FE participation by those
aged 40 and over.
Other Instruments of Interest
DRAFT VICTIMS OF OVERSEAS TERRORISM
COMPENSATION SCHEME 2012
34. This instrument establishes a new scheme
to compensate British, EU and EEA citizens who reside in the UK,
who are injured, or who have a relative who is killed, in acts
of overseas terrorism covered by the scheme.[14]
During the passage of the Crime and Security Act 2010, Ministers
in the previous Government announced that they would introduce
a new compensation scheme for victims of overseas terrorism, which
would broadly mirror the domestic Criminal Injuries Compensation
Scheme.[15] Since 16
April 2012, the Government has been operating a temporary ex
gratia scheme to make payments to certain victims of overseas
terrorism. The scheme set out in this instrument will replace
the temporary one on a permanent basis as a source of compensation
for victims who have been caught up in acts of terrorism overseas
which they could not have reasonably anticipated. Those who travel
to a country at a time when the published FCO guidance advises
against it may not be eligible for compensation.
DRAFT WELFARE OF WILD ANIMALS IN
TRAVELLING CIRCUSES (ENGLAND) REGULATIONS 2012
35. In a Written Statement (WS) on 1 March 2012[16]
the Minister of State in the Department for Environment, Food
and Rural Affairs (Defra) confirmed the Government's intention
to pursue a ban on ethical grounds on wild animals performing
in circuses. In a further WS on 12 July 2012[17]
the Minister referred to the laying of these draft Regulations
which will introduce a new licensing scheme in the intervening
period before a ban can be brought into effect. The licensing
scheme is intended to protect the welfare of wild animals while
they are in use in travelling circuses.
36. The Regulations provide that any travelling
circus in England that includes wild animals must first obtain
a licence from Defra; that circuses will be required to pay an
administrative fee for a licence, and for the cost of inspections;
that an initial inspection must be carried out the issue of a
licence, which can be suspended or revoked; and that circuses
must adhere to detailed licensing conditions covering all aspects
of welfare in a travelling circus. The Government intends that
the Regulations should be in force from the start of the 2013
touring season.
SCHOOL STAFFING (ENGLAND) (AMENDMENT)
REGULATIONS 2012 (SI 2012/1740)
37. The School Staffing (England) Regulations
2009 ("the 2009 Regulations") contain a range of provisions
relating to the staffing of schools, including, in particular
provisions for the appointment, discipline, suspension and dismissal
of teachers and other staff in maintained schools. This instrument
inserts a new provision into the 2009 Regulations which requires
the governing body of a maintained school to confirm whether or
not a teacher has been the subject of capability procedures within
the last two years, and, if so, provide details, if asked to do
so by the governing body or proprietor of a maintained school
or an Academy School to which that person has applied for a teaching
post. We have exchanged correspondence with the Minister of State
for Education about the Government's decision not to give schools
one full term's notice of the introduction of this new requirement,
and we publish that correspondence in Appendix 1.
LOCAL GOVERNMENT OFFICERS (POLITICAL
RESTRICTIONS) (AMENDMENT) (ENGLAND) REGULATIONS 2012 (SI 2012/1772)
38. These Regulations, laid by the Department
for Communities and Local Government (DCLG), amend Regulations
from 1990[18] to limit
the restrictions which apply to the Deputy Mayor for Policing
and Crime in London. While the post-holder is still prohibited
from standing for election to various legislative bodies or acting
as an election agent, the Regulations remove the following prohibitions:
being an officer or committee member of a political party; canvassing
on behalf of a political party; and speaking or writing with the
intention of furthering the fortunes of a particular political
party.
39. In the Explanatory Memorandum, DCLG states
that, if left unchanged, the 1990 Regulations would restrict the
Deputy Mayor for Policing and Crime's ability to pronounce verbally
or in writing on political matters, which would stop him from
performing his role effectively as one London's leaders, responsible
for safety of the capital and its citizens. We sought additional
information from the Department on the Regulations, and we publish
the information received as Appendix 2.
COSTS IN CRIMINAL CASES (GENERAL)
(AMENDMENT) REGULATIONS 2012 (SI 2012/1804)
40. Currently, where the court awards costs to
a person acquitted in criminal proceedings, it may award whatever
amount it considers "reasonably sufficient to compensate"
that person for any costs properly incurred. Where the person
pays privately for legal representation, the cost to the public
purse is often several times greater than it would have been had
the person received legal aid instead. Attempts by the previous
government to cap payments at the legal aid rate were quashed
by Judicial Review.[19]
The present Government included amendments to the relevant primary
legislation in the Legal Aid, Sentencing and Punishment of Offenders
Act 2012 to enable the Lord Chancellor, with the consent of the
Treasury, to set rates for the calculation of legal costs. These
rates will be set out in a separate document to be published shortly,
that will be available on the Ministry of Justice website. New
regulation 7(6) in this instrument requires the court, when calculating
the amount of an award in respect of legal costs to an individual
to do so in accordance with the rates set by the Lord Chancellor,
whether or not that results in an amount the court considers reasonably
sufficient to compensate the individual. The Committee also noted
with concern that the newly inserted regulation 7(3) states that
"where the appropriate authority has any doubts as to whether
the costs were reasonably incurred or were reasonable in amount
shall be resolved against the applicant" - as this does not
seem to be an objective test and has the potential to lead to
unfairness. The Costs in the Court Martial Appeal Court Regulations
2012 (SI 2012/1805) set out for the first time similar procedures
governing payments out of public funds in respect of costs incurred
in the Court Martial Appeal Court.
EMPLOYERS' DUTIES (IMPLEMENTATION)
(AMENDMENT) REGULATIONS 2012 (SI 2012/1813)
41. The Pensions Act 2008 places a duty on employers
to automatically enrol qualifying workers into a workplace pension.
The Employers' Duties (Implementation) Regulations 2010 are part
of a package of instruments which underpin those reforms and provide
the arrangements for employers to be brought incrementally into
the reforms according to their size (determined by the number
of people in their Pay as you Earn scheme). Under the existing
instrument, employers with fewer than 50 workers would be brought
into the reforms from August 2014 onwards. In light of the current
economic circumstances this amending instrument gives smaller
employers more time to adjust to the reforms by amending the dates
in the table at regulation 4 of the 2010 Regulations so that employers
with fewer than 50 workers will not be brought into the reforms
until June 2015 at the earliest. Whilst some respondents to the
consultation exercise recognised the benefits of the longer timetable
for small businesses, about one third of respondents thought that
delay would be detrimental to individuals' pension savings.
SOCIAL FUND MATERNITY GRANT AMENDMENT
REGULATIONS 2012 (SI 2012/1814)
42. In its 20th report of Session 2010-12 the
Committee commented on the original Maternity Grant Regulations[20]
in robust terms drawing attention to a number of inadequacies
in the policy's formulation and explanation. Those Regulations
restricted the Sure Start Maternity Grant of £500, which
had previously been available to women on certain income-related
benefits to assist with the costs of each new child, so that a
Grant could only be paid where the baby would be the sole child
in the household aged under16. Amongst a range of other issues,
we drew attention to the anomaly that if the first pregnancy resulted
in a multiple birth the mother could receive a Grant for each
of the babies but if there was an older child in the family already
no grant at all would be payable for a later multiple birth. Following
further representations from external organisations the current
Regulations address that anomaly by allowing the payment of a
maternity grant for the additional baby in multiple births even
where there is an older child in the family, that is, one payment
if there are twins, two payments if there are triplets. We welcome
this as a more logical approach to the situation.
PUPIL REFERRAL UNITS (MISCELLANEOUS
AMENDMENTS) (ENGLAND) REGULATIONS 2012 (SI 2012/1825)
43. These Regulations implement several of the
recommendations for reform of the Alternative Provision (AP) sector
contained in a report by Charlie Taylor, the Government's Expert
Adviser on behaviour, published in March 2012. The Regulations
give the Secretary of State the power to direct a local authority
to close a pupil referral unit (PRU) requiring significant improvement;
and constitute the management committee of a PRU so that it consists
of interim executive members if the PRU requires significant improvement
or special measures, or where the Secretary of State considers
it to be underperforming. One of the other changes made by these
amending Regulations is to ensure that schools are fully represented
on PRU management committees We have exchanged correspondence
with the Minister of State for Education about the Government's
decision not to give schools one full term's notice of the introduction
of this new provision, and we publish that correspondence in Appendix
3.
ACADEMIES (LAND TRANSFER SCHEMES)
REGULATIONS 2012 (SI 2012/1829)
44. Under the Academies Act 2010, the Secretary
of State for Education has the power to make a scheme to transfer,
to a person concerned with running an Academy, local authority
land that a local authority has identified as a possible site
for a new school, or existing or former school land that is no
longer needed for the school. These Regulations, laid by the Department
for Education (DfE), set out what information a local authority
must provide, and what steps it must take, where such a transfer
scheme is made. In the Explanatory Memorandum (EM), DfE states
that, in most cases, it is anticipated that local authorities
will transfer the land to the Academy in a timely manner; and
that the policy objective behind these Regulations is to ensure
that the existing land of the school can be properly identified
when transferred to the successor Academy, if the local authority
concerned fails to co-operate over providing the necessary information.
45. In the EM, DfE also states that the impact
of the Regulations on the public sector is that land currently
held by individual local authorities may be transferred to those
concerned with the running of an Academy; and that the land would
remain public land, which the Secretary of State may determine
should return to the authority when it is no longer needed for
the Academy. We sought additional information from the Department
on this aspect of the Regulations, and we publish the information
received in Appendix 4.
Instruments not drawn
to the special attention of the house
The Committee has considered the instruments set
out below and has determined that the special attention of the
House need not be drawn to them.
Draft Instruments subject to affirmative approval
Forestry Commissioners (Climate Change Functions)
(Scotland) Order 2012 (Consequential Modifications) Order 2012
Victims of Overseas Terrorism Compensation Scheme
2012
Draft Instrument subject to annulment
Slough (Electoral Changes) Order 2012
Instruments subject to annulment
SI 2012/1726 Criminal Procedure Rules 2012
SI 2012/1734 Charities (Exception from Registration)
(Amendment) Regulations 2012
SI 2012/1736 Education (School Teachers) (Qualifications
and Specified Work) (Miscellaneous Amendments) (England) Regulations
2012
SI 2012/1740 School Staffing (England) (Amendment)
Regulations 2012
SI 2012/1743 Merchant Shipping (Accident Reporting
and Investigation) Regulations 2012
SI 2012/1769 Serious Organised Crime and Police
Act 2005 (Designated Sites under Section 128) (Amendment) Order
2012
SI 2012/1770 International Recovery of Maintenance
(Hague Convention 2007) (Rules of Court) Regulations 2012
SI 2012/1772 Local Government Officers (Political
Restrictions) (Amendment) (England) Regulations 2012
SI 2012/1773 Protections of Wrecks (Designation)
(England) Order 2012
SI 2012/1791 Payment Services Regulations 2012
SI 2012/1796 Armed Forces (Enhanced Learning
Credit Scheme and Further and Higher Education Commitment Scheme)
Order 2012
SI 2012/1803 Whole of Government Accounts (Designation
of Bodies) Order 2012
SI 2012/1804 Costs in Criminal Cases (General)
(Amendment) Regulations 2012
SI 2012/1805 Costs in the Court Martial Appeal
Court Regulations 2012
SI 2012/1807 Protection of Wrecks (Designation)
(England) (No. 2) Order 2012
SI 2012/1809 Treaty of Lisbon (Changes in Terminology
or Numbering) Order 2012
SI 2012/1811 Occupational Pension Schemes (Disclosure
of Information) (Amendment) Regulations 2012
SI 2012/1813 Employers' Duties (Implementation)
(Amendment) Regulations 2012
SI 2012/1814 Social Fund Maternity Grant Amendment
Regulations 2012
SI 2012/1816 Indication of Prices (Beds) (Revocation)
Order 2012
SI 2012/1817 Occupational and Personal Pension
Schemes (Prescribed Bodies) Regulations 2012
SI 2012/1821 Housing (Right to Manage) (England)
Regulations 2012
SI 2012/1825 Pupil Referral Units (Miscellaneous
Amendments) (England) Regulations 2012
SI 2012/1829 Academies (Land Transfer Schemes)
Regulations 2012
SI 2012/1833 Criminal Justice Act 1988 (Reviews
of Sentencing) (Amendment) Order 2012
SI 2012/1848 Customs Disclosure of Information
and Miscellaneous Amendments Regulations 2012
SI 2012/1851 Gambling (Licence Fees) (Miscellaneous
Amendments) Regulations 2012
SI 2012/1868 National Insurance Contributions
(Application of Part 7 of the Finance Act 2004) Regulations 2012
SI 2012/1870 Child Trust Funds (Amendment) Regulations
2012
1 R (on the application of Alvi) (Respondent) v
Secretary of State for the Home Department
(Appellant) [2012] UKSC 33 Supreme Court
18 July 2012. Back
2
See for example information from UKBA on this point in Appendix
1 of our 4th Report of the Merits of Statutory Instruments Committee
of Session 2010-12, HL Paper 17 Back
3
www.parliament.uk/seclegpublications Back
4
Merits of Statutory Instruments Committee, 4th Report Session
2010-12 HL Paper 17 Back
5
Merits of Statutory Instruments Committee, 6th Report Session
2010-12 HL Paper 28 Back
6
Letter dated 22 July 2010 in Appendix 4 of 7th report of 2010-12
(HL Paper 33) relating to a previous Statement of Immigration
Rules HC 382 of 2010 Back
7
SSHD v Pankina & others [201 OJ EWCA Civ 719] Back
8
Secondary Legislation Scrutiny Committee, 6th Report HL Paper
26 Back
9 www.homeoffice.gov.uk/publications/science-research-statistics/researchstatistics/immigration-asylum-research/occ104 Back
10
HC Deb 16 November 2010 col 33WS. Back
11 HC
Deb 12 July 2012 cols 35-36WS. Back
12
On its website, TNS-BMRB describes itself as "a leading social
research agency for UK and international policymakers". Back
13
See Equality Impact Assessment on the website. Back
14
This is an EU requirement and other Member States (Austria, Denmark,
France, Italy, Luxembourg and Portugal), plus Norway and Switzerland,
have similar schemes. Back
15
HC Deb 18 January 2010, col 24 Back
16
HC Deb 1 March 2012, col 41WS Back
17
HC Deb 12 July 2012, col 43WS Back
18
The Local Government (Political Restrictions) Regulations 1990
(SI 1990/851). Back
19
See R (Law Society of England & Wales) v The Lord Chancellor
[2010] EWHC 1406 (Admin) Back
20
Social Fund Maternity Grant Amendment Regulations 2011 (SI
2011/100) see Merits of Statutory Instruments Committee 20th Report
session 2010-12 (HL Paper 95) Back
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