Draft Infrastructure Planning (Radioactive Waste Geological Disposal Facilities) Order 2015 - Secondary Legislation Scrutiny Committee Contents


Twenty Fourth Report


Instrument drawn to the Special Attention of the House

The Committee has considered the following instrument and has determined that the special attention of the House should be drawn to it on the ground specified.

A.  Draft Infrastructure Planning (Radioactive Waste Geological Disposal Facilities) Order 2015

Date laid: 12 January 2015

Parliamentary Procedure: affirmative

Summary: This Order will bring certain development relating to geological disposal facilities (GDFs) for radioactive waste, and the deep borehole investigations necessary to determine the suitability of potential sites, within the nationally significant infrastructure project (NSIP) regime in the Planning Act 2008 ("the 2008 Act"). Where development falls within the NSIP regime, developers are required to apply for development consent from the Secretary of State under the 2008 Act. The Department for Energy and Climate Change carried out a consultation about this in autumn 2013. In the Explanatory Memorandum (EM) to the Order, the Department says that a minority of respondents disagreed with the proposed approach. In fact, no more than 49% of respondents either agreed or partly agreed with the approach, and this is also a minority. The EM would have given a more accurate picture of the results of consultation if it had made this clear.

We draw this Order to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.

1.  The Department for Energy and Climate Change (DECC) has laid this draft Order with an Explanatory Memorandum (EM). The Order will bring certain development relating to geological disposal facilities (GDFs) for radioactive waste, and the deep borehole investigations necessary to determine the suitability of potential sites, within the nationally significant infrastructure project (NSIP) regime in the Planning Act 2008 ("the 2008 Act"). Where development falls within the NSIP regime, developers are required to apply for development consent from the Secretary of State under the 2008 Act.

2.  There is a considerable pre-history to the policy intention implemented by the Order. In the EM, DECC states that in 2001 the UK Government and devolved administrations initiated the Managing Radioactive Waste Safely (MRWS) programme, with the aim of finding a practical long-term solution for the UK's higher activity radioactive waste. In 2006, the independent Committee on Radioactive Waste Management (CoRWM) recommended that geological disposal, coupled with safe and secure interim storage, was the best available option for managing the UK's existing higher activity radioactive waste. The Government accepted CoRWM's recommendations.

3.  DECC says that public involvement in the GDF programme since CoRWM's report has included the national "Managing Radioactive Waste Safely" (MRWS) siting process (set out in a White Paper of 2008) which ran from 2008 to 2013. The process was based on the willingness of local communities to participate in the process, but by February 2013 there were no longer any communities actively involved in this siting process. It was followed by a 2013 consultation, entitled "Review of the Siting Process for a Geological Disposal Facility", which ran for 12 weeks from September to December 2013. These proposals included the preliminary view that GDFs, and associated intrusive borehole investigations for the purposes of site characterisation, should be brought within the definition of NSIPs in the 2008 Act.

4.  In the EM, DECC says that there were 719 responses, and that a minority disagreed with the proposed approach. Key concerns were that county councils might be excluded from having a participative role in the process, and that there could be a conflict of interest if the Secretary of State responsible for delivering a GDF was also responsible for making the final decision on whether to grant development consent. DECC states, however, that the national infrastructure planning process includes clear provisions for the involvement of local authorities and a decision-making process that respects the differing roles played by the Secretary of State as both policy maker and "quasi-judicial decision-maker". A Government summary of consultation responses was published in July 2014.[1]

5.  We sought further information from DECC, and are publishing the Department's responses at Appendix 1. Given the statement in the EM that by February 2013 no communities were actively involved in the process of considering sites for a GDF, we asked what reason the Government had to expect that there would at some stage be public support to allow such a facility to be developed. We note DECC's statement that, since the facility would be a multi-billion pound development, and any community hosting a GDF would receive significant economic benefits, high-quality employment and infrastructure improvements, the Government believe that this would be an attractive investment opportunity of interest to a number of communities.

6.  We also asked for more information about the responses to the consultation held at the end of 2013. The Department has said that there were 237 responses on this issue. 70 (30%) were categorised as having "agreed" (if their responses supported the proposal without qualification); 46 responses (19%) were deemed to have "partly agreed" (if their responses supported the proposal, but with some caveat or qualification); and 82 responses (35%) were deemed to have "disagreed" (if their response clearly opposed it). DECC says that, of the remaining respondents, 2 (<1%) were deemed to be neutral (as Welsh stakeholders, their responses recognised that the proposal was concerned with land-use planning for a GDF in England only) and 37 (16%) were deemed to be unclear (as they did not address the question or focused on questions that were outside the scope of the consultation).

7.  DECC has explained the basis on which, in the light of these figures, the consultation summary therefore reported that "about half of the respondents to this question agreed or partly agreed with the proposed approach to land use planning for a GDF in England" and that "a minority disagreed with the proposals": the latter statement was included in the EM. We would point out that, even by combining the percentage of respondents who "agreed" with that of respondents who "partly agreed", no more than 49% of respondents agreed or partly agreed, and that this is also a minority of respondents. The EM would have given a more accurate picture of the results of consultation if it had made clear this relatively modest level of support for the proposal, as well as referring to minority disagreement.

Instruments of Interest

Draft Anti-social Behaviour (Authorised Persons) Order 2015

8.  The Home Office has laid this Order under the Anti-social Behaviour, Crime and Policing Act 2014 ("the 2014 Act"), with an Explanatory Memorandum (EM). The 2014 Act allows a community protection notice (CPN) to be issued to an individual (over 16 years old) or body where their conduct is having a detrimental effect on the quality of life of those in the locality and the conduct is unreasonable (section 43). Failure to comply with a CPN, without reasonable excuse, is a criminal offence subject to a fixed penalty notice or prosecution (where a person found guilty on summary conviction may receive a fine of up to level 4 or up to £20,000 if a business or organisation). Given that the power is backed by a criminal offence, the Delegated Powers and Regulatory Reform Committee described it as "a very significant one".[2]

9.  A CPN (or, in the event of non-compliance with a CPN, a fixed penalty notice) can be issued by a constable, a relevant local authority or a person designated by the relevant local authority; and only a person specified in an order made by the Secretary of State may be designated by the relevant local authority in this way (section 53). The purpose of this Order is to enable local authorities to give housing providers the power to issue a CPN. "Housing providers" are defined by the 2014 Act (section 20(1)) as a housing trust, a housing action trust, a non-profit private provider of social housing, a landlord under a secure tenancy and, in Wales, a Welsh body registered as a social landlord.

10.  We noted that reference was made to housing providers being designated to issue CPNs in guidance on the 2014 Act published in July 2014 (see paragraph 7.3 of the EM). We noted also the comments of Lord Taylor of Holbeach, on behalf of the Government, during the passage of the Bill that became the 2014 Act, that housing providers were being considered for designation under the 2014 Act.[3]

Draft Emissions Performance Standard Regulations 2015

11.  The Department for Energy and Climate Change (DECC) has laid these Regulations with an Explanatory Memorandum (EM) and impact assessment (IA). In the EM laid at the same time as the instrument, DECC states that the Regulations establish an Emissions Performance Standard (EPS) that places a limit on the carbon dioxide emissions produced by new fossil-fuel generation plants. It adds that the EPS acts as a regulatory backstop to the National Planning policy, which requires new coal-fired power station to be equipped with Carbon Capture and Storage (CCS), and so ensures that not only are new coal plant built with CCS but operated in accordance with emissions requirements.

12.  We noted that, in the EM, DECC also states that the EPS applies to all new fossil fuel electricity generation plants that are above 50MWe and receive development consent after 18 February 2014, which it specifies as the date at which the EPS came into force. In response to our query, DECC has confirmed that the EPS was in fact introduced in the Energy Act 2013 (though without a monitoring and enforcement regime). The Department is revising the EM to make this clear.

13.  We also noted that, in the IA (paragraph 29), DECC states that "the EPS primary legislation is not expected to have any impact on investment decisions or plant running hours, both for coal and gas plants. For coal, this is because no new investment in unabated coal plants is expected due to market conditions for coal-fired generation. For gas, the level of annual emissions will be lower than the limit set by the EPS." In response to our query about the actual impact of the EPS, DECC has confirmed its view that the Standard sends a strong signal to the market that new coal plants without CCS are not acceptable. We are publishing the full response from DECC as Appendix 2.

Draft Freedom of Information (Designation as Public Authorities) Order 2015

14.  The Ministry of Justice (MoJ) has laid this Order under the Freedom of Information Act 2000 ("the FOI Act"), with an Explanatory Memorandum (EM). The FOI Act applies to public authorities (as defined in section 3 of the FOI Act) and also to a person designated by the Secretary of State (by Order) as a public authority on the basis that that person appears to him to exercise functions of a public nature. The purpose of this Order is to designate Network Rail Limited, Network Rail Holdco Limited and Network Rail Infrastructure as public authorities. The decision to extend the FOI Act was announced in the Network Rail Framework Agreement (September 2014), drawn up by the Department for Transport with Network Rail, following the reclassification of Network Rail to the public sector by the Office for National Statistics.

15.  The EM (at paragraph 7.4) notes that there have been a number of calls to extend the FOI Act to Network Rail, reflecting the "significant public interest in information about safety on the network, and about how taxpayers' money is spent". It also notes (at paragraph 8.2) that Network Rail has responded to its designation under the Act "positively" and has identified a number of functions which it believes may be of a public nature.

16.  The Secretary of State has previously used this power to extend the reach of the FOI Act to include the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service in relation to the functions of a public nature which they perform.



Draft Road Safety Act 2006 (Consequential Amendments) Order 2015

17.  This Order is laid under the Road Safety Act 2006 ("the 2006 Act"), along with an Explanatory Memorandum (EM) and an Impact Assessment. The Order amends primary and secondary legislation in consequence of the commencement of section 10 of, and Schedule 3, to the 2006 Act. Those provisions provide for the abolition of the driving licence counterpart in Great Britain. (Separate provision applies to Northern Ireland where the counterpart is not being abolished.) The information contained in the counterpart will be placed on an individual's electronic driving record.

18.  According to the EM (at paragraph 7.1), the existence of the counterpart has been a recurring item identified within the transport theme of the Government's Red Tape Challenge and, as a result, in December 2011, the Government committed to abolishing it. The policy is based on a consultation dating back to 2004 which found 82% of respondents in favour of abolition. At that time, however, according to the Impact Assessment, the required electronic enquiry services, which would allow access to the counterpart information by secure electronic links, were not available.

National Health Service (Mandate Requirements) Regulations 2014 (SI 2014/3487)

19.  These Regulations have been laid by the Department of Health (DH) under the National Health Service Act 2006 ("the 2006 Act"), along with an Explanatory Memorandum (EM). Section 13A of the 2006 Act (inserted by section 23 of the Health and Social Care Act 2012) requires the Secretary of State to publish and lay before Parliament a mandate to the National Health Service Commissioning Board (known as NHS England) before the start of each financial year. The mandate has to include "objectives" that the Secretary of State considers NHS England should seek to achieve and any "requirements" the Secretary of State considers necessary to impose. "Requirements" only have effect if regulations so provide. The mandate for 2015-16 is the first to include "requirements" as well as "objectives".

20.  It is the purpose of these Regulations to bring into effect the "requirements" set out in paragraphs 2.11 and 2.12 of the 2015-16 mandate. The effect of these requirements (see paragraph 7.2 of the EM) is intended to support the "objective" for more integrated health and social care. They include: (1) that NHS England must ring-fence £3.46 billion within its allocation to Clinical Commissioning Groups to establish the Better Care Fund (BCF), to be used for the purposes of integrated care; (2) that NHS England must consult ministers from DH and the Department for Communities and Local Government (DCLG) before approving local plans in relation to the BCF and (3) must also consult DH and DCLG before exercising powers in relation to the failure to meet specified conditions attached to the BCF.


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

    Anti-social Behaviour (Authorised Persons) Order 2015

    Childcare Payments (Eligibility) Regulations 2015

    Community Right to Challenge (Business Improvement Districts) Regulations 2015

    Companies Act 2006 (Amendment of Part 17) Regulations 2015

    Companies Act 2006 (Amendment of Part 18) Regulations 2015

    Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 2015

    Emissions Performance Standard Regulations 2015

    Extradition Act 2003 (Amendment to Designations and Appeals) Order 2015

    Freedom of Information (Designation as Public Authorities) Order 2015

    Guardian's Allowance Up-rating Order 2015

    Guardian's Allowance Up-rating (Northern Ireland) Order 2015

    Insolvency Act 1986 (Amendment) Order 2015

    Local Government (Transparency) (Descriptions of Information) (England) Order 2015

    Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2015

    Non-Domestic Rating (Levy and Safety Net) (Amendment) Regulations 2015

    Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) (Amendment) Regulations 2015

    Police and Crime Commissioner Elections Order 2015

    Protected Disclosures (Extension of Meaning of Worker) Order 2015

    Representation of the People (Combination of Polls) (England and Wales) (Amendment) Regulations 2015

    Road Safety Act 2006 (Consequential Amendments) Order 2015

    Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2015

    Tax Credits Up-rating Regulations 2015

    Warm House Discount (Miscellaneous Amendments) Regulations 2015

Draft instruments subject to annulment

    Code of Practice no.14 on Governance and administration of public service pension schemes

Instruments subject to annulment

    SI 2014/3487  National Health Service (Mandate Requirements) Regulations 2014

    SI 2015/6  Housing Benefit and Housing Benefit (Persons who have attained the qualifying age for state pension credit) (Income from earnings) (Amendment) Regulations 2015

    SI 2015/8  M6 Motorway (Junctions 10a to 13)(Variable Speed Limits) Regulations 2015

    SI 2015/13  Criminal Procedure (Amendment) Rules 2015

    SI 2015/15  Motor Vehicles (Driving Licences) (Amendment) Regulations 2015

    SI 2015/16  Enterprise and Regulatory Reform Act 2013 (Amendment) (Gas and Electricity Appeals) Regulations 2015

    SI 2015/18  Local Audit (Health Service Bodies Auditor Panel and Independence) Regulations 2015

    SI 2015/19  Capital Requirements (Capital Buffers and Macro-prudential Measures) (Amendment) Regulations 2015

    SI 2015/20  Neighbourhood Planning (General) (Amendment) Regulations 2015

    SI 2015/26  Insolvency Proceedings (Monetary Limits) (Amendment) Order 2015


1   See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/332886/Government_response_to_GDF_siting_consultation_FINAL.pdf Back

2   DPRRC, 12th Report, Session 2013-14, HL Paper 72, para 16. Back

3   HL Debs, 25 Nov 2013, col 1193. Back


 
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