Electricity Market Reform (General) Regulations 2014 and 8 related instruments; Police and Crime Commissioner Elections (Amendment) (No.2) Order 2014 - Secondary Legislation Scrutiny Committee Contents

Article II.  Instruments of Interest


31.  Section 4 of the Road Traffic Act 1988 ("the 1988 Act") makes it a criminal offence to drive when under the influence of drink or drugs and section 5 of the 1988 Act makes it an offence to drive or be in charge of a motor vehicle with a concentration of alcohol in the body above a prescribed limit. The Crime and Courts Act 2013 introduced a similar approach for drugs by inserting a new section 5A into the 1988 Act: this instrument specifies limits for sixteen drugs for the purposes of section 5A. There is a "zero tolerance" approach for those drugs most associated with illegal use, a further eight drugs, which have medical uses, have limits identified by a Department for Transport panel of experts in line with a road safety, risk-based approach. Medicine manufacturers and health professionals will be providing guidance for patients who are prescribed medicines which contain the specified drugs so that they are made aware of the new legislation. Consideration of the appropriate limit for amphetamines is still under discussion.


32.  The Department for Culture, Media and Sport (DCMS) has laid these draft Regulations with an Explanatory Memorandum (EM) and impact assessment. In the EM, DCMS says that the aim of the Regulations is to ensure that employers found by an employment tribunal to have committed an equal pay breach are required to undertake a systematic evaluation of their pay and reward systems, to ensure that further breaches do not occur or that existing breaches do not continue. The audit will need to identify any differences in pay (including non-contractual pay) between men and women doing equal work in the same employment, provide reasons for any differences and set out an action plan for eliminating those differences, where they cannot be explained or justified otherwise than by reference to gender.

33.  DCMS says that it carried out two consultation exercises related to these proposals. The first consultation ran for 12 weeks from May to July 2011: there were 116 responses. DCMS says that, while there was general support for equal pay audits to be required where there had been a clear breach of equal pay law, views differed about the precise nature of the equal pay audit requirements. The Government response was published in June 2012.[17] A second consultation, on the detail of the proposal on equal pay audits, was held for eight weeks from May to July 2013; there were 43 responses. DCMS has finalised the Regulations in the light of that consultation; the Government response was published in June 2014.[18]


34.  The Department for Communities and Local Government (DCLG) has laid these draft Regulations with an Explanatory Memorandum. DCLG explains that, under the Local Audit and Accountability Act 2014, local public bodies must appoint their own auditors, and they must also appoint auditor panels, with a majority of independent members, to advise on the selection and appointment of an auditor. These Regulations amend the definition of an independent member. They add to the existing definition of persons who are not independent: persons who have commercial links with the relevant authority to be audited, and persons who have links with a prospective or appointed audit firm; persons who are, or have been in the last five years, members of an entity connected with the authority to be audited, where the connected entity is also a relevant authority; and, for the Greater London Authority (GLA), persons who are, or have been in the last five years members or officers of a functional body of the GLA.

35.  DCLG states that consultation on a draft of these Regulations was held over four weeks to 20 December 2013. A summary of consultation responses was published in March 2014.[19] In the EM, the Department refers briefly to points raised by respondents which the Government have not accepted. We sought further information from DCLG about why the consultation period was so short, and whether any respondents criticised the timing. We are publishing that further information as Appendix 3. We note that there were 130 responses to the consultation. While the concern about the timing voiced by one professional body appears not to have affected respondents generally, we would repeat our previously expressed view that six weeks should normally be the minimum duration for a consultation process.


36.  The Department for Communities and Local Government (DCLG) has laid this Order with an Explanatory Memorandum (EM). The Order expands the descriptions of information about which local authorities may be required to publish information more frequently than annually, to cover information about any expenditure incurred by authorities, and information about any legally enforceable agreement entered into by authorities and any invitations to tender for such agreements. DCLG proposes that these areas of information should be published quarterly.

37.  The Department says that it has had a regular dialogue with local government over the last three years about transparency and the publication of key datasets, and that there have been three consultations: the first from 7 February to 14 March 2011, about which DCLG published its response and a summary of the 229 responses six months later, in September 2011; the second about updating the Local Government Transparency Code and making it mandatory through regulations, from 25 October to 20 December 2012 - DCLG published its response 12 months later, in December 2013;[20] and the third, over five weeks to 17 January 2014, about a draft revised Code to ensure that it properly gave effect to the policy set out in the previous Government response. We sought further information from the Department about consultation responses, and we are publishing that information at Appendix 4.

38.  In the EM, DCLG states that "transparency is the foundation of local accountability…The availability of data could also open new markets for running services and managing public assets to local businesses, the voluntary and community sectors and social enterprises". Against this declaration, it is interesting to note that the Government response of December 2013 shows that there were 219 respondents, of whom only three were business respondents, and only six were from the voluntary and community sectors. These results are open to different interpretations: but they beg the question of whether the Department is doing enough to involve all interested parties in its consultation processes or, if it is, whether the business and voluntary sectors share the Department's view of its proposals.

39.  In the EM, DCLG states that some respondents to the most recent consultation said that it was unnecessary to extend the scope of the Code and make it a legal requirement for local authorities to publish certain data. We take this to refer to the five-week consultation process to January 2014: the Department has not published a summary of responses to that consultation since, as is stated in the information at Appendix 4, it took the view "that it would be more helpful to local authorities to publish a Frequently Asked Questions document".

40.  As noted above, however, in December 2013 DCLG did publish the Government response to the consultation carried out in autumn 2012. At paragraph 58 of that document, the Department states that "91 respondents were of the view that making regulations to require local authorities to publish information contained in the Code was unnecessary"; and that only six respondents supported the making of regulations. These details are not given in the EM. We consider that the Explanatory Memorandum fails to give an accurate account of the balance of opinion in responses to all the consultation exercises, and we look to the Department to ensure that, in summarising information, its EMs do not omit important details.


41.  In amending earlier legislation,[21] the Growth and Infrastructure Act 2013 has made it possible for a planning application for major development to be made directly to the Secretary of State where the local planning authority (LPA) has been designated by him. Before such a designation can be made, criteria must be published by the Secretary of State, against which he will consider whether a LPA is "not adequately performing [its] function of determining applications".[22] The criteria must be contained in a document which is laid before Parliament for a period of 40 days (and which may come into effect only if neither House has voted against the document during this period).

42.  The first criteria document was laid in June 2013 and came into effect 40 days later. It set out two separate measures against which LPAs' performance would be assessed: a "speed" measure, providing that the threshold for designation was set at 30% or fewer of an LPA's decisions made within the statutory determination period; and a "quality" measure, setting as a threshold that 20% or more of an LPA's decisions on applications for major development had been overturned at appeal. We drew the first criteria document to the House's attention in our 5th Report of Session 2013-14 (HL Paper 28). Since those criteria came into force, the Secretary of State has designated Blaby District Council (in November 2013), and Trafford Council (in May 2014).

43.  The 2014 revision of the criteria document, which the Department for Communities and Local Government (DCLG) has now laid before Parliament, makes three amendments to the existing criteria: setting a higher threshold for the speed of decisions, raising it from 30% to 40% of decisions made on time; introducing an exemption for authorities that have decided no more than two applications for major development over the two-year assessment period; and making explicit the tests against which claims of exceptional circumstances will be judged before designations are finalised.

44.  DCLG carried out consultation on the proposed changes over six weeks to 4 May 2014, and published a summary of the consultation in June.[23] In the EM, the Department says that 145 responses were received: 66% of these were from local authorities, 13% from developers, and 11% from representative organisations; fewer than 10% of replies were from individuals. DCLG states that responses showed broad support for increasing the "speed of decisions" threshold to 40%: some 64% of respondents agreed or gave qualified support; a further 14% were neither in favour nor against.

45.  We have received additional information about these responses from DCLG which we are publishing at Appendix 4. This clarifies that, of the overall total of 145 responses, 69, or just under 50%, gave unqualified support to the increase, while 24 (some 16%) gave qualified support. 96 of the 145 respondents were local authority respondents: of these, 37 (39% of local authority respondents) gave unqualified support to the increase and 20 (21%) gave qualified support.

46.  In the EM, DCLG says that, where respondents' support was qualified, it was often contingent on a continued ability to use extension of time agreements or Planning Performance Agreements where appropriate. The additional information at Appendix 5 sheds more light on these points.


47.  The Marriage (Same Sex Couples) Act 2013, which made marriage of same sex couples lawful in England and Wales, was mainly brought into force on 13 March 2014. The Act also makes provision for the conversion of an existing civil partnership into marriage and for married couples to remain married if one party undergoes gender transition. These provisions are now being brought into force by a second series of instruments. This instrument sets out the procedures to be followed by couples who wish to convert their civil partnership into a marriage. Another affirmative order, the Marriage (Same Sex Couples)Act 2013 (Consequential and Contrary Provisions and Scotland) (No. 2) Order makes some of the consequential changes necessary in other legislation. That Order also removes a temporary provision that was needed in relation to Scotland as the Marriage and Civil Partnership (Scotland) Act 2014 received Royal Assent on 12 March 2014. At a later date further statutory instruments will be laid which are subject to the negative procedure and which will make provision for consular and armed forces conversions to take place overseas; for the registration of marriages and civil partnerships in which one or both parties have changed gender; and for amendments to secondary legislation. The intention it to bring this package of legislation into effect on 10 December 2014.


48.  To be entitled to a Jobseeker's Allowance claimants must (amongst other things) be 'available for' and 'actively seeking" employment. Regulation 14(2)(b) of the Jobseeker's Allowance Regulations 1996 (SI 1996/207) allows an individual affected by a domestic emergency to be treated as available for employment for a maximum of one week per emergency, not more than four times in a year. Following discussions with groups representing the homeless and with voluntary organisations, Department for Work and Pensions concluded that this provision allowed insufficient time for a recently homeless person to address their situation. Consequently, these Regulations give Work Coaches the scope to allow recently homeless claimants to continue to receive benefit while they focus on finding accommodation. Homeless claimants may have difficulty in obtaining or keeping a job if they to do not have ready access to washing facilities, clean clothes or a reliable postal or other contact address. The intention is not to create an indefinite relaxation of the rules and the application of the provision is conditional on the claimant taking steps to find living accommodation. DWP state that clear guidance will be provided to help Work Coaches exercise this discretion consistently and in line with the policy intention.


49.  The Department for Energy and Climate Change (DECC) has laid these Regulations, with an Explanatory Memorandum (EM) and impact assessment (IA).

50.  In the EM, DECC states that the Petroleum Act 1998 gives the Secretary of State the power to award exclusive licences to search, bore for and get petroleum; and that it also places a duty on the Secretary of State to make regulations prescribing the model clauses which are to be included in petroleum licences. DECC says that the last set of model clauses for landward petroleum exploration and development licences were set out in regulations made in 2004, and now need to be updated. All such licences contain certain provisions that ensure that the exclusivity which they incorporate is not retained without exploitation of the petroleum covered: in particular, by requiring the surrender of certain proportions of acreage at specified deadlines.

51.  DECC explains that the existing retention provisions are inflexible; while they have worked well for licensees working conventional oil and gas fields, they accommodate unconventional reserves less well. In the IA, DECC says that the new set of model clauses should introduce greater flexibility into the provisions governing the retention of acreage, allowing greater areas than before to be retained. The Department says that this will enable the level of retention that shale gas companies say they need, but that, because it will be based on agreement between DECC and the licensee, it will not create a risk of land-banking.

52.  The Department intends to bring the Regulations into effect a fortnight after laying them before Parliament, breaching the 21-day rule. In the EM, DECC "sends its unreserved apologies" for this breach which it attributes to delays within Government. We find it regrettable that the period available for Parliamentary scrutiny has been curtailed, particularly when the cause of this curtailment appears to have been purely administrative and thus avoidable through better planning by the Department.

53.  DECC did not conduct a public consultation in relation to these changes. In the EM, it says that on 25 November 2013 it consulted existing licensees and UK Onshore Oil and Gas (UKOOG: the onshore trade association); and that UKOOG replied on 17 January 2014 "with a warm welcome". The Department states that this was an appropriate level of consultation because the changes proposed here are of interest only to industry and other prospective licensees; and that the wider community has been given ample opportunity to feed its views to DECC in a full public consultation that forms part of DECC's Strategic Environmental Assessment (SEA) ahead of the launch of a 14th Landward Licensing Round. It may well be the case that other parts of civil society have the opportunity to respond to the SEA consultation. However, we question the Department's assertion that the changes made by these Regulations, which are intended improve the compatibility of licences with shale oil, shale gas and coalbed methane, are of no interest to the wider community, given the level of controversy that surrounds "fracking" technology. Bringing the proposed changes to the attention of the wider community and inviting responses would have demonstrated whether this assertion was well-founded or not.


54.  All four of these Regulations are consolidations and simplifications of existing legislation in some cases repealing legislation that is over a century old. They are the result of extensive consultation with industry and others to find where clarifications and improvements are needed while maintaining appropriate safety standards. The Committee commends the Health and Safety Executive for its efforts and regards these instruments as examples of best practice.

17   See:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/85570/government-response.pdf Back

18   See:



19   See:

https://www.gov.uk/government/consultations/future-of-local-audit-consultation-on-secondary-legislation Back

20   See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/266815/Transparency_Code_Government_Response.pdf


21   The Town and Country Planning Act 1990 ("the 1990 Act"). Back

22   Under Part 3 of the 1990 Act. Back

23   See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/319831/Planning_performance_-_Government_response_to_consultation.pdf Back

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