Article II. Instruments of Interest
(A) DRAFT DRUG DRIVING (SPECIFIED LIMITS) (ENGLAND
AND WALES) REGULATIONS 2014
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.
(B) DRAFT EQUALITY ACT 2010 (EQUAL PAY AUDITS)
REGULATIONS 2014
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]
(C) DRAFT LOCAL AUDIT (AUDITOR PANEL INDEPENDENCE)
REGULATIONS 2014
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.
(D) DRAFT LOCAL GOVERNMENT (TRANSPARENCY) (DESCRIPTIONS
OF INFORMATION) (ENGLAND) ORDER 2014
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.
(E) IMPROVING PLANNING PERFORMANCE - DRAFT CRITERIA
FOR DESIGNATION (REVISED 2014)
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.
(F) DRAFT MARRIAGE OF SAME SEX COUPLES (CONVERSION
OF CIVIL PARTNERSHIP) REGULATIONS 2014
DRAFT MARRIAGE (SAME SEX COUPLES) ACT 2013 (CONSEQUENTIAL AND
CONTRARY PROVISIONS AND SCOTLAND) (NO. 2) ORDER 2014
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.
(G) JOBSEEKER'S ALLOWANCE (HOMELESS CLAIMANTS)
AMENDMENT REGULATIONS 2014 (SI 2014/1623)
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.
(H) PETROLEUM LICENSING (EXPLORATION AND PRODUCTION)
(LANDWARD AREAS) REGULATIONS 2014 (SI 2014/1686)
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.
(I) EXPLOSIVES REGULATIONS 2014 (SI 2014/1638)
ACETYLENE SAFETY (ENGLAND AND WALES AND SCOTLAND) REGULATIONS
2014 (SI 2014/1639)
PETROLEUM (CONSOLIDATION) REGULATIONS 2014 (SI 2014/1637)
GENETICALLY MODIFIED ORGANISMS (CONTAINED USE) REGULATIONS 2014
(SI 2014/1663)
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:
https://www.gov.uk/government/consultations/equal-pay-audits-a-further-consultation
Back
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
Back
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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