Instruments of interest
Draft Financial Services and Markets Act 2000 (Ring-fenced Bodies, Core Activities, Excluded Activities and Prohibitions) (Amendment) Order 2016
7.HM Treasury (HMT) has laid this draft Order with an Explanatory Memorandum (EM). HMT explains that, in the wake of the financial crisis of 2007–09, the Government’s programme of structural reform of the UK banking system included, as a central element, the ring-fencing of retail from wholesale/investment banking. The framework for ring-fencing was provided by the Financial Services (Banking Reform) Act 2013, with further details set out in secondary legislation.2 HMT says that since the secondary legislation was introduced, as banks have begun to implement the required structural changes, it has become aware of technical issues that have the potential to undermine the effectiveness of the ring-fencing regime. The purpose of this draft Order is to make a total of 18 amendments to address these issues.
Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (SI 2016/781)
8.These Regulations react to an Appeal Court judgement on the allocation of legal aid funds to judicial review of civil cases. The Civil Legal Aid (Merits Criteria) Regulations 2013 (SI 2013/104) (“the Merits Criteria Regulations”) set out the criteria that the Legal Aid Agency must apply when determining whether an applicant qualifies for civil legal aid, in particular the Regulations required that the case must generally have a 50% or higher prospect of success. Following a judicial review, (the “IS case”3), the High Court declared aspects of SI 2013/104 unlawful. The Ministry of Justice appealed but introduced interim Regulations (SI 2015/1571) to comply with the High Court judgement.4 On 20 May 2016, the Court of Appeal overturned the High Court’s decision and held that the Merits Criteria Regulations, as they were prior to being challenged, were lawful.
9.This instrument removes the interim provisions introduced by SI 2015/1571, but, rather than simply reverting to the original version of the criteria, makes legal aid funding available for certain cases where the prospects of success are “borderline”5 or between 45% and 50% (defined as “marginal” prospects of success). The new category would allow funding for cases of overwhelming importance to the individual (that is, where the outcome may result in the person losing their liberty or their home) or that are of wider public interest (that is, where either the general public or a class of individuals may also be affected by its outcome). This instrument is a made affirmative, which means it had immediate effect with respect to applications for civil legal services made on or after 22 July 2016, but must be approved by Houses within 120 days in order to remain in force. It should, however, be noted that the legal arguments continue and the Supreme Court is currently considering an application for a further appeal in the IS case.
Education (Pupil Registration) (England) (Amendment) Regulations 2016 (SI 2016/792)
Education (Pupil Information) (England) (Miscellaneous Amendments) Regulations 2016 (SI 2016/808)
10.SI 2016/792 places a duty on schools to notify their local authority when they remove a pupil’s name from, or add it to, the admissions register at “non-standard transitions”, that is, where a school-age child leaves a school before completing the school’s final year, or alternatively such a child joins a school after the beginning of the first year. The instrument was laid on 22 July, to come into force on 1 September 2016. This timing does not respect the Department for Education’s (DfE) undertaking in general to leave a term between laying an instrument with a new requirement on schools and bringing it into force (DfE completed the relevant consultation on 7 March 2016). Nothing is said in the Explanatory Memorandum (EM) about this departure from normal practice.
11.SI 2016/808 requires schools to include additional data items in the termly School Census. It was laid on 27 July, to come into force on 1 September 2016: again, this does not allow for a term’s interval between laying and coming into force. In this case, the EM (at paragraph 3.2) acknowledges this failure to give one term’s notice, but states that the instrument means only a “modest expansion” of an existing requirement.
12.We obtained further information from DfE about these two sets of Regulations and the impact on schools of such short notice before the new requirements come into force. We are publishing that information as Appendix 2 to this report. It seems clear that the pre-referendum period of “purdah” contributed to the compression of the timetable for finalising the first set of Regulations. While DfE has told us that no concerns have been raised with them about the timetable, it cannot be helpful to schools if new requirements, to be applied in the autumn term, are set out in statutory instruments laid at the end of the preceding summer term.
13.We received comments on SI 2016/808 from Defenddigitalme, a group which campaigns for DfE to change its policies on the National Pupil Database, and also a response to those comments from the Department itself. We are publishing this material on our website.
School Teachers’ Pay and Conditions Order 2016 (SI 2016/831)
14.The Department for Education (DfE) has laid this Order with an Explanatory Memorandum (EM). The Order, which comes into force on 1 September 2016, provides that the remuneration and conditions of employment of school teachers is to be determined by reference to section 2 of the “School Teachers’ Pay and Conditions Document 2016 and Guidance on School Teachers’ Pay and Conditions” (“the Document”). The Document reflects recommendations made by the School Teachers’ Review Body (STRB). In the EM, DfE sets out the consultation process which was followed before the Document was finalised. In particular, DfE says that, on 6 July 2016, the Secretary of State invited consultees to comment on the STRB’s 26th Report and the revised draft Document during a four-week consultation process, from 6 July to 2 August; and that this consultation period was delayed from its original proposed six-week consultation period from mid-May because of the EU referendum purdah arrangements.
15.The Department acknowledges that the majority of the respondents were unhappy about what they saw as an unacceptable and avoidable delay in publishing the report and consultation, which in their view left schools very little time to digest and implement the pay award in September. We obtained further information from the Department about the timing of these processes, which we are publishing as Appendix 3.
Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016 (SI 2016/847)
16.Section 59(1) of the Immigration Act 2016 requires the Secretary of State to produce guidance on the matters to be taken into account when determining whether a person would be particularly vulnerable to harm if they were to be detained or to remain in immigration detention. This instrument brings into force new “Guidance on adults at risk in immigration detention” (“the Guidance”) which was laid in July.6 Paragraph 11 of the Guidance lists the indicators of risk, which include: mental health conditions, conditions as a result of torture, trafficking etc., pregnancy, disability, being aged over 70 or being inter- or trans-sexual. The Home Office states that this does not mean that a vulnerable person will never be detained, other relevant factors (such as public protection concerns) will need to be weighed up in each case. When the Guidance comes into force on 12 September, the Home Office will be publishing more detailed guidance for its caseworkers which will set out how they should assess the evidence when making a decision about detention. This caseworker guidance was not available to us, even in draft, and we consider it unhelpful that material relevant to Parliament’s understanding of how a system will operate in practice is not available when the implementing instrument is being scrutinised by Parliament.
2 HMT mentions in particular the Financial Services and Markets Act 2000 (Ring-Fenced Bodies and Core Activities) Order 2014 (SI 2014/1960); the Financial Services and Markets Act 2000 (Excluded Activities and Prohibitions) Order 2014 (SI 2014/2080); and the Financial Services and Markets Act 2000 (Banking Reform) (Pensions) Regulations 2015 (SI 2015/547).
3 IS v The Director of Legal Aid Casework and the Lord Chancellor [EWHC 1965 (Admin)], 15 July 2015.
4 The Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015 (SI 2015/1571).
5 “Borderline” means that it is not possible, by reason of disputed law, fact or expert evidence, to quantify the prospects of success.