Twenty Fifth Report Contents

Instruments drawn to the special attention of the House

Draft Crime and Courts Act 2013 (Commencement No. 18) Order 2018

Date laid: 13 March 2018

Parliamentary procedure: affirmative

Summary: This draft Order will enable GPS based location monitoring of an offender where this is a standalone provision of their sentence and imposed as part of a community sentence or suspended sentence. The new scheme is currently being piloted and is to be rolled-out nationally in 2019. The Ministry of Justice told us that it has laid the draft Order now, before Parliament’s time becomes occupied with matters relating to the UK’s departure from the European Union. Courts will only be able to proceed with the new service next year, however, once arrangements are in place for the GPS tags to be deployed. Learning from the pilots will inform the implementation of the new service and accompanying guidance.

This draft Order is drawn 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 Ministry of Justice (MoJ) has laid this draft Order with an Explanatory Memorandum (EM). The purpose of the draft Order is to commence fully provisions under sections 44 and Part 4 of Schedule 16 to the Crime and Courts Act 2013. These provisions allow Courts to impose a standalone location monitoring requirement as part of an offender’s community sentence or suspended sentence. To date, this has only been possible as part of pilots run in specific geographical areas.

What is being done

2.The MoJ is in the process of delivering a new service which will enable GPS based electronic location monitoring (“tagging”) of offenders. This new service is currently being piloted and is expected to be rolled out nationally in 2019.

3.The tagging of offenders, where it is imposed to monitor compliance with a condition of their prison licence (for example an exclusion zone), has been in use for a number of years. This instrument enables the tagging of an offender where this is a standalone provision (meaning it is not imposed to monitor compliance with another requirement of the offender’s licence), and, for the first time, where it is imposed as part of a community sentence or suspended sentence, rather than a prison licence. This new use of tagging of offenders is currently being piloted and is to be rolled-out nationally in 2019.

Additional information from the MoJ

4.We asked the MoJ about the use of standalone tagging as an alternative to custody, specifically to release offenders from custody who are currently serving indeterminate sentences. The MoJ explained that the draft Order was only concerned with standalone tagging of offenders in relation to community sentences and suspended sentences; existing legislation already permitted standalone tagging to be used as part of a prison licence. The MoJ added that according to HM Prison & Probation Service Policy, the requirements of a licence have to be proportionate and necessary, so there is nothing to prevent standalone tagging to be used as part of a prison licence, where the offender has been deemed suitable for release and where the condition of tagging is considered to be proportionate and necessary.

5.We also asked about the use of standalone tagging to prevent someone from having to go to prison. The MoJ said that where an offence meets the threshold for a custodial sentence, a Court may consider that location monitoring of the offender, along with other requirements if necessary, offers a suitable alternative and may choose to impose a sentence served in the community instead of custody.

6.Current pilots are testing how GPS tagging might impact on the behaviour of offenders and how decision makers respond when given the option of using tags. With regard to preventing re-offending, the MoJ explained that evidence from the pilots showed that the information provided by tagging allowed offender managers to have constructive conversations with offenders about their behaviour, helping them lead law-abiding lives. Imposing a GPS tag could also provide a deterrent effect; some offenders used the fact they were on a GPS tag to avoid giving in to peer pressure.

Timing of the new scheme

7.We asked the MoJ why the draft Order had been laid while the pilots were still ongoing and before they had been evaluated. The MoJ explained that the draft Order was laid before Parliament’s time becomes occupied with matters relating to the UK’s departure from the European Union. Courts will only be able to proceed with the new use of location monitoring of offenders next year, however, once the MoJ has informed them that arrangements are in place for the GPS tags to be deployed.

8.Learning from the pilots will inform the roll-out of the new service and the guidance that will be developed for probation practitioners and the Courts. The MoJ explained that an early decision now will allow plenty of time to engage with stakeholders and plan for the actual delivery of the new service in 2019.

Draft East Suffolk (Local Government Changes) Order 2018

Draft East Suffolk (Modification of Boundary Change Enactments) Regulations 2018

Draft West Suffolk (Local Government Changes) Order 2018

Draft West Suffolk (Modification of Boundary Change Enactments) Regulations 2018

Date laid: 19 March 2018

Parliamentary procedure: affirmative

Summary: These instruments provide, respectively, for the abolition of Suffolk Coastal and Waveney districts and their district councils, and for the creation of a new East Suffolk district and council which covers the same geographic area; and for the abolition of Forest Heath and St Edmundsbury districts and their district councils, and for the creation of a new West Suffolk district and council which covers the same geographic area.

The Government’s own criteria for council merger proposals include the demonstration that any such proposal commands local support. There is no doubt that the merger proposals for East and West Suffolk are seen favourably by a number of local stakeholders. At the same time, however, significant numbers of residents and, it seems, parish councils have voiced concern about, and opposition to, the proposals; and it may be questioned whether the opportunities provided for such views to be expressed have allowed enough scope to opponents to voice their concerns and have them properly recognised.

We draw these instruments to the special attention of the House on the ground that that there appear to be inadequacies in the consultation processes which relate to the instruments.

9.The two statutory instruments (SIs) relating to East Suffolk provide for the abolition of Suffolk Coastal and Waveney districts and their district councils, and for the creation of a new East Suffolk district and East Suffolk district council which covers the same contiguous, geographic area. The two SIs relating to West Suffolk provide for the abolition of Forest Heath and St Edmundsbury districts and their district councils, and for the creation of a new West Suffolk district and West Suffolk district council which covers the same contiguous, geographic area.

10.The Ministry of Housing, Communities and Local Government (MHCLG) has laid these instruments, with a shared Explanatory Memorandum (EM) for the East Suffolk SIs, and a shared EM for the West Suffolk SIs; and, in each case, a report under the Cities and Local Government Devolution Act 2016.

Criteria for mergers between councils

11.In both EMs, MHCLG says that, in line with a manifesto commitment to support those authorities that wish to combine to serve their communities better, it is committed to consider unitarisation and mergers between councils when requested. The Government set out the criteria against which merger proposals would be considered in a Written Ministerial Statement on 7 November 2017.1 These are that the proposal is likely to improve local government in the area, commands local support, and comprises a merged area with a credible geography.

Improving local government in the area

12.In the EM, in describing the impact of the East Suffolk proposal, MHCLG says that the councils2 consider that becoming a single council is estimated to generate a further £2.2 million of annual cashable savings and £0.3 million non-cashable savings (for example, efficiency gains), and to protect the shared services savings of £20 million achieved since 2010 across East Suffolk. MHCLG states that the establishment of a single district council would maintain all the services that are currently carried out by the two councils individually, while providing the opportunity to bring savings which would allow the Council to invest in services. The establishment of a single district council would help ensure “the strong and influential local leadership required to tackle challenges such as an ageing population and the need for affordable new homes”.

13.MHCLG makes similar statements in the EM to the West Suffolk SIs, explaining that the councils3 consider that becoming a single council is estimated to generate a further £0.5 million of annual cashable savings alongside £0.35 million of non-cashable savings. The move to a single council would also protect the shared services savings of £4 million each year across West Suffolk that they have already achieved, while maintaining all the services that are currently carried out by the two councils individually. MHCLG says that it is likely that the establishment of a single district council would help ensure “the strong and influential local leadership required to tackle challenges such as an ageing population and the redevelopment of RAF Mildenhall, which is being vacated in 2023”.

Local support

East Suffolk

14.In section 8 of both EMs, MHCLG describes at some length the outcome of consultation. In the case of the East Suffolk SIs, MHCLG says that in 2016 the councils undertook a programme of engagement with residents and stakeholders, which comprised the following activities: an independent, weighted to be representative phone poll; open public consultation, with comments invited via a dedicated email address or by post; press releases and articles in the local press; outreach events with community groups; banners promoting the merger at council offices and libraries; and on-going website and social media promotion.

15.In the open consultation process, 114 responses from the public were against the proposal, and 17 were in favour. A recurring concern among objectors was that a single council covering a larger geographic area would weaken local democracy, and that certain areas would be under-represented.4 MHCLG says that, following the consultation, a “myth-busting” document was published on the councils’ shared website to address the principal concerns raised during the consultation process.

16.MHCLG says that ComRes, an independent polling organisation, carried out a telephone survey of 1,000 residents in Suffolk Coastal and Waveney between 3 and 14 October 2016 to gauge public support for the proposal: 57% of local adults surveyed said they were favourable, compared to 22% who were unfavourable. MHCLG comments that “a demographically representative telephone poll carries some weight as it removes the propensity for consultation responses to be heavily dominated by certain, sometimes self-selecting, groups”.

17.In the EM, MHCLG explains that, after the Secretary of State had announced that he was minded to implement the proposal, there was a period for representations from 7 November 2017 until 8 January 2018. Of the 20 representations received, 17 were supportive of the proposal, one was neutral and two were opposed. Only two of these 17 responses were from members of the public.

18.We obtained additional information from MHCLG, which we are publishing at Appendix 1. In particular, we asked about the very low response to the late-2017 period for representations. MHCLG has said that these representations did not form part of the council-run consultation, but were invited as direct representations to the Secretary of State; and that, while the councils made it clear locally that there was a period of representations by informing local stakeholders, parish councils and other interested parties directly, “ … it may be that the intensive distribution of the myth-busting document reduced the need to make representations at that point”. MHCLG has told us that it has not received any further communications from members of the public suggesting that concern is ongoing, and that “perhaps the best indication of local views are the views of those who have been democratically elected to represent the area. Both Councils are strongly supportive of the merger”.

19.We would urge caution in deploying this argument: if the views of councillors are a sufficient indicator of local reactions, there would be no need for the programme of consultation and engagement described in the EM. Given the strength of concern about the proposal evidenced in the responses to the open consultation of 2016, we are also not convinced that the low level of responses to the late-2017 period for representations reflected widespread acceptance among local residents: it might equally well result from a sense that further objection was pointless.5

West Suffolk

20.In the case of the West Suffolk SIs, MHCLG says that the councils undertook a programme of engagement with residents and stakeholders from May 2017 to the end of August 2017, which comprised the following activities: an independent, weighted to be representative, sample survey phone poll; a media campaign; 52 media stories published or broadcast; publicity packs for councillors and town and parish councils; a dedicated webpage and online survey to collect comments on the proposals; formal communication to 162 stakeholders; presentations and talks at resident and business forums and public events; and staff briefings for frontline employees. We asked MHCLG why there was no reference to an “open public consultation” (as there is in the EM to the east Suffolk SIs). The Ministry has said that opportunities to provide input were also provided for those unable or unwilling to contribute online feedback (as set out in paragraph 8.7 of the EM), “the equivalent of the public consultation referred to in the East Suffolk EM.” The councils have published comments received from the public in their Business Case document.6 We are surprised that there were differences of approach in enabling local residents to express their views on the merger proposal, and we are not persuaded that the arrangements made by the West Suffolk councils were “equivalent” to those made in East Suffolk.

21.MHCLG says in the EM that ComRes carried out a demographically proportionate telephone survey of 1,200 residents in Forest Heath and St Edmundsbury. When asked “In general, to what extent are you favourable or unfavourable towards the proposed creation of a single District-level Council for West Suffolk”, 65% of adults were favourable to the proposal, compared to 19% who were unfavourable. When provided with further information about the proposal, within the same survey, including providing details of its potential benefits and concerns, 70% of local adults were favourable to the proposal and its impact, compared to 22% who were unfavourable. These findings are given in Appendix D to the Business Case document (at paragraph 3.3).

22.That document also reports, however, that, while a majority of adults in West Suffolk (54%) say they are not concerned with the proposal to create a new single District level Council, “around two in five adults in West Suffolk express concerns with the proposal (42%). Indeed, one in nine (11%) say they are very concerned about it” (paragraph 3.5). The document identifies as the primary concerns “a loss of ‘local voices’ being heard, a lack of political accountability, and the perception that the delivery of services that are already stretched will be negatively affected”.

23.While MHCLG does not refer to these findings in the EM, it does state that seven responses were received from the eighty-five town and parish councils, of which four were supportive and three raised concerns; and that the primary concerns were for local decision-making and service delivery. MHCLG comments that “the West Suffolk councils do not expect there to be any negative effects on local decision-making or service delivery as a result of any implementation of their proposals.” We asked for further detail of these expectations. MHCLG has said that the merger is estimated to generate a further £0.5 million of annual cashable savings, help develop ways of working focusing on prevention rather than crisis interventions, and release some capacity; and that a full review of ward arrangements is expected to be carried out by the Local Government Boundary Commission of England which will ensure that councillors can effectively represent their ward areas.

24.We are left with the impression that the engagement with local residents undertaken by the West Suffolk councils revealed levels of concern about the proposal to merge the councils, which are not fully acknowledged in MHCLG’s EM.

Conclusion

25.Change divides communities. The Government’s own criteria for council merger proposals include the demonstration that any such proposal commands local support. There is no doubt that the merger proposals for East and West Suffolk are seen favourably by a number of local stakeholders. At the same time, however, significant numbers of residents and, it seems parish councils, have voiced concern about, and opposition to, the proposals; and it may be questioned whether the opportunities provided for such views to be expressed have allowed enough scope to opponents to voice their concerns and have them properly recognised.

Education (Student Support) (Revocation, Amendment and Saving Provision) Regulations 2018 (SI 2018/434)

Date laid: 27 March 2018

Parliamentary procedure: negative

Education (Student Support) (Amendment) (No. 2) Regulations 2018 (SI 2018/443)

Date laid: 28 March 2018

Parliamentary procedure: negative

Summary: SI 2018/434 revokes an earlier set of Regulations, which provided that full-time students starting postgraduate pre-registration courses in nursing, midwifery, and the allied health professions from August 2018 would be funded through the student loan system, rather than through the NHS Bursary. SI 2018/443 reinstates the original policy intention of that earlier set of Regulations. The Department for Education DfE says that the new Regulations are part of arrangements made by the Government to give effect to the request from the Official Opposition for a debate in Government time.

Universities generally deal in January with recruitment to courses starting in the following September, and the uncertainty caused in recent weeks by the controversy surrounding these Regulations may well have dissuaded significant numbers of potential students from applying for such courses.

There is considerable pressure on both Houses to scrutinise secondary legislation, and we view with concern any development which increases this pressure by revoking statutory instruments already laid for consideration and replacing them with further instruments which need to be examined even if they purport simply to reinstate the original policy intention. We look to the Government to act in a timely and effective manner to enable Parliamentary scrutiny of secondary legislation. This should exclude any necessity to shuffle statutory instruments in this manner.

We draw these Regulations to the special attention of the House on the ground that that they give rise to issues of public policy likely to be of interest to the House.

Education (Student Support) (Amendment) Regulations 2018 (SI 2018/136)

26.In our 21st Report of this Session,7 we drew to the House’s attention the Education (Student Support) (Amendment) Regulations 2018 (SI 2018/136), which provided that eligible full-time students starting postgraduate pre-registration courses in nursing, midwifery, and the allied health professions from 1 August 2018 onwards would be funded through the standard student support system, rather than through the NHS Bursary. We noted that this would mirror the change in funding introduced for undergraduate students starting pre-registration courses in the same sectors from August 2017. We had received comments on the Regulations from the Royal College of Nursing (RCN) and the Chartered Society of Physiotherapy, and a response from the Department of Health and Social Care to the RCN’s comments. The RCN had pointed to data about applications to nursing courses as evidence of a negative impact of the change in funding from bursaries to loans, while the Government warned against premature interpretation of the data, and stressed the initiatives being taken to encourage people to pursue healthcare careers.

27.In our earlier Report, we said that we considered that the time had come for the Government to take a definitive view of the effect of the changes from the 2017 Regulations on participation in nursing courses, and to judge the funding reforms by results, rather than by aspirations. We commented that the review of post-18 education now underway included assessing whether the funding system promoted the skills needed by our society, and that evidence already available from the healthcare education sector must surely be central to this assessment.

28.SI 2018/136 was laid before Parliament on 6 February 2018, and came into force on 27 February 2018.

Education (Student Support) (Revocation, Amendment and Saving Provision) Regulations 2018 (SI 2018/434)

29.SI 2018/434 revokes SI 2018/136. In the accompanying Explanatory Memorandum (EM), the Department for Education (DfE) says that this is subject to a saving provision for students who have already made an application for support in respect of pre-registration courses in dental profession subjects or postgraduate pre-registration courses, and whose applications have been received by the Secretary of State by the time the Regulations come into force.

Education (Student Support) (Amendment) (No. 2) Regulations 2018 (SI 2018/443)

30.In the EM to SI 2018/443, DfE says that these Regulations reinstate, with near-immediate effect, the original policy intention of SI 2018/136–in other words, they again provide that eligible full-time students starting postgraduate pre-registration courses in nursing, midwifery, and the allied health professions from 1 August 2018 onwards will be funded through the standard student support system, rather than through the NHS Bursary.

Explanation for revocation of SI 2018/136 and reinstatement of policy intention

31.In the EM to SI 2018/443, DfE says that it is making the instrument “as part of arrangements made by the Government to give effect to the request from the Official Opposition for a debate in Government time”. The 40-day praying period for SI 2018/136 expired on 28 March 2018. Although a prayer motion to annul the Regulations was tabled by the Opposition in the House of Commons on 8 February 2018, DfE says that “it was not possible for the Government to accommodate time within the instrument’s praying period”. By revoking SI 2018/136 and reinstating its original policy intention in laying SI 2018/443, DfE says that this “will re-start the 40 day praying period to enable a debate, if requested, to be facilitated on the changes to the loan system as they originally appeared in SI 2018/136”. The Department adds that SI 2018/443 comes into force less than 21 days after it is laid (in fact, it was brought into force within 24 hours of being laid) “because we wish to preserve the continuity of the policy intent and the offer to students, as originally given effect by the S.I. 2018/136”.

Impact

32.In the EM to SI 2018/443, DfE says that the revocation of SI 2018/136 by SI 2018/434 was considered to affect about 100 students who had already applied for the standard student loan package from the Student Loans Company; and also fewer than five students (as estimated) who may have applied between midnight on 27 March and midnight on 28 March when SI 2018/443 comes into force. The Department adds that it has ensured that all eligible students are able to apply for the standard student loan package under either SI 2018/136 or SI 2018/443.

33.In the light of the comments which we received and published in relation to SI 2018/136, we continue to see cause for concern about the wider impact on recruitment to post-graduate nursing courses which may result from the switch from bursary to loan support. Universities generally deal in January with recruitment to courses starting in the following September, and the uncertainty caused in recent weeks by the controversy surrounding these Regulations may well have dissuaded significant numbers of potential students from applying for such courses. This surely cannot have been the intention.

Conclusions

34.In the 15 years during which this Committee has scrutinised secondary legislation, we have seen no previous example of a statutory instrument being revoked, to be succeeded almost immediately by a second statutory instrument with unchanged policy effect, in order to make good shortcomings in the handling of Parliamentary business. DfE has said that it was not possible for the Government to accommodate time within the instrument’s praying period. So bald a statement offers no real insight into the Government’s difficulties, which we would have expected to be fully explained in such circumstances.

35.There is considerable pressure on both Houses to scrutinise secondary legislation, and we view with concern any development which increases this pressure by revoking statutory instruments already laid for consideration and replacing them with further instruments which need to be examined even if they purport simply to reinstate the original policy intention. We look to the Government to act in a timely and effective manner to enable Parliamentary scrutiny of secondary legislation. This should exclude any necessity to shuffle statutory instruments in this manner.


1 See HCWS232, 7 November 2017 [Commons Written Statement]

2 In this case, Suffolk Coastal, and Waveney, District Councils.

3 In this case, Forest Heath, and St Edmundsbury, District Councils.

5 We note that one response to the council’s 2016 consultation included this: “Lucky us having a say! You won’t listen so what’s the point in asking us?” This was not untypical.

7 21st Report, Session 201719 (HL Paper 88).




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