Thirty Fifth Report Contents

Instruments of interest

Draft Data Retention and Acquisition Regulations 2018

14.These Regulations amend existing Investigatory Powers legislation in the light of two judgments by the European Court of Justice.4 Accordingly, they revise the authorisation process so that most communications data requests by public authorities5 will be authorised by the Investigatory Powers Commissioner, supported in the day to day work by the Office for Communications Data Authorisations. As stated in the well-structured Explanatory Memorandum, these Regulations also restrict data acquisition to “the prevention or detection of serious crime”, which is defined as all offences for which an adult may be sentenced to 12 months in prison or corporate crime where a breach of privacy or the sending of a communication is an integral part. Consequently, officers conducting certain categories of investigation will no longer be able to obtain data in this way, including those into matters of public health, tax collection or functions relating to the regulation of financial services and markets. The Regulations also bring into effect a Code of Practice6 which sets out all the processes for obtaining data under the legislation. As required by the Divisional Court, these Regulations will take effect by 1 November 2018, although the Court has accepted that, due to the complexity of implementation, the requirement for independent authorisation of communications data requests will take until April 2019.

Water Supply (Water Quality) (Amendment) Regulations 2018 (SI 2018/706)

Private Water Supplies (England) (Amendment) Regulations 2018 (SI 2018/707)

15.The main purpose of these two Regulations is to update the current legislative framework for monitoring drinking water quality in England in the light of EU Directive (EU) 2015/1787 (“the Directive”). The Regulations introduce a new risk based approach to the monitoring of drinking water supplies which allows for a reduction in the frequency of sampling and analysis in line with current World Health Organisation principles. The new approach applies to both public and private water supplies.7 While the responsibility for enforcement with regard to private water supplies lies with local authorities, the Drinking Water Inspectorate enforces the Regulations in relation to public water supplies. The Regulations exempt private water supplies to single households from the monitoring requirements but allow local authorities to recover fully the costs of their oversight duties in relation to all other private water supplies.

16.The Regulations have been laid more than eight months after the Directive’s transposition deadline of 27 October 2017, but there is no reference to or explanation of this delay in the Explanatory Memoranda (EM). The Committee received a submission from a member of the public about this, and we asked the Department for Environment, Food and Rural Affairs (Defra) for an explanation. Defra has told us that the factors which contributed to the delay include the general election in June last year and an unprecedented number of consultation responses which needed to be considered. According to the EM, 24 responses were received in relation to SI 2018/706 and 201 responses in relation to SI 2018/707. Defra has also explained that because of the delay, the UK received a Letter of Formal Notice from the Commission in November 2017 which signalled the start of infraction proceedings. Defra has assured us that it has kept the Commission updated on progress since then and, as the UK has now transposed the Directive, it expects the infraction proceedings to be closed shortly with no lasting consequences for the UK. We are publishing our correspondence with Defra at Appendix 2.

17.It is essential for effective Parliamentary scrutiny of secondary legislation that the EM explains fully any delays that may have occurred in transposing EU legislation. We are disappointed that Defra did not do this for these Regulations and have asked the Department to replace the EM, so that an explanation of the delay is publicly available.

Transmissible Spongiform Encephalopathies (England) Regulations 2018 (SI 2018/731)

Cattle Compensation (England) (Amendment) Order 2018 (SI 2018/754)

18.These instruments update the arrangements that are in place in England to prevent, control and eradicate certain Transmissible Spongiform Encephalopathies (TSEs) in animals8 and to compensate farmers for the slaughter of cattle affected by bovine tuberculosis (TB).

19.SI 2018/731, amongst other things, transfers the cost of taking samples for BSE testing from cattle that have died or been killed other than for human consumption from the Government to farmers, and streamlines compensation payments to farmers whose sheep or goats have been slaughtered because of scrapie. The Department for Environment, Food and Rural Affairs (Defra) says that the changes are needed to share costs more fairly between taxpayers and farmers. The instrument also relaxes certain controls in line with EU regulations to reflect a worldwide decline in BSE and a reduction in the risk posed by the disease. According to Defra, this will enable the English farming industry to trade on the same terms as businesses in other EU member States.

20.SI 2018/754 introduces full compensation payments for farmers who make their own arrangements for the slaughter of TB-affected cattle. It enables Defra to reduce compensation by 50% in cases where the Department arranges the slaughter, where farmers bring an animal in to a TB-affected herd and the animal is subsequently found to be TB positive, or where farmers fail to meet hygiene requirements for TB-affected cattle before slaughter. Defra says that the measures aim to encourage farmers to adopt practices that reduce the risk of TB, as part of the Government’s commitment to eradicate the disease. According to Defra, bovine TB led to the slaughter of more than 29,000 cattle and the payment of £30 million in compensation in England in 2015/16.

Police Super-complaints (Designation and Procedure) Regulations 2018 (SI 2018/748)

21.Because the existing complaints system can only be used to complain about individual police officers or particular incidents, the Policing and Crime Act 2017 set up a new system for making super-complaints (that is, complaints relating to features of policing that apply to one or more police forces in England and Wales that appear to be significantly harming the interests of the public). This instrument sets out the first tranche of 16 organisations which have been approved for super-complainant status.9 The instrument also sets out the procedure for making and handling a super-complaint and the duties on the three policing bodies—Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, the Independent Office for Police Conduct and the College of Policing—to investigate and respond to it.

Equine Identification (England) Regulations 2018 (SI 2018/761)

22.These Regulations, laid by the Department for Environment, Food and Rural Affairs (Defra), update the system of identification for horses and other equines10 in England in the light of updated EU regulations. The instrument clarifies existing requirements for all equines to be identified by way of a horse passport, which includes details of an animal’s veterinary treatment, and makes it compulsory for all equines to be microchipped regardless of age. Previously, only equines born after 2009 needed to be microchipped. Defra estimates that some 160,000 horses in England will be affected by the new rules at a cost of around £26 per horse. Under the Regulations, all horse passport issuing organisations will have to update their records in the Central Equine Database11 within 24 hours of being notified of any changes to a horse’s details. Equines living wild or semi-wild in Dartmoor, Exmoor, the New Forest and Wicken Fen are exempt from the requirements, and breaches of the Regulations will be subject to civil sanctions. Defra says that the Regulations will help to ensure that horse meat is safe for human consumption and make it easier to trace animals during disease outbreaks and deal with cases of loss, theft or poor animal welfare.

4 C-203/15 Tele2 Sverige AB v Post – och telestyrelsen and Secretary of State for the Home Department v Tom Watson MP and Others: [accessed 10 July 2018].

5 This does not include those made by the security services (see para 7.12 of the EM).

6 Home Office, Data Acquisition: Codes of Practice (June 2018): [accessed 11 July 2018].

7 Private water supplies are provided from, for example, a natural spring or a borehole and may be owned by private individuals, hospitals, schools or small businesses such as bed and breakfasts.

8 TSEs are progressive and fatal conditions that affect the brain and nervous system of animals and humans. They include Bovine Spongiform Encephalopathy (BSE) in cattle and scrapie in sheep and goats.

9 Organisations wishing to apply to become designated super-complainants must demonstrate that they fulfil nine criteria which are set out in the Police Super-Complaints (Criteria for the Making and Revocation of Designations) Regulations 2018 (SI 2018/412).

10 Equines under these Regulations are horses, ponies, donkeys and related animals, including zoo species like zebras.

11 EU legislation requires all Member States to operate a Central Equine Database (CED) that holds relevant identification data, such as species, unique life number and food chain status. In the UK, this database has been operational since March 2018 and is managed by Defra.

© Parliamentary copyright 2018