Fourth Report Contents

Instruments of interest

Draft Greater Manchester Combined Authority (Public Health Functions) Order 2017

7.This instrument will allow the Greater Manchester Combined Authority (GMCA) to exercise the public health functions under section 2B(1) of the National Health Service Act 2006 concurrently with its 10 constituent local authorities. The Explanatory Memorandum (EM) states that conferral of this power on the Combined Authority is necessary for it to play a full part in the Greater Manchester Health and Social Care Partnership and to support integrated, strategic commissioning decisions across the Greater Manchester area with a view to improving health outcomes and reducing health inequalities. The EM, confusingly, then goes on to refer to transport and economic development matters. While noting that this legislation is largely consequential on the formation of the overarching authority, the Committee asked for clarification on what health functions the GMCA would pursue under it. Our concern was that the change should result in value added to the population of Manchester rather than duplication or additional layers of bureaucracy. The Greater Manchester Population Health Plan 2017–20212 referred to in a footnote and certain GMCA position papers3 gave us some better indications of how GMCA intend to use these powers to improve the coordination and efficiency of public health programmes, but the EM should have been more explicit. The Department of Health has been asked to revise the EM to make clear how GMCA intends to use these powers to improve public health.

Draft Renewables Obligation (Amendment) (Energy Intensive Industries) Order 2017

8.In our 32nd Report of Session 2016–17,4 we drew to the attention of the House the draft Electricity Supplier Obligations (Amendment and Excluded Electricity) (Amendment) Regulations 2017. In particular, we flagged up the fact that the draft Regulations proposed to withhold an exemption from the so-called Electricity Supplier Obligations levy from direct competitors of eligible Energy-Intensive Industries (EIIs), while the EIIs would continue to enjoy this exemption. We noted an explanation from the Department for Business, Energy and Industrial Strategy (BEIS) that it had notified to the European Commission, for approval as State aid, its original proposal that non-eligible direct competitors should be entitled to receive the exemption; and that, since the proposal had not been approved, BEIS was unable to extend the exemption to these businesses.

9.In the Explanatory Memorandum (EM) to the latest draft Order, BEIS says that the costs of the Renewables Obligation (RO) scheme5 are passed through in bills to EIIs from energy suppliers; as they operate in global markets where commodity prices are set internationally, they are often unable to pass these costs through to the end customer, placing EIIs that face higher electricity costs at a competitive disadvantage. A compensation scheme for eligible EIIs for RO policy costs opened in January 2016. Now, only 18 months after introducing that scheme, BEIS proposes to move from compensating to exempting eligible EIIs from up to 85% of the RO scheme costs. BEIS says that this will improve long-term investment certainty for EIIs, as the exemption will provide real-time support and will not be contingent on Departmental budgets, which can fluctuate. BEIS says that this increased certainty can help maintain the competitiveness of EIIs.

10.In response to our questions, BEIS has provided additional information about the implications of these proposals for direct competitors to EIIs who are not eligible for this exemption. We are publishing that information at Appendix 2; BEIS is revising the EM to incorporate this material.

Draft Small Business Commissioner (Scope and Scheme) Regulations 2017

11.The Department for Business, Energy and Industrial Strategy (BEIS) has laid this instrument with an Explanatory Memorandum. The Small Business Commissioner (SBC) was established by the Enterprise Act 2016 to assist small businesses in payment disputes with larger businesses. These Regulations set out which small businesses will be eligible to use the SBC’s services, and also set out the framework for the SBC to operate a complaints scheme. In particular, they provide that a business must have a headcount of fewer than 50 staff on a specified date to use the Commissioner’s services; and they set out the requirements before presenting a complaint, the requirements as to the form and content of the complaint, the time limit for presenting a complaint, and the power for the Commissioner to fix and extend time limits and to dismiss complaints.

Recreational Craft Regulations 2017 (SI 2017/737)

12.In our 2nd Report of this Session,6 we drew three instruments to the special attention of the House (the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (SI 2017/692), and two related instruments), noting that all had been laid on either 22 or 23 June 2017 and brought into force on 26 June, in order to meet the transposition date in the EU Fourth Money Laundering Directive of 26 June 2017. In our 3rd Report,7 we published a related exchange of correspondence with the Economic Secretary to the Treasury which highlighted our concern about Government decisions to breach the 21-day rule for laying instruments and bringing them into force in order to meet deadlines for transposing EU legislation.

13.The Recreational Craft Regulations 2017, laid by the Department for Business, Energy and Industrial Strategy (BEIS), exemplify a different approach to such deadlines. In the Explanatory Memorandum (EM), BEIS states that the “instrument is being made in order to implement the provisions of the revised EU Directive on recreational craft and personal watercraft (2013/53/EU), which entered into force on 18 January 2016”. No more light is shed in the EM on the delay in implementing the Directive. On page 13 of the accompanying Impact Assessment, BEIS states that, as “the UK had not transposed the Directive by the deadline set by the legislation (18 January 2016) the UK risks proceedings being pursued against it by the Commission which is likely to result in a fine if there is any further delay in transposition”.

14.We obtained further information from BEIS about the background to the laying of these Regulations, which we are publishing at Appendix 3.

15.We recognise that the EU Fourth Money Laundering Directive is of far greater significance than the EU Directive on recreational craft and personal watercraft. However, BEIS’ approach to implementing the Directive on recreational craft appears at odds with what we understand to be the UK Government’s general commitment to effective compliance with EU legislation. BEIS has undertaken to revise the EM to give a better explanation.

National Health Service (Quality Accounts) (Amendment) Regulations 2017 (SI 2017/744)

16.On 13 December 2016, the Care Quality Commission (CQC) published Learning, candour and accountability: A review of the way NHS trusts review and investigate deaths of patients in England.8 The CQC’s report concluded that learning from deaths is not being given enough consideration in the NHS and that opportunities to improve care for future patients are being missed. Further guidance has since been published.9

17.These Regulations require NHS Trusts and NHS Foundation Trusts (apart from ambulance Trusts) to report on the number of their patient deaths which have occurred during a reporting year, 1 April to 31 March, as part of their Quality Accounts. The information must include the number of deaths in the reporting period which have been reviewed (whether by case record review or an investigation), how many of those deaths the Trust considers are more likely than not to be due to problems in care provided to the patient, and a description of what the Trust has learnt and the action it has taken as a result of the reviews. The first publication of Quality Accounts with this data will be in June 2018.

Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2017 (SI 2017/745)

18.These Regulations provide that money received from the emergency funds as a result of the Grenfell Tower fire on 14 June 2017 shall be disregarded for the purpose of means-testing for Legal Aid. This disregard would include money received from the Grenfell Tower Residents’ Discretionary Fund which was created by the Government to provide immediate assistance with clothing, food and other essentials. Other potential monies disregarded include charitable donations and support, money donated by members of the public, and contributions from fundraising campaigns. It is likely that the numbers affected will be very small, and limited to residents of, or visitors to, the Grenfell Tower at the time of the fire, those in the area surrounding the Tower whose homes were evacuated and close relatives of the deceased. The legislation came into effect immediately after laying, on 14 July 2017.

Child Trust Funds (Amendment No. 2) Regulations 2017 (SI 2017/748)

19.HM Revenue and Customs (HMRC) has laid these Regulations with an Explanatory Memorandum (EM), in which HMRC says that, in the case of a “looked after” child for whom a Child Trust Fund (CTF) has been opened, only the Official Solicitor (OS—in England, Wales and NI) or Accountant of Court (in Scotland) may manage the account on the child’s behalf. An equivalent scheme provides Junior ISAs for “looked after” children who are ineligible for a CTF. However, the Government consider that a single provider managing the CTFs and Junior ISAs of “looked after” children has the potential to provide more focused financial support to the children, in addition to its management role. In amending earlier instruments, these Regulations allow HM Treasury to appoint an organisation to undertake this role; from October 2017 the appointed organisation will be a charity, The Share Foundation.

20.HMRC has told us that, since the ending of CTF eligibility in 2011, the Department for Education (DfE) has operated a similar scheme which provides Government-funded Junior ISAs for “looked after” children who do not qualify for a CTF. The scheme is UK-wide and is managed under commercial contract by The Share Foundation which also undertakes activities that are not within the OS’s remit (such as providing access to financial education, incentivised learning and potentially sourcing charitable donations) and which has experience of working with marginalised children. The Share Foundation has managed Junior ISAs for “looked after” children since their introduction in 2012; following DfE’s tender exercise last year, it was re-awarded the contract for managing Junior ISAs and also for CTFs. The change relates to the day-to-day management of the CTF accounts of “looked after” children. The ability to transfer responsibility for the management of accounts will not affect the ability of the person with parental responsibility, or the child if 16 or over, to become the registered contact for the account.

Payment Services Regulations 2017 (SI 2017/752)

21.On 19 July 2017, HM Treasury (HMT) issued a press release10 headlined “Rip-off card charges to be outlawed”, which stated that the Government were “unveiling new rules that will mean card-charging in Britain — where people can be charged 20% extra for purchases like a flight just for paying with a credit card — will come to an end in January”. The press release included a link to the Government response to the consultation carried out on implementation of the Payment Services Directive II (PSDII):11 the “new rules on card-charging” are part of this implementation. Also on 19 July, HMT laid these Regulations with an Explanatory Memorandum (EM) and transposition note. The Regulations set out the detailed implementation of PSDII, which must be transposed by 13 January 2018.

22.In the EM, HMT explains that the 2007 Payment Services Directive (PSD) aimed to improve the competitiveness of the EU, by integrating national payments markets, and to support the creation of a single market for retail payment services. The PSD had three main objectives: to enhance competition; to harmonise information disclosure; and to standardise the rights and obligations for the use of payment services in the EU, with a strong emphasis on customer protection. HMT says that, in replacing the 2007 Directive, PSDII seeks to build on these objectives by creating a level playing-field between all categories of payment providers, in turn increasing the choice, efficiency, transparency and security of payments. It does this by addressing limitations to the scope of PSD, potential security risks in the payment chain, and consumer protection risks.

23.HMT gives no figures for the cost to business in the EM. In response to our queries it has told us that its central estimate for the equivalent annual net direct cost to business (EANDCB) is £187.2 million, with an overall net present value of £727 million, reflecting the fact that most of the EANDCB comprises the ban on surcharging of cards and other payment instruments (a cost to business, but a benefit to consumers). In the EM, HMT also states that it was unable to submit a final Impact Assessment (IA) with the Regulations because preparation of the assessment was delayed as a result of the General Election. We find this disappointing, and we repeat the concern that we have expressed before, that failure by a Government Department to provide an IA inhibits the process of Parliamentary scrutiny of secondary legislation.

National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017(SI 2017/756)

24.This instrument amends the NHS (Charges to Overseas Visitors) Regulations 201512 to extend the charging regime to include secondary and community services, to require that the full estimated cost of a service is secured in advance of any non-urgent care being provided, and to alter some existing exemptions, for example, to exempt from charge advice provided by telephone help lines such as NHS 111 or the dependents of refugees and asylum seekers. This follows an extensive consultation exercise by the Department of Health in 2015–6.13 The Government’s response to the consultation was published in February 201714 and this instrument is the first stage in the implementation of the changes it describes.

Protection of Wrecks (Designation) (England) Order 2017 (SI 2017/773)

25.The Protection of Wrecks Act 1973 (“the 1973 Act”) allows the Secretary of State to designate a restricted area around the site of a vessel of archaeological, historical or artistic importance which is lying wrecked on or in the sea bed in UK waters. It is a criminal offence for a person to engage in specified activities in a restricted area, unless licensed by the Secretary of State.

26.This Order, laid by the Department for Digital, Culture, Media and Sport (DCMS), designates five such areas:

27.The Order also revokes an earlier instrument (Protection of Wrecks (Designation No.1) Order 1983 (SI 1983/1400)), which designated a restricted area adjacent to the Brighton Marina Western Breakwater. In the Explanatory Memorandum, DCMS refers to advice from Historic England that, while a C15/C16 wreck may have lain in the general area of the breakwater, it is highly likely that the main site lay in an area now covered by the marina, which seems to have been destroyed during the marina’s construction. Historic England therefore recommends that the present restricted area no longer merits designation under the 1973 Act.

4 32nd Report, Session 2016–17 (HL Paper 161).

5 Renewables Obligation Certificates are tradable.

6 2nd Report, Session 2017–19 (HL Paper 8).

7 3rd Report, Session 2017–19 (HL Paper 14).

9 National Guidance on Learning from Deaths

11 Directive 2015/2366/EU on payment services in the internal market.

12 SI 2015/238 as amended.

13 Making a fair contribution: A consultation on the extension of charging overseas visitors and migrants using the NHS in England (December 2015)

14 Making a fair contribution: Government response to the consultation on the extension of charging overseas visitors (Feb 2017)

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