Sixth Report Contents

Instruments of interest

Draft Business Contract Terms (Assignment of Receivables) Regulations 2017

16.The Department for Business, Energy and Industrial Strategy (BEIS) has laid these draft Regulations with an Explanatory Memorandum (EM) and Impact Assessment. In the EM, BEIS says that the assignment of receivables (that is, invoices and other rights to be paid money under a contract) is a mechanism by which businesses are able to raise finance based on money owed to them. These Regulations will facilitate access to finance for businesses, by nullifying terms in business contracts which prohibit the assignment of receivables or hinder a person to whom a receivable is assigned from exercising their rights. We sought further information from BEIS, in particular about whether permitting the assignment of receivables would impose any disbenefits on the debtors involved. We are publishing BEIS’ answers to our questions at Appendix 4; we note the Department’s statement that, from the perspective of the debtor, there is no financial detriment, though there were objections of principle to interfering with the free negotiation of contracts between parties.

Draft Community Drivers’ Hours Offences (Enforcement) Regulations 2017

17.Community drivers’ hours offences (CDHOs) are enforced by roadside checks of a driver’s tachograph card or digital tachograph record sheet. Up until now only offences at the time of the compliance check could be subject to ‘on-the-spot’ penalty fines with offences in the 28 days prior to that date having to be being pursued in a Magistrates’ Court. This instrument broadens the methods of enforcement available for certain CDHOs (defined in the instrument) committed in the 28 days prior to detection by enabling roadside enforcement officers to issue ‘on-the-spot’ penalties for those too as an alternative to court proceedings. This instrument makes these penalties available to enforcement officers in respect of the specified CDHOs whether committed by UK or non-UK drivers; it also applies such penalties to certain Community drivers’ hours rules infringements committed outside of Great Britain. These changes will also bring the UK in line with some other Member States, who already issue ‘on-the-spot’ penalties for historical infringements of the rules rather than bringing court proceedings.

Kigali Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (Cm 9496)

18.According to Defra’s Explanatory Memorandum (EM), the Montreal Protocol has so far succeeded in phasing out 98% (by potency) of the chemicals responsible for causing damage to the ozone layer, which as a result is showing the first signs of recovery. The main family of replacement chemicals, hydro fluorocarbon gases (HFCs) do not damage the ozone layer but are potent greenhouse gases. Under the Kigali Amendment to the Montreal Protocol, developed countries agreed to phase out the production and use of HFCs to achieve an 85% reduction between 2019 and 2036, and developing countries agreed to an 80% reduction over a longer timetable (either between 2024 and 2045 or between 2028 and 2047).

19.The growth of refrigeration and air conditioning in developing countries means that without this agreement, HFC use could have amounted to as much as 11% of global greenhouse gas emissions by 2050. The reductions facilitated by the Kigali Amendment are likely to avoid almost 0.5 Celsius of global warming by the end of this century making a major contribution to the Paris Climate Agreement goal of keeping the global temperature increase below 2 Celsius.

20.The Montreal Protocol requires developed country parties to contribute to a fund to help developing countries achieve their HFC reduction commitments; this will require between $5.8 and $9.8 billion over 30 years. The UK’s share amounts to £9.1 - £15.4 million per year over 30 years. This contribution will be met from the UK’s existing commitment to spend 0.7% of Gross National Income on development assistance. The Kigali Amendment will enter into force on 1 January 2019 or 90 days after 20 states have ratified it.

21.This instrument ratifies the UK’s participation in the treaty. In the EM the Government states its intention, subject to parliamentary approval, to incorporate this legislation into UK law to enable the UK to continue to meet its UN obligations after Brexit.

Police, Fire and Crime Commissioner for Essex (Fire and Rescue Authority) Order 2017 (SI 2017/864)

22.Section 6 of the Policing and Crime Act 2017 made provision for the creation by order of a corporation sole4 as the fire and rescue authority for a specified area and for the person who is for the time being the Police and Crime Commissioner (PCC) for that area to take on responsibility for governance of those fire and rescue services. Statutory tests mean that the Secretary of State can only give effect to such a proposal where it appears to her to be in the interests of economy, efficiency and effectiveness, or public safety. This Order makes provision for the creation of the first such joint authority for the borough council areas of Southend-on-Sea and Thurrock, and Essex County Council, which is to be known as the Essex Police, Fire and Crime Commissioner Fire and Rescue Authority.

Facilitation of Tax Evasion Offences (Guidance About Prevention) Regulations 2017 (SI 2017/876)

23.These Regulations, laid by HM Treasury (HMT) with an Explanatory Memorandum (EM), bring into operation guidance5 required by the Criminal Finances Act 2017 (“the 2017 Act”). Part 3 of the 2017 Act creates offences of corporate failure to prevent facilitation of UK tax evasion offences and corporate failure to prevent facilitation of foreign tax evasion offences. In the guidance, HMT says that, in the past, attributing criminal liability to a relevant corporate body required prosecutors to show that the senior members of that body were aware of the illegal activity, typically those at the Board of Directors level. This meant that earlier criminal law most advantaged those bodies that deliberately turned a blind eye to wrongdoing and preserved their ignorance of criminality within their organisation. The new corporate offence aims to overcome the difficulties in attributing criminal liability to relevant bodies for the criminal acts of employees, agents or those that provide services for or on their behalf. In the EM, HMT sets out the consultation which it carried out in relation to the guidance, which was developed alongside consideration of the draft clauses which later formed Part 3 of the Criminal Finances Act 2017. HMT has finalised the guidance taking account of points made by respondents.

Alternative Fuels Infrastructure Regulations 2017 (SI 2017/897)

24.This instrument transposes Directive 2014/94/EU on the Deployment of Alternative Fuels Infrastructure which aims to build-up the recharging and refuelling infrastructure for alternative fuels across the European Union, by harmonising certain standards for such infrastructure. This instrument implements the Directive’s requirements for common standards for the equipment required to recharge electric vehicles and refuel hydrogen fuelled vehicles located on the street or in car parks, and in harbours for seagoing ships at berth. For electric vehicle recharging this instrument requires infrastructure operators provide ad-hoc access to users, which means users will be able to charge their vehicles without any requirement for a pre-existing contract with the particular operator or membership of a scheme. The Directive also requires electric vehicle recharging points to have the capacity to meter intelligently, and for their location to be available on an open and non-discriminatory basis.

Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (SI 2017/901)

25.This instrument laid by the Department for Work and Pensions (DWP) amends various sets of existing secondary legislation in consequence of the coming-into-force, from 6 April 2016, of the Social Services and Well-being (Wales) Act 2014 (“the SSWbWA 2014”). In particular it includes reference to provisions which currently refer to the Children Act 1989 and the Care Act 2014 which no longer applies in relation to Wales. Paragraph 4.4 of the original Explanatory Memorandum (EM) said that in the interim the Interpretation Act 1978 enabled references to the Children Act 1989 in DWP secondary legislation to be read as references to SSWbWA 2014 but did not apply to the provision of care and support for adults in Wales. Although the paragraph concluded “the DWP is not aware of anyone having been disadvantaged during the period in question” this is a surprisingly long period for a Department to leave the issue unresolved. When contacted by the Committee DWP revised their view to state that the Interpretation Act did apply to both children and adults. When asked about the reason for the delay of almost 18 months between the SSWbWA 2014 coming into force and the making of this instrument DWP simply attributed it to competing priorities. Although the delay may have been of no material consequence, we are concerned that the DWP did not seem to be fully on top of this legislation.

Care Quality Commission (Reviews and Performance Assessments) (Amendment) Regulations 2017 (SI 2017/914)

26.This instrument adds six new sectors to the Care Quality Commission regulatory regime. Any service provider which has been assessed must display its most recent performance rating on its website and at its premises. Following consultation these Regulations add six new categories of service providers to the list:

27.The Department of Health estimates that this extension will cover about 1,000 providers and that access to clear information about the quality of those services will be of considerable help to the public in making an informed choice.

28.The consultation considered also including “independent community healthcare services” in CQC ratings but the Department was concerned that certain types of providers in this category failed to realise that they were affected and so failed to engage with the discussion. These Regulations do not therefore extend CQC assessment to that sector at this time but a further consultation exercise is being conducted to address the complexity of this sector which includes online and digital services. The consultation will also seek to exclude those already rated by other agencies. The new consultation document can be accessed on . Further regulations relating to this sector are expected to be laid early in 2018.

4 Consequential details relating to the establishment of the corporation sole are in Fire and Rescue Authority (Police and Crime Commissioner) (Application of Local Policing Provisions, Inspection, Powers to Trade And Consequential Amendments) Order 2017 (SI 2017/863).

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