Instruments of interest
17.As is apparent from the information that we are publishing below, the calling of the General Election in June disrupted the progress of a number of statutory instruments. In some cases, Departments saw a necessity to bring the instruments into force very soon after laying them, departing from the convention of allowing 21 days between laying and bringing into force. There are also several examples of instruments which have been laid following earlier consultations, but where the Department has not yet published a summary of the consultation responses (as is required under the Cabinet Office’s consultation principles). While noting the explanation which the Departments concerned have given in such cases, we make the point that these approaches are inimical to effective Parliamentary scrutiny of secondary legislation, and we may wish to follow this up as and when further opportunity arises.
Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2017 (SI 2017/536)
18.The Department for Communities and Local Government (DCLG) has laid these Regulations with an Explanatory Memorandum. The Regulations serve two purposes: to provide that capital receipts may be used to meet any liability on a Mayoral development corporation to pay corporation tax; and to amend the calculation of the amount that must be paid by a local authority to the Government out of capital receipts arising from the disposal of housing land.
19.As regards the first of these changes, in the EM DCLG says that the London Legacy Development Corporation (LLDC) was set up following the 2012 Olympics to redevelop the Olympic Park and to sell off those parts no longer used for sports for commercial and residential used, an activity which generates capital receipts; and that, because the LLDC is a limited company, it is required to pay corporation tax, which is a revenue cost. DCLG says that, as a functional body of the Greater London Authority, the LLDC is also bound by the prudential code; and that this has created a mismatch, whereby the LLDC cannot use the source of its profits to pay the associated tax liability. There is no explanation in the EM of why DCLG is tackling this issue only in 2017, given that the LLDC was set up in 2012; and queries to the Department have yielded no useful clarification of this point.
20.As regards the second change, in the EM DCLG says that consultation, primarily targeted at local housing authority finance officers, took place between 9 February and 3 March 2017 with 20 responses from local housing authorities and four from local government representative and professional bodies. DCLG has told us that publication of the Government response to this consultation has been delayed by restrictions imposed on Government publications during both local and national election campaigns, and that no date for publication has yet been scheduled. We note that the Department brought these Regulations into force during the campaign period for the 2017 General Election; in our view, simultaneous publication of the evidence base for the changes, including a summary of consultation responses, should have been possible.
Road Vehicles (Registration and Licensing) (Amendment) Regulations 2017 (SI 2017/554)
21.This instrument requires the Driver and Vehicle Licensing Agency (DVLA) to provide to another Member State the identity of the registered keeper of a vehicle registered in the UK to enable the investigation of an alleged traffic offence in that country. The Secretary of State can also request corresponding information in relation to offences committed in the UK by vehicles registered in other Member States. The legislation applies only to specified traffic offences which are drink driving, driving while under the influence of drugs, failing to stop at a red traffic light, failing to use a seat belt (or child restraint), failing to wear a safety helmet, using a mobile telephone or any other communication device while driving, speeding, and the use of a forbidden lane. The Explanatory Memorandum states that these eight offences accounted for about one third of road deaths in Great Britain in 2015. It also notes that by altering the attitudes of drivers who tend to take more risks when driving abroad in the belief that they cannot be pursued, the EU anticipate the change could save as many as 350-400 lives per year. France implemented the Directive a year ago and has evidence that since the introduction of the Directive, the overall numbers of foreign offenders breaking their traffic rules has fallen markedly.
Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/571)
Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/572)
Electricity Works (Environmental Impact Assessment) (England and Wales) Regulations 2017 (SI 2017/580)
Offshore Petroleum Production and Pipe-lines (Environmental Impact Assessment and other Miscellaneous Provisions) (Amendment) Regulations 2017 (SI 2017/582)
Water Resources (Environmental Impact Assessment) (England and Wales) (Amendment) Regulations 2017 (SI 2017/583)
Environmental Impact Assessment (Land Drainage Improvement Works) (Amendment) Regulations 2017 (SI 2017/585)
Marine Works (Environmental Impact Assessment) (Amendment) Regulations 2017 (SI 2017/588)
Environmental Impact Assessment (Forestry) (England and Wales) (Amendment) Regulations 2017 (SI 2017/592)
Environmental Impact Assessment (Agriculture) (England) (No. 2) (Amendment) Regulations 2017 (SI 2017/593)
22.All these Regulations amend existing secondary legislation which has served to implement Environmental Impact Assessment (EIA) requirements in different policy areas. SIs 2017/571 and 572 have been laid by the Department for Communities and Local Government(DCLG); SIs 2017/580 and 582 by the Department for Business, Energy and Industrial Strategy (BEIS); and SIs 2017/583, 585, 588, 592 and 593 by the Department for Environment, Food and Rural Affairs (Defra).
23.The EIA processes stem from EU legislation, first embodied in a Council Directive from 1985 which, after several amendments, was codified by a 2011 Directive. This was in turn further amended, by a Directive which entered into force in May 2014,7 and required Member States to transpose the amended provisions by 16 May 2017. The 2014 amendments to the Directive aim to simplify the rules for assessing the potential effects of projects on the environment in line with “smarter” regulation; to lighten unnecessary administrative burdens; and to improve the level of environmental protection.
24.DCLG, BEIS and Defra all carried out consultations in relation to the Regulations in the early part of 2017, as explained in the Explanatory Memoranda (EMs) laid alongside the instruments. The Departments laid the different sets of Regulations in April of this year, in order to bring them into effect by the transposition deadline of 16 May. It is regrettable, however, that no Department has yet published a full summary of consultation responses: publication has apparently been delayed because the General Election was called as the first set of Regulations was laid. We trust that publication will be taken forward as a priority.
Prison (Amendment) Rules 2017 (SI 2017/576)
25.This instrument inserts a new rule 46A into the Prison Rules 1999 that will provide a statutory basis for the placement into “Separation Centres” of prisoners who are assessed to pose particularly serious risks to national security, are planning terrorism or disseminating views that encourage it, or are using political, racial, religious or other views to undermine good order and discipline in a prison. The Ministry of Justice states that separating these individuals from the general prison population aims to ensure the maintenance of control and discipline within prison and to manage terrorism-related risks posed by certain prisoners. Three centres are to be set up initially with a capacity for about 12 prisoners each. Subject to risk assessment, separated prisoners will have access to a regime that is broadly comparable to those in mainstream location. The details of how such prisoners will be selected is set out in prison service guidance document.8 All prisoners held in a Separation Centre will be reviewed on a quarterly basis from the date of the decision to select. The decision to retain the prisoner in the centre or to de-select them and return them to the mainstream population will be taken by the Separation Centre Management Committee. Any representations made by prisoners will be fully considered at each review. The first Separation Centre, at HMP Frankland, opened in June.
Marketing of Fruit Plant and Propagating Material (England) Regulations 2017 (SI 2017/595)
26.The Department for Environment, Food and Rural Affairs (Defra) has laid these Regulations with an Explanatory Memorandum (EM). The Regulations transpose three EU Directives,9 which harmonise detailed requirements for the production and marketing of fruit plant propagating material to provide consumer protection through assured identity, health and quality. Defra says that these harmonised standards will guarantee UK businesses continued access to European markets while the UK remains within the EU.
27.In the EM, Defra states that the transposition date for the Directives was 1 January 2017, but that this date was missed due to a number of delays, including in releasing the consultation; and that, in response to a Commission letter of formal notice in late January, the Department committed to a revised transposition date of 1 June.
28.We asked Defra to give a fuller explanation of these delays, and of the decision to set a revised transposition deadline in June. The Department has replied as follows:
“There were a number of factors outside of our control which contributed to the delay in transposing the fruit regulations. Defra had initially planned to seek Cabinet Committee clearance to consult in April 2016, in good time to meet the EU transposition date of 1 January 2017. This, however, was delayed in the first instance by the purdah period preceding the May 2016 local elections. At the same time the Government announced that there was to be an EU referendum, at which point Cabinet Office advised Defra to hold off asking for clearance to consult from Ministers until after the referendum ended on 23 June 2016. With the UK voting to leave the European Union, write-round was further delayed whilst the department sought clarity from EU Strategy and DExEU on how to handle the transposition of EU legislation.
Cabinet Committee clearance to consult was finally received on 23 September 2016 and the consultation was published on 30 September with a closing date of 25 November 2016. The SI was eventually laid at the end of April 2017 with a coming into force date of 1 June. Further to the unavoidable delays caused by two consecutive purdah periods and the subsequent period of general uncertainty following the referendum outcome, 1 June was the earliest date we were able to transpose having completed the necessary consultation, scrutiny and parliamentary processes”.
29.The delays that have occurred over the last year in bringing these Regulations forward exemplify the impact of the local elections and referendum on the progress of normal Government business.
Tax Credits (Claims and Notifications) (Amendment) Regulations 2017 (SI 2017/597)
30.HM Revenue and Customs (HMRC) has laid these Regulations with an Explanatory Memorandum (EM). In the EM, HMRC says that the purpose is to modify the backdating provisions in Regulation 7 of the Tax Credits (Claims and Notifications) Regulations 2002 (SI 2002/2014) to allow for backdating into the tax-free childcare (TFC) entitlement period where the childcare account has not been used to pay for childcare. We found the EM hard to understand, and at our request HMRC provided us with a fuller explanation of the background, which we are publishing in part at Appendix 2. We have asked HMRC to revise the EM to incorporate this clearer explanation, and to relay it as soon as possible; and also to ensure that guidance for parents is updated and communicated without delay, given that most parents apply for 30 hours free childcare by July.
Single Common Market Organisation (Emergency Aid) (England and Northern Ireland) Regulations 2017 (SI 2017/599)
31.The Department for Environment, Food and Rural Affairs (Defra) has laid these Regulations with an Explanatory Memorandum (EM). Defra states that the Regulations provide for the payment of emergency aid to milk producers in England and Northern Ireland under the Exceptional Adjustment Aid Scheme.10 The Regulations came into force on 22 May 2017. Defra says that failure to meet this date could have meant that the Rural Payments Agency (RPA) would not have been able to make payments by the European Commission deadline of 30 September 2017, and that any payments made after that date might not be reimbursed by the Commission.
32.In the EM, Defra states that, in order to ensure that EU Exceptional Adjustment Aid schemes in England could be administered within the tight timeframes set out in the Commission Delegated Regulation, a short consultation was run for a two-week period between 23 September and 7 October 2016. We asked Defra why, given that the consultation was completed in early-October, it laid these Regulations only six months later. We set out Defra’s answer below:
“The consultation was short and undertaken in September/October as the Commission Delegated Regulation required the Commission to be notified of the main components of the proposed schemes by 30 November 2016. In the period following the consultation we finished developing our first two schemes (the Farming Ammonia Reduction Grant (FARG) scheme and the Farmer Risk Management Training scheme) which were launched in December 2016. The third scheme–the Small Dairy Farmers scheme–was only launched in April 2017. This staggered approach was developed to allow for reallocation of funds between the schemes and thereby maximising use of the England allocation of EU Exceptional Adjustment Aid within the EU deadline for payments of 30 September 2017. As a consequence of this approach the Regulations were laid in April 2017. It was always the intention that the Small Dairy Farmers scheme would be launched in spring 2017 to allow us to reallocate any unspent aid from the first two schemes. Other considerations were also taken into account when setting a launch date, such as timeframes for when it could be delivered by the Rural Payments Agency (RPA) in context of their routine work and other schemes they were delivering.”
Proscribed Organisations (Name Change) Order 2017 (SI 2017/615)
33.Just before the Dissolution, an Order was laid with immediate effect to provide that “Hay’at Tahrir al-Sham” is to be treated as an alternative name for Al Qa’ida. Al Qa’ida is a proscribed organisation which is also recognised as operating under the names “al Nusrah Front”, “Jabhat al-Nusrah li-ahl al Sham” and “Jabhat Fatah al-Sham”.
Social Security (Emergency Funds) (Amendment) Regulations 2017 (SI 2017/689)
34.This instrument makes amendments to various regulations on benefits following the terror attacks in Manchester on 22 May 2017 and London on 22 March (Parliament and Westminster Bridge) and 3 June 2017 (London Bridge). These amendments ensure payments made by the We Love Manchester Emergency Fund and London Emergencies Trust are fully disregarded for the purpose of calculating victims’ entitlement to income-related benefits and funeral expenses payments, whether they are already in receipt of those benefits or make a new claim following the incident.
7 EU Directive 2014/52/EU.
8 PSI 05/2017 https://www.justice.gov.uk/downloads/offenders/psipso/psi-2017/psi-05-2017-separation-centre-referral-manual.pdf
9 Directive 2014/96 on requirements for labelling, sealing and packaging of fruit plant and propagating material; Directive 2014/97 on the registration of suppliers and of varieties and the common list of varieties; and Directive 2014/98 on specific requirements for production and marketing of fruit plant and propagating material.
10 In accordance with Commission Delegated Regulation (EU) 2016/1613 of 8 September 2016 providing exceptional adjustment aid for milk producers and/or farmers in the beef and veal, pigmeat and sheepmeat and goatmeat sectors.