Instruments of interest
Draft Criminal Justice Act 2003 (Early Release on Licence) Order 2019
22.Home detention curfew (HDC) is a discretionary power exercised by prison governors on behalf of the Secretary of State, subject to a risk assessment. This draft Order would extend the period that an eligible prisoner may be released on licence on an HDC by six weeks, from the current 135 days to 180 days (that is, six months), to manage the offender’s transition on release from custody better. The Ministry of Justice states that, as well as having the added benefit of reducing prison population pressures, the HDC extension is supported by research published in 2018.15 This research indicates that, for some, the period of electronic monitoring can be an opportunity to break habits, enhance chances for employment and training, and help to develop or maintain positive relationships, each of which can be important in helping offenders’ rehabilitation.
Draft Pesticides (Amendment) (EU Exit) Regulations 2019
23.The purpose of these draft Regulations is to amend retained direct EU legislation which underpins the regulatory regimes for plant protection products and maximum residue levels (MRLs),16 so that oversight can continue to operate effectively after the UK’s withdrawal from the EU. The Department for Environment, Food and Rural Affairs (Defra) says that some of the amendments are needed following the change in the EU exit date to 31 October which impacts on several dates specified in the retained legislation. In addition, further new EU legislation has come into force during the Article 50 extension period, requiring amendments to correct deficiencies arising from EU exit. The instrument also proposes fixes to several errors in earlier EU exit instruments. The Committee first considered this instrument when it was laid before Parliament as a proposed negative instrument. At the time, the Committee noted that a proposed revocation of a fee charging provision would not impact on the UK’s existing fee charging regime which would continue to operate under separate domestic legislation but that the revocation could be regarded as triggering the affirmative procedure under the broad provision of Schedule 7 paragraph1(2)(b) of the European Union (Withdrawal) Act 2018.17 The Department has now laid the instrument for regular scrutiny under the affirmative procedure. The Committee has received a submission by Green Alliance, raising concerns about the instrument on behalf of the Pesticide Action Network UK and the Royal Society for the Protection of Birds, including about a potential loss of oversight and weakening of requirements to obtain scientific advice. We have put these concerns to Defra and are publishing the submission and the Department’s response on our website.18
Draft Statutory Auditors, Third Country Auditors and International Accounting Standards (Amendment) (EU Exit) Regulations 2019
24.These draft Regulations propose amendments to ensure that current frameworks for the use of international accounting standards, and for regulatory oversight and professional recognition of statutory auditors and third country auditors, can continue to work effectively after the UK’s withdrawal from the EU. Amongst other changes, the instrument proposes to correct an error in an earlier EU exit instrument19 to ensure that auditors of small or medium-sized Public Interest Entities (PIEs)20 have to be inspected at least once every six years, rather than at least once every three years, as an earlier instrument required erroneously. Large auditors of PIEs would have to be inspected at least once every three years, instead of at least once every six years, as set out in the earlier instrument. The draft Regulations also propose to commence powers for setting out the framework for determining the equivalence and adequacy of third countries’ oversight arrangements for auditors before rather than after exit day, to ensure that the framework can be put in place before exit and to provide certainty and clarity to those affected. In addition, the instrument seeks to clarify the requirements for the rules that Recognised Supervisory Bodies, such the Institute of Chartered Accountants in England and Wales (ICAEW), must make on the continued recognition of European Economic Area (EEA) auditors after exit, in response to a request from the ICAEW. The instrument also proposes to maintain after exit an audit exemption for companies and Limited Liability Partnerships that are subsidiaries of UK parent undertakings, while not maintaining this exemption for subsidiaries of parent undertakings in the EEA.
25.The Committee has previously referred to the review and reform of the Financial Reporting Council21 and notes that the draft Regulations should be seen in the context of these far-reaching changes in the sector.
Draft Statement of Strategic Priorities for telecommunications, the management of radio spectrum, and postal services
26.The draft Statement of the Government’s Strategic Priorities for telecommunications, the management of radio spectrum, and postal services (“the Statement”) was laid before Parliament by the Secretary of State for Digital, Culture, Media and Sport on 18 July 2019, pursuant to Section 2C of the Communications Act 2003.22 The accompanying Explanatory Memorandum (EM) notes that the purpose of this Statement is to give Ofcom context and guidance on the Government’s policy priorities and desired outcomes in a number of areas.23 This includes gigabit-capable broadband deployment, 5G, spectrum management, the security and resilience of telecoms infrastructure, and furthering the interests of telecoms consumers. The EM notes that Ofcom must have regard to the Statement when exercising its regulatory functions relating to telecommunications, the management of the radio spectrum, and postal services.24 The statement follows a statutory consultation that ran between 15 February and 27 March 2019.25 The EM notes that there were over 70 responses to the consultation from a range of stakeholders, including telecoms companies, trade bodies, consumer and rural groups, and local government.26 The Department states that: “Overall, most respondents broadly supported many of the Government’s strategic priorities and desired outcomes”.27 The Committee notes with disappointment that, at the time of writing, the EM provided by the Department on 20 August 2019 has not been published by DCMS.
Preparatory Action on Defence Research and European Defence Industrial Development Programme (EU Exit) Regulations 2019 (SI 2019/1114)
27.The purpose of this instrument is to revoke EU legislation on two EU programmes: the financing of the Preparatory Action on Defence Research (PADR) programme, a three-year programme that runs until 2019 with a budget of €90 million and is aimed at testing the feasibility of a potential EU defence research programme (European Defence Fund) under the EU’s next Multi-Annual Framework (2021-2027); and the European Defence Industrial Development Programme (EDIDP), a two-year programme established in March 2019 to support the competitiveness and innovation capacity of the EU’s defence industry. EDIDP has a budget of €500 million to co-finance the joint development of defence products and technologies. The Ministry of Defence (MoD) explains that the EU legislation that is being revoked by this instrument puts in place internal EU arrangements which will become redundant when the UK leaves the EU. The instrument also empowers the Secretary of State to provide financial assistance in case the EU ceases to provide funding to UK participants in PADR and EDIDP in a ‘no deal’ exit scenario, in line with the Government’s Guarantee that underwrites all successful UK bids for EU funding until the end of 2020. According to the MoD, the extent of financial assistance that may be required is difficult to estimate due to certain unknown factors, including whether UK companies will bid successfully for new PADR and EDIDP funding in 2019 and whether the EU would allow UK projects to continue after exit. Following engagement with the defence sector, the MoD estimates that the total financial assistance required would be less than £2.5 million. The MoD says that five UK companies took part in PADR in 2017 and 2018, and that it is continuing to engage with UK industry to understand their plans for new PADR and EDIDP funding bids. The MoD has committed to update Parliament should its estimate be exceeded.
Air Navigation (Cosmic Radiation: Protection of Air Crew and Space Crew and Consequential Amendments) Order 2019 (SI 2019/1115)
28.In the Explanatory Memorandum (EM) accompanying this Order, the Department for Transport (DfT) states that this instrument implements Council Directive 2013/59/Euratom, known as the Basic Safety Standards Directive (BSSD), in so far as it applies to basic safety standards for protection against the risks arising from air and space crew being exposed to cosmic radiation. It replaces provision currently contained in the Air Navigation Order 2016 (“ANO 2016”) implementing Council Directive 96/29/Euratom which has been superseded by the BSSD. The Department notes that the instrument applies to aircraft operators established or with a principal place for business in the UK. It also applies to operators of spacecraft launched from the UK. The Order requires operators to assess each crew member’s potential exposure to cosmic radiation. The Department notes that: “If crew will be exposed to more than 1 millisievert (mSv) of cosmic radiation in a calendar year the operator must be authorised.” The EM states that: “Crew members that will be exposed to more than 6 mSv in a calendar year (“classified crew members”) should be medically assessed and be fit under the task concerned. In addition, classified crew members should have their exposure monitored and be subject to medical surveillance.” Operators are required to provide crew members with information on their assessed exposure and, as far as reasonably practicable, to minimise their exposure to cosmic radiation. Paragraph 7.3 of the EM notes that: “We do not expect any aircraft crew to reach the 6 mSv threshold.” DfT has stated: “At this time there are no spacecraft affected by the Order”.28 This instrument also establishes a number of offences and penalties. The EM notes that: “These penalties are in line with those applicable to existing cosmic radiation provisions in the ANO 2016 and to the equivalent offences set by the Ionising Radiation Regulations 2017 in relation to ground-based workers”.
School Teachers’ Incentive Payments (England) Order 2019 (SI 2019/1133)
29.In the Explanatory Memorandum (EM) accompanying this Order, the Department for Education (DfE) states that the purpose of this instrument is to ensure that incentive payments to school teachers under three schemes (the Mathematics Early-Career Payments Pilot; the Mathematics and Physics Teacher Retention Payments Pilot; and the Teachers’ Student Loan Reimbursement Pilot) are not to be treated as remuneration under the School Teachers’ Pay and Conditions Document (STPCD). The Department notes that this is necessary to make it clear that these incentive payments are not pensionable nor part of the statutory negotiation process provided for with regard to the STPCD under section 122(1) of the Education Act 2002. DfE is offering all three schemes to incentivise the retention of eligible teachers. Paragraph 7.5 of the EM states that:
“The schemes are targeted at priority subject teachers and weighted towards areas of high need, as determined by our published data covering standards and capacity to improve. The Department is completing evaluations of all three schemes to assess the impact of the payments on the retention of eligible teachers. The schemes may be expanded and offered to more teachers in future.”
Teachers’ Pensions Schemes (Amendment) Regulations 2019 (SI 2019/1134)
30.In the accompanying Explanatory Memorandum (EM), the Department for Education states that key changes implemented by this instrument include: providing civil partners and same-sex spouses with the same survivor pension benefits as widows; removal of the requirement to nominate unmarried cohabiting partners for survivor benefits; and miscellaneous and consequential amendments to scheme rules to provide clarification where ambiguity exists and to ensure scheme regulations provide for the policy intention. Paragraph 10.1 of the EM sets out that the proposals and draft SI were published for consultation on 15 May 2019, with the consultation closing on 25 June 2019. The EM states that all respondents welcomed the equalisation of same-sex survivor benefits with those payable to widows and the removal of the nomination form requirement for an unmarried partner to be eligible to receive a survivor’s pension. The Committee would like, however, to draw the attention of the House to paragraph 10.3 of the EM which states that:
“Several respondents stated that whilst they understood this consultation was about the [Teachers’ Pension Scheme] providing equal provision of survivor benefits to those in a same-sex relationship as those provided in an opposite-sex relationship, they felt it was appropriate to comment on what they feel is the continued unequal treatment of male survivors of opposite-sex marriages.”
The EM goes on to explain that the consultation response document made clear that this is a separate area of consideration for the Government.
REACH etc. (Amendment etc.) (EU Exit) (No. 3) Regulations 2019 (SI 2019/1144)
31.The Regulations introduce transitional provisions in relation to applications for authorisation of certain hazardous chemicals in response to concerns raised by industry and following the delay of EU exit. This is the second update of the original Regulations which sought to replicate the EU’s regulatory regime for chemicals (REACH) in a UK domestic context. The Committee cleared this instrument when it was laid initially as a proposed negative instrument.29 There are no concerns about the content of the instrument which does not propose new policies and, according to the Department for Environment, Food and Rural Affairs (Defra), extends the scope of transition arrangements to avoid the risk of disruption to chemical supply chains after EU exit. Defra has informed the Committee, however, that contrary to the Explanatory Memorandum, not all Devolved Administrations have consented to the instrument. While Wales has provided consent and, in the absence of a Northern Ireland Executive and Assembly, the Northern Ireland civil service has been consulted, consent from the Scottish Parliament has not yet been obtained. Defra has told the Committee that:
“The Scottish Government notified the Scottish Parliament on 18 June that it proposed giving its consent to the REACH etc. (Amendment etc.) (EU Exit) (No. 3) Regulations 2019. The Scottish Parliament went into recess on 30 June, which meant that the 28 days consideration period was still ongoing at the time the instrument was made and laid before Parliament on 18 July. The department has apologised for this oversight and is liaising closely with the Scottish Government, and through them with the Scottish Parliament, on how to rectify the situation. The department has also put in place further safeguarding procedures to avoid any repetition in the future.”
32.The Committee welcomes that the Department has strengthened its oversight procedures: it is essential that, where appropriate, statutory instruments are made and laid before Parliament only once formal consent has been obtained from the Devolved Administrations.
Export Control (Amendment) (No. 2) Order 2019 (SI 2019/1159)
33.The purpose of this instrument is to introduce a new national export control for submersible vessels and related equipment, software, and technology intended for export to Russia. The Department for International Trade (DIT) explains that the new control means all exports of equipment that could help Russia develop, operate and maintain its underwater capability are prohibited unless a licence is granted, allowing the UK to assess on a case by case basis whether or not a proposed export will pose a threat to national security. According to DIT, the new control is needed in response to Russia’s development of unconventional warfare equipment and capabilities, such as tracking undersea communication cables which carry most of the world’s telecommunications data. The Department says that Russia’s activity could pose a potential threat to the UK’s national security and prosperity given the UK’s dependence on this infrastructure. DIT says that some 15,000 organisations and individuals who are registered with the Department’s Export Control Joint Unit will be notified of the changes.
Treaty between the United Kingdom and Belize concerning the status of United Kingdom Forces in Belize and Defence Cooperation (CP 132)
34.Belize is an important training location for the British Army and the renegotiation of this treaty provides a legal basis for British Army Training Support Unit Belize to continue supporting British Army training for the next 15 years. The relationship is mutually beneficial as Belize also benefits from the provision of training opportunities for the Belize Defence Force, Coastguard and other security forces in the region. The Ministry of Defence states that there are no direct financial implications for the UK, although some indirect financial implications may arise from an Implementing Arrangement to the Treaty, which has not yet been negotiated. This is intended to be a reciprocal arrangement at no additional cost.
Convention establishing the Square Kilometre Array Observatory (CP 154)
35.This Convention ratifies the formation of the Square Kilometre Array (SKA), an international science project to build the world’s largest and most sensitive radio telescope, which will allow scientists insight into the formation and evolution of the first stars and galaxies after the Big Bang, the role of cosmic magnetism, the nature of gravity, and possibly even life beyond Earth. The SKA will be a global facility, with telescopes in South Africa and Australia, and its headquarters in the UK at Jodrell Bank near Manchester. The UK Government have committed £100 million (16%) towards construction of phase 1 of the SKA which will provide an operational array of low and mid frequency antennas from 2023. The UK also plans to contribute around 16% of operating costs (around £85 million to 2025). The SKA will generate 35,000 DVDs-worth of data every second and, therefore, presents unprecedented technology challenges.30 The UK is leading consortiums for two SKA Work Packages—Signal and Data Transport, which handles the volume of data, and the Science Data Processor (SDP), led by Cambridge University, which is focusing on the technology that is needed to turn the data collected into useable science products. The Explanatory Memorandum laid by the Foreign and Commonwealth Office states that the changes that SKA will inspire in high-performance computing are expected to alter the computing landscape for generations, with huge potential for societal and economic benefit.
15 Ministry of Justice, The experience of electronic monitoring and implications for practice: a qualitative research synthesis (12 July 2018): https://www.gov.uk/government/publications/the-experience-of-electronicmonitoring-and-implications-for-practice-a-qualitative-research-synthesis [accessed 4 September 2019].
16 Residues are traces which pesticides leave in treated products. The maximum residue level (MRL) is the highest level of a pesticide residue that is legally tolerated in relation to food or feed.
17 According to Schedule 7 paragraph1(2)(b) of the European Union (Withdrawal) Act 2018, a statutory instrument should be subject to the affirmative procedure if it “relates to a fee in respect of a function exercisable by a public authority” in the UK.
18 Secondary Legislation Scrutiny Committee publications page: https://www.parliament.uk/business/committees/committees-a-z/lords-select/secondary-legislation-scrutiny-committee/publications/.
19 Draft Statutory Auditors and Third Country Auditors (Amendment) (EU Exit) Regulations 2018. See also SLSC (Sub-Committee B) 5th Report, Session 2017–19 (HL Paper 223).
20 PIEs include banks, building societies, insurers and undertakings with securities that are admitted to trading on a regulated market. PIEs are subject to enhanced audit requirements because of the public interest in those audits.
21 SLSC Sub-Committee B, 17th Report, Session 2017–19, HL Paper 293.
23 Explanatory Memorandum (EM), paragraph 2.1.
24 EM, paragraph 2.3.
25 Department for Digital, Culture, Media and Sport (DCMS), Statement of Strategic Priorities for telecommunications, the management of radio spectrum and postal services :Consultation (15 February 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/779226/SSP_Consultation_-_Publication_Version__2_.pdf [accessed 5 September 2019].
26 DCMS, Government response to consultation (July 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/818099/SSP_Government_response_FINAL.pdf [accessed 5 September 2019].
27 EM, paragraph 10.3.
28 Appendix 1 of this Report.
29 See 55th Report, Session 2017–19 (HL Paper 394).
30 See for example House of Commons Science and Technology Committee, The big data dilemma (4th Report, Session 2015–16, HC Paper 468).