Instruments of interest
Draft Legal Services Act 2007 (General Council of the Bar)(Modification of Functions) Order 2018
Draft Legal Services Act 2007 (Appeals From Licensing Authority Decisions) (General Council of the Bar) Order 2018
12.At present, the regulatory regime applied to barristers is non-statutory, with barristers, in effect, consenting to be contractually bound by the rules of the Bar Standards Board (BSB).4 This arrangement is underpinned by a series of agreements between the Bar Council, the Inns of Court, the Bar Tribunals and Adjudication Service and the BSB. The BSB believes that some of its regulatory functions, including in relation to individual barristers, should be put on a statutory footing to enable it to regulate the whole profession more effectively and efficiently, and that is what the Modification of Function Order seeks to achieve. The Appeal Order proposes that appeals about decisions made by the General Council of the Bar, in its capacity as a licensing authority, should be heard in the General Regulatory Chamber of the First-Tier Tribunal instead of in the High Court.
Draft Littering From Vehicles Outside London (Keepers: Civil Penalties) Regulations 2018
13.The Department for Environment, Food and Rural Affairs (Defra) has laid this draft Order with an Explanatory Memorandum (EM). The Order confers a power on district councils in England (outside London) to require the keeper of a vehicle to pay a fixed (civil) penalty if there is reason to believe that a littering offence has been committed from the vehicle. Defra explains that borough councils in London already have powers5 to impose a penalty charge on the owner of vehicles from which litter is thrown, but these powers are not currently available in the rest of England. Defra says that littering is a criminal offence, and enforcement action (issue of a fine or prosecution) should be taken only when the council has evidence against the offender to the criminal standard of proof (that is, beyond reasonable doubt). When littering offences take place from a vehicle, it can be difficult for councils to identify the offender with sufficient certainty to take enforcement action. A penalty charge notice is a civil fine which does not carry the risk of a criminal prosecution, and therefore does not require the offence to be proven to a criminal standard of proof.
14.In the EM, Defra says that it consulted on these proposals over 10 weeks to 18 June 2017, and received 181 separate responses, of which 67 were from councils. Defra says that the majority of responses agreed with the Government’s proposals in respect of the proposed exemptions, level of penalty, and penalty for late payment, and suggested no significant changes.6
15.We obtained additional information from Defra about experience in London on the use of penalty charge notices; and also about the position of keepers of vehicles that are stolen. We are publishing this information as Appendix 2. It seems clear that the powers available have not been used widely across London boroughs; Wandsworth Borough Council in particular has experienced difficulties in processing and recovering unpaid penalties, which Defra says are now resolved. The Department has stressed that the Local Government Association has welcomed the new powers; it has also said that the period of 28 days during representations can be made, for example, that a vehicle had been stolen, is consistent with other similar legislation.
Draft Representation of the People (England And Wales)(Amendment) Regulations 2018
Draft Representation of the People (Scotland) (Amendment) Regulations 2018
Draft Representation of the People (Northern Ireland)(Amendment) Regulations 2018
16.In response to representations made, these three Regulations amend the current regulations made under the Representation of the People Act 1983 throughout the UK. The main change they make is to lower the evidence threshold required for people, for example the survivors of domestic abuse, who wish to register anonymously because their safety could be put at risk if their details appear on the electoral register. The representations were concerned that the threshold of evidence required for anonymous registration was originally set too high, requiring a court injunction or the attestation of a Police Superintendent: these changes lower the evidence required to include attestations by Police Inspectors, medical staff and officials of recognised refuges. Except in Northern Ireland where required provisions are already in place, the Regulations also amend the wider aspects of the registration system, to add certain warnings on the application form for the Parliamentary and local government registers, to expand the sources of information which can be used to delete deceased voters and to change the status of some correspondence from mandatory to discretionary.
Whole of Government Accounts (Designation of Bodies) Order 2017 (SI 2017/1259)
17.HM Treasury (HMT) has laid this Order with an Explanatory Memorandum (EM). HMT states that the Order identifies bodies to be included in the consolidated Whole of Government Accounts (WGA) for the year ending 31 March 2017, and that designating these bodies enables HMT to require them to provide the necessary audited financial information, in a specified form and to a specified timescale, for the preparation of the WGA. It also says that the reasons for preparing the WGA include providing better transparency and accountability to Parliament, as well as improved information for fiscal policy.
18.We asked HMT for details of the use made of the WGA, and were told that HMT has quarterly meetings with the executive leadership from the National Audit Office, at which the WGA form part of the discussions. The House of Commons Public Accounts Committee (PAC) has annual hearings on the WGA: at the most recent PAC hearing, on 29 November 2017,7 the Committee discussed the 2015-16 WGA publication. HMT said that it was currently awaiting the report from the Committee and would respond to the recommendations contained in it in due course. We also obtained additional information from HMT about the exclusion or inclusion in the latest WGA of bodies which were either present in, or absent from, the previous Order; and about what action had been taken in relation to the qualification of the WGA 2015-16 mentioned in the EM.
19.We consider that all these details should have been included in the EM as laid before Parliament in order to assist the process of scrutiny, and we have asked HMT to revise and re-lay the EM accordingly.
Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 (SI 2017/1306)
20.The Department for Education (DfE) has laid these Regulations with an Explanatory Memorandum (EM). On 20 December 2017, the Minister of State for Children and Families (Mr Robert Goodwill, MP) made a Written Statement8 in which he referred to a Government commitment (of March 2017) to introduce a two-year national trial to expand the powers of the First-tier Tribunal (SEND) to make non-binding recommendations on the health and social care aspects of Education, Health and Care (EHC) plans, alongside the educational aspects. The Minister announced that these Regulations were being laid to allow a national trial on “the single route of redress” to proceed, and to run for two years from April of this year. In the EM, DfE gives more details about the national trial, including the membership of an external steering group of key stakeholders which will support the project (with planning, implementation, communication and monitoring), and the Department’s intention to appoint an external organisation to carry out an evaluation which will inform a decision on future roll-out of this approach.
Town and Country Planning (Permission in Principle) (Amendment) Order 2017 (SI 2017/1309)
21.The Ministry of Housing, Communities and Local Government (MHCLG) has laid this Order with an Explanatory Memorandum (EM). MHCLG says that local planning authorities already have powers to grant permission in principle (which is intended to separate decision-making on “in principle” issues addressing land use, location, and amount of development, from matters of technical detail) to suitable sites allocated on registers of brownfield land.9 The Order extends this consent regime by giving developers the opportunity to identify sites and make an application to the local planning authority for a grant of permission in principle. The right to make such an application is only available for minor development as defined in the Order, that is, for small sites that support fewer than 10 dwellings.
22.In the EM, MHCLG says that consultation on the planning changes was undertaken between 18 February and 25 April 2016; and that concerns were expressed by some respondents that the proposed determination period of five weeks (the amount of time the local planning authority has to reach a decision) would not allow the public and other interested parties enough time for proper consideration of the issues. However, the Government’s view is that the proposed period would allow the in-principle matters adequate engagement to take place: the five-week period is therefore being prescribed in the Order.
23.We obtained additional information from MHCLG about the consultation responses, which we are publishing as Appendix 3. As regards the proposed determination period of five weeks for permission in principle, 97 respondents were in agreement, but 276 respondents were not. As regards the possibility that the five-week period might coincide with a holiday season, MHCLG has told us of a Government commitment to require local planning authorities to extend the period of public consultation for planning applications by one day for each bank/public holiday that falls within the relevant period: the Order will be amended accordingly.
Criminal Legal Aid (Amendment) Regulations 2017 (SI 2017/1319)
24.In December 2013, the Ministry of Justice implemented changes which narrowed the scope of criminal legal aid available for those already in prison. These changes were challenged by judicial review and, in its judgment of 10 April 2017, the Court of Appeal10 concluded that without legal aid there was an unacceptable risk of unfair decision-making in three categories of prison law:
- Pre-tariff review11 hearings and other advice cases involving life and other indeterminate sentence prisoners appearing before the Parole Board where the Board does not have the power to direct release but advises the Secretary of State on whether the prisoner is suitable for a move or return to open conditions;
- Category A prisoner reviews, where subject to their progression, a high security prisoner may be moved to a less restrictive security category; and
- Directions about placing a prisoner in a close supervision centre within a prison, which are applied to particularly violent or disruptive prisoners.
25.The Lord Chancellor has decided to address the Court’s concerns by reinstating criminal legal aid for those three categories of prison law review. In addition, because of the strong parallels between close supervision centres and separation centres, the Lord Chancellor has also decided to make criminal legal aid funding available for advice and assistance regarding directions as to a prisoner’s placement in a separation centre within a prison. (Separation centres are part of the Government’s wider strategy to combat the spread of extremism in prisons.)
Non-Domestic Rating (Rates Retention) (Amendment) Regulations 2017 (SI 2017/1321)
26.The Ministry of Housing, Communities and Local Government (MHCLG) has laid these Regulations, which modify arrangements introduced by Regulations from 201612 allowing “pilot authorities” to keep the 50% share of business rates which otherwise went to Government, if their non-domestic rating income exceeded a “baseline” amount: the policy was intended to encourage authorities to “grow their local economies”. The 2016 Regulations gave effect to the Government’s agreement to establish “growth pilots” in Greater Manchester, Cheshire East, Cambridgeshire and Peterborough, to run for three years, up to and including financial year 2017-18.
27.The latest Regulations provide for authorities in the areas of the West Midlands and Tees Valley (where Combined Authorities with elected Mayors have been established in the last year or so) to become “growth pilots” on the same basis as the earlier pilots. They also provide that the existing “growth pilots” in Cheshire East, and Cambridgeshire and Peterborough, will come to an end after 31 March 2018. We obtained additional information from MHCLG about the interaction between business rates pilot schemes, and policy on devolution to cities and local government, which we are publishing at Appendix 4. This clarifies that, while Greater Manchester has already been removed from the additional growth pilot arrangements dating from 2016, it is now the beneficiary of another scheme - “100% business rates pilots” – which Cambridgeshire and Peterborough tried, and failed, to join.
Rent Officers (Housing Benefit and Universal Credit Functions) (Amendment) Order 2017 (SI 2017/1323)
28.Following an announcement in the Summer Budget in 2015, the Government made regulations to freeze Local Housing Allowance (LHA) rates for four years from April 2016.13 At the same time, in mitigation, the Government also announced that it would make provision through “Targeted Affordability Funding” (TAF) for high rent areas where the LHA rates have diverged the most from local rents: this instrument delivers that commitment. It provides for certain LHA rates to be increased by 3% in certain areas, where higher rent increases are causing affordability problems for Housing Benefit and Universal Credit tenants in the private rented sector. The maximum LHA levels or national “caps” will also be increased by 3% for 2018-19. The Department for Work and Pensions states that it will be using the TAF to increase 213 LHA rates in 2018-19 and the new amounts are set out in this instrument. The money from the TAF which will be used to finance these increases is derived from 50% of the savings from the LHA freeze policy for 2018-19. Rent Officers will publish the 30th percentile of market rents and the new LHA rates on 31 January 2018.
4 The General Council of the Bar (the Bar Council) is an approved regulator for the reserved legal activities of the exercise of a right of audience, the conduct of litigation, reserved instrument activities, probate activities and the administration of oaths. The Bar Council has delegated its regulatory functions to the Bar Standards Board.
5 Under section 24 of the London Local Authorities Act 2007 (amended in 2012).
6 Defra, Review of fixed penalties for environmental offences and introduction of civil penalties for littering from vehicles outside London: summary of responses, August 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/640295/penalties-for-environmental-offences-summary-of-responses.pdf
7 See: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/public-accounts-committee/government-borrowing/oral/74818.pdf
9 Under the Town and Country Planning (Permission in Principle) Order 2017 (SI 2017/402).
10 [2017] EWCA Civ 244
11 The tariff is the minimum length of time that the prisoner is ordered to stay in prison before they can be considered for release.
12 The Non-Domestic Rating (Rates Retention) (Amendment) Regulations 2016 (SI 2016/1268).
13 Rent Officers (Housing Benefit and Universal Credit Functions) (Local Housing Allowance Amendments) Order 2015 (SI 2015/1753).