Second Report Contents

Instruments of interest

Draft Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-Jury Trial Provisions) Order 2017

14.This instrument provides for a fifth extension of the temporary provision that allows trial without jury for certain cases in Northern Ireland (the system that replaced “Diplock courts”). Current provision will run out on 31 July 2017 and this instrument would keep this option available for a further two years. The use of such courts is dependent on the Director of Public Prosecutions (DPP) in Northern Ireland issuing a certificate stating that certain conditions, set out in the Justice and Security (Northern Ireland) Act 2007 (“the 2007 Act”), are met, such as potential prejudice or witness intimidation. In 2015 these non-jury trials represented 1.6% of Crown Court trials in Northern Ireland, the provisional figure for 2016 is 0.7%.

15.When the legislation was last reviewed in 2015 there was some opposition to the further extension of the system, on the ground that the conditions in Northern Ireland were becoming no different to those in the rest of the UK. The Government undertook to conduct a public consultation on the matter:7 of the ten responses received only one opposed the extension, however there was some wider criticism of a perceived lack of accountability in the DPP’s decision making process and suggestions that greater consideration should be given to alternative juror protection measures. In the light of the comments made, the Secretary of State has decided to introduce regular independent reviews of the operation of these provision as part of the annual report required under section 40(3) of the 2007 Act.

Data Reporting Services Regulations 2017 (SI 2017/699)

Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (SI 2017/701)

16.These instruments are part of a series which transpose the new regulatory regime to create more robust and transparent financial market structures into UK law. In particular they deal with the government of data reporting service providers under MiFID II.8 These instruments were laid on 22 June and some parts came into force on 3 July 2017. Although HM Treasury state that this was a regrettable necessity due to the interruption caused by the general election, we again question the reasonableness of so short an implementation period. Not only did this curtail Parliamentary scrutiny but it also allowed those firms affected only eight working days to adjust their systems to comply with the requirements.

Nursing and Midwifery Order (Legal Assessors) (Amendment) and the Nursing and Midwifery Council (Fitness to Practise) (Amendment) Rules Order of Council 2017 (SI 2017/703)

17.Our 22nd Report of last Session9 drew attention to the Draft Nursing and Midwifery (Amendment) Order 2017 which aimed to save money by streamlining the investigation of fitness to practice concerns. That Order was approved and made as SI 2017/32110. The current instrument transposes that legislation into the Nurses’ and Midwives’ professional rules of conduct. One of the concerns raised in our 22nd Report was that guidance was not available to Parliament during the scrutiny process on issuing disciplinary warnings where ‘no case to answer’ had been found, especially on the interpretation of specific terms or on how decisions should be made. That guidance has now been published.11 It gives a clearer expression of the way that the legislation is intended to work, for example that a warning will only be appropriate where the nurse or midwife has accepted the regulatory concern, demonstrated sufficient insight into the concern and provided evidence of suitable remediation; and that a warning is not appropriate where there is any risk to patients as a result of the clinical practice in question. This answers a number of the questions we raised in our 22nd Report and demonstrates our point that guidance that interprets the legislation, or sets out how decisions should be made, needs to be laid at the same time as the Statutory Instrument to which it relates.

Equality Act 2010 (General Qualifications Bodies) (Appropriate Regulator and Relevant Qualifications) (Amendment) (England) Regulations 2017 (SI 2017/705)

18.Section 96 of the Equality Act 2010 places a duty on bodies awarding qualifications to make reasonable adjustments to take account of pupils’ disabilities when they are taking certain qualifications. Section 96(7) of that Act allows the appropriate qualifications regulator, Ofqual in England, to set the appropriate limits. The original Regulations in 2010 included an extensive list of the types of general qualifications that students undertake in school (and which are not qualifications in relation to a particular trade or profession). The current Regulations update the list of relevant qualifications that are subject to these provisions by adding three types of qualifications to the list: Cambridge IGCSEs, International GCSEs and ESOL (English for Speakers of Other Languages) because they are typically used by schools and colleges as alternatives to qualifications on the existing list. In addition, the Regulations remove from the list a number of qualifications that are no longer offered in England (Certificates in Adult Literacy and Numeracy, General National Vocational Qualifications, Key Skills and the Welsh Baccalaureate Qualifications Core Certificate). The Government state that the overall effect of updating the list to reflect the current qualifications landscape in England will be to ensure that candidates are treated fairly across comparable qualifications.

8 Directive 2014/5/EU of 15 May 2014 on markets in financial instruments (recast) (OJ L173, 12/6/2014, p 349).

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