Twenty Second Report Contents

Instruments of interest

Draft Welsh Ministers (Transfer of Functions) (Railways) Order 2018

5.In November 2014, the UK Government announced that agreement had been reached, in principle, to devolve executive franchising functions to the Welsh Ministers so that the Welsh Government could lead the procurement of the next Wales and Borders railway franchise, which is due to commence operations on 14 October 2018. This Order would facilitate that by transferring certain functions of the Secretary of State relating to railways to the Welsh Ministers and to provide for certain other functions to be exercisable concurrently by the Secretary of State and the Welsh Ministers. This Order is concerned primarily with functions connected with the franchising of railway passenger services and with functions relating to the discontinuance of railway services and the closure of stations.

6.The functions transferred by this Order to the Welsh Ministers broadly follow those transferred to Scottish Ministers by the Railways Act 2005, except in relation to cross-border services. The Order provides that the Welsh Ministers may designate, in addition to Wales-only services, only Welsh components of Welsh services. To ensure that the cross-border links can continue and be further developed, the Order will operate alongside an agency agreement which will allow the Welsh ministers to procure and manage a single franchise that can also operate to, from and within England subject to certain obligations.

Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 (SI 2018/221)

7.The Ministry of Housing, Communities and Local Government (MHCLG) has laid this Order with an Explanatory Memorandum (EM) and Impact Assessment. The Order extends the scope of mandatory licensing of Houses in Multiple Occupation (HMOs) in England.2 MHCLG says that, by prescribing a broader description of HMO than in an earlier Order,3 the effect is that mandatory licensing will apply to HMOs that are below three storeys (if they are occupied by five or more persons in two or more separate households) as well as to those of three or more storeys. MHCLG estimates that an additional 177,000 HMOs (on top of the existing 60,000) will become subject to mandatory licensing in England. It says that, by 1 October 2018 (when the Order comes into force) local housing authorities (LHAs) must promote the extension of mandatory licensing in their areas, and must also process applications for licences relating to those HMOs prescribed by this instrument. We obtained additional information about the scale of the task faced by LHAs, which we are publishing as Appendix 2. MHCLG has said that there have not been problems with local authorities processing applications in the past, but that it understands the need for good planning. We are not persuaded that this significant extension of licensing can be readily achieved in the relatively short period until the Order takes effect, and we are writing to the Minister.

Motorways Traffic (England and Wales) (Amendment) Regulations 2018 (SI 2018/222)

Motorways Traffic (Scotland) (Amendment) Regulations 2018 (SI 2018/225)

8.The Government’s 2015 statement on road safety, “Working Together to Build a Safer Road System”,4 identified that young drivers are at least five times more likely to be killed or seriously injured on the roads than those over 25. This is in part due to young drivers having to face new situations which they are not properly prepared for, one of which is a lack of experience in driving on motorways. These instruments will allow learner drivers to have lessons on motorways, provided that they are accompanied by an approved driving instructor in a dual controlled car, so that they can gain a broader range of driving experiences prior to obtaining their driving licence.

Civil Procedure (Amendment) Rules 2018 (SI 2018/239)

9.The Aarhus Convention requires Contracting States to make sure that the costs for an individual taking certain environmental challenges through the courts are not prohibitively expensive. Our 25th Report of Session 2016-175 drew attention to a change to the Civil Procedure Rules,6 which gave the courts discretion to put cost caps up or down according to the claimant’s resources. Our Report noted respondents’ concerns that the uncertainty over costs that this legislation introduced would deter people from pursuing genuine claims. A group of environmental charities subsequently challenged the February 2017 changes through the courts, arguing that they were not compliant with EU law. Judgment was given by the High Court on 15 September 2017.7 In summary, the judgment concluded that the costs protection regime as amended in February 2017 was compliant with EU law, save that an application to vary costs caps in an Aarhus Convention claim should be heard in private. However the judgment also concluded that the costs protection rules would benefit from clarification to reflect the agreed understanding of how they are intended to operate, thereby providing certainty and minimising any possible “chilling effect” which might be caused by this uncertainty. The Ministry of Justice intend the rule amendments included in this instrument to address the High Court’s concerns regarding clarification.

Higher Education and Research Act 2017 (Consequential, Transitional, Transitory and Saving Provisions) Regulations 2018 (SI 2018/245)

10.In our 14th Report of this Session,8 we drew to the attention of the House the draft Higher Education (Access and Participation Plans) (England) Regulations 2018, and three other instruments, which related to the establishment and operation of the Office for Students (OfS), the new regulator of higher education providers. The OfS will replace both the Higher Education Funding Council for England (HEFCE) and the Office of the Director of Fair Access (DFA) to Higher Education from 1 April 2018. We noted that the Department for Education (DfE) intended to lay a further instrument to provide that, from 1 April 2018, HEFCE and the DFA would cease to exist, and the OfS would take on their statutory functions during the rest of academic year 2017-18 and the whole of academic year 2018-19.

11.SI 2018/245 serves that purpose (alongside the Higher Education and Research Act 2017 (Commencement No. 3) Regulations 2018). In the Explanatory Memorandum to the Regulations, DfE says that keeping alive the functions of HEFCE and the DFA, albeit operated by the OfS in 2017-18 and 2018-19, will ensure a smooth transition to the new regime of registration of higher education providers, administered by the OfS.

Borough of Weymouth and Portland (Change to Year of Election) Order 2018 (SI 2018/256)

12.In a Written Ministerial Statement on 26 February 2018,9 the Secretary of State for Housing, Communities and Local Government said that he had decided to implement, subject to Parliamentary approval, a “locally-led proposal to replace the existing nine councils across Dorset10… by two new councils”. He also said that he intended to lay drafts of the necessary secondary legislation to give effect to the decision, as well as an Order to delay for one year the May 2018 local elections in Weymouth and Portland “so as to avoid members being elected for only one year if Parliament approves the legislation establishing the new councils”. SI 2018/256 provides for that delay. In the Explanatory Memorandum, the Ministry of Housing, Communities and Local Government (MHCLG) says that, in August 2017, Weymouth and Portland Borough Council wrote to the Secretary of State seeking to defer the scheduled elections by a year (if the reorganisation proposal were implemented), “to avoid the unnecessary costs and democratic accountability concerns of electing councillors for only one year”. SI 2018/256 has come forward in advance of the laying of the draft Dorset (Structural Changes) (Modification of the Local Government and Public Involvement in Heath Act 2007) Regulations 2018 and the draft Bournemouth, Dorset and Poole (Structural Changes) Order 2018, which will embody the reorganisation proposals. We obtained additional information from MHCLG about the effect of these Regulations, which we are publishing as Appendix 3.

Housing and Planning Act 2016 (Database of Rogue Landlords and Property Agents) Regulations 2018 (SI 2018/258)

13.In our 13th Report of this Session,11 we drew the draft Housing and Planning Act 2016 (Banning Order Offences) Regulations 2017 to the attention of the House, noting that, where someone had been convicted of a “banning order offence”, the local authority would be able to apply to a First-tier Tribunal for an order banning that landlord or property agent from being involved in the management of property. We noted as well that a national database of rogue landlords and property agents was to be set up, and that the Government intended to bring forward a further instrument to specify the information to be recorded by local authorities on the database which was to be introduced at the same time as the banning order Regulations were proposed to come into force, namely, 6 April 2018.

14.In the Explanatory Memorandum to SI 2018/258, the Ministry of Housing, Communities and Local Government (MHCLG) confirms that local housing authorities are to be responsible for maintaining the content of the database, and states that the Regulations set out for local housing authorities the information that they must include when making an entry. This includes the person’s address or other contact details; the period for which the entry is to be maintained; details of properties the person owns, lets or manages; details of any banning order offences of which the person has been convicted; and details of any banning orders made against the person, whether or not still in force.

M3 Motorway (Junctions 2 to 4a) and M25 Motorway (Junction 12) (Speed Limits) (Miscellaneous Amendments) Regulations 2018 (SI 2018/259)

15.There has been a particular problem for heavy goods vehicles (HGVs) at this junction. A fixed speed limit of 50mph was introduced to ensure that HGVs travelling on the M3 westbound carriageway (towards Southampton) at junction 2, are able to navigate safely to the nearside lanes prior to the commencement of the variable speed limit. These Regulations remove a short stretch of national speed limit, extend the existing 50mph and variable speed limits on the westbound carriageway, and change the reference point for the start of the 50mph speed limit on the slip road from the anticlockwise carriageway of the M25 at junction 12 to the westbound carriageway of the M3. This is to reflect the physical changes recently made to the junction and to improve safety.

Local Land Charges Rules 2018 (SI 2018/273)

16.Local land charges are charges or restrictions on land which are governmental in character and imposed by public authorities under statutory powers: common examples are smoke control orders and conditions attached to planning permissions. They affect whoever owns the land and so must be registered to alert purchasers to their existence. The current regime under the Local Land Charges Act 1975 provides for the registration system and the fees for it to be specified by each local authority. The Infrastructure Act 2015 amended the 1975 Act, so that, in future, the local land charges registers kept by each local authority will be replaced by a national register kept by the Chief Land Registrar. Transition will be made by a rolling programme and initiated by the Chief Land Registrar. These new Rules make the necessary detailed provision about how this new register is to work. New fees rules for England will also need to be introduced. Both will only have effect in a specific local authority area from the date notified by the Chief Land Registrar.

2 MHCLG intends to lay a separate instrument, subject to the affirmative procedure, in order to extend mandatory licence conditions in HMOs to include those relating to minimum sleeping accommodation standards, maximum occupancy of such rooms and the disposal of domestic waste in HMOs.

3 The Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 (SI 2006/371).

4 Department for Transport, Working Together to Build a Safer Road System, British Road Safety Statement, December 2015: [accessed 7 March 2018]

5 25th Report, Session 2016-7 (HL Paper 114).

7 CO/1011/2017 The Royal Society for the Protection of Birds, Friends of the Earth Limited and Client Earth v Secretary of State for Justice and Lord Chancellor [2017] EWHC 2309 (Admin).

8 14th Report, Session 2017-19 (HL Paper 56).

9 HC Deb, 26th February 2018, HCWS486.

10 Namely, the two unitary councils of Bournemouth and Poole and the two-tier structure of Dorset County Council and the district councils of Christchurch, East Dorset, North Dorset, Purbeck, West Dorset, and Weymouth & Portland.

11 13th Report, Session 2017-19 (HL Paper 49).

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