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Twenty-Third Report Contents

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Instruments of interest

Draft Functions of the Investigatory Powers Commissioner (Oversight of the Data Access Agreement Between the United Kingdom and the United States of America and of Functions Exercisable Under the Crime (Overseas Production Orders) Act 2019) Regulations 2020

7.We drew the Agreement reached by the United Kingdom and the United States of America on access to electronic data for the purpose of countering serious crime5 to the special attention of the House in our 3rd Report of Session 2019.6 While it allows data requests from the other country to be processed much more quickly, it raised the possibility, albeit remote, that a UK citizen’s data could be sought in relation to a crime that could result in the death penalty or transfer to the Guantanamo Bay detention facility. Given the gravity of the matter, we took the view that even a theoretical possibility was alarming and drew the Agreement to the special attention of the House on the ground that it may imperfectly achieve its policy objective. The purpose of the current instrument is to provide a statutory basis, under both the Crime (Overseas Production Orders) Act 2019 and the Investigatory Powers Act 2016, for the Investigatory Powers Commissioner to review compliance with the Agreement by public authorities (including by way of audit, inspection, and investigation). We are pleased to note the introduction of this element of independent oversight which may offer the House some reassurance.

Draft Mobile Homes (Requirement for Manager of Site to be Fit and Proper Person) (England) Regulations 2020

8.These draft Regulations propose to prohibit the use of land as a residential mobile home site unless the local authority is satisfied that the owner or manager of the site is a fit and proper person to manage it. The instrument also sets out the matters that local authorities should take into account when making a fit and proper person assessment, provides for the establishment of a fit and proper person register and sets out procedures for applying for inclusion on the register, appeals and enforcement (including the creation of criminal offences). The Ministry of Housing, Communities and Local Government (MHCLG) explains that the Mobile Homes Act 2013 introduced a new mobile home site licensing regime in England with the aim of raising standards in the industry and strengthening the ability of local authorities to enforce, where necessary, the licence obligations on mobile home site owners. A review of the effectiveness of the Act in 20177 concluded that some site owners were continuing to disregard the law and harass and financially exploit residents, who are mostly elderly and on low incomes. Consultation on the proposals for a fit and proper person test between 22 July and 17 September 20198 received 370 responses, with 80% showing overall support. MHCLG says that following a co-ordinated response from 160 local authorities and engagement with the Gypsy and Traveller Communities, the proposals were amended to exempt from the fit and proper person requirements non-commercial sites occupied by a single family, as this would have placed a disproportionate burden on residents.

Draft Professional Qualifications and Services (Amendments and Miscellaneous Provisions) (EU Exit) Regulations 2020

9.According to the Department for Business, Energy and Industrial Strategy (BEIS), a key purpose of this instrument is to implement the recognition of professional qualification provisions in the EU Withdrawal Agreement, European Economic Area (EEA) European Free Trade Area (EFTA)9 Separation Agreement and the Swiss Citizens’ Rights Agreement (“the Agreements”) in UK domestic law. The draft regulations seek to protect recognition decisions made before the end of the Transition Period (TP) and to allow applications that are ongoing at the end of the TP to be concluded under the existing rules. With regard to Switzerland, the instrument proposes a four-year grace period during which Swiss nationals who have a qualification, or have started a qualification before the end of the TP, can seek recognition in the UK under the existing rules, and a five-year period during which certain Swiss service providers can continue to provide services in the UK on a temporary and occasional basis, if this is on the basis of a contract that was concluded and service provision started before the end of the TP. We asked the Department what the situation would be for EEA and Swiss nationals who apply to have a professional qualification recognised after the end of the TP. BEIS responded that:

“The Agreements do not provide for arrangements for EEA [that is EU and EFTA] or Swiss nationals who seek recognition after the end of the Transition Period (except as provided by the additional four-– and five-year transitional arrangements for certain Swiss nationals). In 2018-2019, the Government laid various Recognition of Professional Qualifications EU Exit Regulations. These Regulations provide for ongoing recognition systems for certain EEA and Swiss qualification holders to apply for recognition after the Transition Period. Arrangements on the future recognition of professional qualifications (applying after the end of the Transition Period) are being discussed as part of UK-EU Comprehensive Free Trade Agreement [FTA] negotiations. We intend to include appropriate non-discrimination and equal treatment provisions in the FTA. In an FTA context this would be in the form of most-favoured nation and national treatment provisions. We have proposed a national treatment provision in the Mutual Recognition of Professional Qualifications chapter of the UK’s draft legal text.10 The UK Government has set out its intention to agree similar arrangements with the EFTA states.”

10.We note that while an agreement with the EU on the mutual recognition of professional qualifications would be desirable, it is, of course, a possibility that such an agreement might not be reached with the EU, and that the UK Government might not recognise professional qualifications unilaterally.

Draft Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2020

11.The purpose of this instrument is to prescribe the fees that developers will have to pay to local planning authorities if they apply for a recently introduced new ‘permitted development’ right that allows purpose-built detached blocks of flats of three or more storeys to be extended by up to two storeys to create new homes.11 The Ministry of Housing, Communities and Local Government (MHCLG) says that the fees will be £334 per dwelling house for development proposals of 50 or fewer new dwelling houses and, for development proposals of more than 50 new dwelling houses, £16,525 plus an additional £100 for each dwelling house in excess of 50, subject to a maximum fee of £300,000. According to MHCLG, the level of scrutiny required by local planning authorities for prior approval of the new permitted development right is expected to be greater than for other existing types of prior approval; the fees are therefore higher, but below those for a full planning application.

Global Human Rights Sanctions Regulations 2020 (SI 2020/680)

12.Many recent instruments laid under the Sanctions and Anti-Money Laundering Act 2018 have simply reaffirmed continued compliance with UN sanctions after the UK leaves the EU. This instrument, in contrast, enables the UK to impose sanctions in its own right against individuals or organisations who commit a serious violation of certain human rights. Part 2 of the instrument lists the criteria against which a Minister may make a decision to designate a person as being subject to a travel ban or asset freeze (“designated persons”). The names of designated persons are not included in the instrument but are published separately on the Gov.uk website. The instrument is yet to be debated, but the Foreign Secretary has already published a list of 49 names, many of them Russians linked to the mistreatment and death of auditor Sergei Magnitsky, who uncovered widespread corruption in Russia, or Saudi nationals involved in the death of journalist Jamal Khashoggi in Istanbul.12

Protection of Freedoms Act 2012 (Destruction, Retention and Use of Biometric Data) (Transitional, Transitory and Saving Provisions) (Amendment) Order 2020 (SI 2020/688)

13.This instrument further delays, until 31 October 2022, the implementation of the destruction and retention provisions in the Protection of Freedoms Act 2012 (POFA) in relation to “pre-commencement” biometric material taken in Northern Ireland under counter-terrorism powers. In a Written Ministerial Statement on 18 March 2020,13 the Secretary of State for Northern Ireland set out the Government’s proposals to address the legacy of the past in Northern Ireland by means of a Bill. Analysis of this “pre-commencement” biometric material, such as fingerprint or DNA samples, using more modern techniques is potentially important to legacy investigations. The Bill will therefore provide a time-limited alternative mechanism that will govern the retention of this material that will supersede the need for further transitional provisions under POFA.

Pension Protection Fund (Moratorium and Arrangements and Reconstructions for Companies in Financial Difficulty) Regulations 2020 (SI 2020/693)

14.Measures in the Corporate Insolvency and Governance Act 2020 introduce corporate restructuring tools which include a stand-alone moratorium for companies, Limited Liability Partnerships and Charitable Incorporated Organisations in financial difficulty, to give them respite from their creditors. The Pension Protection Fund (PPF) provides compensation to eligible pension scheme members whose employer has become insolvent and cannot meet the scheme’s liabilities. These Regulations enable the PPF to participate in key decisions in the restructuring process by enabling it to exercise creditor rights that would otherwise be exercisable by the scheme trustees or managers.

Draft Midland Metro (Wednesbury To Brierley Hill Land Acquisition) Order 2020

15.This Order seeks to renew the powers of compulsory land acquisition, originally conferred by a 2005 Order’14 for the extension of the Midland Metro Light Rapid Transit System (“the Midland Metro”). The project will extend Line 1 from Wednesbury to Brierley Hill and incorporate 17 new stops. It will run partly along the route of the former South Staffordshire Railway and partly on existing urban streets.

16.A Special Procedure Order (SPO) is required because the project involves, either permanently or during construction, some compulsory acquisition of open space land for which no suitable replacement land is being provided in exchange. The SPO procedure includes a 21-day period for petitions to be laid before each House which will expire on 28 July 2020 in the Lords and on 1 September in the Commons. If any petitions are deposited, a Joint Committee of both Houses will consider those which are proper to be received. Further information on the progress of this instrument will be available on the dedicated Parliamentary webpage.15

17.The Explanatory Memorandum explains the social and economic impetus for the extension but is silent on the reasons why the land purchase powers in the previous order were allowed to lapse in 2010 and renewal is only now being sought. An explanation, provided by the Department for Transport in response to our questions, is included in Appendix 2 of this Report.

Other instruments

18.The Official Controls (Plant Health and Genetically Modified Organisms) (England) (Amendment) Regulations 202016 were laid before Parliament on 31 March 2020 and came into force on 21 April 2020. The Regulations should have been scrutinised by the Committee at its 11th meeting on 21 April 2020 but, due to an oversight, the instrument was not considered by the Committee then or at any subsequent meeting. Unfortunately, we only became aware of this oversight after the prayer period of the instrument had expired on 10 June 2020.

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