Instruments of interest
Draft Passenger, Crew and Service Information (Civil Penalties) (Amendment) Regulations 2022
35.The original Regulations imposed a civil penalty of £10,000 for each offence on rail, air and ferry companies that failed to send accurate and timely information on passengers, crew and services to the Home Office before their arrival or departure from the UK. No such fines have ever been imposed as the deterrent has been effective. To prevent the legislation lapsing at the end of March 2022, these Regulations remove a sunset clause so as to make the legislation permanent. While we welcome the legislation’s success, we disagree with the Home Office’s assumption that the sunset clause was only there to see if the policy operated as intended initially. Sunset clauses are also intended as a mechanism for ensuring regular reviews of a piece of legislation to assess whether it remains effective as circumstances and technology change over time.
Ozone-Depleting Substances (Grant of Halon Derogations) Regulations 2021 (SI 2021/1397)
36.This instrument grants derogations requested by the Ministry of Defence (MOD) for the use of halon-1301 for the protection of engine nacelles and auxiliary power units in new Apache helicopters and Boeing E7 Wedgetail aircraft. The Department for Environment, Food and Rural Affairs (Defra) explains that halons are a type of ozone-depleting substance which have a very limited use in the UK that is tightly controlled and monitored and only permitted in essential applications where no alternatives are available, such as fire extinguishers in ships and aircraft, laboratory and analytical uses, and as feedstock for other chemicals. Imports and exports must be licensed and annual reports on production and consumption must be submitted to the UN Ozone Secretariat. Before Brexit, the European Commission undertook most of the control functions on behalf of the UK, including granting derogations in the case of critical uses of halons. These functions are now carried out by the UK Government.
37.The Explanatory Memorandum states that the derogation granted by this instrument applies to Great Britain only and that EU law continue to apply in Northern Ireland (NI). We asked Defra whether equivalent derogations exist under EU law in NI and if not, whether this will impact on the operation of Apache helicopters or Boeing Wedgetails in NI. The Department told us that: “The ability to grant such derogations is the same under EU law. However, no derogation has been sought by the MOD from the European Commission for the purpose covered by this SI. MOD don’t plan to operate the aircraft out of NI, so there is no need for them to seek such a derogation from the Commission.”
38.As the Boeing Wedgetail is based on a commercial aircraft (Boeing 737), we asked Defra whether the derogation for the use of halon-1301 was also needed for commercial models of that plane which have been in use for many years. The Department explained that the rules require a derogation only for equipment which qualifies as “new equipment” and that:
“The ‘cut-off date’ for halon-based fire suppression systems used to protect engine nacelles and auxiliary power units is 31 December 2014. The different variants of the commercial 737 fall under the same type certification, which was originally issued several decades ago and therefore before the cut-off date. This means they do not fall within the term ‘new equipment’ and so do not require a derogation.
The Wedgetail aircraft that are the subject of this derogation are considered to fall within the term ‘new equipment’. A new type certification for the military Wedgetail aircraft is required as the design and use is different from the civilian version already in service and the Wedgetail’s military type certification (and the MOD’s procurement contract signature) occurred after the relevant cut-off date. Therefore, the Wedgetail falls within the term ‘new equipment’ and so requires a derogation.”
39.The Department also states that the use of halon-1301 is required because there are currently no technically and economically feasible alternatives available. We remain concerned, however, about the environmental impact of using this ozone depleting substance.
Nuclear Safeguards (Fees) Regulations 2021 (SI 2021/1406)
40.This instrument introduces a cost recovery scheme for the regulation of nuclear safeguards.19 The new scheme allows the Office for Nuclear Regulation (ONR) to charge industry for most of the regulatory nuclear safeguards activities it undertakes, including monitoring compliance, inspection and assessment, accountancy, and management activities.
41.The Department for Business, Energy and Industrial Strategy (BEIS) explains that while the UK was part of the Euratom nuclear safeguards regime, industry did not pay for regulation as this was paid for by taxpayers through the UK’s contribution to the EU’s Multiannual Financial Framework. Following the UK’s exit from the EU and the Euratom Treaty, the UK replaced the Euratom safeguards arrangements with a new domestic regime, with the ONR as the UK regulator of nuclear safeguards. The new safeguards regime came into effect on 31 December 2020 and the Government funded the cost of its operation for the first 15 months to ease the transition for industry. This funding will end on 31 March 2022 and the new cost recovery mechanism will start on 1 April, with an estimated equivalent annual net direct cost to business of less than £4 million. The Government will continue to fund some international reporting activities, and there will be exemptions for “qualifying nuclear facilities with limited operation”. Asked whether NHS hospitals or universities which use nuclear material for medical or research purposes would benefit from the exemption, BEIS told us that:
“We anticipate that examples of the types of business that could benefit from the exemption will vary and will range from organisations providing independent research, environmental research, engineering and consulting services; universities; laboratories; to healthcare services providers. However, as the definition is based on the quantity (less than one effective kilogram) and type of qualifying nuclear material held, and the operations undertaken, we cannot say all these types of businesses will be exempt from paying a fee to ONR for the regulatory functions ONR carry out related to their business. In order to benefit from the exemption, each business is considered on a case-by-case basis in order to determine whether they fall within the definition of a “qualifying nuclear facility with limited operation”.
42.BEIS added that:
“Prior to becoming the domestic safeguards regulator, ONR worked closely with Euratom to facilitate their safeguards activities in the UK. As a result, ONR has long-term and comprehensive knowledge of the organisations subject to safeguards regulation. ONR has confirmed to BEIS that all universities/research establishments and hospitals who are subject to safeguards regulation in the UK do qualify for the exemption from cost recovery.”
BEIS also told us that the policy was tested through a twelve-week public consultation as well as more targeted engagement, including with the Association of University Radiation Protection Officers. BEIS says that one NHS Teaching Hospital Trust responded to the public consultation and agreed with the proposed approach.
Statement of changes in Immigration Rules (HC 913)
43.This instrument clarifies the eligibility criteria for the Afghan Relocations and Assistance Policy (ARAP), makes clear that dependants can be refused where the main ARAP applicant is refused, and removes the requirement for dependants to be Afghan nationals, so that families can be kept together. It was brought into immediate effect on the day of laying, 14 December 2021, but the House has 40 days from then to pass a resolution if it has concerns.
44.The Home Office states that ARAP is open to employees of HM Government (HMG) and a few others who have worked with or alongside HMG in exceptional circumstances. Those eligible must have worked alongside, indirectly or in partnership with HMG, in a meaningful, exposed role, and made a material positive contribution to HMG’s national security (including counter-terrorism, counter-narcotics and anti-corruption) or military objectives.
45.The Home Office indicates that the changes will not have a great impact on the numbers admitted. The Ministry of Defence has received many more applications than will be eligible. However, those applications refused under the updated Rules would also have been refused under the previous Rules. The effect of the updated Rules is to make clearer the basis on which an application has been refused, so as to make it easier for an applicant to understand and for HMG to defend their decisions in the event of legal challenges.
19 Nuclear safeguards are the accounting, inspection and verification mechanisms which enforce international nuclear non-proliferation commitments that the UK’s civil nuclear material is not unlawfully diverted into military use.