Instruments of interest
Draft Environmental Permitting (England and Wales) Amendment Regulations 2023
38.This instrument proposes, in relation to England and Wales, changes to the data collection and reporting system that underpins and informs the Extended Producer Responsibility for Packaging scheme (“the pEPR”). The pEPR will launch across the UK in 2024 and will require producers to pay the full costs of dealing with the waste they produce. This instrument would extend the scope of “material facilities” (MFs)16 which will have to sample and report their waste. The instrument also proposes to extend the types of materials that MFs will have to identify and measure, and to require MFs to report more information on suppliers and destinations of waste. The information will underpin and inform the payment mechanisms under the pEPR, and, according to the Department for Environment, Food and Rural Affairs (Defra), will help to monitor and achieve recycling targets. All MFs within scope will be required to comply from 1 October 2024.
39.We have received a submission from Green Alliance which questions Defra’s assessment in the Explanatory Memorandum that the impact of the proposed changes on businesses will not be significant, asks about enforcement and suggests a lack of clarity in relation to the scope of the reporting requirements. We have published the submission and Defra’s response on our website.17 We note the importance of guidance18 and of work the Department is currently undertaking with industry in preparing the sector for the new requirements.
Draft Mayoral and Police and Crime Commissioner Elections, Recall Petitions and Referendums (Ballot Secrecy, Candidates and Undue Influence) Regulations 2023
Draft Representation of the People (Franchise Amendment and Eligibility Review) Regulations 2023
Draft Representation of the People (Postal and Proxy Voting etc.) (Amendment) Regulations 2023
40.These three sets of draft Regulations propose changes to the rules, procedures and administration of certain elections, in order to implement provisions which were introduced in the Elections Act 2022 (“the Act”).
41.The Act introduced new provisions in relation to the offence of “undue influence” for UK parliamentary elections and local government elections in England. Amongst other changes, the first draft instrument would apply these provisions to Police and Crime Commissioner (PCC) elections and Recall Petitions as well as to Council Tax, local authority and neighbourhood planning referenda in England, as well as implement the Ballot Secrecy Act 2023. The Department for Levelling Up, Housing and Communities (DLUHC) describes “undue influence” as an electoral offence which criminalises behaviour which seeks to coerce a person to vote in a certain way or abstain from voting. The new provisions seek to provide greater clarity on this offence, including by specifically covering intimidation.
42.The second draft instrument would implement provisions in the Act to remove the automatic right of EU citizens to vote and stand in local elections in England and PCC elections in Wales. The instrument sets out new eligibility criteria to ensure these rights continue for EU citizens from countries which currently have a bilateral treaty with the UK,19 and for citizens of EU countries with which the UK does not have a bilateral treaty but who have been lawfully resident in the UK since before 31 December 2020, the end date of the Brexit Implementation Period.
43.Under the new rules, EU citizens will be able to register to vote under the new eligibility criteria, and Electoral Registration Officers (EROs) will be required to conduct a one-off review of all already-registered EU citizens under the new criteria. According to DLUHC, this will be the first review of registered voters based on a reduction of the franchise. The process is to be completed by 31 January 2025 “as far as practicably possible” and will draw on data already available as part of the register, such as nationality and registration history. The Department estimates that 2.1 million EU citizens will be affected in England. It expects around 2 million EU citizens to receive a positive decision and some 160,000 EU citizens to be removed from the register. They will not be removed without first being contacted during the review process. Asked about consultation on the proposals with relevant interest groups, the Department told us that it had engaged with the 3Million Group, which describes itself as “the largest grassroots organisation for EU citizens in the UK”.
44.The third draft instrument proposes changes to the rules governing the administration and conduct of Parliamentary elections and other elections, referenda and recall petitions, primarily to implement provisions in the Act in relation to postal and proxy voting (so-called absent voting). Amongst other changes, the instrument would enable voters to apply online via a new digital service to vote by proxy or by post and create an identity checking process for such absent vote applications. This includes matching applications against Department for Work and Pensions held data, and powers for EROs to request additional evidence from applicants to check their identity. DLUHC told us that development of the new digital service was “well underway”, and that “extensive testing and user research” was being carried out. The Department also confirmed that in addition to the digital service, the current paper-based application process will continue to be available to voters who do not have digital access or prefer paper applications.
Persistent Organic Pollutants (Amendment) Regulations 2023 (SI 2023/729)
45.These Regulations extend until 3 December 2025 an exemption for the use of a persistent organic pollutant (POP), Perfluorooctanoic acid (PFOA), which would otherwise have expired on 4 July 2023. While the production and use of POPs are generally prohibited or restricted under the United Nations Stockholm Convention on Persistent Organic Pollutants (“the Stockholm Convention”), there are several exemptions, including for the production and use of PFOA for protective clothing. According to the Department for Environment, Food and Rural Affairs (Defra), the Ministry of Defence (MoD) uses PFOA in oil- and water repellent clothing that offers protection from dangerous liquids. This instrument extends the exemption in domestic law to mirror an extension which the UK registered under the Stockholm Convention.
46.We note that the exemption applies to Great Britain (GB) only. Defra told us that it did not expect the equivalent exemption under EU law, which continues to apply in Northern Ireland (NI) in this area, to be extended beyond 4 July, and that the MoD was working with the Department of Agriculture, Environment and Rural Affairs in NI to explore the implications and how they can be addressed. This discrepancy between GB and NI is not mentioned in the Explanatory Memorandum, and we are concerned that it will be difficult for the MoD to follow different rules for the use of PFOA in protective clothing in GB and NI and for these different rules to be enforced.
47.We also note that the instrument is in breach of the 21-day rule, according to which negative instruments should generally be laid at least 21 days before they are due to come into force. Defra told us that it had been unaware of the expiry of the exemption until it was notified about it by the MoD on 31 May 2023 and that, with no legislative or non-legislative alternatives available, the instrument was laid at the first available opportunity.20
We welcome that the Department is putting in place arrangements for conversations with key known users to try to reduce the risk of future issues particularly where there is a national security aspect.48.We have received a submission from the CHEM Trust which raises questions about the use of PFOA and about the process that was followed to assess the risk of extending the exemption. We have published the submission and Defra’s response on our website.21
Drivers’ Hours and Tachographs (Amendment) Regulations 2023 (SI 2023/739)
49.This instrument delays until 21 February 2024 the requirement for new lorries and other commercial vehicles operating within the UK to install a “smart tachograph 2” because the technology is not yet available. Our comments on the previous Regulations22 drew attention to industry’s concerns that the 21 August 2023 deadline was unachievable, and this has proved to be the case.
50.Similarly, for a six-month period from 21 August 2023, all newly-registered commercial vehicles to be used for international journeys will only need to install a ‘transitional’ smart tachograph 2. The ‘transitional’ tachograph will not feature the Galileo Open Service for Navigation Message Authentication (OSNMA) function which the EU now expects to become available in March 2024. The UK is required to align this legislation with the EU as part of the Trade and Cooperation Agreement.
51.After 21 February 2024, all newly-registered commercial vehicles, regardless of their journey type, will be required to install a ‘transitional’ or ‘full’ smart tachograph 2 when it is available. The Department for Transport states that where a transitional unit has been fitted, there is no current requirement to upgrade it to a full smart tachograph 2, although the EU may in the future seek to mandate it.
Criminal and Civil Legal Aid (Amendment) Regulations 2023 (SI 2023/745)
52.These Regulations implement the policy changes in Phase 1 (of 4) of the Government’s response to the Legal Aid Means Test Review (MTR). The means test restricts access to legal advice, assistance and representation to those with income and capital below specified levels in some types of cases. The Regulations include measures that remove the means test, and therefore widen the availability of legal aid, for:
- those under 18 applying for criminal advice and assistance;
- those under 18 applying for all civil legal representation;
- representation for those with parental responsibility for a child facing the withdrawal or withholding of life-sustaining treatment; and
- legal help relating to inquests where, if the individual were to make an application for Exceptional Case Funding representation, it would be reasonably likely to succeed.
53.The Ministry of Justice (MoJ) told us that these changes combined may affect fewer than a hundred cases per year and may cost around £600,000 per annum. MoJ said that the bulk of the estimated total cost of £25 million per year resulting from the MTR will arise in later phases. MoJ also told us that Phases 2 to 4 are due to be implemented via further instruments, to be laid later this year and in 2024 and coming into force in 2025.
Social Security (Contributions) (Amendment No. 4) Regulations 2023 (SI 2023/751)
54.These Regulations extend the time during which voluntary National Insurance Contributions (vNICs) can be paid in respect of tax years 2006–07 to 2015–16. vNICs allow people to fill gaps in their contributions providing entitlement to state pensions. Under transitional arrangements when the state pension system changed, individuals were permitted to make contributions relating to 2006 to 2016 up until 5 April 2023. In March 2023, HM Treasury (HMT) extended the deadline to 31 July 2023, due to high volumes of contact. These Regulations extend the deadline again, to 5 April 2025. In the Explanatory Memorandum, HMT said this, much longer, extension will give people more time to pay, as “contact levels have remained significant”, but will also provide the opportunity to introduce “a new end to end digital service” that will make the process “much easier” for customers.
55.In response to our questions, HMT described how the Department for Work and Pensions (DWP), which can discuss with the person whether paying voluntary NICs would be advantageous, is still finding the volume of calls “challenging”. For example, HMT told us that DWP received 233,000 calls in June 2023, compared with around 50,000 in June 2022 (but down from over 950,000 in March 2023). HMT said that DWP has limited ability to deploy additional resource because “the nature of this work is complex and the training requirements are extensive”. We welcome people being given more time to make vNICs, but it is of some concern that DWP has so misjudged demand and available resources that a second, longer, extension has become necessary.
16 MFs are facilities which receive mixed waste and sort it into specified waste streams for transfer or recycling.
17 SLSC, ‘Scrutiny evidence’: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/8/scrutiny-evidence/ [accessed 19 July 2023].
18 Department for Environment, Food and Rural Affairs, Welsh Government, Environment Agency, Natural Resources Wales, ‘Materials facilities: waste sampling and reporting from October 2024’: https://www.gov.uk/guidance/materials-facilities-waste-sampling-and-reporting-from-october-2024 [accessed 14 July 2023].
19 These countries are Luxembourg, Poland, Portugal and Spain. Citizens of Cyprus and Malta, which are members of both the EU and the Commonwealth, will also retain their current rights, while the long-standing voting and candidacy rights of Irish citizens pre-date EU membership and will not be affected by the changes.
20 Correction: Since publication of this report, Defra has clarified to us that it was aware that the exemption would expire but was not aware that the MoD required continued use of the exemption and therefore required an extension, through this instrument, to allow continued use of the exempted use.”
21 SLSC, ‘Scrutiny evidence’: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/8/scrutiny-evidence/ [accessed 19 July 2023].
22 Draft Drivers’ Hours, Tachographs, International Road Haulage and Licensing of Operators (Amendment) Regulations 2022 (made as SI 2022/1260), SLSC, 10th Report (Session 2022–23, HL Paper 56), paras 23-24 and Appendix 2.