Instruments of interest
Draft Airports Slot Allocation (Alleviation of Usage Requirements) (No. 2) Regulations 2022
9.In normal times, airlines must use their slots at congested airports 80% of the time to retain their use for future seasons. During the pandemic the Department for Transport made a number of modifications to this system to reflect the reduction in demand caused by COVID-19. For this summer season (27 March to 29 October 2022), the minimum usage requirement was set at 70% after consideration of the available demand data and consultation with industry.7
10.New problems have arisen, however, particularly due to delays in companies’ ability to recruit staff to run schedules as anticipated: over the May 2022 half-term week the Civil Aviation Authority estimated that between 2% and 4% of total flights were cancelled within a week of departure, compared to a normal rate of about 1%, which affected over 200,000 passengers; in the first week of June, approximately 2.3 million passengers (43%) were affected by delayed flights.
11.To provide an incentive for the industry which might stabilise the situation and develop a reliable schedule for the peak of the summer season, these Regulations will include slots handed back to the coordinator at least 14 days in advance in the airlines’ 70% slot usage total. Certain conditions apply, for example those slots must be surrendered within the period 25 June to 8 July. To improve the situation for passengers, airlines must notify them of their flight’s cancellation at least 14 days in advance to qualify for this easing of the rules.
Draft Flags (Northern Ireland) (Amendment) (No. 2) Regulations 2022
12.These draft Regulations propose to reduce the number of days when the Union Flag must be flown from Government buildings and courthouses in Northern Ireland to mark the birthday of a member of the Royal Family. The instrument proposes to remove the birthdays of the Duke and Duchess of Cambridge, the Earl and Countess of Wessex, the Duke of York, the Duchess of Cornwall and the Princess Royal from the list of designated days for flag flying. These changes would align the rules in Northern Ireland with those in the rest of the UK. As required under the Flags Regulations (Northern Ireland) 2000,8 the Secretary of State referred the draft Regulations to the Northern Ireland Assembly. A report of the debate has been provided alongside the Explanatory Memorandum.9
Draft Money Laundering and Terrorist Financing (Amendment) (No. 2) Regulations 2022
13.According to HM Treasury (HMT), these draft Regulations are to ensure that the UK continues to meet international standards on anti-money laundering and counter-terrorist financing, whilst also strengthening and clarifying how the UK’s anti-money laundering regime operates, following feedback from industry and supervisors. Amongst other changes, the instrument proposes to extend the provisions to all forms of business arrangement, not just companies and other legal persons. HMT says that this would specifically include Limited Partnerships which are registered in England and Wales or Northern Ireland. Scottish Limited Partnerships are already covered as they are “legal persons” and so are caught under the current provisions.
14.HMT told us that the Crown Dependencies (the Channel Islands and the Isle of Man) are not covered by the instrument, as they are not part of the UK but self-governing dependencies of the Crown with their own directly elected legislative assemblies, administrative, fiscal and legal systems and their own courts of law. HMT added that while the risk of re-location to avoid the draft Regulations is therefore a possibility, the Crown Dependencies enact “their own robust Anti-Money Laundering laws and are also all members of Moneyval,10 which ensures that its members have effective systems in place to counter money laundering and terrorist financing and comply with the relevant international standards, such as those of the Financial Action Taskforce”.
Draft Occupational Pension Schemes (Governance and Registration) (Amendment) Regulations 2022
15.A Competition and Markets Authority (CMA) investigation published in July 2018 identified weak competition within both the investment consultancy and fiduciary management markets.11 These services influence or control decisions affecting pension scheme assets worth at least £1.6 trillion. In consequence the CMA introduced an Order in 2019 with remedies to address the problem.12
16.The current Regulations fulfil the Government’s commitment to put the relevant provisions of the 2019 Order into the main body of pensions law: 13
- Remedy One—is the mandatory competitive tendering for pension schemes first buying fiduciary management services or if they have not tendered previously.
- Remedy Seven—places a duty on trustees to set their investment consultants strategic objectives.
17.This change will enable The Pensions Regulator to oversee trustees’ compliance with these duties and to allow for their effective monitoring and enforcement.
18.The Explanatory Memorandum states that the impacts are principally on the pensions industry, specifically “relevant trust schemes”. While the Impact Assessment provides evidence that improved tendering could make savings, the evidence for the benefits of setting objectives was not quantifiable. We welcome the additional protections but note that the cost of them comes out of the pension scheme itself and has the potential to reduce benefits to members. This is the thirteenth SI relating to the governance of occupational pensions that we have seen in the last 12 months and the Government need to be mindful of the cumulative impact of the costs and administrative burdens on both pension schemes and trustees.
Russia (Sanctions) (EU Exit) (Amendment) (No. 10) Regulations 2022 (SI 2022/689)
19.These new Sanctions Regulations further extend the restrictions on trade with Russia by prohibiting the export, supply, delivery, making available and transfer of more goods in the following categories to, or for use in, Russia:
- Chemical and biological goods and technology
- Defence and security goods and technology that could be used in Russia or non-government controlled Ukrainian territory occupied by Russia
- Maritime goods and technology
- Jet fuel and fuel additives
- Oil refining goods and technology.
20.The Regulations also introduce prohibitions on export of Sterling or EU denomination banknotes to Russia or those connected with it, and ban the provision of ancillary services related to the import of Russian iron and steel. In addition, the Regulations introduce import bans on goods which generate significant revenues for Russia—for example wood and silver; we were surprised that this had not been done earlier.
21.To help exporters navigate the legislation the Regulations include commodity codes for the newly sanctioned goods which can be checked using the UK Integrated Online Tariff Tool.14 We are pleased to note that, once again, despite this being urgent legislation, a detailed if not fully finalised Impact Assessment is included setting out the likely costs to UK industry.
Draft School Admission Appeals Code 2022
22.The new School Admission Appeals Code 2022 will revise and replace the existing School Admission Appeals Code 201215 from 1 October 2022. The new Appeals Code makes permanent some of the temporary flexibilities that were introduced to enable school admission appeals to continue to be heard during the pandemic (see SI 2022/662, paragraph 8). These temporary provisions enabled appeals to be considered by a panel of two members where the third member had to withdraw because of COVID-19; enabled hearings to be held remotely (that is by video or telephone conference), rather than in person, or in some cases on the basis of written submissions; and changed the timescales and fixed deadlines for appeals.
23.The Department for Education (DfE) says that it received “overwhelmingly positive” feedback about these flexibilities, including in relation to time and cost savings and greater accessibility, and support for making some of them permanent. Following consultation, the new Appeals Code will now permanently allow appeals to be held remotely (by video conference or telephone), in person, or in hybrid form (where participants join remotely and in person). DfE has decided, however, not to proceed with permanently allowing a panel of two to continue hearing appeals where the third member has to withdraw. DfE says while 82% of respondents to the consultation were in favour, concerns were raised, including that a panel of two could be perceived as unfair by parents and that a mix of lay and educational members was necessary to ensure a balanced discussion and breadth of experience.
24.Asked whether appellants would be able to insist that an appeal is held in person, the Department explained that under the new Appeals Code the decision on how to hold the appeal will rest with the admission authority of the school. The admission authority is required to be satisfied that each party will be able to present their case fully, and that they have access to the video or telephone facilities to allow them to take part in the hearing at all time. They must also comply with their Equality Act 2010 duties when making this decision which includes considering whether any reasonable adjustments may be needed. According to DfE, this means that where an appellant does not have access to the required facilities or is otherwise unable to present their case in the hearing remotely, the appeal should not take place remotely. DfE added that while the appellant cannot insist that an appeal is held in person, some admission authorities may choose to offer the appellant an opportunity to express a preference, and that the situation is different for appeal hearings held entirely by telephone which are only permitted if video conferencing cannot be used because of connectivity or accessibility and both the appellant and presenting officer agree on the telephone format.
7 Airports Slot Allocation (Alleviation of Usage Requirements) Regulations 2022 (SI 2022/368)
8 Flags Regulations (Northern Ireland) 2000 (SR 2000/347).
9 Northern Ireland Assembly, ‘Official Report: Monday 21 March 2022’: http://aims.niassembly.gov.uk/officialreport/report.aspx?&eveDate=2022/03/21&docID=372035 [accessed 28 June 2022].
10 Council of Europe, ‘Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism’: https://www.coe.int/en/web/moneyval [accessed 29 June 2022].
11 Investment consultancy is the provision of advice to pension scheme governance bodies, fiduciary management is the provision of advice combined with delegation of investment decisions.
12 Competition and Markets Authority, ‘The Investment Consultancy and Fiduciary Management Market Investigation Order 2019’: https://www.gov.uk/government/publications/the-investment-consultancy-and-fiduciary-management-market-investigation-order-2019 [accessed 28 June 2022].
13 The Department for Works and Pensions, HM Treasury and The Pensions Regulator, ‘Correspondence Investment consultants market investigation’: https://www.gov.uk/government/publications/investment-consultants-market-investigation-response/investment-consultants-market-investigation [accessed 28 June 2022].
14 UK Integrated Online Tariff, ‘Look up commodity codes, import duties, taxes and controls’: https://www.trade-tariff.service.gov.uk/find_commodity [accessed 28 June 2022].
15 Department for Education, School Admission Appeals Code (February 2012): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/275897/school_admission_appeals_code_1_february_2012.pdf [accessed 28 June 2022].