Proposal for the draft Regulatory Reform
(Joint Nature Conservation Committee) Order 2005
Introduction
16._This is a "first-stage" proposal laid
before Parliament on 12 October 2004. A Statement ("the Statement")
by the Department for Environment, Food and Rural Affairs ("the
Department") was laid with the proposal under section 6(1)
of the Regulatory Reform Act 2001. Further evidence has been provided
by the Department to the Commons' Regulatory Reform Committee
in a letter dated 18 November 2004 and this evidence has been
communicated to the Lords' Committee.[1]
In addition, the Department, at the request of the Committee,
provided further information, in a letter dated 30 November 2004,
in respect of the proposal. The correspondence containing the
further information is set out in Annex 2 to this Report.
17._The principal purpose of this proposal is to
amend the Environmental Protection Act 1990 ("the 1990 Act")
in order to free the Joint Nature Conservation Committee (JNCC)
of various constraints and to enable it to operate more effectively
by, amongst other things, enabling the JNCC to employ its own
staff, remunerate its chairman and independent members and receive
certain funds direct from the Government.
Background
18._The background to this proposal is set out in
paragraphs 6 to 9 of the Statement. The JNCC was established under
section 128 of the 1990 Act as the forum through which the three
country nature conservation bodies ("the country bodies")
- English Nature (EN), Scottish Natural Heritage (SNH) and the
Countryside Council for Wales (CCW) - discharge their special
statutory responsibilities for nature conservation across Great
Britain as a whole and internationally. These responsibilities,
known as "special functions", are set out in section
133 of the 1990 Act and are broadly:
- to advise Ministers quinquennially
on the animals and plants listed in Schedules 5 and 8 to the Wildlife
and Countryside Act 1981;
- to advise Ministers on the development of policies
for, or affecting, nature conservation in Great Britain and internationally;
- to provide advice and knowledge to anyone on
nature conservation issues affecting Great Britain and internationally;
- to establish common standards throughout Great
Britain for the monitoring of nature conservation and for research
into nature conservation and the analysis of results; and
- to commission or support related research.
19._In paragraph 7 of the Statement, it is explained
that following devolution, there was some difficulty in identifying
which of the special functions were reserved and which devolved.
At the same time, consideration was being given to whether Northern
Ireland should be further included. Also, in the ten years since
its establishment, the focus of the JNCC's work had shifted from
the British science base to representation of the United Kingdom
position in European and wider international fora. In July 2000,
the Department embarked on a review of the JNCC under the supervision
of a Steering Group including representatives of the country bodies
and devolved administrations including Northern Ireland.
20._The Stage 1 report of the Steering Group, published
in March 2001, recommended that the JNCC be abolished and replaced
by an independent Non-Departmental Public Body (the UK Nature
Advisory Council). The consultation, however, demonstrated no
clear consensus in favour of this recommendation. Indeed, there
was considerable opposition to it. The responses highlighted the
need to develop existing arrangements.
21._A Stage 2 report was published in January 2002.
The proposed order is part of the resulting package of measures,
which also includes administrative change and primary legislation,
aimed at improving "the efficiency, effectiveness and service
delivery of the JNCC as set out in the Government's response to
the Financial, Management and Policy Review of the JNCC"
(see Annex D to the Statement). Given the expectation that the
package of measures would require primary legislation, we invited
the Department to explain whether consideration was given to implementing
the present proposal by primary legislation. The Department has
provided an account of why the regulatory reform order procedure
was chosen in its reply to our request for information, at A1
(see Annex 2 to this Report), which we find satisfactory.
Extent
22._The JNCC is a specified Cross-Border Public Authority
under section 88(5) of the Scotland Act 1998, which ensures that
the UK Government and Scottish Ministers receive advice reflecting
input from all three country bodies on nature conservation policy
matters of British, European or international importance.
23._The devolved administrations, including Northern
Ireland, are represented on the Steering Group that co-ordinates
implementation of its recommendations. All have been consulted
on the draft order. The Statement (paragraph 4) records that both
the National Assembly for Wales (the Assembly) and the Scottish
Executive are content with the provisions of the draft order,
which will be subject to separate approval by the Assembly.
The proposal
24._The proposal contains ten linked elements. They
can be grouped under the following headings which, save for the
last element, describe the burdens which the different elements
are intended to remove:
INABILITY TO EMPLOY STAFF ETC.
- to remove the requirement on the
country bodies to provide the JNCC with staff, accommodation and
other facilities;
- to enable the JNCC to appoint employees;
- to allow the JNCC to extend its current delegation
of functions under the 1990 Act to include any staff employed
by the JNCC, whether employed directly or by any company limited
by guarantee that it may form, and to include any such company;
- to enable the JNCC to pay staff such remuneration
and allowances as the JNCC, with the approval of the Secretary
of State given with the consent of Treasury, may determine; and
- to enable the JNCC to pay pensions, make payments
towards the provision of pensions and to maintain pension schemes
for employees and former employees, with the approval of the Secretary
of State given with the consent of Treasury.
INABILITY TO SEEK DIRECT FUNDING
- to enable the Secretary of State,
with the approval of Treasury, to make direct payments to the
JNCC for work undertaken for the Government either inside or outside
Great Britain.
INABILITY TO CONCLUDE WORK ON REMUNERATION OF CHAIRMAN
AND MEMBERS ETC.
- to transfer to the JNCC responsibility
for payment of remuneration, allowances and pension to its chairman
as the Secretary of State may, with the approval of Treasury,
determine;
- to transfer to the JNCC responsibility for payment
of compensation to a person who ceases to be chairman where it
appears to the Secretary of State, subject to the approval of
Treasury, that there are special circumstances; and
- to transfer to the JNCC responsibility for payment
of remuneration and allowances, as the Secretary of State may,
with the approval of Treasury, determine, to the three members
of the JNCC appointed by the Secretary of State and to the non-voting
members.
ABILITY TO SET UP A COMPANY LIMITED BY GUARANTEE
- the proposal also provides for
the option of setting up a company limited by guarantee (CLG)
as a corporate vehicle for the employment of staff and to provide
other corporate support services for the purposes of the functions
discharged through the JNCC.
Inability to employ staff etc.
25._Paragraph 7(1) of Schedule 7 to the 1990 Act
requires that the country bodies provide the JNCC with staff,
accommodation and other facilities. Of the 117 staff of JNCC (109
permanent and 8 fixed term contract staff), 17 are from CCW, 67
from EN and 33 from SNH.[2]
The proposal will enable the JNCC to appoint employees, and to
delegate its functions under the 1990 Act to them, whether employed
by the JNCC directly or by any company limited by guarantee that
it may form.
REMOVAL OF A BURDEN
26._The Department states (paragraph 10 and 11 of
the Statement) that the provision in paragraph 7(1) of Schedule
7 to the 1990 Act "increases the complexity of and adds to
the costs of HR [human resources] services to both the country
bodies and JNCC" and prevents the JNCC from making decisions
on some fairly routine issues. The requirement that staff should
be provided by one of the country bodies creates inconsistencies,
as staff working on similar tasks may be engaged on different
terms and conditions. Dissatisfaction has already led to a high
turnover of staff (20% in recent years) and the Statement identifies
a risk of equal pay claims if the matter is not resolved swiftly.
27._The Department suggests (paragraphs 17 and 18
of the Statement) that the new provision in article 4 of the draft
order would relieve the JNCC and the country bodies of the need
to operate complex secondment arrangements, would minimise the
risk of damaging and potentially costly equal pay claims and the
setting up of a company limited by guarantee would ease the fulfilment
of some of its administrative and corporate support needs by providing
a contracting body. The Committee is satisfied that the effect
of the proposal is to remove a burden which affects the JNCC.
NECESSARY PROTECTION AND REASONABLE EXPECTATION
28._The Department states that, in framing the proposal,
the Government has sought "to mirror" existing provision
in the 1990 Act (paragraph 20 of the Statement). New paragraphs
7(1A), 7(1B) and 7(1C) of Schedule 7 to the 1990 Act would continue
the safeguards currently applied to the country bodies, namely
the requirement that the number of employees, their remuneration
and pension provision should be subject to the approval of the
Secretary of State and the consent of Treasury (paragraphs 21,
25 and 26 of the Statement). The Committee is satisfied that necessary
protection, in terms of protection of the public purse, is maintained.
29._Any CLG would be subject to the approval of the
Secretary of State and Treasury and the stipulation that members
of such a company must be members of the JNCC and that directors
must either be members of the JNCC or staff employed either directly
by the JNCC or on its behalf the company. The approval regime
could, for example, be used to ensure that the company could not
be wound up without prior approval by the Secretary of State.
30._The draft order includes a safeguard for the
continuity of employment for employees transferring to employment
by the JNCC or by a CLG formed by it (paragraph 31 of the Statement).
Although the Transfer of Undertakings (Protection of Employment)
Regulations 1981 (TUPE) would not apply to such transfers, article
5 of the draft order provides for continuity of employment (and,
therefore, of employment protection provision), and, according
to the Statement, "the Government understands that the country
bodies and the JNCC have publicly committed themselves to following
the Government guidance on applying the principles of TUPE to
public sector transfers. This will protect staff transferring
to the JNCC from suffering any detriment in their terms and conditions
overall."
31._We invited the Department to provide further
explanation about the application of the necessary protection
and reasonable expectation tests to the staff transfer element
of the proposal. The Department's reply, at A2 (see Annex 2 to
this Report), states that staff currently at the JNCC will be
able to opt to remain employed by their country body or to transfer
to the JNCC (or CLG). The Department expect that the "overwhelming
majority of staff currently at the JNCC will opt to transfer since
the majority of staff have not worked for their country body other
than on assignment to the JNCC". Where they opt to transfer,
continuity of employment will be maintained and, the Department
states again that the "JNCC and the country bodies have undertaken
to apply the Government guidance on applying the principles of
TUPE". That commitment, it is suggested, is reflected in
the harmonised terms and conditions which have been negotiated
with the JNCC trade unions and now approved by the Treasury.
32._Where staff opt to stay with their country body,
their employment rights will be unaffected. In the short term,
it is suggested, such staff will continue to be assigned to the
JNCC on short-term secondment, until they can be re-deployed within
the country body.
33._Where staff transfer to the JNCC from one of
the country bodies after the coming into force of the order and
subsequently elect to return to their former employer, the transfer
back would cause a break in continuity of employment. But in its
reply to our request for further information, the Department says
that "the Common Trawling Agreement will ensure staff have
the opportunity to apply for jobs in any of the country agencies
when vacancies occur and retain the current expectations they
enjoy for career development". The Common Trawling Agreement
is explained in the Department's reply (A9) to the Commons' Committee.
It is a concordat which the three country bodies and the JNCC
have negotiated which will give employees of any of the four agencies
common access to vacancies arising in the other three. The Department
and the devolved administrations have asked that the Agreement
should be finalised before the order comes into force.
34._In our view, this element of the proposal
meets the necessary protection and reasonable expectations tests
save that we have some concern about the provision in relation
to those who transfer to the JNCC and subsequently elect to return
to employment by a country body. To satisfy our concern, the Department
should demonstrate that, although the proposal does not provide
for continuity of employment where a member of staff transfers
to the JNCC and then elects to return to employment by a country
body, the effect of the Common Trawling Agreement will be to provide
a satisfactory level of protection.
Inability to seek direct funding
35._Article 3 of the draft order, which amends section
129 of the 1990 Act, would enable the Secretary of State to make
direct payments to the JNCC for work undertaken for the Government.
Work undertaken for the country bodies would continue to be funded
by them.
REMOVAL OF A BURDEN
36._The Department states (paragraph 13 of the Statement)
that the current requirement under section 129 of the 1990 Act
that all funding must be made via the country bodies places a
burden on the JNCC in that it cannot seek direct funding for the
("relatively small proportion of" (paragraph 46)) work
it undertakes on UK-wide matters where there is no specific individual
or collective responsibility. At present, core funding to the
JNCC can only be supplemented by Government by "double handling"
payments through the country bodies. The proposal to allow direct
funding would remove the burden on the JNCC by enabling the Government
to pay directly for work that the JNCC undertakes on UK-wide matters.
The Department suggests (paragraph 16 of the Statement) that,
without this new provision, there is a risk that the Government
would be unable to meet European Union and international obligations.
The Committee is satisfied that the effect of the proposal is
to remove a burden which affects the JNCC.
NECESSARY PROTECTION
37._Direct grants made to the JNCC by the Secretary
of State would be subject to the same Treasury approval mechanism
that is currently required under section 129(1) of the 1990 Act.
The Committee agrees that necessary protection would be maintained.
REASONABLE EXPECTATION
38._The Department states (paragraph 32 of the Statement)
that the proposal, including that element concerning direct funding,
does not prevent any person from continuing to exercise any right
or freedom that they might reasonably expect to enjoy. The Committee
agrees.
Remuneration of chairman and members etc.
39._The proposal would enable the JNCC to deal directly
with the pay, pensions and related issues of the chairman and
the pay and allowances of the those members of the JNCC who are
appointed as "independents" by the Secretary of State
and non-voting members without, as at present, having to do so
via the country bodies.
REMOVAL OF A BURDEN
40._The Department suggests (paragraph 14 of the
Statement) that this element of the proposal removes "an
unnecessary layer of administrative complexity to the arrangements
which is an impediment to the JNCC carrying out its statutory
functions efficiently". The Committee is satisfied that the
effect of the proposal is to remove a burden which affects the
JNCC.
NECESSARY PROTECTION
41._The Department states (paragraphs 27 and 28 of
the Statement) that the new arrangements would be subject to the
same safeguards provided by the requirement for the approval of
the Secretary of State and Treasury that currently exist. Therefore,
necessary protection would be maintained. The Committee agrees.
REASONABLE EXPECTATION
42._The Department states (paragraph 32 of the Statement)
that the proposal, including that element concerning remuneration
of the chairman and members etc., does not prevent any person
from continuing to exercise any right or freedom that they might
reasonably expect to enjoy. The Committee agrees.
Imposition of new burdens
43._The Department states (paragraphs 19 and 33 of
the Statement) that the proposal does not impose any new burdens
but re-allocates a series of obligations currently falling on
the country bodies collectively to the JNCC so that it is able
to operate more effectively. It is arguable, however, that, in
terms of the 2001 Act, a re-allocation of obligations should be
construed in this case as the removal of burdens on the country
bodies and their imposition on the JNCC. The Commons' Committee
invited the Department to consider this matter. The Department,
in their reply of 18 November (A2), makes the following point:
"Although the draft order re-allocates
obligations form the country bodies to the JNCC, this does not
mean, in the Department's view, that it creates new burdens on
the JNCC in the meaning of the Regulatory Reform Act. Our understanding
of the Act is that it provides powers to remove, reduce, re-enact
or create burdens, but not, directly at least, to remove, reduce
etc. functions, of which obligations or duties are a category.
The central object of the proposed reform is
to remove the burden the JNCC faces in not being able to employ
its own staff, or to do a number of ancillary things for itself.
The burdens being removed are the limitations on the JNCC's powers
preventing it from being able to do these things".
44._The Department goes on to suggest that the safeguards
attached to the re-allocated obligations do amount to a limitation
on the powers conferred and therefore are "burdens".
These are asserted by the Department to meet the proportionality,
desirability and fair balance tests.
45._The complexity of this debate is evidence of
a difficulty we have observed on previous occasions in applying
the 2001 Act tests and, in particular, determining what may constitute
a new or re-enacted burden. On this occasion, it appears to us
that the Department's analysis is reasonable and, if correct,
the proposal meets the proportionality, desirability and fair
balance tests of the 2001 Act. On the other hand, we can also
see merit in the view that a reassignment of obligations can only
be regarded as a re-imposition of a burden, no matter how welcome
that new burden may be to the recipient. If this is the case and
the re-allocated obligations are to be construed as new burdens
imposed on the JNCC, then we take the view that, on the evidence
before us, the tests are met in any event.
Consultation
46._The consultation document was published on 11
December 2003 and the consultation period ended on 4 March 2004.
The consultation was undertaken for 12 weeks, thereby satisfying
the Cabinet Office Code of Practice on written consultation. Those
to whom the consultation document was sent are listed in Annex
A to the Statement, a full analysis of the 20 responses is provided
in Annex B and the Government's response to issues raised in them
is set out in Annex C. Nineteen responses were supportive and
one broadly neutral. No changes were made to the proposal in the
light of the comments made (paragraph 51 of the Statement) but
several points were raised that will be picked up by the administrative
changes that also form part of this reform package or in the detailed
implementation of the proposal in this proposed draft order (paragraph
50 of the Statement).The Committee is satisfied that the consultation
was adequate.
Conclusion
47._The Committee recommends that, save for the
point raised in paragraph 34 above, the proposal is an appropriate
use of the 2001 Act and meets its requirements.
1 This letter will be published with the Commons' Committee's
report on this proposal. Back
2
The Department's letter to the Commons' Committee (A6) gives a
slightly different figure. It states that, as of 11 November 2004,
there are 111 staff assigned to the JNCC (16 from CCW, 60 from
EN and 35 from SNH). Back
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