Instruments Reported
The Committee has considered the following instruments,
and has determined that the special attention of the House should
be drawn to them on the grounds specified.
A. SI 2005/598 Local Government (Best Value)
Performance Indicators and Performance Standards (England) Order
2005
1. The Office of the Deputy Prime Minister (ODPM)
have laid this Order under section 4(1) and (2) and 28(1)(b) of
the Local Government Act 1999 ("the 1999 Act"). ODPM
have also provided an Explanatory Memorandum (EM).
2. The Explanatory Note to the Order states that
the 1999 Act places requirements on local authorities and other
authorities ("best value authorities") relating to economy,
efficiency and effectiveness in the exercise of their functions;
and that section 4(1) of the 1999 Act provides the Secretary of
State with a power to specify by order best value performance
indicators and standards. It explains that this Order specifies
performance indicators by reference to which a best value authority's
performance in exercising functions can be measured; and that
it also specifies standards in respect of particular functions
and particular best value authorities.
3. The Order applies to best value authorities
in England except police authorities. In parallel with this Order,
the Home Office has laid SI 2005/470: Police Authorities (Best
Value) Performance Indicators Order 2005 ("the Home Office
Order") which specifies the indicators by which police authorities'
performance can be measured.
4. The indicators and standards specified in
the Order laid by ODPM apply to a wide range of functions carried
out by best value authorities, including: education; health and
social care of children, and of adults; housing and housing-related
services; housing benefit and council tax benefit; waste and cleanliness;
transport; environment and environmental health; planning; community
safety and well-being; culture; and fire and rescue.
5. The EM provides an informative account of
the policy background to the Order, and of the development of
the best value performance indicators framework ("BVPIs")
since its introduction in 2000/01. At paragraph 7.2, the EM states
that BVPIs are a key component of the framework developed by the
Audit Commission to inform Comprehensive Performance Assessment
("CPA") judgments. BVPI data and other information is
used by the Audit Commission in the CPA process, to allocate local
authorities to one of five ratings categories, ranging from "excellent"
to "poor". The EM states that "excellent authorities
are rewarded with a significant range of freedoms and flexibilities
(e.g. the power to trade) whereas poor authorities are subject
to a range of improvement measures and ongoing close scrutiny
of their performance."[1]
6. The EM sets out the process of consultation
which ODPM have followed in order to modify the BVPI framework
along the lines proposed in the Order. In particular, this has
included the publication in July 2004 of a paper entitled "Best
Value Performance Indicators 2005/06: Consultation" and the
revision of the proposals in the light of the responses received;
and the establishment and consultation of a sounding board of
16 local authorities, the Audit Commission and the Local Government
Association, whose views have also influenced the final shape
of the proposals.
7. The Committee considers that the Order marks
an important stage in the development of the framework for monitoring
the performance of the authorities concerned in exercising a range
of key functions. We note that ODPM have made considerable efforts
to consult interested parties over the modification of a framework
that has been in place for several years, and that ODPM have been
ready to re-shape that modification in the light of views expressed.
We would stress our appreciation of the informative quality of
the Explanatory Memorandum provided by ODPM. We contrast this
with the limited information supplied in the EM accompanying the
parallel Home Office Order, which has now been supplemented by
additional material provided to us (printed at Appendix 2 to this
Report).
8. In considering the Order, we queried with
ODPM whether the specification of best value authorities in Articles
7 and 8 of the Order was correct in relation to the functions
to which those Articles apply. We are seeking a more formal explanation
of ODPM's confirmation that the specification is correct, and
it may be appropriate to place this further explanation before
the House in due course.
This Order is drawn to the special attention of
the House on the ground that it gives rise to issues of public
policy likely to be of interest to the House.
B. SI 2005/627 Immigration Employment Document
(Fees) (Amendment) Regulations 2005
9. The Home Office have laid these Regulations
under section 122 of the Nationality, Immigration and Asylum Act
2002. An Explanatory Memorandum (EM) is provided.
10. The Regulations more than double the fee
for applicants under the Highly Skilled Migrant Programme from
£150 to £315. This programme is designed to allow highly
qualified people to enter the UK without a prior offer of employment
or to take up self-employment opportunities. We have some concern
that such a high rise in the fee may discourage highly-skilled
migrants from considering the United Kingdom as a workplace, and
the House may wish to invite the Government to provide a fuller
explanation of the likely impact of the increase on the number
of applications.
11. The increased fee aims not only to recover
the current costs of administering the scheme but also the deficits
incurred over the last two years. We were informed by the Home
Office that these deficits arose because the number of applications
received was higher than forecast and applicants have submitted
more supporting evidence (much of which requires further validation)
than anticipated. Both of these factors increased the cost of
operating the scheme above the £150 level forecast.
12. The EM, at paragraph 4.2, confirms that this
rise is in line with the Treasury Fees and Charges Guidance and
that a Section 102 Order exists allowing the deficit to be recouped.[2]
The House may wish, however, to invite the Government to explain
whether it is fair for current applicants, in effect, to subsidise
the applicants of the previous two years.[3]
These Regulations are drawn to the special attention
of the House on the ground that they may imperfectly achieve their
policy objective.
C. SI 2005/639 Road Transport (Working
Time) Regulations 2005
13. The Department of Transport ("the Department")
have laid these Regulations under section 2(2) of the European
Communities Act 1972 to implement Directive 2002/15/EC of the
European Parliament and the Council of 11 March 2002 on the organisation
of the working time of persons performing mobile road transport
activities. The Regulations were laid on 14 March and come into
effect on 4 April.
14. The Directive is also known as the Road Transport
Directive (RTD) and required implementation by 23 March 2005.
An Explanatory Memorandum (including a Transposition Note) and
a Regulatory Impact Assessment have been provided.
15. The Committee received a representation from
Earl Attlee in respect of these Regulations (which is printed
in full at Appendix 3 to this Report). He suggests that the concern
is "not so much with the regulations themselves, but rather,
with the short period of time to implement them". As a result,
business stationery and IT systems and software will have to be
prepared at short notice. There will also be an immediate need
for a more HGV drivers, of which there is currently a shortage.
He concludes: "In the long run the regulations could be beneficial
to drivers. However, the rapid implementation could cause serious
supply chain or compliance problems."
16. We sought the views of other stakeholders.
The Freight Transport Association (FTA) provided a submission
(see Appendix 3) in which they express the view that "3 weeks
notification prior to implementation for the most important
piece of legislation affecting the road freight industry
in decades is unacceptable. The delayed publication of the
Regulation has caused significant problems not only in relation
to compliance but also with regard to the planning
and training requirements associated with the introduction of
the Regulations."
17. The Road Hauliers Association also provided
a submission (see Appendix 3). They explain their main concerns
as follows:
- The new regulations will require very significant
changes to the way most haulage and logistics operators organise
their work, necessitating changes to drivers' schedules, requiring
driver and management training and consultation, introducing onerous
record keeping requirements, renegotiating salary and pay structures,
negotiating workforce or collective agreements with drivers in
order to utilise flexibilities permitted by the Regulations;
- The reduction in the working week is expected
to result in significant demand of additional drivers. Currently
there is a serious EU wide shortage of LGV drivers and the acquisition
of the LGV licence is very time consuming and expensive;
- Drivers faced with a reduction in their working
hours and their pay will not legally be able to work for any other
employer, so may consider leaving the industry in order to maintain
existing levels of pay, or may consider working in contravention
of these Regulations;
- Any benefits of the Regulations will be eclipsed
by the costs incurred;
- Virtually all costs of the Regulations will be
borne by the employer;
- The effect on small businesses - which make up
the majority of the industry - will be disproportionate;
- A 3% increase in the number of vehicles needed
is expected, with the corresponding environmental impact, further
reduction in average traffic speeds, and increased pollution,
congestion, and accidents.
18. The Road Hauliers Association also suggests
that "the time industry has had to adequately prepare for
these regulations, following finalisation of Guidance and Regulations,
has been woefully inadequate." They go on: "We are also
extremely disappointed with the lack of communication to employers
and to drivers about these regulations. … We are not aware
that drivers have received any Government information or literature."
19. In response, the Department have made the
following comments:
"The new Regulations were laid before Parliament
on 14 March 2005 and are due to come into force on 4 April 2005
- the standard 21 days later. However, the basic requirements
of the new rules have been known since the Directive was adopted
in 2002.
In addition, the new Regulations reflect public consultation:
- first, in October 2003, the Department consulted
industry and other stakeholders on how the Directive should be
implemented, then
- draft regulations and guidance reflecting the
earlier consultation were published for further consultation,
closing in December 2004.
The Directive has been implemented in a way that
provides industry with the flexibility allowed under the Directive:-
- the Regulations implement both of the derogations
permitted under the Directive. These allow the 4 month reference
period for calculating the average 48 hour week to be extended
to 6 months and allow night workers to exceed the 10 hour daily
limit which applies to them, and,
- mandatory breaks and "periods of availability"
(loosely speaking, waiting time that is known about in advance)
will not count towards the working time limits under the new rules.
Details of the new working time regime for mobile
workers can be found at www.dft.gov.uk/freight/rtd".
20. In the light of the representations received,
we have formed the view that the commendable efforts by the Transport
Department to implement a difficult Directive sympathetically
appear to have been adversely affected by the last minute rush
in producing them.
These Regulations are drawn to the special attention
of the House on the ground that they give rise to issues of public
policy likely to be of interest to the House.
D. SI 2005/658 Non-Domestic Rating (Material
Day for List Alterations) (Amendment) (England) Regulations 2005
SI 2005/659 Non-Domestic Rating (Alteration of
Lists and Appeals) (England) Regulations 2005
21. The Office of the Deputy Prime Minister (ODPM)
have laid both of these sets of Regulations under provisions in
the Local Government Finance Act 1988 ("the 1988 Act").[4]
ODPM have provided an Explanatory Memorandum (EM) and Regulatory
Impact Assessment (RIA) in support of each instrument.
22. The Explanatory Note to SI 2005/658 - "the
Material Day Regulations" - refers to the relevance of the
material day to the alteration of the rateable value for a property
on a rating list, and explains that the Non-Domestic Rating (Material
Day for List Alterations) Regulations 1992 (SI 1992/556: "the
1992 Regulations") prescribe the rules under which the material
day is to be determined. The Material Day Regulations amend the
rules in the 1992 Regulations.
23. The Explanatory Note to SI 2005/659 - "the
Lists and Appeals Regulations" - states that they concern
the alteration of local and central non-domestic rating lists.
In particular, they cover the alteration of non-domestic rating
lists by valuation officers; proposals for such alterations from
other persons; and appeals to valuation tribunals where there
is disagreement about a proposal between the valuation officer
and another person.
24. The EMs explain that the proposals set out
in these Regulations were the subject of a consultation paper
"Business Rates Appeals" which ODPM published in January
2005.[5] ODPM intend to
publish a summary of responses to the consultation paper on their
website in parallel with the coming into force of the Regulations.
Details of responses have been given in the EMs.
25. The Committee has noted that the Lists and
Appeals Regulations revoke and replace nine previous instruments.
We commend ODPM on this consolidation, which should, in our view,
make it far easier for interested parties to understand these
aspects of the non-domestic rating regime.
26. However, we are concerned about the approach
to consultation which ODPM have followed in relation to the Regulations.
As is set out in the RIA (in the section headed Consultation),
the Government announced their intention to review these matters
in October 2004. The consultation paper mentioned above was published
only in January 2005 and set a deadline for responses of the end
of February. The RIA explains that "the period for formal
consultation was shortened from the standard 12 weeks in order
to be able to get the regulations made before the start of the
next rating lists - 1 April 2005 - when ratepayers will be able
to submit proposals for an alteration of their rateable value."
27. We understand the desirability of implementing
the new arrangements from 1 April 2005. We would comment, however,
that this must have been clear to ODPM at least since October
2004, and that we would expect that the ability to make the necessary
changes on time would be secured through effective forward planning,
rather than through curtailing the consultation response period.
The RIA acknowledges that some respondents commented that the
consultation process had been "unduly rushed", and that
the package of proposals had been "ill-considered".
28. Moreover, it is clear that the consultation
process did not produce general support from respondents for all
ODPM's proposals.
29. In the case of the Material Day Regulations,
for example, the EM states that there was "a mixed response"
to the consultation proposal, but that "despite these representations,
ODPM intends to proceed with the amendment proposed" (paragraphs
7.6 and 7.7).
30. In the case of the Lists and Appeals Regulations,
the EM notes that there was overall support for several aspects
of the proposals (paragraph 7.5); but that "most respondents
were not in favour of the proposal to limit ratepayers to one
right of appeal against the compiled list entry" (paragraph
7.6); and that "there was also little support for the proposal
to require rental information". None the less, ODPM intend
to proceed with these proposals (albeit that the requirement for
rental information has been made less onerous). In explaining
their decision on these matters, ODPM state in the Summary
and recommendation section of the RIA that the proposals "will
not remove a ratepayer's fundamental right to challenge the rateable
value of a business property … the measures will encourage
ratepayers to give further consideration before making proposals,
and to provide key supporting evidence …"
31. We recognise that the final decision on proposals
put out to consultation must be taken by the originators of the
proposals themselves. However, we are concerned to note that some
respondents to the "Business Rates Appeals" consultation
paper felt that insufficient time had been allowed for responses
to be made; and that ODPM may have given insufficient weight to
serious objections raised to certain proposals, including concerns
voiced by respondents with practical experience of the operation
of the appeal system.
These Regulations are drawn to the special attention
of the House on the ground that they give rise to issues of public
policy likely to be of interest to the House.
E. SI 2005/717 Producer Responsibility Obligations
(Packaging Waste) (Amendment) (England and Wales) Regulations
2005
32. The Department for Environment, Food and
Rural Affairs (DEFRA) have laid these Regulations under section
2(2) of the European Communities Act 1972 ("the 1972 Act"),
with an Explanatory Memorandum (EM).
33. The EM states, at paragraph 2.1, that the
Regulations amend the Producer Responsibility Obligations (Packaging
Waste) Regulations 1997 (SI 1997/648 - "the 1997 Regulations")[6]
to enable the Environment Agency to accredit re-processors and
exporters at any time throughout the year for the purposes of
issuing packaging waste recovery notes ("PRNs") and
packaging waste export recovery notes ("PERNs"). To
this end, the Regulations remove a requirement that re-processors
and exporters must have applied by 30 September to be accredited
for the following year to issue PRNs and PERNs respectively.
34. By way of background, the EM explains that
the 1997 Regulations implement the recovery and recycling targets
in EC Directive 94/62/EC on Packaging and Packaging Waste, as
amended by Directive 2004/12/EC ("the Packaging Waste Directive").
In order to allow the UK to demonstrate that it has met these
targets, the 1997 Regulations require certain businesses who qualify
as producers to carry out specified levels of packaging waste
recovery and recycling each year. Producers can only demonstrate
compliance with their obligations by purchasing PRNs or PERNs
from accredited re-processors and exporters respectively.
35. DEFRA have brought forward the Regulations
because of their concern that the retention of the 30 September
deadline could have meant that insufficient accredited reprocessing
capacity would be available to producers with producer responsibility
obligations under the 1997 Regulations to meet their recovery
and recycling obligations through the purchase of PRNs and PERNs.
Paragraph 7.2 of the EM explains that the issue was first raised
with DEFRA, by the Environment Agency and by industry, in September
2004, and that at that stage DEFRA did not consider this an immediate
problem. It was only in January 2005 that DEFRA was seized of
the true urgency of the position, and only in February that the
Department carried out a consultation process, limited to three
weeks, to gauge reaction to the proposed waiver of the deadline.
The EM states that responses were overwhelmingly supportive of
the proposal.
36. Both the Explanatory Note and the EM point
out that the 1997 Regulations were made under the Environment
Act 1995 (sections 93 to 95) and were subject to the affirmative
resolution procedure; but that these Regulations are being made
under the European Communities Act 1972 (section 2(2)) and as
such are subject to negative resolution. Paragraph 7.3 of the
EM sets out at some length the considerations which led DEFRA
to use the 1972 Act powers for these Regulations, as follows:
"In reaching a decision as to which powers to
rely on to make the amendment, DEFRA was influenced by the nature
of the amendment, the impending Easter Recess, the heavy parliamentary
agenda and the forthcoming likely announcement of an election
and the 'purdah' period that would commence and the fact that
stakeholders overwhelmingly welcomed the proposed change."
37. The EM also states that this is the second
time that powers under the 1972 Act have been used to amend the
1997 Regulations, and refers to SI 1999/3447 Producer Responsibility
Obligations (Packaging Waste) (Amendment) (No. 2) Regulations
1999 as the previous example.
38. The Committee has no reason to dissent from
DEFRA's view that the changes made by Regulations are uncontentious.
However, we are concerned at the manner in which the changes are
being brought about. By DEFRA's own account, the shortage of time
available to bring the Regulations into force in April 2005 has
resulted from the Department's own delay in accepting and acting
upon advice on the issue from the Environment Agency and from
industry. We consider it unfortunate that DEFRA have sought to
compensate for this delay by opting for Regulations subject to
the negative rather than the affirmative procedure. We suggest
that the availability of alternative powers to make such Regulations,
while offering flexibility on the one hand, may in fact lead on
the other to uncertainty over how best to effect amendments.
We note as well that SI 1999/3447 was made under the powers in
the 1995 Act as well as in the 1972 Act; and that, as an affirmative
instrument, it was debated in the House.[7]
These Regulations are drawn to the special attention
of the House on the ground that they give rise to issues of public
policy likely to be of interest to the House.
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