Twenty-eighth Report
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. Draft Communications Act 2003 (Maximum
Penalty for Persistent Misuse of Network or Service) Order 2006
Summary: This Order raises the maximum penalty
that the Office of Communications (OFCOM) can impose for persistent
misuse of communications networks from £5,000 to £50,000.
OFCOM has requested this increase because of growing concern about
"silent calls". We look to the Government to inform
the House of the effectiveness of OFCOM's enforcement activity.
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.
1. The Department of Trade and Industry (DTI)
have laid this draft Order under section 130(9) of the Communications
Act 2003 ("the 2003 Act"). They have also provided an
Explanatory Memorandum (EM) and a Regulatory Impact Assessment
(RIA).
2. The Explanatory Note states that the Order
raises the maximum penalty that the Office of Communications (OFCOM)
can impose under section 130 of the 2003 Act, in respect of persistent
misuse of electronic communications networks or electronic communications
services, from £5,000 to £50,000.
3. The EM says that OFCOM requested this increase
in the maximum penalty in view of mounting concern about "silent
calls". It explains that silent calls are often made by direct
marketing companies and other organisations, which use computerised
calling equipment to dial a consumer's telephone number and automatically
transfer the call to an available sales agent. If a sales agent
is not available, the call is not picked up and the consumer receives
a silent call.
4. The RIA provides further details about this
issue. It refers (in section 2) to the findings of a recently
published survey,[1] that
22% of the public felt anxious when they received a silent call,
and that 37% felt they were unacceptably inconvenienced by silent
calls. It states that, on average, about 6 silent calls per month
were made to every consumer and some consumers received 2 or 3
silent calls per day.
5. The EM states that DTI carried out public
consultation on the proposal between October 2005 and January
2006; 6 responses were received, and most supported an increase
in the maximum penalty. However, the EM notes that concern was
expressed that the proposed maximum of £50,000 was lower
than the maximum penalty of £250,000 which can be imposed
on those who breach the Independent Committee for the Supervision
of Standards of Telephone Information Services (ICSTIS) code on
premium rate services.[2]
The EM states that the level of the proposed maximum penalty for
"silent calls" misuse of networks is in line with the
penalties provided for in the 2003 Act in relation to "actions
which are harmful and offensive to the public but which do not
involve direct financial harm."
6. The EM also acknowledges that concern was
expressed in responses that an increase in the maximum penalty
would have no impact unless OFCOM took enforcement action against
companies which were persistently making nuisance silent calls.
DTI state that they understand that OFCOM is committed to taking
appropriate enforcement action and will monitor and evaluate the
effect of the increased penalty.
7. The Committee believes that the House will
be interested in this Order, given the growing incidence of silent
calls and the extent to which consumers are unhappy to receive
them. While we welcome the fact that the Government are taking
action to increase the level of the financial penalty that can
be imposed, we also recognise the importance of appropriate enforcement
action. We look to the Government to keep this situation under
review and to inform the House of the effectiveness of OFCOM's
enforcement activity in tackling the problem of "silent calls"
misuse of networks.
B. Draft Employment Equality (Age) Regulations
2006
Summary: These draft Regulations implement EU
obligations and set a default retirement age of 65 from 1 October
2006. They contain several other anti age discrimination provisions.
We commend the Government's thorough-going approach to consultation.
While a number of respondents have continuing concerns, we consider
that the Government have given good reasons for the decisions
taken.
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.
8. The Department of Trade and Industry (DTI)
have laid these draft Regulations ("the Age Regulations")
under section 2(2) of the European Communities Act 1972. They
have also provided an Explanatory Memorandum (EM), a set of Notes
on the Regulations, a Regulatory Impact Assessment (RIA), a March
2006 report on consultation on the draft Regulations, and a Transposition
Note.
9. The EM explains that the Age Regulations implement
the UK's obligations in relation to discrimination on grounds
of age under Council Directive 2000/78/EC.[3]
It states that the Directive requires Member States to ensure
that they have legislation in place outlawing discrimination on
the new grounds of sexual orientation, religion or belief, age,
as well as disability.[4]
The Directive allows Member States until December 2006 to implement
age and disability discrimination legislation.
10. The Age Regulations prohibit age discrimination
in employment and vocational training. The EM sets out the proposals
under the following headings:
- retirement age (including unfair dismissal and
the "duty to consider");
- service related benefits (pay and non-pay benefits);
- occupational pensions;
- statutory redundancy payments scheme; and
- exceptions for statutory authority and statutory
benefits.
11. While all the proposals are undoubtedly of
significance to the objective of tackling age discrimination,
those relating to the first heading have attracted particular
interest, and this report concentrates on the retirement age proposals.
12. The EM explains that the Age Regulations,
whilst providing for employers objectively to justify mandatory
retirement below 65, also provide for a default retirement age
of 65, accompanied by a right for employees to request working
beyond retirement age. This means that employers will be able
to use a retirement age at or above 65 without having to justify
doing so.
13. At paragraph 7.13, the EM states that, when
an employer decides to retire an employee, he will have a duty
to inform the employee of the right to request working beyond
the intended date of retirement. If the employee does not make
a request, the employer can then retire the employee without further
procedures. If the employee makes a request, the employer will
have a duty to consider it. The employee will not be able to challenge
the employer when it is a genuine retirement. However, if the
employer does not comply with this procedure while retiring the
employee, the employee may challenge this dismissal as unfair.
"The Regulations aim to ensure that employees will have the
right to complain of unfair dismissal for other reasons at any
age, and employers will not be able to avoid their responsibilities
by calling dismissal for other reasons retirement."
14. In a press release of 9 March 2006,[5]
the Secretary of State for Trade and Industry offered the following
comment on the Regulations:
"As we are living longer and healthier lives,
it is essential that the talents of older workers are not wasted.
We must have the opportunity to carry on working where that is
what we want. So we will scrap unjustified retirement ages below
65 and introduce a new right to request working beyond 65. In
five years we will review all retirement ages to see whether the
time is right to abolish them altogether. It's all about choice
- not work till you drop, but choose when you stop."
15. DTI have conducted extensive consultation
before laying the Age Regulations. This has included the publication
of "Towards Equality and Diversity" (in December 2001),
seeking views on proposals for equality legislation on race, disability,
sexual orientation, religion or belief, and age; and of "The
Way Ahead" (in October 2002), setting out proposals for equality
legislation on sexual orientation and religion or belief, including
some related to age. In July 2003, with the "Age Matters"
consultation paper, DTI sought views exclusively on options for
legislation on age; and between July and October 2005, the Department
invited comments on the draft regulations through a consultation
document called "Coming of Age".
16. The March 2006 report provided in support
of the draft Regulations (also accessible on DTI's website[6]),
contains a good deal of information about issues raised in the
392 responses received to the July 2005 consultation. At paragraph
3.1, the report states that respondents "gave their broad
approval in principle to the steps the Government was taking",
albeit that this is tempered both by the details of many responses,
and by the statement (at paragraph 3.27) that "employers
in general thought the regulations went too far whilst unions,
organisations for older people and other organisations that were
not primarily employers, were of the opinion that they didn't
go far enough".
17. At paragraph 3.2, the report states that
"considerably more respondents thought it likely that some
of the measures would give rise to difficulties in their implementation
than thought they would not do so". Respondents had particular
concerns with the "duty to consider" proposals relating
to workers wanting to continue working beyond the age of 65, the
5-year limit on length of service schemes that could operate without
"objective justification", and occupational pensions.
18. The Committee recognises that it can be misleading
to give particular emphasis to views expressed by one of many
responding organisations. None the less, we have noted that, at
paragraph 3.3, the report states that Age Concern felt that "the
whole drift of the guidance in the consultation document sent
the wrong (i.e. negative) message to employers"; and that
most of paragraph 3.18 serves to set out that organisation's concern
that DTI needed to take a more positive attitude in its guidance
to employers about employing older people.[7]
19. We note that, in the EM, DTI stress that
the Government has aimed for "light touch implementation",
striking the right balance between individual employees and the
businesses that employ them. We commend what appears to have been
a careful and thorough-going approach followed by the Department,
in order to find out the views of interested parties on both the
principle and the detail of implementation.
20. In tackling age discrimination, the Age Regulations
take UK legislation on equal treatment in employment on to new
ground. It is to be expected that views will be divided on this
policy innovation. While a number of respondents to DTI's consultation
processes have concerns, we consider that the Department have
given good reasons for the decisions which underlie these Regulations,
even if they have not been able to meet all those concerns. As
the Secretary of State has made clear, DTI will review the underlying
policy decisions in five years' time.[8]
We have no doubt that the House will take a close interest both
in these Regulations and in the development of this policy over
the period leading up to the review.
C. National Care Standards Commission (Commission
for Social Care Inspection) (Fees) (Adoption Agencies, Adoption
Support Agencies and Local Authority Fostering Functions) (Amendment)
Regulations 2006 (SI 2006/578)
Summary: These Regulations increase inspection
fees for Adoption Agencies by 15%. As with the fees for Care Homes
on which we reported last week [9],
the new fee structure represents a departure from the scale of
fee increases originally proposed in 2002 which is now seen as
being "too steep". This means that the original policy
objective of full cost recovery by April 2007 will not be achieved.
We regret the lack of recent consultation and note that, despite
the addition of Adoption Support Agencies to the regime in 2005,
the Government assert that the same financial model included in
the 2001 consultation still applies. In addition we note that
an error which resulted in fees for the local authority fostering
sector having to be refunded for 2004-05 is only now being corrected,
meaning that the fee income for that sector has been lost for
an additional year.
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.
21. The Department for Education and Skills (DfES)
have laid these Regulations under the Care Standards Act 2000
and the Health and Social Care (Community Health and Standards)
Act 2003, together with an Explanatory Memorandum (EM) and a Regulatory
Impact Assessment (RIA).
22. These Regulations increase inspection fees
by 15% for Adoption Agencies and Adoption Support Agencies that
are regulated by the Commission for Social Care Inspection (CSCI).
This is in line with the fee increases applied by the Department
for Health (DH) to other agencies in the CSCI regulated sector,
on which we reported last week9. The new fee structure
represents a departure from the scale of fee increases originally
proposed in 2002 which is now seen as being "too steep":
therefore the original policy objective of full cost recovery
by April 2007 will not be achieved. The Government's intention
is to continue to work towards full cost recovery, but no target
date has been set.
23. Also in line with the Care Homes fees these
regulations do not appear to have been subjected to consultation
since the original exercise in 2001. We regret this, and also
note that, despite the addition of Adoption Support Agencies to
the regime in 2005, the Government assert that the same financial
model included in the 2001 consultation still applies. The
House may wish to seek assurances from the Minister that further
consultation with the sector will be undertaken before the next
set of fee increases are proposed.
Correcting an Error
24. In addition, these Regulations correct an
error (see para 4.1 of the EM) which has meant that the DfES has
had no legal basis to collect fees for the local authority fostering
sector for 2005-06. It appears that the CSCI has recouped the
deficit from its grant in aid. We note with concern that this
problem was identified when the legislation was still under the
aegis of DH. In the equivalent fee uprating regulations last year[10]
DH confessed to having inadvertently repealed the fee levying
power. As a result the amounts paid to CSCI by local authority
fostering services in respect of annual fees in 2004/05 (approximately
£300,000) had to be refunded (we highlighted this matter
in our 15th Report of 2004-05). The transfer of responsibility
for this sector from DH to DfES would not appear to excuse the
fact that it has taken the Government a full year to address the
error, thereby doubling the fee deficit. The House may wish to
ask the Government for a fuller explanation about how this error
occurred and why it has taken so long to correct.
D. Elections (Policy Development Grants Scheme)
Order 2006 (SI 2006/602)
Summary: 'Policy development grants' are made
by the Electoral Commission to political parties to assist them
with the development of policies for inclusion in their manifestos.
This Order removes the Ulster Unionist party from the scheme on
the ground that it no longer meets the entitlement threshold of
having two sitting MPs.
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.
25. The Department for Constitutional Affairs
has laid this Order under section 12 of the Political Parties,
Elections and Referendums Act 2000 together with an Explanatory
Memorandum.
26. 'Policy development grants' are made by the
Electoral Commission to political parties to assist them with
the development of policies for inclusion in their manifestos
for parliamentary elections, elections to the European Parliament,
the Scottish Parliament, the National Assembly for Wales, and
Northern Ireland Assembly, local government elections and local
elections in Northern Ireland. This Order removes the Ulster Unionist
party from the Scheme on the ground that it is no longer eligible.
27. Following the May 2005 UK general election,
the Ulster Unionist Party no longer satisfies the eligibility
requirements provided in section 12 (in broad terms, two or more
Members of Parliament who have taken the oath of allegiance (or
the corresponding affirmation) and who are not disqualified for
sitting or voting). Accordingly, the Electoral Commission has
recommended that the Ulster Unionist Party be removed from the
scheme. The share of the moneys available for policy development
grants that previously could be granted to the Ulster Unionist
Party can be redistributed amongst the parties that continue to
be eligible.
1 The survey was commissioned by the Direct Marketing
Association and published by Brookmead Consulting. Back
2
The maximum penalty which may be imposed for a breach of the relevant
ICSTIS code was increased to £250,000 by SI 2005/3469 Communications
Act 2003 (Maximum Penalty and Disclosure of Information) Order
2005. The Committee drew this Order to the special attention of
the House in the 17th Report of the current Session (HL Paper
81). Back
3
Council Directive 2000/78/EC of 27 November 2000 establishing
a general framework for equal treatment in employment. Back
4
The EM states that the Government implemented the other new strands,
namely sexual orientation and religion or belief, in December
2003; and that Regulations, which primarily amended the Disability
Discrimination Act 1995, to implement most disability provisions
of the Directive came into force in October 2004, and in 2005
in respect of children with special educational needs and disabled
students. Back
5
See: http://www.dti.gov.uk/news/newsarticle-090306.html Back
6
See: http://www.dti.gov.uk/er/equality/coming_of_age_consult.doc
Back
7
The report also mentions similar concerns expressed by Help the
Aged and the Chartered Institute of Personnel and Development. Back
8
More detailed information about the post-implementation review
of the proposals is given in the RIA, e.g. at paragraphs 112-114
and Annex D of the RIA specific to retirement ages. Back
9
Commission for Social Care Inspection (Fees and Frequency of Inspections)
(Amendment) Regulations 2006 (SI 2006/517) see our 27th report
of session 2005-06 (HL Paper 145) Back
10
(see paragraph 3.1 of the EM to Commission for Social Care Inspection
(Fees and Frequency of Inspections) (Amendment) Regulations 2005
(SI 2005/575) Back
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