Fifty-sixth Report
Public Bodies Order
Draft Advisory Committee on Hazardous
Substances (Abolition) Order 2012
1. The draft Advisory Committee on Hazardous
Substances (Abolition) Order 2012 ("the draft Order")
was laid on 27 February 2012 under section 1 of the Public Bodies
Act 2011 ("the 2011 Act"). The draft Order was laid
by the Department for Environment, Food and Rural Affairs ("Defra")
with an Explanatory Document ("ED"). Defra have also
provided the Committee with copies of the consultation responses.
Given the limited information in the ED in a number of key areas,
the Committee sought further information from Defra which they
have provided (see Appendix 1).
2. The purpose of the draft Order is to abolish
the Advisory Committee on Hazardous Substances ("the ACHS"),
established under section 140(5) of the Environmental Protection
Act 1990 ("the 1990 Act"). It also makes repeals and
revocations (including the repeal of the power to appoint a committee)
associated with the abolition. The Government's intention is to
reconstitute the body as an expert scientific committee (which
does not require legislation).
3. Amendments[1]
were tabled in debates in both Houses to prevent ACHS from being
listed in Schedule 1 of the 2011 Act. Although Lord Whitty withdrew
his amendment at Committee Stage on 29 November 2010, he did so
saying[2] he was "not
utterly convinced that the expert panel is much different from
a statutory body in terms of the quality of its advice or procedures
and, clearly, there is no great cost advantage." A subsequent
Report Stage amendment moved by Baroness Quin was withdrawn[3]
on 23 March 2011 after Lord Henley, the then Parliamentary Under-Secretary
of State at Defra, provided more information.
OVERVIEW OF THE PROPOSAL
4. The ACHS currently meets four times a year
and last met on 13 December 2011. Existing members will automatically
become members of the new committee and serve the remainder of
their 3-year terms on the body. New members for the new committee
will be appointed on the basis of their individual expertise as
required for the committee to fulfil its remit. All appointments
will be made in line with the new Code of Practice for Appointments
to Public Bodies which will come into effect on 1 April 2012 (see
Appendix 1). The ED says that the successor body to the ACHS will
operate within an enhanced framework for scientific bodies in
Defra and with new terms of reference which reflect changes in
the regulatory landscape for hazardous substances since the ACHS
was established twenty years ago (ED paragraph 7). The ED also
says that the successor body will continue to provide expert,
impartial and independent advice to Ministers and others (ED paragraph
7). These are both areas on which we sought further information
from Defra.
5. The new body will de facto be in existence
as soon as the Order comes into force. In their further information
to the Committee, Defra say that this will be done administratively
and seamlessly without any breaks in the cycle of quarterly meetings
(see Appendix 1). The existing committee membership and work will
be carried forward onto the new body. Also in the further information,
Defra expand on the working arrangements for the new body. They
say that it will operate within a closer network of expert scientific
committees overseen by Defra's Chief Scientific Adviser ("the
CSA"), supported by Defra's Science Advisory Council ("the
SAC"). The ACHS Chair will now meet Defra's CSA to discuss
the work of the committee at least once a year, thus helping provide
the CSA with greater oversight of scientific advice across the
department. The ACHS Chair will also have the opportunity to discuss
the committee's work at an annual meeting of Defra's SAC, as well
as have the opportunity to summarise the work of the committee
in SAC's annual report. Defra say that the greater level of oversight,
challenge and scrutiny of the work of the ACHS will help yield
a greater and more co-ordinated level of evidence assurance to
meet Defra's needs (see Appendix 1). Written Statements[4]
were made to both Houses of Parliament on the new working practices
on 26 January 2011.
ROLE OF THE COMMITTEE
6. The Committee's role as set out in its Terms
of Reference is to "report on draft orders and documents
laid before Parliament under section 11(1) of the 2011 Act in
accordance with the procedures set out in sections 11(5) and (6)".
A key aspect of this role is the Committee's power to trigger
the enhanced affirmative procedure which would require the Government
to have regard to any recommendations made by the Committee during
a 60 day period from the date of laying. The Committee may also
consider taking oral or written evidence in order to aid its consideration
of the orders.
TITLE OF THE ORDER
7. This is the third such draft Order under the
2011 Act considered by the Committee. Unlike the previous two,
the draft Order does not include the words, "Public Bodies"
in the title. Despite the explanation provided by Defra (see Appendix
1) the Committee consider that departments will greatly assist
the House in following this type of legislation through Parliament
if the titles for all such orders include the words "public
bodies … order" as set out in Cabinet Office guidance[5].
CONSULTATION
8. Defra ran a consultation on the future of
the ACHS from 7 July to 14 October 2011. The consultation invited
views on the proposed abolition of the ACHS as a statutory Non
Departmental Public Body ("NDPB") and the Government's
preferred option to simultaneously reconstitute the body as a
new expert scientific committee; as well as the proposed new Terms
of Reference, and a name for the successor body (ED paragraph
8.1 and 8.2). The ED says that there was limited public interest
in the consultation as only 16 responses were received, only 13
of those giving a view on the options for the future of the ACHS
of which 11 favoured the Government's preferred option.
TESTS IN THE PUBLIC BODIES ACT 2011: ASSESSMENT OF
THE PROPOSALS
9. A Minister may only make an order under sections
1 to 5 of the 2011 Act if the Minister considers that the order
serves the purpose of improving the exercise of public functions,
having regard to (a) efficiency, (b) effectiveness, (c) economy,
and (d) securing appropriate accountability to Ministers (section
8 of the 2011 Act). Defra have put forward only a very thin case
for achieving this statutory purpose in the ED; and the Committee
therefore asked them to expand on this, setting out with evidence
how the change will improve the exercise of public functions.
Economy
10. During the passage of the 2011 Act through
Parliament, Lord Henley[6]
said that the Government are not looking particularly for savings
from the abolition of the ACHS, and the savings will in fact be
negligible. Defra say that the current body costs about £30k
per year in fees for members and in expenses for meetings including
travelling and subsistence, and they envisage the same level of
expenditure for the new body (see Appendix 1). The ED says that
the draft Order has no impact on business, charities or voluntary
bodies, and does not impose any new costs, administrative burdens
or information obligations. The ED also says that the impact on
the public sector is neutral as a successor body will be established
with the same level of Secretariat support from Defra (ED paragraph
10.1). In their further information to the Committee, Defra confirm
that there are no costs as a result of the changes and there are
no transitional costs, legal fees or recruitment costs.
Efficiency and effectiveness
11. Defra say that the improvement in the exercise
of public functions, particularly in terms of effectiveness and
efficiency, will come from the new context in which the committee
is working, as one of a number of scientific advisory bodies with
oversight from the CSA; and its new Terms of Reference (see Appendix
1). Defra also say that the current Terms of Reference, which
are bound in the 1990 Act, have been overtaken by the new regulatory
arrangements for chemicals and are now preventing the committee
being endowed with new Terms of Reference so that it can play
a more strategic, flexible and proactive role. They consider also
that the broader scientific context and the enhanced role for
the new committee represent better value for the modest amount
of taxpayer money that goes into funding its operation (see Appendix
1).
Accountability to Ministers
12. The further information from Defra says that
the proposed Terms of Reference for the new committee are also
more explicit on its relationship with, and accountability to,
Ministers. The Terms of Reference have not yet been formally agreed
by Ministers but Defra's intentions are to have arrangements for
routine reporting after quarterly meetings, in addition to reports
for specific projects and an annual report. These could run in
parallel with any other reporting (on the committee) to Ministers
that will stem from the CSA/SAC oversight of the committee. Defra
say that the possibility of Ministers attending part of the committee
meetings from time to time will also be considered, but they will
need to strike a balance between the frequency and intensity of
contact between Ministers and the committee and the independence
from Ministers that needs to be safeguarded for such bodies (see
Appendix 1). The possible attendance of Ministers at the committee
meetings is an unusual aspect of the proposals and Defra are right
to give careful consideration to managing this appropriately.
13. It is not clear from the ED or further
information from Defra to what extent some of the changes which
they say will improve efficiency, effectiveness or accountability
could have been made under the current arrangements.
Independent advice
14. Defra acknowledge that the key risk as a
result of the change is that it could be seen wrongly as an attempt
to restrict the independence of the committee (see Appendix 1).
However, they say that because of the proposed Terms of Reference,
and the requirement to comply with the Government's Code of Practice
for Scientific Advisory Committees ("the Code of Practice")[7],
the committee is not more likely to be vulnerable to political
interference by Ministers as a result of its change of status
(see Appendix 1).
15. The issue of the independence of the advice
given to Ministers was prominent[8]
in the debates in the House on the amendments to prevent ACHS
from being listed in Schedule 1 of the 2011 Act. The Committee
also notes that the Royal Society of Chemistry[9]
said in response to the consultation that they did not support
the Government's proposals because they appeared very similar
to the original proposals made to Parliament in 1989/90; and at
that time, Parliament, the House of Lords in particular, insisted
that the ACHS was established as a statutory committee, it being
clear that Parliament did not completely trust Ministers and officials
always to seek proper scientific advice before taking decisions
on controls being applied to chemicals.
16. Given the importance of this issue, the
Minister may wish to use the debate to set out exactly how the
Government will ensure that the newly constituted committee will
be able to, in the words of the Code of Practice[10],
"expect to operate free of influence from the sponsor department
officials or Ministers, and remain clear that their function is
wider than simply providing evidence just to support departmental
policy." As part of the Government's argument for improved
accountability and independence of advice hinges on the proposed
new Terms of Reference, the Minister may also wish to say whether
they have now been agreed in a form that would support this before
the draft order is approved.
Safeguards
17. Section 8(2) of the 2011 Act requires that
a Minister may make an order only if the Minister considers that
(a) the order does not remove any necessary protection, and (b)
the order does not prevent any person from continuing to exercise
any right or freedom which that person might reasonably expect
to continue to exercise. Notwithstanding the issues around the
independence of the advice, there is nothing in the ED or responses
to the consultation to suggest the draft Order does not meet the
tests.
CONCLUSION
18. The changes proposed by the Government do
not appear to be of broad interest or to be generally contentious.
This is possibly due to the limited nature of the changes, and
the Committee struggles to see much discernible benefit in the
proposals. The Government has presented a case to Parliament
for the draft Order improving the exercise of public functions
as required by the 2011 Act. Although this is far from compelling,
the Committee considers that it probably just crosses the statutory
threshold. Despite the deficiencies in the ED, they are not
sufficient grounds to trigger the enhanced procedure; and on that
basis we are content to clear the draft Order under within the
40 day affirmative procedure.
Instruments Drawn To The
Special Attention Of The House
No new instruments are drawn to the special attention
of the House in this report.
Other Instruments of Interest
DRAFT MISUSE OF DRUGS ACT 1971 (AMENDMENT) ORDER
2012
57. This draft instrument supersedes the draft
of the same title which was laid before Parliament on 16 January
2012 and identified by the Committee as an instrument of interest[11].
The draft instrument will classify a number of drugs for control
as class B and C drugs under the Misuse of Drugs Act 1971 ("the
1971 Act"). At the request of the Committee, the Home Office
has provided an explanation as to why the earlier draft legislation
has been replaced (see Appendix 2). They say that this follows
further advice to Ministers from the Advisory Council on the Misuse
of Drugs on the 2 steroids which were to be classified under the
1971 Act by the earlier draft. This advice took into account the
latest evidence available and informed that the harms of these
drugs do not warrant inclusion under the 1971 Act.
LOCAL AUTHORITY (REFERENDUMS RELATING TO COUNCIL
TAX INCREASES) REGULATIONS 2012 (SI 2012/460)
58. These Regulations make minor changes to the
requisite calculations which local authorities must make when
calculating their council tax for a financial year to reflect
provisions introduced by the Localism Act 2011. If these calculations
are "excessive" (as defined[12]),
then the billing authorities must hold a council tax referendum,
these Regulations also set time limits and provisions for the
handling of costs relating to such a referendum. When considering
the instrument the Committee found the need for an aide memoire
on how the calculations work and this is reproduced in Appendix
3.
SYRIA (EUROPEAN UNION FINANCIAL SANCTIONS) (AMENDMENT)
REGULATIONS 2012 (SI 2012/639)
59. These Regulations amend the Syria (European
Union Financial Sanctions) Regulations 2012 ("the 2012 Regulations")
which put in place penalties for breach of EU financial sanctions
in relation to Syria. The Regulations implement Council Regulation
(EU) No. 168/2012 of 27 February 2012 which gives effect to additional
restrictive measures, imposing an asset freeze on additional individuals
and an entity, the Central Bank of Syria. The asset freezing measures
in respect of the Central Bank of Syria are subject to derogations
permitting certain transfers of funds or economic resources to
and from the Central Bank of Syria connected to trade contracts
and in order to provide financial institutions in the EU with
liquidity for the financing of trade; these Regulations amend
the 2012 Regulations to reflect the derogations (Explanatory Memorandum
paragraph 7.3).
Instruments Not Drawn
To The Special Attention Of The House
The Committee has considered the instruments set
out below and has determined that the special attention of the
House need not be drawn to them.
Draft instruments subject to affirmative approval
Industrial Training Levy (Construction
Industry Training Board) Order 2012
Industrial Training Levy (Engineering Construction
Industry Training Board) Order 2012
Misuse of Drugs Act 1971 (Amendment) Order 2012
Postal Services Act 2011 (Disclosure of Information)
Order 2012
Schedule 5 to the Anti-terrorism, Crime and
Security Act 2001 (Modification) Order 2012
Statistics and Registration Service Act 2007
(Disclosure of Social Security and Revenue Information) Regulations
2012
Instruments subject to annulment
SI 2012/460 Local Authority (Referendums Relating
to Council Tax Increases) Regulations 2012
SI 2012/462 Public Interest Disclosure (Prescribed
Persons) (Amendment) Order 2012
SI 2012/469 Insolvency (Amendment) Rules 2012
SI 2012/470 National Health Service (Charges
for Drugs and Appliances) Amendment Regulations 2012
SI 2012/476 Special Health Authorities (Establishment
and Constitution Orders) Amendment Order 2012
SI 2012/501 Welfare of Animals (Slaughter or
Killing) (Amendment) (England) Regulations 2012
SI 2012/502 National Health Service (Primary
Dental Services) (Miscellaneous Amendments) Regulations 2012
SI 2012/504 Medicines (Products for Human Use)
(Fees) Regulations 2012
SI 2012/505 Civil Procedure (Amendment) Rules
2012
SI 2012/511 Her Majesty's Chief Inspector of
Education, Children's Services and Skills (Fees and Frequency
of Inspections) (Children's Homes etc.) (Amendment) Regulations
2012
SI 2012/515 National Health Service (Optical
Charges and Payments) (Amendment) Regulations 2012
SI 2012/523 Police Act 1997 (Criminal Records)
(Amendment) Regulations 2012
SI 2012/528 Pension Protection Fund and Occupational
Pension Schemes (Levy Ceiling and Compensation Cap) Order 2012
SI 2012/532 Statistics of Trade (Customs and
Excise) (Amendment) Regulations 2012
SI 2012/534 Thurrock Development Corporation
(Transfer of Property, Rights and Liabilities) Order 2012
SI 2012/535 Urban Development Corporations (Planning
Functions) Order 2012
SI 2012/536 Police Authority (Amendment) Regulations
2012
SI 2012/539 Occupational and Personal Pensions
Schemes (Levies - Amendment) Regulations 2012
SI 2012/542 Occupational Pension Schemes (Contracting-out
and Modification of Schemes) (Amendment) Regulations 2012
SI 2012/573 Social Security (Contributions) (Amendment)
Regulations 2012
SI 2012/574 Lincolnshire (Coroners' Districts)
Order 2012
SI 2012/639 Syria (European Union Financial Sanctions)
(Amendment) Regulations 2012
1 The Hansard links for the Lords debates are: http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/101129-0003.htm#1011306000071
and http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/110323-0001.htm#11032365000792
Back
2
HL Deb 29 November 2010 col 1362 Back
3
HL Deb 23 March 2011 col 747 Back
4
Available at: http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/101129-0003.htm#1011306000071;
and
http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/110323-0001.htm#11032365000792 Back
5
Available at: http://www.cabinetoffice.gov.uk/sites/default/files/resources/Public_Bodies_Act_2011_Guidance_for_Officials.pdf Back
6
HL Deb 29 November 2010; Col 1361 Back
7
Available at: http://www.bis.gov.uk/assets/BISPartners/GoScience/Docs/C/11-1382-code-of-practice-scientific-advisory-committees.pdf Back
8
HL Deb 29 November 2010; Col 1355 to 1361 Back
9
Response by the Royal Society of Chemistry to the 2011 consultation
by Defra on the future of the UK Advisory Committee on Hazardous
Substances Back
10
Code of Practice for Scientific Advisory Committees; paragraph
31 Back
11
51st Report of Session 2010-12; 2 February 2012 Back
12
For 2012-13 a council tax referendum will be triggered if an authority
proposes to set a council tax increase which exceeds the following
provisional limits:
· 3.5 % for most principal authorities;
· 3.75 % for the City of London;
and
· 4% for the Greater London Authority,
police authorities, and single purpose fire and rescue authorities.
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