Fifth Report
Instruments Drawn to the
Special Attention of the House
In June, the Department for Energy and Climate Change
(DECC) laid a number of statutory instruments relating to energy
efficiency (the "Green Deal" and the "Energy Company
Obligation"), and to the use of renewable energy and heat
technologies (the Feed-In Tariffs Scheme, and the Renewable Heat
Incentive Scheme). We draw them to the special attention of the
House in this Report. Without rehearsing here the detailed comments
which we offer later, we would add that particularly the instruments
relating to the "Green Deal" demonstrate again the extent
to which broad policy intentions set out in primary legislation
are clarified and given detailed substance in later secondary
legislation. In our view, the clarificatory function of secondary
legislation is an important reason for the House to maintain effective
scrutiny of statutory instruments.
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 Green Deal Framework (Disclosure,
Acknowledgement, Redress Etc.) Regulations 2012
Draft Green Deal (Energy Efficiency Improvements)
Order 2012
Draft Green Deal (Qualifying Energy Improvements)
Order 2012
Draft Electricity and Gas (Energy Company Obligation)
Order 2012
Dates laid: 11 and 13 June
Parliamentary Procedure: affirmative
SUMMARY: THE FIRST THREE OF THESE DRAFT INSTRUMENTS
RELATE TO THE IMPLEMENTATION OF THE "GREEN DEAL". THE
ENERGY ACT 2011 PROVIDES FOR A NEW TYPE OF ARRANGEMENT FOR THE
INSTALLATION OF ENERGY EFFICIENCY MEASURES, CALLED A "GREEN
DEAL PLAN", WHICH ALLOWS FOR ENERGY EFFICIENCY MEASURES TO
BE INSTALLED IN A PROPERTY AND THEN PAID FOR WHOLLY OR PARTLY
IN INSTALMENTS WHICH ARE COLLECTED ON ELECTRICITY BILLS FOR THE
PROPERTY. THE FOURTH INSTRUMENT RELATES TO THE ENERGY COMPANY
OBLIGATION, WHICH IS AIMED AT DELIVERING ENERGY EFFICIENCY AND
HEATING MEASURES TO LOW-INCOME AND VULNERABLE HOUSEHOLDS.
These instruments 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.
1. In its Explanatory Memorandum ("EM")
relating to the first three of these SIs, the Department for Energy
and Climate Change ("DECC") states that the Energy Act
2011 ("the 2011 Act") made provision for the development
of a "Green Deal". DECC states that the Green Deal aims
to overcome difficulties in accessing capital for energy efficiency
improvement measures, and also mismatched incentive problems,
such as individuals only investing in energy efficiency measures
for the length of their own expected tenure in a property, as
well as providing a trustworthy framework of advice, assurance
and accreditation for the energy efficiency supply chain.
2. In the EM relating to the fourth instrument,
DECC states that the Energy Company Obligation ("ECO")
addresses two key circumstances where Green Deal finance may not
remove all upfront costs by providing additional financial assistance
to low-income households and to households in more difficult and
expensive to improve homes. By delivering energy efficiency and
heating measures to such households the ECO will also help to
tackle fuel poverty.
3. DECC states that, through secondary legislation
under the 2011 Act, a scheme has been developed which provides
that the instalments under a Green Deal plan are paid by way of
the electricity bill for the property, by the person who is the
bill-payer at the time that the instalment is due. When there
is a change of electricity bill-payer for a property, the obligation
to pay Green Deal instalments remains with the property and is
passed to the new bill-payer. The disclosure and acknowledgment
requirements that will be in place are designed to ensure that
the new energy bill-payer is made aware of the Green Deal plan.
4. The draft Green Deal Framework (Disclosure,
Acknowledgment, Redress etc.) Regulations 2012 ("the
Framework Regulations") create an authorisation regime to
regulate the conduct of key players in the assessment, provision
and installation of energy efficiency improvements under Green
Deal plans. The Regulations also include conditions that must
be met when a Green Deal plan is established; requirements to
ensure that people moving into or acquiring an interest in a property
are made aware of a Green Deal plan in advance; and provision
for enforcement.
5. The draft Green Deal (Energy Efficiency
Improvements) Order 2012 ("the Energy Efficiency Order")
sets out sources of energy and types of micro-generation measures
for the purpose of defining "energy efficiency improvements"
in the 2011 Act. The draft Green Deal (Qualifying Energy Improvements)
Order 2012 ("the Qualifying Improvements Order")
sets out the kinds of energy efficiency improvements that can
be installed under a Green Deal plan.
6. Section 7 of DECC's EM sets out at length
the detail of the provisions contained in the SIs. Of particular
interest, in the context of consumer protection, is the information
about the conditions relating to Green Deal plans specified in
the Framework Regulations (paragraph 7.10 onwards). DECC
states that the conditions implement the principle that the instalments
in the first year of a Green Deal plan should not exceed the Green
Deal provider's estimate of the annual savings on energy bills,
and that the period over which instalments are payable should
not exceed the period for which the improvements are likely to
be effective.
7. DECC states that this principle is at the
heart of the Government's policy on the Green Deal, and is often
referred to as the "Golden Rule", and that the safeguards
built into the Golden Rule will ensure customers can have a reasonable
expectation of the savings estimates predicted for the first and
any subsequent bill payers. The extent to which estimates of savings
from Green Deal measures will relate to individual, rather than
typical, households is an issue which is raised in the correspondence
about these instruments that we have received (see paragraph 15
below). While interest rates are fixed for plans for domestic
properties, Regulation 33 provides that the overall amount of
instalments (including the component representing interest) can
increase by 2% per year, in order to account for likely increases
in energy prices. The Regulations also prevent the inclusion in
a Green Deal plan of a term in which customers are prohibited
from switching energy supplier; DECC comments that this is an
important protection to ensure that customers with a Green Deal
plan are still able to switch supplier.
8. In the EM, DECC states that the Framework
Regulations set out requirements with which authorised certification
bodies and Green Deal participants must comply, and that these
include a requirement to comply with the Green Deal Code of Practice
(provided for at Regulation 10). We understand that DECC intends
to publish the Code of Practice this week, and that it will be
laid before Parliament.
9. The Framework Regulations contain provisions
on appeals, at Regulation 87. We note that these include provisions
that the First Tier Tribunal must determine the standard of proof
in any case (87(2)); and also that the Tribunal may suspend a
decision pending determination of an appeal (87(3)). DECC has
informed us that, while it considers all of the sanctions under
the Green Deal to be civil in nature, it is considered appropriate
to give the Tribunal some discretion to determine the appropriate
standard of proof to apply; and also that a duty on the Tribunal
to suspend sanctions in every case would be too inflexible and
risk injustice or (in some cases) harm to consumers. In our view,
while it may be reasonable to allow the Tribunal such discretion,
it would be appropriate for the Department to give a clearer indication
of how the discretion is to be exercised, given that there is
potentially a wide range of possibilities for its exercise.
10. The EM explains that, under the 2011 Act,
only energy efficiency improvements which are described in an
Order can be installed under a Green Deal plan: the Energy
Efficiency Order thus lists sources of energy (other than
electricity and mains gas, which are already provided for in the
2011 Act) which can be taken into account when considering whether
an improvement will save energy at a property, for the purpose
of the Green Deal. The sources of energy listed are bio-fuels,
bio-mass, coal and petroleum products (which includes oil and
liquid petroleum gas). The Order also lists micro-generation measures
that are to be treated as energy efficiency improvements, even
though they may not actually reduce energy use or increase efficiency
in the use of energy in every case. These measures should, however,
reduce use in properties of electricity supplied from the grid,
and fossil fuels, and therefore result in savings on energy bills.
11. The EM states that the Qualifying Improvements
Order describes all the types of energy efficiency improvement
that can be installed under a Green Deal plan. DECC comments that
the improvements specified in the Order will not always be capable
of making energy savings in all buildings, and any levels of savings
will vary from property to property. However, before a Green Deal
plan can be entered into, a customer has to have a Green Deal
assessment, which will only make recommendations improvements
that will improve the energy performance of the building in question
and will quantify the potential savings. The actual products installed
under a Green Deal plan must fall within a category of qualifying
improvement that has been recommended during the Green Deal assessment
and must meet the requirements of the Green Deal Code of Practice.
12. The EM to the draft Electricity and Gas
(Energy Company Obligation) Order 2012 ("the ECO Order")
states that it implements the ECO policy, which places three distinct
obligations on energy suppliers who have more than 250,000 domestic
electricity and/or gas customers: a carbon-saving obligation,
a carbon-saving community obligation and a home-heating cost reduction
obligation. Each type of obligation requires a supplier to install
or arrange the installation of qualifying measures in the homes
of eligible domestic energy users. A supplier must achieve each
of its obligations by 31 March 2015. The obligations must be met
by installing qualifying measures which reduce carbon emissions
or the cost of heating a home.
13. From November 2011 to January 2012, DECC
carried out a consultation process on proposals for the Green
Deal, and on the Energy Company Obligation. DECC states in the
EM that the Department received over 600 written responses, and
that feedback prompted the Government to amend the proposals in
order to strengthen consumer protection, reduce industry burdens
and improve behind-the-scenes operations.[1]
"Crucial to the success of the Green Deal is a robust customer
protection regime that will inspire confidence and provide a secure
platform on which all Green Deal and ECO participants can operate"
(paragraph 8.3). In a Written Ministerial Statement on 11 June
2012, the Secretary of State at DECC made clear the Government's
commitment to securing this approach to the Green Deal.[2]
14. As regards the ECO, DECC states that, as
a result of consultation, a carbon-saving community obligation
was introduced, whereby a supplier must achieve carbon-saving
by promoting qualifying energy efficiency measures to domestic
energy users living in rural areas or areas of low income. The
carbon-saving community obligation is expected to help deliver
the Government's fuel poverty commitments. In the Statement on
11 June 2012, the Secretary of State said that establishing a
new ECO from October of this year would mean that "an estimated
£1.3 billion worth per year of energy efficiency and heating
measures can be delivered across Great Britain. This will be directed
to vulnerable and lower-income households and carbon saving measures."
15. We have received evidence in the form of
a letter of 19 June 2012 from Mr Richard Lloyd, Executive Director
of Which?, setting out specific concerns about these instruments,
and a response to these concerns in a letter of 21 June 2012 from
Mr Greg Barker, MP, Minister of State, DECC. We are publishing
this evidence in Appendix 1 of this Report. We note in particular
that Mr Lloyd commented that Green Deal savings assumptions would
relate to typical households, rather than being based on estimates
relating to specific household circumstances, and that Mr Barker
has responded that these concerns are unfounded, and that the
Green Deal Occupancy Assessment would serve to adjust typical
savings estimates.
B. Feed-in Tariffs (Specified Maximum Capacity
and Functions) (Amendment No. 2) Order 2012 (SI 2012/1393)
Date
laid: 29 May
Parliamentary Procedure: negative
SUMMARY: THE FEED-IN TARIFFS (SPECIFIED MAXIMUM CAPACITY
AND FUNCTIONS) (AMENDMENT NO. 2) ORDER 2012 COMES INTO FORCE ON
1 AUGUST 2012. IT REQUIRES THE GAS AND ELECTRICITY MARKETS AUTHORITY
("OFGEM") TO PUBLISH EVERY THREE MONTHS A TABLE OF THE
TARIFFS WHICH ARE TO APPLY TO NEW SOLAR PHOTOVOLTAIC INSTALLATIONS
("SOLAR PV") IN THE FOLLOWING QUARTER, AND IT REQUIRES
THE SECRETARY OF STATE FOR ENERGY AND CLIMATE CHANGE ("DECC")
TO PUBLISH QUARTERLY DATA ABOUT THE DEPLOYMENT OF SOLAR PV WHICH
ARE ELIGIBLE FOR FEED-IN TARIFFS, WHICH ARE TO BE USED IN CALCULATING
THE TARIFFS FOR THE FOLLOWING QUARTER.
This instrument 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.
16. The Government announced in February 2011
that it would carry out a comprehensive review of the Feed-in
Tariffs (FITs) scheme, making clear their intention to use the
review to put right what were seen as fundamental limitations
of the scheme, and also to address the risks to the budget posed
by a mismatch between tariffs and technology costs.
17. As regards solar PV, detailed proposals for
achieving these aims were set out in a consultation launched in
February 2012. Specifically, the consultation sought views on
a more responsive mechanism for "tariff degression"
(that is, reduction), which would provide a reliable method of
financial control while at the same time giving a good measure
of certainty about the future path of tariffs. In May of this
year, DECC published a detailed analysis of the consultation responses
and policy decisions in the Government's response to the consultation.[3]
18. In its Explanatory Memorandum ("EM"),
DECC states that the consultation proposed that tariffs for solar
PV should be reduced every six months (or more often if deployment
exceeded specified levels). While 39% of respondents agreed with
the principle, many preferred the dates of degressions to be fixed,
so as to provide greater certainty; and 83% of respondents disagreed
with the proposal that the rate of degression should be 10% every
six months, with some suggesting smaller tariff reductions at
more frequent intervals. The consultation responses also revealed
a strong view that any contingent degression mechanism should
make provision to respond to under-deployment of solar PV, as
well as over-deployment.
19. In the EM, DECC states that it has taken
these views on board in finalising the Order, which provides for
quarterly tariff reductions on fixed dates, with smaller reductions
than were proposed in the consultation (except in the event of
exceptionally high deployment), and provision for there to be
no reduction in the event of low deployment. In its May 2012 response
to the consultation, DECC states that the tariffs now proposed
"are designed to provide a rate of return of 4.5 to 8% for
a typical, well-sited installation" (paragraph 8).
20. In amending the Feed-in Tariffs (Specified
Maximum Capacity and Functions) Order 2010 ("the 2010 Order"),
this Order includes a requirement on Ofgem to publish, at least
two months before the start of each quarter, a table setting out
the tariffs which are to apply to new solar PV in the following
quarter. The Order also amends the 2010 Order to require DECC
to publish every three months specified data about the deployment
of solar PV in the preceding quarter. The data are to be used
in determining the rate at which tariffs are to degress for the
following quarter.
21. DECC states that the amendments to the 2010
Order, and parallel modifications to the standard conditions of
electricity supply licences, form part of the ongoing monitoring
of the FITs scheme, designed to ensure that the objectives of
the scheme are delivered in a way which ensures value for money.
The Department states that the degression mechanism in particular
will be regularly reviewed in consultation with the solar PV industry,
to ensure that it is operating as intended.
C. Draft Renewable Heat Incentive Scheme (Amendment)
Regulations 2012
Date laid: 11 June
Parliamentary Procedure: affirmative
SUMMARY: THE DRAFT RENEWABLE HEAT INCENTIVE SCHEME
(AMENDMENT) REGULATIONS 2012 WOULD RESTRICT ACCESS BY NEW APPLICANTS
TO THE RENEWABLE HEAT INCENTIVE SCHEME FOR THE REMAINDER OF FINANCIAL
YEAR 2012-13, IF ESTIMATED EXPENDITURE SHOWED THAT THE SCHEME
WAS LIKELY TO GO BEYOND ITS AVAILABLE BUDGET.
This instrument 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.
22. In its Explanatory Memorandum ("EM"),
the Department for Energy and Climate Change ("DECC")
states that the Renewable Heat Incentive ("RHI") scheme
is a long-term tariff scheme to encourage the replacement of fossil-fuel
heating with renewable alternatives. It opened for applications
in November 2011 and currently supports renewable heat installations
in business, industry and the public sector as well as district
heating schemes. DECC's EM says that, since November 2011, the
application rate has been relatively steady, and that the level
of current applications is low relative to the available budget.
Given that this is an immature market, DECC notes that there is
a high degree of uncertainty about how the market will respond
over time, and comments that cost control provides transparent
plans to deal with any future unexpected and rapid surges in uptake.
23. Cost control is the objective behind these
draft Regulations. DECC states in the EM that the Regulations
are necessary to ensure that the RHI scheme remains within budget
in the current financial year and the following year without a
detrimental impact on the renewable heat supply chain.
24. In amending the Renewable Heat Incentive
Scheme Regulations 2011 ("the 2011 Regulations": SI
2011/2860, made on 27 November 2011), these draft Regulations
would restrict access by new applicants to the RHI scheme for
the remainder of the financial year if estimated expenditure showed
that the scheme was likely to go beyond its available budget.
DECC states in the EM that this would not affect installations
which had already been accredited, nor would it affect registered
producers of bio-methane. The suspension would be triggered at
97% of budget and one week's notice of the suspension would be
provided. DECC would publish weekly updates of forecast expenditure
its website, and would also provide informal notice on the website
approximately one month before the scheme would need to close.
25. DECC states that, since carrying out consultation
on these measures in March and April of this year, the Department
has determined that spending all the previously available 2012-13
budget for RHI scheme subsidies, of £108m, would build up
a renewable heat supply chain that could not be fully supported
by the budget of £251m allocated to 2013-14. In order to
encourage a supply chain that could be supported by the budget
available in 2013-14, DECC has determined a budget limit of £70m
for 2012-13.
26. As regards consultation on the interim cost
control proposals, DECC states that this was held over four weeks
from 26 March 2012. The EM states that the consultation period
was shorter than the standard 12 weeks "as to be effective
this policy must be in place before summer recess, which would
not have been possible with a 12 week consultation".
27. DECC also states that the cost control approach
introduced by these Regulations is "an interim measure",
and that longer-term measures are planned for introduction in
spring 2013. The impact assessment provided with the Regulations
describes this as a "contingent degression mechanism in which
tariffs for each technology are reduced when the rate of deployment
reaches certain levels". We also draw the Feed-in Tariffs
(Specified Maximum Capacity and Functions) (Amendment No. 2) Order
2012 (SI 2012/1393) to the attention of the House in this Report,
which provides for a "contingent degression mechanism"
in the context of the Feed-in Tariffs scheme.
28. We see the need for the Government to avoid
the risk that take-up of support under the RHI scheme in the current
financial year might outstrip the ability of the scheme's budget
in future years to maintain support to the emerging renewable
heat supply chain. To that extent, the measures set out in these
Regulations are consistent with the Government's policy objectives.
29. We are concerned, however, that the 2011
Regulations, made in November 2011, have had to be amended little
more than six months later, in order to address a budgetary issue
that should have been foreseen at the outset. What appears to
be a lack of forethought has also constrained the Government's
approach to consultation on the measures in the latest Regulations.
Four weeks, rather than 12, were allowed for the consultation
process because the Government launched the process in March 2012
against an implementation deadline of summer 2012. If the latter
deadline is immovable, better forward planning would have allowed
the consultation process to start earlier in the year.
Other Instruments of Interest
DRAFT EDUCATION (AMENDMENT OF THE CURRICULUM REQUIREMENTS
FOR FOURTH KEY STAGE) (ENGLAND) ORDER 2012
30. This Order, laid by the Department for Education
(DfE), removes the requirement on maintained schools to provide
work-related learning as part of the National Curriculum for students
in the fourth key stage (Years 10 and 11). This has been a statutory
requirement since 2004, and is defined in the Education Act 2002
("the 2002 Act") as "planned activity designed
to use the context of work to develop knowledge, skills and understanding
useful in work, including learning through the experience of work,
learning about work and working practices and learning skills
for work". A review of vocational education carried out by
Professor Alison Wolf of King's College London[4]
included a recommendation that this statutory requirement should
be removed; the Order amends the provisions of the 2002 Act in
line with this recommendation.
31. In its Explanatory Memorandum, DfE acknowledges
that the timing of the Order does not meet the commitment made
to the Merits Committee that the Government would give schools
a full term's notice of a requirement to implement statutory instruments.
The Department states, however, that it considers that the Order
falls outside the spirit of the commitment, since it has the effect
of removing, rather than imposing, a duty on schools. In our view,
since schools may well have planned during one school year to
provide work-related learning during the following year, it would
have been a reasonable expectation that the Government should
have brought this Order forward sooner.
DRAFT LOCAL AUTHORITIES (MAYORAL ELECTIONS) (ENGLAND
AND WALES) (AMENDMENT) REGULATIONS 2012
32. In its 3rd report of this session (HL Paper
11) the Committee drew the special attention of the House to the
arrangements in the draft Police and Crime Commissioner Elections
Order 2012 which, amongst other things, provides model ballot
forms and publicity notices for use in the election. These Regulations
set out similar forms and notices for the election of Local Mayors
when held on the same day as the Police and Crime Commissioner
elections so that the forms and notices will be consistent. This
applies in particular to the forthcoming mayoral election to be
held in Bristol on 15 November 2012. The new design of the forms
follows recommendations from the Electoral Commission and other
stakeholders for improvements to be made to statutory election
materials. This is a first step and a wider review of such materials
will follow.
DRAFT NEIGHBOURHOOD PLANNING (REFERENDUMS) REGULATIONS
2012
33. The Localism Act 2011 provides for referendums
to be held on a range of issues. It sets out a new statutory framework
for neighbourhood planning, which provides that town or parish
councils, designated neighbourhood forums or community organisations
can put forward neighbourhood planning proposals which may be
subject to referendums. The Neighbourhood Planning (Referendums)
Regulations 2012 ("the Referendum Regulations") provide
for the conduct of such referendums (the Neighbourhood Planning
(General) Regulations 2012 (SI 2012/637), which came into force
in April 2012, set out the procedures for the designation of neighbourhood
forums and related matters).
34. As required by statute, the Secretary of
State consulted the Electoral Commission before making the Referendum
Regulations. In April 2012, the Commission published a report
setting out its views, which were that the questions first proposed
by the Government were difficult to understand, largely due to
their length and complexity. The Commission proposed simpler questions,
and these have been accepted by the Government.
Draft Police and Crime Panels (Modification
of Functions) Regulations 2012
Police and Crime Panels (Nominations, Appointments
and Notifications) Regulations 2012 (SI 2012/1433)
35. A Police and Crime Commissioner (PCC) will
produce a Police and Crime Plan for the area and also an annual
report on progress against that plan. The Police and Crime Panel
will scrutinise these documents, key appointments and the Commissioner's
conduct, acting as a "critical friend". Police and Crime
Panels must comprise one elected representative (councillors and,
where relevant, elected mayors) from each local authority within
the force area and two independent members or co-optees; and there
must be a minimum of ten elected representatives on the Panel.
In areas where there are fewer than ten local authorities, each
authority will be required to send one member and the allocation
of remaining seats is to be negotiated locally. Once established,
Panels will be free to co-opt further members, both elected and
independent, up to a maximum panel size of 20. The frequency
of meetings will be determined locally; some areas are planning
for quarterly meetings. The Police and Crime Panels (Nominations,
Appointments and Notifications) Regulations 2012 (SI 2012/1433)
set out what information host authorities and local authorities
need to provide to the Home Office in relation to their Panels,
how to do so and the deadline for providing this information.
These Regulations are intended to ensure that the Home Office
has sufficient information to facilitate intervention by the Home
Secretary should local authorities fail to establish a Panel.
The Draft Police and Crime Panels (Modification of Functions)
Regulations 2012 make provision for circumstances where a
local authority fails to nominate or appoint one or more councillors
to the Panel. In such circumstances, a defaulting local authority
will no longer be required to agree the Panel arrangements. This
is a contingency measure intended to prevent a defaulting authority
from frustrating the efforts of other local authorities and ensure
that Panels are in place in time for the arrival of the PCCs in
November 2012. The Committee commented that the instrument gives
the Secretary of State powers to direct co-option, which seems
a rather more significant step than the minor modification suggested
by the instrument's title.
ADOPTION AGENCIES (PANEL AND CONSEQUENTIAL AMENDMENTS)
REGULATIONS 2012 (SI 2012/1410)
36. The Adoption Agencies Regulations 2005 require
that, when an adoption agency is considering adoption for a child,
the agency must refer the case to an adoption panel for their
consideration and recommendation, before reaching its decision.
The Adoption Agencies (Panel and Consequential Amendments) Regulations
2012 ("the Adoption Panel Regulations") prohibit the
adoption agency from referring such cases to an adoption panel
in circumstances where, if the adoption agency's decision-maker
were to decide that the child should be placed for adoption, the
local authority would be required to apply to court for a placement
order.
37. DfE has said that the change made by the
Adoption Panel Regulations gives effect to a recommendation from
the Family Justice Review, which the Government and Welsh Ministers
accepted in February 2012. The Department has stated that the
Adoption Panel Regulations reflect two policy intentions: to reduce
delay in the adoption process so that children will be able to
be placed with their prospective adoptive families earlier than
now; and to remove duplication, since both adoption panels and
courts undertake a full assessment of the evidence. DfE has stressed
that adoption panels will continue to have a role to play in deciding
whether some children should be placed for adoption, in cases
where the courts have no role to play. The Department has also
stated that adoption panels have two other functions: of considering
the suitability of prospective adopters to adopt and the termination
of approval of prospective adopters; and of considering whether
a child should be placed for adoption with particular prospective
adopters.
PUBLIC BODIES ACT 2011 (TRANSITIONAL PROVISION) ORDER
2012 (SI 2012/1471)
38. This Order contains a transitional provision,
required as a result of the abolition of the regional development
agencies ("RDAs"). Section 30 of the Public Bodies Act
2011 ("the 2011 Act") provides for the RDAs' abolition.
In practice, the RDAs ceased most of their operations on 30 March
2012, and their formal abolition under the 2011 Act is expected
to take effect on 1 July 2012. In recognition of the fact that
the RDAs will not be able to produce their final statements of
accounts and annual reports (for the period 1 April 2012 to 30
June 2012) before they are abolished, this Order provides for
the functions relating to these accounts and reports to be discharged
by the Department for Business, Innovation and Skills.
SOCIAL SECURITY (INFORMATION-SHARING IN RELATION
TO WELFARE SERVICES ETC.) REGULATIONS 2012(SI 2012/1483)
39. This instrument specifies the purposes for
which information can be shared in accordance with the powers
in sections 130 and 131 of the Welfare Reform Act 2012. The legislation
will allow the Department for Work and Pensions ("DWP")
and local authorities to cross-refer data held so that the same
means-testing information does not need to be supplied and reassessed
repeatedly. DWP states that being able to share people's data
without needing to seek their consent every time will help to
speed up decision making, make the process of applying for a local
benefit or service much simpler for the individual, and ease administrative
arrangements by removing the need to collect and record consent.
Particular purposes for which these powers will be used, listed
in the Explanatory Memorandum, include qualification for Blue
Badge parking permits, Disabled Facilities Grants, Discretionary
Housing Payments, support for residential care and targeted support
for the prevention of homelessness, for those included in new
initiative for Troubled Families and for people affected by changes
in social security benefit rules, (for example the cap on housing
benefit or under-occupancy provisions). Although not new policy,
this will affect a large number of individuals (see the privacy
assessment attached to the Explanatory Memorandum[5]).
This indicates, for example, that these powers will facilitate
approximately 500,000 new applications to local authorities for
home based care each year, and a similar number of reassessments;
identify approximately 660,000 people who are likely to be affected
by the new benefit rules on under occupancy in the social sector;
and allow data to be shared on around 240,000 people in connection
with the Troubled Families Programme.
REGULATION OF INVESTIGATORY POWERS (DIRECTED SURVEILLANCE
AND COVERT HUMAN INTELLIGENCE SOURCES) (AMENDMENT) ORDER 2012
(SI 2012/1500)
40. Local authorities have been criticised for
using covert surveillance in less serious investigations, for
example dog fouling or checking whether an individual resides
in a school catchment area. The Protection of Freedoms Act 2012
will require local authorities' authorisations under the Regulation
of Investigatory Powers Act 2000 (RIPA) relating to the acquisition
and use of communications data, directed surveillance and covert
human intelligence sources to be subject to approval by a magistrate.
As part of this move to limit the use of RIPA powers to more serious
issues, this Order limits Local Authorities' powers to use directed
surveillance[6] to the
purpose of preventing or detecting crime that is punishable by
a maximum term of at least six months of imprisonment. However
an exception remains to allow local authorities to continue to
permit surveillance for the purpose of preventing or detecting
specified criminal offences relating to underage sales of alcohol
and tobacco, even though these may attract shorter sentences.
QUALITY AND SAFETY OF ORGANS INTENDED FOR TRANSPLANTATION
REGULATIONS 2012(SI 2012/1501)
41. These Regulations transpose Directive 2010/53/EU
on the standards of quality and safety of human organs intended
for transplantation. The UK already has all the relevant clinical
standards but needs to set up a licensing system to be compliant
with the Directive by the time it comes into effect on 27 August
2012. The Explanatory Memorandum provided with the instrument
assumed a rather greater knowledge of the current transplant system
than is likely, so the Department of Health has provided some
additional background information to set these changes in context,
which we are publishing in Appendix 2.
WIRELESS TELEGRAPHY (CONTROL OF INTERFERENCE FROM
APPARATUS) (THE LONDON OLYMPIC GAMES AND PARALYMPIC GAMES) REGULATIONS
2012 (SI 2012/1519)
42. The Olympic Games and Paralympic Games will
attract in excess of eight million spectators and staff, arrangements
for their safety and security will depend on the organisers' communications
networks. The purpose of these Regulations is to ensure that the
electromagnetic energy emitted by other apparatus operating in
the area does not affect the correct functioning of these communications
networks. Although the electromagnetic emissions from apparatus
is limited by manufacturing standards, these emissions can change
in operation and there is evidence that apparatus as diverse as
air-conditioning thermostats, portable generators, TV aerial amplifiers
and LED light fittings have caused interference. These Regulations
will enable Ofcom to require apparatus that interferes with stewards'
communication equipment to be turned down or turned off. Failure
to comply would be a criminal offence. The Regulations apply only
for a defined period of time and within the defined Olympic protection
areas. Respondents to the consultation exercise,[7]
including the BBC, indicated that they would welcome this issue
being addressed more widely as, in their view, the current base
legislation is inadequate. This view is supported by material
in the Impact Assessment (for example paragraphs A1.13 to 15)
which explains that only three out of 167 complaints made in 2011
were capable of resolution using existing legislation; and of
those 167 cases 11 related to interference to emergency services
communications.
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
Community Interest Company (Amendment) Regulations
2012
Designation of Features (Appeals) (England) Regulations
2012
Education (Amendment of the Curriculum Requirements
for Fourth Key Stage) (England) Order 2012
Financial Services and Markets Act 2000 (Regulated
Activities) (Amendment) Order 2012
Local Authorities (Mayoral Elections) (England
and Wales) (Amendment) Regulations 2012
Neighbourhood Planning (Referendums) Regulations
2012
Northern Ireland Act 1998 (Devolution of Policing
and Justice Functions) Order 2012
Police and Crime Panels (Modification of Functions)
Regulations 2012
Instruments subject to annulment
SI 2012/1379 Cattle Compensation (England) Order
2012
SI 2012/1380 Individual Ascertainment of Value
(England) Order 2012
SI 2012/1410 Adoption Agencies (Panel and Consequential
Amendments) Regulations 2012
SI 2012/1424 National Patient Safety Agency (Establishment
and Constitution) (Amendment) Order 2012
SI 2012/1425 National Patient Safety Agency (Amendment)
Regulations 2012
SI 2012/1433 Police and Crime Panels (Nominations,
Appointments and Notifications) Regulations 2012
SI 2012/1439 Supervision of Accounts and Reports
(Prescribed Body) and Companies (Defective Accounts and Directors'
Reports) (Authorised Person) Order 2012
SI 2012/1462 Family Procedure (Amendment) (No.
2) Rules 2012
SI 2012/1465 Local Elections (Declaration of
Acceptance of Office) Order 2012
SI 2012/1467 National Health Service (Local Pharmaceutical
Services) Amendment Regulations 2012
SI 2012/1470 Football Spectators (Seating) Order
2012
SI 2012/1471 Public Bodies Act 2011 (Transitional
Provision) Order 2012
SI 2012/1477 Occupational and Personal Pension
Schemes (Automatic Enrolment) (Amendment) (No. 2) Regulations
2012
SI 2012/1483 Social Security (Information-sharing
in relation to Welfare Services Etc.) Regulations 2012
SI 2012/1489 Iraq (Asset-Freezing) Regulations
2012
SI 2012/1500 Regulation of Investigatory Powers
(Directed Surveillance and Covert Human Intelligence Sources)
(Amendment) Order 2012
SI 2012/1501 Quality and Safety of Organs Intended
for Transplantation Regulations 2012
SI 2012/1502 Community Drivers' Hours and Recording
Equipment Regulations 2012
SI 2012/1507 Sudan (Asset-Freezing) Regulations
2012
SI 2012/1508 Republic of Guinea (Asset-Freezing)
Regulations 2012
SI 2012/1509 Belarus (Asset-Freezing) Regulations
2012
SI 2012/1510 International Criminal Tribunal
for the Former Yugoslavia (Financial Sanctions Against Indictees)
(Revocation) Regulations 2012
SI 2012/1511 Democratic Republic of the Congo
(Asset-Freezing) Regulations 2012
SI 2012/1512 NHS Bodies (Transfer of Trust Property)
Order 2012
SI 2012/1515 Eritrea (Asset-Freezing) Regulations
2012
SI 2012/1516 Liberia (Asset-Freezing) Regulations
2012
SI 2012/1517 Lebanon and Syria (Asset-Freezing)
Regulations 2012
SI 2012/1519 Wireless Telegraphy (Control of
Interference from Apparatus) (The London Olympic Games and Paralympic
Games) Regulations 2012
SI 2012/1534 Terrorism Act 2000 and Proceeds
of Crime Act 2002 (Business in the Regulated Sector) Order 2012
SI 2012/1538 Prospectus Regulations 2012
1 DECC has published a Government response to the consultation
process: see
http://www.decc.gov.uk/assets/decc/11/consultation/green-deal/5521-the-green-deal-and-energy-company-obligation-cons.pdf
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2
Repeated in this House: see
http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/120611-wms0001.htm#1206113000133
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3
http://www.decc.gov.uk/en/content/cms/consultations/fits_rev_ph2a/fits_rev_ph2a.aspx
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4
"Review of Vocational Education - The Wolf Report" (March
2011): https://www.education.gov.uk/publications/eOrderingDownload/The%20Wolf%20Report.pdf
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5
EM and Privacy Assessment can be found on the legislation website
at http://www.legislation.gov.uk/uksi/2012/1483/pdfs/uksiem_20121483_en.pdf Back
6
Directed surveillance is surveillance that is covert but not intrusive
i.e. it excludes surveillance of anything taking place on any
residential premises or in any private vehicle which involves
the presence of an individual on the premises or in the vehicle
or is carried out by means of a surveillance device. Local Authorities
are not permitted to authorise intrusive surveillance under RIPA. Back
7
See summary on Ofcom website http://stakeholders.ofcom.org.uk/binaries/consultations/undueinterference-olympics-2012/statement/consultation-responses.pdf
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