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HOUSE of LORDS Merits of Statutory Instruments Committee HOUSE OF LORDS Merits of Statutory Instruments Committee 32nd Report of Session 2010-12 Drawing special attention to: Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 Electronic Communications (Universal Service) (Amendment) Order 2011 Tobacco Advertising and Promotion (Display and Specialist Tobacconists) (England) (Amendment) Regulations 2011 Ordered to be printed 24 May and published 25 May 2011 London : The Stationery Office Limited £price HL Paper 153 The Select Committee on the Merits of Statutory Instruments The Committee has the following terms of reference: (1) The Committee shall, subject to the exceptions in paragraph (2), consider— (a) every instrument (whether or not a statutory instrument), or draft of an instrument, which is laid before each House of Parliament and upon which proceedings may be, or might have been, taken in either House of Parliament under an Act of Parliament; (b) every proposal which is in the form of a draft of such an instrument and is laid before each House of Parliament under an Act of Parliament, with a view to determining whether or not the special attention of the House should be drawn to it on any of the grounds specified in paragraph (3). (2) The exceptions are— (a) remedial orders, and draft remedial orders, under section 10 of the Human Rights Act 1998; (b) draft orders under sections 14 and 18 of the Legislative and Regulatory Reform Act 2006, and subordinate provisions orders made or proposed to be made under the Regulatory Reform Act 2001; (c) Measures under the Church of England Assembly (Powers) Act 1919 and instruments made, and drafts of instruments to be made, under them. (3) The grounds on which an instrument, draft or proposal may be drawn to the special attention of the House are— (a) that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House; (b) that it may be inappropriate in view of changed circumstances since the enactment of the parent Act; (c) that it may inappropriately implement European Union legislation; (d) that it may imperfectly achieve its policy objectives. (4) The Committee shall also consider such other general matters relating to the effective scrutiny of the merits of statutory instruments and arising from the performance of its functions under paragraphs (1) to (3) as the Committee considers appropriate, except matters within the orders of reference of the Joint Committee on Statutory Instruments. Members The members of the Committee are: Rt Hon. Baroness Butler-Sloss GBE Lord Methuen Lord Eames OM Rt Hon. Baroness Morris of Yardley Rt Hon. Lord Goodlad (Chairman) Lord Norton of Louth Baroness Hamwee Lord Plant of Highfield Lord Hart of Chilton Rt Hon. Lord Scott of Foscote Lord Lucas Registered interests Members’ registered interests may be examined in the online Register of Lords’ Interests at www.publications.parliament.uk/pa/ld/ldreg.htm. The Register may also be inspected in the House of Lords Record Office and is available for purchase from the Stationery Office. Declared interests for this Report are in the Appendix. Publications The Committee’s Reports are published by the Stationery Office by Order of the House in hard copy and on the internet at www.parliament.uk/parliamentary_committees/merits.cfm Contacts If you have a query about the Committee or its work, please contact the Clerk of the Merits of Statutory Instruments Committee, Delegated Legislation Office, House of Lords, London SW1A 0PW; telephone 020-7219 8821; fax 020-7219 2571; email [email protected]. The Committee’s website, www.parliament.uk, has guidance for the public on how to contact the Committee if you have a concern or opinion about any new item of secondary legislation. Statutory instruments The National Archives publishes statutory instruments on the internet on behalf of the Government at www.legislation.gov.uk/uksi, together with an explanatory memorandum (a short, plain-English explanation of what the instrument does) for each instrument. Thirty-second Report INSTRUMENTS DRAWN TO THE SPECIAL ATTENTION OF THE HOUSE 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. Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (SI 2011/1208) Electronic Communications (Universal Service) (Amendment) Order 2011 (SI 2011/1209) Date laid: 24 June 2011 Parliamentary Procedure: negative Summary: These Regulations implement the Citizens’ Rights Directive (Directive 2009/136/EC) which amends the “E-Privacy Directive” (Directive 2002/58/EC). These Regulations amend the Privacy and Electronic Communications Regulations 2003 which regulate privacy and data protection in the electronic communications sector in the UK. The Committee received several submissions which raised questions: in particular about the point at which a user is required to give consent for a “cookie” to be applied; and about the particular technology to be used in providing services for the deaf. DCMS has provided a clear explanation of their position. As the arguments are technical and quite lengthy the full correspondence is published on the Merits Committee website. These Regulations are drawn to the special attention of the House on the grounds that they give rise to issues of public policy likely to be of interest to the House. 1. The Department for Culture, Media and Sport (DCMS) has laid these instruments1 under the European Communities Act 1972 along with Explanatory Memoranda and a number of Impact Assessments. These Regulations implement the Citizens’ Rights Directive (Directive 2009/136/EC) which amends the “E-Privacy Directive” (Directive 2002/58/EC). These Regulations amend the Privacy and Electronic Communications Regulations 2003 which regulate privacy and data protection in the electronic communications sector in the UK. Gold plating in SI 2011/1208? 2. The amendments in this instrument strengthen current enforcement provisions and will require consumers to give their consent to allow the import of “cookies” to their machines. The Committee has received correspondence from the Internet Advertising Bureau and the Association of Online Publishers which questions whether the wording in revised regulation 3A, which is inserted by regulation 6 in the instrument, over-implements the Directive by changing the point and the method by which the reader must give consent to a cookie. 1 See also the Electronic Communications and Wireless Telegraph Regulations 2011 (SI 2011/1210) 2 MERITS OF STATUTORY INSTRUMENTS COMMITTEE 3. DCMS has provided a full response and legal analysis of their transposition. They comment that proposals for prior consent were dropped during negotiation and the definition of consent used in the amending regulations is the definition set out in the Data Protection Directive, which was implemented in the UK through the Data Protection Act 1998. This definition is not time bound – it makes no judgement on when consent can occur. The correspondence is published in full on the Merits Committee website. Under-implementation in SI 2011/1209? 4. A submission from Sorenson Communications alleges under- implementation: it states that as the wording of the instrument currently stands, it does not provide for a functionally equivalent telecommunications service for British Sign Language (BSL) users, as mandated by the EU Framework. They wish to promote Video Relay Services as opposed to the Text Relay currently used. 5. DCMS have provided a response which explains that the Framework Directive requires Member States’ Governments to “enable relevant national authorities to specify, where appropriate, requirements to be met by undertakings providing publicly available electronic communication services to ... disabled end-users”. 6. In the UK Ofcom is the nominated regulator and is in the middle of a review of appropriate technology. Ofcom is currently undertaking a review of relay services, the objective of which is to assess whether current arrangements for the provision of relay services are adequate in delivering equivalence to voice telephony for hearing (including BSL users) and speech impaired end-users. Ofcom expect to publish a consultation document within the next few weeks and a research report, which has helped inform the review, was published on 4 February 2011.2 DCMS conclude that Sorenson’s complaint pre-empts the outcome of that review but comments that both Government and regulator share the view that equivalence is a broad concept and should not be tied to any particular service. The correspondence is published in full on the Merits Committee website. 7. In each case the submissions focus on technical issues about how the European legislation should be transposed and the Department has provided a strong defence of the position set out in the current regulations. The issues raised are technical and the full correspondence is published on the Committee’s website for the benefit of any Member who has an interest. B. Tobacco Advertising and Promotion (Display and Specialist Tobacconists) (England) (Amendment) Regulations 2011 (SI 2011/1256) Date laid: 2 July 2011 Parliamentary Procedure: negative Summary: The Tobacco Advertising and Promotion (Display) (England) Regulations 2010 (SI 2010/445) provided exemptions to the general prohibition of the display of tobacco products set out in section 21 of the Health Act 2009 with the intention of allowing trading to continue but preventing tobacco products being used 2 http://stakeholders.ofcom.org.uk/market-data-research/telecoms-research/ofcom-relay-services/ MERITS OF STATUTORY INSTRUMENTS COMMITTEE 3 as promotional tools. This was based on evidence which demonstrated that eye- catching displays inspired young people to start smoking. Those regulations were due to come into force on 1 October 2011 for large shops and on 1 October 2013 for all other retailers of tobacco. The new Regulations defer the implementation of those provisions to 6 April 2012 for large shops and 6 April 2015 for all other retailers to reduce the costs on small business in line with the policy objectives of the Growth Review.
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