HOUSE OF LORDS Merits of Statutory Instruments Committee 26th Report of Session 2006-07 Ordered to be printed 3 July and published 5 July 2007 London : The Stationery Office Limited £price HL Paper 137 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) Orders in Council, and draft Orders in Council, under paragraph 1 of the Schedule to the Northern Ireland Act 2000; (b) remedial orders, and draft remedial orders, under section 10 of the Human Rights Act 1998; (c) draft orders (including draft subordinate provisions orders) under section 1 of the Regulatory Reform Act 2001, subordinate provisions orders under that Act and proposals in the form of a draft order under that Act; (d) 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. Current Membership The Members of the Committee are: Baroness Adams of Craigielea Viscount Eccles Baroness Maddock Lord Armstrong of Ilminster Lord Filkin (Chairman) Baroness Thomas of Winchester Viscount Colville of Culross Lord James of Blackheath Lord Tunnicliffe Baroness Deech Lord Jopling 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. Publications The Committee’s Reports are published by the Stationery Office by Order of the House. All publications of the Committee are on the internet at: www.parliament.uk/parliamentary_committees/merits.cfm Contacts If you have any queries about the Committee and 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; facsimile 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. Twenty-sixth Report INSTRUMENTS OF INTEREST 1. In the run-up to the Gambling Act 2005 coming into effect on 1 September, the Department for Culture, Media and Sport have laid a number of instruments1. The draft Gambling Act 2005 (Horserace Totalisator Board) Order 2007 and draft Gambling Act 2005 (Horserace Betting Levy) Order 2007 aim to maintain the existing regimes when the current legislation is repealed. We also note that, in response to concerns expressed by Members of both Houses, the draft Categories of Gaming Machine Regulations 2007 have been withdrawn since we considered them at our meeting of 5 June, and re-laid with an additional section relating to the use of lottery ticket vending machines in working men’s clubs and similar venues. We asked the department questions about electronic gambling and how effectively they will regulate the more technologically advanced areas of this sector: their responses are printed at the Appendix. 2. The restructuring of public funding (legal aid) in civil cases continues on the lines of Lord Carter of Coles’ report2. The latest stage is the Revised Funding Code: Criteria, laid by the Legal Services Commission. Amongst other things, the Code facilitates the new legal aid scheme for private law family work from October 2007, including proceedings relating to children. The Government’s policy in this area remains controversial with all parts of the legal profession. 3. The Department for Environment, Food and Rural Affairs (DEFRA) have laid the draft Welfare of Farmed Animals (England) Regulations 2007 (to be considered in Grand Committee on 10 July). The Regulations, made under the Animal Welfare Act 2006 (“the 2006 Act”), set down the rules for protecting the welfare of farmed animals and impose duties on the person responsible for the animals. They replace the Welfare of Farmed Animals Regulations 2000; DEFRA have said that there are no significant changes to the 2000 Regulations (other than removal of provisions that are duplicated in the 2006 Act). Several consultation respondents argued that the Regulations should not apply to common land, especially in very remote areas. The Committee sought further advice on this issue. DEFRA have told us that they have sent the commoners’ associations a letter clarifying the position. In particular, they have made it clear that the requirement to provide artificial shelter to free-roaming livestock would apply only “where possible”; and also that the requirement to inspect animals frequently would not apply where the welfare of the animals did not require frequent human attention. 4. The draft Housing Benefit (Loss of Benefit) (Pilot Scheme) Regulations 2007 implement section 31 of the Welfare Reform Act 2007 1 See also draft Gambling (Lottery Machine Interval) Order 2007, draft Gambling Act 2005 (Amendment of Schedule 6) Order 2007 and draft Gambling Act 2005 (Operating Licence Conditions) Regulations 2007, Gambling Act 2005 (Premises Licences and Provisional Statements) (Amendment) (England and Wales) Regulations 2007 ((SI 2007/1775), Gambling Act 2005 (Limits on Prize Gaming) Regulations 2007 (SI 2007/1777) and Gambling (Operating Licence and Single-Machine Permit Fees) (Amendment) (No. 2) Regulations 2007 (SI 2007/1791) 2 “Legal Aid: A market-based approach to reform” published 13 July 2006 2 MERITS OF STATUTORY INSTRUMENTS COMMITTEE and set up a pilot scheme to test the effects of reducing Housing Benefit when a person has been evicted on the grounds of anti-social behaviour and has refused to accept support to tackle that behaviour. Among other things, the Regulations set out the level of phased reductions in benefit that will apply. The scheme will be piloted in eight local authorities for two years starting 1 November 2007. The proposal attracted attention during the passage of the bill for the Act and the operative provisions of the parent Act contain a sunset date of 31 December 2010. The scheme could not be rolled out nationwide without further primary legislation. 5. The Northern Ireland Office (NIO) have laid the draft Political Parties, Elections and Referendums Act 2000 (Northern Ireland Political Parties) Order 2007. The Order makes provision for Northern Ireland parties to continue to be able to accept donations from Irish individuals and bodies from 1 November 2007 onwards, when Northern Ireland will become subject to most of the rules governing the regulation of donations contained in the Political Parties, Elections and Referendums Act 2000. The NIO have said that the steps set out in the Order, which seek to balance a number of competing concerns including administrative burden and parity of treatment, reflect an approach which has been agreed with both the Electoral Commission and the Irish Government. 6. The draft Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2007 adds two further names to the list of banned organisations (Jammat-ul Mujahideen Bangladesh and Tehrik Nefaz-e Shari’at Muhammadi); both are believed to have comitted terrorist acts abroad. Inclusion in the list makes it illegal for anyone in the United Kingdom to promote or support that organisation. The list is reviewed regularly and organisations added or removed as appropriate. 7. The Criminal Justice Act 2003 (Reviews of Sentencing) (Consequential and Supplementary Provisions) Order 2007 (SI 2007/1762) modifies section 36 of the Criminal Justice Act 1988 to ensure that the Attorney General has power to refer all mandatory life sentence cases considered to be “unduly lenient” to the Court of Appeal for judicial reconsideration of the minimum term to be served. Due to an unintended gap in the law, the Attorney General did not have power to refer certain cases in which prisoners already sentenced for murder are awaiting the determination of a minimum term by the High Court. It is understood that there are approximately 180 cases awaiting determination of their minimum term,