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HOUSE of LORDS Merits of Statutory Instruments Committee 30Th Report

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HOUSE of LORDS Merits of Statutory Instruments Committee 30Th Report HOUSE OF LORDS Merits of Statutory Instruments Committee 30th Report of Session 2006-07 Street Works (Registers, Notices, Directions and Designations) (England) Regulations 2007 Street Works (Fixed Penalty) (England) Regulations 2007 Heather and Grass etc. Burning (England) Regulations 2007 Water Industry (Prescribed Conditions) (Amendment) Regulations 2007 Ordered to be printed 9 October and published 11 October 2007 London : The Stationery Office Limited £price HL Paper 176 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. 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 a query 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. Thirtieth 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. Street Works (Registers, Notices, Directions and Designations) (England) Regulations 2007 (SI 2007/1951) Street Works (Fixed Penalty) (England) Regulations 2007 (SI 2007/1952) Summary: There are about 1.1million utility works each year in England and the consequent disruption cost approximately £4.3bn1 in the year 2002-03. The policy objective of these Regulations is to change behaviour in the industry so as to provide accurate and timely data, enabling better planning and coordination of street works. Although the RIA estimates that these Regulations will provide a 5-10% improvement in the overall delay costs arising from street works, we doubt whether the low levels of fixed penalty fines represent any sort of incentive to utility companies to change their behaviour. We note that a review of the system and fine levels is planned no more than 2 years after the Regulations come into force and urge the Department to pursue that promptly, as these initial fine levels do not seem likely to achieve the intended policy objective of changing behaviour in the industry. 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 and may imperfectly achieve their policy objectives. 1. These Regulations have been laid by the Department for Transport (DfT) under the New Roads and Street Works Act 1991, as modified by the Traffic Management Act 2004 (“the 2004 Act”), along with a Regulatory Impact Assessment (RIA) and an Explanatory Memorandum (EM). 2. The first set of Regulations (“the Notices Regulations”) update legislation to take account of changes introduced by the 2004 Act. They set out the regulatory regime for street works and in particular specify the content of the register, how notices should be exchanged between street authorities and undertakers (e.g. gas, water, electricity and telecommunication companies) about planned or on-going works in a street, and the processes for either designating streets as ‘protected’, ‘special engineering difficulties’ or as ‘traffic-sensitive’ or restricting further works by undertakers in a specific street. 3. The second set of Regulations (“FPN Regulations”) prescribe the form, manner of service and level of penalties for the fixed penalty notices that street authorities may give in relation to seven specified offences, which include commencing works without giving due notice or failing to inform the authorities of their completion. DfT state that fixed penalty notices provide 1 Halcrow report produced in July 2004 for DfT – see para 27 of the RIA 2 MERITS OF STATUTORY INSTRUMENTS COMMITTEE an alternative way to deal with these offences to going through the Magistrates’ Court. The penalties are set at £120 with a discount to £80 for prompt payment. 4. These two sets of Regulations are linked to the draft Traffic Management Permit Scheme (England) Regulations 2007, which update legislation that was drafted before privatization led to the proliferation of utility companies and new technologies led to a huge increase in the demand for telecommunications cabling. These Regulations give local authorities powers to run permit schemes and the option to operate them electronically. It is intended that authorities should be more active in the management and control of activities taking place on the highway. 5. We commend publication of the legislation so far in advance of the date of its coming into effect, which allows industry plenty of time to adjust to it. We also commend DfT’s aim of giving local authorities greater control and making the system easier to administer. 6. It is estimated that there are about 1.1million utility works per annum in England, and that the consequent disruption cost approximately £4.3bn2 in the year 2002-03. The policy objective of the FPN Regulations is to drive behaviour change in the industry to provide accurate and timely data, to promote the better planning and coordination of street works that will be facilitated by the draft Traffic Management Permit and Notices Regulations. 7. Although the RIA estimates that the FPN Regulations will provide a 5-10% improvement in the overall delay costs arising from street works, the Committee is dubious that the low levels of fixed penalty fines set by the FPN Regulations will represent any sort of incentive to utility companies to change their behaviour. We note that a review of the system and fine levels is planned no more than 2 years after the Regulations come into force and urge the Department to pursue that promptly, as the current low level of fines do not seem likely to achieve the intended policy objective of driving behaviour change in the industry. B. Heather and Grass etc. Burning (England) Regulations 2007 (SI 2007/2003) Summary: These Regulations replace Regulations dating from 1986 with new provisions governing the burning of heather and grass, et cetera. While the most important provisions of the earlier Regulations have been carried forward, there have also been a number of changes. However, the Government have decided not to change the dates of the burning seasons, although Natural England support shortening the seasons as a precautionary measure to protect wildlife. Additional information has been provided to the Committee to explain this decision. 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 for Environment, Food and Rural Affairs (DEFRA) have made these Regulations under section 20(1) of the Hill Farming Act 1946. An Explanatory Memorandum (EM) and Regulatory Impact Assessment (RIA) have been provided. 2 Halcrow report produced in July 2004 for DfT – see para 27 of the RIA MERITS OF STATUTORY INSTRUMENTS COMMITTEE 3 9. The EM states that these Regulations (the “2007 Regulations”) revoke the Heather and Grass etc. (Burning) Regulations 1986 (SI 1986/428: the “1986 Regulations”) in relation to England and replace them with new provisions governing the burning of heather, rough grass, bracken, gorse and vaccinium.
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