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. The EM explains that such burning takes place particularly in the management of grouse moors, and in the management of rough grazing land. 10. At paragraph 7.8, the EM states that the two main provisions of the 1986 Regulations continue to be given effect in the 2007 Regulations. Firstly, burning of specified vegetation may take place only within a “burning season” (unless under licence from Natural England); the season is 1 October to 15 April in the uplands, and 1 November to 31 March elsewhere. Secondly, burns must be controlled over the entire period of the burn; all reasonable precautions must be taken to prevent injury to people or damage to adjacent land and property; and burning must not start between sunset and sunrise. 11. Paragraph 7.9 sets out a number of significant differences in the latest Regulations, including the provision that Natural England is the new regulator, with a more extensive range of powers to license or prohibit burns. 12. In the EM, DEFRA set out the steps that they have taken to consult interested parties in the review of the 1986 Regulations and associated Heather and Grass Burning Code, which has resulted in the 2007 Regulations and Code. Leading stakeholders were invited to give evidence to an expert Science Panel, which was formed to advise the review by assessing evidence on burning and its effects on soils, hydrology and biodiversity; it reported in June 2005. A Stakeholder Panel consisting of a range of interested organisations advised on issues to be raised in a public consultation. That consultation was held from September to December 2005.3 Since then, DEFRA have worked closely with key stakeholders in developing the details of the new Regulations.

Burning Season 13. At paragraph 61, the RIA contains a table comparing the 1986 Regulations with the 2007 Regulations. Item 10 in that table is the burning season, and DEFRA have commented that the issue was “one of the most debated issues in the review of the Regulations”. The RIA states that “many environmental interests wanted the current burning season changed to provide further protection for wild birds in the spring. The bodies which have since become Natural England argued that in order to protect both nesting birds and reptiles the season should be shortened by 2 weeks in the uplands (to finish on 31st March) and 1 month in the lowlands (to finish on 1st March).” However, the Department decided not to change the dates of the burning season for three reasons: the Science Panel advised that there was no clear evidence to justify shortening the season; burning in a way which destroys or disturbs wildlife is already illegal under the Wildlife and Countryside Act; and, in line with a “partnership” approach, DEFRA expect burners to obey the rules. However, in recognition of developing knowledge of the effects of climate change, the Department have said that they and Natural England will keep the issue under review.

3 An executive summary of responses is at page 41 of the RIA. A full summary of responses can be found at: http://www.defra.gov.uk/rural/uplands/burning.htm 4 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

14. We pressed DEFRA on this issue, and in particular asked them to explain why they saw the need to set up an ad hoc Science Panel for this review when Natural England (or its predecessors) were already in place as statutory advisers on conservation matters; and also to say more about Natural England’s views of the decision not to change the dates of the burning season. The advice from DEFRA is printed at Appendix 1. 15. DEFRA’s advice acknowledges that, while Natural England support the policy overall, they would still prefer the burning season to be shortened as a precautionary measure, above all in the interests of wildlife. However, the Department’s advice to the Committee states that “the decision was not solely dependent on the scientific answer to the wildlife question”, but had to take account of four factors: safety; wildlife; economics; and the support of burners’ representatives. “Having weighed the factors above and taken account of the conclusions of the Science Panel, DEFRA decided to leave the burning seasons as they were under the 1986 Regulations.”

Conclusion 16. We commend DEFRA for the fullness of the information provided both in the explanatory material accompanying the Regulations and in response to our queries. We recognise that the decisions taken on the 2007 Regulations have to be seen in the context of the co-operative approach which the Department wish to promote in engaging all interests in managing heather and grass burning. However, we trust that DEFRA give due weight to the views expressed on these (and other) issues by Natural England, as the Department’s statutory adviser on nature conservation policies.

C. Water Industry (Prescribed Conditions) (Amendment) Regulations 2007 (SI 2007/2457) Summary: These Regulations make it possible for water undertakers to take forward compulsory metering in areas of serious water stress, to be designated by the Secretary of State. There is support for this approach among the key water industry stakeholders who are members of the Department’s Water Saving Group. However, recent consultation processes and consumer research suggest that there is still a good deal of public resistance to compulsory metering. 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. 17. The Department for Environment, Food and Rural Affairs (DEFRA) have made these Regulations (“the 2007 Regulations”) under sections 144A(5)(b), 144B(1)(c) and 213(2) of the Water Industry Act 1991. An Explanatory Memorandum (EM) and Regulatory Impact Assessment (RIA) have been provided. 18. The EM states that the purpose of the 2007 Regulations is “to empower water undertakers to meter in designated areas of serious water stress, to manage demand for water by making compulsory metering of households by water undertakers possible in those areas where there is a proven case for doing so”. MERITS OF STATUTORY INSTRUMENTS COMMITTEE 5

The 1991 Regulations – “areas of water scarcity” 19. The 2007 Regulations amend the Water Industry (Prescribed Conditions) Regulations 1991 (SI 1991/3442: “the 1991 Regulations”), which allowed for the right of a household customer to receive an unmetered water supply to be set aside in certain circumstances, including where the household concerned was in an area of water scarcity. The 1991 Regulations provided that, in designating an area of water scarcity, the Secretary of State had to have regard to the following factors: the likely demand for water in the company’s area over the period of ten years following the application; the water resources which were, or could be made available, for meeting that demand; and the measures that the company could take for meeting or managing that demand. 20. The EM states that only one water undertaker4 has applied for, and been granted, area of water scarcity status, and may therefore compulsorily meter its customers. Other undertakers say that the administrative burden and the uncertainty associated with the process have been a barrier to their applying.

DEFRA’s Water Saving Group 21. In the RIA, DEFRA state that the extent of water metering across England and Wales has grown from 3% of households in 1992 to 30% of households in 2007, but that the Department see a need to accelerate this growth in areas where water resources face long-term stress. 22. In October 2005, DEFRA set up the Water Saving Group (WSG) to identify practical ways in which the Department could work with key water industry stakeholders to encourage the efficient use of water in households. The WSG’s members are DEFRA, the Department for Communities and Local Government (DCLG), OFWAT (the economic regulator), the Environment Agency, the Consumer Council for Water (CCWater), representatives from water companies, Water UK5 and Waterwise6. 23. The EM states that WSG members share a consensus that water metering drives more water efficient behaviour. It explains that the WSG made a specific proposal that powers under the Water Act 2003 should be used “to direct companies in areas defined by the Environment Agency as areas of ‘serious water stress’, predominantly in the South East of England, to consider compulsory metering as an option, alongside alternative and complementary measures, in their new statutory water resource management plans which they must submit to the Secretary of State”.

The 2007 Regulations – “areas of serious water stress” 24. The 2007 Regulations amend the 1991 Regulations to allow water undertakers to meter premises in which, or in part of which, a customer has his home where those premises are in an area of serious water stress, as determined under new Regulation 4, and are subject to a programme of metering in the relevant water undertaker’s water resources management plan.

4 Folkestone and Dover Water Services 5 Water UK is “the industry association that represents all UK water and wastewater service suppliers”. 6 Waterwise is “a UK NGO focused on decreasing water consumption in the UK by 2010”. 6 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

25. Areas of serious water stress will be designated by the Secretary of State, acting on the advice of the Environment Agency. Between January and April 2007, the Agency carried out a consultation7 on its methodology for assessing areas of serious water stress. The consultation paper included the following statement: “Water stress is related to the amount of water available per person for a given area, both now and in the future. An area of serious water stress is defined as an area where the current household demand for water is a high proportion of the current effective rainfall or, the future household demand for water is likely to be a high proportion of the effective rainfall available to meet that demand. When the demand for water is high or growing, this can result in a serious level of stress on the available water resources.”

Consultation, and views of interested parties 26. DEFRA’s own consultation process ran in parallel, also between January and April 2007.8 In August 2007, the Department published its response to comments received.9 Those invited to respond included 15 Government Departments; 36 water organisations (including water companies); 12 environmental organisations; and 8 consumer representatives. The consultation was also open to the public. DEFRA received 61 responses: 23 from members of the public, and 38 from the invited organisations. 27. DEFRA’s response document (at page 7) includes the following overview of views expressed on the question of whether companies within areas of serious water stress should be permitted the option of compulsorily metering: “The majority of consultees agreed ... Consultees saw the benefits of such a programme in its potential contribution to water saving, managing demand, incentivising water efficiency, assisting companies in meeting the additional demand required from new housing, monitoring supply pipe leakage and reducing the regulatory burden of the old water scarcity status process. ... there were concerns about the validity of the Environment Agency’s methodology for assessing areas of serious water stress, and the Secretary of State relying upon this methodology. However, a few consultees did not agree with the consultation proposal. Either they argued that metered charging hits large families and people with illnesses that use a lot of water hardest or that companies could do more to provide resources and reduce leakage, and that companies should do this first, before metering customers.” 28. Responses to the Environment Agency’s consultation process mentioned above were on similar lines. The Agency’s response document of July 200710 gives the following summary of comments on the proposal to link water efficiency measures to the relative degree of water stress: “There was general support for the principle of identifying areas of water stress and that demand management should be in proportion to the level of

7 “Identifying areas of water stress”: see: http://publications.environment-agency.gov.uk/pdf/GEHO0107BLUT-e-e.pdf 8 “Consultation on water metering in areas of serious water stress”: see: http://www.defra.gov.uk/corporate/consult/water-metering/consultdoc.pdf 9 See: http://www.defra.gov.uk/environment/water/industry/water_metering/pdf/govt-response.pdf 10 See: http://www.environment-agency.gov.uk/commondata/acrobat/wsresponse_1825353.pdf MERITS OF STATUTORY INSTRUMENTS COMMITTEE 7

water stress. Many water companies stated that the statutory water resource planning process is the way to decide how to manage the supply-demand balance and that to enforce metering in all areas was not the correct approach. There were several comments that metering and demand management should only be pursued when they were considered to be economic in relation to other options. Several members of the public commented that before compulsory metering is implemented water companies should be forced to reduce leakage, or that there should be a system of piping water from areas with a more plentiful supply.” The EM also states (at paragraph 7.8) that “since these regulations were drafted, public support for metering as a method of charging has risen. The drought in 2004-2006 has raised the profile of compulsory metering as being a practical approach to conserving water resources in the long term, particularly in areas of serious water stress”. In support of this statement, DEFRA have pointed to research carried out by the CCWater into customers’ views on water saving generally and paying for water. CCWater’s website contains relevant material, notably a note summarising findings from “Using water wisely” research projects. On water metering, this states that about half of those questioned “would accept compulsory meters if companies have done all they can”; and that “49% thought it was fairest for people to choose whether they have a water meter, 46% thought it would be fairest if everyone was metered”.11

Conclusions 29. DEFRA have made clear their wish to see a faster expansion of water metering in areas where water resources face long-term stress. They can draw on considerable support for this aim among the members of the Water Steering Group, set up by the Department. The 2007 Regulations have been presented in order to make it possible for water undertakers to take forward compulsory metering in areas of serious water stress. While DEFRA assert that public support for metering has risen, we would suggest that consumer attitudes, as revealed by responses to recent consultation processes and by research carried out by CCWater, indicate that there is still a good deal of resistance to compulsory metering, and that consumers expect that water companies should make real efforts to tackle supply problems in parallel with any measures to limit demand.

OTHER INSTRUMENTS OF INTEREST 30. The House will recall that, with the coming into force before the recess of the Home Information Pack (No. 2) Regulations 2007 (SI 2007/1667) and Housing Act 2004 (Commencement No. 8) (England and Wales) Order 2007 (SI 2007/1668), Home Information Packs (HIPs) were introduced for the sale of homes with four or more bedrooms on 1 August. On 17 August, Baroness Andrews, Parliamentary Under Secretary of State at the Department for Communities and Local Government, wrote to the Committee Chairman, setting out the basis for the Department’s decision to

11 See research reports at: http://www.ccwater.org.uk/server.php?show=nav.444 8 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

extend the application of HIPs to three-bedroom properties from 10 September 2007. A copy of that letter is printed at Appendix 2. 31. Some 15 of the instruments laid during the summer related to the education sector, and came from either the Department for Children, Schools and Families or the Department for Innovation, Universities and Skills. We mention several below. However, we have a general concern about the timing of all these instruments. It is understandable that these Departments (like the Department for Education and Skills, their predecessor) aim to bring significant new requirements into effect at the start of the school year, and most of the 15 SIs mentioned came into force on 1 September. When the SIs setting out such requirements are laid only after the start of the summer recess, however, Parliament’s ability to scrutinise the instruments is in practice diminished (albeit that the possibility of praying against an SI remains open after the end of the recess). We urge the Departments to make greater efforts to assist the process of Parliamentary scrutiny. 32. The draft Police Reform Act 2002 (Standard Powers and Duties of Community Support Officers) Order 2007 proposes to harmonise the current provisions by setting 20 standardised core powers that will apply to all community support officers, but still allows forces a degree of local flexibility. Section 38 of the Police Reform Act 2002 requires Chief Officers to ensure that all officers are trained, suitable and capable of carrying out the functions which they have been designated. The Association of Chief Police Officers (ACPO) is currently working with representative groups to review and upgrade the training programme to reflect the new standardised duties. Although the delivery of this training will be done at local level, it will conform with the relevant sections of the national competency framework (Skills for Justice) already used in the training of “mainstream” police officers. The new powers will come into effect on 1 December 2007. 33. A number of instruments make amendments to legal fees and the provision of legal aid. We note these instrument not only because the policy remains controversial with the profession but because the Explanatory Memoranda gave little indication of effective consultation. The most important of the instruments are: • the draft Criminal Defence Service (Very High Cost Cases) Regulations 2007, continue the restructuring of legal aid proposed by Lord Carter of Coles’s review. These Regulations require that to be considered for assistance an individual must chose a representative who is a member of the Very High Cost Case (Crime) Panel (an approved list of experienced lawyers). If the case turns into a very high cost case, by exceeding 41 days, the Legal Services Commission need not continue to fund representation by a lawyer who is not on the Panel and may propose that the individual chooses a new representative from the list; • amongst other things the Civil Procedure (Amendment) Rules 2007 (SI 2007/2204) increase the costs awarded to advocates preparing fast track cases; • three instruments, the Non-Contentious Probate Fees (Amendment) Order 2007 (SI 2007/2174), Family Proceedings Fees (Amendment) (No.2) Order 2007 (SI 2007/2175) and the Civil Proceedings Fees (Amendment) (No.2) Order 2007 (SI 2007/2176) seek to re-balance the MERITS OF STATUTORY INSTRUMENTS COMMITTEE 9

structure of civil fees by altering the means testing for concessions. They make concessions automatic for those who are on certain benefits. The outcome of this consultation was reported in a Ministerial Statement (HL Hansard 25 July 2007 cols WS 68-70); • the Mental Capacity Act 2005 established a new specialist court, to be known as the Court of Protection, and a new statutory office of Public Guardian. The Court of Protection Fees Order 2007 (2007/1745) and Public Guardian (Fees, etc) Regulations 2007 (SI 2007/2051) set out the fees to be charged in connection with these new entities; • the Community Legal Service (Funding) Order 2007 (SI 2007/2441) and the Community Legal Service (Financial)(Amendment No.2) Regulations 2007 (SI 2007/2442) set out the rates and means testing provisions for legal aid work under the new civil legal aid schemes. This includes rates for the new fixed rate schemes, for example, the Immigration and Asylum Graduated Fee Scheme and the Mental Health Standard Fee Scheme. 34. The Department for Innovation, Universities and Skills (DIUS) have laid the Education (Individual Pupil Information) (Prescribed Persons) (Amendment) Regulations 2007 (SI 2007/2050). The instrument amends earlier Regulations (SI 1999/903) in view of what are described as the “operational data dissemination requirements” of the Managing Information Across Partners (MIAP) programme. MIAP arose from the post-16 reforms following the Learning and Skills Act 2000, and is a programme which brings together over 40 post-14 learning and skills sector organisations in a new framework for data-sharing. 35. In July of this year, we reported to the House on the draft Children Act 2004 Information Database (England) Regulations, laid by the Department for Children, Schools and Families, providing for the “ContactPoint” database which will hold information about all children in England up to 18. We asked DIUS about the possibility of links between the data held by MIAP and the ContactPoint database. The information provided in response is printed at Appendix 3. In view of concerns previously expressed in this House, we consider that key elements of this information could usefully have been included in the Explanatory Memorandum laid before Parliament. We see this as the latest example of a Government proposal for a wide-ranging database of personal information, and we shall continue to look closely at such proposals insofar as they are embodied in secondary legislation. 36. The Department for Children, Schools and Families (DCSF) have laid the Charges for Music Tuition (England) Regulations 2007 (SI 2007/2239). These provide that a charge may be made for tuition in singing or in playing a musical instrument, if it is provided at the request of a pupil’s parent and is provided to individual pupils or to groups of two or more pupils. These provisions, modifying a general prohibition on charging for education provided at a maintained school, were discussed during Third Reading of the Education and Inspections Bill in October 2006. The Government are taking forward the undertaking given at that time, that governing bodies and local authorities are required to have remissions policies in place for any charging policies, to help those children whose families genuinely find it difficult to afford specialist music tuition. 10 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

37. The last batch of instruments to implement the Gambling Act 2005 were mainly consequential in nature. However, the House may wish to note the Gaming Machine (Circumstances of Use) Regulations 2007 (SI 2007/2319). These set out new requirements for the operation of gaming machines, including that they shall not be capable of taking credit or debit cards, that the cash deposit limit will be £20 and the house “smart card” limit will be £20 or £100, depending when the machine was manufactured. Machines will also need to be labelled with information about the chances of winning on the specific machine and on where to get help for problem gambling. The new system for the regulation of gambling in the UK came into effect on 1 September 2007. We remain concerned at the volume and complexity of the secondary legislation resulting from this Act and have some doubt about whether, as a result, enforcers and licensing authorities will be able to operate the legislation effectively. 38. DCSF have also laid the Education (School Performance Information) (England) Regulations 2007 (SI 2007/2324), relating to the collection and publication of information about the performance of schools. They consolidate changes made to the Education (School Performance Information) (England) Regulations 2001. We were pleased to note that, with the latest Regulations, DCSF have made a good a commitment given to us in November 2006 to effect such a consolidation during the following year. 39. The Department for Environment, Food and Rural Affairs have laid four sets of Regulations imposing restrictions needed as a result of the outbreak of foot-and-mouth disease (FMD) in August: the Import and Export Restrictions (Foot-And-Mouth Disease) Regulations 2007 (SI 2007/2331); the Import and Export Restrictions (Foot-And-Mouth Disease) (No. 2) Regulations 2007 (SI 2007/2375); the Foot-And-Mouth Disease (Export Restrictions) Regulations 2007 (SI 2007/2489); and the Import and Export Restrictions (Foot-And-Mouth Disease) (No. 3) Regulations 2007 (SI 2007/2712). The successive Regulations, in widening or narrowing the geographical application of the restrictions imposed, have revoked and replaced the preceding Regulations. In addition, in early August, the Department for Transport laid the Drivers’ Hours (Goods Vehicles) (Milk Collection) (Temporary Exemption) Regulations 2007 (SI 2007/2370), which temporarily extended the permissible maximum working day of a driver engaged in collecting and transporting milk, to allow for the disinfecting operations necessitated by the FMD outbreak. 40. The Ministry of Defence (MOD) have laid the Courts-Martial (Army) (Amendment) Rules 2007 (SI 2007/2397), which provide that, where a civilian is to be tried by Army court-martial, the court administration officer can appoint as a lay member of the court-martial any person who is not subject to military law, air force law or the Naval Discipline Act 1957. Mr Derek Twigg, MP, Parliamentary Under Secretary of State, MOD, wrote to the Chairman on 14 August 2007, to explain that MOD laid the instrument during the recess in order to ensure that a civilian who was shortly to be court-martialled would receive a fairer trial, in keeping with a recent European Court judgment. Mr Twigg’s letter is printed at Appendix 4. 41. The Housing Benefit (Loss of Benefit) (Pilot Scheme) (Supplementary) Regulations 2007 (SI 2007/2474) sets out further MERITS OF STATUTORY INSTRUMENTS COMMITTEE 11

arrangements12 for 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. The scheme will be piloted in eight local authorities for two years starting 1 November 2007. The pilot councils are Blackburn with Darwen, Blackpool, Dover District, Manchester City, New Forest District, Newham London Borough, South Gloucestershire and Wirral Metropolitan Borough. The scheme could not be rolled out nationwide without further primary legislation. 42. Following a review, the Disabled Persons (Badges for Motor Vehicles) (England) (Amendment) Regulations 2007 (SI 2007/2531) amend the Blue (disabled persons’ parking) Badge regulations to include certain children under two years of age; to amend the eligibility criterion for people with a severe disability in both arms; to re-define the issue period for a badge; to make modifications to the design of the badge, including the addition of a hologram as a security device; and to remove eligibility relating to people supplied with a vehicle at public expense, a scheme which is long defunct.

INSTRUMENTS NOT REPORTED 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 requiring affirmative approval Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 Criminal Defence Service (Very High Cost Cases) Regulations 2007 Police Reform Act 2002 (Standard Powers and Duties of Community Support Officers) Order 2007 Traffic Management Permit Scheme (England) Regulations 2007

Instruments subject to annulment SI 2007/1745 Court of Protection Fees Order 2007 SI 2007/2001 Education (Assisted Places) (Amendment) (England) Regulations 2007 SI 2007/2002 Education (Assisted Places) (Incidental Expenses) (Amendment) (England) Regulations 2007 SI 2007/2005 Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 SI 2007/2006 Recovery of Maintenance (United States of America) Order 2007 SI 2007/2008 Rights of Way (Hearings and Enquiries Procedure) (England) Rules 2007

12 see also SI 2007/2202 Housing Benefit (Loss of Benefit) (Pilot Scheme) Regulations 2007, reported as a draft affirmative in our 26th report 12 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

SI 2007/2009 Patient Information Advisory Group (Establishment) (Amendment) Regulations 2007 SI 2007/2037 Ecodesign for Energy-Using Products Regulations 2007 SI 2007/2040 Gambling Act 2005 (Incidental Non-Commercial Lotteries) Regulations 2007 SI 2007/2041 Gambling Act 2005 (Non-Commercial Equal-Chance Gaming) Regulations 2007 SI 2007/2050 Education (Individual Pupil Information) (Prescribed Persons) (Amendment) Regulations 2007 SI 2007/2051 Public Guardian (Fees, etc) Regulations 2007 SI 2007/2054 National Health Service Pension Scheme (Amendment) Regulations 2007 SI 2007/2075 Licensing Act 2003 (Amendment to Schedule 4) Order 2007 SI 2007/2076 Trade Marks (Amendment) Rules 2007 SI 2007/2077 Trade Marks (Fees) (Amendment) Rules 2007 SI 2007/2080 Nutrition and Health Claims (England) Regulations 2007 SI 2007/2082 Gambling Act 2005 (Gaming Machines) (Definitions) Regulations 2007 SI 2007/2083 Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (England and Wales) (Amendment) (No. 2) Regulations 2007 SI 2007/2091 Social Security (Contributions) (Amendment No. 6) Regulations 2007 SI 2007/2092 Excise Duties (Small Non-Commercial Consignments) Relief (Amendment) (Revocation) Regulations 2007 SI 2007/2116 Further Education Teachers’ Continuing Professional Development and Registration (England) Regulations 2007 SI 2007/2117 Education (Specified Work and Registration) (England) (Amendment) Regulations 2007 SI 2007/2121 National Police Records (Recordable Offences) (Amendment) Regulations 2007 SI 2007/2128 Secretary of State for Justice Order 2007 SI 2007/2129 Transfer of Functions (Olympics and Paralympics) Order 2007 SI 2007/2133 European Communities (Designation) (No. 4) Order 2007 SI 2007/2150 Child Benefit (General) (Amendment) Regulations 2007 SI 2007/2151 Child Tax Credit (Amendment) Regulations 2007 SI 2007/2154 Misuse of Drugs and Misuse of Drugs (Safe Custody) (Amendment) Regulations 2007 SI 2007/2155 Plant Health (Phytophthora ramorum) (England) (Amendment) Order 2007 SI 2007/2157 Money Laundering Regulations 2007 SI 2007/2160 Financial Services and Markets Act 2000 (Markets in Financial Instruments) (Amendment No. 2) Regulations 2007 SI 2007/2161 Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2007 SI 2007/2169 Gambling Act 2005 (Commencement No. 6 and Transitional Provisions) (Amendment) (No. 2) Order 2007 SI 2007/2170 Export Control (Iran) Order 2007 SI 2007/2174 Non-Contentious Probate Fees (Amendment) Order 2007 SI 2007/2175 Family Proceedings Fees (Amendment) (No. 2) Order 2007 SI 2007/2176 Civil Proceedings Fees (Amendment) (No. 2) Order 2007 MERITS OF STATUTORY INSTRUMENTS COMMITTEE 13

SI 2007/2178 Medicines for Human Use (Administration and Sale or Supply) (Miscellaneous Amendments) Order 2007 SI 2007/2179 Medicines (Sale or Supply) (Miscellaneous Provisions) Amendment Regulations 2007 SI 2007/2185 Judicial Pensions and Retirement Act 1993 (Addition Qualifying Judicial Offices) (No. 2) Order 2007 SI 2007/2187 Family Proceedings (Amendment) (No. 2) Rules 2007 SI 2007/2188 Family Proceedings Courts (Miscellaneous Amendments) Rules 2007 SI 2007/2189 Family Procedure (Adoption) (Amendment) Rules 2007 SI 2007/2191 Hydrocarbon Oil Duties (Reliefs for Electricity Generation) (Amendment) Regulations 2007 SI 2007/2193 Enterprise Act 2002 (Disclosure of Information for Civil Proceedings etc.) Order 2007 SI 2007/2195 Postal Packets (Revenue and Customs) Regulations 2007 SI 2007/2203 Diseases of Animals (Approved Disinfectants) (Fees) (England) Order 2007 SI 2007/2204 Civil Procedure (Amendment) Rules 2007 SI 2007/2222 Magistrates’ Courts (Parenting Orders) (Amendment) Rules 2007 SI 2007/2239 Charges for Music Tuition (England) Regulations 2007 SI 2007/2240 Gambling Act 2005 (Exempt Gaming in Alcohol-Licensed Premises) (Amendment) Regulations 2007 SI 2007/2241 Education (National Curriculum) (Science at Key Stage 4) (England) Order 2007 SI 2007/2245 Eggs and Chicks (England) Regulations 2007 SI 2007/2258 Gambling Act 2005 (Premises Licences) (Review) Regulations 2007 SI 2007/2260 Education (Supply of Information about the School Workforce) (No. 2) (England) Regulations 2007 SI 2007/2261 Education (School Attendance Targets) (England) Regulations 2007 SI 2007/2263 Education (Student Fees, Awards and Support) (Amendment) (No. 2) Regulations 2007 SI 2007/2264 Further Education Teachers’ Qualifications (England) Regulations 2007 SI 2007/2265 Education (National Curriculum) (Attainment Targets and Programmes of Study) (England) (Amendment) Order 2007 SI 2007/2266 Food (Suspension of the Use of E 128 Red 2G as Food Colour) (England) Regulations 2007 SI 2007/2267 Magistrates’ Courts (Reciprocal Enforcement of Maintenance Orders) (Miscellaneous Amendments) Rules 2007 SI 2007/2268 Family Proceedings (Amendment) (No. 3) Rules 2007 SI 2007/2269 Employment Equality (Sexual Orientation) (Religion or Belief) (Amendment) Regulations 2007 SI 2007/2282 Education (School Teachers’ Pay and Conditions) Order 2007 SI 2007/2284 Local Justices Areas Order 2007 SI 2007/2285 Town and Country Planning (Amendment of Appeals Procedures) (Wales) Rules 2007 SI 2007/2286 Flexible Working (Eligibility, Complaints and Remedies) (Amendment) (No. 2) Regulations 2007 SI 2007/2289 Gaming Machine (Single Apparatus) Regulations 2007 14 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

SI 2007/2307 National Lottery (Amendment) Regulations 2007 SI 2007/2317 Criminal Procedure (Amendment No. 2) Rules 2007 SI 2007/2319 Gaming Machine (Circumstances of Use) Regulations 2007 SI 2007/2320 Gaming Machine (Supply etc.) Regulations 2007 SI 2007/2321 Gambling Act 2005 (Repeal) (Remote Operating Licence and Credit) Regulations 2007 SI 2007/2322 Road Traffic (Permitted Parking Area and Special Parking Area) (County of West Sussex) (Borough of Worthing) Order 2007 SI 2007/2323 Bus Lane Contraventions (Approved Local Authorities) (England) (Amendment) (No. 5) Order 2007 SI 2007/2324 Education (School Performance Information) (England) Regulations 2007 SI 2007/2325 Large Combustion Plants (National Emission Reduction Plan) Regulations 2007 SI 2007/2328 Small Society Lotteries (Registration of Non-Commercial Societies) Regulations 2007 (JW) SI 2007/2329 Gambling Act 2005 (Advertising of Foreign Gambling) Regulations 2007 SI 2007/2331 Import and Export Restrictions (Foot-And-Mouth Disease) Regulations 2007 SI 2007/2334 Dedicated Highways (Registers under Section 31A of the Highways Act 1980) (England) Regulations 2007 SI 2007/2351 Value Added Tax Tribunals (Amendment) Rules 2007 SI 2007/2370 Drivers’ Hours (Goods Vehicles) (Milk Collection) (Temporary Exemption) Regulations 2007 SI 2007/2373 Arnos Vale Cemetery, Bristol (Burial Records) Order 2007 SI 2007/2375 Import and Export Restrictions (Foot-And-Mouth Disease) (No. 2) Regulations 2007 SI 2007/2397 Courts-Martial (Army) (Amendment) Rules 2007 SI 2007/2399 Zoonoses (Monitoring) (England) Regulations 2007 SI 2007/2400 Cosmetics Products (Safety) (Amendment) (No. 2) Regulations 2007 SI 2007/2401 Social Security (Contributions) (Amendment No. 7) Regulations 2007 SI 2007/2403 Financial Services and Markets Act 2000 (Motor Insurance) Regulations 2007 SI 2007/2404 Commons Registration (General) (Amendment) (England) (No. 2) Regulations 2007 SI 2007/2406 Hydrocarbon Oil Duties (Sulphur-free Diesel) (Hydrogenation of Biomass) (Reliefs) (Amendment) Regulations 2007 SI 2007/2439 Charges for Residues Surveillance (Amendment) Regulations 2007 SI 2007/2441 Community Legal Service (Funding) Order 2007 SI 2007/2442 Community Legal Service (Financial) (Amendment No. 2) Regulations 2007 SI 2007/2443 Community Legal Service (Funding) (Counsel in Family Proceedings) (Amendment) Order 2007 SI 2007/2444 Community Legal Service (Costs) (Amendment) Regulations 2007 SI 2007/2458 Environmental Noise (Identification of Noise Sources) (England) (Amendment) Regulations 2007 MERITS OF STATUTORY INSTRUMENTS COMMITTEE 15

SI 2007/2460 Smoke Control Areas (Authorised Fuels) (England) (Amendment) Regulations 2007 SI 2007/2462 Smoke Control Areas (Exempted Fireplaces) (England) Order 2007 SI 2007/2465 Dangerous Wild Animals Act 1976 (Modification) (No. 2) Order 2007 SI 2007/2466 Plant Protection Products (Amendment) (No. 3) Regulations 2007 SI 2007/2470 Social Security (Miscellaneous Amendments) (No. 4) Regulations 2007 SI 2007/2474 Housing Benefit (Loss of Benefit) (Pilot Scheme) (Supplementary) Regulations 2007 SI 2007/2479 Working Tax Credit (Entitlement and Maximum Rate) (Amendment No. 2) Regulations 2007 SI 2007/2480 Tax Credit (New Category of Child Care Provider) (Revocation) (England) Regulations 2007 SI 2007/2481 Tax Credits (Child Care Providers) (Miscellaneous Revocation and Transitional Provisions) (England) Scheme 2007 SI 2007/2482 Tonnage Tax (Training Requirement) (Amendment) Regulations 2007 SI 2007/2489 Foot-and-Mouth Disease (Export Restrictions) Regulations 2007 SI 2007/2493 Hallmarking Act 1973 (Exemption) (Amendment No. 2) Order 2007 SI 2007/2497 Electronic Commerce Directive (Racial and Religious Hatred Act 2006) Regulations 2007 SI 2007/2500 Common Agricultural Policy Single Payment and Support Schemes (Cross-compliance) (England) (Amendment) Regulations 2007 SI 2007/2502 Licensing Act 2003 (Summary Review of Premises Licences) Regulations 2007 SI 2007/2504 Private Security Industry Act 2001 Regulations (Amendment) Regulations 2007 SI 2007/2531 Disabled Persons (Badges for Motor Vehicles) (England) (Amendment) Regulations 2007 SI 2007/2534 Road Traffic (Permitted Parking Area and Special Parking Area) (County of Staffordshire) (Staffordshire Moorlands and East Staffordshire) Order 2007 SI 2007/2535 Road Traffic (Permitted Parking Area and Special Parking Area) (Metropolitan Borough of Solihull) Order 2007 SI 2007/2536 Bus Lane Contraventions (Approved Local Authorities) (England) (Amendment) (No. 6) Order 2007 SI 2007/2538 Independent Living Fund (2006) Order 2007 SI 2007/2541 Companies (Tables A to F) (Amendment) Regulations 2007 SI 2007/2542 National Park Authorities’ Traffic Orders (Procedure) (England) Regulations 2007 SI 2007/2543 Local Government (Best Value Authorities) (Power to Trade) (England) (Amendment No. 2) Order 2007 SI 2007/2544 Road Vehicles (Construction and Use) (Amendment) (No. 2) Regulations 2007 SI 2007/2553 Road Vehicles (Registration and Licensing) (Amendment) (No. 3) Regulations 2007 16 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

SI 2007/2554 Sea Fishing (Prohibition on the Removal of Shark Fins) Order 2007 SI 2007/2583 Supervision of Accounts and Reports (Prescribed Body) Order 2007 SI 2007/2585 Commons (Deregistration and Exchange Orders) (Interim Arrangements) (England) Regulations 2007 SI 2007/2586 Porcine Semen (Fees) (England) Regulations 2007 SI 2007/2587 Works on Common Land (Exemptions) (England) Order 2007 SI 2007/2588 Works on Common Land, etc. (Procedure) (England) Regulations 2007 SI 2007/2589 Deregistration and Exchange of Common Land and Greens (Procedure) (England) Regulations 2007 SI 2007/2590 National Health Service (Travel Expenses and Remission of Charges) (Amendment No. 2) Regulations 2007 SI 2007/2591 Food for Particular Nutritional Uses (Miscellaneous Amendments) (England) Regulations 2007 SI 2007/2593 Local Authorities (Functions and Responsibilities) (England) (Amendment No. 4) Regulations 2007 SI 2007/2596 Pet Cemeteries (England and Wales) Regulations 2007 SI 2007/2598 Manufacture and Storage of Explosives and the Health and Safety (Enforcing Authority) (Amendment and Supplementary Provisions) Regulations 2007 SI 2007/2599 New Woodlands School Order 2007 SI 2007/2600 Disabled Persons (Badges for Motor Vehicles) (England) (Amendment No. 2) Regulations 2007 SI 2007/2601 Houses in Multiple Occupation (Specified Educational Establishments) (England) (No. 2) Regulations 2007 SI 2007/2602 Equality Act 2006 (Dissolution of Commissions and Consequential and Transitional Provisions) Order 2007 SI 2007/2606 Violent Crime Reduction Act 2006 (Realistic Imitation Firearms) Regulations 2007 SI 2007/2608 Armed Forces (Gurkha Pensions) Order 2007 SI 2007/2609 Armed Forces (Gurkha Compensation) Order 2007 SI 2007/2613 Social Security Benefit (Computation of Earnings) (Amendment) Regulations 2007 SI 2007/2614 Social Security Benefit (Computation of Earnings) (Amendment) Regulations (Northern Ireland) 2007 SI 2007/2615 Financial Services and Markets Act 2000 (Financial Promotion) (Amendment No. 2) Order 2007 SI 2007/2616 Public Guardian (Fees, etc) (Amendment) Regulations 2007 SI 2007/2617 Court Funds (Amendment No. 2) Rules 2007 SI 2007/2618 Social Security (Miscellaneous Amendments) (No. 5) Regulations 2007 SI 2007/2619 Magistrates’ Courts Fees (Amendment) Order 2007 SI 2007/2620 Protection of Children and Vulnerable Adults and Care Standards Tribunal (Review of Inclusion in the PoCA List and Review of Section 142 Directions) Regulations 2007 SI 2007/2621 Family Proceedings Courts (Constitution of Committees and Right to Preside) (Amendment) Rules 2007 SI 2007/2622 Youth Courts (Constitution of Committees and Right to Preside) (Amendment) Rules 2007 MERITS OF STATUTORY INSTRUMENTS COMMITTEE 17

SI 2007/2656 Motor Cycles Etc. (EC Type Approval) (Amendment) Regulations 2007 SI 2007/2684 Road Traffic (Permitted Parking Area and Special Parking Area) (County of Worcestershire) (District of Wyre Forest) Order 2007 SI 2007/2689 Gambling Act 2005 (Club Gaming and Club Machine Permits) (Amendment) Regulations 2007 SI 2007/2712 Import and Export Restrictions (Foot-And-Mouth Disease) (No. 3) Regulations 2007 SI 2007/2800 Family Proceedings Fees (Amendment) (No. 2) (Amendment) Order 2007 SI 2007/2801 Civil Proceedings (Amendment) (No. 2) (Amendment) Order 2007

18 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

APPENDIX 1: EXPLANATORY INFORMATION (SI 2007/2003) Heather and Grass etc. Burning (England) Regulations 2007 (SI 2007/2003) Department for Environment, Food and Rural Affairs answers to questions from the House of Lords Merits Committee

Are English Nature / Natural England statutory advisers to the Secretary of State on conservation matters? If so, why did your Department decide to set up a Science Panel in this case, rather than asking EN / NE to advise? One of the statutory functions of English Nature was to provide advice to the Secretary of State on the development and implementation of policies for or affecting nature conservation in England. Upon the dissolution of English Nature, Natural England assumed this function, and has a general function of providing advice to public authorities on policy affecting conservation of the natural environment. DEFRA commissions its scientific advice from a wide range of sources – the aim being to get advice from the people and organisations best placed to provide it. These sources might include DEFRA scientists, Natural England, the Environment Agency, other government agencies, academia, Research Councils, industry and non-governmental organisations. In the case of the Heather and Grass Burning Review, DEFRA (in consultation with English Nature) considered that the best expertise would come from a Science Panel comprising experts from DEFRA, the Central Science Laboratory, the Rural Development Service and various universities. We also commissioned scientific research from the British Trust for Ornithology. More detail is in the paragraphs immediately below. In 2003, English Nature asked DEFRA to undertake a review of the Heather and Grass Burning Regulations and Code. This followed some research on the effects of burning commissioned by English Nature and published in 2003. In particular, the aim of the proposed review would be to look at whether revised Regulations and Code could help reduce inappropriate burning as an obstacle to DEFRA’s and English Nature’s Public Service Agreement target to bring 95% of Sites of Special Scientific Interest (SSSIs) into favourable or recovering condition by 2010. DEFRA agreed to conduct a review, which began in 2004. DEFRA wanted to ensure the review was soundly evidence based. In particular, we needed expert advice on the state of knowledge on the effects of controlled burning on biodiversity, soils and hydrology. This was because: (i) the state of scientific knowledge in this area was relatively young, and new science was (and is still) emerging. The effects of controlled burning on the environment are complex. For instance, burning can have both positive and negative consequences depending on how and where it is conducted. Also, the effects can be difficult to isolate from other factors, such as drainage, grazing, climate and pollution; (ii) the effects of burning on the environment were disputed, particularly between land managers’ representatives and English Nature, with academics falling either side of the debate. In essence, the former argued that responsible burning had a long-term net beneficial effect on the environment, and if it were to cease there would be a net negative effect. The latter argued that often burning could have net negative effects on the environment, particularly on habitats such as blanket bogs; MERITS OF STATUTORY INSTRUMENTS COMMITTEE 19

(iii) the difference of scientific opinion was identified by the House of Commons’ Select Committee on Environment, Food and Rural Affairs in 2004 as part of its inquiry on the condition of SSSIs (14th Report, Chapter 3, paras 26-28). The Committee advised that it was important for the various parties involved to reach a common science-based understanding of the impacts of burning, and that it expected the review (i.e. the Science Panel work and the wider review of the Regulations and Code) to achieve this; (iv) the 1986 Regulations were designed primarily to minimise risk to people and property. In so doing, they indirectly offered some protection to the environment, but environmental protection was primarily the role of other legislation. Before DEFRA could consider extending the Regulations to offer specific environmental protection we needed to be sure of the current state of knowledge. DEFRA established a Science Panel to advise. It was chaired by a senior DEFRA scientist, and comprised experts from government and academia with specialist knowledge of: vegetation dynamics; soils and hydrology; birds, invertebrates, and reptiles; knowledge of fire chemistry; knowledge of burning practice in both uplands and lowlands; and the effects of wildfire. English Nature advised on the composition of the Panel, as did stakeholders such as the Moorland Association. English Nature chose not to be directly represented on the Panel, although it nominated an independent scientist to sit on the Panel and advised on other members. One reason for English Nature not being on the Panel was that it had already expressed its views on the need for a change to the burning season, thus the Science Panel would be seen as more independent by stakeholders if English Nature provided evidence to the Panel rather than being members of it. The Rural Development Service (later absorbed into Natural England in October 2006) was represented by one of its ecologists. English Nature was directly represented on a Stakeholder Panel, which advised on general aspects of the review of the Regulations and Code. The Science Panel took written and oral evidence from several sources including English Nature. DEFRA also commissioned research from the British Trust for Ornithology (BTO) on the timing of breeding of moorland birds. The BTO report (No. 362) was the key evidence on which the Science Panel’s advice on the impact of burning on upland birds was based.

The Science Panel reported in June 2005, and its findings were available to the consultation process which took place between September and December 2005. EN / NE’s support for earlier closure of the burning seasons was expressed in the knowledge of the Science Panel’s report. Did EN / NE refer to the Panel’s findings, and did EN / NE have scientific evidence to support their position? Can you provide a copy of EN / NE’s response? A copy of the Confederation of Partners’ response to the public consultation is attached.13 (By the time of the public consultation, English Nature, the Rural Development Service and the Countryside Agency were acting together as the “Confederation of Partners” on this issue prior to the creation of Natural England in October 2006). Both the Science Panel and the Confederation had access to the same scientific evidence. The Confederation was aware of the Science Panel’s report (as explained above), and the Confederation referred to the report in its response. The paragraphs below summarise the main issues raised. They attempt to make a distinction between two separate but linked factors: (i) what can the available science tell us?; and (ii) what should be the policy response?

13 This document was received by the Merits Committee but has not been reproduced in this report. 20 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

The Science Panel’s report and the Confederation response should speak for themselves, but to summarise: • The Panel and the Confederation broadly agreed there “is insufficient information to directly link the immediate impact of burning activities to impacts upon bird or reptile populations” (this quote coming from the Confederation response). • With regard to the spring burning dates, the Panel concluded that “…there is little evidence of a need to change either the upland or lowland burning dates, at least in spring”. • However, the Confederation considered that, despite the lack of information of impact on bird and reptile populations, there was sufficient evidence to justify shortening the burning season in spring. This was based on the fact that some birds and other animals started breeding activity before the end of the burning season. Burning had potential to interrupt this activity – therefore DEFRA should take the precautionary step of shortening the burning season (by two weeks in the uplands, to finish on 31 March; and by a month in the lowlands, to finish on 1 March). • The Panel and the Confederation agreed that there should be no change to the start of the upland burning season, due to lack of evidence of likely effects of extending the season into September. Instead, they agreed further research was needed. (This was in response to an idea first aired as a possibility in the report commissioned by English Nature in 2003, which suggested that it may be acceptable to allow burning in the uplands in September, ahead of the burning season starting in 1 October).

Basis for DEFRA’s policy decision In making a decision on burning dates, DEFRA needed to consider several factors (i.e. the decision was not solely dependent on the scientific answer to the wildlife question). The main factors were: (i) Safety. The primary purpose of the burning seasons is safety. The aim is (a) to confine burning to the colder, wetter months in which fires are generally easier to control; and (b) to prohibit burning in the hotter, drier months when risks can be much higher. In setting dates we need to ensure that the seasons are sufficiently long to allow enough suitable-weather-days to conduct burning safely. There are two main safety reasons for this: - it helps limit the chance that burners may be pushed to burn on unsuitable days (e.g. too dry or too windy), which would increase the risk that fires may go out of control; and - it helps ensure that controlled burning takes place, which can help reduce the risk of wildfires. (ii) Wildlife. The burning season also indirectly helps protect wildlife, although it plays a secondary role to specific wildlife legislation. The main points are: - the primary legislative means by which we protect wildlife is Part 1 of the Wildlife and Countryside Act 1981 (WCA). This makes it unlawful to conduct any activity, including burning, which disturbs or destroys wild birds (or their nests), or other protected animals, plants and habitats. This applies regardless of the burning seasons; - section 28 of the WCA gives added protection for SSSIs by making it unlawful to conduct any operation likely to damage the special interest of the site (including burning) without consent from Natural England; MERITS OF STATUTORY INSTRUMENTS COMMITTEE 21

- the burning seasons established by the Heather and Grass Burning Regulations give added protection by prohibiting burning during the spring and summer months when (most) relevant birds and animals are breeding and bringing up young; - shortening the burning season in Spring would extend this protection. But possible benefits need to be weighed against possible safety, economic and environmental costs. There would also be a chance, if a shorter season resulted in less burning, that environmentally beneficial burning (e.g. on dry heath) may be reduced, and that wildfire risk may increase, both of which could be deleterious to the environment. (iii) Economics. There are economic considerations, in that (a) burning allows grouse moor businesses to produce the surplus birds they need to operate; and (b) burning is a relatively inexpensive tool for farmers to improve grazing on (often inaccessible) rough- grazing land. Often there is no practical or economically viable alternative to burning. Generally, burners’ representatives accept that the 1986 burning dates strike about the right balance between allowing enough days to burn, while stopping potentially dangerous burning in the drier months (recognising, as does DEFRA, that any generic season dates are bound to be imperfect because there is such high geographical and climatic variance regionally, locally and from year to year). (iv) Support of burners’ representatives. A vital aspect of (what we hope and expect will be) the success of the refreshed policy is the strong support of organisations like the Moorland Association, the National Gamekeepers’ Organisation, the Country Land and Business Association and the National Farmers Union. Among other things, these organisations will actively promote the new Code to their members – and, while the Regulations are important, the success of this policy will be measured mainly by increased adherence to the Code. If we had reduced the burning season (particularly given the advice of the Science Panel), the level of support would probably have been much reduced, to the detriment of the overall policy.14 Having weighed the factors above and taken account of the conclusions of the Science Panel, DEFRA decided to leave the burning seasons as they were under the 1986 Regulations. In addition we have: (i) highlighted the provisions of Part 1 of the WCA in the new Code, to raise awareness that burning in a way which harms protected wildlife is illegal regardless of the burning season; and (ii) agreed with Natural England that the decision on burning dates can be reviewed again if relevant new science emerges.

How have EN / NE reacted to the Government’s decision not to provide for earlier closure of the burning seasons? Natural England support the policy overall.15 They would still have preferred the burning season to be shortened as a precautionary measure (along the lines suggested by the Confederation in the consultation). However, they accept DEFRA’s decision on burning dates in light of DEFRA’s commitment to review dates again if relevant new science emerges.

14 The DEFRA press release at http://www.defra.gov.uk/news/2007/070802a.htm contains expressions of the support of these organisations. 15 See press release at http://www.naturalengland.org.uk/press/releases2007/020807.htm . 22 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

APPENDIX 2: CORRESPONDENCE (SI 2007/1667 AND SI 2007/1668) Home Information Pack (No. 2) Regulations 2007 (SI 2007/1667) and Housing Act 2004 (Commencement No. 8) (England and Wales) Order 2007 (SI 2007/1668) Letter from Baroness Andrews OBE, Parliamentary Under-Secretary of State, Department for Communities and Local Government I am writing to you in order to set out the Government’s plans for rolling out Home Information Packs to those properties with 3 bedrooms or more from 10 September. We have taken the decision to ensure that the roll-out of HIPs can proceed, as promised, as soon as possible and to ensure that we can maintain confidence. I would like to reassure the Committee that this decision has been taken in line with the criteria we set out in the implementation plan, published on 11 June. These criteria are: a) whether sufficient home inspectors (HIs) and domestic energy assessors (DEAs) have been certified or accredited to meet demand; b) whether the regional distribution of HIs and DEAs will ensure an adequate supply of EPCs; and c) in assessing a) and b), taking account of the lessons learned from the operation of HIPs. As at 16 August 2007, 3,219 home inspectors or domestic energy assessors had been accredited to complete Energy Performance Certificates (EPCs) for inclusion in HIPs. We have therefore exceeded the 2000 accredited assessors that we said on 11 June we would expect to need in order to cover the whole market. However, it is not enough to simply have the numbers across England and Wales. It is just as important to ensure that the regional spread is appropriate to roll out to 3 bedroom properties without causing disruption to the market through delayed EPCs. We are now confident that there will be sufficient regional spread to roll out from 10 September. We have also continued our dialogue with industry since 1 August and have been monitoring the initial roll-out closely to ensure HIPs roll out smoothly, taking on board early lessons to iron out any minor issues as they occur. On the basis of the evidence available and in meeting the criteria we set out on 11 June, we have taken the decision to announce the roll-out of HIPs to 3 bedrooms today, with a coming into force date of 10 September. We believe this is the right thing to do and will give sufficient notice to the industry to enable them to prepare for the change in volumes expected. I hope you will agree that this is good news and a strong sign of a market that is ready and willing to deliver the benefits of a Home Information Packs for consumers. 17 August 2007 MERITS OF STATUTORY INSTRUMENTS COMMITTEE 23

APPENDIX 3: EXPLANATORY INFORMATION (SI 2007/2050) Education (Individual Pupil Information) (Prescribed Persons) (Amendment) Regulations 2007 (SI 2007/2050) Letter from the Department for Innovation, Universities and Skills Thank you for your e-mail about the above in which you seek clarification on the following issues about the Managing Information Across Partner services. There are three elements to MIAP, these are: • The Learner Registration Service, incorporating a unique learner number for every person over the age of 14 in education and training. This service will directly enable the introduction of 14-19 diplomas and the Qualifications and Credit Framework. The service is being introduced this September through early adoption pilots but will not be made universally available until next February at the earliest. • The Learner Record Service – this is a data-sharing interface that will enable the creation of learner records, setting out an individual’s learning participation and achievements, which can be accessed and shared with providers and potential employers as they wish. The service will be trialled and tested early next year. The ambition will be to make this universally available from September 2008, if appropriate. • The UK Register of Learning Providers – linking contact, course and performance information about individual providers. This service is already available and is being continually enhanced. You have raised a number of specific questions, answered below. Will there be an operational link between ContactPoint and MIAP databases? No. There are no plans for direct operational links between ContactPoint and MIAP. The programmes have very different purposes. MIAP is about achieving more efficient management of information and data about the learning participation and achievement of post-14 learners. Whereas ContactPoint will be the quick way for a practitioner to find out who else is working with the same child or young person, making it easier to deliver more coordinated support. ContactPoint will not record information on learners’ attendance, achievement and behaviour – indeed the Children Act 2004 prohibits this. Will the inclusion of individual learners’ data in the MIAP database be purely optional, i.e. no- one will be included unless they agree to be? As indicated above, MIAP is putting in place two elements which capture an individual’s data. Firstly, there is the Learner Register, which will begin to assign Unique Learner Numbers to all individuals over the age of 14 undertaking publicly funded learning in schools and FE (and potentially HE). The register will hold a limited set of non- sensitive information for each individual registered in order to allocate the Unique Learner Number. Examples of the non-sensitive information captured are: family name, gender, data of birth, last known postcode. The processing of this personal data is necessary for the provision of education services, including access to qualifications. For instance, the Unique Learner Number will be an essential requirement for the operation of 14-19 diplomas, the Qualifications and Credit Framework, and Skills Accounts. 24 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

Secondly, in respect of the Learner Record, all individuals will be able to access and read their learner record. The information about participation and achievement included in the learner record is already collected and stored and therefore does not represent new or additional collection of data. MIAP will enable individuals to see much more easily and directly the information that has already been collected on them and to challenge it if it is not accurate. Individuals can opt out of sharing their Learner Record with third parties. The Fair Processing Notice issued to each learner will point the learner to the relevant place where they will be able to opt out of having their participation and achievement data shared. In addition to the arrangements for confirming future data-sharing, and because Fair Processing Notices do not apply retrospectively, explicit consent will be requested from the learner to provide third parties with the ability to view historical achievement data. Has the consultation process on these Regulations – or the arrangements behind them – included representatives of young people’s organisations generally, or only learners? There has been, and will continue to be, significant consultation with a wide range of stakeholders about the services being delivered by MIAP. In the main this consultation has been with learners themselves, recognising that this service is aimed at serving individuals from the age of 14 onwards throughout their lifetime. We have also consulted the organisations that work with individuals; those providing advice, guidance and learning services, and who will directly use the services. I set out below some of the key consultations to date. Further consultation will continue as the services are developed and refined. As we now move towards implementation and are clearer on the services being provided, we will continue to include a wide range of individuals and their representative organisations (representing the interests of young people and adults) in that consultation so that they can influence the specific design of the learner record service. MIAP Consultation In 2004, we consulted a range of young people organisations including the National Youth Agency and the National Bureau for Students with disabilities about how we enhance learner choice and this informed the development of the UK Register of Learning Providers. In 2004, we ran a formal public consultation exercise about the concept of a Unique Learner Number. We received over 140 responses to that consultation including responses from a wide range of organisations working with young people such as schools, sixth form colleges, teacher unions, Connexions services. In 2005, we undertook consultation to understand what users would require from the MIAP services. This involved learners, employers, local providers of guidance services, learning providers, local authorities and national organisations such as OFSTED, National Institute of Adult Continuing Education, the Information Commissioner etc. In 2006, we started a series of tests and trials involving a range of different organisations including three 14-19 local partnerships in Manchester, Brighton and Hove, and Bristol. Through the tests and trials, there has been widespread consultation at a local level with the young people involved in the trials and with organisations working with young people and adults. For example, Barnardo’s have been involved in the test and trial in Manchester. MERITS OF STATUTORY INSTRUMENTS COMMITTEE 25

In 2006, we also took the MIAP proposals to the FE Learner Panel and invited their views on the Learner Record. The Vice President of the NUS was a member of that panel. In 2007, as part of our ongoing work to refine the services before the national launch of the Learner Registration Service, we are working with some 40 early adopter organisations. These are based around the country and range from large Further Education Colleges to small work based learning providers. We have recently discussed the MIAP services with an External Scrutiny Group (made up of representatives from schools and local authorities) that advises the Department for Children, Schools and Families on information collected from schools. We have also recently met with the Independent Schools Council. We will be meeting with the National Union of Students in the autumn and with other bodies who represent young people’s and adult’s interests. Is the description of how MIAP supports data protection now available? The Information Commissioner’s Office has worked closely with us since the inception of MIAP; receiving copies of our Programme Board papers and minutes. This has ensured that throughout the MIAP development, we have taken account of the need to comply with the Data Protection Act 1998. A document has been prepared which explains how MIAP intends to implement data governance and comply with the Data Protection Act 1998. A copy of this document is attached.16 This sets out how MIAP is meeting each of the Data Protection Act Principles and how MIAP will handle sensitive cases. It includes appendices setting out the key points arising from the discussion with the learner panel; illustrative views of the learner record; and wording of the standard Fair Processing Notice developed for MIAP. In the light of advice from the Information Commissioner’s Office, we will be consulting stakeholders on this wording and will encourage adoption of the standard wording across relevant partners. Please note that the outline of the Learner Record is an early design and further work is being undertaken in consultation with individuals and stakeholders about its final shape. The evidence taken by the Committee suggests that it may also be interested in knowing the following: Is MIAP UK-wide? We are working with the devolved administrations to make the MIAP services accessible UK-wide. The Further Education and Training Bill currently being debated in the Houses has provision that would enable the LSC to deliver MIAP UK wide should the devolved administrations wish it to. The UK Register of Learning Providers already operates UK-wide. This service is enabling individuals (young people, parents, adults, employers) to access through a single point a range of information on learning providers in order to help them make a more informed choice: who and where the providers are; what courses they are delivering; and how well they are delivering e.g. their OFSTED report. It is our intention that the other services should be available UK-wide, subject to the devolved administration choosing to take up that offer. The devolved administrations sit on the MIAP Programme Board and are positive about the MIAP development.

16 This document was received by the Merits Committee but has not been reproduced in this report. 26 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

Security Arrangements MIAP is putting in place robust security arrangements in order to protect access to the information it holds, and the integrity of that information. A full security accreditation, in line with ISO27001 has been carried out in parallel with the implementation of the MIAP service. Following a risk assessment a set of personnel, physical, technical and procedural controls have been implemented to mitigate risks in all aspects of both the central service provided by MIAP, and the wider use of MIAP in the education community. Security governance has been established with senior management in the Learning and Skills Council. A Security Policy document has been developed and will be published in due course on the MIAP website. This sets out the purpose and scope of the policy, roles and responsibilities, and ISO27001 security policy statements. As MIAP will be used by a wide community of users representing organisations across the education sector, MIAP has developed Usage Agreements, which lay out the responsibilities of the organisations themselves with respect to the security of MIAP, including how they manage access to MIAP and the rules related to data handling. These Usage Agreements will need to be authorised by a legal signatory of each organisation prior to them, and their staff, being allowed access to MIAP services. Furthermore, each individual user will need to read and accept a set of Conditions of Use, which will indicate their individual responsibilities with respect to maintaining the security and information integrity of the MIAP service. Once the operational service is launched, MIAP will be monitoring the application of the Usage Agreements and Conditions of Use and assisting organisations to address any identified issues on an ongoing basis. Communications A communications strategy and plan has been developed. This includes regular monthly newsletters; MIAP and UKRLP websites; workshops and regular newsletters for the tests and trials and early adopters; conferences for stakeholders; development of a range of online material including “How to Guidance”; and both technical and non technical helpdesk facilities. This will be further enhanced as we learn from the early adopters this autumn. A key focus of this communication will be about supporting local organisations to communicate with individuals about the MIAP services: what they are, the benefits they can bring through greater personalisation; and the individual’s ability to opt out of data sharing. In addition, communication about MIAP is being embedded into existing day to day communications with organisations who will want to use the Learner Registration Service when it becomes universally available next year e.g. DCSF’s communication with schools; the Learning and Skills Council’s communication with colleges, work based learning providers etc; the Qualification and Curriculum Authority’s communication with awarding bodies and centres etc. We will be running specific tests and trials for the Learner Record next year, before it becomes universally available, and as with the Learner Registration Service, we will want to involve young people, adults and their representatives in helping to shape the final solution. August 2007 MERITS OF STATUTORY INSTRUMENTS COMMITTEE 27

APPENDIX 4: CORRESPONDENCE (SI 2007/2397) Courts-Martial (Army) (Amendment) Rules 2007 (SI 2007/2397) Letter from Derek Twigg MP, Parliamentary Under-Secretary of State, Ministry of Defence, to the Chairman I am writing to let you know that I am shortly to lay a statutory instrument to amend the Army Courts-Martial Rules. I realise it is not usual for the Ministry of Defence to make a change of this kind during the recess and therefore wanted to explain the reasons. The proposed change follows on from the Order which was brought into force on 28 June (after being debated and approved by both Houses) and which removed the statutory restriction on the number of civilians who may sit as lay members of a court-martial board when the defendant is a civilian. As a consequence, the Order also removed the power to appoint any civilians to a board in the absence of new provisions being made. The Order also provided that rules under the Army Act 1955 could disapply provisions in the Act that require members to be serving officers or warrant officers. Its purpose was to pave the way for provisions in three new sets of Courts-Martial Rules which are planned to be made around the turn of the year under the Service Discipline Acts and which will provide that, at a court-martial of a civilian, the entire board may be made up of civilians. The need to make this change followed the case of Martin v United Kingdom, in which the European Court of Human Rights said that it would be appropriate to try a civilian by a military court only in “exceptional circumstances”. The situation today is that, until the new Courts-Martial Rules are introduced, it is not possible to convene a court-martial with any civilian board members. However, it has been brought to our attention that a court-martial of a civilian has been scheduled to take place next month. Given the outcome of Martin v United Kingdom, I believe it would be wrong to allow this court-martial to go ahead without any civilian board members. Indeed, it is highly doubtful that an appellate court would consider the lack of statutory provision to allow for civilian members to constitute the “exceptional circumstances” needed to have a mixed or military panel. We have therefore prepared a statutory instrument to provide that, when a civilian is to be tried, the Court Administration Officer may select an all civilian board (although it does not prevent him selecting a mixed or all military panel in appropriate circumstances). The statutory instrument is subject to the negative resolution procedure and will come into force 21 days after it is laid. This means that it will be in force in time for the court-martial next month. We considered the possibility of whether the Army Prosecuting Authority might seek an adjournment to the forthcoming court-martial until after the new Courts-Martial Rules are introduced, but as the case dates back to 2005 an application for a further adjournment by the prosecution might not be found to be in the interests of justice. There will be a proper opportunity for Parliamentary scrutiny of the new statutory instrument when the House returns in October. But since we are taking the unusual step of laying it during the recess, I thought it would be helpful to let you know the reasons why the new statutory instrument is being laid and brought into force in this timescale. In summary, it will allow the court-martial trial of civilians to proceed with all civilian board members. It is being brought into force in order to ensure that a civilian who is shortly to be court-martialled will receive a fairer trial, in keeping with a recent European Court judgment. I believe there was broad support for this change – with the proviso that mixed panels would still be available – when I spoke about it during the continuation order debate on Wednesday 13 June. 28 MERITS OF STATUTORY INSTRUMENTS COMMITTEE

I am writing in similar terms to Liam Fox, Gerald Howarth, Nick Harvey and the Chairmen of the Defence Select Committee, and the Joint Committee on Statutory Instruments. 14 August 2007