SL(6)537 – The Special Procedure Licences (Wales) Regulations 2024
Background and Purpose
Part 4 of the Public Health (Wales) Act 2017 (“the Act”) provides that certain individuals who perform special procedures (as listed in section 57 of the Act) in Wales must be licensed by a local authority. The special procedures are:
· acupuncture,
· body piercing,
· electrolysis,
· tattooing.
Part 2 of the Regulations makes provision about applications for special procedure licences including the criteria that must be met in order for an application for a special procedure licence to be granted. Part 2 also makes provision about the form and content of an application form, which is set out in Schedule 1 to the Regulations.
Part 3 of the Regulations makes provision about the form and content of a special procedure licence (as set out in Schedule 2 to the Regulations).
Part 4 of the Regulations makes provision about the mandatory licensing conditions which apply to a special procedure licence (as set out in Schedules 3 to 7 to the Regulations).
Part 5 of these Regulations makes provision about fees in relation to special procedure licences.
Procedure
Affirmative.
The Welsh Ministers have laid a draft of the Regulations before the Senedd. The Welsh Ministers cannot make the Regulations unless the Senedd approves the draft Regulations.
Technical Scrutiny
The following 9 points are identified for reporting under Standing Order 21.2 in respect of this instrument.
1. Standing Order 21.2(vi) – that its drafting appears to be defective or it fails to fulfil statutory requirements
There appear to be words missing from regulation 4(1):
The licensing criteria that must be met by an individual (an “applicant”) for a special procedure licence in order for the application to be granted are set out in paragraphs (2) to (4).
Section 62(1) of the Act states that “Regulations must set out criteria that must be met on an application by an individual (an ”applicant”) for a special procedure licence…” (emphasis added).
2. Standing Order 21.2(vi) – that its drafting appears to be defective or it fails to fulfil statutory requirements
We query whether the reference in regulation 9(2) should be to section 76(3) of the Act, as opposed to section 76(4) of the Act. Section 76(3) refers to the local authority determining the amount of the compliance fee, having regard to the costs incurred or expected to be incurred.
3. Standing Order 21.2(v) – that for any particular reason its form or meaning needs further explanation
In Schedule 1 to the Regulations, which sets out the form of application for a special procedure licence, question 1.2 asks when does the applicant want the special procedure licence to start, with ‘as soon as possible’ being an option. Regulation 3(3) states that in the case of a temporary licence, an application must be made at least 28 working days prior to the intended start date of the temporary licence, it may have been helpful to include this information on the application form or in a guidance note.
4. Standing Order 21.2(v) – that for any particular reason its form or meaning needs further explanation
In Schedule 1 to the Regulations, Guidance Note 1 states:
(b) if the applicant believes that the special procedure is likely to be carried out by the applicant in the areas of different local authorities, an application is to be made to one of those local authorities.
It is not clear if the applicant is required to state, on the application form, the names of all authorities in whose areas they expect to carry out the special procedure.
5. Standing Order 21.2(v) – that for any particular reason its form or meaning needs further explanation
In Schedule 1 to the Regulations, Guidance Note 5 advises applicants to consult the non-statutory guidance if they are unsure as to what “basis” they perform special procedures. We ask the Welsh Government to confirm which guidance is being referring to. It would better assist applicants if the guidance was signposted.
6. Standing Order 21.2(v) – that for any particular reason its form or meaning needs further explanation
Applicants are required to disclose unspent convictions for “relevant offences” in an application for a special procedure licence. In Schedule 1 to the Regulations, Guidance Note 8 “Convictions for relevant offences” states that what is considered a relevant offence is set out in section 66 of the Act. Given the importance of this information, why are the relevant offences not set out in the guidance notes? Setting out the relevant offences in the guidance notes would better assist an applicant in the process of completing the application form.
7. Standing Order 21.2(v) – that for any particular reason its form or meaning needs further explanation
Paragraph 2(4) of Schedule 3 to the Regulations requires-
In the event of the special procedure licence becoming mislaid, stolen or damaged, the licence holder must apply, within a reasonable period, to obtain a replacement from the issuing local authority.
What would be considered a reasonable period? Setting a specified period of time within which a replacement should be obtained, or providing guidance on what is considered a reasonable period would provide a licence holder with more clarity.
8. Standing Order 21.2(v) – that for any particular reason its form or meaning needs further explanation
Paragraph 4(2) of Schedule 3 to the Regulations requires the licence holder to keep and maintain a register of incidents associated with the performance of special procedures by the licence holder. In accordance with paragraph 4(3), the licence holder must also register such incidents. Does the Welsh Government consider the drafting of this mandatory condition to be sufficiently clear, and would a licence holder be able to identify what would constitute an ‘incident’ and know how to register such an incident?
9. Standing Order 21.2(v) – that for any particular reason its form or meaning needs further explanation
Schedules 3 to 7 to the Regulations set out the mandatory licensing conditions that are to apply to special procedure licences, for the purposes of section 63 of the Act. These mandatory licensing conditions must be “readily available upon request” by a client.
We note that definitions have been included in the Schedules, however many of these definitions do not assist the reader in their understanding of the mandatory licensing conditions, as they merely refer to sections of the Act. The inclusion of the definitions at the end of the Schedules also hinders their accessibility.
Merits Scrutiny
The following four points are identified for reporting under Standing Order 21.3 in respect of this instrument.
10. Standing Order 21.3(ii) – that it is of political or legal importance or gives rise to issues of public policy likely to be of interest to the Senedd
Regulation 4(2) sets out the licensing criteria that must be met by an applicant for a special procedure licence, in order for that application to be granted. The criteria include providing evidence of a criminal record check.
The application form for a special procedure licence, as set out in Schedule 1 to the Regulations, asks at 2.12 whether the applicant is eligible for a basic disclosure certificate issued by the Disclosure and Barring Service, an overseas criminal record certificate, or both. The applicant is also required to tick a box confirming that “Evidence of basic disclosure certificate / overseas criminal record certificate is enclosed”.
Guidance Note 8 on the application form states that a basic disclosure certificate will show an applicant’s unspent convictions and conditional cautions.
Part 4 of the application form is titled “Convictions for relevant offences” where an applicant is required to declare whether they have an unspent conviction for a relevant offence and to provide information about any relevant offences. A relevant offence is defined in section 66(8) of the Act as:
(a) an offence under Part 4 (special procedures) or Part 5 (intimate piercing) of the Act;
(b) an offence (whether under the law of England and Wales or elsewhere) that—
(i) involves violence,
(ii) is of a sexual nature, or relates to sexual material or images,
(iii) consists of tattooing a child under the age of 18,
(iv) relates to health and safety at work, or
(v) consists of a failure to comply with a requirement of a scheme for licensing or otherwise permitting or regulating the performance of an activity which is a special procedure for the purposes of the Act.
Under section 66 of the Act, where an applicant has been convicted of a relevant offence, a local authority must decide whether the applicant's fitness to perform a procedure to which the application relates has been called into question to such an extent that it would be inappropriate to issue the licence in respect of the performance of that procedure.
We ask the Welsh Government to provide an explanation as to why it considers requiring applicants for a special procedure licence to submit a criminal record check (which would show an applicant’s unspent convictions and conditional cautions, including those not considered relevant offences) a proportionate means of establishing whether an applicant has unspent convictions for relevant offences. Were any alternative means of establishing whether an applicant has unspent convictions for relevant offences considered?
11. Standing Order 21.3(ii) – that it is of political or legal importance or gives rise to issues of public policy likely to be of interest to the Senedd
The Regulations were initially laid on 17 September and considered by this Committee on 30 September. The initial Regulations were withdrawn and subsequently replaced by these Regulations, which were laid on 15 October.
A Welsh Government response was required to 18 of the reporting points raised in the report on the initial Regulations, however a response has not been received as at the date of this report. A response to that initial report may have addressed a number of points raised in this report. It would also have been helpful to have confirmation of the changes made to the Regulations. Why was a Welsh Government response not received?
Further, this Committee wrote to the then Counsel General in a letter dated 15 March 2024 which states:
You will know that all explanatory memoranda accompanying subordinate legislation laid before the Senedd includes a section – section 2 – which is used to highlight matters which may be of special interest to the Legislation, Justice, and Constitution Committee. Should an instrument be laid before the Senedd which is correcting a previously scrutinised instrument, we would find it helpful if the relevant information could be set out in section 2, including the reference number of the instrument and a footnote to our report.
We ask the Welsh Government to explain why the Explanatory Memorandum does not contain this information.
12. Standing Order 21.3(ii) – that it is of political or legal importance or gives rise to issues of public policy likely to be of interest to the Senedd
The Public Health (Wales) Act 2017 received Royal Assent on 3 July 2017. These Regulations, if approved by the Senedd, are due to come into force on 29 November 2024. This means it will have taken over 7 years for the new rules on special procedures to be implemented.
This was also raised at point 8 of this Committee’s report on the Special Procedures Approved Premises and Vehicles (Wales) Regulations 2024. We note the following from the Welsh Government response to that report:
Work on implementing the 2017 Act started immediately after the passing of the Act in July 2017. Part 5 (intimate piercing) of the 2017 Act came into force in February 2018, making it an offence to intimately pierce, or arrange to intimately pierce, a child or young person under the age of 18 in Wales, if that piercing involves or uses jewellery. The 2017 Act allowed for the scope of the offence to be extended, by way of regulations made by the Welsh Ministers, to capture intimate piercings which involve or use ‘objects’. With this as a priority, the Government undertook a consultation on its proposals to extend the scope of the protections, prepared guidance for practitioners and regulators as well as for young people, and undertook a publicity campaign to inform practitioners, clients and regulators of the new prohibitions. Regulations were subsequently made in July 2019.
In the autumn of 2019, the preparatory work for the formulation of proposals for the mandatory licensing scheme set out in Part 4 of and Schedule 3 to the 2017 Act commenced. Due to the Covid pandemic response however, work on the proposals was paused, resuming in the summer of 2022. Since then, public consultation on the principles for the proposed licensing scheme has been undertaken yielding a significant number of informative responses from a range of individuals, businesses and representative bodies across all the special procedures. These informed the drafting of five complex inter-related regulations that were then consulted upon earlier this year.
Our approach has been to ensure there has been strong and effective engagement with stakeholders, including local authority officers, practitioners, businesses and industry stakeholders, about the scheme requirements. This has taken time but has ensured that the regulatory framework is understood and capable of effective implementation, providing the protections and safeguards intended by the 2017 Act.
13. Standing Order 21.3(ii) – that it is of political or legal importance or gives rise to issues of public policy likely to be of interest to the Senedd
We note the following extracts from the Explanatory Memorandum regarding the consultation undertaken in respect of the Regulations:
5.2. The Welsh Government consulted on the principles of the special procedures licensing scheme (from here referred to as the ‘first consultation’) with a view to informing draft Regulations that would enable the commencement of the provisions of Part 4 and Schedule 3 of the Act. That 12-week consultation ran between 25 January and 19 April 2023 and the draft version of the RIA formed part of the consultation materials along with an Integrated Impact Assessment. […]
5.9. A further consultation (from here referred to as the ‘second consultation’) ran for eight weeks between 12 February and 8 April 2024 and followed on from the first consultation referred to above[…]
5.10. As the policy proposals for the mandatory licensing scheme had already been consulted upon, this second consultation was considered a technical consultation specifically on the wording of the draft Regulations and draft Statutory Guidance, although the draft Regulations provided further detail around the new scheme, including those subjects where the statutory duty to consult under section 64 of the Act applied. For this reason, the Cabinet Secretary for Health and Social Services gave her consent for the consultation to run for eight weeks instead of the standard 12-week period.
Welsh Government response
A Welsh Government response is required for reporting points 1 to 11.
Committee Consideration
The Committee considered the instrument at its meeting on 4 November 2024 and reports to the Senedd in line with the reporting points above.