APPENDIX
Proposal to allow removal of uncertainties in
the law
COMMITTEE REPORT
16. The Committee considered each of the three proposed
ways set out in the consultation document in which orders might
be used to lift a burden imposed by uncertainty in the law:
- where the wording of legislation is obscure (although
the meaning is thought to be clear);
- where the effect of a deregulation order is to
make the wording more complex and the current power is inadequate
for the re-writing of amended sections; and
- where the law is uncertain and no-one knows what
the true construction should be.
17. The Committee did not object to the proposal
to use deregulation orders to resolve the first of these cases,
so long as any order brought forward on this basis could demonstrate
that there was indeed a real burden imposed by the uncertainty.
In the second case, the Committee considered that the provisions
of section 1(4)(b) of the existing Act would generally be sufficient
to resolve such cases, but accepted that there might be instances
where this power was inadequate. The Committee noted that the
third case presented more of an issue, as resolving an uncertainty
must by definition involve making a choice between at least two
possible interpretations, some of which will be more likely to
impose a burden than if the uncertainty were resolved in the other
direction. The Committee did not object to this concept but considered
that any such case would only be acceptable if the burden being
imposed was less than the burden being removed. In any case of
this type the Committee would also expect a regulatory impact
assessment and appropriate consultation.
GOVERNMENT RESPONSE
18. As indicated in the consultation document, the
Government is clear that this new power should only be used where
it can be demonstrated that an uncertainty in the law constitutes
a real burden. The Government believes that people are entitled
wherever possible to clear, certain law without the burden of
the risk and expense involved in testing the provision in the
courts. It is clear from responses to the consultation document
that, subject to appropriate conditions, there is a good deal
of support for this proposal. The Magistrates' Association and
the Justices' Clerks' Society were among those who embraced this
proposal. In particular, it was felt that use of orders in the
second case considered by the Committee (to amend the wording
of the law where the legal effect, but not the wording, was clear
and unambiguous) was a sensible proposal.
19. There is a subtle balance to be struck in considering
the third set of circumstances in which an order might be used
to clarify the law, i.e. when the meaning of the law is unclear
and no-one knows exactly what it means in relation to a particular
situation. This is particularly relevant when the legislation
deals with one set of facts but (precisely because it is precise)
is uncertain in its effects on another set of facts. The Government
is therefore seeking power to make fresh provision which deals
with the case in point (which may or may not be what the original
provision could have been held to mean in another case). Article
7 of the European Convention on Human Rights has been interpreted
such that a law imposing a criminal offence must be sufficiently
clearly drafted or defined so that a person can reasonably be
able to foresee that an act he undertakes would be an offence,
and a person must not be prosecuted on the basis of a wholly ambiguous
or uncertain provision. This proposal is clearly in line with
the aim of that Article.
20. In addressing the burden of unclear law, the
Government's discussions with the Law Commission about reform
of DCOA are also relevant. The Lords Committee suggested that
a power should be included in the Bill to fast-track uncontroversial
Law Commission proposals. This suggestion led to very productive
discussion and the development of new policy. As discussed in
more depth at paragraph 58-59 below, the Government intends taking
this idea forward by way of a wider power. This would allow draft
orders based on proposals from the Law Commission and others which
are aimed at modernisation, clarification and simplification of
the law (and which meet the requirements for proposed orders on
removing or reducing a burden and maintaining necessary protection,
etc.) to be submitted for scrutiny.
21. The issue here is that complex, outdated and
unclear law does not constitute a burden as it is defined in the
existing Act. The Government intends framing the legislation to
overcome this problem. One of the reasons why so much law is complex
is that there is often a variety of different statutory provisions
applying to a particular topic, some of which will overlap. This
is another area which the Government would like to address in
legislation, when Parliamentary time allows, by relaxing the requirement
in the current Act that the burden to be removed is the result
of a specific legislative provision. Experience of using the order-making
power has shown that unnecessary restrictions tend to be imposed
by the structure of regulatory schemes as a whole, or because
there is no provision in law to allow people to do things they
feel they ought to be able to do (we will return to this point
about insufficiently facilitative or enabling law in paragraphs
28-29 below). The experience that burdens tend to be imposed by
the interaction of more than one provision indicates that it would
be beneficial for any revision to allow a more holistic approach
to burdensome situations.
22. The Committee's point that resolving an uncertainty
inevitably involves making a choice between two or more possible
interpretations was picked up by a small number of other respondents
to the consultation document. There was concern that clarification
should only be in a deregulatory direction, or where there was
wide consensus that the direction of the clarification was the
most appropriate. The Government considers the requirement that
resolution of uncertainties should be limited to a deregulatory
direction would be unnecessarily restrictive, and is minded to
include instead the requirement that a Minister putting forward
a proposed order should hold the opinion that the overall result
of resolving the uncertainty would be deregulatory; a requirement
which would appear to fit with the Committee's view. The Government
is mindful of the Committee's point that any new burden imposed
by the clarification of the law could in any case be little more
than nominal if it were to constitute a lesser burden than that
imposed by the existing uncertainty.
23. The Government recognises that this is a complex
issue, understanding of which will be much aided by the provision
of worked examples, and will be providing such examples alongside
the Bill.
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