Draft Legislative Reform (Epping Forest) Order 2011 - Regulatory Reform Committee Contents

5  Preconditions and tests for LROs

The preconditions and tests

36. The relevant statutory tests for us to consider are set out in the following sections of the LRRA: 1 (requirement for removal or reduction of a legislative burden), 3 (preconditions), 13 (consultation) and 14 (requirements for laying). House of Commons Standing Order No. 141 also requires us to have regard to whether a draft Order appears to make inappropriate use of delegated legislation and to whether the draft Order gives rise to any issue under the criteria for consideration of statutory instruments set out in Standing Order No. 151.

37. Section 1 of the LRRA stipulates that Ministers of the Crown have the power to make LROs that they consider would serve the purpose of removing or reducing burdens, or overall burdens, resulting directly or indirectly for any person from any legislation (the phrase "overall burdens" having the effect of permitting orders in which some burdens are increased but the net effect is to reduce).[40]

38. The preconditions in section 3 are that:

a)  The policy objective intended to be secured by the provision could not be satisfactorily secured by other means;

b)  The effect of the provision is proportionate to the policy objective;

c)  The provision, taken as a whole, strikes a fair balance between the public interest and the interest of any person adversely affected by it;

d)  The provision does not remove any necessary protection;

e)  The provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise;

f)  The provision is not of constitutional significance.

39. Section 13 of the LRRA requires Ministers to consult organisations representative of interests substantially affected by the proposals, together with relevant defined statutory bodies and such other persons as are appropriate. If, as a result of that consultation, it appears appropriate to the Minister to change the whole or any part of the proposals, there must be further consultation with respect to the changes.

40. Section 14 requires that, on laying the draft Order, an explanatory document must explain the powers in the LRRA under which the draft Order is to be made, introduce and give reasons for the provision, explain why the section 3 tests are considered satisfied, assess the extent of removal or reduction of burdens, identify and give reasons for any function of legislating (and relevant procedural requirements attached thereto), and give details of the consultation, the responses to consultation, and any changes made.

41. The criteria for assessing statutory instruments under Standing Order 151 are principally: whether the measure imposes a charge on public revenues; whether it contains an ouster of court jurisdiction; whether it has purported retrospective effect without authority in the parent statute; unjustifiable delay in publication or laying; doubtful vires or unexpected use of statutory powers under which it is made; need for elucidation; and defective drafting. We believe that no issues arise within these categories.

42. In terms of Standing Order No. 141 (3)(a), we consider the draft Order is an appropriate use of delegated legislation. The statutory and Standing Order tests that we consider relevant in the present case are addressed below.

Application of tests and preconditions to current proposal


43. The current situation means the MPS cannot enclose a MBDC on Wanstead Flats, the only site that has met all the selection criteria. The ED sets out two specific burdens arising from the 1878 Act that it wishes to temporarily remove. Firstly, section 7 of the 1878 Act obliges the City of London Corporation to prevent building on or enclosure of the Forest. This prevents the Corporation from being able to grant permission for the MBDC, without which the MPS will be significantly impeded in its ability efficiently to police the Games. Secondly, the byelaws made under section 36 of the 1878 Act make it a criminal offence to enclose or build or otherwise encroach on any part of Epping Forest.[41] This means any construction of the Centre would fall foul of the byelaws and constitute a criminal offence. We agree that these constitute burdens within the terms of the LRRA, which includes within its definition of "burden" both an obstacle to efficiency and a sanction, criminal or otherwise.[42] As a result we agree that the draft Order does set out to remove burdens, within the meaning of the Act.


44. There are no provisions within the 1878 Act which would allow the MPS to erect a MBDC. The City of London Corporation, as Conservators of the Forest, are required to keep the land unenclosed. They have powers to allow certain activities, such as a fair and a circus, to take place on the land, but these do not require enclosure. As the MBDC requires enclosure to make sure access is strictly regulated, the Corporation has no power to authorise use of the land. Additionally, section 45 of the 1878 Act allows the MPS to exercise its powers and duties on the land, but these do not extend to enclosure of parts of the Forest.[43]

45. The Government conclude in the ED that the policy objective could not be secured satisfactorily through non-legislative solutions. They considered two non-legislative options, firstly to design the MBDC so that it did not form an enclosure. In practice this would mean allowing public access to the police facilities, which was unacceptable on safety and security grounds. The second was to use an alternative site. This would have raised issues of efficiency, cost and convenience to the MPS and its policing of the Games. The Government concluded that while alternative sites were possible, they were not satisfactory for the purpose of section 3(2)(a) of the 2006 Act.[44]

46. The Government also considered a wide range of legislative solutions, once Wanstead Flats was identified as the only possible site in late 2009. Primary legislation was considered, but would have depended on an appropriate legislative vehicle being available. The only such vehicle was the Police Reform and Social Responsibility Bill. The flagship policy of this bill is to create directly elected Police and Crime Commissioners, and needs to achieve Royal Assent in time for necessary preparations to be made for the first such elections in May 2012. Since the amendments if the draft LRO would have made any public bill hybrid, the extra time that would be necessary for its passage was undesirable. There did not appear to be any other appropriate Home Office legislative vehicle. A private bill was considered, but the Department thought it may have struggled to obtain Parliamentary time, and would have relied on the resources of a private sponsor.[45]

47. The Open Spaces Society asked in their consultation response whether the aims of the LRO could be achieved through section 36(3)(c) of the London Olympic Games and Paralympic Games Act 2006. The response stated that this provision would enable the purchase of land, rather than any temporary use, and that the Consultation Document had ruled out the purchase of land as it was disproportionate.[46]

48. As a result of finding no other way to enable the MBDC to be authorised, the Government decided there were only two options. Firstly, the land could be acquired by a Compulsory Purchase Order. As stated above, this route was considered disproportionate. Additionally, it could lead in the longer term to a detrimental impact on the use of Epping Forest as a public amenity. The second option was to use a LRO to remove the burden to efficient policing and the criminal sanction. The proposed amendment to the 1878 Act would be strictly limited to the policing need for the Games, and the full protection offered by the Act would revert at the end of the 90 day period. This amendment would allow the Corporation to amend their byelaws and thus enable the MPS to proceed without risk of prosecution. Following the General Election, the new Ministers in the Home Office gave their consent to the LRO route in June 2010. We agree that there are no suitable non-legislative solutions which would fulfil the policy objective. We also agree that of the legislative solutions proposed, the use of a LRO, for a strictly temporary change to the 1878 Act, is the most satisfactory.


49. The Government deems that the use of a LRO is proportionate to the policy objective. It additionally considers the only other feasible option, a Compulsory Purchase Order, would be disproportionate. It furthermore believes there are good reasons to maintain the restrictions in the 1878 Act rather than removing them in their entirety, so has proposed to limit the position, coverage area and duration of the LRO provisions.[47] We support this belief and agree that the proposal is a proportionate measure to achieve the policy objective.


50. The Government believes that the proposals strike a fair balance between the interests of those likely to be adversely affected and the wider public interest. In reaching this conclusion they have balanced how those who use Wanstead Flats for recreational and other purposes could be affected against the public interest in ensuring the safe and secure delivery of the 2012 Games. They argue that it may be particularly in the interests of those who live in the vicinity of the Olympic venues that they pass safely and securely. They state that the MBDC will genuinely assist that delivery whilst minimising the impact on local communities who will be able to access and enjoy the majority of Wanstead Flats. Furthermore, the LRO has been drafted so that its provisions are limited to the shortest time necessary.[48] Given that the MBDC will be limited in terms of position, coverage area and duration to aid the largest ever peacetime safety and security event seen to date in the UK, we agree that the proposal strikes a fair balance between the public interest and the interests of any person adversely affected by it.


51. The Government explains in the ED that it does not consider that the proposal will remove any necessary environmental or other protection. The site has previously been used for other events on a regular basis, and is of relatively low ecological value compared to the rest of Wanstead Flats. The MPS have pledged to ensure the land is returned to its original state at the end of the Games, and the planning application explained how potential nuisances would be mitigated.[49] Under the circumstances, we agree that the proposal does not remove any necessary protection.


52. The Government have concluded that the proposal will not prevent any person from continuing to exercise any right or freedom which they might reasonably expect to continue to exercise. In reaching this conclusion, they have acknowledged that the MBDC will limit the public's ability to use a particular area of Wanstead Flats for a limited period of time, though have reiterated that this right will be restored at the end of the 90 day period. They further argue that the right to enjoy access to this area is limited in comparison to completely open areas of the Forest because it is regularly used for other purposes such as a circus, fireworks or fair. Therefore the public do not have a reasonable expectation that their rights and freedoms will always be exercisable to their fullest extent. Furthermore, public access to parts of the Flats may also be subject to temporary restrictions, for example during repair work or to protect sensitive habitats, and it would be unreasonable to expect access to all parts of the Flats at all times.[50] Whilst the proposal will limit the public's ability to use Wanstead Flats, this is limited to a specific portion of land in a defined area for 90 days. Therefore, we agree that the proposal does not unreasonably prevent any person from continuing to exercise any right or freedom.


53. Our view of the consultation process has been set out in chapter 4 of this Report. Despite the concerns raised there, we accept that the Department has respectably arguable grounds for concluding that its consultation was adequate.


54. The draft Order makes a straightforward, temporary amendment to the 1878 Act, which reverts to the full provisions of the Act at its expiration. We do not believe it necessary to suggest any amendments to the draft LRO, given its limited provisions, and therefore agree that the affirmative procedure is appropriate. We welcome the opportunity for local residents' petitions to be considered by the Hybrid Instruments Committee in the House of Lords.

40   Section 2 of the LRRA deals with power to promote regulatory principles and is not relevant to the present measure Back

41   Epping Forest (byelaw 3(1)) Back

42   Legislative and Regulatory Reform Act 2006, section 1(3)(c) and (d) Back

43   ED, paragraphs 2.8-2.9 Back

44   ED, paragraph 2.15 Back

45   Annex, Q2 Back

46   Annex, Q3 Back

47   ED, paragraphs 2.16-2.18 Back

48   ED, paragraphs 2.19-2.22 Back

49   ED, paragraphs 2.23-25 Back

50   ED, paragraphs 2.26-27 Back

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© Parliamentary copyright 2011
Prepared 6 May 2011