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).
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
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
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
REMOVAL OF A BURDEN
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.
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.
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.
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.
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.
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.
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.
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.
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.
circumstances, we agree that the proposal does not remove any
CONTINUING RIGHTS AND FREEDOMS
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
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
Epping Forest (byelaw 3(1)) Back
Legislative and Regulatory Reform Act 2006, section 1(3)(c) and
ED, paragraphs 2.8-2.9 Back
ED, paragraph 2.15 Back
Annex, Q2 Back
Annex, Q3 Back
ED, paragraphs 2.16-2.18 Back
ED, paragraphs 2.19-2.22 Back
ED, paragraphs 2.23-25 Back
ED, paragraphs 2.26-27 Back