Appendix 1
S.I. 2004/2528: memorandum from the Department
for Environment, Food and Rural Affairs
Water Act 2003 (Commencement No. 2, Transitional
Provisions and Savings) Order 2004
(S.I. 2004/2528)
1. The Committee has requested a memorandum on the
following point:
Is it intended that the provisions referred to
in article 2(m), (n), (p) and (q) come into force in relation
to England only? If so, why is this not stated in the instrument?
2. The answer to the first question is 'Yes'. The
answer to the second question is elaborated below.
Background
3. By virtue of section 105(6) of the Water Act 2003
('the Act'), the power of the Secretary of State to commence the
provisions referred to in article 2(m), (n), (p) and (q) of the
Order is only exercisable in relation to England. This was indicated
in footnote (b) on page 1 of the Order.
4. The Department took into account the Committee's
view that, as a matter of general principle, a limitation upon
the extent or application of the provision in the instrument should
be included in a case where a power has been devolved and it is
not clear from the contents of the instrument, or any provision
in it, that the instrument or provision is of limited extent or
application.
5. The Department understood that the reason for
requiring this was in order to make it clear that the instrument
or provision does not purport to go beyond what is intra vires.
In other words, the purpose of including a limitation in the Order
would be to make it clear that the intention of the Secretary
of State in making the instrument was no wider than the terms
of the enabling power. The Department thus understands the reason
to be concerned with clarity rather than strict legal effect.
This is because, where a power, in so far as exercisable by the
Secretary of State, is itself limited so as only to be capable
of being exercised in relation to England, the application of
any provision made in exercise of the power is necessarily similarly
limited. Not only could any ultra vires exercise of the
power have no effect, but any purported limitation in the Order
could equally have no substantive effect.
Section 12A(4) Reservoirs Act 1975
6. In this instance, the Department considered the
application of the Committee's principle in the context of a particular
difficulty arising from the conjunction of a limitation in the
enabling power with the terms of new section 12A(4) of the Reservoirs
Act 1975 inserted by section 77 of the Act.
7. Article 2(m) of the Order commenced section 77
of the Act. Section 12A(4) confers on the Secretary of State power
in relation to reservoirs in Wales to give water undertakers directions
to prepare flood plans to control or mitigate the effects of flooding
from water escaping from the reservoirs. The Department considers
it is not clear whether this provision is capable of having effect
in relation to England separately from its effect in relation
to Wales. It might have been expected that the Act would therefore
have given the Secretary of State the power to commence section
77 (in so far as it related to section 12A(4)) in relation to
England and Wales; but the Act did not do so.
8. The Department was aware that the uncertainty
is in any event inherent in the Act. There could not in any event
be clarity as to whether the commencement of section 77 in relation
to England had the effect of introducing section 12A(4) for all
purposes or only for some limited purpose (and if the latter,
what that more limited purpose might be). But the Department considered
that, in the circumstances, it was greatly preferable that the
Act alone should speak as to the scope of application of the commencement
power and any commencement provision made under it, and that its
meaning should be left to be determined as a matter of construction
of the Act alone. It appeared to the Department that it would
add to the unavoidable uncertainty if the relevant provision in
the commencement instrument itself reproduced the limitation found
in the Act.
Whether there is a need for an application provision
in this case as a matter of clarity
9. Given the uncertainty as to the meaning of that
limitation as regards section 12A(4), this appeared to be an instance
where it would not have been productive of clarity to include
an express separate statement of the intention of the Secretary
of State as regards scope, additionally to the limitation on that
scope in the Act. In the Department's view, there was an analogy
to be drawn with the approach often adopted by a Department when
faced with the obligation to implement an ambiguous provision
in an EC Directive. In such cases, rather than adopt ambiguous
wording as the draftsman's own, and thereby raise a question as
to what the draftsman (or the person making the instrument) understood
by the expression used, it is often considered preferable to refer
to the text of the Directive. The merits of this approach are
that the express cross-reference makes more conspicuous to the
reader the need to interpret the provision by reference to the
underlying Community instrument and avoids any impression of interposing
any independent expression of an intention on the part of the
draftsman of the implementing instrument.
10. In this case, had the Department included the
limitation, it would have been superfluous to have defined that
limitation by reference to its meaning in the Act. But the Department
considered that the clearest means of ensuring that the words
'shall come into force' in article 2 are construed by reference
to the Act alone would be by omitting the limitation 'in relation
to England' from the body of the instrument and, by means of a
footnote, signposting the existence of that limitation in the
Act. As with the analogous case of implementing a Directive, this
would avoid any question of an independent and intervening intention
on the part of the person making the Order.
11. The Department considered that the effect would
be that, in the absence of a limitation, the meaning of the words
'shall come into force' could only be derived from an examination
of the whole context including, in particular, the relevant provisions
of the enabling Act which contain the limitation[1].
Since the limitation is implicit in the recital of the power in
the preamble to the instrument, there could be no question as
to any intention of wider effect on the part of the person exercising
the power. This is still more the case where the limitation is
expressly signalled in a footnote.
12. The Department considered that the position in
this instance might be contrasted with that in a case where the
power has been devolved subsequently to the date of its enactment.
In the latter case, clarity might require a limitation in order
to preclude any possibility of an inference that the provision
made under the enabling power purported to have effect to the
fullest extent of which it had been capable by virtue of the enabling
power as enacted. (Clearly, in no case could there be any possible
inference that the provision purported to have effect to any greater
extent than that of which it was capable under the terms of any
limitation upon the enabling power as enacted). By contrast, where
the enabling power is itself on its face subject to a relevant
limitation, it appeared to the Department that there could be
no possible inference that the provision made under it purported
to have any wider extent or application. This is because the fullest
extent of which the provision is capable of having effect by virtue
of the enabling power as enacted is the very extent which the
provision is intended to have.
13. The Department considered whether the position
might be different in the case of a commencement power on the
grounds that the appropriate context by reference to which the
extent of the commencement power is to be construed might be said
to be the extent which the provision commenced would have if commenced
fully. But the Department considered that it would be perverse
to determine the extent to which the provision commenced was capable
of having effect under the Act without reference to any limitation
on that extent in the commencement power, particularly where the
extent limitations are adjacent (section 105 (6) and (7) of the
Act).
14. In the circumstances of this particular case,
therefore, the Department therefore considered that the addition
of 'in relation to England' in relation to the relevant paragraphs
of article 2 of the Order would result in increased uncertainty
and that to include them would probably have gone against the
underlying concerns of the JCSI.
15. Although only article 2(m) is relevant to the
commencement of section 77, the Department considered that consistency
required that the same approach should be adopted in relation
to article 2(n), (p) and (q). It would have further compounded
confusion had the Department added the limitation 'in relation
to England' in only one, or only certain, of the paragraphs of
article 2 of the Order for which the enabling power is section
105 (6) of the Act.
8 November 2004
1 The Department contrasts this with - say - a provision
in an enabling Act which says that 'the Secretary of State may
by Regulations prohibit fishing in rivers' and Regulations stating
that 'fishing is prohibited' without specifying 'in rivers'. The
reason for the contrast is that 'fishing' has a meaning outside
the particular legislative context, whereas 'come into force'
in a commencement provision does not. Back
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