2 S.I.
2004/590: unexpected use of enabling power
Common Agricultural Policy Non-IACS Support Schemes
(Appeals) (England) Regulations 2004 (S.I. 2004/590)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that it makes
an unexpected use of the enabling power.
2.2 The Regulations, which are made in reliance on
the power contained in section 2(2) of the European Communities
Act 1972, enable the Secretary of State to establish an appeals
procedure in respect of the Community schemes specified in the
Schedule. Regulation 4(3)(b) authorises the Secretary of State
to charge an appellant a fee in connection with the hearing of
an appeal. Section 56(1) of the Finance Act 1973 empowers the
Minister in charge of a Government Department to make regulations,
with the consent of the Treasury, requiring the payment of fees
or charges in connection with any services or facilities provided
by the Department in pursuance of any Community obligation. Given
that section 56(1) makes specific provision for the charging of
fees, the Committee asked the Department for Environment, Food
and Rural Affairs to explain why it was not cited in the preamble
as an enabling power and whether the consent of the Treasury had
been obtained.
2.3 In a memorandum printed in Appendix 2, the Department
explains that it had decided against relying on section 56 of
the 1973 Act as an enabling power in respect of the charging provisions
in the Regulations for two reasons. First, there is no requirement
in the EC legislation specified in the Schedule to the Regulations
for the introduction of an appeals procedure. That being so, the
Department considered that the appeals procedure was introduced
for the purpose of dealing with a matter arising out of, or related
to, the Community obligations (under section 2(2)(b) of the 1972
Act) and not directly in pursuance of the Community obligations.
Secondly, the Department considered it doubtful whether the establishment
of an appeals procedure could be properly categorised as a service
or facility.
2.4 The Committee is not persuaded by this explanation.
In relation to the Department's first point, the Committee notes
that section 2(2) of the 1972 Act allows regulations to make provision
- (a) for the purpose of implementing any Community obligation
of the United Kingdom, or (b) for the purpose of dealing with
matters arising out of or related to any such obligation. On the
other hand, section 56(1) of the 1973 Act refers to the provision
of any services or facilities by a Government Department in
pursuance of any Community obligation. On the Department's
view, the italicised words do not cover the case where a service
or facility is introduced for the purpose of dealing with a matter
mentioned in (b), but they are to be construed as being confined
to cases where the service or facility is provided directly
in pursuance of a Community obligation. However, the Committee
notes that the underlined word does not appear in section 56(1)
and nor does that provision adopt the wording of section 2(2)(a)
of the 1972 Act which it might be expected to have done had it
been intended to apply only in the case covered by section 2(2)(a).
In the Committee's view the natural meaning of the italicised
words embraces the cases covered by section 2(2)(a) and (b). It
also seem improbable that Parliament intended the requirement
for Treasury consent to apply where services or facilities are
provided for the purpose of implementing a Community obligation,
but not for the purpose of dealing with a matter arising out of
or related to a Community obligation. The Committee also notes
that the view put forward in the Department's memorandum appears
to be inconsistent with its explanation of the origins of section
56 of the 1973 Act put forward in paragraph 5 of its memorandum
on the End-of-Life Vehicles Regulations 2003 (printed as Appendix
3 to the Committee's Thirty-second Report of Session 2002-03).
2.5 As to the Department's second point, the Committee
considers that "facilities" in section 56(1) of the
1973 Act is a word of wide import, which covers an appeals procedure
giving a person an opportunity or the means of seeking a review
of an initial determination made in respect of the administration
of the Schemes. Accordingly, the Committee is of the view that
section 56 of the 1973 Act should have been used as an enabling
power in respect of the provision authorising the charging of
fees and that the consent of the Treasury should have been obtained
in that respect . The Committee considers that the reliance
on section 2(2)(b) of the 1972 Act in respect of regulation 4(3)(b)
constitutes an unexpected use of the enabling power, and it reports
accordingly.
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