4 Private
Security Industry Act 2001 (Modification of Local Enactments)
Order 2004: doubtful vires and defective drafting
Private Security Industry Act 2001 (Modification
of Local Enactments) Order 2004 (S.I. 2004/916)
4.1 The Committee draws the special attention
of both Houses to this Order on the grounds that in one respect
there is doubt as to whether it is intra vires and that it is
defectively drafted.
4.2 This Order is made under section 13(5) of the
Private Security Industry Act 2001, which enables an order to
repeal or modify the provisions of any local enactment in consequence
of the coming into force of the Act. Article 4 amends paragraph
12 of Schedule 1 to the Local Government (Miscellaneous Provisions)
Act 1982. In a memorandum printed at Appendix 4, the Home Office
acknowledges that the 1982 Act is not a local enactment and that
accordingly section 13(5) does not confer power to modify it.
4.3 Schedule 1 to the 1982 Act prohibits the provision
of certain public entertainments except under and in accordance
with the terms of a licence granted by the appropriate authority.
Certain persons commit an offence if any such entertainment is
provided without a licence being in force (paragraph 12(1)) or
otherwise than in accordance with the terms and conditions of
a current licence (paragraph 12(2)). The amendment made by article
4 of this Order would, if valid, make it a defence for a person
charged with an offence under paragraph 12(1) or (2) to show that
he holds a licence issued under the 2001 Act entitling him to
act as a door supervisor or that the person he employed to act
as a door supervisor holds such a licence. The Department acknowledges
that the defence should have been limited to prosecutions under
paragraph 12(2) in respect of a breach of a condition relating
to the registration of door supervisors.
4.4 The Department undertakes to revoke the Order
and remake it without article 4 in the week commencing 3 May.
The Committee accordingly reports article 4 on the grounds that
there is doubt whether it is intra vires and that it is defectively
drafted, both of which are acknowledged by the Department.
| 
