2 S.I.
2011/695: Reported for failure to comply with proper legislative
practice
Regional Flood and Coastal Committees (England
and Wales) Regulations 2011
(S.I 2010/695)
2.1 The
Committee draws these Regulations to the special attention of
both Houses on the ground that they fail to comply with proper
legislative practice.
2.2 The Regulations are made by the Secretary of
State and the Welsh Ministers. They provide for the establishment
by the Environment Agency of Committees with responsibility for
flood protection in England and Wales. They are made under powers
in the Flood and Water Management Act 2010. Under sections 22
and 26 of that Act the powers are exercisable -
- by the Secretary of State in
relation to committees for each region wholly or mainly in England
("English Committees"), and
- by the Welsh Ministers in relation to Committees
for each region wholly or mainly in Wales ("Welsh Committees").
2.3 In consequence of section 48 subordinate legislation
under the 2010 Act (so far as relevant) is subject to annulment
in pursuance of a resolution -
- of either House of Parliament
where made by the Secretary of State, and
- of the National Assembly for Wales where made
by the Welsh Ministers,
unless an alternative procedure is expressly provided.
None is provided in relation to this case. Unlike (for example)
Schedule 3 to the Climate Change Act 2008, the 2010 Act makes
no express provision about procedures for instruments combining
provisions made by the Secretary of State with provisions made
by Welsh Ministers.
2.4 The preamble to the Regulations clearly divides
the making of the Regulations in accordance with the 2010 Act,
and the Committee has no point to raise on vires. Furthermore,
as was stressed by the Department for Environment, Food and Rural
Affairs in the Explanatory Memorandum accompanying the Regulations,
the balance of convenience at this stage both for them and for
the Welsh Ministers lay in making combined rather than separate
and parallel subordinate legislation. However, as the Department
recognised, doing so might give rise to difficulties in Parliament were
annulment under consideration. Over many years it has been the
view of the Committee that the need for certainty when annulment
is an option has to be recognised, and it has accordingly opined
on several occasions that provisions not subject to a Westminster
parliamentary procedure should not to be combined with provisions
subject to annulment in either House[1].
The present Committee sees no reason to depart from that general
approach. In the event of relevant legal proceedings, any uncertainty
as to the effect of a successful resolution to annul could raise
issues relating to the impact of the ninth article of the 17th
century Bill of Rights.
2.5 In the light of that recognition the Committee
asked the Department for Environment, Food and Rural Affairs whether
the same result could have been achieved by separate instruments,
one for English Committees and the other for Welsh Committees.
In a memorandum printed at Appendix 2, the Department accepted
that it could have been so achieved and also took the opportunity
of modifying its previously expressed view of what the position
on annulment would be. It concluded that, as a result of the operation
of sections 5 and 11A of the Statutory Instruments Act 1946 on
the 2010 Act, an annulment resolution in either House of Parliament
or in the National Assembly for Wales would operate on the entire
Regulations.
2.6 The Committee accepts that the Department's analysis
is respectable, but considers that its conclusion cannot correctly
be regarded as beyond dispute, for there is a unavoidable but
highly surprising implication in the Department's analysis, i.e.
that a resolution—
- of the National Assembly for
Wales could annul provisions made just by the Secretary of State
and relating purely to English Committees, and
- of either House of Parliament could annul provisions
made just by Welsh Ministers and relating purely to Welsh Committees.
2.7 Neither of those results (the first of which
could be of particular interest to both Houses) would have been
possible had separate but parallel instruments been made.
2.8 In consequence the Committee, while appreciating
that the making of separate provisions in a single instrument
is an appropriate option where the applicable primary legislation
gives rise to no doubt as to procedure, does not regard it as
appropriate in cases such as this one. The fact that an annulment
resolution relating to an instrument becomes impossible after
a limited period following laying does not affect the Committee's
view, for the Committee does not accept that any parliamentary
outcome can be taken for granted at the time that the instrument
is made. The Committee accordingly
reports these Regulations for failure to comply with proper legislative
practice.
1 See for
example the Committee's 32nd Report of Session 1985-86 (S.I. 1986/940
and S.I. 1986/946), 14th Report of Session 1988-89 (S.I. 1989/318),
14th Report of Session 1992-93 (S.I. 1992/2672) and 35th Report
of Session 2005-06 (S.I. 2006/1542). The Committee's objection
does not apply to cases where the primary legislation also contains
the option of subjecting all the combined provisions to annulment. Back
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