1 S.I.
2011/1120: Reported for doubtful vires
Motor Vehicles (Insurance Requirements) (Immobilisation,
Removal and Disposal) Regulations 2011 (S.I. 2011/1120)
1.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that there is
a doubt whether they are intra vires in four connected
respects.
1.2 These Regulations are made pursuant to
powers in Part 6 of the Road Traffic Act 1988 (including Schedule
2A). They establish an enforcement regime for the offence of a
registered keeper of a vehicle failing to maintain continuous
insurance for the vehicle. The regime involves immobilisation
and removal of the vehicle and (in some circumstances) dealing
with it as scrap. Regulations 10 to 13 give various roles to the
owner of the vehicle during the enforcement process.
1.3 Paragraph 8 of Schedule 2A confers power
to make provision as to the meaning of "owner" for the
purposes of the regulations and paragraphs (3) to (5) of regulation
2 make such provision. But regulations 10(5), 11(3), 12(4) and
13(4) provide that, where it appears to the person looking after
a removed vehicle (its "custodian") that there is more
than one owner, the custodian can decide which of them is to be
regarded as owner for the purposes of regulation 10, 11, 12 or
13. It is not clear where the authority to delegate to the custodian
the power to determine who is owner derives from.
1.4 In a memorandum printed at Appendix 1, the Department
for Transport argues that that authority is to be found in section
160 of the Road Traffic Act 1988 which allows regulations to be
made generally for the purpose of carrying Part 6 into effect.
But nothing there expressly permits sub-delegation of powers in
Part 6, so the question for consideration is whether there is
implicit permission. Here the memorandum contains the further
argument that the definitions in regulation 2(3) to (5) sometimes
yield more than one owner and that, as it is necessary to choose
between them, some provision for determination is inevitable.
1.5 The Committee
accepts that the Department has a persuasive argument about having
to choose among those falling within the regulation 2(3) to (5)
definitions where action is initiated by a person claiming to
be the owner, as is the case in regulations 12 and 13. However,
regulations 10 and 11 call for action to be initiated by the custodian—i.e.
disposal of the vehicle where its owner has disclaimed ownership
rights and recovery of sums from the owner. Here it is not clear
why the definitions could not have been finessed to yield only
a single owner. It may also be the case that, in the context of
at least some of the provisions (for example, regulation 10(2)),
a role should be accorded to each person who is owner by virtue
of those definitions. Finally, in all cases the power involves
choice among those appearing to the custodian to be owner, which—read
literally—could extend beyond the definitions in question.
The Committee accordingly reports
regulations 10(5) and 11(3), and (to a lesser extent) 12(4) and
13(4), for doubt as to whether they are intra vires.
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