Instruments reported
At its meeting on 14 March 2012 the Committee
scrutinised a number of Instruments in accordance with Standing
Orders. It was agreed that the special attention of both Houses
should be drawn to six of those considered. The Instruments and
the grounds for reporting them are given below. The relevant Departmental
memoranda are published as the appendices to this report.
1
S.I. 2012/20: Reported for an unjustified
breach of the 21 day rule
Local Government (Structural Changes) (Finance)
(Amendment) Regulations 2012 (S.I. 2012/20)
1.1 The Committee draws the special attention
to these Regulations on the ground that they are
an unjustified breach of
the 21 day rule.
1.2 The Regulations make amendments about local government
finance which are consequential on provision made by the Localism
Act 2011 for council tax referendums. They apply to only two local
authorities which have emerged from restructuring in 2009, and
have not yet equalised the council tax applicable to the different
parts of their areas, and specify how the rules relating to the
triggering of a council tax referendum operate in those circumstances.
1.3 The Regulations breach the 21 day rule mentioned
in section 4.13 of Statutory Instrument Practice which
requires that instruments subject to annulment should not normally
be brought into force until at least 21 days after laying. In
paragraph 3 of the Explanatory Memorandum that accompanied the
Regulations, the Department for Communities and Local Government
explained the need for the Regulations to be made alongside the
council tax principles report made by the Secretary of State for
2012-13, which itself must be laid and approved before the local
government report for 2012-13. That meant a deadline of mid- to
late- January which (in paragraph 3.4 of the Explanatory Memorandum)
the Department stated could not be met without breaching the 21
day rule because of the "technical nature" of the Regulations.
1.4 The Committee asked the Department to explain
precisely why the technical nature of the Regulations occasioned
the failure to comply with the 21 day rule. In a memorandum printed
at Appendix 1, the Department states that the fact that the provision
made by the Regulations was unlikely to operate (because neither
of the two authorities to which they apply had any intention of
acting so as to bring about a council tax referendum) meant that
it "was necessary to prioritise allocation of resources to
the preparation of [other instruments]". The memorandum states
that that (together with the need to make the Regulations with
the principles report) led to the breach of the 21 day rule, for
which the Department apologises.
1.5 The Committee does not consider that lack of
resources is itself justification for failing to comply with the
21 day rule. It notes that, had the Regulations been made only
a couple of days earlier and laid promptly after making, the breach
could have been avoided. The Committee accordingly reports
the Regulations for an unjustified breach of the 21 day rule.
2
S.I. 2012/104: Reported for defective
drafting
M25 Motorway (Junctions 2 to 3) (Variable Speed
Limits) Regulations 2012 (S.I. 2012/104)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
2.2 The Regulations introduce variable speed limits
on part of the M25 Motorway system. Regulation 3 prohibits driving
a vehicle in excess of a variable speed limit sign "on a
section of a road" if the road is specified in the Schedule,
the vehicle has passed a variable speed limit sign, and "the
vehicle has not passed another [variable] speed limit sign indicating
a different speed limit or a traffic sign which indicates that
the national speed limit is in force" (regulation 3(2)(c)).
2.3 The Committee asked the Department for Transport
how that was intended to operate in relation to a series of signs
showing successively decreasing speed limits and how the intention
had been achieved. In a memorandum printed at Appendix 2, the
Department explains the intended operation of regulation 3(2)(c);
in particular, the memorandum says "Regulation 3(2)(c) caters
for the fact that speed limits may alter within a stretch of motorway
covered by the Regulations by creating different sections of road
for each new speed limit. As the vehicle moves from one speed
limit ("the previous speed limit") into another speed
limit ("the new speed limit") it moves into another
section of the road. The previous speed limit falls away and regulation
3(2)(b), read with regulation 3(1), apply the new speed limit."
2.4 This explanation suggests that a "section"
(a term not defined in the regulations) is a stretch of road subject
to a particular speed limit; but that would make regulation 3(2)(c)(i)
meaningless, as it would make it impossible to pass a "speed
limit sign indicating a different speed limit" while remaining
on the same "section" of road. Even if "section"
is given a wider meaning, however, regulation 3(2)(c) works no
better; because in the case of a series of different and decreasing
speed limits, when passing the later ones a driver will have passed
other signs indicating different speed limits, and regulation
3(2)(c) will therefore not be satisfied.
2.5 In the Committee's view, the problem is caused
by the introduction of what may have been an unnecessary concept
of "sections" of a road; in other words, the policy
indicated in the Department's memorandum could possibly have been
implemented by a proposition along the lines that a vehicle that
has passed a variable speed limit sign on a specified road must
not exceed that speed until it has passed another such sign setting
a higher limit or a sign re-applying the national limit.
2.6 The Department's memorandum argues that regulation
3 "comprises standardised wording which has been used in
numerous instruments imposing variable speed limits" and
that "it appears to be well understood by the enforcement
authorities". The Committee accepts that one is forced to
the conclusion that the intention of the regulation is as stated
by the Department's memorandum; literally read, however, the regulation
as drafted does not achieve the stated result.
2.7 The
Committee accordingly reports regulation 3(2) for defective drafting.
3
S.I. 2012/114: Reported for defective
drafting
Uplands Transitional Payment Regulations 2012
(S.I. 2012/114)
3.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
3.2 The Regulations implement various European Union
rules on support for rural development in less favoured areas,
in particular by defining the conditions of eligibility for uplands
transitional payment and specifying the rates at which it is to
be paid.
3.3 Regulation 5 makes provision for the rates of
payment in respect of various descriptions of "eligible forage
area". That notion is defined (in regulation 2) as such part
of "qualifying forage area" as is severely disadvantaged
land. Regulation 2 defines "qualifying forage area"
as "the claimed forage area" or (in some cases) a part
of it. "Claimed forage area" is defined as "land
included as forage land in a single payment scheme application
or related less favoured area allowance application". Regulation
2 does not define "forage land", though it does define
"forage area".
3.4 The Committee asked the Department for Environment,
Food and Rural Affairs to explain why, given that—
(a) the definition of "eligible forage area"
appears to be dependent on the definition of "qualifying
forage area",
(b) the definition of "qualifying forage area"
appears to be dependent on the definition of "claimed forage
area", and
(c) the definition of "claimed forage area"
appears to be dependent on the concept of "forage land",
the term "forage area" is defined by regulation
2 but the term "forage land" is not.
3.5 In a memorandum printed at Appendix 3, the Department
agrees that the definition of "qualifying forage area"
and (through it) that of "eligible forage area" are
dependent on the definition of "claimed forage area"
which is, in turn, dependent on the concept of "forage land".
The Department considers that no definition of the term "forage
land" is required given the terms of the definition of "claimed
forage area" and the inclusion of definitions of "single
payment scheme application" and "related less favoured
area allowance". The Department states that, if land is included
as forage land in a single payment scheme application or a related
less favoured area allowance application, it is "claimed
forage area". The Department, however, accepts that the term
"forage area" is not used as a separate term in the
Regulations and therefore should not have been defined. It apologises
for that error and undertakes to omit the definition when further
regulations are made next year.
3.6 The Committee accepts that, for the reason given
in the memorandum, no definition of "forage land" is
required. But, because of the inclusion of an unnecessary definition
of "forage area", the Committee reports regulation
2 for defective drafting, acknowledged by the Department.
4
S.I. 2012/148: Reported for unexpected
use of the power under which it is made
Non-Domestic Rating (Small Business Rate Relief)
(England) Order 2012 (S.I. 2012/148)
4.1 The Committee draws the special attention
of both Houses to this Order on the ground that it makes an unexpected
use of the power under which it is made.
4.2 The Order makes provision in relation to the
small business rate relief scheme in England from 1st
April 2012. Article 2 prescribes the conditions for eligibility
for relief under section 43(4A)(a) of the Local Government Finance
Act 1988 ("the 1988 Act"). Section 43(4A)(a), read with
section 44, provides that, in cases where a hereditament is eligible
for that relief, the daily amount of business rate for the hereditament
is calculated according to the formula (AxD)/(CxE), where A is
rateable value of the hereditament, D the small business non-domestic
rating multiplier, C the number of days in the financial year
and E an amount prescribed by order. Article 4, in exercise of
the power conferred by section 44(9) of the 1988 Act, prescribes
the amount of E in relation to days in the financial year beginning
with 1st April 2012.
4.3 The Committee asked the Department for Communities
and Local Government whether, by specifying the figure 5,000,000
as E in the case of hereditaments with a rateable value of not
more than £6,000, the provision made by paragraph (3) of
article 4 was tantamount to the granting of an exemption from
rates for such hereditaments and, if so, what the authority for
doing so was. In a memorandum printed at Appendix 4, the Department
acknowledges that specifying E as 5,000,000 means that the formula
in section 43(4A)(a) results in a chargeable amount that is, after
rounding, zero and thereby gives 100% relief. The Department states
that it does not consider this to be an exemption because the
ratepayer remains under a liability to pay the chargeable amount
for each chargeable day: it is just that that chargeable amount
is nil.
4.4 The Committee considers that a chargeable amount
of nil is the same thing as an exemption. Section 43 of the 1988
Act appears to envisage that there will be a chargeable amount
in respect of each chargeable day, even where subsection (4A)(a)
of the section applies. And the 1988 Act contains no provision
authorising exemption from the charge to be conferred by order.
Despite the existence of the precedent of a recent statutory instrument
cited in the memorandum, use of the power conferred by section
44(9) of the 1988 Act effectively to confer exemption appears
to the Committee to be unlikely to have been contemplated at the
time the 1988 Act was passed.
4.5 The Committee accordingly reports article
4 for unexpected use of the enabling power.
5
S.I. 2012/178: Reported for requiring
elucidation
Forest Law Enforcement, Governance and Trade
Regulations 2012 (S.I. 2012/178)
5.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they require
elucidation in one respect.
5.2 The Regulations make provision designed to enforce
a European Union Council Regulation (the "FLEGT Regulation")
establishing a licensing scheme for imports of timber into the
European Union, and a European Union Commission Regulation implementing
the FLEGT Regulation. The (UK) Regulations are made under section
2(2) of the European Communities Act 1972.
5.3 Regulation 12 modifies sections 50(4)(b) (penalty
for improper importation of goods) and 170(3)(b) (penalty for
fraudulent evasion of duty, etc.) of the Customs and Excise Management
Act 1979 in their application to "an offence committed in
connection with the restriction in Article 4(1) of the FLEGT Regulation",
by reducing the maximum period of imprisonment from 7 to 3 years.
5.4 The default rule for section 2(2) of the 1972
Act that any provision that might be included in primary legislation
is available (section 2(4)) is subject to Schedule 2. Paragraph
1 of Schedule 2 provides that instruments under section 2(2) may
not "create any new criminal offence punishable with imprisonment
for more than two years or punishable on summary conviction with
imprisonment for more than three months …". With that
in mind, and on the assumption that regulation 12 is in effect
creating criminal offences by applying existing offences to new
circumstances, the Committee asked the Department for Environment,
Food and Rural Affairs to explain why regulation 12 reduces the
maximum sentence to 3 years, and not to the 2-year maximum permitted
by paragraph 1 of Schedule 2 to the 1972 Act.
5.5 In a memorandum printed at Appendix 5, the Department
challenges the Committee's assumption that regulation 12 is in
effect creating offences. The Department argues that "The
criminal offence under [the specified provisions of the Customs
and Excise Management Act 1979] has existed since the FLEGT Regulation
came into force, since that Regulation is directly applicable
in domestic law. There is no provision in S.I. 2012/178 which
makes unlawful any previously lawful importation activity: any
extension to the factual circumstances in which the CEMA offences
could be committed occurred when the FLEGT Regulation came into
force, before this instrument was made."
5.6 Given sections 50(3) and 170(2) of the 1979 Act,
the accuracy of this analysis depends on whether the restrictions
imposed by the FLEGT Regulation are imposed by an "enactment".
In its memorandum, the Department does not argue that the FLEGT
Regulation is itself within the term "enactment" for
the purposes of the Customs and Excise Management Act 1979; but
it argues that "In this case, the 'enactment' is the [European
Communities Act 1972] giving effect to obligations under the FLEGT
Regulation". In this case, the Committee accepts the argument
that offences that automatically operate by reference to "enactments"
apply also in relation to European Union Regulations, as a result
of their being given direct legal effect in the United Kingdom
by section 2(1) of the European Communities Act 1972, which is
itself undoubtedly an "enactment", and notes that the
Department could have additionally prayed in aid the decision
of the Court of Appeal in R v Sissen (Henry Thomas) [2001]
1 W.L.R. 902 CA, which concerned section 170 of the Customs and
Excise Management Act 1979 and which decided that for the purposes
of that section, and the regulatory regime of that Act generally,
directly applicable European Union Regulations are "enactments".
5.7 In Sissen, the Court of Appeal considered
penalties and said as follows (para.27): "Section 2(2) does
not provide an exclusive route whereby European legislation takes
effect in domestic criminal law. The use of the 1979 Act, and
the treatment of the Council Regulations as enactments containing
restrictions or prohibitions within the 1979 Act, and thus subject
to that Act's normal penalties, is entirely appropriate for a
regulation under article 189 and section 2(1) European Communities
Act 1972."
5.8 It follows that, on the basis of the structure
of the 1979 Act and the case in question, the Committee accepts
on balance that there are no new circumstances to which the penalty
under consideration applies and that what has been done here amounts
in effect to no more than reduction of an existing penalty. That
appears to the Committee to be consistent with the enabling power,
given the width of section 2(4) of the European Communities Act
1972. The Committee accordingly reports regulation 12 on the
ground that it requires the elucidation provided in the Department's
memorandum as amplified in this Report.
6
S.I. 2012/213: Reported for defective
drafting
Transport Levying Bodies (Amendment) Regulations
2012 (S.I. 2012/213)
6.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in one respect.
6.2 The Regulations amend the Transport Levying Regulations
1992 ("the 1992 Regulations") so that they include express
references to integrated transport authorities and the Greater
Manchester Combined Authority. Regulation 4 amends regulation
3 of the 1992 Regulations so that integrated transport authorities
established by section 28(1) of the Local Government Act 1985
and the Greater Manchester Combined Authority are expressed to
be levying bodies to which the 1992 Regulations apply. Regulation
3 amends regulation 2 of the 1992 Regulations so that it defines
"council concerned" in relation to each variety of levying
body to which the 1992 Regulations apply. The amendment makes
provision not only in relation to integrated transport authorities
established by section 28(1) of the Local Government Act 1985
and the Greater Manchester Combined Authority but also in relation
to integrated transport authorities established by section 78
of the Local Transport Act 2008.
6.3 The Committee asked the Department for Transport
to explain why regulation 2 of the 1992 Regulations had been amended
by regulation 3 so as to include provision in relation to integrated
transport authorities established by section 78 of the Local Transport
Act 2008, given that they were not made levying bodies to which
the 1992 Regulations applied by the amendment made to regulation
3 of the 1992 Regulations by regulation 4.
6.4 In a memorandum printed at Appendix 6, the Department
explains that the reason for the discrepancy identified by the
Committee is that the amendment made by regulation 4 to regulation
3 of the 1992 Regulations should have extended the application
of the 1992 Regulations to both varieties of integrated transport
authorities. The Department explains that, because no integrated
transport authority has yet been established under section 78
of the Local Transport Act 2008, the error has not so far caused
difficulty. But the Department nonetheless apologises for the
error and undertakes to correct it at the first suitable opportunity.
6.5 The Committee accordingly reports regulation
4 for defective drafting, acknowledged by the Department.
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