House of Lords Delegated Powers and Regulatory Reform Committee Deregulation Bill Supplementary Memorandum from the Department for Transport and the Home Office, compiled by the Cabinet Office
Introduction
1. This Memorandum was prepared for the Delegated Powers and Regulatory Reform Committee (‘the Committee’) to supplement the Memoranda previously submitted on the 2nd July 2014 and the 27th October 2014. Both this and the original memoranda have been prepared to assist the Committee with its scrutiny of the Deregulation Bill (‘the Bill’.) The material for this Memorandum was prepared by the Department for Transport in relation to three new clauses to be inserted after clause 57 and by the Home Office in relation to an amendment of Schedule 18 of the Bill.
2. This Memorandum deals with new delegated powers that have arisen by way of proposed Government amendment.
Provisions which confer delegated powers
3. The new provisions and amended provision to be inserted in the Bill which confer delegated powers are identified below. The purpose of the delegated powers, and an explanation as to why the matter is to be left to delegated legislation and why the department has chosen a particular procedure, are set out in relation to each amendment.
a. First new clause to be inserted after clause 57 – powers to make regulations about motor racing on public roads: general.
b. Second new clause to be inserted after clause 57 – powers to make regulations about motor racing: road closures.
c. Third new clause to be inserted after clause 57 – powers to make regulations about motor racing: consequential amendments. d. Amendment to Schedule 18 paragraph 4 – power to make regulations about exports of poisons and explosive precursors from the United Kingdom.
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Territorial coverage
4. The motor racing amendment has the same extent as the legislation which it is amending. It applies differently to England and Wales on the one hand and to Scotland on the other. This is clearly explained in the entry.
5. The poisons amendment has the same extent as the legislation which it is amending, it therefore covers England, Wales and Scotland.
First new clause to be inserted after clause 57 by Lords Amendment – powers to make regulations about motor racing on public roads: general
Introduction
6. Section 12 (motor racing on public ways) of the Road Traffic Act 1988 provides that it is an offence to promote or take part in a race or trial of speed between motor vehicles on a public highway.
7. This new clause amends section 12 to allow promotion of and participation in races or trials of speed on public highways.
8. Legislative competence in respect of the subject matter of the 1988 Act is not devolved under either the Scotland Act 1988 or the Government of Wales Act 2006, although certain executive functions under the Act have been transferred. It is proposed to extend the executive functions of Scottish Ministers and Welsh Ministers for the purposes of the new clause and consents will be required accordingly.
9. Substantially different provisions will apply, on the one hand, to England and Wales; and, on the other, to Scotland.
10. The main features of the new system in England and Wales will be as follows. A motor race order will be made by a highway authority, based on an application made by the promoter of the event. The application may only be made with the prior approval of one of the motor sport governing bodies. Once a motor race order is made, it has the effect of dis-applying a specified range of road traffic legislation, set out in the Table in new section 12E of the 1988 Act. The list includes, for
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example, the offences concerning dangerous, careless and inconsiderate driving and the requirement to comply with speed limits.
11. In Scotland, a fundamentally different policy approach has been adopted. This is to accommodate the uncertain outcome of the motorsport event safety review announced by the Scottish Cabinet Secretary for Justice in consequence of the tragic events at the 2014 Jim Clark Memorial Rally.
12. Accordingly, different schemes of delegation will apply.
New sections 12B(1) and (6) to (8) of the Road Traffic Act 1988 as inserted by subsection (3) of the first new clause to be inserted after clause 57
Power conferred on: (1) the Secretary of State (2) the Welsh Ministers Power exercisable by: Regulations made by statutory instrument Parliamentary procedure: Negative Resolution
The effect of the provisions 13. Under new section 12B(1), a person who wishes to promote a race or trial of speed between motor vehicles on a highway in England and Wales may apply for a permit to a motor sport governing body authorised by regulations made by the ‘appropriate national authority’ to issue permits in respect of a race or trial of that kind.
14. Under new section 12B(6), the ‘appropriate national authority’ (in England, the Secretary of State and, in Wales, the Welsh Ministers) is required by regulations to list the motor sport governing bodies which may issue permits to promoters to apply for motor race orders.
15. Under new section 12B(7), these regulations may specify the kinds of races or trials of speed in respect of which each listed governing body may issue permits.
16. Under new section 12(B)(8), these regulations may provide that a listed governing body ceases to be authorised for this purpose if the rules of the body do not comply with specified requirements.
Justification of the delegation
17. The scope of the activities and the rules of relevant motor sport governing bodies, and the kinds of races or trials of speed that may be 3
promoted, are subject to change from time to time. It is not possible to predict with any certainty which organisations might be appropriate to be listed from time to time as motor sport governing bodies. Nor is it possible to predict with certainty the extent to which different bodies should issue permits in respect of different kinds of races or trials of speed which may be promoted from time to time. Finally, it is equally impossible to predict the rules which governing bodies should apply from time to time, for example, as regards the safe conduct of events and the eligibility of persons to participate in events (which may differ from the eligibility criteria applicable to drivers of motor vehicles on highways in normal circumstances).
18. Accordingly, instead of specifying on the face of the new clause the names or types of organisation which may issue permits, the kinds of races or trials of speed in respect of which each governing body may issue permits and the rules which each such body ought to apply, the ‘appropriate national authority’ is required or permitted (as may be appropriate) to make regulations for these purposes.
19. This means that any organisation which may from time to time wish to issue permits will be able to seek authorisation and potentially challenge a refusal. It will be possible to ensure that only the most appropriate organisations from time to time may issue permits in respect of each kind of race or trial of speed, depending on the circumstances. If necessary, it will also be possible to exercise control over the rules of relevant organisations to ensure that they are appropriate. Justification of the level of Parliamentary scrutiny 20. Regulations listing governing bodies and the detail of the administrative matters referred to above may vary substantially from one organisation or event to another and may require more or less frequent variation from time to time, depending on the circumstances. They would follow consultation in the normal way and are not expected to be contentious. Negative resolution is the default procedure under the 1988 Act and further Parliamentary scrutiny would be inappropriate.
New sections 12D(2) to (5) of the Road Traffic Act 1988 as inserted by subsection (3) of the first new clause to be inserted after clause 57
Power conferred on: Highway authorities Power exercisable by: Order Parliamentary procedure: N/A
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The effect of the provisions 21. New section 12D(2) provides that a highway authority may make a motor race order if satisfied as to the matters prescribed in that section. The effect of a motor race order is described in new section 12E.
22. New section 12D(3) prescribes certain information which must be specified or included in a motor race order.
23. New sections 12D(4) and (5) provide that a motor race order may include conditions which must be satisfied. Justification of the delegation 24. This delegation is required in order to enable a highway authority to make detailed local administrative provision for the circumstances in which specific races and trials of speed may be held. The detailed provision that may be required will vary significantly as between one event and another, depending upon the kind of event; the identity and rules of the relevant motor sport governing body; the location at which the event is being held; and the need to take into account the requirements of all relevant local stakeholders. Local highway authorities require extensive delegated powers in order to perform their functions effectively. Justification of the level of Parliamentary scrutiny 25. No Parliamentary scrutiny is proposed. Parliamentary scrutiny would be inappropriate given the local and event-specific nature of the matters to which these provisions relate.
New section 12D(3)(c) of the Road Traffic Act 1988 as inserted by subsection (3) of the first new clause to be inserted after clause 57
Power conferred on: (1) the Secretary of State for Transport
(2) the Welsh Ministers
Power exercisable by: Regulations made by statutory instrument
Parliamentary procedure: Negative Resolution
The effect of the provision
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26. New clauses 12D(3)(a) and (b) prescribe certain information which must be specified or included in a motor race order.
27. Under new section 12D(3)(c), the ‘appropriate national authority’ is given power by regulations to specify additional information which must be included in a motor race order.
Justification of the delegation
28. Experience may suggest that the inclusion of additional information in motor race orders would be helpful for those implementing (or affected by) these orders. It will be desirable to be able to respond to that experience.
Justification of the level of Parliamentary scrutiny
29. Regulations requiring the inclusion of additional information in motor race orders would respond to an expressed need for more detail, would follow consultation in the normal way and are not expected to be contentious. Negative resolution is the default procedure under the 1988 Act. Further Parliamentary scrutiny would be inappropriate.
New section 12E(4) of the Road Traffic Act 1988 as inserted by subsection (3) of the first new clause to be inserted after clause 57
Power conferred on: (1) the Secretary of State for Transport
(2) the Welsh Ministers
Power exercisable by: Regulations made by statutory instrument
Parliamentary procedure: Affirmative Resolution
The effect of the provision
30. New section 12E(3) provides that one of the effects of a motor race order is to dis-apply certain legislation which is listed in a Table. This legislation regulates motor vehicles and their drivers when driving on highways in normal circumstances but should not apply to a motor race or trial of speed (for example, compliance with speed limits and traffic signals).
31. New section 12E(4) gives the ‘appropriate national authority’ power by regulations to amend (subject to exceptions specified in new clause 6
12E(5)) the Table of legislation which is dis-applied by the making of a motor race order; and to provide that a dis-application is only effective for a specific purpose or if a specified condition is included in a motor race order.
Justification of the delegation
32. The Table contained in new clause 12E(3) lists all the legislation presently known to be appropriate for dis-application for the purpose of a motor race or trial of speed in England and Wales. However, experience of the new regime may demonstrate that other legislation not listed in the Table ought also to be dis-applied; or that legislation listed in the Table should in fact apply (or should only be dis-applied for particular purposes or subject to conditions included in a motor race order). In addition, legislation enacted after the passage of this Bill may require to be added to the Table.
Justification of the parliamentary Procedure
33. The affirmative procedure is proposed for the power to amend the Table of dis-applied legislation. This amounts to a Henry VIII power. The Committee have expressed their view that the default position for a power of that kind should be the affirmative procedure.
New sections 12G(1) to (3) of the Road Traffic Act 1988 as inserted by subsection (3) of the first new clause to be inserted after clause 57
Power conferred on: the Scottish Ministers
Power exercisable by: Regulations made by statutory instrument
Parliamentary procedure: Negative Resolution
The effect of the provisions
34. New section 12G(1) gives to the Scottish Ministers a broad power by regulations to authorise or make provision for authorising races or trials of speed on highways in Scotland.
35. New section 12G(2) provides that such regulations may specify the persons by whom authorisations may be given; limit the circumstances in which and the places in respect of which authorisations may be given; provide for authorisations to be subject to conditions; provide for 7
authorisations to cease to have effect in specified circumstances; and provide for the procedure to be followed in relation to applications for authorisations.
36. New section 12G(3) provides that such regulations may make different provision for different cases. Justification of the delegation
37. The findings and any associated recommendations of the motorsport event safety review announced by the Scottish Cabinet Secretary for Justice in consequence of the tragic events at the 2014 Jim Clark Memorial Rally are unlikely to be known before the Bill obtains Royal Assent. Accordingly, the Scottish Ministers require substantially greater flexibility to prescribe the matters referred to in new clauses 12G(1) to (3).
Justification of the level of Parliamentary scrutiny
38. Regulations which specify the detailed process of authorisation in Scotland would be responsive to the outcome of the motorsport event safety review in Scotland and in addition would follow consultation by the Scottish Ministers in the normal way. Negative resolution is the default procedure under the 1988 Act and, save to the extent that such regulations may concern the matters discussed below (which will be subject to affirmative resolution), it would be inappropriate to apply a higher level of Parliamentary scrutiny.
New section 12H(3) of the Road Traffic Act 1988 as inserted by subsection (3) of the first new clause to be inserted after clause 57
Power conferred on: the Scottish Ministers
Power exercisable by: Regulations made by statutory instrument
Parliamentary procedure: Affirmative Resolution
The effect of the provision
39. The only legislation which is dis-applied in Scotland (in addition to section 12(1) of the 1988 Act) on the face of the new clause, at new section 12H(3), are the offences concerning dangerous, careless and
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inconsiderate driving. These dis-applications benefit participants in the first instance.
40. New section 12H(3) provides for other categories of persons specified in regulations to benefit from these dis-applications.
Justification of the delegation
41. As explained above, the findings and any associated recommendations of the motorsport event safety review announced by the Scottish Cabinet Secretary for Justice in consequence of the tragic events at the 2014 Jim Clark Memorial Rally are unlikely to be known before the Bill obtains Royal Assent. Accordingly, the Scottish Ministers require substantially greater flexibility, in this case, to determine the extent to which categories of persons other than participants should benefit from new section 12H(3).
Justification of the level of Parliamentary scrutiny
42. The affirmative procedure is proposed for this power because it is in effect a Henry VIII power. The Committee have expressed their view that the default position for any power of that kind should be the affirmative procedure.
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New section 12H(4) of the Road Traffic Act 1988 as inserted by subsection (3) of the first new clause to be inserted after clause 57
Power conferred on: the Scottish Ministers
Power exercisable by: Regulations made by statutory instrument
Parliamentary procedure: Affirmative Resolution
The effect of the provision
43. New section 12H(4) enables the Scottish Ministers by regulations to dis-apply (or to apply subject to modification) specified categories of other legislation which are described generically rather than specifically in new section 12H(5). However, the Scottish Ministers may not dis- apply or modify the legislation specified in new section 12H(6).
Justification of the delegation
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44. Again, as explained above, the findings and any associated recommendations of the motorsport event safety review announced by the Scottish Cabinet Secretary for Justice in consequence of the tragic events at the 2014 Jim Clark Memorial Rally are unlikely to be known before the Bill obtains Royal Assent. Accordingly, the Scottish Ministers require substantially greater flexibility, in this case, to determine which legislation ought to be dis-applied or modified for the purpose of a race or trial of speed in Scotland.
Justification of the level of Parliamentary scrutiny
45. The affirmative procedure is proposed for this power because it is in effect a Henry VIII power. The Committee have expressed their view that the default position for any power of that kind should be the affirmative procedure.
New section 12H(7) of the Road Traffic Act 1988 as inserted by subsection (3) of the first new clause to be inserted after clause 57
Power conferred on: the Scottish Ministers
Power exercisable by: Regulations made by statutory instrument
Parliamentary procedure: Affirmative Resolution
The effect of the provision
46. New section 12H(7) gives power to the Scottish Ministers by regulations to amend section 16A of the Road Traffic Regulation Act 1984 to enable road closure orders made by a traffic authority under that section for the purpose of an authorised race or trial of speed to suspend statutory provisions in addition to those specified in section 16A(11) of that Act.
Justification of the delegation
47. Again, as explained above, the findings and any associated recommendations of the motorsport event safety review announced by the Scottish Cabinet Secretary for Justice in consequence of the tragic events at the 2014 Jim Clark Memorial Rally are unlikely to be known before the Bill obtains Royal Assent. Accordingly, the Scottish Ministers require substantially greater flexibility, in this case, to devolve to local
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traffic authorities the ability to suspend legislation which may not be dis-applied or modified by means of the exercise of the power under section 12H(4).
Justification of the level of Parliamentary scrutiny
48. The affirmative procedure is proposed for this power because it is in effect a Henry VIII power. The Committee have expressed their view that the default position for any power of that kind should be the affirmative procedure.
New section 12H(8) of the Road Traffic Act 1988 as inserted by subsection (3) of the first new clause to be inserted after clause 57 Power conferred on: the Scottish Ministers Power exercisable by: Regulations made by statutory instrument Parliamentary procedure: Affirmative Resolution
The effect of the provision 49. New section 12H(8) gives power to the Scottish Ministers by regulations to specify persons other than participants in respect of whose conduct the promoter of an event may incur civil liability pursuant to that section. Justification of the delegation 50. Once again, as explained above, the findings and any associated recommendations of the motorsport event safety review announced by the Scottish Cabinet Secretary for Justice in consequence of the tragic events at the 2014 Jim Clark Memorial Rally are unlikely to be known before the Bill obtains Royal Assent. Accordingly, the Scottish Ministers require substantially greater flexibility, in this case, to determine the extent to which promoters of races and trials of speed should be liable for the conduct of categories of persons other than promoters and participants. Justification of the level of Parliamentary scrutiny 51. The affirmative procedure is proposed for this power because it is in effect a Henry VIII power. The Committee have expressed their view 11
that the default position for any power of that kind should be the affirmative procedure.
Second new clause to be inserted after clause 57 by Lords Amendment – powers to make regulations about motor racing: road closures
Subsection (2) of the second new clause (Motor racing: road closures) to be inserted after clause 57
Power conferred on: Traffic authorities
Power exercisable by: Order
Parliamentary procedure: Not applicable
The effect of the provision
52. Sub-section (2) extends the existing power of traffic authorities under section 16A of the Road Traffic Regulation Act 1984 by order to close roads temporarily in connection with certain events and for that purpose to suspend or vary the provisions of traffic regulation orders and certain statutory provisions, such that the power will apply to races or trials of speed authorised pursuant to the first new clause.
Justification of the delegation
53. It is necessary to extend the existing powers of local traffic authorities to make an order under section 16A of the 1984 Act because that provision provides at present that such an order may not be made in relation to any race or trial of speed.
Justification of the level of Parliamentary scrutiny
54. No parliamentary scrutiny applies to the existing power. It is not appropriate that any should apply by reason of the extension.
Subsection (3) of the second new clause (Motor racing: road closures) to be inserted after clause 57
Power conferred on: Traffic authorities
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Power exercisable by: Order
Parliamentary procedure: Not applicable
The effect of the provision
55. Sub-section (3) extends the existing power of local traffic authorities under section 16A of the Road Traffic Regulation Act 1984 by order to suspend certain statutory provisions for the purpose of temporary road closures in connection with certain events, such that the power will apply to additional provisions of primary legislation which may require disapplication by a local traffic authority for the purpose of a race or trial of speed authorised by the first new clause in England and Wales.
Justification of the delegation
56. The extension of the existing power of traffic authorities under section 16A of the 1984 Act by order to suspend additional provisions of primary legislation relates to provisions which are more appropriately capable of dis-application on a discretionary basis at local level, depending on local circumstances.
Justification of the level of Parliamentary scrutiny
57. No parliamentary procedure applies to the existing power. It is not proposed that any should apply by reason of the extension. Parliamentary scrutiny would be inappropriate given the local matters to which the legislation in question applies, the dis-application of which may vary from event to event, depending upon the circumstances.
Third new clause to be inserted after clause 57 by Lords Amendment – powers to make regulations about motor racing: consequential amendments
Subsection (6) of the third new clause (Motor racing: consequential amendments) to be inserted after clause 57
Power conferred on: the Secretary of State
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Power exercisable by: Regulations made by statutory instrument
Parliamentary procedure: Negative Resolution
The effect of the provision
58. Sub-section (6) gives power to the Secretary of State to repeal any prior local Act which makes provision for authorising races or trials of speed in England and Wales.
Justification of the delegation
59. It is necessary to provide power to repeal local Acts in England and Wales which make provision for authorising races or trials of speed in order to avoid the duplication of regulatory regimes which are not consistent with the new legislation, particularly with regard to the process of authorising races or trials of speed, the basis upon which relevant laws are dis-applied and the liabilities imposed upon promoters and participants. Each such Act will require careful scrutiny prior to any repeal. Any such repeal must be conducted selectively; and, under sub-section (8), only after appropriate prior consultation with affected local stakeholders.
Justification of the level of Parliamentary scrutiny
60. Regulations repealing local Acts will be subject to the duty to consult contained in sub-section (8). They are not expected to be contentious as the races or trials of speed which they authorise should be capable of being authorised by or under the new provisions. Although this is in effect a Henry VIII power, it is specific rather than general and its purpose is to avoid legislative duplication.
Subsection (10) of the third new clause (Motor racing: consequential amendments) to be inserted after clause 57
Power conferred on: the Scottish Ministers
Power exercisable by: Regulations made by statutory instrument
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Parliamentary procedure: Negative Resolution
The effect of the provision
61. Subsection (10) gives power to the Scottish Ministers to repeal any prior local Act which makes provision for authorising races or trials of speed in Scotland.
Justification of the delegation
62. It is necessary to provide power to repeal local Acts in Scotland which make provision for authorising races or trials of speed in order to avoid the duplication of regulatory regimes which are not consistent with the new clause, particularly with regard to the process of authorising races or trials of speed, the basis upon which relevant laws are dis-applied and the liabilities imposed upon promoters and participants. Each such Act will require careful scrutiny prior to any repeal. Any such repeal must be conducted selectively; and, under sub-section (12), only after appropriate prior consultation with affected local stakeholders.
Justification of the level of Parliamentary scrutiny
63. Regulations repealing local Acts would be subject to the duties to consult contained in sub-section (12). They are not expected to be contentious as the races or trials of speed which they authorise should be capable of being authorised by or under the new provisions. Although in effect Henry VIII powers, they are specific rather than general and their purpose is to avoid legislative duplication.
Amendment to Schedule 18 paragraph 4 of the Bill -power to modify section 3A of the Poisons Act 1972 - Poisons and Explosives Precursors
Power conferred on: The Secretary of State Power exercisable by: Regulations made by statutory instrument Parliamentary procedure: Negative Resolution
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Introduction 64. This is a new power, by which the Secretary of State may by regulations make provision modifying new section 3A of the Poisons Act 1972 so far as it applies to any supplies that involve despatch of a regulated substance (as defined) to Northern Ireland or export of it from the United Kingdom.
The effect of the provision 65. The effect of this is to enable the Secretary of State to make provision in secondary legislation akin to that contained in Regulation 5 of the Control of Explosives Precursors Regulations 2014. These regulations implement Regulation (EU) No 98/2013 on the marketing and use of explosives precursors which makes no reference to exports to countries outside of the EU and its provisions are in principle strictly aimed at transactions/possession/use within the territory of Member States. The amendments to the Poisons Act made by Schedule 18 are intended to mirror in relation to regulated substances those provisions contained within the Control of Explosives Precursors 2014 (which will likely be revoked in due course).
Justification of the delegation 66. Whilst it appears that members of the general public in third countries are excluded from the scope of Regulation (EU) No 98/2013 and thus from the restrictions it imposes, the ability to make provision in the Poisons Act about the export of regulated substances from the UK and despatch of the same to Northern Ireland using secondary legislation affords greater flexibility to take account of both guidance from the Commission on the scope of Regulation (EU) No 98/2013 and other prevailing factors that may influence whether and to what extent it is appropriate to regulate exports of regulated substances.
Justification of the level of Parliamentary scrutiny 67. Regulations will be subject to the negative resolution procedure. The power contained in new section 10 of the Poisons Act is exercisable by statutory instrument and subject to annulment. The level of scrutiny will be identical to that already in place in relation to all other regulation making powers contained in the amendments to the Poisons Act. There is no reason to alter the level of scrutiny here.
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DEPARTMENT FOR TRANSPORT
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HOME OFFICE
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CABINET OFFICE
31 October 2014
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ANNEX 1 Amendment – first, second and third new clauses to be inserted after clause 57 of the Bill
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ANNEX 2 Amendment – Amendment to Schedule 18 paragraph 4
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