House of Lords Delegated Powers and Regulatory Reform Committee
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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. 1 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 2 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 4 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 5 26.