Thirty-Sixth Report of Session 2005–06

House of Lords House of Commons Joint Committee on Statutory Instruments Thirty-sixth Report of Session 2005–06 Drawing special attention to: Constitutional Reform Act 2005 (Supplementary Provisions) Order 2006 (S.I. 2006/1693) Export Control (Security and Para-military Goods) Order 2006 (S.I. 2006/1696) Ordered by The House of Lords to be printed 25th October 2006 Ordered by The House of Commons to be printed 25th October 2006 HL Paper 260 HC 35-xxxvi Published on 1 November 2006 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited £0.00 Joint Committee on Statutory Instruments The Joint Committee on Statutory Instruments (JCSI) is appointed to consider all statutory instruments made in exercise of powers granted by Act of Parliament. Instruments not laid before Parliament are included within the Committee's remit; but local instruments and instruments made by devolved administrations do not fall to be considered by JCSI unless they are required to be laid before Parliament. The Joint Committee is empowered to draw the special attention of both Houses to an instrument on any one of a number of grounds specified in the Standing Order under which it works; or on any other ground which does not impinge upon the merits of the instrument or the policy behind it. Current membership House of Lords Lord Brougham and Vaux CBE (Conservative) Lord Dykes (Liberal Democrat) Baroness Gale (Labour) Lord Gould of Brookwood (Labour) Lord Greenway (Cross Bench) Lord Howard of Rising (Conservative) Lord Mancroft (Conservative) House of Commons David Maclean MP (Conservative, Penrith and The Border) (Chairman) Dr Roberta Blackman-Woods MP (Labour, City of Durham) Mr Peter Bone MP (Conservative, Wellingborough) Michael Jabez Foster MP (Labour, Hastings and Rye) Mr David Kidney MP (Labour, Stafford) Mr John MacDougall MP (Labour, Central Fife) David Simpson MP (Democratic Unionist, Upper Bann) Powers The full constitution and powers of the Committee are set out in House of Commons Standing Order No. 151 and House of Lords Standing Order No. 74, available on the Internet via www.parliament.uk. Publications The reports of the Committee are published by The Stationery Office by Order of both Houses. All publications of the Committee are available on the Internet from www.parliament.uk. Committee staff The current staff of the Committee are Mick Hillyard (Commons Clerk), Kath Kavanagh (Lords Clerk), and Jacqueline Cooksey (Committee Secretary) Contacts All correspondence should be addressed to the Clerk of the Joint Committee on Statutory Instruments, Delegated Legislation Office, 7 Millbank, London SW1P 3JA. The telephone number for general inquiries is: 020 7219 2830; the Committee's e–mail address is: [email protected]. 3 Contents Report Page Instruments reported 4 1 S.I. 2006/1693: reported for purported retrospective effect leading to doubtful vires 4 2 S.I. 2006/1696: reported for defective drafting in one respect 6 Instruments not reported 6 Annex 7 Appendix 1 12 S.I. 2006/1693: memorandum from the Department for Constitutional Affairs 12 Appendix 2 17 S.I. 2006/1696: memorandum from the Department of Trade and Industry 17 Appendix 3 18 S.R. 2006/285: memorandum from the Department for Constitutional Affairs 18 4 Instruments reported The Committee has considered the following instruments, and has determined that the special attention of both Houses should be drawn to them on the grounds specified. 1 S.I. 2006/1693: reported for purported retrospective effect leading to doubtful vires Constitutional Reform Act 2005 (Supplementary Provisions) Order 2006 (S.I. 2006/1693) 1.1 The Committee draws the special attention of both Houses of Parliament to this Order on the grounds that it purports to have retrospective effect without express authority in the enabling Act leading to a doubt as to the vires to make the instrument. 1.2 This Order seeks to remedy certain undesired consequences of the Constitutional Reform Act 2005 (Commencement No. 5) Order 2006 (S.I. 2006/1014) (“the commencement Order”). That Order brought into force on 3 April 2006 certain provisions of the Constitutional Reform Act 2005 which amend the Local Land Charges Act 1975 as regards charging for conducting official searches in England. The provisions included in particular – (a) the insertion of a new section 13A into the 1975 Act providing for registering authorities (among other things) to specify their own fees for conducting searches; and (b) the bringing to an end of the power conferred on the Lord Chancellor by section 14(1)(h) of that Act to prescribe the fees in question by rules. 1.3 Those provisions were not intended to come into force until 2007 after the Lord Chancellor had issued guidance to relevant authorities on fee setting (new section 13A makes provision for guidance but does not require it). The inadvertent early commencement of these provisions was not discovered at the time. As a consequence most, if not all, fees collected by relevant authorities since 3 April 2006 were not validly collected, as they depended on rules made under section 14(1)(h). 1.4 S.I. 2006/1693 purports to legitimise fees already collected since 3 April 2006 and provides that, until the SI expires on 1 April 2007, fees are to continue to be those applicable before the commencement Order was made. This involves modifying the effect of section 13A of the 1975 Act for a limited period after it has come into force in full and making retrospective provision to modify the effect of that section prior to S.I. 2006/1693 coming into force. 1.5 The enabling powers for S.I. 2006/1693 are in section 143 of the Constitutional Reform Act 2005. They enable the Lord Chancellor by order to make – (a) any supplementary, incidental or consequential provision, and (b) any transitory, transitional or saving provision, 5 which he considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to, any provision of the Act. 1.6 In a memorandum printed at Appendix 1 the Department for Constitutional Affairs fully acknowledges that S.I. 2006/1693 makes an unusual use of the enabling power. The Department submits that the Order is intra vires on the basis that article 2 makes transitory provision; that article 3 makes supplementary, transitional and saving provision retrospectively; and that article 4 makes supplementary, transitional and saving provision prospectively. 1.7 The Committee agrees that article 2 makes transitory provision as it provides for the Order to cease to have effect on 1 April 2007. The Committee’s concern relates to the vires for articles 3 and 4 which are the substantive provisions. The Department argues that the Order is “supplementary” to the amendment to the 1975 Act made by the 2005 Act in that it extends and strengthens the effect of the amendment in respect of registering authorities; that without the Order the registering authorities would be in a position they are not ready to deal with and as such the bare effect of the legislation needs supplementing. The Committee does not find this argument convincing. The amendment in question made by the 2005 Act was already 100% effective – that is the problem. Regulations 3 and 4 seek effectively to negate the effect of the amendment made by the 2005 Act until 1 April 2007; the Committee considers this to go beyond the making of “supplementary provision”. 1.8 As for regulations 3 and 4 making “transitional” or “saving” provision, the Department itself recognises that this can only be the case in so far as the Order can have retrospective effect. The Committee considers that the absence of an express provision in the enabling Act authorising retrospective provision leads to a doubt as to the vires of regulation 3 and that this doubt is not resolved by the arguments in the Department’s memorandum. Even if (as the Department argues) it is likely that the Order would put all concerned in the position they thought they were in, that cannot alone, in the absence of authority, securely justify the use of secondary legislation powers in lieu of primary legislation (under which the desired retroaction could clearly be achieved). Arguably, people from whom fees have been collected by relevant authorities between 3 April 2006 and the date when S.I. 2006/1693 came into force are put in a worse position than they were previously, because fees collected from them during that period (otherwise than in compliance with section 13A of the 1975 Act) were unlawful. During that period they were under no legal obligation to pay those fees. If there is no power to make retrospective provision in regulation 3 it is difficult to see how the power to make transitional or saving provision can be used in regulation 4 to modify the provision of section 13A of the 1975 Act once it has already come fully into force. 1.9 The Committee accordingly reports this instrument on the grounds that it purports to have retrospective effect without express authority in the enabling Act leading to a doubt as to the vires to make the instrument. 6 2 S.I. 2006/1696: reported for defective drafting in one respect Export Control (Security and Para-military Goods) Order 2006 (S.I. 2006/1696) 2.1 The Committee draws the special attention of both Houses of Parliament to these Regulations on the ground that they are defectively drafted in one respect. 2.2 Article 11 substitutes a new article 21(9) in the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003. In a memorandum printed at Appendix 2 the Department of Trade and Industry accepts that sub-paragraph (a) of the new article 21(9) contains unnecessary wording.

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