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].

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

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,

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.

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. The Department apologises for this drafting error and states that it will amend the error at the first available opportunity. The Committee reports article 11 for defective drafting, acknowledged by the Department.

Instruments not reported

The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

A memorandum from the Department for Constitutional Affairs in connection with the Planning (National Security Directions and Appointed Representatives) (Amendment) Rules (Northern Ireland) 2006 (S.R. 2006/285) is printed at Appendix 3.

Annex

Instruments to which the Committee does not draw the special attention of both Houses

● denotes that the written evidence submitted in connection with the instrument is printed with this Report ○ denotes written evidence has been submitted but not printed

Draft Instruments requiring affirmative approval

Draft S.I. Association of Law Costs Draftsmen Order 2006

Draft S.I. National Assembly for Wales (Transfer of Functions (No.2) Order 2006

Draft S.I. Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2006

Draft S.I. Representation of the People (England and Wales) (Amendment) (No. 2) Regulations 2006

Draft S.I. Review of Polling Districts and Polling Places (Parliamentary Elections) Regulations 2006

Draft S.I. Service Voters’ Registration Period Order 2006

Instruments subject to annulment

S.I. 2006/1785 Education (Student Support) (European Institutions) (Amendment) Regulations 2006

S.I. 2006/1810 Firefighters’ Pension Scheme (Amendment) (England) Order 2006

S.I. 2006/1811 Firefighters’ Compensation Scheme (England) Order 2006

S.I. 2006/1812 Education (Assisted Places) (Amendment) (England) Regulations 2006

S.I. 2006/1813 Education (Assisted Places) (Incidental Expenses) (Amendment) (England) Regulations 2006

S.I. 2006/1832 Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006

S.I. 2006/1833 Design Right (Semiconductor Topographies) (Amendment) Regulations 2006

S.I. 2006/1837 National Health Service (Dental Charges) Amendment Regulations 2006

S.I. 2006/1838 Inquiry Rules 2006

S.I. 2006/1847 Civil Procedure Act 1997 (Amendment) Order 2006

S.I. 2006/1869 Smoke Control Areas (Authorised Fuels) (England) (Amendment) Regulations 2006

S.I. 2006/1879 Plant Health (Import Inspection Fees) (England) Regulations 2006

S.I. 2006/1917 Child Abduction and Custody Act 1985 (Jersey) Order 2006

S.I. 2006/1919 Proscribed Organisations (Name Changes) Order 2006

S.I. 2006/1926 Secretary of State for Communities and Local Government Order 2006

S.I. 2006/1927 Transfer of Functions (Statutory Instruments) Order 2006

S.I. 2006/1928 Medicines for Human Use (Clinical Trials) Amendment Regulations 2006

S.I. 2006/1929 Protection of Children and Vulnerable Adults and Care Standards Tribunal (Review of Disqualification Orders) Regulations 2006

S.I. 2006/1930 Protection of Children and Vulnerable Adults and Care Standards Tribunal (Amendment) Regulations 2006

S.I. 2006/1932 Divorce etc. (Pension Protection Fund) Regulations 2006

S.I. 2006/1934 Dissolution etc. (Pension Protection Fund) Regulations 2006

S.I. 2006/1935 Railways (Substitute Road Services) (Exemptions) Order 2006

S.I. 2006/1937 Passenger and Goods Vehicles (Recording Equipment) (Tachograph Card) Regulations 2006

S.I. 2006/1952 Medicines for Human Use (National Rules for Homoeopathic Products) Regulations 2006

S.I. 2006/1968 Social Landlords (Permissible Additional Purposes) (England) Order 2006

S.I. 2006/1971 Safety of Sports Grounds (Designation) (No. 3) Order 2006

S.I. 2006/2000 Gas Act 1986 (Exemption from the Requirement for an Interconnector Licence) Order 2006

S.I. 2006/2002 Electricity Act 1989 (Exemption from the Requirement for an Interconnector Licence) Order 2006

S.I. 2006/2005 Central Leeds Learning Federation (Change to School Session Times) Order 2006

S.I. 2006/2009 Education (Student Loans) (Repayment) (Amendment) Regulations 2006

S.I. 2006/2015 Police and Criminal Evidence Act 1984 (Application to the Armed Forces) Order 2006

S.I. 2006/2055 Merchant Shipping (Fees) Regulations 2006

S.I. 2006/2059 European Cooperative Society (Involvement of Employees) Regulations 2006

S.I. 2006/2064 Electricity (Offshore Generating Stations) (Applications for Consent) Regulations 2006

S.I. 2006/2065 Export Control (Liberia) Order 2006

S.I. 2006/2066 Vaccine Damage Payments (Specified Disease) Order 2006

S.I. 2006/2075 Environmental Stewardship (England) and Organic Products (Amendment) Regulations 2006

S.I. 2006/2078 European Cooperative Society Regulations 2006

S.I. 2006/2080 Family Proceedings (Amendment) (No. 2) Rules 2006

S.I. 2006/2081 Day Care and Child Minding (Registration Fees) (England) (Amendment) Regulations 2006

S.I. 2006/2082 Quiet Lanes and Home Zones (England) Regulations 2006

S.I. 2006/2083 Traffic Signs (Amendment) Regulations 2006

S.I. 2006/2125 Medicines for Human Use (Fees Amendments) Regulations 2006

S.I. 2006/2126 Animals and Animal Products (Import and Export) (England) (Amendment) Regulations 2006

S.I. 2006/2133 Education (School Teachers’ Pay and Conditions) (No. 2) Order 2006

S.I. 2006/2134 Road Traffic (Permitted Parking Area and Special Parking Area) (County of Wiltshire) (Districts of Kennet and North Wiltshire) Order 2006

S.I. 2006/2135 Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006

S.I. 2006/2137 Crime and Disorder Act 1998 (Relevant Authorities and Relevant Persons) Order 2006

S.I. 2006/2139 Education (New Secondary School Proposals) (England) Regulations 2006

S.I. 2006/2142 Central Leeds Learning Federation (Change to School Session Times) (Revocation) Order 2006

S.I. 2006/2144 Social Security (Adult Learning Option) Amendment Regulations 2006

S.I. 2006/2145 Commons (Severance of Rights) (England) Order 2006

S.I. 2006/2164 Measuring Instruments (Exhaust Gas Analysers) Regulations 2006

S.I. 2006/2168 Immigration (Notices) (Amendment) Regulations 2006

S.I. 2006/2170 Immigration (Continuance of Leave) (Notices) Regulations 2006

S.I. 2006/2171 National Health Service (Travel Expenses and Remission of Charges) Amendment (No. 2) Regulations 2006

S.I. 2006/2178 Misuse of Drugs (Amendment No. 3) Regulations 2006

S.I. 2006/2181 Police Act 1997 (Criminal Records) (Amendment No. 2) Regulations 2006

S.I. 2006/2189 Education (Pupil Exclusions and Appeals) (Miscellaneous Amendments) (England) Regulations 2006

S.I. 2006/2190 Transport Security (Electronic Communications) Order 2006

S.I. 2006/2192 Pig Carcase (Grading) (Amendment) (England) Regulations 2006

S.I. 2006/2198 Education (Disqualification Provisions: Bankruptcy and Mental Health) (England) Regulations 2006

S.I. 2006/2212 Hadley Learning Community (School Governance) Order 2006

S.I. 2006/2214 Teachers’ Pensions (Miscellaneous Amendments) (No. 2) Regulations 2006

S.I. 2006/2215 School Crossing Patrol Sign (England and Wales) Regulations 2006

S.I. 2006/2216 Teachers (Compensation for Redundancy and Premature Retirement) (Amendment) Regulations 2006

S.I. 2006/2227 Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) (Amendment) (England) Regulations 2006

S.I. 2006/2228 European Communities (Recognition of Qualifications and Experience) (Third General System) (Amendment) Regulations 2006

S.I. 2006/2239 Race Relations Code of Practice (Housing) (Appointed Day) Order 2006

S.I. 2006/2285 Charges for Residues Surveillance Regulations 2006

S.I. 2006/2290 Proscribed Organisations Appeal Commission (Human Rights Act 1998 Proceedings) Rules 2006

S.I. 2006/2298 England Rural Development Programme (Closure of Project-Based Schemes) Regulations 2006

Instruments subject to annulment (Northern Ireland)

● S.R. 2006/285 Planning (National Security Directions and Appointed Representatives) (Amendment) Rules (Northern Ireland) 2006 S.R. 2006/302 Salaries (Comptroller and Auditor General) Order (Northern Ireland) 2006 S.R. 2006/310 Divorce etc. (Pension Protection Fund) Regulations (Northern Ireland) 2006 S.R. 2006/311 Dissolution etc. (Pension Protection Fund) Regulations (Northern Ireland) 2006 S.R. 2006/313 Police Service of Northern Ireland Reserve (Full-time) Severance Regulations 2006

Instruments not subject to Parliamentary proceedings laid before Parliament

S.I. 2006/1909 Belarus (Restrictive Measures) (Overseas Territories) Order 2006 S.I. 2006/1911 Air Navigation (Overseas Territories) (Amendment) Order 2006 S.I. 2006/1913 Turks and Caicos Islands Constitution Order 2006 S.I. 2006/2165 Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2006

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. 2006/1835 Criminal Justice Act 2003 (Commencement No.13 and Transitional Provision) Order 2006

S.I. 2006/1871 Serious Organised Crime and Police Act 2005 (Commencement) (No. 7) Order 2006

S.I. 2006/1918 Postal Services (Jersey) Order 2006

S.I. 2006/1920 Education (Inspectors of Schools in England) (No.2) Order 2006

S.I. 2006/1933 Transport Act 2000 (Commencement No. 12) Order 2006

S.I. 2006/1964 Energy Act 2004 (Commencement No. 7) Order 2006

S.I. 2006/1967 Disability Discrimination Code of Practice (Services, Public Functions, Private Clubs and Premises) (Appointed Day) Order 2006

S.I. 2006/1972 Electoral Administration Act 2006 (Commencement No. 1 and Transitional Provisions) Order 2006

S.I. 2006/1997 Human Tissue Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2006

S.I. 2006/2010 Electricity (Prepayment Meter) Regulations 2006

S.I. 2006/2011 Gas (Prepayment Meter) Regulations 2006

S.I. 2006/2053 Hovercraft (Fees) (Amendment) Regulations 2006

S.I. 2006/2072 Primary Care Trusts (Establishment and Dissolution) (England) Order 2006

S.I. 2006/2073 Medway Primary Care Trust (Establishment) Amendment Order 2006

S.I. 2006/2074 Middlesbrough Primary Care Trust (Establishment) Amendment Order 2006

S.I. 2006/2076 City and Hackney Primary Care Trust (Establishment) Amendment Order 2006

S.I. 2006/2077 Primary Care Trusts Establishment Orders (Amendment) (England) Order 2006

S.I. 2006/2129 Education Act 2005 (Commencement No. 2 and Transitional Provisions and Savings) Order 2006

S.I. 2006/2136 Drugs Act 2005 (Commencement No. 4) Order 2006

S.I. 2006/2149 Finance Act 2006, section 18, (Appointed Day) Order 2006

S.I. 2006/2166 Specified Diseases (Notification and Slaughter) Order 2006

S.I. 2006/2169 Human Tissue Act 2004 (Commencement No.5 and Transitional Provisions) (Amendment) Order 2006

S.I. 2006/2182 Serious Organised Crime and Police Act 2005 (Commencement No.9 and Amendment) Order 2006

S.I. 2006/2211 Animal Gatherings (England) Order 2006

S.I. 2006/2226 Immigration, Asylum and Nationality Act 2006 (Commencement No. 2) Order 2006

S.I. 2006/2268 Electoral Administration Act 2006 (Commencement No. 1 and Transitional Provisions) (Amendment) Order 2006

Appendix 1

S.I. 2006/1693: memorandum from the Department for Constitutional Affairs

Constitutional Reform Act 2005 (Supplementary Provisions) Order 2006 (S.I. 2006/1693)

The Committee has requested a memorandum on the following: Explain in detail how the Department considers that each provision of this Order falls within the enabling power in section 143 of the Constitutional Reform Act 2005.

Summary

The Department submits that: (a) article 2 of the Order is within section 143 in that it makes transitory provision; (b) article 3 is within section 143 in that it makes supplementary, transitional and saving provision retrospectively; (c) article 4 is within section 143 in that it makes supplementary, transitional and saving provision prospectively.

Background

Paragraphs 82 to 85 of Schedule 4 to the Constitutional Reform Act 2005 (“the 2005 Act”), which amongst other things inserted a new section 13A into the Local Land Charges Act 1975 (“the 1975 Act”), were commenced on 3rd April 2005.

The commencement of these provisions was in error. The Constitutional Reform Act 2005 (Commencement No. 5) Order 2006 mistakenly included paragraphs 82 to 85 of Schedule 4 in a range of other provisions which were commenced, and the different treatment intended for those paragraphs was overlooked. The Department recognises that this oversight was a serious administrative error for which the Department apologises.

The intention was that these provisions should have been commenced only when registering authorities were in a position to specify fees under new section 13A of the 1975 Act, and after the Lord Chancellor had issued guidance in this respect.

Although section 13A does not prescribe that guidance has to be issued prior to fees being set, it was always intended and understood by the registering authorities that that section would not be commenced before such guidance had been issued. This guidance is currently in preparation but is not yet finalised and has not yet been subject to the planned period consultation, so the Department is not currently in a position to issue it.

Bringing section 13A into force meant that registering authorities were immediately placed under a duty of which they were unaware and in respect of which they have been unable to comply. In the absence of the guidance to be issued by the Lord Chancellor, registering authorities would be under a considerable burden in setting fees in accordance with section 13A; it was never intended that they should have to operate under that burden.

As the Department is not yet in a position to issue guidance and the authorities are not in a position without such guidance to be able properly to set their fees, the current Order has been drafted to remedy the situation as quickly and effectively as possible. It does this by giving full effect to the intention behind the amendments to the 1975 Act by virtue of the 2005 Act, both with respect to the future fees to be charged by registering authorities, and in validating the fees which those authorities have charged since 3rd April 2006.

Section 143 of the Constitutional Reform Act

Subsection (1) of section 143 (supplementary provision) of the Constitutional Reform Act 2005 provides that:

“(1) The Lord Chancellor may by order make— (a) any supplementary, incidental or consequential provision, and (b) any transitory, transitional or saving provision, which he considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to, any provision of this Act.”

Subsection (2) of section 143 provides that:

“(2) An order under this section may in particular— (a) provide for any provision of this Act which comes into force before another such provision has come into force to have effect, until that other provision has come into force, with such modifications as are specified in the order; (b) amend or repeal any of the following— (i) an enactment other than one contained in an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed; (ii) subordinate legislation other than subordinate legislation made under an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed; (iii) any other instrument or document, including a prerogative instrument; (c) amend or repeal an enactment or subordinate legislation, whenever passed or made, in consequence of section 59.”

The Department would argue that the provisions of the Order fall within “supplementary”, “transitory”, “transitional” and “saving” provision for the purposes of paragraphs (a) and (b) of subsection (1).

The Order is supplementary to the amendment to the Local Land Changes Act 1975 provided by paragraph 83 of Schedule 4 to the Constitutional Reform Act 2005 in that it extends and strengthens the effect of the amendment in respect of registering authorities. 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 Order is transitory in that it is specified to last only until 1st April 2007. It is transitional because it retrospectively provides for a period of transition between the regime in existence prior to 3rd April 2006 and the full effect of the amendments coming into force, and is saving in that it preserves the effect of the legislation which was in effect prior to the commencement.

The Department would argue that the Order only falls within the transitional and saving element of subsection (1) in so far as it can have retrospective effect. It has to save the previous existing legal regime retrospectively because as of the date the Order was made that regime had otherwise ceased to exist for almost three months. In respect of the retrospective effect of the Order, please see further below.

The Order makes provision which the Lord Chancellor considered to be “necessary” and “expedient for the purposes of” and “for giving full effect to” the amendment made by paragraph 83 of Schedule 4 to the 2005 Act. Not to have made the Order would have led to an effect which was neither desired nor intended, because it was never the intention to commence the legislation in its entirety at the time it was commenced. The full effect of the reform would have been achieved by commencing these provisions only at a time when everything was in place to enable the registering authorities to comply with their duty under section 13A. The Lord Chancellor considered that in order to remedy the situation and to give full effect to this intention, it was necessary and expedient to make provision as is provided by this Order.

Articles 3 and 4 of the Order provide for the supplemental, transitional and saving exercise of the power by modifying the effect of section 13A of the Local Land Charges Act 1975. The words “in particular” in subsection (2) introduce a series of examples and create a non-exhaustive list of circumstances where the power in section 143 may be exercised. The Department is of the opinion that although any power to modify the effect of primary legislation would be restrictively construed by a court, the present Order is within the scope of matters contemplated by subsection (2).

Subsection (2)(b) provides that an order under section 143 may amend, amongst other things, primary legislation passed in the same or an earlier session as the session in which the 2005 Act was passed.

The current Order does not go this far, and merely modifies the effect, for a limited period of time, of section 13A of the Local Land Charges Act 1975 as amended by paragraphs 82 to 85 of Schedule 4 to the 2005 Act. As such, the Department submits that the power is exercised in a way within the scope of subsection (2) of section 143. The Department would argue that the limit of the power in subsection (2) is the amendment of primary legislation of the type there set out. By providing for a time-limited modification of the effect of primary legislation, the present Order is within this limit and so within the vires of the section.

Retrospective effect

The retrospective effect of the Order is necessary in order to complete the supplementary provision, provide for a complete transitional and saving provision, and thereby give full effect to the objective of providing a fee scale which is to apply under section 13A of the 1975 Act.

Although there is a presumption of statutory interpretation against a power being exercised in a retrospective manner, that presumption may be rebutted either expressly or by necessary implication. The Department submits the power in section 143, in these circumstances, may be exercised retrospectively by necessary implication. The power in section 143 is not limited by when it may be exercised; it is not tied into making a commencement order under section 148 of the 2005 Act and, unlike section 148, an order under section 143 is subject to either negative or affirmative parliamentary procedure.

These two factors, that a transitional and savings provision is not limited as to when it may be made, and the parliamentary procedural safeguards which are in place, imply that the power may exceptionally be exercised retrospectively. The Department submits that these circumstances are exceptional and warrant the exercise of the power in this way. The retrospective element of the Order puts all affected by section 13A into the position they would have been in prior to 3rd April 2006 and, most importantly, into the position since 3rd April which they believed themselves to be in. Fees collected between 3rd April and 27th June which would have been ultra vires the 1975 Act have therefore been validly collected, so the registering authorities have been properly paid for the service they have provided. Members of the public have been charged a fee they expected to be charged in respect of a service for which they have received full value. No party involved has been disadvantaged and put into a worse position than that they would have been in prior to 3rd April. As such, the Department does not consider that arguments against retrospective operation of the power are applicable in these circumstances.

In drafting the Order the Department has been mindful to keep any retrospective element to a minimum. The Order was drafted so as to come into force on the day after the day on which it was made, which had the effect of breaching the 21-day rule and of bringing the Order into force before it was laid. The Department takes the 21-day rule

seriously and only intentionally breaks it where absolutely necessary. The Department is of the opinion that minimising the retrospective effect of the Order, rather than adding 21 days to the retrospective effect which would have been necessary had the rule been adhered to, was the preferable course. The relevant notifications were given to the Speaker of the House of Commons and the Speaker of the House of Lords with respect to the Order coming into force before being laid.

The Department recognises that this is an unusual use of this power, and accepts that the power should be exercised retrospectively only in exceptional circumstances. Moreover, the Department would concede that the power in section 143 is not wide enough to enable general modifications to be made to provisions of the 2005 Act following a significant period of being in force. Ordinarily, the commencement of a provision in the Act will have given full effect to the way that provision is intended to operate, so the power in section 143 would not be applicable and no modifications would be expedient or necessary.

The Department is of the view that this is a completely exceptional set of circumstances, and cannot envisage the use of this power in this way in respect of any other provisions of the 2005 Act.

Department for Constitutional Affairs 11 August 2006

Appendix 2

S.I. 2006/1696: memorandum from the Department of Trade and Industry

Export Control (Security and Para-military Goods) Order 2006 (S.I. 2006/1696)

1. The Clerk to the Committee requested as follows in a letter dated 19th July; Article 11 substitutes a new article 21(9) in the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003. Given that the wording in the concluding part of new article 21(9) applies in respect of both sub-paragraphs (a) and (b), explain why sub-paragraph (a) includes the words from "as it applies to" to the end of that sub-paragraph.

2. The Department accepts as unnecessary the words from " as it applies to" to the end of sub-paragraph (a) of new article 21(9) as substituted by article 11.This is a drafting error for which the Department apologises. The Department will amend the error at the first available opportunity.

The Department of Trade and Industry 21.07.06

Appendix 3

S.R. 2006/285: memorandum from the Department for Constitutional Affairs

Planning (National Security Directions and Appointed Representatives) (Amendment) Rules (Northern Ireland) 2006 (S.R. 2006/285)

1. The Committee has requested a memorandum on the following point–

This instrument substitutes a new definition of “electronic communication” in S.R. 2006 No. 215, which was acknowledged by the Department in its memorandum dated 20 June 2006 to the Committee to be erroneously drafted. Has the Department made arrangements for copies of S.R. 2006 No. 285 to be made available free of charge to all known recipients of S.R. 2006 No. 215 (see Statutory Instrument Practice, paragraph 3.4.11)? If not, explain why not. If so, explain why the instrument does not bear a headnote to that effect (see Statutory Instrument Practice, paragraph 3.4.12).

2. It is accepted that the instrument should have borne a headnote in accordance with paragraph 3.4.12 of Statutory Instrument Practice and the Department undertakes to ensure that such an omission does not recur in respect of future instruments for which the Department may be responsible.

3. We can, however, confirm that all known recipients of S.R. 2006 No. 215 have received copies of S.R. 2006 No. 285 free of charge.

8 August 2006 Department for Constitutional Affairs