Restrictions
Section 3: Preconditions
51.Section 3 imposes conditions which the Minister must consider to be satisfied before he can make an order containing provision under section 1(1) or 2(1).
52.The conditions set out in subsection (2) apply (where relevant) to provision made under sections 1(1) or 2(2) which is not merely restating an enactment (as defined in subsection (5)).
53.There are six conditions set out in subsection (2).
The first condition is that there are no non-legislative solutions which will satisfactorily remedy the difficulty which the order is intended to address. An example of a non-legislative solution might be the issuing of guidance about a particular legislative regime.
The second condition is that the effect of the provision made by the order is proportionate to its policy objective. A policy objective might be able to be achieved in a number of different ways, some of which may be far more onerous than others and may be considered to be a disproportionate means of securing the desired outcome. The Minister must consider that this is not the case, and that there is an appropriate relationship between the policy aim and the means chosen to achieve it.
The third condition is that the provision made by the order, taken as a whole, strikes a fair balance between the public interest and the interests of the persons adversely affected by the order. So it will be possible to make an order which will have an adverse effect on the interests of one or more persons only if the Minister is satisfied that it will also have beneficial effects which are in the public interest. Whenever an order imposes or increases a burden for a person, it adversely affects their interests, so the Minister must take into account any new or increased burdens when considering whether or not this condition is met.
The fourth condition is that the provision made by the order does not remove any necessary protection. The notion of necessary protection can extend to economic protection, health and safety protection, and the protection of civil liberties, the environment and national heritage. Protections which would have been thought to be necessary in the past may no longer be considered necessary.
The fifth condition is that the provision made by the order will not prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise. This condition recognises that there are certain rights that it would not be appropriate to take away from people using an order, and has certain parallels with the concept of 'legitimate expectation'. Any right conferred or protected by the European Convention on Human Rights is a right which a person might reasonably expect to keep.
The sixth condition is that the provision made by the order is not constitutionally significant. This condition would allow orders to amend enactments which are considered to be constitutionally significant, but only if the amendments are not themselves constitutionally significant.
54.The Minister is also required to set out in the explanatory document which he must lay before Parliament (section 14) why he considers that these conditions are met.
55.Where provision made under section 1(1) or 2(1) is merely restating an enactment, the six conditions listed in subsection (2) do not apply. However subsections (3) and (4) have the effect that a Minister may only make provision of this type in an order if he is satisfied that the provision would make the law more accessible or more easily understood (for example, by consolidating disparate pieces of legislation or restating existing provisions in accordance with modern drafting practices).
56.The meaning of the term “to restate” is given in subsection (5). This also applies in relation to sections 4 to 7.
Section 4: Subordinate legislation
57.Section 4 places certain restrictions on the ability of orders under this Part to confer or transfer a function of legislating. The definition of “function of legislating” is given by subsection (7).
58.Subsection (1) provides that a function of legislating can only be conferred on, or transferred to, a person within one of the following three categories. These are:
a Minister of the Crown. (This is subject to subsections (3) to (5).)
any person on or to whom functions are conferred or have been transferred by an enactment (for example, local authorities, or regulatory bodies).
a body which, or the holder of an office which, is created by the order. This will enable an order which is creating a new body or office (under section 1(7)(b) or 2(5)(a)) and transferring other functions to that body or office, at the same time to confer on that body or office a function of legislating.
59.Subsection (2) explicitly prevents an order making provision authorising the further delegation of any function of legislating.
60.In the case that a provision confers a function of legislating on a Minister of the Crown, this is restricted by the conditions set out in subsections (4) and (5). The condition in subsection (4) is that the Minister must exercise the function of legislating which has been conferred on him by making a statutory instrument. The condition in subsection (5) is that such a statutory instrument must be subject to either the negative resolution procedure or the affirmative resolution procedure.
61.It will be for the Minister making the order conferring or transferring the function, to decide which of these is appropriate in the particular case. Where the negative resolution procedure is to apply, subsection (5)(a) provides that the procedure set out in section 5(1) of the Statutory Instruments Act 1946 will apply to the statutory instrument. This procedure is that the instrument shall be laid before Parliament after being made and shall be annulled if, within 40 days of laying, either House makes a resolution that it should be annulled. These conditions do not apply where an order confers a function of legislating on someone other than a Minister, for example where the function of making bylaws is conferred upon a local authority.
62.It will be necessary for the Minister, when laying an explanatory document before Parliament in accordance with the requirements of section 14, to explain his reasons for conferring a new function of legislating and to justify the procedural requirements he has specified in relation to it.
63.The conditions in section 4 do not apply to provision in an order which is merely restating an existing enactment. So this section would not prevent an order restating a provision which itself conferred a function of legislating but which did not comply with the restrictions in this section.
Section 5: Taxation
64.This section prohibits an order made under this Part from imposing, abolishing or varying any tax.
65.It also contains a separate power enabling the Treasury to make regulations to provide tax neutrality in relation to a transfer of property, rights and liabilities which may arise from the merger of bodies by or under an order made under Part 1. This will enable the Treasury to make appropriate tax provision, at the appropriate time to ensure that a transfer does not give rise to a tax change or confer a tax advantage on either party. For the purposes of this power the relevant taxes are income tax, corporation tax, capital gains tax, stamp duty and stamp duty reserve tax.
66.Regulations made under this section are to be made by statutory instrument, subject to annulment in pursuance of a resolution of the House of Commons.
Section 6: Criminal penalties
67.This section sets limits on the order-making powers in relation to criminal offences and penalties. An order under this Part cannot create a new offence with penalties exceeding those set out in subsections (1) to (3). Nor may it increase the penalty for an existing offence so as to exceed those limits. Subsections (4) and (5) contain transitional provisions until the coming into force of the relevant provisions of the Criminal Justice Act 2003.
68.The maximum penalty that can be imposed when an offender is convicted on indictment is two years imprisonment.
69.The maximum custodial sentence that can be imposed when an offender is convicted summarily is:
in the case of a summary offence tried in England and Wales, fifty one weeks;
in the case of an either way offence tried in England and Wales, twelve months;
in the case of Scotland or Northern Ireland, six months.
70.However, if an order is made before the day on which section 281(5) of the Criminal Justice Act 2003 comes into force, the order must provide that for any summary offence which is committed before that day, any reference in the order to a term of imprisonment of fifty one weeks must be read as a reference to the current lower maximum of six months: subsection (4).
71.Similarly, if an order is made before the day on which section 154(1) of the Criminal Justice Act 2003 comes into force, the order must provide that for any offence triable either way which is committed before that day, any reference in the order to a term of imprisonment of twelve months must be read as a reference to the current lower maximum of six months: subsection (5).
72.The maximum fine that can be imposed when an offender is convicted summarily is provided for by subsections (1)(b)(ii) and (3).
73.The restrictions in this section do not apply where the provision made is merely restating an enactment.
Section 7: Forcible entry etc
74.This section prevents an order under this Part from making provision authorising forcible entry, search or seizure, or compelling the giving of evidence. This does not, however, prevent an order from extending an existing power to do any of those things, but it can only do so where the power is extended for purposes similar to those to which the power applied before the order was made. For example, there might be an existing power to search certain buildings in certain circumstances. An order which is making provision for the purpose of removing or reducing burdens, might greatly reduce the circumstances in which a search of those buildings could take place. The order might, however, also extend the existing power in certain limited respects, for purposes similar to the purpose of the original power.
75.The restriction on making provision authorising forcible entry, search or seizure, or compelling the giving of evidence does not apply to provision which is merely restating an enactment.
Section 8: Excepted enactments
76.This section provides that orders made under Part 1 cannot make provision amending or repealing any provision of Part 1 itself, or of the Human Rights Act 1998.
Section 9: Scotland
77.This section prohibits an order made under Part 1 from making provision which would be within the legislative competence of the Scottish Parliament if contained in an Act of that Parliament. So it prevents the amendment or repeal of Acts of the Scottish Parliament, instruments made under them, or Acts of the Westminster Parliament which make provision about devolved matters (having been passed prior to the passing of the Scotland Act 1998 or, in some cases, afterwards). However, section 9 makes clear that this prohibition does not affect the powers to make consequential, supplementary, incidental or transitional provision in sections 1(8) and 2(7).
Section 10: Northern Ireland
78.This section prevents an order made under Part 1 from amending or repealing any Northern Ireland legislation (within the meaning of section 24 of the 1978 Act), except under the powers to make consequential, supplementary, incidental or transitional provision (sections 1(8) and 2(7)).
Section 11: Wales
79.This section requires the agreement of the Assembly for any provision in an order which confers a function upon the Assembly, modifies or removes a function of the Assembly, or restates a provision conferring a function upon the Assembly.
