9 January 2013 – Q&A on URN12/605&6
Stakeholder questions to BIS re URN12/605 & URN12/606
Pedlars are asking BIS various questions (in black) about this consultation to enable a considered response. The BIS replies are posted (in blue).
Question 1:
9 January 2013: to rachel.onikosi@bis.gsi.gov.uk
Dear Rachel,
I require yourself or someone in another department, such as the MoJ to answer this question, to enable me to respond to this consultation.
It is apparent that the proposed draft regulations would be implemented by using Section 2(2) European Communities Act 1972, and appear to confer ministerial power to repeal the Pedlars Acts and draft new regulation, by way of an SI. In reading URN12-605, points 1.67 to 1.71, those same powers are not being used to repeal or amend Private Acts.
House of Lords Paper 242, concludes that national exemption allowing pedlars to exercise their rights is paramount.
I await a reasonable explanation about this anomaly.
Simon
Source http://www.legislation.gov.uk/ukpga/1972/68/part/I
European Communities Act 1972
2 General implementation of Treaties.
(1)All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression [F19 “enforceable EU right”]F19 and similar expressions shall be read as referring to one to which this subsection applies.
(2)Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may [F20by order, rules, regulations or scheme]F20 , make provision—
(a)for the purpose of implementing any [F21EU obligation]F21 of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or
(b)for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;
and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the [F22objects of the EU]F22 and to any such obligation or rights as aforesaid.
In this subsection “designated Minister or department” means such Minister of the Crown or government department as may from time to time be designated by Order in Council in relation to any matter or for any purpose, but subject to such restrictions or conditions (if any) as may be specified by the Order in Council.
Reply from BIS:
8 February 2013
Dear Simon,
Please see below reply to your question. I am sorry for the delay in responding to you.
As you are aware, BIS is consulting on the repeal of the Pedlars Acts using section 2(2) of the European Communities Act (ECA) 1972 in order to ensure compliance with the European Services Directive. We will come to a conclusion once we have fully considered all the consultation responses. As the Pedlars Acts are pieces of national legislation for which BIS holds policy responsibility, we are duty bound to make changes to these Acts to comply with our European obligation.
In terms of local legislation however, it is the responsibility of local authorities to decide what amendments are required to their Private Acts in order to ensure these Private Acts are compliant with the Services Directive. The approach we have taken is to offer local authorities the opportunity to amend/repeal their legislation using our regulations rather than bringing forward their own Private Bills in parliament to affect these changes to their Private Acts.
We have not taken the approach of deciding for local authorities what provisions of their Private Acts must be amended /repealed as it is for the local authorities to provide the justifications (if challenged) to defend their legislative decisions. More generally, it would be difficult for Government to determine on behalf of local authorities what provisions of their Private Acts are non compliant (and therefore must be amended/ repealed), but what we have done is given local authorities some guidance in this area. As a statutory power making authority, local authorities are also obliged to comply with European law.
I hope the above is helpful.
Kind Regards,
Rachel Onikosi
9 February 2013
Dear Rachel,
Thank you for the reply.
The answer you have provided goes some way in answering my questions, but provides one possible perspective or interpretation of the law.
My understanding of the text from the legislation provided the minister with powers that enabled them to amend any legislation in order to unsure compatibility with European legislation, I did not read into the words anything that would not allow government to repeal or amend private law in order to unsure this.
Could you please provide me with the legal structure or parliamentary rules which prevents the department from doing so?
I would like to remind yourselves that it is quite clear from hansard that both houses are somewhat fed up with wasting time on this issue and that the departments policy will only compound the work the houses will have to do if local authorities decide not to take up changing legislation via the proposals of your department.
Not only that, pedlars will be forced to petition if allowed to any amendments to local acts. This could amount to an enormous burden on citizens and parliamentary time.
I will notify my MP Claire Perry of this situation as I find this matter now wholly unacceptable.
Best regards,
Simon Casey
14 February 2013
Dear Simon,
Thank you for your email.
I am currently liaising with legal on the issue and I will reply to you as soon as possible.
We are also finalising the response to the letter sent by Claire Perry MP.
Kind Regards,
Rachel Onikosi