QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal, Civil Division
MR JUSTICE LLOYD JONES
| The Queen on the application of Parker
|- and -
|Bradford Crown Court
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David Pannick QC and Jason Coppel (instructed by Treasury Solicitors) for the Defendant
Crown Copyright ©
Lord Justice Waller :
"(1) This section applies in a case where, owing to the presence of a mechanically propelled vehicle on a road [my underlining], an accident occurs by which –
(a) personal injury is caused to a person other than the driver of that mechanically propelled vehicle , or
(b)damage is caused –
(i) to a vehicle other than that mechanically propelled vehicle . . .
(2) The driver of a mechanically propelled vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle.
(3) If for any reason the driver of the mechanically propelled vehicle does not give his name and address under subsection (2) above, he must report the accident.
(4) A person who fails to comply with subsection (2) or (3) above is guilty of an offence.
(5) If, in a case where this section applies by virtue of subsection (1)(a) above, the driver of a motor vehicle does not at the time of the accident produce such a certificate of insurance or security, or other evidence, as is mentioned in section 165(2) of this Act –
(a) to a constable, or
(b) to some person who, having reasonable grounds for so doing, has required him to produce it
The driver must report the accident and produce such a certificate or other evidence. . . .
(6) To comply with a duty under this section to report an accident or to produce such a certificate of insurance or security, or other evidence, as is mentioned in section 165(2)(a) of this Act, the driver –
(a) must do so at a police station or to a constable, and
(b) must do so as soon as is reasonably practicable and, in any case, within twenty-four hours of the occurrence of the accident.
(7) A person who fails to comply with a duty under subsection (5) above is guilty of an offence, but he shall not be convicted by reason only of a failure to produce a certificate or other evidence if, within seven days after the occurrence of the accident, the certificate or other evidence is produced at a police station that was specified by him at the time when the accident was reported."
"The Secretary of State for the Environment, Transport and the Regions, being a Minister designated for the purposes of s.2(2) of the European Communities Act 1972 in relation to compulsory insurance in respect of, and other means of providing for, civil liability in relation to motor vehicles and trailers, in exercise of the powers conferred by that section hereby makes the following Regulations:- ."
"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 by regulations, make provision –
(a) for the purpose of implementing any Community obligation 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 objects of the Communities 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."
"The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; . . ."
"1.- (1) The powers conferred by section 2(2) of this Act to make provision for the purposes mentioned in section 2(2)(a) and (b) shall not include power –
(a) to make any provision imposing or increasing taxation; or
(b) to make any provision taking effect from a date earlier than that of the making of the instrument containing the provision; or
(c) to confer any power to legislate by means of orders, rules of procedure for any court or tribunal; or
(d) to create any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine or more than £400 (if not calculated on a daily basis) or with a fine of more than £5 a day. . . . .
2.- (1) Subject to paragraph 3 below, where a provision contained in any section of this Act confers power to make regulations (otherwise than by modification or extension of an existing power), the power shall be exercisable by statutory instrument.
(2) Any statutory instrument containing an Order in Council or regulations made in the exercise of a power so conferred, if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House."
The context in which the Regulations must be placed
"If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter, after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice."
"Each Member State shall, subject to Article 4, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territories is covered by insurance. The extent of the liability covered and the terms and conditions of the cover shall be determined on the basis of these measures."
"From what has been stated above, it follows that it is clear that the United Kingdom is obliged to transpose Article 3(1) of the First Motor Directive into national law. Furthermore, the United Kingdom has not contested this obligation.
Also, the Court of Justice has consistently held that the Member State cannot rely on provisions, practices or situations arising in its own legal order to justify its failure to respect the obligations and time limits laid down by a Directive . . .
For the above reason the Commission "having by letter of 14th 1996 given the United Kingdom government the opportunity to submit its observations and having examined the reply from the United Kingdom government, hereby declares as its reasoned opinion . . . that the United Kingdom has failed to fulfil its obligations under this Directive . . . The Commission requests the United Kingdom to take the measures necessary to comply with this reasoned opinion within two months following notification thereof."
"(1) Explain the basis on which the department reaches the conclusion (expressed in explanatory note) that the United Kingdom is under a Community obligation to extend the compulsory insurance regime to other public places when the House of Lords, in its judicial capacity, has clearly held that it is not.
(2) If, on the other hand, the department justifies the making of these Regulations as a matter arising out of or related to (but not required by) the obligation to establish a compulsory insurance regime, the use of a vehicle on the road, explain the basis for its conclusion that the extent of the regime is such a matter."
"2. Article 3(1) of Council Directive 72/166/EEC requires each Member State to take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in their territory is covered by insurance. Member States are expressly allowed a discretion as to the extent of the liability covered and the terms and conditions of cover. Although Article 3(1) has been clarified to some extent by subsequent directives, the extent of a Member State's discretion (if any) as to the area within its territory to which it may apply the compulsory insurance regime has never been established.
3. Given the House of Lords' interpretation of the directives the Department acknowledges that it cannot be currently argued in the English courts that there is a Community obligation to expand the obligation in Part VI of the Road Traffic Act 1988 beyond "roads" in the narrow sense of that expression. However, the European Commission in February this year issued a Reasoned Opinion to the effect that, by excluding car parks and other off-road places from the area where a motorist is required to be insured, the United Kingdom had failed to fulfil its obligations under Article 3(1). It expressed the view that a Member State's discretion did not extent to places where a vehicle must be insured, merely to the financial limits of the cover and the formalities to which a claimant may be made subject. This Opinion followed extensive correspondence with the Commission on the matter during the period 1994 to 1996 at a time when the department believed that the expression "road" covered car parks and other off-road places to which the public had access.
4. If the grounds on which the Reasoned Opinion was issued are wrong, it is nevertheless clear that the object of the directives is to ensure that EC nationals are covered by motor insurance when travelling in other Member States and that Member States have a discretion as to the extent of the liability covered. Therefore, irrespective of which interpretation (the Commission's or the House of Lords') is right, the Department takes the view that it is open to the Secretary of State to rely on the vires of section 2(2)(b) of the European Communities Act 1972 to extend the compulsory insurance requirement as being a matter arising out of or related to the subject matter of the directives."
"One test as to whether or not a Directive is properly implemented by a statutory instrument is to compare the Directive with the purportedly implementing statutory instrument. If there is nothing in the latter which is not explicitly contemplated in the Directive (whether as an option or not) then it is a case falling within s.2(2)(a). In such a case the statutory instrument is made solely for the purpose and solely for enabling implementation. This is such a case."
Applying that test, he submitted there could be no question of the regulations implementing an obligation under the Directives.
"I am clear that the Attorney General's argument on this aspect, supported by Miss Clark for Animal, is to be preferred. Section 2(2)(a) is concerned primarily with the bringing into force of Community obligations arising from the Treaty. Those obligations are primarily the Directives themselves and do not suggest a line by line approach to the Directive. It makes little sense to divide things which the Member State must do from those where it may not have to do, if it chooses to do something else. To hold that transitional provisions where the United Kingdom has a choice to take advantage of retaining the old law for a period needs primary legislation, whereas the rest of the Directive did not, would be illogical as this case demonstrates. Transitional provisions keep in play the legislation which has been scrutinised – why, one asks rhetorically, should Parliament have thought that further primary legislation should be introduced to keep primary legislation in place at the same time as allowing the same primary legislation to be repealed by regulations?"
"I do not consider that to hold that the making of these transitional provisions came within section 2(2)(a) has the effect of making section 2(2)(b) devoid of content. There is a distinction between providing something which, although it is a choice, is a choice which the implementation of the Directive requires you to make, and one which is not so required, but which has the effect of tidying things up or making closely related original choices which the Directive does not necessarily require. Section 2(2)(b) is confined by its words and context. Redefinition in the abstract is to be avoided. I would refrain, therefore, from deciding whether the passage in the judgment of Otton LJ in R v Secretary of State for Trade and Industry ex part Unison  ICR 1003 at 1014 F-H, quoted by Waller LJ in paragraph 34 of this judgment, correctly interprets and applies section 2(2)(b). But I respectfully agree with Waller LJ that the opinion of Lord Johnson in Addison v Denholm Ship Management (UK)  ICR 770 at 785 C-F, quoted by Waller LJ in paragraph 35 of his judgment, is not correct."
"The Deputy Judge took the view that s.2(2)(a) is limited to implementation of an essential, non-optional, part of a Directive – only an irreducible core (if one can be found) is covered. Anything which requires a policy decision, including the choice of how to exercise an option specifically conferred by the Directive, requires a full Act of Parliament. This would apply however trivial the choice might be. The Deputy Judge's view would require a close examination of each part of a Directive to decide which bits are "core" and which only optional. I do not think s.2(2)(a) is limited in that way at all. Nor in many cases would the test even be workable – suppose for instance an "essential" portion which required for its working a choice of two alternatives set out in the Directive. Are neither or both "core"? If neither then the Directive could not be implemented by a regulation at all."
Conclusion on these arguments
Mr Justice Lloyd Jones: I agree.