Joint Committee on Statutory Instruments Fourth Report


Memorandum by the Department of the Environment, Transport and the Regions


  1. The Committee has asked for a memorandum on three matters, as follows-

(1)  Regulation 12(1) empowers the Secretary of State to revoke a leaded petrol permit if the holder "has gone into liquidation". Explain-

  (a)  whether this expression is intended to cover the case of an individual (if permitted to be a holder) becoming bankrupt, as well as that of corporate insolvency;

  2. No. This phrase is only intended to cover corporate insolvency. In the Department's view it is unlikely that an individual would apply for an leaded petrol permit and, in view of the requirement of regulation 10(5)(e) for the Secretary of State to take into account an applicant's ability to discharge its obligations, it is less likely an individual would be granted one. In the event that a permit was granted to an individual who went bankrupt the permit could be revoked when he failed to comply with its terms and conditions (regulation 12(1)(a)). The working of the permit scheme is to be kept under review and initial permits are only to be issued for one year. If necessary, regulation 12(1)(b) will be amended to cover individuals becoming bankrupt.

  (b)  given the wide range of legal events which form part of the insolvency process provided for by and under the Insolvency Act 1986, precisely what stages in the different processes (whether initial or final) are intended to be covered by the quoted words.

  3. The words quoted are intended to have the same meaning as they are given by section 247 of the Insolvency Act 1986, namely, to refer to a company passing a resolution for voluntary winding up or the court making an order for a company's winding up at a time when it has not gone into liquidation by passing such a resolution. The words are therefore only intended to include these final stages of the insolvency process.

(2)  In Schedule 2, paragraph 1(1) obliges the permit holder to ensure that [(b)] the amount of petrol distributed each month remains within a specified percentage of that part of the distribution statement which is provided in accordance with paragraph 8(c) of Schedule 1. Is the quantity of leaded petrol a percentage of which is not to be exceeded intended to be the total tonnage stated in the applicant's Schedule 1 statement under paragraph 6(c)?

  4. No, paragraph 1(1)(b) operates by requiring the distribution to keep within a percentage of a percentage, rather than a percentage of a specified tonnage. This is so that the provision fulfils its intended purpose (of ensuring widespread and continuous supply) even in those cases where the permit authorises distribution or sale of a lesser amount of petrol than was specified in the statement provided under paragraph 6(c) of Schedule 1 on the making of the application.

(3)  In view of the requirement in paragraph 2.101A of the Statutory Instrument Practice in the case of instruments made both under a domestic power and under section 2(2) of the European Communities Act 1972, indicate which provisions of these Regulations are made under the Clean Air Act powers.

  5. Paragraph 2.101A of the Statutory Instrument Practice requires identification of provisions which do not implement Community obligations. The Department considered that the Regulations as a whole (even where not relying solely on the powers conferred by section 2(2) of the European Communities Act 1972) implement Directive 98/70/EC, with regulations 8 to 16 relating to the derogation provided by Article 3(7). Accordingly, the Department feels it may have been misleading to have identified any provisions as not implementing a Community obligation. Regulations 1 to 7 and 17 and 18 are made in part under the Clean Air Act powers.

7 December 1999

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