March 6th, 2014 by James Goudie KC

There is an area within Harrogate known as the Stray.  It is proposed as the finish of the first stage of the Tour de France 2014.  There is a snag.  The Stray is governed by the Harrogate Stray Act 1985 (“the 1985 Act”).  The Stray is owned by the Duchy of Lancaster and managed by the Harrogate Borough Council (“the Council”).  Council wishes to use GPOC under Section 1 of the Localism Act 2011 (“the 2011 Act”), but this is prevented by Section 2 of the 2011 Act, on account of the 1985 Act.  The Council asked the Secretary of State (“the SoS”) to use his powers under Section 5 of the 2011 Act to make an Order temporarily (23 June – 8 July 2014) to disapply or amend parts of the 1985 Act to enable the Stray to be used for the sole purpose of hosting the Tour de France.  The SoS has, following a 6 week consultation, agreed.  He has issued a draft.  The Harrogate Stray Act 1985 (Tour de France) Order 2014, to be laid before Parliament, in accordance with Section 7(2) of the 2011 Act, and an accompanying Explanatory Document.  The SoS is satisfied that the draft Order serves a purpose under Section 5(1) of the 2011 Act, that the conditions under Section 6(2) have been met, and that the appropriate consultation has been carried out in accordance with Section 5(7).

This is the first time the SoS has used his powers under Section 5 of the 2011 Act.  Appendix A to the Explanatory Document details the Parliamentary scrutiny procedure that follows the laying of the draft Order (the negative resolution procedure).

With respect to GPOC, the Explanatory Document stated that the Council had presented a “compelling case” to host the Tour de France 2014: “the general power of competence is a broad power and the economic merits of hosting the Tour are significant”.  GPOC applied, because an individual with full capacity would have the power to hold a cycle race on someone else’s land, subject to complying with any applicable legal restrictions and obtaining the landowner’s consent.

The SoS considered whether to seek to amend the 1985 Act.  However, this would likely take more time than is available and involve more public resource, including more Parliamentary time.  The 2011 Act was expressly drafted to allow for the temporary repeal by Order of primary legislation, and so is “ideally suited to the purpose”.

The Explanatory Document observes that no precedent is set for any future events on the Stray.  If the Council wished again temporarily to disapply Sections of the 1985 Act in order to use GPOC to host an event on the Stray, another Order under the 2011 Act would be required again to amend the 1985 Act for that purpose, and the same statutory process would apply to any such future 2011 Act Order.

The SoS’s decision making process was governed by considerations of “proportionality” (para 3.5 of the Explanatory Document), “fair balance” between public and private interests (para 3.6), “necessary protection” (para 3.7), and “reasonable expectation” of being able to exercise “rights and freedoms” (para 3.8).  Further, the SoS is satisfied that the draft Order under the 2011 Act is compatible with ECHR rights (para 3.16) and with legal obligations arising from membership of the EU (para 3.17).

Chapter 4 of the Explanatory Document sets out in detail the consultation undertaken. Those who supported the proposal included the Duchy of Lancaster.

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