Joint Committee on Statutory Instruments Twenty-Sixth Report


TWENTY-SIXTH REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.[1]

ORDERED TO REPORT:

  1. The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

  2. A memorandum by the Ministry of Agriculture, Fisheries and Food in connection with the Sea Fishing (Enforcement of Community Quota Measures) Order 1998 (S.I. 1998/268) and the Third Country Fishing (Enforcement) Order 1998 (S.I. 1998/269) is printed in Appendix I to this Report.

MERCHANT SHIPPING (COMPULSORY INSURANCE: SHIPS RECEIVING TRANS-SHIPPED FISH) REGULATIONS 1998 (S.I. 1998/209)

  3. The Committee draws the special attention of both Houses to these Regulations on the grounds that they may be ultra vires.

  These Regulations are made under section 192A(1), (4), (5) and (6) of the Merchant Shipping Act 1995. Section 192A(1)(a) of the Act provides that the Secretary of State may make regulations requiring that there must be in force "a contract of insurance insuring such person or persons as may be specified by the regulations against such liabilities as may be so specified and satisfying such other requirements as may be so specified". These Regulations relate to such contracts of insurance. Regulation 6 provides that, if the contract is to be sufficient, it must satisfy all requirements "as is specified in Merchant Shipping Notice No. MSN 1711". In view of the wording of section 192A(1)(a) of the Act, the Committee asked the Department of the Environment, Transport and the Regions what empowers the specification of these other requirements not in regulations but in a Merchant Shipping Notice. The Department refer in the memorandum printed in Appendix II to section 192A(6)(b) of the 1995 Act, which provides that regulations under the section may "make provision in terms of any document which the Secretary of State or any person considers relevant from time to time". The Department consider that this justifies the use of the Merchant Shipping Notice to specify the other requirements. The Committee is not convinced by this explanation because of the very precise wording of section 192A(1)(a) of the 1995 Act, which provides that a contract of insurance must be in force "insuring such person or persons as may be specified by the regulations ... and satisfying such other requirements as may be so specified". In different contexts other parts of section 192A, for example section 192A(4), use the formulation that regulations may require such information as may be specified "by or under the regulations", which is a recognised way of authorising the use of other documents. These words are not used in section 192A(1)(a) of the 1995 Act and so there is at the least a doubt as to whether regulation 6 is intra vires in making the legislative requirements in a Merchant Shipping Notice and not in the regulations themselves. The Committee reports regulation 6 on the grounds that it may be ultra vires.


1  
The Orders of Reference of the Committee are set out in the First Report, Session 1997-98 (HL Paper 4; HC 33-i). Back


 
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