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