Joint Committee on Statutory Instruments Thirty-Third Report


APPENDIX III

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

FISHING VESSELS (SAFETY PROVISIONS) (AMENDMENT) RULES 1998
(S.I. 1998/928)

MERCHANT SHIPPING (CREW ACCOMMODATION) (FISHING VESSELS) (AMENDMENT) REGULATIONS 1998 (S.I. 1998/929)

1.  The above two instruments implement parts of Council Directive 93/103/EC concerning the minimum safety and health requirements for work on board fishing vessels. The Committee may like information as to why the European Communities Act 1972 is cited as an enabling power.

2.  The Directive contains a considerable number of safety and health requirements relating to fishing vessels, the majority of which are already contained in existing secondary legislation (principally, but not entirely, the two instruments amended by the above statutory instruments, the Fishing Vessels (Safety Provision) Rules 1995 (S.I. No. 330) and the Merchant Shipping (Crew Accommodation) (Fishing Vessels) Regulations 1975 (S.I. No. 2220).

3.  Consequently it was considered appropriate to implement the Directive by amending existing legislation, rather than having free standing regulations. It was thought necessary to supplement the existing enabling powers by use of the 1972 Act for the following reasons:

a.  the Fishing Vessels (Safety Provisions) Rules 1975 were made under a variety of powers — chiefly sections 1 and 2 of the Fishing Vessels (Safety Provisions) Act 1970, and section 427 of the Merchant Shipping Act 1894. The Merchant Shipping Acts have now been consolidated into the Merchant Shipping Act 1995, sections 1 and 2 of that 1970 Act becoming sections 121 and 122 of the Act. As a result of pre-consolidation amendments section 427 of the 1894 Act has been repealed. Consequently so far as these Amendment Rules affect the parts of the 1975 Rules made under section 427 (in particular rule 119) it was thought appropriate to cite also the European Communities Act 1972.

In addition the Directive contains certain requirements which fit in within the parts of the Rules made under section 121 of the 1995 Act but which might not fall within the vires of section 121 (since the section only enables rules to be made about hull, equipment and machinery of fishing vessels). Again the 1972 Act supplements this.

b.  The Crew Accommodation Regulations 1975 were made under what is now section 43 of the Merchant Shipping Act 1995 — power to make regulations with respect to crew accommodation. Certain provisions in the Directive which fit most conveniently into those Regulations deal with "work stations" — i.e. areas which are not crew accommodation. Accordingly the 1972 Act is cited as a supplementary enabling power.

31st March 1998

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

FISHING VESSELS (SAFETY PROVISIONS) (AMENDMENT) RULES 1998
(S.I. 1998/928)

The Committee requested a memorandum on the following points:

(1)  Given that the power in section 2(2) of the European Communities Act 1972 is power to make regulations (or Orders in Council) explain how it can authorise the making of rules.

It is of course accepted that the provisions in S.I. 1998/928 are not and, should not be entitled, 'Rules' and it is much regretted that this was done. However, the Department considers that those provisions have effect as regulations under section 2(2) of the 1972 Act, notwithstanding the title given to them.

(2)  Given that the rule-making power in section 121 of the Merchant Shipping Act 1995 is not wide enough to enable all the additional requirements to be made, explain why one or other of the following legislative methods was not used —

    (a)  to widen, by regulations under section 2(2) of the 1972 Act, the rule-making power in section 121 of the 1995 Act and then (by separate amending Rules) exercise the widened power so as to add the additional rules; or

    (b)  to make all the requirements as safety and health regulations under sections 85 and 86 of the 1995 Act (as envisaged by Schedule 14 paragraph 7 of that Act).

Of these two methods (b) proposed by the Committee is not preferred. Until such time as the Fishing Vessels (Safety Provision) Rules 1975 are completely revised and sections 121 to 126 of the Merchant Shipping Act 1995 repealed it is desired to keep specific "fishing vessel rules" and "fishing vessel survey rules", so that the regime of protection of fishing vessel safety by means of fishing vessel certificates under sections 123 to 126 of the Act is preserved.

The Committee's method mentioned in sub-paragraph (a) would of course work. The Department consider a more direct approach possible, namely amendment of the 1975 Rules directly by regulations under section 2(2) of the European Communities Act 1972. By virtue of section 2(4) such regulations can do anything an Act of Parliament can do. Acts of Parliament of course can, and often do, amend statutory instruments, and accordingly the Department considers that regulations under section 2(2) can do the same.

(3)  Given that these Rules apply only to vessels registered in the United Kingdom (rule 1(2) as substituted by rule 4), explain why these Rules purport to exercise the power in section 307 of the 1995 Act (to extend the legislation to non-United Kingdom ships), identifying the additional rules which are made in exercise of it.

In the light of Rule 1(2)(a) (as substituted by 4 of S.I. 1998/928), there is no application to unregistered ships. In practice, in the light of section 15(1) of the Merchant Shipping Act 1995 (and the definition of "fishing vessel" in section 313(1)), all fishing vessels of over 15m in length will be registered. The inclusion of the superfluous reference to section 307 is regretted.

1st May 1998



 
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