Joint Committee on Statutory Instruments Thirty-Fourth 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. The Committee draws the special attention of both Houses to this instrument on the ground that one of its footnotes is incomplete.

  This instrument amends the Rules of the Court of Session 1994. Paragraph 2(14) substitutes in rule 67.24(2)(p) the word "racial" for the word "social". However, the word "social" was not used in sub-paragraph (p) of the original 1994 Rules. The Committee therefore asked the Scottish Office to set out the text of sub-paragraph (p) as it stood before this substitution and to identify the amending instrument (and provision of it) which introduced the word "social". The Department answer in their memorandum (Appendix I) that immediately before the substitution the provision read "ascertain the religious persuasion (if any), social origin and cultural and linguistic background both of the child and of the petitioner". They say that the relevant amendment was made by paragraph 2(20)(e) of the Act of Sederunt (Rules of the Court of Session Amendment No. 2) (Adoption Applications) 1997 (S.I. 1997/853). The Committee considers that this information should have been included in footnote (b) on page 1 of the instrument, which purports to list the "relevant amending instruments" to the 1994 Rules (see paragraph 2.47 of Statutory Instrument Practice), and therefore reports that footnote (b) is incomplete.


  3. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted.

  Regulation 19(1) prohibits the placing of live shellfish on the market for immediate human consumption unless (g) they have been stored and transported in accordance with the applicable requirements of Chapter VIII of Schedule 2. The Committee asked the Department of Health whether, in view of the italicised words, paragraph (g) should also refer to Chapter IX (Transport) of the Schedule. The Department admit in the memorandum printed in Appendix II that such a reference should have been included and say that they will include the reference when the Regulations are next amended. The Committee hopes that the amendment will be made at the next available opportunity, and reports regulation 19(1)(g) for defective drafting, acknowledged by the Department.


  4. The Committee draws the special attention of both Houses to these Regulations on the ground that they are of dubious vires.

  These Regulations are made under sections 9(7) and (8) and 48(1) of the Plant Varieties Act 1997. That Act authorises the granting by the Plant Variety Rights Office of plant breeders' rights (which are in the nature of a property right). The rights apply also to harvested material. The holder of such a right may prevent others from doing certain acts which are covered by his right by taking civil proceedings (eg. injunction and damages). Section 9 of the 1997 Act restricts these rights so that they do not extend to the use by a farmer of seed he has saved on his farm and used for propagating purposes there. Ministers may, however, by regulations under subsection (7) enable holders of plant breeders' rights to require farmers (or seed processors) to supply them with prescribed information. By section 48(1) any regulations under the Act may contain "supplemental, incidental and transitional provisions" - a power frequently conferred in primary legislation. The Act confers no express power enabling regulations to create criminal offences as sanctions for breaches of them. These Regulations impose duties on farmers (and seed processors) to supply to the relevant rights holder, at his request, the information specified in the regulations. Regulation 10 makes the failure of a farmer to provide such information (or the provision of false information) an offence carrying a fine on summary conviction. The Committee asked the Ministry of Agriculture, Fisheries and Food what provision of the 1997 Act authorises the creation of the offences specified in regulation 10. In their memorandum (Appendix III) the Department admit that the Act contains no specific authority to create a criminal offence, but they assert that the section 48(1) power to make supplemental provision authorises the creation of offences. They point out that some sanction must have been intended, that civil remedies would be less appropriate than criminal ones and that the "supplemental" power can, by way of "filling in details or machinery", be used to create offences.

  There is nothing to suggest that Parliament, in passing the 1997 Act, intended to authorise the creation of criminal offences as sanctions for breaches of regulations under section 9 (the Act does itself create offences in relation to other provisions). In the Committee's view there are no compelling arguments, given the nature of plant breeders' rights and the means of enforcing them (in particular where there is any dispute as to the applicability of the exception in section 9 to a farmer), to support the view that a power to create offences to enforce the regulations must necessarily be applied. In any case there is a persistent and strong current of precedent in legislative practice that, if the creation by delegated legislation of criminal offences is to be authorised, specific provision is included in the Act and, further, that the standard supplemental and incidental power is not a sufficient authorisation. This practice is strong evidence of an implicit principle that the creation of offences (or their authorisation) is something that Parliament reserves for itself. The Committee therefore reports regulation 10 because there is a serious doubt as to whether it is intra vires.

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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