Joint Committee on Statutory Instruments Thirty-Fourth Report


APPENDIX III

Memorandum by the Ministry of Agriculture, Fisheries and Food

PLANT BREEDERS' RIGHTS (FARM SAVED SEED) (SPECIFIED INFORMATION) REGULATIONS 1998 (S. I. 1998/1026)

 The Committee has requested the Ministry to submit a Memorandum on the following point:

    What provision of the Act of 1997 authorises the creation (by regulation 10) of the offences specified in paragraphs (1) and (2) of that regulation?
2.  The Act of 1997 does not contain specific authority for the creation of these offences. Nonetheless, the Ministry considers that section 48(1) of the 1997 Act, which provides that any regulations "may contain such supplemental, incidental and transitional provisions as appear to the Ministers to be expedient", when read with section 9(7)(a) and (b), authorises the creation of the offences specified in regulation 10.

3.  Section 9(7)(a) and (b) of the 1997 Act (which relates to farm saved seed) gives the Ministers power to make regulations enabling certain persons to require others to provide information and restricting the circumstances in which harvested material may be moved for processing.

4.  The Ministry considers that Parliament must have intended that, if the Ministers made such regulations, they should be effective, in that failure to comply with them should be subject to an effective sanction. The use of "require" and "restricting" points to the fact that such regulations are intended to create obligations. Unlike section 14, where failure to provide information required by an information notice of the kind described in section 14(4) results in certain presumptions applying, including that unauthorised use has been made of propagating material (see subsection (3)), section 9 provides no explicit remedy for a person aggrieved by a failure to provide information, or the movement of a harvested product, contrary to regulations made under subsection (7).

5.  Although the remedy of an injunction might be available even if not specifically provided for in regulations, it would be unsatisfactory to leave the position unclear in the regulations and to rely on what would be a somewhat unusual procedure. The Ministers might perhaps have used section 9(7) to create a specific civil remedy, for example an order of the court that information be disclosed, failure to comply with which would be punishable as contempt. However, although this might have been appropriate for section 9(7)(a) (information), it would have been less appropriate in relation to section 9(7)(b) (movement of material): the breeder could only take action if he were alerted to the unauthorised movement before it occurred and the availability of a civil remedy would probably not have much deterrent effect. It seemed to the Ministry that the offences specified in regulation 10 were the most appropriate sanction.

6.  The provisions of section 9 of the 1997 Act are of a regulatory nature and the criminal law is of course commonly used to create sanctions for breach of regulatory requirements. It is clear from the authorities that civil and criminal remedies can both be regarded as remedies for breach of a statutory obligation. This is illustrated by the words of Lord du Parcq in Cutler v. Wandsworth Stadium [1949] AC 398 (in which the House of Lords had to consider whether a statutory provision, backed by a criminal sanction, also gave a right of action to an aggrieved individual). His Lordship held (at p.411) that: "I do not agree with [the] submission that it is heretical to regard criminal proceedings which may be followed by fine and imprisonment as a "specified manner" of enforcing a duty. I think that it is both orthodox and right so to regard them."

7.  Turning to the language of the 1997 Act, and in particular section 48(1), the Ministry considers that the offences in regulation 10 can properly be said to be "supplemental" to the obligations created by the Regulations under section 9(7). The meaning of a similar expression in section 254(1) of the Local Government Act 1972 (as applied to the Water Act 1973) was considered by the House of Lords in Daymond v. S.W. Water Authority [1976] AC 609. The relevant words in the statute considered in that case were: "The Secretary of State...may... by order make such incidental, consequential, transitional, or supplementary provision as may appear to him... to be necessary or proper for the general or any particular purposes of this Act or in consequence of any of the provisions thereof or for giving full effect thereto;". Viscount Dilhorne (at p. 644) held that ""supplementary" means...something added to what is in the Act to fill in details or machinery for which the Act itself does not provide; supplementary in the sense that it is required to implement what was in the Act". The passage is cited by Francis Bennion as an illustration of the scope of what he refers to as "sweeping-up words" (Statutory Interpretation, 3rd ed. (1997) p. 184).

8.  The Ministry is not aware of any authority which holds that such sweeping-up words cannot be used, in appropriate cases, to create a criminal offence. Indeed there is some authority to the contrary. In the case of Hall v. Nixon (1875) LR 10 QB 152, the Court of Queen's Bench held that a bye-law made by a health board under section 34 of the Local Government Act 1858, which imposed a fine of 40 shillings on anyone who erected a new building without giving the board fourteen days' notice and a copy of the plans, was valid notwithstanding the absence of specific statutory authority for the penalty. Lush J (at p. 159) said: "the section gives them express powers as to giving notices, and though it says nothing as to penalties, it necessarily gives what the common law implies, namely a power to enforce the bye-laws by penalties". The case is an old one, and relies on the common law about bye-laws, but nevertheless seems to indicate that the creation of a criminal offence is not outwith a statutory provision providing for the creation of an obligation, where the purposes of the statute will be served by this approach.

9.  Regulation 10 does not create any substantive obligations: it bites only where there has been a failure to comply with obligations created by other provisions of the Regulations. In the words of Viscount Dilhorne, it is filling in machinery for which section 9 itself does not provide. The Ministry considers that it can properly be said to be supplemental to those other provisions.

10.  This memorandum has been agreed with the Scottish Office, the Welsh Office and the Department of Agriculture for Northern Ireland.

13th May 1998


 
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