Joint Committee on Statutory Instruments First 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 from the Lord Chancellor's Department in connection with the Court of Protection (Amendment) Rules 1999 (S.I. 1999/2504) is printed in Appendix 1.


  3. The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unexpected use of the power under which they are made.

  4. The Regulations are made under powers contained in the Consumer Protection Act 1987, and make provision to implement Commission Directive 97/64/EC. Regulation 2(b) of the present Regulations inserts a new regulation 3A in the Dangerous Substances and Preparations (Safety) (Consolidation) Regulations 1994 (S.I. 1994/2844). Paragraph (2) of new regulation 3A prohibits the supply of certain liquid substances and preparations ("liquids") capable of being used as fuel in decorative lamps where they contain perfume or colouring agent. Paragraph (5) provides that this prohibition on supply does not apply to paraffin to which a colouring agent has been added solely in order to distinguish it for safety reasons from another liquid, so long as it is not intended for use as fuel in decorative lamps. The Directive, on the other hand, does not contain such an exemption. Accordingly, the Committee asked for an explanation as to what provision in the Directive justified this exemption.

  5. The Department, in the two memoranda printed in Appendix 2, seek to justify the exemption in question on the ground that it is consistent with the purpose of the Directive, which is to provide for consumer safety. They contend that, since the removal of the exemption would significantly increase the risk to consumers, the Directive cannot have been intended to have that result, and consequently it should not be interpreted so as to produce that result.

  6. The Committee is not persuaded by the Department's explanation. The Directive only permits an exemption from the prohibition in circumstances where "fiscal reasons" are present. In any other case, the prohibition applies to a liquid which "can be used as fuel" in decorative lamps and thus to paraffin. The Directive does not distinguish between liquids which are intended for use as fuels in decorative lamps and those which are not. It suffices that liquid is capable of such use. Nor does the Directive permit an exemption to enable colouring agents to be added for the purpose of distinguishing the liquid. Since the aim of the Directive is to control the marketing of coloured liquids for the purpose of protecting consumers, the Department's reliance on its general purpose must necessarily be subject to the terms of the Directive itself. The Committee considers that the Regulations have not sufficiently implemented the Directive and reports the Regulations on the ground that they make an unexpected use of the powers conferred.


  7. The Committee draws the special attention of both Houses to these Regulations on the grounds that they contain unnecessarily referential legislation; are defectively drafted; and that they require elucidation.

  8. Regulation 2(2) defines "pleasure vessel" as having the meaning given to it by the Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations 1998 (S.I. 1998/2771). The Committee asked the Department of the Environment, Transport and the Regions to explain why the definition was not set out in full.

  9. In a memorandum printed in Appendix 3, the Department state that, in view of the length and complexity of the full definition, it was thought convenient to shorten the drafting of the present Regulations. They also state that a reference back to the earlier Regulations helpfully indicates that these considerations are outweighed by the inconvenience to the reader of having to refer to another instrument solely for the purpose of finding the meaning of "pleasure vessel". The Committee also notes that in two subsequent instruments—S.I. 1999/2721 and 2722—the Department have adopted the more helpful course of setting out the definition of "pleasure vessel" in full. The Committee reports regulation 2(2) on the ground that it contains a definition drafted in an unnecessarily referential manner.

  10. Regulations 6(2) and 7(1) impose duties on the master, owner, and any other "relevant person or corporate body" to provide information about, and to keep certain material relevant to, an accident. The Committee asked for an explanation of the description of person intended to be caught by that expression. The memorandum from the Department explains this point and the Committee accordingly reports this provision for the elucidation provided by the Department's Memorandum.

  11. Regulations 6(2) and 7(1) include the expression "person or corporate body". The Committee asked the Department to explain the need for the words "or corporate body", in view of the definition of "person" in the Interpretation Act 1978 as including a corporate body of persons. The Department accept that the inclusion of the phrase was an error and have noted it for the future. The Committee accordingly report this provision for defective drafting, acknowledged by the Department.



  12. The Committee draws the special attention of both Houses to these Regulations on the ground that they are drafted in an unecessarily referential way.

  13. The Committee asked the Treasury why Regulation 2 of both sets of Regulations provides that the phrase "the Contributions and Benefits Act" has the same meaning as in certain previous Regulations. In the memorandum printed in Appendix 4 the Treasury accept that Regulation 2 in each case should have set out the definition in full instead of referring the reader to the earlier Regulations. The Committee accordingly reports both Regulations on the ground that they contain a definition drafted in an unecessarily referential manner.


  14. The Committee draws the special attention of both Houses to these Regulations on the ground that in one respect there is a doubt as to their vires.

  15. The Regulations are made under powers contained in the Environmental Protection Act 1990. Paragraph (2) of regulation 4 purports to empower authorised persons to take any dead or injured wild bird, or to take samples of any articles or substances found on land which he has power to enter, and to cause any such bird or sample to be tested or analysed (sub-paragraph (d)); and to take possession of any such bird or sample and retain it for so long as is necessary for certain specified purposes (sub-paragraph (e)).

  16. The relevant empowering provision is section 140 of the 1990 Act. Sub-section 3(c) (as amended) enables regulations to confer powers corresponding to those conferred by section 108 of the Environment Act 1995. Sub-section (4) of that section of that Act lists the powers available to an authorised person, which include the power to take samples of any articles or substances found on the premises which he is authorised to enter, cause the article to be dismantled or subjected to any process or test, and to take possession of it and detain it for certain specified purposes.

  17. The Committee asked the Department of the Environment, Transport and the Regions what provision of either the 1990 Act or the 1995 Act authorises the power conferred by Regulation 4(2) in relation to injured wild birds, given that the relevant empowering provisions relate to articles or subtances. The Committee drew attention to the observations in a judicial decision in 1954—Daly v Cannon—to the effect that in normal parlance a live creature cannot be regarded as an article.

  18. The Department have submitted two memoranda, printed in Appendix 5. In their second memorandum, they seek to place a restrictive interpretation on that decision. They contend that it was concerned with the interpretation of the words "no person who collects or deals in rags, old clothes or similar articles" in section 154(1) of the Public Health Act 1936, and that on normal principles of construction "similar articles" needs to be read in the context of "rags" and "old clothes"; and, on this basis, the court held that a live goldfish was not an article.

  19. In the Commitee's view, the Department have misunderstood the decision. Section 154(1) of the 1936 Act provides that "no person who collects or deals in rags, old clothes or similar articles shall...sell or deliver, whether gratuitously or not, any article or food or drink to any person, or any article whatsoever to a person under the age of fourteen years". It was accepted that the respondent, who was a person who collected rags and was so engaged at the material time, delivered a live goldfish to a boy under 14 in return for some rags. The issue before the court was not whether a live goldfish was an "article" for the purposes of the words "similar articles", but whether the rag and bone man had committed an offence by delivering the goldfish to the boy. This, in turn, depended on whether the goldfish fell within the description "any article whatsoever". In deciding that a live goldfish was not an "article" for the purpose of those words, Lord Goddard CJ observed: "Would anybody in common parlance talk about a goldfish as an article? I do not think is straining language to say that a goldfish is an article." Another factor in the decision was that any ambiguity in a penal statute is to be construed so as not to involve the imposition of a penalty. Accordingly, the Committee do not accept the Department's explanation of that case. In relation to the two other English decisions cited in the Department's second memorandum, the Committee do not think that they can be regarded as being of general application, and also note that the actual decision in the 1962 case that hatching eggs were not "articles" for the purpose of the legislation under consideration does not support the view that a live creature can (in the absence of some specific indication to that effect in the legislation) be regarded as an "article".

  20. The Committee notes that the 1995 Act does not define the word "article". If Parliament had intended that "article" should be construed as having a wider meaning than that in common parlance, the legislation would have contained an express provision to the effect that "article" included a live creature. Further, contravention of Regulation 4 is an offence. In considering the vires of that Regulation, the court is likely to prefer a construction which would resolve any ambiguity in the expression "article" against the imposition of a penalty.

  21. For all these reasons, the Committee reports these Regulations to both Houses on the ground that there is a doubt as to whether regulation 4(2)(d) and (e) (to the extent that it makes provision for injured wild birds) is intra vires.

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