Joint Committee on Statutory Instruments First Report


Memorandum from the Department of Trade and Industry


1. The Committee has requested a memorandum on the following points:

(1) Explain the intended effect of regulation 3(2) and, in particular, the words "or in exercise of a power to legislate after that date".

(2) Regulation 4(6) refers to new criminal offences created by these Regulations. Identify the provisions which create offences.

2. The intended effect of regulation 3(2) is that the Regulations should not have prospective effect on future legislation. The policy is that separate provision should be made for such legislation. The Regulations refer specifically to "Acts passed on or after the date these Regulations are made" in order to ensure that future primary legislation is not affected. It was considered that this was necessary, given that these Regulations are made under section 2(2) of the European Communities Act 1972, since, particularly in the light of the decision in Thoburn v. Sunderland City Council [2001] EWHC Admin 195, a reference to "Acts" might be taken to include future Acts. Having done so, it was then necessary to address the issue of subordinate legislation.

3. The words "or in exercise of a power to legislate after that date" (which reflect the wording of paragraph 1(1)(c) of Schedule 2 to the European Communities Act 1972) are intended to deal with enactments contained in statutory instruments and other forms of subordinate legislation, including subordinate legislation made after the making of the Regulations under an Act existing at that date. The intention is to distinguish between legislative acts and executive acts, such as the grant of licences.

4. The Department acknowledges that there is an error in regulation 3(2) in that at present it is not grammatically correct. The words "relation to the" are missing before "exercise". The Department proposes to bring forward amending regulations as soon as possible.

5. The provision which has, or may have, the effect of creating new criminal offences is regulation 4(1). It has an effect on existing criminal offences in other legislation by applying the law of the United Kingdom to the activities of UK­based service providers even if those activities would, apart from the Directive and the Regulations, be regarded as being carried on outside the UK and therefore not subject to UK law. Section 2(2) of the European Communities Act 1972 does not permit the creation, by secondary legislation, of a new offence which is subject to a penalty in excess of those set out in regulation 4(6). Arguably, the Regulations will result in the creation of "new" offences. Regulation 4(6) is intended to avoid the creation of criminal offences under the Regulations whose penalties exceed those permitted under section 2(2).

4 November 2002

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