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
2. A memorandum from the Department for Transport
in connection with the Road Vehicles (Construction and Use) (Amendment)
Regulations 2003 (S.I. 2003/182) is printed at Appendix 1.
3. A memorandum from the Department for Environment,
Food and Rural Affairs in connection with the Hill Farm Allowance
Regulations 2003 (S.I. 2003/289) is printed at Appendix 2.
2003 (S.I. 2003/229)
4. The Committee draws the special attention of
both Houses to this Order on the ground that it is defectively
drafted in two respects, one of which gives rise to doubt as to
the vires of the provision in question.
5. Article 3(1) provides that, subject to article
4, a person in charge of a relevant British fishing boat which,
during any part of the period specified in paragraph 1 of Annex
XVII to Council Regulation No. 2341/2002 contravenes the provisions
of the Annex mentioned in sub-paragraph (a) of that article, or
is absent from port in excess of the number of days permitted
to it by the subsequent provisions of that article, is guilty
of an offence. In relation to the underlined words, the period
specified is 1 February 2003 to 31 December 2003. It appeared
to the Committee that a person who contravened the provisions
of Annex XVII mentioned in article 3(1)(a) of the Order between
1 and 8 February 2003 would be guilty of an offence when the Order
came into force on 8 February 2003. It therefore asked the Department
to identify the provision in the Fisheries Act 1981 which authorised
this retrospective effect, and how article 3(1) was compatible
with Article 7(1) of the European Convention on Human Rights.
The latter provision provides that no one shall be guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international
law at the time when it was committed.
6. In memoranda printed in Appendix 3, the Department
for Environment, Food and Rural Affairs, while accepting that
article 3(1)(a) appears on its face to have the effect of rendering
criminal an activity which took place between 1 and 8 February,
states that this retrospective effect was unintended. It submits
that a court would not construe article 3(1) as having retrospective
effect for two reasons. First, the 1981 Act does not authorise
any subordinate legislation made under it to have this effect.
Secondly, a court would, in accordance with section 3 of the Human
Rights Act 1998, interpret article 3(1) in a way compatible with
the Convention rights so that it would only apply to any part
of the period specified in Annex XVII following the coming into
force of the Order, that is, on or after 8 February.
7. However, the Department acknowledges that article
3(1) is defectively drafted in that it should have been made clear
that the provision does not have retrospective effect. Given that
the provision as drafted has this effect and that the empowering
legislation does not authorise any measure of retrospection, the
Committee considers that the defective drafting gives rise to
a doubt as the vires of article 3(1). The prospect that a court
would, in accordance with section 3 of the Human Rights Act, interpret
article 3(1) of the Order in the way suggested by the Department
does not, in the Committee's view, detract from the fact that
the 1981 Act does not authorise subordinate legislation made under
it to have any retrospective effect. The Committee accordingly
reports article 3(1) for defective drafting, giving rise to doubt
as to whether it is intra vires.
8. Article 12 specifies the penalties for offences
under various provisions of the Order. Paragraph (2) provides
that the court by or before which a person is convicted of an
offence "under article" may order the forfeiture of:
(a) any fish in respect of which the offence was committed; and
(b) in respect of an offence under article 3(1), 8 or 9,
any fishing gear used in the course of, or in activities leading
to, the commission of the offence. Since the relevant provisions
are not specified in relation to the words quoted above, the Committee
asked the Department to identify the provisions contemplated.
The Department explains that the italicised words should have
been omitted from (b), and that those provisions should have been
specified in relation to the words quoted above. The Committee
accordingly reports article 12(2)(b) for defective drafting, acknowledged
by the Department. The Department proposes to amend articles 3(1)
and 12(2) at an early opportunity.