Joint Committee on Statutory Instruments Fourteenth Report


FOURTEENTH REPORT


FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.

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 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.

SEA FISHING (RESTRICTION ON DAYS AT SEA) ORDER 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.


 
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