Memorandum by the Department
of the Environment, Transport and the Regions
1998 (S.I. 1998/929)
1. The above two instruments
implement parts of Council Directive 93/103/EC concerning the
minimum safety and health requirements for work on board fishing
vessels. The Committee may like information as to why the European
Communities Act 1972 is cited as an enabling power.
2. The Directive contains
a considerable number of safety and health requirements relating
to fishing vessels, the majority of which are already contained
in existing secondary legislation (principally, but not entirely,
the two instruments amended by the above statutory instruments,
the Fishing Vessels (Safety Provision) Rules 1995 (S.I. No.
330) and the Merchant Shipping (Crew Accommodation) (Fishing Vessels)
Regulations 1975 (S.I. No. 2220).
3. Consequently it was considered
appropriate to implement the Directive by amending existing legislation,
rather than having free standing regulations. It was thought necessary
to supplement the existing enabling powers by use of the 1972
Act for the following reasons:
a. the Fishing Vessels
(Safety Provisions) Rules 1975 were made under a variety of
powers chiefly sections 1 and 2 of the Fishing Vessels
(Safety Provisions) Act 1970, and section 427 of the Merchant
Shipping Act 1894. The Merchant Shipping Acts have now been consolidated
into the Merchant Shipping Act 1995, sections 1 and 2 of that
1970 Act becoming sections 121 and 122 of the Act. As a result
of pre-consolidation amendments section 427 of the 1894 Act has
been repealed. Consequently so far as these Amendment Rules affect
the parts of the 1975 Rules made under section 427 (in particular
rule 119) it was thought appropriate to cite also the European
Communities Act 1972.
In addition the Directive contains
certain requirements which fit in within the parts of the Rules
made under section 121 of the 1995 Act but which might not fall
within the vires of section 121 (since the section only enables
rules to be made about hull, equipment and machinery of fishing
vessels). Again the 1972 Act supplements this.
b. The Crew Accommodation
Regulations 1975 were made under what is now section 43 of
the Merchant Shipping Act 1995 power to make regulations
with respect to crew accommodation. Certain provisions in the
Directive which fit most conveniently into those Regulations deal
with "work stations" i.e. areas which are not
crew accommodation. Accordingly the 1972 Act is cited as a supplementary
31st March 1998
Memorandum by the Department of the Environment, Transport and
The Committee requested a memorandum
on the following points:
(1) Given that the power
in section 2(2) of the European Communities Act 1972 is power
to make regulations (or Orders in Council) explain how it can
authorise the making of rules.
It is of course accepted that
the provisions in S.I. 1998/928 are not and, should not be entitled,
'Rules' and it is much regretted that this was done. However,
the Department considers that those provisions have effect as
regulations under section 2(2) of the 1972 Act, notwithstanding
the title given to them.
(2) Given that the rule-making
power in section 121 of the Merchant Shipping Act 1995 is not
wide enough to enable all the additional requirements to be made,
explain why one or other of the following legislative methods
was not used
(a) to widen,
by regulations under section 2(2) of the 1972 Act, the rule-making
power in section 121 of the 1995 Act and then (by separate amending
Rules) exercise the widened power so as to add the additional
Of these two methods (b) proposed
by the Committee is not preferred. Until such time as the Fishing
Vessels (Safety Provision) Rules 1975 are completely revised and
sections 121 to 126 of the Merchant Shipping Act 1995 repealed
it is desired to keep specific "fishing vessel rules"
and "fishing vessel survey rules", so that the regime
of protection of fishing vessel safety by means of fishing vessel
certificates under sections 123 to 126 of the Act is preserved.
(b) to make all
the requirements as safety and health regulations under sections
85 and 86 of the 1995 Act (as envisaged by Schedule 14 paragraph
7 of that Act).
The Committee's method mentioned
in sub-paragraph (a) would of course work. The Department consider
a more direct approach possible, namely amendment of the 1975
Rules directly by regulations under section 2(2) of the European
Communities Act 1972. By virtue of section 2(4) such regulations
can do anything an Act of Parliament can do. Acts of Parliament
of course can, and often do, amend statutory instruments, and
accordingly the Department considers that regulations under section
2(2) can do the same.
(3) Given that these Rules
apply only to vessels registered in the United Kingdom (rule 1(2)
as substituted by rule 4), explain why these Rules purport to
exercise the power in section 307 of the 1995 Act (to extend the
legislation to non-United Kingdom ships), identifying the additional
rules which are made in exercise of it.
In the light of Rule 1(2)(a) (as
substituted by 4 of S.I. 1998/928), there is no application to
unregistered ships. In practice, in the light of section 15(1)
of the Merchant Shipping Act 1995 (and the definition of "fishing
vessel" in section 313(1)), all fishing vessels of over 15m
in length will be registered. The inclusion of the superfluous
reference to section 307 is regretted.
1st May 1998