Joint Committee on Statutory Instruments Twentieth 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 in connection with the Environmental Protection (Disposal of Polychlorinated Biphenyls and other Dangerous Substances) (England and Wales) Regulations 2000 (S.I. 2000/1043) is printed in Appendix 1.


  3. The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation.

  4. These regulations make a number of consequential amendments to the capital finance system resulting from the implementation of the Greater London Act 1999 ("the 1999 Act"). The Committee asked the Department of the Environment, Transport and the Regions how, in regulation 2, the amendment in terms of "any order, scheme or other instrument made under" the Regional Development Agencies Act 1998 ("the 1998 Act") has effect only in relation to "the constituent bodies specified in the Greater London Authority Act 1999" given that the 1998 Act provides for development agencies throughout England. In the memorandum printed in Appendix 2, the Department explain that the amendment made by regulation 2 is to regulation 24 of the Local Authorities (Capital Finance) Regulations 1997 (S.I. 1997/319). It has the effect of excluding from section 28 of the Local Government and Housing Act 1989 a lease where a local authority becomes the lessee by virtue of an order, scheme, etc. under the 1999 Act or 1998 Act. Section 48 of the Local Government and Housing Act 1989 applies only to local authorities as defined in section 39 of that Act. The definition in section 39 includes a "functional body" under the 1999 Act under which category the London Development Agency is included. The London Development Agency will be one of 9 regional development agencies when it is established on 3rd July 2000 but none of the other agencies is a "local authority" within section 39 of the 1989 Act. Accordingly, the only case where a local authority as defined in section 39 of the 1989 Act will become a lessee under the 1998 act is the London Development Agency, a position which the Department state is reflected in the Explanatory Note to these regulations.

  5. The Committee is concerned that without the explanation provided by the Department the answer to the question of the effect of the regulations is not readily accessible to the reader: it is hidden in unusually complex legislative provisions. The Committee accordingly reports these regulations as requiring elucidation.


  6. The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted.

  7. Article 4 of this order prescribes penalties in the form of fines for committing offences which contravene Community fishing measures under article 3 of the Order. Paragraph (4) of Article 4 makes a person liable to a fine not exceeding the value of the fish in respect of which the offence was committed but is expressed to be subject to paragraph (6). Paragraph (5) excludes liability to a fine under paragraph (4) if the fish have been forfeited under paragraph (3) and excludes forfeiture if a fine has been levied under paragraph (4), thus preventing duplication of penalties. Paragraph (6) makes a fine under paragraph (4) additional to any other penalty (under paragraph (4) or elsewhere), subject to the provisions of article 4(5). The Committee asked the Department whether the reference in paragraph (4) to its being subject to paragraph (6) ought properly to be a reference to paragraph (5), given that the opening words of paragraph (5) are "A person shall not be liable to a fine under paragraph (4)...".

  8. In the memorandum printed in Appendix 3, the Ministry of Agriculture, Fisheries and Food contend that the drafting is correct. The Department argues that whilst paragraph (4) is qualified by paragraph (5), it is also qualified by paragraph (6). The Department explains that the reference in paragraph (4) to it being subject to paragraph (6) is to make it clear (by indicating its being additional to other penalties) that the limit in terms of the value of the fish only applies to the paragraph (4) penalty, not to any other penalties. The Department also points to the corresponding drafting structure of section 11(2) to (5) of the Sea Fish Conservation Act 1967, section 11(2) to (5).

  9. The Committee does not accept the Department's explanation for the following reasons. Firstly, as is admitted, paragraph (4) is qualified by (5). Secondly, the paragraph (4) limit by reference to the value of the fish could not be interpreted as a limit on other specific penalties in other enactments. Thirdly, the proposition in paragraph (6) that the paragraph (4) fine is additional to other penalties cannot derogate from the paragraph (4) penalty so as to justify making (4) "subject to" (6). Fourthly, the Committee is not persuaded by the 1967 precedent which was a consolidation of section 13 of the Sea Fish Industry Act 1962 which did not make a specific subjection corresponding to the one in question here. The Committee accordingly reports the order for defective drafting.

1  The Orders of Reference of the Committee are set out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back

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