Joint Committee on Statutory Instruments Twentieth Report


Memorandum by the Ministry of Agriculture, Fisheries and Food


  1. The Select Committee has requested submission of a memorandum on the following point:

    "In article 4, in view of the opening words of paragraph (5)—"A person shall not be liable to a fine under paragraph (4)"—ought not the reference in paragraph (4) to its being subject to paragraph (6) to be to paragraph (5)?"

  2. The Committee will have noted that paragraph (6) of article (4) is, in turn, expressed as being subject to paragraph (5).

  3. in the Ministry's view it is necessary to consider paragraphs (4), (5) and (6) as a whole. Whilst paragraph (4) is qualified by paragraph (5), it is also qualified by paragraph (6). In providing for persons convicted of a relevant offence to be liable to a fine on summary conviction, paragraph (4) provides that any fine imposed cannot exceed "the value of the fish in respect of which the offence was committed". However, such a limit is only intended to apply to this particular penalty and not to prevent or limit the imposition of other penalties to which the convicted person may be liable under article 4 of this Order or under any other enactment. The reference in paragraph (4) to its being subject to paragraph (6) seeks to make this clear by declaring that the fine under paragraph (4) has effect as an additional penalty.

  4. The combined effect of paragraphs (4) and (5) is that a court may order the forfeiture of any fish in respect of which the offence was committed or impose this additional fine in respect thereof, but may not do both. That this is a further qualification on the operation of paragraph (4) is made clear by the "subject to" wording in paragraph (6).

  5. Exactly corresponding provisions are to be found in section 11(2) to (5) of the Sea Fish (Conservation) Act 1967, from which this drafting was taken. Before adopting this approach for linking paragraphs (4) to (6) of article 4, the Ministry considered the drafting and decided that, whilst other approaches might be possible, the wording used by Parliamentary Counsel in section 11 of the 1967 Act achieved its objective and that adopting similar wording in the Order would have the advantage of enabling a consistent approach to be taken to interpretation (compare the reference in section 30(2) of the Fisheries Act 1981 to such an order containing provisions corresponding to provisions in the 1967 Act).

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