Joint Committee on Statutory Instruments Fourteenth Report


Instruments to which the Committee does not draw the special attention of both Houses.

Written evidence submitted to the Committee in connection with the instruments marked † is not printed.

Instruments requiring affirmative approval

†  Farm Waste Grant (Nitrate Vulnerable Zones) (England) Scheme 2003

Draft instruments requiring affirmative approval

†  Local Elections (Northern Ireland) (Amendment) Order 2003

†  Town and Country Planning (Electronic Communications) (England) Order 2003

†  Terrorism Act 2000 (Code of Practice on Video Recording of Interviews) (Northern Ireland) Order 2003

†  Electricity and Gas (Energy Efficiency Obligations) (Amendment) Order 2003

Instruments subject to annulment

S.I. 2003/182  Road Vehicles (Construction and Use) (Amendment) Regulations 2003

S.I. 2003/289  Hill Farm Allowance Regulations 2003

S.I. 2003/323  Antarctic (Amendment) Regulations 2003

S.I. 2003/332  Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003

S.I. 2003/348  School Governance (Constitution) (England) Regulations 2003

S.I. 2003/354  Local Authorities (Goods and Services) (Public Bodies) (England) Order 2003

S.I. 2003/367  Voluntary Adoption Agencies and the Adoption Agencies (Miscellaneous Amendments) Regulations 2003

S.I. 2003/368  National Care Standards Commission (Fees and Frequency of Inspections) (Adoption Agencies) Regulations 2003

S.I. 2003/370  Local Authority Adoption Service (England) Regulations 2003

S.I. 2003/373  Consistent Financial Reporting (England) Regulations 2003

S.I. 2003/375  Court Funds (Amendment) Rules 2003

S.I. 2003/391  Education (National Curriculum) (Foundation Stage Early Learning Goals) (England) Order 2003

†  S.I. 2003/397  Wireless Telegraphy (Public Fixed Wireless Access Licences) (Amendment) Regulations 2003

S.I. 2003/400  Social Security (Work-focused Interviews for Lone Parents) Amendment Regulations 2003

S.I. 2003/403  Nuclear Industries Security Regulations 2003

S.I. 2003/404  Building Societies Act 1986 (Electronic Communications) Order 2003

S.I. 2003/422  Crown Court (Amendment) Rules 2003

S.I. 2003/423  Magistrates' Courts (Amendment) Rules 2003

S.I. 2003/428  Criminal Appeal (Confiscation, Restraint and Receivership) Rules 2003

S.I. 2003/453  Financing of Maintained Schools (England) Regulations 2003

S.I. 2003/458  Proceeds of Crime Act (Appeals under Part 4) Order 2003

S.I. 2003/460  Immigration Services Commissioner (Designated Professional Body) (Fee) Order 2003

S.I. 2003/467  Customs (Presentation of Goods for Export) Regulations 2003

S.I. 2003/469  Education (Additional Functions of Her Majesty's Chief Inspector of Schools in England) Order 2003

S.I. 2003/470  Social Security (Claims and Payments) Amendment Regulations 2003

S.I. 2003/471  Social Fund Maternity and Funeral Expenses (General) Amendment Regulations 2003

S.I. 2003/474  Food Labelling (Amendment) (England) Regulations 2003

S.I. 2003/475  Education (Budget Statements) (England) Regulations 2003

S.I. 2003/489  Whole of Government Accounts (Designation of Bodies) Order 2003

S.I. 2003/490  Civil Procedure (Modification of Enactments) Order 2003

†  S.I. 2003/508  Gaming Act (Variation of Fees) (England and Wales) Order 2003

†  S.I. 2003/509  Gaming Act (Variation of Fees) (England and Wales and Scotland) Order 2003

Instruments subject to annulment (Northern Ireland)

S.R. 2003/73    Revaluation (Consequential Provisions) Order (Northern Ireland) 2003

S.R. 2003/76    Railways (Rateable Value) Order (Northern Ireland) 2003

S.R. 2003/77    Valuation (Electricity) Order (Northern Ireland) 2003

S.R. 2003/78    Rates (Regional Rates) Order (Northern Ireland) 2003

S.R. 2003/103  Administration of Insolvent Estates of Deceased Persons (Amendment) Order (Northern Ireland) 2003

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. 2003/333  Proceeds of Crime Act 2002 (Commencement No. 5, Transitional Provisions, Savings and Amendment) Order 2003

S.I. 2003/393  Traffic Signs (Amendment) General Directions 2003

S.I. 2003/502  Sheep and Goats Identification and Movement (Interim Measures) (England) (No. 2) (Amendment No. 2) Order 2003


Memorandum from the Department for Transport


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

In its memorandum of 28 June 2002 (printed in Appendix 2 to the Committee's Thirty­fifth Report (Session 2001­02)), the Department stated that it had been reviewing the principal Construction and Use Regulations of 1986 thoroughly and, instead of a straight consolidation, was considering a radical re­structuring and simplification of the Regulations. Indicate what progress has been made with the project, and when the Department expects to complete it.

2. The Department has reviewed various options and proposes to commence drafting a new set of simpler Regulations, which will eventually replace the 1986 Regulations. It lacks resources to complete this quickly so a plan is being developed to achieve this in stages over a period of years.

3. It is hoped that the first new set of Regulations will be drafted this year and come into force sometime in 2004.

6 March 2003


Memorandum from the Department for Environment, Food and Rural Affairs


1. The Committee has asked the Department to supply a memorandum explaining why a copy of each of "the England LFA maps" (defined in regulation 2(1)) was not supplied to the Committee, in accordance with paragraph 5.19(d) of Statutory Instrument Practice.

2. The Department apologises for this oversight. A copy of a map showing the less favoured areas is enclosed with this memorandum. This map is printed at a considerably smaller scale than the maps referred to in regulation 2(1).

3. The three volumes of maps held at the Department's offices, to which the instrument refers, contain 235 pages of coloured A3 maps at a scale of 1:50,000. The Department would be happy, if the Committee wish, to provide a paper copy of these maps.

4. The location of less favoured areas in England can also be found using the interactive map at the website of Multi­Agency Geographic Information for the Countryside. The interactive map can display the less favoured area status of any land in England with a co­ordinate accuracy of 1 metre at a scale of 1:25,000. This service (available at no cost) can be found at:

7 March 2003


Memorandum from the Department for Environment, Food and Rural Affairs


1. This Memorandum is volunteered first to explain why this Order is to come into force less than 21 days after being laid and secondly to explain particular features of the Order.

Background to and reasons for early coming into force

2. The Order supplements Annex XVII to Council Regulation (EC) No.2341/2002 which was published in the Official Journal on 31st December 2002. In order to protect certain cod stocks, a regime of highly restricted fishing was imposed, based on the days per month on which fishing vessels carrying particular types of gear in protected areas could lawfully be absent from port. It applies from 1st February 2003 to 31st December 2003. By virtue of section 30(1) of the Fisheries Act 1981 the provisions of the Annex have at least arguably been enforceable since 1st February. However ­

(a) certain provisions are incomplete in the absence of national measures ­ for example designation of ports is needed for the purposes of paragraph 14 of the Annex dealing with location of landings of cod in excess of two tonnes, and

(b) certain relaxations, potentially beneficial to fishermen, can only apply if permitted by national measures ­ see paragraphs 10 and 11 of the Annex which cover the right to transfer days between periods and between vessels and to aggregate monthly totals.

3. Work started on establishing overall and detailed policy as soon as the Regulation was adopted on 20th December 2002, and has been carried out with continuing expedition. On policy, the first decision related to the overall approach, and it was agreed that the approach should be based on maximum flexibility consistent with compliance and responsible administration. Then it was necessary to decide how that would translate into the individual decisions on the discretionary areas such as transfer and aggregation, and to establish the monitoring and enforcement measures needed. The priority aim, following Ministerial clearance, was to communicate relevant decisions and indeed to explain the Annex to the trade, whose livelihoods would be significantly affected. Before doing that, both principles and the details needed to be agreed with the devolved authorities, and, while these discussions were taking place early drafts of the Order were prepared on a contingency basis. The policy reached its final form with the issue on 30th January 2003 of guidance for the trade. Work was then carried out on adjusting the provisions of the Order as a matter of urgency, with the Order coming into force on 8th February 2003.

4. The reasons to avoid any further delay in bringing the instrument into force were as follows:

(a) the fact that 1st February had passed without implementation of obligatory measures such as designation of ports;

(b) the fact that the permissive measures included would operate as relaxations, for the benefit of fishermen, of rules which would otherwise directly apply, and

(c) the difficulty, if the instrument were not in force as soon as possible after the start of February, in ensuring that days of absence from port could be measured and controlled in accordance with Community obligations.

Explanation of particular features of the Order

5. On the preamble, the Committee may wish to have an explanation of why, when the Order is expressed ­ subject to a minor qualification ­ not to form part of the law of Scotland or Northern Ireland, the Secretaries of State for Scotland and Northern Ireland are nonetheless included as makers of the Order. The explanation is as set out below:

  • In the text of section 30 of the Fisheries Act 1981, the enabling power is granted to "the Ministers", defined as the Minister of Agriculture, Fisheries and Food and the Secretaries of State respectively concerned with sea fishing in Scotland, Wales and Northern Ireland.

  • Under the devolution settlement, this power to legislate in relation to Scotland was transferred to the Scottish Ministers (section 53 Scotland Act 1998 and SI 1999/1620), the power to legislate in relation to Wales was transferred to the National Assembly for Wales (SI 1999/672) and the power to legislate in relation to Northern Ireland was transferred to the Department for Agriculture and Rural Development (2002/790). The power to legislate in relation to England remained with all four Ministers.

  • In relation to the "English" power, the functions of the Secretaries of State for Wales and Scotland were subsequently transferred to the Minister of Agriculture, Fisheries and Food (SI 2000/1812); there was no equivalent for the Secretary of State for Northern Ireland. This transfer was stated not to apply in relation to any function of a Minister which was exercisable by him by virtue of paragraph 5 of Schedule 3 to the Government of Wales Act 1998. The power of the Minister of Agriculture, Fisheries and Food was transferred to the Secretary of State for Environment, Food and Rural Affairs (SI 2002/794).

  • As far as the Welsh devolution settlement is concerned, the Assembly now has power to make orders under section 30(2) of the Fisheries Act in relation to activities in Wales and in the territorial sea adjacent to Wales. The substance of the provisions in Annex XVII (that is, the restriction on the number of days fishing boats may be at sea) does not apply within the territorial sea adjacent to Wales, and so no Welsh legislation would have been necessary to implement the Annex to that extent.

  • However, in order for this regime to be effective, the ancillary control and enforcement measures (e.g. restrictions on where cod may be landed, powers of inspection) need to apply in Wales.

  • Although the devolved authorities in Scotland and Northern Ireland are making parallel legislation, it has been decided, with the agreement of the Welsh Assembly Government, that this order will also apply in Wales and the territorial sea adjacent to Wales, using the retained concurrent power to legislate for Wales in a devolved area for the purposes of implementing a European Community obligation (paragraph 5 of Schedule 3 to the Government of Wales Act 1998).

1. It follows that the power to legislate for these purposes remains with the Secretary of State for Environment, Food and Rural Affairs and the Secretaries of State respectively concerned with sea fishing in Scotland, Wales and Northern Ireland.

2. The opportunity is also taken to explain the background to the decision to use various two month periods with double the number of days specified in paragraph 6(a) of the Annex used as a basis of entitlement ­ see article 3(2). Annex paragraph 11(a) empowers a member State to permit any of its vessels to aggregate monthly absences from port over periods of no more than two consecutive months. By virtue of the fact that no alternative appears to be provided for in article 3(2) of the Order, that permission is on the surface turned into a requirement, and consideration has been given as to whether that would be within the discretion available to the United Kingdom. It was recognised that in general the imposition of a standard two month (rather than one month) period added flexibility for the benefit of fishermen, by giving them the power, which they would not otherwise have, to choose which specified days among the two months they would be absent from port. To that extent, in terms of the Annex, it is a type of permission[1], and one which is considered to be of major advantage to the trade. There are, however, two respects in which an imposed two month period could possibly reduce flexibility, one in respect of change of gears at the one month point[2], and the other in respect of averaging permitted days between gears[3]. Both of these derive from the application of paragraph 9 of the Annex, and accordingly that paragraph is given specific mention in article 4, which has been added to preserve the flexibility deriving directly from the Annex which could otherwise have been lost.

3. Consideration has also been given as to whether it might be inconsistent with the enabling power to include article 3(3)(a), which provides for the possibility of additional days being granted by the Commission under paragraph 6 of the Annex. It was concluded that recognition of that possibility involved neither unauthorised subdelegation nor implementation of future obligations. The grant of extra days by the Commission under that paragraph does not call for any change to the text of the Annex, and the net effect of such a grant is automatically to reduce the scope of the requirement to remain in port. It was accordingly accepted that the extra days eventuality could be catered for now rather than by amendment of the SI text on each occasion of such a grant. The phrase "for the purpose of being such an addition" was inserted as the terms of any grant and the type of gear to which it might be applied will only be known when the grant is made.

4. Additionally, an explanation is offered for article 3(3)(b) which, for the purpose of absence from port in the initial control period, adds days of absence taken up in February 2003 before the Order came into force. Clearly this is needed to give effect to the Annex but, given that the enabling power does not expressly extend to retroactive measures, the question whether such a provision could validly be included in the Order was considered. It was concluded that nothing in that provision rendered unlawful anything that was lawful before the Order came into force or vice versa, and it was therefore considered that it was within the scope of this Order to supplement the Annex by such a provision. It is parallel in material respects to provision included in implementing measures for the introduction of Community dairy produce quotas in 1984 , the statutory instrument containing which was discussed closely with the Committee's then advisers before it was made.

5. A further provision calling for explanation is article 3(6), which deals with the possibility (not expressly covered in the Annex) of a single net being carried from port in order to be fastened to two or more boats at the same time for fishing purposes. By virtue of this provision all the relevant boats are treated as carrying the gear even though on journeys to or from the fishing ground the gear will almost certainly be carried by only one of them. This was considered a necessary consequence of the Annex from the perspective of equal treatment, and therefore appeared clearly to fall within the scope of the UK's obligation under paragraph 5 of the Annex (the member state's duty to ensure compliance).

6. Finally, in relation to article 6(2) and Schedule 1, the opportunity is taken to explain why the form required to be completed for notification of transfer of days between vessels is not fully specific on the type of gear to which a transfer relates. Pending any clarification with the Commission, the present working assumption for operating purposes, used in preparing guidance to the trade, is that the overall purpose of the Annex (see Recitals (12) and (13) and Article 10 of the Council Regulation) is the recovery of cod stocks, the stock which would be caught using the gear in paragraph 4(a) of the Annex, and that on that basis the conversion of 4(a) gear days in the hands of a donor to 4(b) to (f) days in the hands of a recipient (but not vice versa) would be consistent with the Annex. If however that turns out to be incorrect and transferred days cover specific types of gear only (the text of article 6 aims to be consistent with either interpretation), it is currently anticipated that the combination of transfer notifications and logbook entries required to be made, as referred to in and added to by article 11 of the Order, should be sufficient to provide information needed for the required controls.

7 February 2003

1   As an example, the options are wider for a vessel entitled to be absent for 30 days during April and May combined than would be the case were it only allowed to be absent for 15 days in April and 15 days in May. Back

2   Taking April and May as an example, it would be possible, but for the required two month period, to replace both types of gear at the end of April by different types of gear. Back

3   The gear covered by paragraph 4b of the Annex, for example, is usable in the 2b and 2c areas for 15 days per month and the gear covered by 4e or 25 days. If April and May are taken a single period, and both gears are used, there is a maximum total use of 40 days, so the maximum usable for the 4e gear comes to 39. If however they are treated separately and only the 4e gear is used in April then there is a maximum use of 25 days in April and 19 days in May (assuming use of 1 day of the 4b gear) coming to a total of 44. Back

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