Joint Committee on Statutory Instruments Fourteenth Report

Further memorandum from the Department for Environment, Food and Rural Affairs


1. In a letter dated 4 March 2003, the Joint Committee on Statutory Instruments requested the Department for Environment, Food and Rural Affairs to submit a memorandum on the following points:

(1) 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 (1 February 2003 to 31 December 2003) contravenes the provisions 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. Explain the effect of article 3(1) in the light of the underlined words, and whether it has the effect that a person who contravened the provisions mentioned in that article (and in particular the relevant prohibition in paragraph 6(a) (prohibition on vessel's absence from port while carrying the specified fishing gear in the specified area) or paragraph 7 (vessel absent from port may not carry more than one type of specified fishing gear) of the Annex) at any time between 1 and 8 February 2003 was guilty of an offence when the Order came into force on 8 February 2003. If so, explain what authorises this retrospective effect, and how article 3(1) is compatible with Article 7(1) of the Human Rights Convention.

(2) Article 12(2) (penalties) refers to a person "convicted of an offence under article" but without specifying the article(s) in question. Identify the provision(s) contemplated.

2. With regard to point (1), the Department accepts that article 3(1)(a) appears on its face to have the effect of rendering criminal an activity which takes place between 1 and 8 February, which is before it came into force. It was not the policy intention to do this.

3. The Department considers that a court would not construe article 3(1) as having such a retrospective effect for the following reasons. First, in the absence of clear words in section 30(2) of the Fisheries Act 1981, there is no vires for the Order to have such a retrospective effect. Secondly, we also consider that in the light of article 7(1) of the European Convention on Human Rights, a court would exercise its duty under section 3 of the Human Rights Act 1998 to interpret secondary legislation in a way which is compatible with the Convention, by reading in words so as to interpret article 3(1) as only applying to any part of the period specified in Annex XVII following the coming into force of the Order.

4. Nevertheless, the Department acknowledges that this lack of retrospectivity should be clear on the face of the Order. The Order was initially drafted in this way because the Department intended for it to come into force on 1 February. When it became apparent that this would not be possible, the draft was amended so that the prohibition in article 3(1)(b) as read with 3(2)(b) would not criminalise activity taking place before the order came into force. This provision was brought to the attention of the Committee in the Department's previous memorandum. Due to an oversight, similar steps were not taken regarding article 3(1)(a).

5. With regard to point (2), articles 3(1), 8 and 9 should have been specified in the leading part of article 12(2), and the words "in respect of an offence under article 3(1), 8 or 9," should have been omitted from article 12(2)(b). The Department acknowledges that this was a drafting error.

6. An amendment to Annex XVII of Council Regulation 2341/2002 is currently being negotiated, and as a result of this, an amending order is likely to be required shortly. The Department proposes to take that opportunity to amend both of the provisions identified by the Committee.

10 March 2003

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