Joint Committee on Statutory Instruments Twenty-Seventh Report

2   S.I. 2008/1584: reported for doubtful vires and not conforming to proper legislative practice

Lyme Bay Designated Area (Fishing Restrictions) Order 2008 (S.I. 2008/1584)

2.1  The Committee draws the special attention of both Houses to this Order on the grounds that, in one respect, there appears to be a doubt as to whether it is intra vires and that, in the same respect, it does not accord with proper legislative practice.

2.2  The Order was made under provisions of the Sea Fish (Conservation) Act 1967, and prohibits dredging for shellfish and demersal trawling in a specified area. One such provision is section 15(3) which empowers Secretaries of State to confer on British sea-fishery officers, where it is thought necessary for the enforcement of any such order, any or all of the powers conferred on them for other purposes by section 8(2) to (4) of the Sea Fisheries Act 1968. Section 8(2) of that Act empowers a British sea-fishery officer for enforcement purposes to require any relevant fishing boat to stop and do "anything else which will facilitate the boarding of the boat". Section 10 of the Sea Fisheries Act 1968, which (as a result of section 15(5) of the Sea Fish (Conservation) Act 1967) applies for the purposes of the Order, makes failure to comply with such requirements offences on the part of crew members.

2.3  Article 3(2) of the Order accordingly empowers a British sea-fishery officer to require a relevant fishing boat to stop and do anything else facilitating boarding—to which it adds "or disembarkation".

2.4  In response to the Committee's query as to the reference to disembarkation, the Department for Environment, Food and Rural Affairs, in a memorandum printed at Appendix 2, justifies inclusion of that reference, in legal terms, on the basis of two linked propositions. The first is that the consequences of disembarkation not being implicitly included in the concept of boarding would in context be so strange (given in particular that allowing an officer on but not off the boat might be false imprisonment) that implicit inclusion is not just a possible but also a necessary interpretation; the second, logically and clearly derived from the first, is that the enabling power does not carry an obligation to follow the exact wording of section 8(2), and thus the clarification of the wording is no more outside the power than any other variation of style (such as gender neutral drafting) that does not extend the substance. The Department then reinforces that argument with a further one—that increasing the clarity helps to avoid on-board disputes about the powers of British sea-fishery officers.

2.5  The Committee agrees that the enabling power does not hamstring the Department as to the actual wording it uses in cases where there is no doubt as to the meaning, but it is not persuaded that the enabling power necessarily extends to disembarkation. First, in literal terms boarding and disembarkation are opposite. Secondly, a purposive interpretation that the one must carry the other is arguably defeated by the specific consequence quoted in its favour by the Department—for, if refusing to permit a person to disembark already comprised the tort of false imprisonment, there was good reason, at the time Parliament enacted the relevant legislation, for it to have concluded that there was no need for the tort to be reinforced by a statutory power backed by a criminal sanction. It follows in the Committee's view that the interpretation remains a matter of doubt.

2.6  It appears from the memorandum that—as indicated above—a factor in the Department's approach was the increasing of the leverage of British sea-fishery officers over crew members when on board. Had the Department followed the wording of the enabling provision, it could still—on the basis of its preferred interpretation—have indicated in Departmental guidance its working assumption that the provision was wide enough to embrace disembarkation and thus that lack of co-operation might give rise to prosecution. If the Department was right that there could be no doubt as to its meaning, that type of guidance could have indeed helped to provide the required leverage. If, in contrast, the meaning remains a matter of doubt, the disguising—in secondary legislation —of the existence of the doubt has to be regarded as undesirable, as (if followed more widely) it would aid those preparing Bills to hide awkward implications from Parliament by leaving difficult matters blurred when preparing primary legislation—a view with which there is no reason to suppose the Department does not agree. The Committee accordingly reports article 3(2), first on the ground that there appears to be a doubt as to whether it is intra vires and secondly on the ground that, to the extent of that doubt, its deviation from the wording of the enabling power does not accord with proper legislative practice.

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