Joint Committee on Statutory Instruments Twenty-Seventh Report

Appendix 2

S.I. 2008/1584: memorandum from the Department for Environment, Food and Rural Affairs

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

1.  The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following point:

Given the terms of section 15(3) of the Sea Fish (Conservation) Act 1967 (which—as read with section 8(2) of the Fisheries Act 1968—appears to be the relevant enabling power for article 3(2)), why does that article include provision for requiring the facilitation of disembarkation and not just boarding?

2.  The Department's view is that the references to "go(ing) on board the boat" and "boarding" in section 8(2) of the 1968 Act impliedly extend to "leaving the boat" and "disembarkation". According to this view, Parliament must have intended that the duty to let British sea-fishery officers on board includes a corresponding duty to let them off when they have finished their work. To allow an officer on, but not off, board might be tantamount to false imprisonment. On any view, Parliament could not have intended that British sea-fishery officers be put in such an invidious position.

3.  The question then arises whether the Order should copy out the words of section 8(2) of the 1968 Act—on the basis that "boarding" in the Order will carry the extended meaning implicit in the Act—or whether it is legitimate to clarify the matter and expressly refer to disembarkation.

4.  The Department's view is that clarification is permissible. Section 15(3) of the 1967 Act allows the Department by order to confer on British sea-fishery officers those powers of an officer under section 8(2) to (4) of the 1968 Act. Article 3(2) of the Order does not in substance extend beyond section 8(2) of the 1968 Act (for the reason given in paragraph 2 above). This is so even though the Order does not use precisely the same language as section 8(2). Just as departure from the wording of the 1968 Act is defensible to comply with the principles of gender-neutral drafting, the Department felt that it was desirable to clarify that boarding includes disembarkation. Small alterations in the course of a vessel can have fatal consequences for boarding parties. It is a matter of great importance to obtain the co-operation of skippers in ensuring safe embarkation and disembarkation. Article 3(2) is part of this process because its clarity helps to avoid on-board disputes about the powers of British sea-fishery officers.

Department for Environment, Food and Rural Affairs

11th July 2008

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