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
Given the terms of section 15(3) of the Sea Fish
(Conservation) Act 1967 (whichas read with section 8(2)
of the Fisheries Act 1968appears 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
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 Acton
the basis that "boarding" in the Order will carry the
extended meaning implicit in the Actor 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