51st Report, 2015 (Session 4): Subordinate Legislation

SP Paper 794 (Web)

Contents

Report
Introduction
Points raised: Instruments subject to negative procedure

Sea Fishing (EU Control Measures) (Scotland) Order 2015 (SSI 2015/320) (Rural Affairs, Climate Change and Environment Committee)

No points raised
Annexe

 

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and

(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule.

Membership:

Nigel Don (Convener)
John Mason (Deputy Convener)
Richard Baker
John Scott
Stewart Stevenson

Subordinate Legislation

Introduction

1. At its meeting on 22 September 2015, the Committee agreed to draw the attention of the Parliament to the following instrument—

Sea Fishing (EU Control Measures) (Scotland) Order 2015 (SSI 2015/320).

2. The Committee’s recommendations in relation to the above instrument are set out below.

3. The Committee determined that it did not need to draw the Parliament’s attention to the instruments which are set out at the end of this report.

Points raised: Instruments subject to negative procedure

Sea Fishing (EU Control Measures) (Scotland) Order 2015 (SSI 2015/320) (Rural Affairs, Climate Change and Environment Committee)

4. This Order makes a technical updating of provisions relating to the implementation and enforcement in Scotland of obligations under two EU Regulations (Regulation (EC) No 1224/2009 (“the Control Regulation”) and Regulation (EU) No 404/2011 (“the Implementing Regulation”), and to ensure consistency with the rest of the UK. The Order aims to ensure that the Scottish provisions are consistent with both EU and UK statutory measures on sea fishing.

5. The Order includes a number of provisions which bring Scottish technical control measures into line with the terminology used in the Control Regulation and the Implementing Regulation. Amendments are also made to specified instruments, and the Order consolidates a number of previous instruments.

6. The Committee considers that the meaning of one provision in the Order could be clearer, as follows. Article 23 enables court orders to secure the recovery of a fine imposed for an offence under the Order. Article 23(1)(a) provides that where a court has imposed a fine on any person in respect of an offence under the Order, that court may, for the purpose of recovering the fine, order any boat involved in the commission of the offence and its gear and catch to be detained for a period not exceeding 3 months from the date—

(i) of the conviction or until the fine is paid;
(ii) the order is renewed for a further period (not exceeding 3 months); or
(iii) on which a warrant is issued under subparagraph (b),

whichever first occurs.

7. The Committee considers that there is a lack of clarity in that provision, as structured (and disagrees with the Scottish Government’s response in this respect, the correspondence can be found in the Annexe). The meaning of the provision could be clearer, given that plainly (i) in the preceding paragraph specifies 2 alternative dates— the date of conviction or until the fine is paid. The provision could be clearer in providing that it does not enable the court to order the detention of a boat, etc., for a period of up to 3 months after the date when the fine is paid.

8. The Committee considers that the lack of clarity is reinforced if the situation is considered where there is no renewal of order or issue of a warrant, under (ii) and (iii) in paragraph 6. In that situation the provision permits the court to order detention of a boat etc. “for a period not exceeding 3 months from the date- (i) of the conviction or until the fine is paid;…whichever first occurs.” The conviction will always come before payment of the fine for the offence convicted. In the view of the Committee, the provision does not clearly provide that the court cannot order detention for a period after the fine is paid (the purpose of the order being the recovery of the fine).

9. Incidentally, the Scottish Government contends in its response that the same wording of the provision has been used in a number of previous instruments relating to sea fisheries. In our view, reference back to earlier instruments with a similar provision does not bind the Committee in considering this Order. We also note that a slightly different drafting structure was adopted in the equivalent provisions in the SSIs 2006/284, 2005/330, 2004/392, 2000/53 and 2000/26, which removes the (i) to (iii) in paragraph 6 as part of the structure of the provision. At least arguably, this difference in the structure of the provision makes it clearer in those instruments that the period of detention of a boat, etc., can only run from the date of conviction until the date when the fine is paid.

10. The Committee also identified a minor drafting error in the Order, which is explained below.

11. The Committee draws the Order to the attention of the Parliament on the following reporting grounds:

(1) On ground (h), as the meaning of article 23(1)(a) could be clearer. It could more clearly provide that a court is not enabled to order the detention of a boat, its gear and catch for a period after the date when a fine is paid, the purpose of the detention being the recovery of the fine; and

(2) On the general ground in respect of a drafting error. In Part 1 of the Schedule, at inserted entry 1(da), column 3 of the table specifies a requirement in relation to EU fishing boats with an overall length of 10 metres or more, contravention of which constitutes an offence. The requirement at (b) is to submit the “landing obligation” as soon as possible, but this should refer to “landing declaration”.

12. The Committee calls on the Scottish Government to lay an amendment to correct those matters in due course.

No points raised

13. At its meeting on 22 September 2015, the Committee considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Education and Culture

Scheduled Monuments and Listed Buildings (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/328).

Finance

Land and Buildings Transaction Tax (Open-ended Investment Companies) (Scotland) Regulations 2015 (SSI 2015/322).

Infrastructure and Capital Investment

Private Rented Housing (Scotland) Act 2011 (Commencement No. 7) Order 2015 (SSI 2015/326 (C.39));

Procurement Reform (Scotland) Act 2014 (Commencement No. 1) Order 2015 (SSI 2015/331(C.40)).

Justice

International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2015 [draft];

Police Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/325).

Rural Affairs, Climate Change and Environment

Water Environment (Relevant Enactments and Designation of Responsible Authorities and Functions) (Scotland) Amendment Order 2015 (SSI 2015/323).

Annexe

On 10 September 2015, the Scottish Government was asked:

(1) Article 23(1)(a) provides that where a court has imposed a fine on any person in respect of an offence under the Order, that court may, for the purpose of recovering the fine, order any boat involved in the commission of the offence and its gear and catch to be detained for a period not exceeding 3 months from the date—

(i) of the conviction or until the fine is paid;
(ii) the order is renewed for a further period (not exceeding 3 months); or
(iii) on which a warrant is issued under subparagraph (b), whichever first occurs.

Is there any error in this provision in respect that—

(a) it appears to enable the court to order the detention of a boat, its gear and catch for a period of up to 3 months after the date when the fine is paid (where that date first occurs)- although the purpose of the order is recovery of the fine; and

(b) it appears that the date of conviction must necessarily occur before the date of renewal of an order to detain the boat for the purpose of recovery of the fine?

If despite those observations, there is not considered to be any error or lack of clarity in the provision, please explain why.

(2) In Part 1 of the Schedule, at inserted entry 1(da), column 3 of the table specifies a requirement in relation to EU fishing boats with an overall length of 10 metres or more, contravention of which constitutes an offence. The requirement at (a) is to complete a “landing declaration”, but at (b) it is to submit the “landing obligation” as soon as possible and no later than 48 hours after landing.

Is the reference to “obligation” an error, and if so (given that this specifies a requirement the breach of which is an offence), would corrective action be proposed?

The Scottish Government responded as follows:

(1) The Scottish Government does not consider that there is any error or lack of clarity in the provision.

Article 23(1)(a)(i) provides for two alternative situations where a court imposes a fine.

Firstly, it provides that a court can order a boat, and its gear and catch, to be detained for a period not exceeding three months from the date of the conviction.

Alternatively, the court can order a boat, gear and catch to be detained until the fine is paid.

Two further situations are provided for at article 23(1)(a)(ii) and (iii). The wording “whichever first occurs” relates to paragraphs (i), (ii) and (iii). It does not relate to the two alternative situations that are provided for at paragraph (i). Therefore, the provision does not enable the court to order the detention of a boat, its gear and catch for a period of up to 3 months after the date when the fine is paid. At the point at which the fine is paid, this would trigger the second of the two alternative situations referred to at paragraph (i). The 3 month period does not relate to that situation. All the alternative situations provided for are consistent with the purpose of the court order; namely, to authorise detention of a boat, and its gear and catch to facilitate recovery of the fine.

The conviction must necessarily occur before the date of any renewal of an order to detain the boat for the purpose of recovering the fine. However, the court could order a boat to be detained for a shorter period than 3 months from the date of conviction. If the fine has not yet been paid by the time the initial period expires, the court has the option of renewing the order for a further period which does not exceed 3 months. Again, the detention period under any renewed order can be shorter than 3 months. It is therefore possible that the combined period of detention authorised by an initial order and a renewed order will expire before the maximum 3 month period from the date of conviction has elapsed.

The Scottish Government is mindful that the wording used in this provision has been employed in a number of previous instruments relating to sea fisheries (including S.S.I. 2013/189, 2010/334, 2010/238, 2010/100, 2008/102, 2007/39, 2006/505, 2006/284, 2005/330, 2004/392, 2000/53 and 2000/26) without giving rise to any practical difficulties.

(2) The Scottish Government agrees that the word “obligation” in column 3 of the table at inserted entry 1(da) should read “declaration”. We are grateful to the Committee for drawing this to our attention. However, the Scottish Government considers that the meaning and the legal effect of the inserted entry is clear. Article 2(3) of the Sea Fishing (EU Recording and Reporting Requirements) (Scotland) Order 2010 (SSI 2010/334) specifically provides that column 3 of the Schedule - into which the entry in question is being inserted - is to be disregarded in relation to any question arising as to the construction of the Order.

The Scottish Government therefore does not intend to amend the reference at this time. However, it will consider any suitable opportunities that may arise in the future to clarify the reference in another statutory instrument.


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