S.I. 2006/3281: memorandum from the Department for Culture, Media and Sport

Films (Certification) Regulations 2006 (S.I. 2006/3281)

1.  The Committee has requested is a memorandum on the following point:

"Explain why, in the case of an application referred to in regulation 7(2), that provision does not additionally provide for the 1985 Regulations to continue to have effect as if "these Regulations" had not been made.

2.  Regulation 7(2) relates to outstanding applications for certification of films that commenced principal photography before 1st April 2006. Its purpose is to provide that the Films (Certification) Regulations 1985 (No. 994) continue to apply to such films, which will fall to be determined in accordance with Schedule 1 to the Films Act 1985 as it was in force before 1st April 2006. Notwithstanding regulation 7(1), the 1985 Regulations will apply, as amended by S.I. 1999/2224 and S.I. 1999/2334 only.

3.  We did not expressly mention that the 1985 Regulations should continue to have effect as if the Films (Certification) Regulations 2006 had not been made as we considered that was implicit from the express provision that the 1985 Regulations should continue to have effect as if the Films (Certification) (Amendment) Regulations 2006 (No. 642) had not been made. We considered that this implication is reinforced when paragraphs (2) and (3) of regulation 7 are read consecutively as it is clear from regulation 7(3) that the Films (Certification) Regulations 2006 are to be disregarded when considering any application that falls to be determined in accordance with Schedule 1 to the 1985 Act as it was before those Regulations came into force and what regulation 7(2) does is to provide that additionally, in respect of applications falling to be determined in accordance with the Schedule as it was before 1st April 2006, the Films (Certification)(Amendment) Regulations 2006 are also to be disregarded.

4.  We do not consider that a sensible construction could be given to the alternative reading of regulation 7(2) that the 1985 Regulations should continue to have effect if the Films (Certification) (Amendment) Regulations 2006 had not been made but that the 1985 Regulations should continue to have effect as the Films (Certification) Regulations 2006 had been made. The replacement by the latter of all the substantive provisions of the 1985 Regulations would leave nothing material to be determined by the 1985 Regulations supposedly preserved by paragraph (2).

5.  However, the Department accepts that this matter could have been put beyond doubt if regulation 7(2) had been drafted differently and we will consider whether the provision should be reworded at a suitable opportunity.

Department for Culture, Media and Sport

23rd January 2007