8 Proposed and possible secondary
legislation and codes of practice
286. We have already discussed the substance of the
delegated powers which the Government proposes to include in the
draft Bill. In the following parts we deal with the policy which
the Government proposes to implement, or may choose to implement,
by way of these delegated powers. The Government has set out most
of its proposals for secondary legislation in the annexes to the
Regulatory Impact Assessment (RIA) accompanying the draft Bill.
The Government has also indicated its position on other possible
proposals for secondary legislation in the course of oral evidence.
287. There is clearly a great deal of public interest
in these proposals. The bulk of the written evidence we received,
and much of the oral evidence we heard, was concerned with commenting
on them. In this part, we briefly summarise the evidence received
and give our preliminary views. We intend to return to the issues
discussed below in more detail when we conduct pre-legislative
scrutiny of future draft regulations and orders, assuming that
the Minister accepts our recommendation, discussed in part 5.
Timing
of proposed secondary legislation
288. Annex L to the RIA sets out Defra's intended
timetable for implementing its current policy proposals. The timetable
covers the next six or so years and is based on the assumption
that the Bill will be enacted in 2005. Defra intends to introduce
the secondary legislation in two tranches: the first tranche within
a year of the Bill being enacted and the second tranche by the
end of 2010.
289. It is important to emphasise that Defra's policy
proposals are just that—proposals. Attaching these proposals
as annexes to the RIA does not give these proposals any legal
status. There is no guarantee that the proposals will not change
or that they will in fact be implemented at all. Furthermore,
there is nothing to prevent Defra bringing forward proposals to
regulate areas which are not mentioned in the RIA annexes, if
and when the draft Bill is enacted.
290. Most of the policy proposals referred to in
annex L are set out in earlier annexes to the RIA. However, some
proposals are not referred to anywhere in the draft Bill document.
The relationship between annex L and the other RIA annexes is
illustrated by the following table. Where it is clear how Defra
intends to implement a proposal—by way of regulations, orders
or codes of practice—this is indicated.
Relationship between annex L and other policy proposals
| Tranche
| Proposed regulations/order/code of practice
| Proposals annexed to RIA?
|
| First
| Licensing of riding schools (regulations)
| No
|
| Licensing of livery yards (regulations)
| Annex F
|
| Licensing of dog and cat boarding (regulations)
| No
|
| Licensing of pet shops (regulations)
| No
|
| Licensing of pet fairs (regulations)
| Annex B
|
| "Other means of selling animals"
| No
|
| Breeding of game birds (code of practice)
| Annex I
|
| Exemptions to ban on mutilations (orders)
| Annex G (tail docking only)
|
| Tethering of horses (code of practice)
| Annex F
|
| "Definition of the welfare offence"
| No
|
| Second
| Animal sanctuaries (regulations)
| Annex E
|
| Performing animals (regulations)
| Annex A
|
| Racing greyhounds
| Annex H
|
291. We discuss the proposals contained in each of the two tranches
below. However, we are unclear what Defra means by its reference
in annex L to "definition of the welfare offence". Our
understanding is that the clause 3 welfare offence is a stand-alone
provision; secondary legislation would not be required for the
offence to have effect. We acknowledge that any regulations made
under clause 6(1) would effectively give context to the clause
3 offence, but we do not consider that they are required in order
to "define" the offence. We
recommend that, at such time as the Bill may be introduced to
Parliament, the Government clarify its reference in annex L to
the Regulatory Impact Assessment to regulations it intends to
make within a year of the Bill's enactment that would effectively
"define" the clause 3 welfare offence. Such regulations
would appear to be in addition to the proposed regulations about
which the Government has provided details in the annexes to the
RIA.
292. Similarly, we are unclear what Defra has in
mind with its reference to "other means of selling animals"—presumably,
a reference to means other than pet shops and pet fairs. The only
possible annex of relevance to this reference is annex D, which
sets out proposals to regulate the sale of pet animals over the
internet and establishments that breed small mammals for the pet
trade. We recommend that,
at the same time, the Government also clarify its reference in
annex L to regulations it intends to make within a year of the
Bill's enactment in order to regulate means of selling animals,
other than pet shops and pet fairs.
Secondary
legislation and codes of practice
293. If the Bill is enacted in its present form,
Defra's policy proposals will need to be implemented either by
way of secondary legislation or by codes of practice. Secondary
legislation will form part of the law of the land, and includes
regulations made under clause 6(1) and orders made under clause
1(5). Codes of practice made under clause 7 will be issued for
the purposes of practical guidance and will not be law, although
they will carry some evidential weight in proceedings taken under
the Act.[230]
294. Within each of the two tranches, we have organised
our discussion of Defra's proposals in terms of the delegated
power in the draft Bill under which Defra proposes to implement
each proposal.[231]
We deal first with policy proposed to be implemented by way of
regulations made under clause 6(1), then with policy proposed
to be implemented by way of orders made under clause 1(5), and
lastly with policy proposed to be implemented by way of codes
of practice issued under clause 7.
230 Clause 7(4) Back
231
Or under which it would presumably seek to implement the proposal
in question. Back
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