Joint Committee on Statutory Instruments Eleventh Report


Memorandum by the Ministry of Agriculture, Fisheries and Food


  The Committee, by letter dated 30 July 1997, requested that a memorandum be submitted on the following points:

  1. Given that the recital of powers refers to the exercise of powers under section 17(1) and (2) of the Food Safety Act 1990, and under section 2(2) of the European Communities Act 1972, identify the provisions made under section 17 and the provisions made under section 2(2).

  Section 2(2) of the European Communities Act 1972 was relied upon for -

    (a)   making those provisions which regulate or concern activities not directly relating to food or food sources (regulations 3, 4, 9(2) and (3), 24(1) and 33);

    (b)   making regulations in so far as they regulate or concern activities in relation to substances or products that are neither food nor food sources (regulations 5, 6(2) and (3), 11, 13 to 23, 25 to 28 and 30); and

    (c)   the revocation in whole or part of those instruments in Schedule 2 which were made in exercise of the powers under section 2(2) (regulation 36).

  The remainder of the regulations are made under powers in the Food Safety Act 1990. None of the regulations is made solely in reliance on section 17 of that Act. It is the Ministry's practice, when implementing or providing for the enforcement and execution of Community obligations in instruments made under that Act, to cite the appropriate subsection or subsections of section 17 together with such other sections of the Act as give power to make the necessary provisions in the instrument.

  2. In relation to the definition of "enforcement authority" in regulation 2(1), explain -

    (a)   who is the enforcement authority for the purposes of regulation 22;

    (b)   whether the enforcement authority (except for the purposes of regulations 12, 20, 21 and 23(1)(b)) is intended to be:

      (i)   the Ministers and the food authority/local authority, or

      (ii)   the Ministers or the food authority/local authority.

    (a)   The enforcement authority for the purposes of regulation 22 is intended to be the Ministers only but in error that regulation is not referred to as a provision excepted from those to be enforced by the Ministers and food authorities/local authorities. The Ministry will correct this omission in Regulations ("the amending Regulations") to be made before the end of the year.

    (b)   The enforcement authority (other than for the purposes of the excepted regulations) is intended to be the Ministers and the food authority/local authority.

  3. Regulation 2(1) provides that the expression "`unauthorised substance' includes Annex IV substances, prohibited substances and unlicensed substances". Explain what other substances are intended to be comprised in that expression.

  Other substances intended to be comprised within that expression are those which fall within the definition of "unauthorised substances" in Article 2(a) of Council Directive 96/23/EC. In the amending Regulations the Ministry proposes to amend this regulation to insert after the words "unauthorised substances" the words "has the meaning given by Article 2(a) of Directive 96/23 and".

  4. Various provisions of the Regulations refer to "authorised substance" and "beta-agonist". Explain what is meant by these expressions, and why they are not defined.

  In the Regulations both of these expressions are, by virtue of regulation 2(3), intended to have the same meaning as they bear in Council Directive 96/22/EC and Council Directive 96/23/EC. Because the expression "beta-agonist" is defined in Article 2(i) of Council Directive 96/23/EC but is not defined in Council Directive 96/22/EC the form of words used in regulation 2(3) was relied upon rather than making reference to the specific meaning given in Directive 96/23.

  5. In regulation 3(4) the first presumption (relating to sale of certain substances for administration to an animal) is applicable "until the contrary is proven", whereas the second presumption (relating to animal or animal products intended for human consumption) is not subject to a similar qualification. Is this difference intended? If so, explain the reason for the difference.

  The Ministry accepts that for the reason of consistency the second presumption should be subject to a qualification similar to that in the first presumption and the amending Regulations will make an appropriate amendment.

  6. Regulation 15(3), for the purposes of the duties to give analysis certificates to the relevant person or give his name and address to an analyst, defines "relevant person" as the owner of the animal or substance from which the sample was taken or the owner of the premises where the sample was taken. In circumstances where there is both an owner of the animal or substance and an owner of the premises (who is a different person), who is the relevant person?

  Where the owner of the animal or substance is a different person from the owner of the premises then either person could be the relevant person. It is submitted that in such circumstances the authorised officer who carried out the sampling will give some thought as to what enforcement action may be considered subject to the result of the analysis. The officer may take into account the nature of the possible enforcement action and against whom it may be taken in deciding who to treat as the relevant person for the purposes of regulations 15 to 17. In relation to a given sample it was intended, that, for the purposes of regulations 16 and 17, the relevant person would be whoever was the relevant person for the purposes of regulation 15. The amending Regulations will clarify this.

  7. Regulation 20 authorises an officer to require an animal's owner to detain or remove it and authorises him to do so "by notice in writing reasonably given to the owner". Explain whether "reasonably" refers to the length of notice to be given or to the decision to require the animal to be detained or removed.

  The word "reasonably" is intended to refer to the requirements specified in the notice relating to detention or removal. If the notice requires an animal to be detained at, or removed to, a particular place the officer has to act reasonably in requiring it to be detained at, or removed to, that place. The Ministry will clarify this in the amending Regulations.

  8. Regulation 23(2) makes the offences specified in paragraph (1) triable either way, that is, either on indictment or summarily, and, as regards summary conviction, states the maximum fine in terms of "level 5 on the standard scale". Given that section 35(2) and (3) of the parent Act (the Food Safety Act 1990) expresses the maximum fine on summary conviction (for offences triable either way) in terms of the "statutory maximum", explain why this formulation is not followed in regulation 23(2).   The Ministry accepts that the formulation "the statutory maximum" should have been used and will make the requisite amendment in the amending Regulations.

  9. Regulation 34(4) applies the sampling powers of section 29 of the parent Act with the substitution of "these Regulations" for "section 32" [of that Act] in the provision of section 29 which describes the premises where the substance must be as "premises which [the officer] is authorised to enter by or under section 32".

    Explain -

    (a)   the identification of that provision of section 29 as [paragraph] "(a)(ii)", rather than "(b)(ii)";

    (b)   why the substitution is not "section 32 as applied by this regulation" (rather than "these Regulations") as the correct identification of the power to enter premises.

  The Ministry accepts that in regulation 34(4) the provision of section 29 which should have been identified is "(b)(ii)" not "(a)(ii)" and that the correct identification of the power to enter premises is "section 32 as applied by this regulation" rather than "these Regulations". The appropriate amendments will be made in the amending Regulations.

  10. In view of the fact that the definition in regulation 2(1) of "maximum residue limit" refers to Council Regulation (EEC) No. 2377/90 amended by the 27 Regulations specified in Schedule 1, please furnish 6 copies of a consolidated text of the Regulation as so amended.

  Save for Council Regulation (EC) No. 434/97 the amendments made by the Regulations mentioned in Schedule 1 are confined to the Annexes to Council Regulation (EEC) No. 2377/90. Six copies of those Council Regulations accompany this memorandum and the Annexes to Regulation No. 2377/90 are in consolidated form.

12th August 1997

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