Memorandum by the Ministry
of Agriculture, Fisheries and Food
1. The Joint Committee considered
the above instrument at its meeting on 23 March 1999 and requested
a memorandum on the following point:
Regulation 4(1)(a) requires
any person to supply such information as the Minister may reasonably
require for the purpose of calculating the SRM charge or of notifying
an occupier or owner of it. Explain what provision is made for
notifying the "owner" of the charge and, if there are
circumstances in which the "owner" will be notified
also, what those circumstances are.
2. As the Joint Committee recognises,
the instrument contains no provision requiring the owner
to be notified of the charge. Regulation 3(1) obliges the Minister
to send the occupier notification of the charge and regulation
3(2) refers to the notification made to the occupier in accordance
with regulation 3(1).
3. Once the charge has been
notified to the occupier, both he and the owner will be
jointly and severally liable for it: regulation 3(2).
4. Despite the fact that, as
stated above, there is no provision in the Regulations requiring
the owner to be notified of the charge, it is felt by the Department
that, for the reasons set out below, the reference to "owner"
in regluation 4(1)(a) is appropriate.
5. Since the owner will be legally
liable as soon as the charge has been notified to the occupier,
the Minister clearly needs to let the owner know what the charge
is. Regulation 4(1)(a) (which enables the Minister to require
persons to supply him with information for the purpose of, inter
alia, notifying an owner of the SRM charge) will be particularly
relevant where the identity and/or address of the owner are not
known to the Minister. For the purposes of the Regulations the
owner and the occupier cannot be the same person: see the definition
of "owner" in regulation 2. It was decided to make the
occupier and owner jointly liable for the charge to maximise the
possibility of the Minister recovering it.
6. Clearly the owner will not
be in a position to pay the debt he owes until it has been notified
to him. Indeed, notification will be necessary before any debt
recovery proceedings can be started. Thus, inclusion of the phrase
"or owner" in regulation 4(1)(a) is necessary if regulation
3(2) is to work properly where the Minister is ignorant of the
identity and/or address of the owner.
7. While, as explained above,
the Department believes that the current text of regulation 4(1)(a)
is appropriate in view of the fact that regulation 3(2) provides
that both the occupier and the owner are jointly and severally
liable for the charge once the occupier has been notified of it,
it is nevertheless felt that when the time comes to amend or replace
the Regulations, regulation 4(1)(a) could, subject to paragraph
9 below, usefully be amended along the following lines
(a) "such information
as the Minister may reasonably require for the purpose of
the SRM charge
(ii) sending an
occupier notification of it in accordance with regulation 3(1)
an owner that he is liable for the amount of the charge as a debt
in accordance with regulation 3(2) above;".
8. The advantage of such a revised
text is that it distinguishes very clearly between the notification
to the occupier made pursuant to regulation 3(1) and letting the
owner know that following that notification he is liable
for the debt under regulation 3(2).
9. The Department accepts, however,
that there should be an obligation to notify the owner of the
SRM charge for which he is jointly and severally liable with the
occupier and undertakes to look at this aspect again. If it is
decided to create such and obligation, that would have an impact
on any amendment to regulation 4(1)(a).
10. This memorandum has been
agreed with the Department of Health, the Scottish Office and
the Welsh Office.
26 March 1999