Statutory Instruments Second Report


Memorandum by the Ministry of Agriculture, Fisheries and Food


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

    Regulation (3) provides that, where the Minister decides to refuse approval for an operation or to vary an approval, he must, in addition to giving the applicant or beneficiary notice of his decision, [(b)] give that applicant or beneficiary an opportunity to make written representations, and [(c)] consider any such representations. Explain the purpose of sub-paragraphs (b) and (c), given that the Minister has already made his decision

2. The purpose of sub-paragraphs (b) and (c) of regulation 5(3) is to afford the Minister the opportunity to reconsider and, if necessary, re-take any decision to refuse or vary an approval of an operation in the light of representations made by the applicant or beneficiary.

3. Essentially, in the present case, the difference between, firstly, the Minister being minded to reach a conclusion and then reaching a decision which is different and, secondly, his taking and subsequent re-taking of a decision is a matter of semantics; the practical outcome to the applicant or beneficiary will be the same.

4. It was, however, considered that the phrase "decides to refuse approval" had the merit of being a more straightforward and readily intelligible formulation than "is minded to refuse approval", and better reflecting the reality that, unless and until the Minister decides to approve the application, any notice given by him that he declines for the present to approve it in fact reflects a decision, for the time being and subject to considering any representations made, to refuse approval. A decision which is provisional, in the sense of being open to reconsideration in the light of representations, is nonetheless a decision. Moreover, a decision to refuse approval, joined with an invitation to make representations (which clearly implies an opportunity to persuade the Minister to reconsider), followed, in the light of such representations, by a decision to approve the application, does not seem capable of causing the applicant any greater prejudice than a decision that the Minister is minded to refuse approval, followed by a decision, in the light of representations, to grant approval. Both types of decision (to refuse approval and give a notice that the Minister is likely to refuse) maintain the status quo, and the period of delay before any eventual approval will be the same in each case. In each case, too, in the event of an eventual approval of an operation, assistance will be paid in respect of all relevant expenditure incurred and the amount paid will be unaffected by the delay in granting that approval.

5. So far as variations are concerned, it may sometimes be necessary to vary the conditions subject to which the approval was granted in order to comply with requirements of Community law arising from new Community legislation or a Commission reinterpretation or clarification of existing legislation, decisions or guidance. In such cases it may be necessary to ensure that the variation takes effect from the earliest practicable date so as to ensure the promptest compliance or to eliminate as swiftly as possible any inconsistency between the conditions of the approval and directly applicable provisions of Community legislation. In the event that the operator's representations cause the Minister to change his decision, the conditions may be subject to a further variation. The provisional nature of the variation is implicit in the invitation to make representations and the opportunity to make a further variation. As with a refusal of approval, a decision to vary conditions, coupled with such an invitation to make representations in relation to the variation (which again clearly implies an opportunity to persuade the Minister to reconsider), followed (in the light of such representations) by a further variation, does not seem capable of causing any greater prejudice to the operator than a decision that the Minister is minded to vary the conditions and subsequent decision (in the light of representations) not to vary them or to vary them differently. This is because any enforcement action regarding any breach of a varied condition will not in practice be taken until the representations have been considered and a decision has been made as to whether any further variation is necessary.

6. The Committee will wish to be aware that identical wording has been used in the Energy Crops Regulations 2000 (S.I. 2000/3042), the Rural Enterprise Regulations 2000 (S.I. 2000/3043), the Vocational Training Grants (Agriculture and Forestry) Regulations 2000 (S.I. 2000/3045) and the Agricultural Processing and Marketing Grants Regulations 2000 (S.I. 2000/3046).

8 December 2000

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