Memorandum from the Department for Environment,
Food and Rural Affairs
FUR FARMING (COMPENSATION SCHEME) (ENGLAND) ORDER
2001 (S.I. 2001/3853)
1. The Committee has requested the Department to
submit a memorandum on the following question:
"In Schedule 3, the factor "X"
has a value 1, 2 or 6 according to the date on which the entitled
person "ceased to keep mink for one or more
of the relevant purposes". Explain the effect of this where
a person ceases to keep mink for one of the relevant purposes
on one date, and on another date ceases to keep mink for a different
purpose, such that more than one of the values is applicable.
Should the words cited have read "ceased to carry on a qualifying
2. The intended effect of Schedule 3 is that the
amount of the interim payment due to an entitled person reduces
according to the date on which the activities to be prohibited
by section 1 of the Fur Farming (Prohibition) Act 2000 come completely
to an end. The Department considers that the wording used, read
in the context of the Order as a whole, achieves that intended
3. The Department agrees that the words highlighted
by the Committee ("ceased to keep mink for one or more of
the relevant purposes") are capable, if taken alone, of being
read both in the sense suggested by the Committee (i.e. that X
can have more than one value) and in the sense in which the Department
intends (i.e. that X is determined by the date on which the activities
to be prohibited by section 1 ceased completely). However, the
Department considers that the intended meaning is clear when the
words are read not in isolation but in the context of the Order
as a whole.
4. The Department submits that sub-paragraphs (a),
(b) and (c) in Schedule 3 to the Order define mutually exclusive
tests for the determination of X. From the structure of the Order
as whole, it is clear that there can be only one interim payment
(calculated using X) to be made to each applicant.
5. The expression "for one or more of the relevant
purposes" is used in a number of places in the Order in relation
to keeping mink. In each case, it is used to contrast a situation
where mink are kept, regardless of the number of relevant purposes
for which they are kept, with a situation where no mink are kept
for any relevant purpose. Under article 4(2), a first-stage application
cannot be made until no mink are kept for a relevant purpose.
An interim payment cannot be made until after a first-stage application
has been determined. Thus, by the time Schedule 3 falls to be
applied, no mink must be kept for any relevant purpose. The Department
considers that the natural meaning of the phrase "ceased
to keep mink for one or more of the relevant purposes" in
Schedule 3 ought to reflect the contrast found elsewhere in the
Order between keeping and not keeping mink for any relevant purpose.
6. For the reasons stated above, the Department believes
that the provision about which the Committee has expressed concern
would be construed by a court in such a way that there was only
one applicable value for X: namely, the value applicable to the
date on which the entitled person ceased to carry on the activity
of keeping mink for any of the relevant purposes, for all of them
or for any other permutation of them.
7. Nevertheless, although the Department believes
the provision would be held to have the meaning intended, it accepts
that it is defectively drafted to the extent that it could have
been more clearly expressed.
18th January 2002