Joint Committee on Statutory Instruments Twenty-Fourth Report

Instruments reported

The Committee has considered the following instrument, and has determined that the special attention of both Houses should be drawn to it on the grounds specified.

1 S.I. 2003/1328: defective drafting and dubious vires

Protection of Animals (Anaesthetics) (Amendment) (No. 2) (England) Order 2003 (S.I 2003/1328)

1.1  The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted, giving rise to doubt as to its vires.

1.2  Under section 1 of the Protection of Animals (Anaesthetics) Act 1954 certain operations on animals performed without anaesthetic are deemed to be performed without due care and humanity, thereby constituting an offence under the Protection of Animals Act 1911. Paragraph 6 of the First Schedule to the Act excludes from section 1 the castration of male animals below a specified age. One such exclusion is for pigs below 4 weeks.

1.3  Section 1(3) of the Act gives Ministers power to amend the ages specified in paragraph 6 of the First Schedule. The Act extends to the whole of Great Britain and this amending power has been devolved, in relation to Wales, to the National Assembly for Wales and, in relation to Scotland, to Scottish Ministers.

1.4  Article 2 of the Order, which was made by the Secretary of State, substitutes the following new entry for pigs in paragraph 6 of the First Schedule-

  "pig, in Wales, 4 weeks; and in England, 8 days".

1.5  It seemed to us that this textual substitution had the apparent effect of removing any exception for pigs as regards Scotland and we therefore asked the Department for the Environment, Food and Rural Affairs whether this is the effect and if so, given the devolution of the power to Scottish Ministers as regards Scotland, what authorised the Secretary of State to make this provision.

1.6  In a memorandum printed in the Appendix, the Department states that the substitution made by article 2 was intended to leave paragraph 6 of the First Schedule to the 1954 Act unchanged in relation to its application to Scotland, and that this indeed is the effect of the substitution. However, the Committee notes that the apparent effect of the substitution made by article 2, which refers to England and Wales only, is to remove the current exception for pigs as regards Scotland, and that the Department concedes that any attempt by the Secretary of State to amend the 1954 Act in relation to Scotland would be ultra vires. The proper course in this particular case (as the Department accepts) would have been to retain the existing entry with the addition "but in England 8 days". This would be more appropriate than the alternative approach suggested by the Department of including in the Order an express extent provision excluding its application to Scotland, since the effect of the substitution would be to leave the text of the Act (which affects the criminal law) unclear in relation to Scotland. Since the amendment was intended to apply only in relation to England, it should have been drafted so as to make it clear on the face of the Act that this was the effect. The Committee accordingly reports article 2 for defective drafting giving rise to a doubt as to whether it is intra vires.

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