Joint Committee on Statutory Instruments Twenty-Ninth Report

2 S.I. 2003/1722: defective drafting

Food (Brazil Nuts) (Emergency Control) (England) Regulations 2003 (S.I 2003/1722)

2.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted.

2.2 Paragraph (1) of regulation 6 provides that, if on an inspection or examination of any Brazil nuts it appears to an authorised officer that they have been imported in contravention of regulation 3, he may, after appropriate consultation with a person appearing to him to be the importer, serve on that person a notice ordering the re-dispatch of the nuts to the country of origin or their destruction.

2.3 Paragraph (2) provides that in any case where such an appeal as is mentioned in paragraph (3) may be brought the notice shall state the right of appeal and the period within which an appeal may be brought. Paragraph (3) states that any person who is aggrieved by the decision of an authorised officer to serve a notice may appeal to a magistrates' court, which shall determine whether or not the notice was lawfully served.

2.4 Given that, at the time he serves a notice, the authorised officer will not be able to determine whether or not anyone will be able to exercise the right of appeal, the Committee questioned the purpose of the italicised words in paragraph (2). In a memorandum printed at Appendix 2, the Food Standards Agency acknowledges that, in practice, every notice will need to refer to the right of appeal. The italicised words are therefore otiose and should not have been included. The Committee accordingly reports regulation 6(2) for defective drafting, acknowledged by the Agency.

2.5 The Agency also states that it is intended that the court, on an appeal, should be able to determine both whether the requirements of paragraph (1) were complied with and whether the importation was lawful. It asserts that, as the control created by the Regulations is upon illegal imports, the words "lawfully served" conveniently cover that issue as well as service of the notice. The Committee does not accept this assertion. A notice will be lawfully served if (a) it appears to the authorised officer that nuts have been imported in contravention of regulation 3; (b) he forms that view on an inspection or examination; (c) there is appropriate consultation with a person appearing to him to be the importer; (d) the notice is served on that person; and (e) the notice refers to the right of appeal. Thus any erroneous but reasonable opinion on the part of the authorised officer as to the lawfulness of the importation or as to the identity of the importer will not affect the lawfulness of the service of the notice.

2.6 Thus, paragraph (3) does not adequately express the intended power of the court. In order for the Agency's stated intention to be achieved, paragraph (3) should have conferred a general power for the court to determine whether the notice should be upheld or set aside. This would enable the court to consider all the facts of the case. The Committee accordingly reports regulation 6(3) for defective drafting.

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