Joint Committee on Statutory Instruments Twenty-Ninth Report

Appendix 2

S.I. 2003/1722: memorandum from the Food Standards Agency

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

1. These Regulations were made on 10th July 2003, laid on 10th July 2003 and come into force on 11th July 2003. They therefore breach the 21-day rule. This Memorandum explains the reason for the breach, which the Food Standards Agency considers to be necessary in the circumstances.

2. These Regulations are made under section 2(2) of the European Communities Act 1972.

3. They implement Commission Decision 2003/493/EC (OJ No. L168, 5.7.2003, p. 33), which was adopted on 4th July 2003, notified to member States on 4th July 2003 and published in the Official Journal on 5th July 2003.

4. Implementation of the Decision requires these Regulations to be brought into force as soon as possible.

11th July 2003

S.I. 2003/1722: further memorandum from the Food Standards Agency

1. The Committee considered the above instrument at its meeting on 15 September 2003 and requested a memorandum on the following points:

Explain the purpose of the words "In any case where such an appeal as is mentioned in paragraph (3) may be brought" in regulation 6(2). In particular, identify the circumstances where, at the time the notice is served, the officer serving it will know that such an appeal cannot be brought.

2. The purpose of the words is to cross-refer to paragraph (3) which gives any aggrieved person the right of appeal. The chances of there being no aggrieved person must be extremely small but the officer will not know, when serving the notice, who, if anyone, will be able to exercise the right to appeal as an aggrieved person. In practice, the notice will therefore need to refer to the right of appeal. The provision in question does produce this result but the matter could have been dealt with in a simpler and more straightforward

manner and we would anticipate, in drafting similar instruments in future, simply to provide that the notice shall state the right of appeal.

Regulation 6(3) requires the magistrates' court, on an appeal, to determine whether or not the notice was lawfully served. Explain the purpose and effect of the underlined words. Is it intended that the court should be able only to determine whether the requirements of paragraph (1) were complied with, or that it should also be able to determine whether the importation was lawful?

3. It is intended that the court should be able to determine whether the requirements of paragraph (1) were complied with and whether the importation was lawful. The underlined words were used because the control created by the Regulations is upon illegal imports and the words "lawfully served" conveniently covered that issue as well as service of the notice.

22nd September 2003

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