INSTRUMENTS REPORTED
The Committee has considered the following instruments,
and has determined that the special attention of both Houses should
be drawn to them on the grounds specified.
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GENETICALLY MODIFIED ANIMAL FEED (ENGLAND)
REGULATIONS 2004; GENETICALLY MODIFIED FOOD (ENGLAND) REGULATIONS
2004: UNEXPECTED USE OF ENABLING POWER
Genetically Modified Animal Feed (England) Regulations 2004 (S.I. 2004/2334);
Genetically Modified Food (England) Regulations 2004 (S.I. 2004/2335)
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1.1 The Committee draws the special attention of both Houses
to these instruments on the ground that they make an unexpected
use of the enabling power.
1.2 Regulation 5(1) and (2) of each instrument provides
that any person who, after the date on which these Regulations
come into force, contravenes certain specified Community provisions
shall be guilty of an offence. It was not clear to the Committee
why the underlined words had been included and whether they were
intended to have the effect that a contravention on the date on
which the Regulations came into force would not be an offence.
In a memorandum printed in Appendix 1, the Food Standards Agency
states that this effect was intended and that, in the light of
the Committee's Fourteenth Report of Session 2002-03 in relation
to S.I. 2003/229, the intention was to make it clear that the
penalty provisions in the present instruments were not to be construed
as purporting retrospectively to penalise contraventions of the
relevant Regulation occurring prior to their coming into force.
The relevant EC Regulation (No. 1829/2003) had itself come into
force on 18 April 2004.
1.3 The Committee, while recognising the need for
the provisions in question not to have (or appear to have) retrospective
effect, does not consider that the omission of the underlined
words could be taken to have that effect. The omission would mean
that a contravention of any specified Community provision on or
after the date the instruments came into force would be an offence.
It would not mean that a contravention of the EC Regulation before
the date the instruments came into force would be an offence,
even though the EC Regulation took effect before that date. The
position is different from that considered by the Committee in
relation to S.I. 2003/229 since the provision in question there
had the apparent effect of rendering criminal (on the date the
instrument came into force) a contravention which occurred during
a period prior to that date. The memorandum suggests that the
Agency would not have included the underlined words had it appreciated
that the omission would not have resulted in the provisions having
any retrospective effect. The Committee reports regulation
5(1) and (2) of each instrument on the ground that it makes an
unexpected use of the enabling power.
2
GENETICALLY MODIFIED ORGANISMS (TRACEABILITY
AND LABELLING) (ENGLAND) REGULATIONS 2004; GENETICALLY MODIFIED
ORGANISMS (TRANSBOUNDARY MOVEMENTS) (ENGLAND) REGULATIONS 2004:
DEFECTIVE DRAFTING
Genetically Modified Organisms (Traceability and Labelling) (England) Regulations 2004 (S.I. 2004/2412);
Genetically Modified Organisms (Transboundary Movements) (England) Regulations 2004 (S.I. 2004/2692)
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2.1 The Committee draws the special attention of both Houses
to these instruments on the ground that they are defectively drafted.
2.2 Regulation 8(1) of S.I. 2004/2412 provides that
it shall be an offence for a person- [(c)] without reasonable
excuse to fail to comply with any requirement imposed under regulation
5; [(d)] without reasonable excuse to fail to comply with a request
made under regulation 5(3)(g) or regulation 6; [(e)] without reasonable
excuse to fail to comply with the requirements of a notice issued
under regulation 7. The Committee asked the Department for Environment,
Food and Rural Affairs to explain the need for regulation 8(1)(d)
in relation to regulation 5(3)(g), since the latter provision
imposes a requirement and is therefore covered by the terms of
regulation 8(1)(c). In a memorandum printed at Appendix 2, the
Department accepts the Committee's suggestion that the intended
result could be achieved more clearly by omitting regulation 8(1)(d)
and adding a reference to regulation 6 in regulation 8(1)(e),
that is, by inserting "regulation 6 or" before "regulation
7". The Department also mentions that a similar problem arises
in relation to regulation 8(1) of S.I. 2004/2692. It undertakes
to make the necessary amendments to both instruments at the next
possible opportunity. The Committee reports regulation 8(1)
of each instrument for defective drafting, acknowledged by the
Department.
3
PLANT HEALTH (PHYTOPHTHORA RAMORUM)
(ENGLAND) ORDER 2004: DEFECTIVE DRAFTING
| Plant Health (Phytophthora ramorum) (England) Order 2004 (S.I. 2004/2590)
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3.1 The Committee draws the special attention of both Houses
to this Order on the ground that it is defectively drafted.
3.2 In a memorandum printed at Appendix 3, the Department
for Environment, Food and Rural Affairs acknowledges that it inadvertently
failed to include any sanction for a breach of article 6(1) and
(2) and article 7(1) and (3) (which impose restrictions on the
movement of certain material and, in the case of article 7(3),
a notification requirement). It undertakes to amend the Order
at the earliest possible opportunity. The Committee accordingly
reports the Order for defective drafting, acknowledged by the
Department.
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