3 S.I.
2011/1197: Reported for requiring elucidation
Trade in Animals and Related Products Regulations
2011 (S.I. 2011/1197)
3.1 The
Committee draws the special attention of both Houses to these
Regulations for failure to comply with proper drafting practice
in one respect, and on the grounds that they require elucidation
in four respects.
3.2 These Regulations replace eight earlier instruments
and cover trade between member States in live animals and genetic
material and their importation (and that of products of animal
origin) from outside the European Union.
3.3 The preamble
records that the Treasury consented to the making of the Regulations
in accordance with section 56(1) of the Finance Act 1973; but
that section is not recorded as a power under which the instrument
was made. The Committee asked for an explanation of the omission
and, in a memorandum printed at Appendix 3, the Department for
Environment, Food and Rural Affairs accepts that it is an error
and undertakes to correct it in the annual edition. Given that
the identification of the consent makes the error obvious and
that a preamble cannot be varied by amendment, the Committee agrees
that the mechanism for rectification is appropriate. The
Committee accordingly reports the preamble for failure to comply
with proper drafting practice, acknowledged by the Department.
3.4 Regulation 13 refers to a "border
inspection post designated for that animal or product". The
Committee asked for an explanation of the process of designation.
In the memorandum the Department explains that designation is
to be effected as part of the process of approval (which is expressly
provided for by the Regulations), and why the term "designated"
rather than "approved" was used. The Committee notes
that, had the concepts been expressly linked in the text, the
question whether there might be a separate subordinate procedure
would not have arisen, but it accepts that—in the absence
of any subordinate procedure—the Department's explanation
works. The Committee accordingly reports regulation 13 as requiring
the elucidation provided in the Department's memorandum.
3.5 Regulation 15(3) requires the official
veterinary surgeon not to issue an entry permit unless, amongst
other things, "the correct fee ... has been or will be
paid". The Committee, concerned that objective conditions
for performance of a duty should be verifiable at the time that
performance is required, asked why a fact that it considered could
not be verified was included as a possible condition. In the memorandum
the Department explains that "many importers leave a bond
to ensure payment", and the Committee accepts that in those
cases objective verifiability applies and that the picture is
complete. The Committee accordingly reports regulation 15(3) as
requiring the elucidation provided in the Department's memorandum.
3.6 Regulation 22(3) requires a person responsible
for a consignment, in certain circumstances, to lodge a deposit
or guarantee "sufficient to assure payment of all charges"
on the next ten consignments. There is no express sanction for
failure to comply with this requirement, and the Committee asked
how it is to be enforced. In the memorandum the Department states
that an entry permit is not issued if this requirement is not
satisfied. The Committee accepts that regulation 15 confers discretion
on the official veterinary surgeon to refuse an entry permit in
such circumstances but does not consider that it establishes the
certainty asserted in the Department's statement. The Committee
accordingly reports regulation 22 as requiring elucidation largely
but not completely provided in the Department's memorandum.
3.7 Regulation
39 lists the provisions breach of which is an offence. Paragraph
2 of Schedule 2 (as read with regulation 1) requires each person
in England transporting cattle, pigs, sheep or goats between member
States to comply with the paragraph (sub-paragraph (1)); sub-paragraph
(2) of that paragraph requires the transporter to be approved
for the purpose by the Secretary of State; sub-paragraphs (3)
to (6) contain requirements as to register entries, register keeping,
means of transport and undertakings. The Committee asked why paragraph
2 was not listed in regulation 39, and in the memorandum the Department
explains that enforcement will be effected by revoking the approval
if necessary, so that a criminal offence is not needed. The Committee
accepts that paragraph 2 confers discretion
on the Department to revoke an approval in the case of failure
to comply with requirements in sub-paragraphs (3) to (6) but does
not consider that the explanation covers transport without approval.
The Committee accordingly reports regulation 39 as requiring elucidation
largely but not completely provided in the Department's memorandum.
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