Drawing special attention to various Statutory Instruments - Statutory Instruments Joint Committee Contents


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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Prepared 5 July 2011