Appendix 1
S.I. 2011/2159: memorandum from
the Department for Environment, Food and Rural Affairs
Veterinary Medicines Regulations 2011 (S.I. 2011/2159)
The Committee has asked the Department for Environment,
Food and Rural Affairs for a memorandum on the following points:
(1) Given the terms of paragraph
1(1)(c) of Schedule 2 to the European Communities Act 1972, explain
the reasoning steps by which the Department concluded that paragraph
14(7) of Schedule 3 was within the enabling power.
1. Paragraph 1(1)(c) of Schedule 2 to the ECA provides:
"The powers conferred by section
2(2) of this Act to make provision for the purposes mentioned
in section 2(2)(a) and (b) shall not include power—
(a) . . .
(b) . . .
(c) to confer any power to legislate
by means of orders, rules, regulations or other subordinate instrument,
other than rules of procedure for any court or tribunal; or"
Paragraph 14(7) of Schedule 3 of VMR provides:
"(7) The Secretary of State may issue a Code
of Practice for suitably qualified persons, and a body recognised
under this paragraph must take appropriate action in accordance
with any disciplinary code that applies to that body if a suitably
qualified person registered with it does not comply with the Code
of Practice."
2. The Department understands the Committee's concern
is that the requirement for a body recognised by the Secretary
of State under paragraph 14 of Schedule 3 to the Regulations to
take appropriate action in accordance with any disciplinary code
if the Code of Practice is not complied with might have the effect
that the power to issue the Code of Practice is to be regarded
as a power to legislate.
3. The Department considers that a Code of Practice
which is not contained in legislation is not generally regarded
as legislative in nature, even if it was issued under legislation.
Any such Code of Practice is (in the Department's view) generally
if not invariably a set of rules, either self-imposed or imposed
for the purpose of providing a framework for self-regulation,
which regulates professional behaviour and which is not intended
to have the force of law, but rather is intended to have such
force as is derived from whatever internal regulatory sanctions
(of social, commercial or contractual nature) are available to
the professional class for whose regulation it exists. In the
Department's view, there is generally an assumption underlying
any Code of Practice that some such sanctions exist for ensuring
adherence to the Code. Otherwise, in the absence of any supervision
of the Code, the Code would cease to have any practical function.
The mere existence of such sanctions does not affect the essential
fact that the Code does not have the force of law (in a public
law sense).
4 The Department considers that any such Code of
Practice does not amount to legislative provision merely because
a person is identified as the person under an obligation to ensure
compliance with it, which of course entails that there must be
a mechanism available to that person for ensuring such compliance.
Nor does it amount to legislative provision merely because the
legislation refers to the existence of that mechanism.
5. Nor (in the Department's view) does the character
of a Code of Practice change so that it must be regarded as legislative
merely because the general nature of the mechanism to be applied
for the purpose of ensuring compliance is referred to in the legislation
(whether generically, as in the reference here to any applicable
disciplinary code, or otherwise).
6. A fortiori, this is the case where the
Code of Practice is intended to be imposed by means of a contract
between the specified body and the regulated class of persons,
and the mechanism for ensuring compliance is a sanction which
is similarly applicable by the specified body in accordance with
such contractual provision, as again is the case here. The contract
in this case is one by which recognition as a suitably qualified
person by maintaining that person's name in the register of the
recognised body is conferred in consideration of the retention
by the recognised body of a power to remove that person's name
from the register in certain circumstances.
7. In addition, the narrowness of the class of persons
to whom the Code of Practice applies in this case further militates
against the Code of Practice being regarded as legislative provision.
(2) What is the intended
sanction for non-compliance with paragraph 17(2) and (3) of Schedule
5 and how is the intention achieved?
8. It is intended that the sanction for non-compliance
with paragraph 17(2) and (3) of Schedule 5 should be a criminal
offence. The Department accepts that, unfortunately, this provision
making it a criminal offence has been omitted from the paragraph.
The Department will accordingly amend paragraph 17 of Schedule
5 to the Regulations at the next available opportunity.
Department for Environment, Food and Rural Affairs
11th November 2011
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