Appendix 4
S.I. 2012/3050: memorandum from
the Home Office
Animals (Scientific Procedures) Act 1986 (Fees)
Order 2012 (S.I. 2012/3050)
1. In a letter of 16th January the Committee
requested the Home Office to submit a Memorandum on the following
point in relation to the Animals (Scientific Procedures) Act 1986
(Fees) Order 2012:
"Having regard to the matters discussed in paragraph
3 of the Explanatory Memorandum laid before Parliament in connection
with this Order, explain what vires there were to make
the Order on the day on which it was made."
2. Paragraph 3.1 of the Explanatory Memorandum provided:
"This order is consequential upon amendments
made to the Animals (Scientific Procedures) Act 1986 by the Animals
(Scientific Procedures) Act 1986 Amendment Regulations 2012 which
have not yet been approved by both Houses of Parliament. If they
are approved, those Regulations will come into force on January
1st 2013. We are laying this Order before Parliament
now in order to comply with the 21 day rule as these minor changes
to the fees provisions will also need to be in force on 1st
January 2013. By doing this we intend no disrespect to Parliament
and are making no assumptions. If the Regulations are not approved
by Parliament this fee order will be revoked before it comes into
force."
3. The Animals (Scientific Procedures) Act 1986 (Fees)
Order 2012 (S.I. 2012/3050) ("the Order") was made
under section 8 of the Animals Scientific Procedures Act 1986
("the Act") as amended by The Animals (Scientific Procedures)
Act 1986 Amendment Regulation 2012 (S.I. 2012/3039) ("the
Regulations").
4. The Order was made on the 7th December
2012 and it came into force until the 1st of January
2013. The Regulations also came into force on the 1st
of January 2013.
5. Section 8 of the Act was amended by regulation
26(3) of the Regulations. Regulation 26(3) omitted "certificate
issued under section 6 or 7 above" and substituted "section
2C licence." The Regulations were much delayed, our original
intention having been to have them made in November. They were
not laid until 29 October and not made until 18 December.
6. The Order amended the terminology so as to accord
with the amended section 8 of the Act. The Home Office took the
view that, given the change in terminology in the Act, it was
best to start afresh with fee orders, rather than merely to amend
existing fee orders. At the time the Order was made (i.e. on the
7th of December) the fees were being charged on the
Act with the old terminology; we obviously had to change the fee
order to make sure we could continue to charge fees. We initially
took the view that we had the vires, because the amendments to
terminology in section 8 of the Act were coming into force on
the same day that our order was coming into force. At the point
when our order came into force the new terminology in section
8 of the Act also came into force; so at that point our order
crystallised with the amendments made to the primary legislation.
This was an anticipatory exercise of powers in the Regulations.
However, although a draft of the Regulations had been laid in
both Houses before 7 December when the Order was made, we now
accept that as the Regulations had not at that date been made
and so section 13 of the Interpretation Act1978 (as applied to
subordinate legislation by section 23) cannot be invoked to provide
vires for the Order.
7. The Home Office therefore accepts that there were
no vires to make the Order on 7 December 2012 and will ensure
that the Order is revoked and re-made. We will also investigate
whether any fees were charged improperly under the Order and ensure
that, where possible, these are re-paid.
Home Office
22 January 2013
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