1.The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following points:
(1) Explain how the phrase “where possible” in regulation 2(c)(i) is limited to the example given in paragraph 7.3 of the Explanatory Memorandum.
(2) Explain why regulation 2(40)(b) omits the second sentence rather than the third of point 8.2 of Annex 5 to Regulation (EC) No. 999/2001.
(3) Confirm whether the “devolved authorities” to which regulation 5(12) refers and “each devolved authority” to which regulation 6(94) refers are the Welsh Ministers, the Scottish Ministers and the Department of Agriculture, Environment and Rural Affairs, and if so why the defined term “appropriate authority” was not used.
(4) Explain the meaning of the following phrase, which results from the amendment made by regulation 6(20)(b)(i)(aa): “it was produced at least 21 days before the date of entry into the Union kept in a third country United Kingdom kept in the European Union or a third country outside the European Union or region thereof”.
(5) Confirm whether the model certificates contained in Annex 15 to Regulation (EU) No 142/2011 will be amended by another instrument to remove inappropriate references to the European Union, and to be consistent with the introductory paragraph and notes in that Annex as amended by regulation 6(92).
2.In relation to point (1), the Department understands the Committee to be referring to the inclusion of the words “where possible” in the sentence substituted by regulation 2(4)(c)(i) in Article 6(4) of Regulation (EC) 999/2001. The Committee asks how the phrase “where possible” is limited to the example given in paragraph 7.3 of the Explanatory Memorandum, namely the case where the impossibility is occasioned by the current absence of an Assembly in Northern Ireland.
Paragraph 7.3 of the Explanatory Memorandum reads:
7.3 In Article 6(4) of Regulation (EC) 999/2001 there is a requirement for Member States to report to the European Commission on monitoring programmes. This is being replaced by a requirement to report to national bodies. However because at present Northern Ireland has no Assembly the words “where possible” (to submit an annual report) have been inserted.
3.The Department accepts that the phrase “where possible” is not in terms limited to this example. The Department, however, finds it difficult to conceive of any other plausible case where the requirement to report to national bodies is inherently incapable of being complied with by the appropriate authority.
4.In relation to point (2), it was indeed the third sentence (referring to the requirement on a Member State to inform the Commission of the use of a derogation) that was intended to be omitted (rather than the second sentence). The Department will bring forward an amending instrument to correct this error at the earliest opportunity. The significance of the error is limited as there is no reliance by the UK on any such derogation.
5.In relation to point (3), the term “devolved authority” has (by virtue of section 11 of the Interpretation Act 1978) the meaning given by section 20(1) of the European Union (Withdrawal) Act 2018, namely “the Scottish Ministers, the Welsh Ministers or a Northern Ireland department”. The term “appropriate authority”, which in addition includes the Secretary of State, was not used in the instances to which the Committee refers so as to exclude Article 3A(2), as inserted by regulation 5(5), and so avoid suggesting the possibility that the Secretary of State might carry out the relevant obligations on behalf of the devolved authorities with their consent, which in these contexts would not have made sense.
6.In relation to point (4), the Department regrets this error. The words inserted should instead have been substituted for the words “Union kept in a third country”. Additionally, however, the wording of the EU Regulation appears to have inadvertently omitted the word “and” after “Union”. This should have been inserted after “United Kingdom” in order to make sense of the provision, so that the phrase resulting from the amendment read: “it was produced at least 21 days before the date of entry into the United Kingdom and kept in the European Union or a third country outside the European Union or region thereof”. The Department will bring forward an amending instrument to correct this error at the earliest opportunity.
7.In relation to point (5), the Department confirms that the model certificates to which the Committee refers are being omitted in a separate instrument (see regulation 10(10)(c) of the Animals (Legislative Functions) (EU Exit) Regulations 2019) which confers on the appropriate authority power to publish or make them available elsewhere in place of the Commission’s existing powers at Article 21(5), 42(2)(d) and 48(7)(c) of Regulation (EC) No 1069/2009.
Department for Environment, Food and Rural Affairs
5 March 2019
Published: 15 March 2019