ANIMALS AND ANIMAL PRODUCTS (EXAMINATION
FOR RESIDUES AND MAXIMUM RESIDUE LIMITS) REGULATIONS 1997 (S.I. 1997/1729)
2. The Committee draws the special attention of both Houses
to these Regulations on the grounds that they are defectively
drafted in seven respects and that the Explanatory Note is incomplete.
The recital of powers refers to the exercise of powers under
section 17(1) and (2) of the Food Safety Act 1990 and under section
2(2) of the European Communities Act 1972. The Committee asked
the Department to identify the provisions made under section 17
of the 1990 Act and those made under section 2(2) of the 1972
Act, as required by paragraph 2.101 of Statutory Instrument
Practice. The Ministry of Agriculture, Fisheries and Food
reply in a memorandum printed in Appendix I that regulations 3,
4, 5, 6(2) and (3), 9(2) and (3), 11, 13 to 23, 24(1), 25 to 28,
30, 33 and 36 were made under section 2(2) of the European Communities
Act 1972 and the remainder of the regulations were made under
powers contained in the Food Safety Act 1990. The Committee reports
the Explanatory Note to the Regulations for being incomplete because
it does not contain this information.
The Committee asked the Department to explain, in relation
to the definition of "enforcement authority" in regulation
2(1), who is the enforcement authority for the purposes of regulation
22. The Department reply that the enforcement authority is intended
to be the Ministers only, and add that they will correct this
omission in amending Regulations to be made before the end of
this year. The Committee reports regulation 2(1) for defective
drafting, acknowledged by the Department.
Regulation 2(1) provides that the expression "unauthorised
substances" "includes Annex IV substances, prohibited
substances and unlicensed substances". The Committee asked
the Department what other substances are intended to be included
in this definition. The Department reply that other substances
intended to be included are those which fall within the definition
of "unauthorised substances" in Article 2(a) of Council
Directive 96/23/EC. They propose in their amending Regulations
to insert after the words "unauthorised substances"
the words "has the meaning given by Article 2(a) of Directive
96/23 and". The Committee reports regulation 2(1) as presently
drafted for defective drafting, as the definition does not make
it clear what exactly the expression "unauthorised substances"
comprises. The Committee wishes to observe that it does not consider
that the Department's proposed amendment would be sufficiently
clear since a mere reference to Article 2(a) of the Directive
would not indicate what substances are included which are not
covered by the other expressions used in the definition.
In regulation 3(4) the first presumption (relating to sale
of certain substances for administration to an animal) is applicable
"until the contrary is proven". The second presumption
(relating to animal or animal products intended for human consumption)
is not subject to a similar qualification. The Committee asked
the Department to explain the reason for this difference. The
Department state in their memorandum that the second presumption
should be subject to a qualification similar to that in the first
presumption, and that they will correct this mistake in the amending
Regulations. The Committee reports regulation 3(4) for defective
drafting, acknowledged by the Department.
Regulation 15(3), for the purposes of the duties to give
analysis certificates to the relevant person or give his name
and address to an analyst, defines "relevant person"
as the owner of the animal or substance from which the sample
was taken or the owner of the premises where the sample was taken.
The Committee asked the Department who is the relevant person
when the owner of the animal or substance and the owner of the
premises are different people. The Department explain that in
these circumstances either person could be the relevant person,
and that it would be for the authorised officer to determine who
the relevant person was, having regard to possible enforcement
action provided for in the Regulations. The Committee considers
that regulation 15 is defectively drafted as it does not make
it clear that, in these circumstances, it is the officer's determination
that resolves who is the relevant person for the discharge of
Regulation 20 authorises an officer to require an animal's
owner to detain or remove it and authorises him to do so "by
notice in writing reasonably given to the owner".
The Committee asked the Department to explain whether "reasonably"
refers to the length of notice to be given or to the decision
to require the animal to be detained or removed. The Department
reply in their memorandum that the latter proposition is intended,
and that they will make this clear in the amending Regulations.
The Committee reports regulation 20 for defective drafting, acknowledged
by the Department.
Regulation 23(2) makes the offences specified in paragraph
(1) triable either way (ie. either on indictment or summarily)
and, as regards summary conviction, states the maximum fine in
terms of "level 5 on the standard scale". Section 35
of the parent Act (the Food Safety Act 1990) expresses the maximum
fine on summary conviction (for offences triable either way) in
terms of the "statutory maximum". The Committee asked
the Department why this formulation was not used in regulation
23(2) of the present Regulations. The Department accept that the
formulation used in the parent Act should have been used in these
Regulations, and undertake to make the requisite amendment in
the amending Regulations. The Committee reports regulation 23(2)
for defective drafting, acknowledged by the Department.
Regulation 34(4) provides that "Section 29 of the Act
(procurement of samples) shall apply subject to the modification
that for the words "section 32 below" in sub-section
(a)(ii) there shall be substituted the words "these Regulations"".
The Committee asked the Department to explain, first, the identification
of that provision of section 29 as "(a)(ii)" rather
than "(b)(ii)", and, secondly, why the substitution
is not "this regulation", to make the amended provision
read "section 32 as applied by this regulation", rather
than "these Regulations". The Department accept in answer
to the first question that the provision should have been identified
as "(b)(ii)" and not "(a)(ii)"; and agree
in answer to the second question that the correct identification
of the power to enter premises is "section 32 as applied
by this regulation". They state that the appropriate amendments
will be made in the amending Regulations. The Committee reports
regulation 34(4) for defective drafting, acknowledged by the Department.
LOCAL GOVERNMENT ACT 1988 (COMPETITION)
(WALES) REGULATIONS 1997 (S.I. 1997/1699)
3. The Committee draws the special attention of both Houses
to these Regulations on the ground that they may be ultra vires.
The Regulations are made under section 6(3) of the Local
Government Act 1988. Part I of this Act requires certain work
of local authorities to be put out to competition. Section 6 prohibits
an authority from carrying out functional work unless specified
procedures for competitive tendering are followed. The section
becomes applicable to such work only if the work is of a description
prescribed by regulations under subsection (3). By an amendment
to this section (made by the Local Government Act 1992), such
regulations may describe work by reference to a specified proportion
of work of a particular description. The specified proportion
of the functional work regulated by the Local Government Act 1988
(Competition) (Legal Services) (Wales) Regulations 1997 (S.I. 1997/126)
(which is subject to the restriction in section 6 of the 1988
Act) is defined in the substituted definition in regulation 5(1)(a)
of the present Regulations as an amount equal to the amount produced
by the formula set out in the definition. The Committee asked
the Welsh Office whether this formula is capable of producing
a nil or negative amount and, if so, what is the effect of a nil
or negative amount on the application of section 6. The Committee
has already reported that the corresponding Scottish instrument
may be ultra vires as, in effect, the section 6 power was
being used "to disapply or exempt from the prohibition on
carrying out prescribed work without putting it out to competitive
tender". Furthermore, the Committee noted, "the power
to describe work by reference to a specified proportion cannot
properly include the power to prescribe a proportion which is
zero. A proportion cannot be a nil quantity".
The Welsh Office explain in a memorandum printed in Appendix
II that the formula will usually produce a positive monetary figure,
but that it is possible that it could produce a nil or negative
figure (and that a negative figure would have the same effect
as a nil figure). The Department indicate that they have noted
the Committee's report on S.I. 1997/197, but submit that "in
the context of the purposes of Part I of the 1988 Act it does
not necessarily follow that regulations under section 6(3) cannot
have the effect that . . . the specified proportion may be nil".
They go on to explain the operation of the formula, and emphasise
that it must be applied each financial year and cannot therefore
permanently disapply section 6 of the 1988 Act. Local authorities
can arrange how they perform the work in question in successive
years by increasing the credit elements in the formula and thereby
reducing in a subsequent year what proportion must then be put
out to competitive tendering. Despite the full explanation given
by the Department, it nevertheless appears to the Committee that
if the formula produces a negative or nil figure, section 6 of
the 1988 Act will be effectively disapplied for the year. The
power in section 6(3) (as amended) to exempt a specified proportion
of work would therefore be being used to disapply section 6. Moreover,
"proportion" means a portion, division or part of a
whole (Oxford English Dictionary) and cannot (in the absence
of any express indication to the contrary) be regarded as including
a nil quantity. The Committee's view is supported by the fact
that in the 1988 Act section 13(4) regards "proportion"
as a part of a greater whole and that at least one legislative
provision (that is, section 28A(4) of the Pensions Act 1993) expressly
states that a prescribed proportion (or percentage) may be nil,
where that is the intention of Parliament. The Committee therefore
repeats its conclusion that the words of section 6(3) of the 1988
Act are inadequate to enable a "nil" application of
section 6 to be achieved, and reports these Regulations on the
ground that they appear to be ultra vires.
1 * The Orders of Reference of the Committee are set
out in the First Report, Session 1997-98 (HL Paper 4; HC 33-i). Back
Government Act 1988 (Competition) (Scotland) Regulations (S.I.
1997/197) in Sixteenth Report, Session 1996-97, paragraph 8. Back