Joint Committee on Statutory Instruments Eleventh Report


ELEVENTH REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINIZE STATUTORY INSTRUMENTS*[1]

ORDERED TO REPORT:

  1. The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

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 these duties.

  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[2] 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

2   Local Government Act 1988 (Competition) (Scotland) Regulations (S.I. 1997/197) in Sixteenth Report, Session 1996-97, paragraph 8. Back


 
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