Joint Committee on Statutory Instruments Twenty-First Report


Memorandum by the Ministry of Agriculture, Fisheries and Food


(AMENDMENT) REGULATIONS 1997 (S.I. 1997/3023)

1.  The purpose of this memorandum is to respond to the Committee's letter of 21st January 1998, in which the following question was asked in relation to the above-named Regulations:

    "Regulation 4 extends the enforcement powers (inspection, sampling, examining documents) in regulation 6(3) of the principal Regulations of 1996. Paragraph (3)(e) entitles a Departmental inspector to take with him an inspector of the European Commission acting for the purposes of the relevant Directives. Regulation 4(a) of these Regulations entitles a Departmental inspector to take with him a New Zealand inspector acting under the New Zealand Equivalent Agreement with the European Community. Regulation 4(b) however, also confers on such a New Zealand inspector the enforcement powers in regulation 6(3). It is intended that he can exercise these powers independently of the (United Kingdom) Department's own inspector? If so, what Community provision authorises, or requires the United Kingdom to confer independent enforcement powers directly on New Zealand inspectors?"

2.  The Department's view is that article 10 of, and Annex VI to, the New Zealand Equivalence Agreement (OJ No. L57, 26.2.97, p4), allows New Zealand officials to exercise certain enforcement functions in their own right, although their power of entry can be tied to that of the Departments' officials. Copies of these provisions are attached for ease of reference (not printed).

3.  Article 10 deals with the verification process and confers on each Party the right to carry out an audit and verification procedure on the exporting party (article 10.1). This can include "an assessment of all or part of the responsible authorities' total control programme, including, where appropriate, reviews of the inspection and audit programmes" (article 10.1.a) and on-the-spot checks (article 10.1.b). By virtue of article 10.4, it is the New Zealand authorities which carry out the verification and audit procedures in article 10.1. Those procedures are to be carried out in accordance with Annex VI.

4.  Annex VI lays down the procedures for conducting an "audit" (an assessment of performance) which should be made in co-operation between the auditing and audited parties. Checks of establishments or facilities may be made as necessary (paragraph 1.1).

5.  Amongst the principles relating to auditees, co-operation with the auditor includes facilitating entry into establishments, as well as access to relevant regulations and documents of various kinds (paragraph 3.1).

6.  The Agreement envisages that following a review of the documents referred to in paragraph 3.1 (see paragraph 4.2), on-site verification may be required (see paragraph 4.3.2) to check compliance. It is considered that when carrying out on-site verification, a New Zealand inspector needs the power to take action of the kinds specified in regulation 6(3) of the principal Regulations, independently of any UK official who may be accompanying him or her. The New Zealand official does not, of course, have an independent power of entry under the Regulations.

7.  As requested, a copy of the first memorandum (explaining the breach of the 21-day rule) is also attached.

8.  This memorandum has been agreed with the Scottish Office.

27th January 1998

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