Joint Committee on Statutory Instruments Thirty-Third Report


THIRTY-THIRD REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.[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.

  2. A memorandum by the Department of Health in connection with the Walsgrave Hospitals National Health Service Trust (Establishment) Amendment Order 1998 (S.I. 1998/812), the Lancaster Priority Services National Health Service Trust (Dissolution) Order 1998 (S.I. 1998/815), the Community Health Care: North Durham National Health Service Trust (Dissolution) Order 1998 (S.I. 1998/822), the Bishop Auckland Hospitals National Health Service Trust (Dissolution) Order 1998 (S.I. 1998/823), the Gateshead Hospitals National Health Service Trust (Dissolution) Order 1998 (S.I. 1998/824), the Gateshead Healthcare National Health Service Trust (Dissolution) Order 1998 (S.I. 1998/826), the South Durham National Health Service Trust (Dissolution) Order 1998 (S.I. 1998/828), the North Durham Acute Hospitals National Health Service Trust (Dissolution) Order 1998 (S.I. 1998/830), and the Darlington Memorial Hospital National Health Service Trust (Dissolution) Order 1998 (S.I. 1998/833) is printed in Appendix I to this Report.

CATTLE IDENTIFICATION REGULATIONS 1998 (S.I. 1998/871)

  3. The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unexpectedly narrow exercise of powers, resulting in an inadequate implementation of a Community obligation.

  These Regulations are made under section 2(2) of the European Communities Act 1972 and make provision for the administration of Title 1 of Council Regulation 820/97 and Commission Regulation 2629/97. Together these Regulations envisage a scheme comprising the ear tagging of cattle, notification of their births to the enforcing authority, ensuring that they are accompanied by a passport, keeping records on the holding and the establishment of a computerised database. The Committee was concerned that, for the period following the establishment of the database and before 1st January 2000, these Regulations did not seem to implement properly one of the Community obligations set out in the Council and Commission Regulations.

  Commission Regulation 6(3) provides that the period within which the keeper of cattle must notify the Member State's authorities of the birth of an animal is to be what the Member State determines, provided that the period does not "in any case exceed 15 days from the date on which the animal is tagged". The obligation to notify the authorities of a birth is met in the domestic Regulations by the keeper applying for a cattle passport. Regulation 3(2) of the domestic Regulations provides that the keeper shall apply ear tags to an animal (a) in the case of a dairy herd, within 36 hours of the birth of the animal; and (b) in the case of any other herd, within 30 days of the birth of the animal. Regulation 13(1) goes on to provide that any keeper of cattle shall apply for a cattle passport within "15 days from the date on which the animal must be tagged". The domestic Regulations therefore provide that a keeper must apply for a cattle passport within 15 days of the date on which the animal must be tagged, whereas Commission Regulation 6(3) stipulates that a keeper must notify birth of an animal within 15 days of the date on which the animal is tagged. In view of this apparent discrepancy, the Committee invited the Ministry of Agriculture, Fisheries and Food to give oral evidence (the Department's written memorandum and a transcript of their oral evidence is printed in Appendix II).

  In response to questioning, the Department admitted that there is a discrepancy between regulation 13(1) and article 6(3) (Question 13), but contended that article 6(3) is unenforceable as it stands because the Community instruments do not require the keeper to notify the Member State's authorities of the date on which they tag the animal (Question 14), and that they had to choose a date which could be determined (Question 18). They noted that there is a general obligation in article 21 of the Council Regulation to ensure that the system is enforceable (Question 13). The Committee concludes that, given the admitted discrepancy between the provisions of the Commission Regulation and the domestic Regulations, it is its duty to report regulation 13(1) to both Houses on the grounds that it makes an unexpectedly narrow exercise of powers in failing to implement a Community obligation. It accepts, however, that the Department were placed in an extremely difficult position by the terms of the Commission Regulation. The Department assured the Committee that they had made this point at the time the Regulation was being drafted (Question 30).

FISHING VESSELS (SAFETY PROVISIONS) (AMENDMENT) RULES 1998 (S.I. 1998/928)

  4. The Committee draws the special attention of both Houses to these Rules on the grounds that they are defectively drafted in two places.

  This instrument is made under section 2(2) of the European Communities Act 1972. The Committee asked the Department of the Environment, Transport and the Regions how the power in section 2(2), which is to make regulations or Orders in Council, can authorise the making of rules. The Department admit in a memorandum printed in Appendix III that the provisions should be in the form of regulations and not rules, and say that they regret the error. The Committee reports for defective drafting, acknowledged by the Department.

  The Committee asked the Department to explain, given that these Rules apply only to vessels registered in the United Kingdom (rule 1(2) as substituted by rule 4), why they purport to exercise the power in section 307 of the Merchant Shipping Act 1995 (which is a power to extend the legislation to non-United Kingdom ships), and to identify the additional rules which are made in exercise of it. The Department acknowledge that the reference to section 307 is superfluous and state that they regret its inclusion. The Committee reports the recital of powers to the instrument for defective drafting, acknowledged by the Department.


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


 
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