Joint Committee on Statutory Instruments Thirty-Third Report


Memorandum by the Ministry of Agriculture, Fisheries and Food


1.  The Committee asked —

    Explain what provision(s) of the Council Regulation and/or Commission Regulation 2629/97 justifies the provision of regulation 3(2) imposing on the keeper of cattle the responsibility for "identifying [the] cattle by means of an eartag".
2.  Regulation 3(2) of the Cattle Identification Regulations enforces Article 4.1 of Council Regulation (EC) No. 820/97 ("the Council Regulation"). Article 4.1 of the Council Regulation is drafted in the passive, and requires that "All animals . . . shall be identified with an eartag approved by the competent authority applied to each ear". The Ministry thought it necessary to place the responsibility for applying the eartag on a named individual in the interests of enforcement; the domestic Regulations are creating criminal offences, and the Ministry wished to make it clear who commits the offence if the eartag is not applied within the specified period. As the animal has to be marked with an eartag before it is moved off the holding of birth, the keeper of the animal on the holding seemed to be the appropriate choice. This view was reinforced by the fact that Article 7 of the Council Regulation, which requires notification of births, records and deaths and the keeping of a register on the holding, imposes those duties on the keeper, and that Article 2 of the Council Regulation defines the keeper as the person responsible for animals.

3.  The Committee asked —

    Regulation 13(1) requires cattle passports for cattle born in Great Britain to be applied for within various periods (as set out in sub-paragraphs (a)-(c)) of the date for tagging under the Regulations, which in turn depends on the animal's date of birth. Explain how this provision implements Article 6(1) of Council Regulation (EC) No. 820/97 which requires passports to be issued in all cases within fourteen days of notification of the birth of the animal.
4.  Article 6(1) of the Council Regulation, as the Committee rightly points out, requires the competent authority to issue a passport within 14 days of notification of birth. However, somewhat unhelpfully, the Council Regulation does not give any time limit within which the birth has to be notified until the cattle database is operational; nor does it mention when a passport has to be applied for. This means that, although there is a duty under Community law on the Ministry to issue the passport within 14 days of notification, there is no time limit within which notification had to be made.

5.  The Ministry has a duty to enforce the Council Regulation, and had to decide on a period within which a passport had to be applied for. The Ministry decided on the figure of 28 days because that was the period used in the Cattle Passport Order 1996, which these Regulations replace.

6.  The situation will change when the computerised database described in the second indent of Article 7.1 of the Council Regulation is established. Once that database is fully operational, notification of the birth must be within 15 days of the birth and, after 1 January 2000, within 7 days of the birth. This is provided for in Article 7.1 of the Council Regulation. However, this provision was modified by Article 6.3 of Commission Regulation (EC) No. 2629/97, which specifies that the period in Article 7.1 shall be determined by the member State, and in the case of birth shall not exceed 15 days from the date the animal is tagged (instead of the date of the birth), and from 1 January 2000 shall not exceed 7 days from the date of tagging.

7.  It is envisaged that the computerised database referred to in Article 7.1 of the Council Regulation will begin operation in Great Britain at the end of September 1998.

8.  Accordingly, until that date the Ministry decided to continue with the existing time limit of 28 days. After that date the time limits are as set out in Article 6.3 of Commission Regulation (EC) No. 2629/97, and reflected in the domestic provision.

27th April 1998

Examination of witnesses


MS CATHERINE CRISHAM, Head of Legal Group A, MR ANTHONY DURKIN, Drafting Lawyer, and MR DAVID ROSSINGTON, Head of Animal Health (Disease Control) Division, Ministry of Agriculture, Fisheries and Food, examined.


  1.  Good afternoon and welcome to the Committee. Thank you for agreeing to come at short notice. We are very grateful. The format is that I shall ask a question and then my colleagues will follow on. It is fairly straightforward. I understand you do not wish to make an opening statement, is that correct?

  (Ms Crisham)  That is correct.

  2.  Basically, the Committee were concerned as to whether regulation 13(1) of your Regulations properly implements our Community obligation that the keeper of an animal must notify its birth within 15 days from the date when the animal is tagged and, as a Committee, we have taken that period up to the year 2000 following the coming into operation of the computerised database. I will take the Community obligations to start with and I am going to read out, for your convenience and the Committee's convenience, from the Commission Regulation, Article 6(3), about notifying births of animals to the authorities. It reads: "In respect of the requirement for each keeper of animals to notify the birth of the animal, the relevant period shall be determined by the Member State." My question is this: do you agree that it is Article 6(3) that spells out our Community obligation?

  (Ms Crisham)  Article 6(3) is one of a number of provisions which set out Community obligations in respect of the tagging of animals and the issue of passports. Specifically Article 6(3) must be read together with Article 7(1) of the Council Regulation, which it qualifies and modifies.

  3.  So the answer is affirmative?

  (Ms Crisham)  The answer is affirmative. It is one of a number of obligations.

  Chairman:  With links to 7(1).

  Lord Shaughnessy

  4.  7(1) refers to ear tags missing in the slaughterhouse. Am I in the right place?

  (Ms Crisham)  Article 7(1) of the Council Regulation, 820/97.

  Mr Bennett

  5.  Could we have that read out to us, please?

  (Ms Crisham)  Yes. I will read out the relevant part only. I do not think you need to hear all of it. Article 7, paragraph 1, is an obligation on the keeper of animals. "Once the computerised database is fully operational, each keeper of animals shall report to the competent authority all movements to and from the holding and all births and deaths of animals on the holding, along with the dates of these events, within 15 days, and as from 1 January 2000, within seven days of the date of the event occurring."

  Mr Grieve

  6.  And the 15 days is, by implication, the 15 days of the event occurring?

  (Ms Crisham)  That is correct.


  7.  If I may go back to 6(3), it goes on to say: "In the case of births the (relevant period) shall not in any case exceed 15 days from the date when the animal is tagged." Is this part of our Community obligation?

  (Ms Crisham)  Yes. Could I add that the reason why I drew attention to Article 7(1) of the Council Regulation was that if one laid Article 6(3) alongside Article 7(1) one might actually see a discrepancy. They actually lay down different rules for the same purpose. However, Article 6(3) qualifies and supersedes Article 7(1).

  Chairman:  That is very helpful.

  Viscount Addison

  8.  Chairman, in saying that, as a farmer who picks up your Regulations, he is not necessarily going to know that and, therefore, is it clear, in your Regulations, turning to 13(1) in these Regulations, where we are seeking to implement the obligation to notify a birth within 15 days from the date the animal is tagged?

  (Ms Crisham)  Yes. We have taken Article 6(3) as the basis of the relevant rules in the Regulations.

  9.  If I may go on from there, do you agree that the period begins from the date the animal must be tagged?

  (Ms Crisham)  That is what we have put in our Regulations.

  10. Because we are still falling back on the fact that there is this differential between the time that the animal is born and the requirements to fulfil an obligation within a certain length of time, and there seems to be a discrepancy as to what the length of time really is as far as the farmer is concerned. So if you clarified it once more as far as the farmer is concerned, that would help me?

  (Ms Crisham)  Is your concern the discrepancy between Article 6(3) and what is in our Regulation?

  11. It is, yes.

  (Ms Crisham)  Would I be right in thinking that your concern centres on the fact that Article 6(3) refers to the date when the animal is tagged?

  12. Yes?

  (Ms Crisham)  Whereas Regulation 13 relates to the date when the animal must be tagged?

  Chairman:  In layman's language it looks a bit of a muddle, but this is supposed to be a technical committee.

  Viscount Addison

  13. Farmers do not like muddles, and what worries us is that they are the ones who are going to have to make sense of this.

  (Ms Crisham)  May I say you are quite right in seeing a discrepancy on the face of these two sets of provisions. There is a discrepancy between what you find in Article 6(3) and what we have put in Regulation 13. The words "date when it is tagged" and "date when it must be tagged" are not the same thing. Why have we done that? The basic issue here is the effective enforcement of the system. If we had attempted to write Article 6(3) as it stands into our Regulations, we could not have enforced it properly and there was a tension between a strict requirement of Article 6(3), what it apparently requires us to do on its face, and the need also to ensure that the system was effective and enforceable, and there is a general and overriding requirement in Article 21 of the Council Regulation for the Member State to ensure that the system is effectively enforceable, that keepers of animals do comply with the requirements. So when we came to implement Article 6(3) and the other detailed provisions of the Community legislation we had in mind the need to ensure effective enforcement. Can I go into that in a bit more detail?

  Chairman:  Yes, I think that would be very helpful.

  Mr Bennett

  14. That cannot be effective enforcement because you are not enforcing the actual Community Regulation. You are enforcing a weaker Regulation which you dreamt up?

  (Ms Crisham)  Yes. I do understand your problem. May we return to Article 6(3). Article 6(3) on its face requires notification within 15 days from the date when the animal is tagged or seven days after a later event after 1 January 2000. That is clear as far as it goes, but what Article 6(3) does not do and no other part of the Regulation does is actually impose a requirement to notify the date when the animal is tagged.

  Mr Grieve

  15. May I interrupt for a moment? What you are doing is treating the 36 hours as a tagging period. Would that be the correct way of looking at it because there is 36 hours' grace, is there not, in which to tag the animal?

  (Ms Crisham)  Yes, in the case of dairy herds.

  16. Thereafter, you are saying, under our national Statutory Instrument the notification must follow within 15 days of that 36-hour period?

  (Ms Crisham)  That is correct.

  17. Whereas the Directive, construed absolutely, implies that the period must be within 15 days of the actual physical tagging of the animal.

  (Ms Crisham)  Yes. Our difficulty, though, our central difficulty is that we do not know when the animal is tagged. Therefore, a reference in Article 6(3) to the date when the animal is tagged is meaningless to us. We simply do not know. There is no requirement in the Community legislation, taken as a whole, to notify when the animal is tagged or to record when it is tagged in any way.

  18. So hence taking the tagging period as your starting point rather than the actual date and time when the physical tagging took place?

  (Ms Crisham)  That is right. We are talking about an indeterminable date, the date when the animal is tagged. We do not know what that is and we have no way of knowing what that is and, therefore, we had to find another date, a date that could be determined, and the date that we chose was the last date on which the animal had to be tagged and we took that as the determinable point of reference. I do accept that there is a discrepancy, but the discrepancy or the tension was one between the precise wording of the Regulation, taken on its face, and the need to make it workable.

  Lord Shaughnessy

  19. Is it possible, and I am not saying for the purposes of this discussion, but to achieve this date that you are looking for?

  (Ms Crisham)  Yes.

  20. And how would that be done?

  (Ms Crisham)  Well, we chose a particular solution.

  21. Yes, as matters stand.

  (Ms Crisham)  As matters stand. Would there have been alternatives? I suppose we could theoretically have required farmers to notify the date of tagging. That would have been excessively bureaucratic and onerous and I believe there is something in the region of 2½ to 3 million births of bovine animals a year and I can imagine that it would have gone down rather badly.

  22. It would require a regulation in Community law as well as the domestic law for a farmer to notify the date of tagging?

  (Ms Crisham)  Yes, the date of tagging.

  Chairman:  Lord Shaughnessy and Members of the Committee, in fairness to those giving evidence, I would like to remind you that we are not concerned with the policy and we must not stray into the policy. This is quite clearly an area of policy and the decision was taken no doubt for good reasons.

  Mr Bennett

  23. Can I make it clear that you accept that you are actually weakening the Community obligation and your defence is that it would have been bureaucratic to require the person who was doing the tagging to notify of the tagging, but the person has to notify of the process anyway, do they not, at the end of the 15 days, so surely it would be possible to give those two pieces of information on one form?

  (Ms Crisham)  Well, I do not accept that we are weakening the Community obligation. I accept that we were departing from its strict words and I think it was necessary to do so in order to make it workable at all because, taken on its face, it could not work. It refers to an undetermined and indeterminable date, so we worked in a date.

  24. But that is within, as far as the dairy herds are concerned, a period of 36 hours which is, therefore, a fairly limited period. When we come on to the beef herds, it is actually within a period of 15 days, is it not?

  (Ms Crisham)  Yes.

  25. So it does give a lot more variation and in order to carry out the tagging and, as I understand it, to preserve the rules as far as tagging is concerned, the farmers will have to record the date that they tag the animal, will they?

  (Ms Crisham)  The farmers are not at present required to record the date of tagging. If you will excuse me straying into a possible policy area again, it would have been another alternative approach to require the farmer to enter the date of tagging in the register which he has to keep under separate provisions. I do not know whether this was considered and perhaps my policy colleague can talk about that. There is always the problem of abuse of course and fraud if one goes down that avenue.


  26. Mr Rossington, do you want to expand on that?

  (Mr Rossington)  I think my colleague has outlined the position sufficiently.

  Viscount Addison

  27. When you say that you are preventing the risk of any misdemeanour that the farmer might create by giving him a little bit more string, if you like, my concern is that by giving him leeway like this, you are actually making it more possible for him to do any dubious deeds. I know we are straying a little bit, but to explain that, I am concerned especially where beef cattle are concerned and I think it is 30 days, is it not, not 15?

  (Ms Crisham)  It is 30 days, yes.

  Viscount Addison:  I am concerned also because of the problem with passports and that passports may not be necessary just for one animal and more than one person might have a passport for the same animal and this is creating a problem, as far as I am concerned, that there can be movements of cattle in a period within a month, if you like, on to other holdings and I am worried that you are giving a little bit too much leeway. All farmers do know when their cattle are born and it would not be difficult for them actually to write that down on a blank piece of paper and add it to the register. I think you would have made it more easy for them actually if you had told them that they had to put that date down, the birth date. I am straying, I know, but I am just trying to explain why I am bringing the problem up.

  Lord Shaughnessy:  It is a pretty narrow line between the policy and the detail.


  28. Mr Rossington, you may care to answer or you may care not to answer a matter of policy and that is a fact and we are not pressing you on the policy, but we are looking for a little clarity here. Would you like to comment?

  (Mr Rossington)  I would be very happy to do so if that is helpful. Clearly there are alternative approaches here and, in terms of policy, it would be possible to require farmers to enter the date of tagging in the register, but the policy problem would not end there because then we would have a difficulty of enforcement and if we were to try to prosecute farmers for not notifying within 15 days of the actual tagging, then we would have to rely on the registers which they had completed. Frankly, it is possible to envisage that in some circumstances we might find that registers were not kept accurately in the way that we would normally expect, so it seemed to us that actually a simpler way of approaching this, from the policy point of view, avoiding a further notification from farmers, and this system already requires many notifications from farmers, and avoiding difficulties of enforcement, which is obviously something that is very resource-intensive and needs to be concentrated very much on areas where it matters a great deal, it seemed to us for both of those reasons that the approach taken here was, from a policy point of view, the one which appeared preferable.

  Viscount Addison

  29. Could I ask Mr Rossington, are you still not actually creating more problems for yourself by giving them a little bit more leeway? I do not think you have actually answered my question. There is still this criticism, I am afraid, that I have, that by allowing this extra freedom, if you like, and a lack of pressing for proper records, you will continue to have a problem in terms of keeping paperwork correct. I think farmers, particularly now, feel that it is very important that they do keep their paperwork up and it is only the very few, I would say, who do not have paperwork anyway on this business. Would you have consulted with the veterinary profession on these issues before coming to the conclusions that you have come to?

  (Mr Rossington)  To answer the second point first, Chairman, drafts of these Regulations were obviously copied round in draft before they were made to industry organisations and that would, I believe, have included the veterinary organisations and I am not aware of any comments on this point. Coming to the first point, clearly paperwork is very important and it is very important that farmers keep their paperwork correct. I would point out that the deadlines for tagging and notification are being reduced quite significantly under these proposals. For dairy animals already they have to be tagged within 36 hours; for beef animals the tagging period is coming down from 30 to 20 days in the year 2000 and the notification period is coming down from 15 days to seven days in the year 2000 as well. So the deadlines are being brought back in any case quite significantly.

  Mr Bennett

  30. When these Regulations were being negotiated, did you point out to the Commission that this section was unenforceable?

  (Mr Rossington)  When the original Council Regulation was negotiated, that is, 820/97, Article 7(1), which my colleague has quoted, we did point out on many occasions that that was not workable because it referred to the event rather than the tagging.

  31. So it does then mean that almost all member countries are going to have to interpret this in a slightly different way, is that right?

  (Mr Rossington)  That indeed may be how it works, yes.

  32. Regularly before this Committee a department's defence when something is difficult to interpret is that they simply put the Regulations that come from the Commission into our own Regulations. Why did you not do that?

  (Ms Crisham)  Because of the issue of enforceability. Our overriding concern here, because of the central importance of this new system of identification and the database, was to ensure that the system was watertight, as watertight as we could make it, and you have pointed out some of the difficulties. We wanted to make it work. Article 6(3), if it had simply been transposed into an SI, could not have been enforced because the central event to which it refers, the date of tagging, could not be determined. There is considerable debate between lawyers in Whitehall about what you do when you get an unclear Community provision like this. Do you simply put it into the SI and leave it to the courts to work it out or do you try, particularly in extreme cases, to clarify it? I must say I am on the side of the clarifiers. I think it is helpful both on the enforcement side and to the industry to have a clear rule.

  33. But this is secondary legislation, is it not?

  (Ms Crisham)  Yes.

  34. So if someone were taken to court as a result of breaching this Regulation, they would be able to defend themselves that this Regulation had not actually enforced the Commission's Regulations?

  (Ms Crisham)  They might seek to take that approach. I would then expect there to be a reference to the European Court.

  35. Surely what is important is that there should not be a difference between secondary legislation and the primary legislation that enforces, in this case, Commission Regulations?

  (Ms Crisham)  In an ideal world I agree with you. Of course there should not be such a discrepancy and the Commission Regulation in a sense takes the place of the primary legislation in this context, but in practice, as those of us who deal with Community legislation are aware — and many of you will be aware — there are frequently problems with the interpretation and the implementation of Community legislation. It is for us a daily problem trying to reconcile, with respect to my colleague, sometimes the mish-mash that emerges from Brussels and trying to turn it into workable, enforceable legal language which the industry can understand and which our enforcers can enforce.

  Lord Prys-Davies

  36. If I followed Viscount Addison's questioning and your reply correctly, has not Lord Addison indicated a way which would enable you to enforce the Regulation, namely, that you impose a duty on the farmer to notify the date of birth of the cattle?

  (Ms Crisham)  The date of tagging actually is the one.

  37. Or the date of tagging?

  (Ms Crisham)  But they are related. The tagging has to take place.

  Viscount Addison

  38. And the date of birth would be the easiest way of doing it?

  (Ms Crisham)  Indeed.

  Lord Prys-Davies

  39. So what is the answer to that question?

  (Ms Crisham)  The answer is that it is theoretically possible, of course, from the legal point of view and from the policy point of view but it would impose policy difficulties.

  (Mr Rossington) Chairman, if I could comment, there is an obligation to notify the date of birth and that we require. What we do not require is the date of tagging, and the decision that we took in going down this route was not to require the notification only of the date of tagging.

  Lord Shaughnessy

  40. Could I ask a general question. After taking into account all the things you have said, would it be right to infer that the domestic Regulations (I will call them that) are less strict than the Community obligations?

  (Ms Crisham)  I do not think it is that simple because if you put them side by side and look at them with a layman's eye, then you would necessarily take that view, that one does look less strict than the other, but if you consider what happens on the ground when you are actually seeking to enforce the rules to make sure that they work, then you have a difference between an apparently strict but unenforceable provision and one which appears less strict but will actually work. I leave it to you to decide which one is better.

  Chairman:  You make your point well and succinctly, and unless colleagues have other questions to ask, it remains for me to thank you for coming and to say how helpful I think your explanations have been. Thank you very much.

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