Joint Committee on Statutory Instruments Eighth Report


APPENDIX 3

Memorandum by the Ministry of Agriculture, Fisheries and Food

PLANT PROTECTION PRODUCTS (AMENDMENT) (NO. 2) REGULATIONS 1999 (S.I. 1999/3430)

  1. The Committee has requested a memorandum on the following point:

Explain, given the Great Britain extent provision in regulation 1(2), the intended purpose of regulation 1(3) (included "for the avoidance of doubt").

  2. The Plant Protection Products Regulations 1995 (S.I. 1995/887) (the "principal Regulations") which the present regulations amend provide for the implementation in Great Britain of Community obligations under Council Directive 91/414/EEC concerning the placing of plant protection products on the market (O.J No L230, 19.8.91, p.1 as read with OJ No. L170, 25.6.92, p.40) as amended.

  3. By virtue of section 53 of the Scotland Act 1998 (the "1998 Act"), functions under the principal Regulations and the power, under section 2(2) of the European Communities Act 1972 ("ECA"), to make amendments to those regulations have been transferred, so far as exercisable within devolved competence, to the Scottish Ministers .

  4. Despite this transfer of functions Scottish Ministers have agreed that functions under the principal Regulations shall continue for the present to be exercised by Ministers of the Crown by virtue of section 57 of the 1998 Act. Section 57 of the 1998 Act provides that, despite the transfer to the Scottish Ministers, by virtue of that Act, of functions in relation to observing and implementing obligations under Community law, any function of a Minister of the Crown shall continue to be exercisable by him as regards Scotland for the purposes specified in section 2(2) of the ECA.

  5. The present regulations were made by the Minister of Agriculture, Fisheries and Food and the Secretary of State for Scotland on a Great Britain wide basis, as it was considered that amending regulations, made in relation to Scotland only by Scottish Ministers, might prejudice the operation of section 57 as regards functions under the principal regulations affected by the present amendments. The principal concern was that section 57, by implication, appears only to apply to functions which can be said to "continue" from the moment immediately before their transfer, on 1st July last year, to the Scottish Ministers. Any change to the nature of those functions, at least if made by the Scottish Ministers, might therefore be seen as removing the element of continuity required for their further exercise by Ministers of the Crown

  6. It was considered that the making of the regulations for the whole of Great Britain by the Ministers of the Crown, again by virtue of section 57, would be a means of avoiding these difficulties. Such an exercise of the regulation making power could both effect the necessary amendments and also ensure the possibility of the continued exercise of functions under the principal Regulations by those Ministers, alongside the possibility of those powers being exercised by Scottish Ministers, when they chose to do so.

  7. It was considered likely that this consequence followed implicitly, simply as a result of the present regulations being made by Ministers of the Crown so as to extend to the whole of Great Britain. Regulation 1(3) was included, however, in view of the novelty and complexity of the issues involved, to avoid any scope for further doubts on this point. An argument to the contrary might have been that whilst Ministers of the Crown undoubtedly had the power, by virtue of section 57, to amend the principal regulations, so far as they related to Scotland, amending the functions concerned would mean they could no longer be regarded as continuing functions and hence no longer capable of exercise by Ministers of the Crown.

  8. Regulation 1(3) was expressly included, therefore, so as to provide that the amendments, as they apply to Scotland, shall have effect both as regards the exercise of relevant functions by Scottish Ministers and as regards their continued exercise by the Minister of Agriculture, Fisheries and Food and the Secretary of State. The provision is expressed to be "for the avoidance of doubt", in view of the Ministry having taken the view that this result follows implicitly from the regulations being made, by virtue of section 57 by Ministers of the Crown so as to extend to the whole of Great Britain and is intended thereby to avoid prejudice to any future instrument where it was decided that it was unnecessary to include such a provision.

  9. The decision to make regulations on a Great Britain wide basis was taken in consultation with lawyers from the Scottish Executive and with the agreement of the Scottish Minister for Rural Affairs. Consideration is however being given to possible alternative approaches for the future in relation to the exercise of functions under the principal Regulations so as to avoid a future need to amend these Regulations on a Great Britain wide basis

25 January 2000


 
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