Joint Committee on Statutory Instruments Twenty-Fourth Report


Memorandum from the Department for Environment, Food and Rural Affairs


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

(1) Paragraph 4 of the Schedule provides that without prejudice to the provisions of the Act, the occupier of the farm must, in the specified circumstances, take certain steps. Explain what provisions of the 1937 Act are contemplated by the italicised words, and why this saving is necessary.

(2) New regulation 15(1) (as substituted by paragraph 7 of the Schedule) provides that any person (other than the Secretary of State or the National Assembly for Wales) contravening any requirement imposed by him by or under these Regulations shall be guilty of an offence. Explain the need for the italicised words, and the basis of the assumption that without those words the Secretary of State or the National Assembly for Wales could be found guilty of an offence.

2. On the Committee's first point (which relates to new regulation 4, as substituted by paragraph 1 of the Schedule), the approach taken in drafting the Regulations was that a set of rules should be made without prejudice to another if, without that expression, it might be arguable that one would displace the other.

3. New regulation 4 applies where, in circumstances where a farm is suspected with a Schedule 3 disease, an order under section 2 of the Diseases of Fish Act 1937 or a notice served under section 4 or 4A of that Act remains current. An order under section 2 designates a particular area: a notice under section 4 or 4A by an inspector, as read with SI 1984/455, notifies the occupier/fish farmer that the inspector has reasonable grounds for suspecting that particular inland waters, or particular marine waters including a cage, are infected.

4. By virtue of Schedule 4 of the Disease of Fish (Control) Regulations 1994 (SI 1994/1447) as now amended the following obligations automatically apply.

"1. No person shall-

(a) bring on to or remove from the farm any fish whether alive or dead, eggs or gametes; or

(b) dispose of any dead fish or their offal except under the supervision of an inspector;

(c) bring on to or take from the farm any equipment, material or substances liable to transmit disease; or

(d) enter on to or exit from the farm; or

(e) bring a vehicle on to or take a vehicle from the farm; or

(f) remove any fish, whether alive or dead, eggs or gametes from a farm which is

    (i) in the same water catchment area or coastal area as the farm at which the outbreak of disease is suspected, and

    (ii) whose occupier has been notified that his farm is under surveillance for disease;

without the authorisation in writing of the Minister to do so.

2. The occupier of the farm shall take such measures as may be specified by the Minister to disinfect the entrances and exits to the farm."

5. By virtue of the Diseases of Fish Act 1937, as amended -

(a) one effect of making a section 2 order is that, as specified in section 2A, the Minister may serve notice in writing on the occupier among others -

    (i) directing him to take such practicable steps as are specified in the notice to secure the removal of dead or dying fish from the waters (or a cage in the waters) concerned, and

    (ii) regulating the manner in which such fish or parts of such fish are to be disposed of; and

(b) if a section 4 or 4A notice is served, no live fish, no live eggs of fish and no foodstuffs for fish may be removed without the Minister's permission.

6. The aim of making the Regulations without prejudice to the Act as well as the Fish Health Regulations 1997 (SI 1997/1881), given that both regulations were made under section 2(2) of the European Communities Act 1972, was to prevent the possibility of argument that the sets of Regulations alone created a comprehensive code; so the prohibition of removal of fish food (which is specifically found only in the Act) clearly survives, and so does the power to serve notices requiring particular action.

7. On the Committee's second point:

(a) there is a requirement imposed by new regulation 5 as read with new regulation 2(6) on the Secretary of State (and/or the National Assembly for Wales where the farm is wholly in Wales) on confirmation of Infectious Salmon Anaemia to serve a specific notice;

(b) new regulation 15, but for the italicised words, provides that any person contravening a requirement commits an offence;

(c) "person" embraces the Secretary of State and the Assembly;

(d) were the italicised words not included, it is unlikely on balance that either the Secretary of State or the Assembly would be found to be guilty of an offence for failure to serve such a notice; the italicised words were included in order to provide the precision necessary to eliminate scope for argument on the point.

15th March 2002

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