Joint Committee on Statutory Instruments Sixteenth Report


APPENDIX 5

Memorandum from the Department for Environment, Food and Rural Affairs

FUR FARMING (COMPENSATION SCHEME) (ENGLAND) ORDER 2001 (S.I. 2001/3853)

1. The Committee has requested the Department to submit a memorandum on the following question:

"In Schedule 3, the factor "X" has a value 1, 2 or 6 according to the date on which the entitled person "ceased to keep mink for one or more of the relevant purposes". Explain the effect of this where a person ceases to keep mink for one of the relevant purposes on one date, and on another date ceases to keep mink for a different purpose, such that more than one of the values is applicable. Should the words cited have read "ceased to carry on a qualifying business"?"

2. The intended effect of Schedule 3 is that the amount of the interim payment due to an entitled person reduces according to the date on which the activities to be prohibited by section 1 of the Fur Farming (Prohibition) Act 2000 come completely to an end. The Department considers that the wording used, read in the context of the Order as a whole, achieves that intended effect.

3. The Department agrees that the words highlighted by the Committee ("ceased to keep mink for one or more of the relevant purposes") are capable, if taken alone, of being read both in the sense suggested by the Committee (i.e. that X can have more than one value) and in the sense in which the Department intends (i.e. that X is determined by the date on which the activities to be prohibited by section 1 ceased completely). However, the Department considers that the intended meaning is clear when the words are read not in isolation but in the context of the Order as a whole.

4. The Department submits that sub-paragraphs (a), (b) and (c) in Schedule 3 to the Order define mutually exclusive tests for the determination of X. From the structure of the Order as whole, it is clear that there can be only one interim payment (calculated using X) to be made to each applicant.

5. The expression "for one or more of the relevant purposes" is used in a number of places in the Order in relation to keeping mink. In each case, it is used to contrast a situation where mink are kept, regardless of the number of relevant purposes for which they are kept, with a situation where no mink are kept for any relevant purpose. Under article 4(2), a first-stage application cannot be made until no mink are kept for a relevant purpose. An interim payment cannot be made until after a first-stage application has been determined. Thus, by the time Schedule 3 falls to be applied, no mink must be kept for any relevant purpose. The Department considers that the natural meaning of the phrase "ceased to keep mink for one or more of the relevant purposes" in Schedule 3 ought to reflect the contrast found elsewhere in the Order between keeping and not keeping mink for any relevant purpose.

6. For the reasons stated above, the Department believes that the provision about which the Committee has expressed concern would be construed by a court in such a way that there was only one applicable value for X: namely, the value applicable to the date on which the entitled person ceased to carry on the activity of keeping mink for any of the relevant purposes, for all of them or for any other permutation of them.

7. Nevertheless, although the Department believes the provision would be held to have the meaning intended, it accepts that it is defectively drafted to the extent that it could have been more clearly expressed.

18th January 2002


 
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