Joint Committee on Statutory Instruments Twenty-Fourth Report


S.I. 2003/1328: memorandum from the Department for Environment, Food and Rural Affairs

Protection of Animals (Anaesthetics) (Amendment) (No. 2) (England) Order 2003 (S.I. 2003/1328)

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

Article 2 of this Order substitutes for the entry in respect of pigs in paragraph 6 of the First Schedule to the Protection of Animals (Anaesthetics) Act 1954 an entry specifying ages for pigs in Wales and in England respectively. This appears to remove any exception for pigs as regards Scotland. Does the Department agree that this is the effect of article 2? If so, what authorises the Secretary of State to make that provision?

2. It is the view of the Department that as a result of the transfer of functions brought about by the Scotland Act 1998, the Secretary of State no longer has any power to amend the Protection of Animals (Anaesthetics) Act 1954 insofar as that Act extends to Scotland. Any attempt to do so would be ultra vires and therefore it was felt that the effect of making no mention of Scotland in the Order was to leave the 1954 Act as it extends to Scotland unchanged and unamended. On this basis it cannot be inferred that the Order can have any effect outside the jurisdiction of England and Wales. On the other hand, because England and Wales remains a single jurisdiction, it was necessary to mention expressly that the position in Wales was to remain unchanged. It is accepted however, that wording such as 'but in England 8 days' inserted after pre-existing wording of the 1954 Act might have made clearer to the reader that the position in Scotland and Wales remained unchanged. Alternatively, an express extent provision would have made the situation clearer.

3. The amendment to the 1954 Act is necessary in order to implement Commission Directive 2001/93/EC. The same amendment will therefore be brought about in the very near future in both Wales and Scotland.

23rd June 2003

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