Joint Committee on Statutory Instruments Fourth Report


APPENDIX 2

Memorandum from the Department of Environment, Food and Rural Affairs

GENETICALLY MODIFIED ORGANISMS (DELIBERATE RELEASE) REGULATIONS 2002 (S.I. 2002/2443)

1. The Joint Committee has requested the Department to submit a memorandum concerning the above regulations on the following points—

(I) Regulation 21(2) provides that the Secretary of State must not grant or refuse consent to release genetically modified organisms before the end of the period of 60 days beginning with the day on which the application for consent was received. Explain the inclusion of the underlined words, given regulation 20(b) and (f). Should not the provision have been to the effect that the Secretary of State must not grant or refuse consent before the end of the latest date on which the representations and comments mentioned in regulation 20(f) can be made?

2. Regulation 21(2) is intended to assist the reader by specifying the minimum period of days which must elapse before the Secretary of State can make her decision following receipt of an application for consent. This period is calculated by reference to the time limit for submission of representations set out in regulation 20(b) and by reference to the requirement on the Secretary of State under regulation 20(f) to take into account those representations and any comments made by member States.

3. The Department acknowledges that the approach set out by the Joint Committee would achieve the same intention.

(2) Explain why no provision is made in regulation 21(4)(b) for excluding any period of time during which the Secretary of State is considering comments made by the competent authorities of other Member States (see regulation 20(f)).

4. Regulation 21(4)(b) transposes article 6(6)(a) and (b) of Directive 2001/18/EC. The Directive makes no equivalent provision in relation to the comments made by the competent authorities of other member States.

(3) In a case where the Secretary of State refuses an application for consent to market genetically modified organisms, regulation 23(2) requires her to forward certain material to the Commission no sooner than 15 days from the date she sent the assessment report to the applicant and no later than 105 days from the date she received the application. Explain the reason for the restriction indicated by the underlined words.

5. The restriction to which the Joint Committee refers in regulation 23(2) transposes the last paragraph of article 14(2) of the Directive.

(4) Explain why, in relation to an application for renewal of consent to market genetically modified organisms, paragraph (1)(c) and (d) of regulation 25 does not specify a period of time within which the steps mentioned in that paragraph must be taken by the Secretary of State: compare regulation 23(1)(d) and (e) which imposes a time limit in relation to similar steps to be taken by the Secretary of State on an application for consent to market genetically modified organisms.

6. Regulation 23(1)(d) and (e) transposes the time limits laid down in article 14(2) of the Directive (as read with the last paragraph of article 13(1)) for sending the applicant an assessment report and forwarding a copy of the application to the Commission. The procedure governing applications for renewal of consent are set out in article 17 of the Directive, which is expressly stated to derogate from articles 13 and 14. Article 17 does not impose specific time limits.

(5) In relation to regulation 30, indicate whether section 119 of the Act has been previously amended. If so, identify the amending instrument, and explain why this information was not provided in a footnote. If section 119 has not been previously amended, furnish the text of that provision as amended by regulation 30.

7. Section 119 of the Act has not been previously amended. The text of the provision as amended by regulation 30 reads as follows (with text inserted by regulation 30 underlined) -

      "119. - (1) In any proceedings for either of the following offences, that is to say-

      (a)  an offence under section 118(1)(c) above consisting in a failure to comply with the general condition implied by section 112(4)(c) or (5)(c) above; or

      (b)  an offence under section 118(1)(d) above consisting in a failure to comply with section 109(3)(c) or (4)(c) above;

    it shall be for the accused to prove the matters described in subsection 1A below.

      (1A) The matters referred to in subsection (1) above are -

        (a) in the case of an offence under section 118(1)(c) above consisting in a failure to comply with the general condition implied by section 112(5)(c) above -

          (i) that no measures, other than the measures taken by him, were necessary to prevent damage being caused to the environment from the release or, as the case may be, marketing of the organisms, or

          (ii) in a case where he took no measures, that no measures were necessary; and

        (b) in any other case, that there was no better available technique not entailing excessive cost than was in fact used to satisfy the condition or to comply with that section.

(2) Where an entry is required by a condition in a consent to be made in any record as to the observance of any other condition and the entry has not been made, that fact shall be admissible as evidence that that other condition has not been observed."

(6) Explain whether section 119(1) of the Act (as amended by regulation 30), which requires the accused to prove certain matters, is intended to impose a legal or an evidential burden of proof on the accused. If a legal burden is intended, explain the basis of the conclusion that this would be compatible with Convention rights. If an evidential burden is intended, explain why this is not made clear.

8. Section 119(1) of the Act (as amended) is intended to impose a legal burden of proof. This form of words has been used in post- Kebilene[1] legislation to impose a legal burden.Where Parliament intends to create only an evidential burden the legislation makes this clear; see Lord Hope's discussion of the Terrorism Act 2000 at paragraph 92 and 93 of R v Lambert [2001] 3 WLR 206.

9. In concluding that the regulations are compatible with Convention rights the Department has had regard to ECHR jurisprudence which establishes the compatibility of reverse burdens of proof with Convention rights (see, for example, Salabiaku v France [1988] 13 EHRR 379).

10. In Lambert their Lordships "read down" the legal burden of proof on the defendant to an evidential burden to make it compatible with Convention rights; but this was, strictly, obiter in view of their ruling that the Human Rights Act 1998 should not apply retrospectively. More recent indications are that the courts are willing to distinguish Lambert. For example, in Lynch v DPP [2001] EWHC Admin 882, [2002] 2 All ER 854 it was ruled that placing a legal burden of proof on the defendant was not unfair; and Lynch was refused leave to appeal by the House of Lords Appeal Committee.

11. Although there have been no cases since the Human Rights Act 1998 involving regulatory offences, a landmark decision of the Canadian Supreme Court is helpful. In The Wholesale Travel Group [1991] 3 SCR 154 the Supreme Court ruled that it is not incompatible with Charter rights to impose a legal burden on the defendant in regulatory spheres where a "due diligence" style of defence is provided for because to reduce the onus on the accused would create "insurmountable barriers for the Crown" seeking to enforce a regulatory scheme; because, if the regulatory authority had to anticipate and disprove such matters, regulatory investigations would be more complex and necessarily more intrusive; and because it is especially fair to impose a legal burden on those who participate in regulated activities because they have chosen to do so and have placed themselves in a responsible position with regard to the public.



1   R v DPP ex parte Kebilene [1999] 3 WLR 972 (HL)(E) Back


 
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