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Baroness Hayman: I understand the concerns about charging, which have been behind several of the amendments and discussions we have had in Committee. The requirement for orders to be made under Section 45 of the 1990 Act, to be subject to negative resolution as they stand at the moment, is consistent with similar general charging powers in other legislation. Parliament has decided on numerous occasions that the negative resolution procedure is appropriate in this kind of case.

The purpose of these powers is to provide for the cost of carrying out enforcement duties to be recoverable from those receiving an enforcement service. It is therefore limited to enforcement work and could not be used, for example, to finance any of the

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wider activities of the agency such as its developing policy or providing advice. Indeed, it is a principle of EU law that charges linked to the exercise of a statutory function may recover no more than the cost of carrying out that function, so there is a stricture there. Where regulations make charges with additional costs loaded on, then express authority under the terms of the Finance Act 1997 already calls for the affirmative resolution procedure to be applied.

Since the powers in section of the 1990 Act do not provide for additional costs to be recovered over and above those arising from enforcement, the affirmative resolution convention is not relevant. If any Members of this House or another place have particular concerns about a particular charging regulation, then the negative resolution procedures that apply provide an opportunity to pray against the SI. I would, however, observe that while this has happened, there have been numerous occasions on which regulations made under section 45 have not been thought necessary to be the subject of such a debate. I hope, therefore, that Members of the Committee will agree that there is no need to alter the provisions for the negative procedure as set out in the Bill.

Baroness Byford: I again thank the Minister for her response. It is interesting that over these past three days of debate we have found that, in many instances, what we are trying to do in this Bill actually comes into conflict with EU law. Unless I have misunderstood what the Minister just said--I give way.

Baroness Hayman: I did not say that it came into conflict with EU law but that EU law ensures that national governments cannot behave improperly in terms of recovering more than the cost of a particular element of regulation that is, itself, governed by EU law. The affirmative resolution procedure that the noble Baroness seeks to achieve would, in fact, be invoked in those circumstances. It is a failsafe mechanism.

Baroness Byford: I thank the noble Baroness for that clarification. With those few words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hayman moved Amendment No. 115:


Page 28, line 10, at end insert--

(“PART IA
FUNCTIONS UNDER THE 1991 ORDER

7A. This Part has effect for conferring functions under the 1991 Order on the Agency (and references to Articles are to Articles of the 1991 Order).
Article 12 (emergency control orders)

7B. The Agency may grant consent under paragraph (3), and give directions under paragraph (5), of Article 12.
Article 26 (enforcement)

7C. The Agency--
(a) may be directed to discharge duties of district councils under Article 26(2);

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(b) may be specified as an authority to enforce and execute regulations or orders in pursuance of Article 26(3); and
(c) may take over the conduct of proceedings mentioned in Article 26(4) either when directed to do so by the Department of Health and Social Services for Northern Ireland or with the consent of the district council which instituted them.
Article 39 (codes of practice)

7D.--(1) The Agency may, after consulting the Department of Health and Social Services for Northern Ireland--
(a) give directions to district councils under Article 39(2)(b) as to steps to be taken in order to comply with codes of practice under Article 39; and
(b) enforce any such directions.
(2) The Agency may undertake consultation with representative organisations regarding proposals for codes of practice under Article 39.
Article 40 (information from district councils)

7E. The Agency may exercise the power to require returns or other information from district councils under Article 40.
Article 41 (default powers)

7F. The Agency may be empowered by an order under Article 41 to discharge any duty of a district council.
Article 47 (regulations and orders)

7G. The Agency may undertake consultation with representative organisations required by Article 47 regarding proposals for regulations or orders under the 1991 Order.")

The noble Baroness said: In moving Amendment No. 115, I shall speak also to Amendments Nos. 122, 123, 127, 129 and 130. These are technical amendments. They make changes to Northern Ireland legislation to parallel proposed amendments to existing GB legislation, which are already contained in the schedules to the Bill. In particular, the Food Safety Northern Ireland Order 1991 will be amended to parallel amendments to the Food Safety Act 1990 and the Genetically Modified Organisms Northern Ireland Order 1991 to effect changes to the Environmental Protection Act 1990. These amendments will ensure that there is a consistent framework of legislation in place across the United Kingdom when the agency is established, whether or not the devolution settlement in Northern Ireland is fully in place. I commend the amendments to the Committee. I beg to move.

On Question, amendment agreed to.

Baroness Hayman moved Amendment No. 116:


Page 28, line 38, leave out (“The Ministers") and insert (“A licensing authority").

On Question, amendment agreed to.

Baroness Hayman moved Amendment No. 117:


Page 28, line 39, leave out (“they contemplate") and insert (“the authority contemplates").

On Question, amendment agreed to.

[Amendment No. 118 not moved.]

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Baroness Hayman moved Amendment No. 119:


Page 28, line 42, leave out (“them") and insert (“the authority").

On Question, amendment agreed to.

[Amendments Nos. 120 and 121 not moved.]

Baroness Hayman moved Amendment No. 122:


Page 30, line 23, at end insert--

(“Genetically Modified Organisms (Northern Ireland) Order 1991 (S.I. 1991/1714 (N.I. 19))

11A. In Article 5(7) and Article 8(7) of the Genetically Modified Organisms (Northern Ireland) Order 1991 (grant of exemptions) after the word “Department" there shall be inserted the words “, or by the Department and the Food Standards Agency acting jointly,".
11B.--(1) For Article 22 of that Order (exercise of certain functions relating to genetically modified organisms jointly by the Department of the Environment and the Department of Agriculture) there shall be substituted the following Article--
“Mode of exercise of certain functions
22.--(1) Any power of the Department to make regulations under this Order (other than the power conferred by Article 10) is exercisable, where the regulations to be made relate to any matter with which the Department of Agriculture is concerned, by the Department and the Department of Agriculture acting jointly.
(2) Any function of the Department under this Order (other than a power to make regulations) is exercisable, where the function is to be exercised in relation to a matter with which the Department of Agriculture is concerned, by the Department and the Department of Agriculture acting jointly (but subject to paragraph (3)).
(3) Any function of the Department under Articles 5(8) and 7 is exercisable, where the function is to be exercised in relation to a matter with which the Food Standards Agency is concerned--
(a) if it is a matter with which the Department of Agriculture is also concerned, by the Department, the Department of Agriculture and the Food Standards Agency acting jointly;
(b) otherwise, by the Department and the Food Standards Agency acting jointly.
(4) Accordingly, references in this Order to the Department shall, where paragraph (1), (2) or (3) applies, be treated as references to the authorities in question acting jointly.
(5) The Food Standards Agency shall be consulted before--
(a) any regulations are made under this Order, other than under Article 10, or
(b) any consent is granted or varied.
(6) The reference in Article 10 to expenditure of the Department in discharging functions under this Order in relation to consents shall be taken to include a reference to the corresponding expenditure of the Department of Agriculture in discharging those functions jointly with the Department.
(7) The validity of anything purporting to be done in pursuance of the exercise of a function of the Department under this Order shall not be affected by any question whether that thing fell, by virtue of this Article, to be done jointly with the Department of Agriculture or the Food Standards Agency (or both)."
(2) In consequence of sub-paragraph (1), in the definition of “the Department" in Article 2(2) of that Order, after the word “means" there shall be inserted the words “(subject to Article 22)".").

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 agreed to.

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Schedule 5 [Minor and consequential amendments]:


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