Memorandum from the Department for Environment,
Food and Rural Affairs
2002 (S.I. 2002/284)
1. The Committee has requested a memorandum on the
(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
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
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
(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 -
(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
(b) new regulation 15, but for the italicised words,
provides that any person contravening a requirement commits an
(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