Animals and Animal Products (Import and Export) (England) (Amendment) Regulations 2007 (S.I. 2007/3277)

1.1 The Committee draws the special attention of both Houses to these Regulations on the ground that in one respect they fail to comply with proper drafting practice.

1.2 These Regulations amend the Animals and Animal Products (Import And Export) (England) Regulations 2006 (S.I. 2006/1471) ("the 2006 Regulations").

1.3 Part 2 of the 2006 Regulations imposes restrictions on the import from or export to another member State of live animals or animal products which are the subject of a Community instrument listed in Part 1 of Schedule 3 to those Regulations. Schedule 3 is headed "Legislation in Relation to Intra-community Trade", and Part 1 consists of numbered paragraphs each of which identifies the instruments which are relevant to specific types of animal or animal product. (The paragraphs also contain some further information which is not relevant for present purposes.) Each of those paragraphs is preceded by a cross-heading which gives a broad indication of the types of animal or animal product to which the Community instrument in question applies. Examples of such headings are: "Bovine animals and swine", "Poultry and hatching eggs", "Animal waste", "Fish", "Other animals, semen, ova and embryos", "Circuses and animal acts", "Pathogens", "Pure-bred animals of the bovine species" and "Breeding animals of the porcine species". None of the expressions used in these or other headings is defined in the 2006 Regulations, except in so far as they happen to fall within the wider purposes of regulation 1(5), which imports into expressions not otherwise defined the meanings they bear in two specified Directives.

1.4 Regulation 2(6) of this instrument inserts a new paragraph 16 at the end of Part 1 of Schedule 3 to the 2006 Regulations. It is headed "Bluetongue susceptible animals" and identifies as the relevant Community instrument Commission Regulation (EC) No. 1266/2007 on implementing rules for Council Directive 2000/75/EC as regards the control, monitoring, surveillance and restrictions on movements of certain animals of susceptible species in relation to bluetongue.

1.5 Regulation 2(5) of this instrument inserts Part 4A into the 2006 Regulations, in which regulation 27B(1) prohibits the export of any animal, semen, ovum or embryo to a third country unless it complies with the relevant provisions of the instrument listed in Schedule 8A. Schedule 8A, which is inserted by regulation 2(8), is headed "Community legislation in relation to exports to third countries", and consists of a single paragraph 1 headed "Bluetongue susceptible animals" which lists the same instrument as that referred to in paragraph 16 of Schedule 3.

1.6 Regulation 2(2) inserts into regulation 1(2) of the 2006 Regulations (Interpretation) a definition of "bluetongue susceptible animal" as meaning any ruminating animal.

1.7 In response to the Committee's request to the Department for Environment, Food and Rural Affairs to explain the purpose of the inclusion of this definition, the Department does not address the general purpose of inclusion of definitions, which - in the Committee's view (which matches the view implied in Craies on Legislation - see 8th Edition, paragraph 24.1.2) - is clarification of the effect of substantive provisions that would otherwise be ambiguous. Rather, in a memorandum printed at the Appendix, it states its view that headings in a statutory instrument form part of the instrument and are a legitimate aid to its interpretation. In support it cites authority from a House of Lords decision and from another work on statutory construction (Bennion, Statutory Interpretation, 4th Edition).. Neither of the authorities cited, however, goes further than to say that headings can be of use as guidance in interpreting substantive provisions. Indeed, Bennion states at page 635 that "a heading is of very limited use in interpretation because of its necessarily brief and inaccurate nature".

1.8 In the case of the 2006 Regulations as amended by this instrument, the expression "bluetongue susceptible animal" appears only twice other than in the definition of that expression. In each case, it is in the heading to a paragraph in a Schedule listing Community instruments and their relevant provisions. In each case it is the scope of the relevant Community instrument that is decisive as to whether the restrictions imposed by Part 2 or Part 4A apply. Thus the heading operates as headings normally do - i.e. it can be no more than a signpost, just as are other headings such as "animal waste", "pathogens" or "pure-bred animals of the bovine species".

1.9 The inclusion in an interpretation provision of a definition of an expression used elsewhere only as a signpost is potentially confusing, as it gives rise to the expectation of a substantive provision for it to apply to. It was open to the Department instead, if it thought that "bluetongue susceptible animals" was insufficient to operate as a signpost, to use what it saw as sufficient terminology in the headings in question, and doing so would have given rise to no risk of confusion. The Committee accordingly reports regulation 2(2) of these Regulations for a failure to comply with proper drafting practice.