Joint Committee on Statutory Instruments First Report


Memorandum by the Department of Trade and Industry


1. The Joint Committee on Statutory Instruments has asked the Department the following question:

    ain why, given that the 25th Directive was published on 14 March 2000 and, as that Directive acknowledges, it was necessary to bring the provisions of regulation 3 into force as soon as possible, an instrument containing those provisions was not made earlier?

2. The 25th Directive was adopted on 10 March and published in the Official Journal on 14 March 2000. However the Department was not made aware of this until the beginning of April. The Department wrote to the Commission on 4 April 2000 pointing out that the Department had not been formally notified of its adoption and that the UK was unlikely to meet the timetable set for implementation by 1 June 2000.

3. On 20 June 2000, Commission Directive 2000/41/EC was published in the Official Journal. This Directive required Member States to amend their laws implementing Council Directive 76/68/EC on the approximation of the laws of Member States relating to cosmetic products, by 29 June 2000. This was an important amendment to postpone the date of entry into force of the prohibition on the supply of cosmetics which contain ingredients or combination of ingredients which have been tested on animals from 30 June 2000 to 30 June 2002.

4. From that time, work proceeded on implementing both the 25th Commission Directive and Commission Directive 2000/41/EC. The 25th Commission Directive was novel in that it required the removal of previously prohibited substances from the schedule. This raised difficult issues as to what changes were actually required to be made to UK law, in particular as section 2(2) ECA 1972 cannot have retrospective effect. In addition, the Department sought advice from the Commission as to what was required to be done in respect of Thyrothricin which had been incorrectly added by a Commission Directive to the schedule of prohibited substances but which also acts as an antibiotic and therefore appeared to be covered by the prohibition on the use of antibiotics in cosmetics. The Department also carried out a short public consultation.

5. For the above reasons, the Department unfortunately was unable to make the Regulations until 9 October 2000 and the Department regrets the delay. However, as the effect of the 25th Directive was to make lawful any supply of previously prohibited substances up until the date of the re-insertment of these substances back into the list of prohibited substances, it was considered necessary to breach the 21 day rule to bring regulation 3 into force the day after laying so as to ensure that any prosecutions or legal proceedings that might have been initiated in respect of such supply were discontinued as soon as possible.

6. To the Department's knowledge, there were no prosecutions in respect of these substances during the period June to October and therefore no-one has suffered from the delay in implementing the 25th Directive.

27 November 2000

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