Joint Committee on Statutory Instruments Third Report


Memorandum by the Department of Trade and Industry


1. The Committee has requested the Department to submit a memorandum on the following points:-

    (1)  Explain the legal effect of regulation 2(e);

    (2)  With regard to the new regulation 4(3) substituted by regulation 2(f):

      (a)  is it drafted as intended?

      (b)  in particular, explain whether "on or after" in either or both places where the expression appears is intended to read "on or before";

      (c)  whichever meaning is intended, identify the provision of EC law which authorises such provision.

2. With regard to point (1), the insertion of a footnote has no legal effect at all, since footnotes are not part of the Regulations. The footnote was inserted in order to explain why no recycling mark was ever provided for, in response to the point made by the Committee in the fifth paragraph of item 3 in its Tenth Report of the Session 1993-94, which is attached to this Memorandum fore ease of reference [not printed].

3. The Department considered the precedents in primary legislation which amend headings and sidenotes, for example in section 91(2)(d) of the Access to Justice Act 1999, which amends the sidenote to section 60 of the Magistrates Courts Act 1980. It concluded that although headings and sidenotes have no legal effect, it could be considered that there was Parliamentary warrant for amending them in primary legislation, and by analogy it would be an appropriate practice to amend or insert footnotes in secondary legislation.

4. There are precedents in secondary legislation which insert, amend and delete footnotes. For example, the Electricity and Pipe-line Works (Assessment of Environmental Effects) (Amendment) Regulations 1997 (S.I. 1997/629) in regulation 2(3) insert a new footnote to S.I. 1990/442.

5. With regard to point (2) generally, the Committee reported on the original regulation 4(3) of S.I. 1994/232 in the sixth paragraph of item 3 of its Tenth Report of the Session 1993-94. Article 2 of Commission Directive 93/86/EEC allowed unmarked batteries and accumulators to be marketed in the Community until 31 December 1995 if produced in, or imported into, the Community before 1 January 1994, and the original regulation 4(3) had not properly implemented this provision.

6. Regulation 2(f) of S.I. 2000/3097 in substituting a new regulation 4(3) was intended to correct this error. In fact, since the exception was time limited, regulation 4(3) should have been deleted, together with the words 'and subject to paragraph (3) below' in regulation 4(1). There is in fact (in response to point (2)(c)) no provision of EC law which authorises any remaining exception to the requirements in regulation 4(1).

7. The Department will lay a further instrument to correct this error as soon as possible. It is very unlikely that any businesses will be affected by the error, since it is very unlikely that any batteries produced before 1 January 1994 remain on the market.

19 December 2000

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