Joint Committee on Statutory Instruments Nineteenth Report

3 S.I. 2003/721: defective drafting

Creosote (Prohibition on Use and Marketing) Regulations 2003 (S.I. 2003/721)

3.1  The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted.

3.2  Regulation 5(1) (contravention of which is a criminal offence) provides that no person shall supply a dangerous substance or preparation for use in the treatment of wood, or treated wood. By virtue of regulation 5(2), this prohibition does not apply to the supply of a dangerous substance or preparation in respect of which certain conditions (set out in regulation 4(2)) apply, provided that specified requirements are fulfilled including [(c)] the dangerous substance or preparation is sold to a person who is not a consumer. "Supply" is defined in regulation 3 as including offering to supply, agreeing to supply, exposing for supply and possessing for supply. The Committee was unsure how regulation 5(2) was intended to operate where a person offers to supply, or possesses for supply, a dangerous substance but has not yet sold it, as in such a case the requirement that the substance is sold to someone other than a consumer will not have been fulfilled.

  1. In a memorandum printed at Appendix 3, the Department of Trade and Industry explains that it was intended to make criminal the activity of selling a dangerous substance or preparation to a consumer, but not the offering to supply, agreeing to supply, exposing for supply or possessing for supply a dangerous substance or preparation where the requirements of regulation 5(2)(a) and (b) are complied with. The Department regrets the lack of clarity and undertakes to remedy the error at the first opportunity. The Committee therefore reports regulation 5 for defective drafting, acknowledged by the Department.

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