Appendix 5 S.I. 2004/1188: memorandum
from the Department of Trade and Industry
Packaging (Essential Requirements) (Amendment)
Regulations 2004 (S.I. 2004/1188)
1. The Committee has requested that a memorandum
be submitted on the following point:
Why does regulation 2 not identify the instrument
which it amends, and why is there no footnote citing its number
(which is incorrect where it appears in the Explanatory Note)?
2. The Department acknowledges that, in addition
to the heading of regulation 2: "Amendments to the Packaging
(Essential Requirements) Regulations 2003", there should
have been included a provision in regulation 2 identifying the
instrument which the regulation amends, with a footnote to that
effect.
3. The provisions were omitted in error and the Department
apologises to the Committee for it. The Department's view is that
the error is not likely to raise doubts regarding the intended
effect of the instrument in the light of the heading to regulation
2 and the detail in the Explanatory Note. The Department relies
on the court's decisions in Inco Europe Ltd v First Choice
Distribution [2002] 2 All E R 109 and R v Humber Bridge
Board and another [2003] All E R (D) 317 (Jun) in support
of the principle that a court would interpret statutory provisions
by reading in the missing words in such circumstances. The three
conditions set out by the court in Inco Europe Ltd seem
to the Department to be satisfied in this case. On this basis
the Department is not proposing to take any action in relation
to these Regulations.
4. The Department further acknowledges the error
in the reference to the instrument being amended in the Explanatory
Note. This appears to be a typographical error for which the Department
apologises. The Department has arranged with the Stationery Office
for the necessary changes to be made to the version on the HMSO
website and the Annual Edition.
14 May 2004
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