Joint Committee on Statutory Instruments Nineteenth Report


Appendix 3

S.I. 2003/721: memorandum from the Department of Trade and Industry

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

92.  By a letter dated 8 April 2003, the Committee requested the Department of Trade and Industry to submit a memorandum on the following points:

(1)  Explain how regulation 5(2)(c) is intended to work in practice. In particular, where a person offers to supply, or possesses for supply, a dangerous substance or preparation but has not yet sold it, is it intended that he commits an offence under regulation 5(1):

(a)  if he makes it clear in the offer or in some other way that he will not sell
it to consumers;

(b)  if he does not do so?

(2)  Why does regulation 5 not provide instead that the sale of a dangerous substance or preparation to a consumer is prohibited, irrespective of whether it is covered by paragraph (2) of that regulation?

93.  As stated in the Explanatory Note to S.I. 2003/721 ("the Regulations"), the Regulations implement Commission Directive 2001/90/EC.

94.  With regard to point 1, regulation 5(2)(c) is intended to make criminal the activity of selling a dangerous substance or preparation to a consumer. It was not the policy intention to criminalise any offering to supply, agreeing to supply, exposing for supply or possessing for supply of 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 in the drafting of the Regulations and will undertake to remedy the error at the first opportunity.

95.  With regard to point 2, the Department is considering how best to correct the drafting error acknowledged in relation to point 1 and is grateful for the Committee's suggestion.

25th April 2003


 
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