Memorandum by the Department of Trade and Industry
THE BATTERIES AND ACCUMULATORS (CONTAINING DANGEROUS
SUBSTANCES) (AMENDMENT) REGULATIONS 2000 (S.I. 2000/3097)
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
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