Cosmetic Products (Safety) Regulations 2008 (S.I. 2008/1284)

1.1  The Committee draws the special attention of both Houses to these Regulations on the grounds that, in several respects, they are not in accordance with proper legislative practice and are defectively drafted.

Failure to accord with proper legislative practice

1.2  These Regulations are made by the Secretary of State under section 2(2) of the European Communities Act 1972 pursuant to designations made by Order in Council under that section. In a memorandum printed at the Appendix the Department for Business, Enterprise and Regulatory Reform acknowledges that the preamble should have referred to the designation of the Secretary of State in relation to "measures relating to consumer protection" (that designation was made by S.I. 1993/2661 to which footnote (b) refers), rather than the designation made by S.I. 1972/1811 in relation to specific aspects of consumer protection. That earlier designation was expressly superseded by the later, wider designation. The Committee is satisfied that the fact that the earlier designation is both wide enough to cover the relevant subject matter of the instrument and narrow enough to be contained within the later designation overcomes any possible doubt as to the efficacy of the preamble, even though it is not expressed as it should have been. The Committee reports the preamble for not being in accordance with proper legislative practice, acknowledged by the Department.

1.3  Regulation 9(b) refers to the requirements in columns (c), (d) and (e) of Schedule 7 and item 167 of Schedule 3 makes reference to Schedule 7, Part 2. Within Schedule 7 there are no requirements in column (d) in Part 1 and there is no content in Part 2. Similarly Schedules 5 and 6 are divided into two Parts; in each case Part 2 is empty. The Department's memorandum, while acknowledging that (notwithstanding similar provision in the Directive) the reference in item 167 of Schedule 3 to Part 2 of Schedule 7 ought to have been omitted, explains that—

●  the Regulations were designed to implement Council Directive 76/768/EEC as closely as possible;

●  Article 4.1(h), which is linked to Annex VII, requires Member States to prohibit the marketing of cosmetic products "containing UV filters listed in Part 1 of Annex VII, beyond the limits and outside the conditions laid down therein";

●  the provisions in Directive 76/768/EEC (Annexes IV, VI and VII) that correspond to Schedules 5, 6 and 7 each contain a Part 2 without any entry;

●  it was considered helpful and useful—

○  to reflect the possibility of the future insertion (into Annex VII to the Directive) of limitations and requirements other than that concerning maximum authorised concentration (column (c)), as the empty column (d) envisages; and

○  to transpose the empty Parts of Directive Annexes, as the Directive envisages that there may be substances which will appear in these Parts the marketing of which Member States are required to permit up to a certain date (Article 5(b), (c) and (d) of the Directive); if the Regulations had not contained these Parts, there would have been no indication of the possibility of certain substances being provisionally allowed.

1.4  The Committee does not find this approach persuasive, although it does not rule out the possibility that a degree of deviation from normal standards can properly be accepted when a Community instrument is implemented. An example can be found in the 17th Report for the 2006-2007 Session, in the printing of the memorandum on S.I. 2007/1334 - a case where the responsible Department (in explaining an instrument setting out criminal sanctions for breaches of imprecise provisions of a particular Community Regulation) demonstrated convincingly that there was no realistic method of complying otherwise with Community law. However this is not a parallel case; column (d) of Part 1 of Schedule 7 and Parts 2 of Schedules 5, 6 and 7 have no legislative content; the inclusion of such empty provisions (and references to them) obscures the distinct nature of legislation and complicates the Regulations unnecessarily. Had the currently blank Schedule elements been omitted, they could still be added later by amendment (together with the references to them), were the possibility of the equivalents being filled in Directive 76/768/EEC to become a reality. The Committee, in its 18th Report for the 2006-2007 Session, reported S.I. 2007/1166 (Regulations the interpretation of which depended on other instruments not yet been made) for failure to comply with proper legislative practice "in that they were prepared on the assumption that they would be complete neither internally nor referentially". In material terms this is similar, and the Department (correctly) makes no attempt to argue that copy-out of empty provisions is a requirement of Community law. The Committee accordingly reports the reference to column (d) of Schedule 7 in regulation 9(b), the reference to Part 2 of Schedule 7 in item 167 of Schedule 3, the inclusion of the empty column (d) in Part 1 of Schedule 7 and the inclusion of the empty Parts 2 of Schedules 5, 6 and 7 as not being in accordance with proper legislative practice.

Defective drafting

1.5  Schedule 1 includes S.I. 2006/2907 in the list of Regulations revoked by these Regulations. The Department's memorandum acknowledges that it should not have done so, because that S.I. was revoked by S.I. 2007/2400 with effect from 7 September 2007. The Committee reports Schedule 1 for defective drafting in this respect, acknowledged by the Department.

1.6  In Schedule 3, the concluding words in entry 419 do not read properly and note (4) which refers to EC Regulation No. 999/2001 should have been omitted, as acknowledged by the Department's memorandum. The Committee reports Schedule 3 for defective drafting in this respect, acknowledged by the Department.

1.7  Item 18 in Part 1 of Schedule 6 refers in column (d) to a non-existent provision. It accords with the Directive in this respect. The Department agrees in its memorandum that the reference in item 18 should have been omitted. The Committee reports item 18 in Part 1 of Schedule 6 for defective drafting, acknowledged by the Department.

Remedial action

1.8  As regards remedial action, the Department has indicated its intention to amend the Regulations in regard to—

• the preamble,
• item 167 in Schedule 3,
• item 419 in Schedule 3, and
• item 18 in Part 1 of Schedule 6,

at the next convenient opportunity. The Committee considers amendment of the preamble to be inappropriate, as it appears impossible in the absence of express authorising provision to change at a later date the specification of powers at the time an instrument was made; but it welcomes the intention to amend the final two provisions mentioned. So far as item 167 of Schedule 3 is concerned, the flaw perceived by the Committee arises as a consequence of unacceptable legislative practice; if it is amended, it would be consistent in addition to amend regulation 9(b) to remove the reference to the requirements in column (d) of Schedule 7. The Committee also considers that, if the Regulations come to be revoked and replaced, the occasion should be taken to remove any empty Schedule elements.