Joint Committee on Statutory Instruments Sixth Report


APPENDIX IV

Memorandum by the Department of Trade and Industry

LIFT REGULATIONS 1997 (S.I. 1997/831)

  1. In the letter dated 11 June 1997 from the Commons Clerk of the Committee, the Joint Committee on Statutory Instruments has requested a Memorandum from the Department on the following points:

    (1)   Regulation 2(2), in defining "installer of a lift", employs the expression "natural or legal person". Explain why it is necessary to use this expression instead of the word "person" normally used in United Kingdom legislation.

    (2)   As respects the meaning given in regulation 2(2) to the expression "placing on the market of the lift" -

      (a)   should not the reference to regulation 9(3) be to regulation 9(1)?; and

      (b)   explain why the definition of this expression is excluded from applying to regulations 9, 14 and 19 given that the expression is not used in those regulations.

    (3)   Regulation 7 makes the Regulations inapplicable to a lift as respects which the Scheduled essential health and safety requirements relate to risks wholly or partly "covered by other Community Directives applicable to that lift".

Explain -

      (a)   whether this is intended to make future as well as existing Directives displace these Regulations;

      (b)   if the Directives are only those in force when these Regulations come into force, why the Directives in question are not specified; and

      (c)   whether "covered" is intended to attract Directives before they have been adopted.

    (4)   Explain, in regulation 8(2)(a), the proposition that, for the purpose of satisfying the Schedule 1 requirements, "(ii) by calculation or on the basis of design plans, it is permitted to demonstrate the similarity of a range of equipment to satisfy" those requirements. In particular, explain -

      (a)   the relevance of the "similarity of a range of equipment";

      (b)   who or what gives the permission;

      (c)   by whom and to whom the demonstration is given.

    (5)   In regulation 24(1) and (2), explain the effect of making these Regulations have effect as if the addition of the Lifts Directive to Schedule 1 to the Provision and Use of Work Equipment Regulations 1992 and 1993 had been made by Health and Safety Regulations under the Health and Safety At Work Act 1974.

  2. On the first point, these Regulations implement Directive 95/16/EC of the European Parliament and Council on the approximation of the laws of the member States relating to lifts ("the Directive"). The Regulations mainly adopt a "copy-out" approach whereby the terms of the Directive, particularly those which expressly define words and expressions used, are used wherever possible. The Directive includes a definition of "installer of a lift" which is clear and unambiguous. That definition refers to the "natural or legal person" who undertakes certain responsibilities and the Department took the view that it was appropriate to incorporate that wording from the Directive. It will be noted that a reference to "natural or legal person" has also been incorporated in the definition of "manufacturer of the safety components" on a similar basis.

  3. On the second point, the Directive states that "placing on the market of the lift" shall occur when the installer first makes the lift available to the user. However, the Department is of the view that it would not be appropriate to apply that definition in all circumstances in these Regulations since a number of obligations imposed in the Directive are to be placed on a person other than the "installer" of the lift as defined. The Department considered it to be necessary to except from the definition of the expression those areas where a person other than the installer of a lift could undertake the activity of placing on the market. However, the Department acknowledges that the reference to regulation 9(3), which regulation relates generally to "safety components", is a typographical error and, on further examination it is not considered that the reference is necessary. The Department undertakes to rectify this error at the first available opportunity.

  4. In the case of regulation 14, there is a reference to "the person who places that lift . . . on the market" in circumstances where that person clearly will not be the "installer of the lift".

  5. In the case of regulation 19, there is a reference to "the person who places in [the lift or safety component] on the market in the United Kingdom". Again, that person will not be the "installer of the lift" which is why an exception to the definition of "placing on the market of the lift" has been made for the purposes of that regulation.

  6. On the third point, regulation 7 implements the provisions of Article 1.5 of the Directive which state "where, for lifts, the risks referred to in this Directive are wholly or partly covered by specific Directives, this Directive shall not apply or shall cease to apply in the case of such lifts and such risks as from application of those specific Directives". The Department intends the provision to have an "ambulatory" effect to reflect the requirement of the specific provision in the Directive. Accordingly,

    (a)   the Department considers that regulation 7 would make future as well as existing Directives displace these Regulations to the extent that those "other Community directives applicable to that lift" contain provisions relating to risks to which the Regulations apply;

    (b)   in the light of the effect of the provision there is no need to specify the Directives; for future Directives this would not be possible; and

    (c)   a risk would not be "covered" by another Community Directive for the purposes of regulation 7 prior to the adoption of that Directive since the essential health and safety requirements of proposals for that Directive would not comprise obligations of Community law at that stage and could not be applied to the lift. Up to the stage of adoption there is always the possibility that such requirements would either not be adopted or not adopted in that form.

  7. On the fourth point, regulation 8(2)(a) reflects the final paragraph of Article 1.4 in the Directive and is "copied-out". There could be various lifts which, for the purposes of satisfying the essential health and safety requirements, are the same (in effect they share broadly similar characteristics) but, for example their dimensions may be different. This is a "permissive" provision only as an option for the person who is complying with the requirements of the Regulations in respect of a lift and, in particular, compliance of the product with the essential health and safety requirements.

  8. It would normally be the "installer of the lift" who would take advantage of the flexibility afforded by regulation 8(2)(a). The demonstration would be the way in which that person can show the similarity of the range of equipment. In the case of a lift, there must be compliance with one of the conformity assessment procedures as set out in regulation 13. A notified body appointed for the purposes of these Regulations would be involved in those procedures and would have to be satisfied as part of those procedures that the "essential health and safety requirements" had been met. Also, observance of the provisions will be important for the purposes of enforcement by the enforcement authorities. The demonstration can be for the purposes of the notified body and/or to an enforcement authority. However, it was not considered necessary to amplify the wording of the Directive by spelling out the precise nature of the option.

  9. On the final point, the Regulations are made under section 2(2) of the European Communities Act 1972. However, some of the provisions of the Directive relate to the activity of "putting into service" and for the purposes of the enforcement of the Directive it was considered necessary to make the Regulations effective for the purposes of the other Regulations specified in regulation 24. Those other Regulations do not have the 1972 Act vires but rely (inter alia) on section 15 of the Health and Safety at Work etc. Act 1974 (and the Northern Ireland equivalent provisions) which necessitated definition of the provisions of the Regulations as "health and safety regulations" for the purposes of that section. In order to give effect to the Department's intentions it was necessary to deem the vires of the 1974 Act for that purpose.

16th June 1997

Second Memorandum by the Department of Trade and Industry

LIFTS REGULATIONS 1997 (S.I. 1997/831)

  1. In the letter dated 25 June 1997 from the Commons Clerk of the Committee, the Joint Committee on Statutory Instruments has requested a further Memorandum from the Department on the following points:

    As respects the saving in regulation 7 for "other Community directives" adopted in the future, is it intended that the Scheduled essential health and safety requirements should cease to apply -

    (a)   on the coming into force of United Kingdom legislation implementing such a future Directive; or

    (b)   at some other (and, if so what) time in relation to such a future Directive;

    and if the intention is as in (a), would not the proper course be to disapply the Scheduled requirements in the legislation implementing the Directive in question?

  2. In the Memorandum dated 16 June 1997 from the Department to the Joint Committee, it was indicated that regulation 7 implements the provisions of Article 1.5 of the Directive (95/16/EC). As regards the timing of the application of that Article, the Department takes the view that in the case of a future "specific Directive" the essential health and safety requirements of the Directive (in whole or in part) should cease to apply "as from application of" that specific Directive; the wording of the Article is clear and unambiguous. Such a specific Directive would not apply to a lift until the date on which that Directive is required to be applied by the member States. In the case of the Lifts Directive, for example, Article 15 stated that "Member States shall apply these measures with effect from 1 July 1997" and the Lifts Regulations 1997 which implement the Directive come into force on that date.

  3. However, it is not the "coming into force" of UK implementing legislation when the Scheduled essential health and safety requirements should cease to apply but the date when a member State must apply the "other" Directive which is relevant. In most cases, that may be the same date as the date of the coming into force of the UK implementing legislation but that cannot be guaranteed in respect of Directives yet to be adopted and implemented. The obligations under Community law require the UK to behave in a certain way on the date of the application of a "specific Directive" and regulation 7 fully implements that obligation.

  4. The Department accepts that one approach to implementing Article 1.5 might be to make individual disapplications when implementing a "specific Directive". However, Article 15 of Directive 95/16/EC includes a provision that member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by a specific date. In addition, member States shall forthwith inform the Commission thereof. Bearing in mind those obligations, which relate in part to the implementation of Article 1.5, the Department took the view that the better course was to approach the disapplication at this stage in the manner provided in regulation 7.

30th June 1997


 
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