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