Joint Committee on Statutory Instruments Twelfth Report


  3.   The Committee draws the special attention of both Houses to these Regulations on the grounds that in two places they make an unexpected use of powers.

  4.   The Regulations implement Council Directive 96/35/EC on the appointment and vocational qualification of safety advisers for the transport of dangerous goods, but they are made under the Health and Safety at Work etc. Act 1974. Regulation 7(8)(b) and (9) provides that where the training and examination of a safety adviser are limited to a particular category of dangerous goods the vocational training certificate shall indicate the limitation. The Committee asked the Department of the Environment, Transport and the Regions to explain what provision of Directive 96/35/EC authorises this limitation. The Department answer in the memorandum printed in Appendix II that, although Directive 96/35/EC does not authorise such a limitation, the provision was included because they expect Directive 96/35/EC to be supplemented by a Directive on the harmonization of examination requirements for safety advisers, which will permit Member States to limit the training and examination of a safety adviser to a particular category of dangerous goods, and will require that the vocational training certificate clearly indicates any such limitation. The Committee appreciates the Department's difficulty in desiring to adapt the current training regime to meet the terms of the proposed new Directive, but regulations should not be made in anticipation of different obligations which may or may not be created at some stage in the future. The provision is not ultra vires (although it would have been if it had been made under the European Communities Act 1972), but as Directive 96/35/EC does not permit the training to cover only a particular category of goods the Committee considers that regulation 7(8)(b) and (9) is an unexpected exercise of a power, and reports accordingly.

  5.  In article 3(b) and (c) Directive 96/35/EC gives Member States a restricted right to allow exemptions from the Directive's requirements. The Committee asked the Department why regulation 10(1) and (2) grants to the Health and Safety Executive a much wider power to authorise exemptions. The Department answer that Directive 96/35/EC forms part of a package with Directives 94/55/EC and 96/49/EC. They give an example of a case in which an exemption could be granted under these Directives combined which could not be granted under Directive 96/35/EC alone, and say that the widely drawn power of exemption in regulation 10(1) and (2) could be used to meet the specific cases in the Directives under which exemptions may be granted. This is not satisfactory as the Regulations should permit exemptions only to the extent authorised by the Directive (or Directives) and none allows the taking of a power to exempt in the wide terms of regulation 10. Again, since the power ostensibly taken is in terms wider than the allowance in the current Directives, the Committee reports regulation 10(1) and (2) as being an unexpected exercise of a power.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999
Prepared 25 March 1999