Select Committee on Delegated Powers and Deregulation Sixteenth Report


SIXTEENTH REPORT

22 April 1998

By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.

FIREWORKS BILL

Introduction

  1.    This Bill makes provision about fireworks and other explosives. It confers power on the Secretary of State to make regulations (i) for the purpose of securing that fireworks are used safely and (ii) to make regulations controlling the supply, exposure for supply, purchase, possession and use of other explosives. It provides for the contravention of a provision of regulations made under the Bill to be an offence.

  2.    The Bill is essentially a framework for fireworks regulations which will regulate all aspects of fireworks safety, in particular the sale and storage of fireworks and public fireworks displays. The Department of Trade and Industry's memorandum states that the main purpose of the Bill is "to provide the capability to address, by way of regulations, a number of firework issues which cannot be addressed using powers presently available to government."[1] The Committee considered whether this was a "skeleton Bill" which was little more than a licence to legislate at a later date. In considering this question the Committee took into account, firstly, the fact that legislation in this field has traditionally proceeded by regulation-making powers, and secondly, the fact that clause 2 of the bill provides that permanent regulations (regulations which remain in force until revoked) can only be made following a public consultation.[2]

  3.    The Committee was nonetheless so concerned about the potential width of the powers in the Bill that it invited officials from the Department of Trade and Industry to give oral evidence on it. This evidence was heard in the presence of Lord Monkswell, who is the sponsor of this Private Member's Bill in the House of Lords. During the course of this clear and helpful evidence officials gave repeated assurances that it was the Government's intention that although the powers in the Bill were wide, they would be used narrowly.[3] They also stated that a ministerial undertaking might be given that a full regulatory appraisal, including the compliance costs to industry, would be published before any permanent regulations were made, in addition to the public consultation provided for in the Bill (QQ 11-12). The Committee believes that such an appraisal would provide a valuable discipline. The Bill has the support of the Government, and it is in this context that we refer both here and elsewhere in this report to ministerial undertakings.

  4.    Officials persuaded the Committee that the legislation was necessary to widen the ambit of consumer protection in this area. As an example, the Government had recently been unable to make regulations to restrict the times in which it is permitted to use fireworks, despite the obvious considerations of noise and general nuisance. The existing power to make regulations (in the Consumer Protection Act 1987) was essentially aimed at ensuring that products which were sold or supplied were safe to use and did not extend to ensuring that the products were then actually used safely. This limited the protection against fireworks accidents that could be achieved without the new powers. An example was outlawing "bangers", where the product threatened the safety of children but there was also a case for action to protect cats and dogs from injury or distress (see clause 2(2)(b)).

  5.    During the course of the oral evidence officials indicated that ministerial undertakings might be made in response to each of the Committee's particular concerns. These concerns are detailed below. In the light of this and the considerations outlined in paragraphs 2-4 above, the Committee concluded that the Bill did not "inappropriately delegate legislative power".

Use of the negative resolution procedure

  6.    Regulations under the Bill are subject to negative procedure. The memorandum explains that since it might be appropriate to make regulations dealing with fireworks under the provisions of the Bill and those of section 11 of the Consumer Protection Act 1987, the Government considered it particularly important to provide for the same procedure as applies for regulations made under that section. In addition, the Department considered that the regulation-making powers in the Bill did not involve considerations of special importance which might make the affirmative resolution procedure appropriate.[4] The Committee considered whether the negative procedure provided sufficient Parliamentary control for a power which is wide ranging and important to those it affects. In the light of the specific suggestions that a number of detailed ministerial undertakings might be given during the passage of the Bill, the Committee concluded that negative resolution was adequate.

Henry VIII Powers

  7.    Clause 1(2) allows the Secretary of State to amend the definition of "fireworks" in clause 1(1). The memorandum explains that this power is required for two reasons. First, there is a need to ensure that all fireworks, which are diverse in composition and function, continue to fall within the scope of the Bill and that other types of device which the Bill covers are accurately defined. Second, account will need to be taken of any change in the British Standard definition, "which may not be entirely satisfactory for the purposes of legislation".[5] The fact that the Bill sets no limits on what might be brought within the definition and so within the scope of the Bill caused the Committee particular concern. This concern was exacerbated by the fact that regulations under clause 1(2) would not be subject to the requirement for consultation under clause 2(3) of the Bill (Q 27). The Department indicated that a ministerial undertaking might be given to indicate the very limited circumstances in which this power would be used (QQ 25-26).

  8.    Clause 14(3) allows the Secretary of State to amend the definition of "explosives" in clause 14(2). The definition is needed because clause 14(1) allows fireworks regulations under clause 3 (prohibition of supply to young persons) or 4(2) (close season for sale or supply of fireworks) to apply also to explosives. The Committee's comments on clause 1(2) above also

apply to this Clause and here too a ministerial undertaking would meet the Committee's concerns.

Power to make regulations about fireworks

  9.    The power granted by clause 2 of the Bill to make regulations about fireworks is another disturbingly wide power. It includes the power by regulations to "make any provision ... for the purpose of securing that fireworks are used ... so that there is no risk, or only the minimum risk compatible with their use, that they will cause ... the death of any person or injury, alarm, distress or anxiety to any person". The Department explained the intention behind this provision and the difficulty of writing into the Bill any more precise limitation on the use of the power. Again, the Department indicated that the power would in practice be used in limited circumstances (Q 29). The Committee considers that the House may wish to seek a ministerial undertaking to reassure the House that this wide power would, in practice, be used narrowly.

Public fireworks displays

  10.    Clause 6 provides that regulations may include provision prohibiting the operation of public fireworks displays unless specified conditions have been complied with or if operators do not comply with specified conditions. The conditions relating to displays may include conditions requiring notice and information to be given, and fees to be paid, to persons specified in the regulations. The conditions relating to operators may include conditions relating to satisfactory training in the use of fireworks. The clause also provides that regulations may prohibit persons below an age specified in the regulations operating, or assisting in the operation of, public fireworks displays.

  11.    The Committee was concerned that this clause might discourage the scout, PTA and similar fireworks displays which are a feature of early November. Officials assured the Committee that this was not the Government's intention; the requirement as to training was intended to apply only when unusually dangerous fireworks were to be used (Q 33); and they indicated that a Ministerial undertaking might be made to this effect, and to the effect that it was not the Government's intention that the Bill should prevent traditional back garden bonfire night fireworks (Q 40).

Other significant powers

  12.    Three clauses provide power to charge fees. Clause 6 regulates public fireworks displays and subsection (1)(c) contemplates the organisers having to pay a fee ("any fee imposed by any local or other authority in accordance with the regulations has been paid"). Clause 7 deals with the licensing of supplies and subsection (2)(d) allows regulations to provide "for the charging of fees for the grant or variation of licences".

  13.    Clause 10(1)(a) provides for training courses to be run by "licensed persons". Subsection (3)(c) deals with fees for the grant or variations of a licence. The effect of subsection (2)(b) is that the fee can be fixed by the Secretary of State or by a body established or recognised by the Secretary of State. There is no requirement that the fee be approved by the Secretary of State or be subject to a limit specified in regulations. In the Committee's view, the fee should either be approved by the Secretary of State or be subject to a limit specified in regulations. During the course of oral evidence officials accepted this (QQ 33-34), and the House may wish to seek ministerial assurances that the power would be exercised in this way during the further passage of the Bill.

  14.    Clause 10 deals with training courses in the use of fireworks. Clause 6(2) allows regulations to prohibit a person "operating public fireworks displays" unless he has satisfactorily completed a course, or courses, of training in the use of fireworks. Clause 10(4) and (5)(c) allow "the charging of fees for attendance at courses". The effect of clause 10(4)(b) is that the regulations can allow the Secretary of State to approve training bodies and leave it to those bodies to set their own fees; the approved bodies do not need to be identified in the regulations and there is no requirement that the regulations shall fix the fee, or impose a maximum or require the fee to be approved by the Secretary of State. The concerns which the Committee expressed about fees in the preceding paragraph apply equally here and the House may wish to seek assurances on this point also.[6]

  15.    The list of enforcement provisions in clause 12 applies existing consumer protection enforcement procedures and powers to fireworks regulations. Since Parliament enacted those provisions to support regulations under section 11 of the Consumer Protection Act 1987 and those regulations are subject to negative procedure, the applications of these provisions, important though they are, is not a factor in deciding the appropriate level of Parliamentary control for fireworks regulations.

Recommendation

  16.    The Committee draws the attention of the House to the more disturbing aspects of the wide ranging powers conferred by the Bill and invites the House to consider whether to seek Ministerial assurances about these. If Ministerial undertakings on all these points are not forthcoming, the House may wish to consider whether amendment of the Bill is called for.[7]


1   Paragraph 4. Back

2   "Emergency" regulations, which can remain in force for no longer than 12 months, are not subject to consultation. Back

3   For example, in response to Q 24. Back

4   Paragraphs 8.24 and 8.25. Back

5   Paragraph 8.1. Back

6   Cf QQ 38-40. Back

7   This report is also published on the Internet at the House of Lords Select Committees Home Page (http:///www.parliament.uk), where further information about the work of the Committee is also available. Back


 
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