Select Committee on Delegated Powers and Regulatory Reform Twenty-Third Report


ANNEX 2

FIREWORKS BILL

Memorandum by the Department of Trade and Industry

INTRODUCTION.

1. This memorandum identifies provisions for delegated legislation in the Fireworks Bill 2003. The purpose of the memorandum is to explain the purpose of the delegated powers taken; describe why the matter is to be left to delegated legislation; and explain the procedure selected for each power and why it has been chosen.

2. It is worth noting that a previous Fireworks Bill (HL Bill 92) - introduced into the House of Lords by Lord Monkswell on 23 March 1998, included some Henry VIII clauses that were a cause for concern by some in the upper House. Those were clauses: 1(2), allowing the Secretary of State to substitute a new definition for 'fireworks'; and, similarly, 14(3), conferring on the Secretary of State the power to substitute a new definition of 'explosives'. These concerns have been taken into account in the drafting of this current Bill and remedied by clause 16(2) - which applies the affirmative resolution procedure to the said clauses.[2] The then Select Committee on Delegated Powers and Deregulation reported on the Bill on 22 April 1998. 2

PURPOSE OF THE BILL.

3. The Bill makes provision for fireworks regulations to be made by the Secretary of State to address a range of fireworks issues where present powers under Section 11 of the Consumer Protection Act 1987 and other legislation are inadequate.[3] The powers that may be exercised under the legislation ensure the safety of consumer goods - but do not enable their use to be regulated. The broad aim of the Bill, then, is to confer on the Secretary of State the power to secure that there is no risk that the use of fireworks will cause death, injury or distress to persons or animals (and also alarm or anxiety to persons) or to cause destruction of, or damage to, property.

DELEGATED POWERS.

4. The Bill contains a power in clause 2 to make fireworks regulations and subsequent clauses of the Bill provide for specific provisions which such regulations may contain. In addition, there are other powers to make delegated legislation in clauses 1 (introduction) and 14 (prohibition of supply etc. of other explosives) and further powers to make regulations in the Consumer Protection Act 1987 are incorporated by reference into the Bill by clauses 11 (offences) and 12 (enforcement).

CLASSIFICATION OF SUBORDINATE LEGISLATION

5. In deciding whether subordinate legislation was appropriate in any particular case the Department had in mind the following criteria:

  • to ensure that the regulation-making powers in the Bill align with those in the Consumer Protection Act 1987 (this is necessary because it may be appropriate for any future fireworks regulations to be made under mixed powers);

  • the need to avoid too much technical detail on the face of the legislation;

  • to ensure flexibility in responding to changing circumstances without the need for primary legislation;

  • to allow flexible timing to ensure that the drafting of technical details is right, affected parties can be consulted, and changes to the details of legislation can be made in the light of changed circumstances.

CLAUSE BY CLAUSE ANALYSIS OF DELEGATED POWERS

6. These are described in paragraph 6.1 onwards.

Clause 1 - introduction and definitions of 'fireworks' and 'supplying'

6.1  This clause defines the expression "fireworks" and what is meant by "supplying" for the purposes of the Bill. Fireworks are defined by reference to the current British Standard for fireworks[4] (or any British Standard replacing it) and provision is made for this definition to be varied or replaced by the Secretary of State. 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. Any regulation made under clause 1(2) is subject to the affirmative resolution procedure, as required by clause 16(2) if the Bill.

Clause 2 - power to make regulations about fireworks

6.2  This clause sets out the basis on which the Secretary of State may make fireworks regulations and the procedure which must be followed. Permanent regulations (that is, regulations which remain in force until revoked) can only be made following consultations with the Health and Safety Commission, representative bodies of those affected by regulations and other persons considered by the Secretary of State appropriate to consult. There is also a procedure for making 'emergency' regulations - which can remain in force for no longer than 12 months. These procedures echo existing ones in section 11 of the Consumer Protection Act 1987.

Clause 3 - prohibition on supply etc to young persons

6.3  This clause provides for the Secretary of State to make regulations to prohibit persons from supplying, or offering or agreeing to supply, fireworks or fireworks of a specified description to persons below an age specified in the regulations. Clause 3 also provides powers to make regulations to prohibit the purchase or possession of fireworks, or fireworks of a specified description, by persons who are below a specified age. The latter powers add to those available under section 11 of the Consumer Protection Act 1987, which do not allow the prohibition by criminal sanction of the purchase or possession of fireworks.

6.4  As to the powers to prohibit supply to young persons, Section 11 of the 1987 Act enables regulations to be made to this effect, but for two reasons it is necessary to include such powers in the Bill:

  • the circumstances in which the powers in the Bill may be exercised are wider than in the 1987 Act, enabling the Secretary of State to legislate, for example, to reduce the possibility that fireworks are used to cause alarm, distress or anxiety to either persons or animals;

  • the 1987 Act contains only a due diligence defence for those charged with an offence under safety regulations (Section 39) and this is felt not to offer adequate protection for a retailer charged with supplying fireworks to, for example, a person who is under 18 but whom he had no reason to suspect was below that age. The Bill contains a defence to this effect in clause 11(8) (as well as a due diligence defence in clause 11(7)).

Clause 4 - prohibition of supply etc in certain circumstances

6.5  This clause provides powers for the Secretary of State to make regulations restricting the supply, purchase, possession or use of fireworks, or specified fireworks, at particular times. The clause also allows for regulations prohibiting the supply, exposure for supply, purchase, possession or use of fireworks or fireworks of a description specified in the regulations in places or places of a description or in circumstances specified in the regulations. Regulations made under this clause may include exceptions or dispensations. These powers add to those available under the Consumer Protection Act 1987. In particular, they would enable the anti-social use of fireworks late at night to be controlled.[5]

Clause 5 - prohibition of supply etc of certain fireworks

6.6  There are two groups of powers in this clause:

  • subsection (1), enables regulations to be made prohibiting the supply, offering or agreeing to supply, fireworks so described in the regulations;

  • subsection (2), on the other hand, allows for prohibition in relation to the supply, offering or agreeing to supply, fireworks or fireworks of a description to persons of a description specified in the regulations;

  • to some degree these powers echo those in section 11 of the Consumer Protection Act 1987, except that they will be exercisable in circumstances where the 1987 Act powers are not applicable and will enable regulation of possession and purchase. The principal difference, and indeed the principal reason why the powers in this clause are considered necessary, lies in the way in which persons may be described for the purposes of regulations.

6.7  Section 11 of the 1987 Act allows regulations to be made which prohibit the supply of fireworks (or particular types of fireworks) to persons of a particular description. In the case of fireworks, it has been seen as being particularly desirable for particular fireworks to be kept out of the hands of people who have not been trained in their use. The powers in the 1987 Act are not sufficiently broad to enable this to be addressed properly. In particular, they do not enable the Secretary of State to delegate matters such as the determination of the contents of training courses, or eligibility to attend such courses, to (for example) private sector training providers. The powers in clause 5 of the Bill, read with clause 10, will allow such matters to be dealt with effectively by regulations. Regulations made under this clause may include exceptions or dispensations.

Clause 6 - public fireworks displays

6.8  This clause provides that regulations may prohibit persons from operating public fireworks displays unless they have given notice to any authorities specified in the regulations, provided any other information required, paid any required fee and complied with other conditions so specified. Regulations made under this clause may include provision prohibiting persons from operating public fireworks displays unless they have satisfied conditions relating to training and other conditions specified in the regulations. In addition, persons below a specified minimum age may be prohibited from operating, or assisting in the firing of, a public fireworks display. Regulations made under this clause may include exceptions and dispensations. This clause adds significantly to the powers in section 11 of the 1987 Act, which do not enable the operation of firework displays to be regulated.

Clause 7 - licensing of suppliers

6.9  This clause provides that regulations may include provision to prohibit persons from supplying, exposing for supply or possessing for supply fireworks, or fireworks of a specified description, otherwise than at premises licensed in accordance with the regulations. Regulations made under this clause may specify the licensing authorities (e.g. local authorities); make provision relating to the granting, varying and revoking of such licences; specify the conditions which may be attached to them; specify that fees may be charged for the granting or variation of licences; and specify that there may be appeals against refusals to grant licences or against the variation of licenses. Additionally, regulations made under this clause would enable the introduction of a statutory selling period for fireworks - going some way in reducing the usage of fireworks all year round. The powers in the Consumer Protection Act 1987 do not allow the establishment of such a licensing regime.

6.10  The Explosives Act 1875, which is primarily the responsibility of the Health and Safety Executive (HSE), imposes requirements for the storage of explosives including fireworks. Persons wishing to store explosives for the purpose of supplying them must obtain a licence either from HSE or (under delegation) the local authority, or, for relatively small amounts of explosives, register their premises with the local authority. These requirements relate to the total weight of explosive content to be stored and do not allow for a differentiation between (for example) particular fireworks in terms of their individual explosive content. It is therefore open to any retailer or other supplier to stock and sell all types of fireworks -from the smallest to the largest available. The additional powers provided by this clause would therefore allow for the introduction of a licensing system relating to the supply of fireworks or fireworks of a particular description. It is recognised that any regulations made under this clause would need to be compatible with the arrangements operated by HSE relating to the storage of explosives.

Clause 8 - information about fireworks

6.11  This clause provides that regulations may specify information which must, or must not, be given in relation to fireworks or specified fireworks. Regulations may specify that marks, warnings or instructions must be put on, or accompany, fireworks, and may require the specified information to be given to designated persons and for those persons to keep appropriate records. Regulations may include exceptions or dispensations. These powers mirror powers in the Consumer Protection Act 1987, save that they may be exercised in different circumstances. Further, the powers in the 1987 Act to require information to be given to specified persons are rather more limited and do not enable an obligation to be placed on such persons to keep records.

Clause 9 - prohibition of importation etc of fireworks

6.12  This clause allows for the introduction by regulations of measures to require UK manufacturers and importers to provide information about fireworks to authorities designated in the regulations. Regulations made under this clause may, for example, prohibit importers from importing fireworks and manufacturers from completing the manufacture of fireworks where they have failed to comply with a requirement to submit product information. Alternatively, regulations may prohibit the placing on the market of fireworks unless information about fireworks has been notified to the designated authorities. Regulations made under this clause may define the terms "completion of manufacture" and "placing on the market". The broad intention of the powers in this clause is to provide advance warning to enforcement authorities about consignments of fireworks and to facilitate the tracing of fireworks. Regulations made under this clause may include exceptions or dispensations. Powers are not available in the Consumer Protection Act 1987 to address the concerns in this area.

Clause 10 - training courses

6.13  This clause provides the detailed powers relating to the setting up or recognition of training courses. Fireworks regulations may provide for training to be provided by the Secretary of State or any other body or bodies established or recognised by the Secretary of State, but they may also provide for the granting of licences to organisations to provide such training (and for the revocation of licences where necessary). Regulations made under this clause may also specify the conditions which may be attached to such licences. Provision is also made for the charging of fees and for appeals against refusal to grant a licence or vary the conditions of a licence.

6.14  This clause authorises the Secretary of State, or bodies established or recognised by the Secretary of State, to make provision about a number of matters in relation to training courses, including the contents of such courses and the persons eligible to attend. As explained in relation to clause 5, this significantly adds to the powers available under the 1987 Act. The clause exists to support the requirements in clauses 5 and 6.

Clause 11 - offences

6.15  Clause 11(6) incorporates specific powers in the Consumer Protection Act 1987 into the Bill by reference. This will enable fireworks regulations to contain provisions about offences of the sort described in section 11(3)(c), (e) and (f) of the 1987 Act. They might, for example, extend the period for the bringing of proceedings to twelve months or provide that the consent of the Secretary of State or the Director of Public Prosecutions is required before proceedings can be brought.

Clause 12 - enforcement

6.16  Clause 12 incorporates specific regulation-making powers relating to enforcement from the Consumer Protection Act 1987.

6.17  Clause 12(1) imposes a statutory duty on local weights and measures authorities to enforce fireworks regulations.[6] It incorporates a power from the 1987 Act to transfer this duty, wholly or partly, to any other person with that person's agreement. It also enables regulations to relieve an enforcement authority of its statutory enforcement duty. Such a power might be exercised where, for example, the police or fire authorities were considered to be a more suitable enforcement authority in respect of particular provisions of fireworks regulations than local trading standards departments. An example might be a prohibition on the use of fireworks in specified places.

6.18  Clause 12(2)(a) incorporates regulation-making powers relating to test purchases of fireworks by enforcement authorities. They allow regulations to specify the persons who are to carry out tests and the manner in which tests are to be carried out where an enforcement authority has made a test purchase of fireworks.

6.19  Clause 12(2)(b) incorporates regulation-making powers relating to the testing of fireworks seized by enforcement authorities. The powers mirror those relating to the testing of purchased fireworks incorporated by clause 12(2)(a), as above.

6.20  Clause 12(2)(i) incorporates regulation-making powers from the 1987 Act relating to the provision of information by persons to enforcement authorities acting in exercise of their powers. Regulations may specify the manner in which such information is to be given. Powers are incorporated also to determine who is to be treated as the person from whom an enforcement authority purchases or seizes fireworks if, by any chance, those fireworks are purchased or seized from a vending machine.

Clause 14 - prohibition of supply etc of other explosives and definition of "explosives"

6.21  This clause provides that the regulation-making powers in clauses 3 and 4(2) also extend to explosives other than fireworks. The Bill incorporates by reference the definition of "explosives" in the Explosives Act 1875 and clause 14 also provides that the Secretary of State may amend by regulation the definition of "explosives" for the purposes of the Bill.

6.22  Power is required to amend the definition because of current proposals to repeal the 1875 Act and re-enact its provisions, in modified form, by regulations made under the Health and Safety at Work etc. Act 1974. This is the responsibility of the Health and Safety Executive. If the repeal and re-enactment were to be effected by a single set of regulations with a single, modified definition of "explosives", there would be no difficulty. The new definition would apply for the purposes of the Bill by virtue of sections 17(2)(a) and 23(1) of the Interpretation Act 1978. However, it is not at present certain exactly what form the re-enactment will take, or whether it might in fact incorporate more than one definition of "explosives". For that reason, a power is required to ensure that "explosives" can be properly defined for the purposes of the Bill.

6.23  Powers in the Health and Safety at Work etc. Act 1974 do not enable sections 30 and 31 of the 1875 Act to be repealed and re-enacted in regulations made under that Act. Therefore, these sections are prospectively repealed by the Fireworks Bill (clause 15, read with clause 18) and powers are conferred which will enable them to be re-enacted, with modifications, by fireworks regulations. To this end, clause 14 extends the powers in clauses 3(1) and 4(2) to all types of explosives. Section 30 of the 1875 Act (read with section 39) prohibits the hawking, sale and exposure for sale of explosives in any highway, street, public thoroughfare (in Scotland, simply any "road") or public place. The powers in clauses 4(2) and 14 will enable regulations to prohibit the supply (which includes sale) and exposing for supply of explosives in places or places of a description specified in the regulations (which might include the places currently described in section 30). Section 31 of the 1875 Act (again read with section 39) prohibits the sale of explosives to an person apparently under the age of 16 years. The powers in clause 3(1) and 14 of the Bill will enable fireworks regulations to prohibit the supply of explosives to any person under the age of 16.

Clause 16 - procedure selected for the exercise of powers

6.24   Clause 16 sets out the procedure under which regulations under the Bill can be made. The power to make fireworks regulations is to be exercised by the negative resolution procedure. Fireworks regulations are intended to fill gaps in safety regulations that are made under section 11 of the Consumer Safety Act 1987, e.g. fireworks regulations address the use (as well as the supply) of fireworks. Safety regulations are already subject to the negative procedure, and an additional advantage of having the fireworks regulations subject to the same procedure is that it would avoid excessive bureaucratic process by permitting a single set of regulations to be made using powers in both the Firework Bill and the 1987 Act. Furthermore, in the Department's view, the Bill does not involve considerations of special importance which might render the affirmative procedure appropriate, save for the exception of clauses 1(2) and 14(2). The latter two clauses are considered apart from 'fireworks regulations' and are for the purpose of inserting new definitions of "fireworks" and "explosives". Because of Parliamentary concerns about the breadth of such powers, these regulations are subject to the affirmative resolution procedure.

Clause 18 - commencement

6.25  Clause 18 provides for the making of commencement orders by statutory instrument to bring into force the provisions of clauses 1 to 16 of the Bill. No particular timescale is at present envisaged for the making of commencement orders.

13 June 2003


2   See paragraph 6.24 below. Back

3   16th Report Session 1997-98 (HL Paper 96). Back

4   BS7114. Back

5   Regulations made under this clause and clause 14 would allow, inter alia, for the re-enactment in due course, and in amended form, of the provisions of Section 80 of the Explosives Act 1875 which (broadly) prohibits letting off fireworks in any highway, street, thoroughfare, or public place. Back

6   Subsection 1(b) of Section 27 of the 1987 Act does not apply to Fireworks regulations - as the Fireworks Bill is confined to Great Britain.  Back


 
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