Memorandum by the Department of Trade
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.
The then Select Committee on Delegated
Powers and Deregulation reported on the Bill on 22 April 1998.
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.
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.
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).
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.
6. These are described in paragraph 6.1 onwards.
Clause 1 - introduction and definitions of 'fireworks'
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
(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
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
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.
Clause 5 - prohibition of supply etc of certain
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
6.17 Clause 12(1) imposes a statutory duty on
local weights and measures authorities to enforce fireworks regulations.
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
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
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
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
16th Report Session 1997-98 (HL Paper 96). Back
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
Subsection 1(b) of Section 27 of the 1987 Act does not apply to
Fireworks regulations - as the Fireworks Bill is confined to Great