Joint Committee on Statutory Instruments Third Report


Memorandum by the Department of the Environment


  The Committee considered the Railway Safety (Miscellaneous Provisions) Regulations 1997 at its meeting on the 5th June and requested a memorandum on the following points:

    (1)   Regulation 2(5) provides that any reference in the Regulations to the maintenance of any equipment is a reference to - (a) the maintenance of that equipment in an efficient state, in efficient working order and in good repair; and (b) where appropriate, subjecting that equipment to a suitable system of maintenance. Explain (with an example) the sort of activity covered by (b) which is not covered by (a).

  Although it is accepted that considerable overlap is likely to exist in practice between sub-paragraphs (a) and (b), it is submitted that there is a distinction to be drawn between the requirements. Sub-paragraph (a) requires equipment to be in good repair, etc., at all times and, whilst such equipment so remains, the duty holder will remain in compliance with this requirement even where no positive steps have been taken to ensure that this is so. Sub-paragraph (b) on the other hand requires positive action to be taken in appropriate cases to subject equipment to a suitable system of maintenance (for example, by way of periodic examination and testing). It follows that a duty holder could be in breach of sub-paragraph (b) even where the relevant equipment remains in good repair. To establish such breach, it is submitted that it would be necessary to prove only the absence of a suitable system of maintenance notwithstanding the actual condition of the equipment.

    (2)   Explain the need for the saving (in general terms) in regulation 8(1) for "any Community obligation of the United Kingdom".

  The saving was included in the Regulations to reflect the Department's concern to ensure that the power did not permit exemptions to be granted in contravention of the United Kingdom's obligations under the European Community legislation. However, since the Regulations were made, this general issue has been considered with the Counsel to the Speaker. The Department accepts his advice that such qualifications is not necessary as the generality of the words conferring the power must be regarded as implicitly restricted so as to exclude an exercise of the power inconsistently with the United Kingdom's obligations under the Community legal order and, consequently, has agreed not to include such words in future Regulations of this type.

11th June 1997

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