Joint Committee on Statutory Instruments Thirteenth Report


Memorandum by the Department of the Environment, Transport and the Regions


  1. By a letter from its Clerk dated 5 November 1997 the Committee has requested a memorandum on four points in these Regulations, on which the Department would comment as follows.

    (1)   Explain the purpose and effect of regulation 2(2), and whether it is intended to operate in relation to the failure of compliance mentioned in paragraph 9 of Part II of Schedule 3.

  2. Regulation 2(2) provides that, in respect of acts done in another Member State, compliance with requirements equivalent to those under these Regulations in that state is included in references to compliance with the Regulations. This has effect, for example, in relation to technical documentation required by regulation 6: if the documentation has been established in another Member State by a manufacturer operating there and in the United Kingdom, compliance with the equivalent requirement in that state is sufficient compliance. This may also be relevant for paragraph 9 of Part II of Schedule 3 as an enforcement authority in the United Kingdom may need to see that technical documentation when it suspects that an appliance fails to satisfy the requirements of the Regulations.

    (2)   Regulation 10(4) requires an enforcement authority to take certain steps after it takes a decision pursuant to these Regulations which amounts to or includes a restriction on the placing on the market of an appliance. Identify the decision-making powers of an enforcement authority to which this provision relates.

  3. The powers in question would be to take decisions which lead to the authority instituting civil proceedings against a supplier or manufacturer, to enforce by injunction the obligations contained in, for example, regulation 8 (suppliers' duties in respect of non-conforming appliances) or 9 (manufacturers' duties in respect of the manufacturing process); for, if such proceedings are successful, they are very likely to result in restrictions being imposed on the placing on the market of an appliance while non-compliance with the Regulations continues. We would not consider decisions to institute criminal proceedings (for any of the offences listed in paragraph 1(1) of Schedule 3) or to suggest remedial action (under paragraph 6 of that Schedule) as falling within regulation 10(4).

    (3)   Explain what sanctions are intended for breach of the duties imposed by regulations 8 and 9.

  4. Regulations 8 and 9 are intended to be enforced by civil injunctive proceedings issued by the enforcement authority. There is no criminal sanction for breach of these regulations because neither can be breached without also breaching both of regulations 4(1) and 5(2). Under paragraph 1(1) of Part I of Schedule 3, each of these latter breaches is an offence.

    (4)   Paragraph 1(2) of Schedule 3 makes the offence of contravening paragraph 15(1) triable either way, that is, on indictment or summarily, and, as regards summary conviction, states the maximum fine in terms of "level 5 on the standard scale". Ought not the maximum fine to have been expressed in terms of the statutory maximum?

  5. Under paragraph 1(1)(d) of Schedule 2 of the European Communities Act 1972, the maximum fine on summary conviction which can be imposed by instruments transposing Community obligations is level 5 on the standard scale. Paragraph 1(2) of Schedule 3 to the present Regulations deals with the paragraph 15(1) offence, which is triable "either way" and for which the maximum fine on summary conviction is the "statutory maximum". Currently the statutory maximum is set at the same level as level 5 on the standard scale for summary offences and therefore the 1972 Act requirement is satisfied by referring to the "statutory maximum". However, there is an argument that, because the statutory maximum could be raised above the level 5 limit on the standard scale in the future, a direct reference to the level 5 limit would ensure that paragraph 1(2) remains intra vires at all times: c.f., the Committee's 26th Report of Session 1993-94 at pages 27-28.

11th November 1997

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