Joint Committee on Statutory Instruments Fifth Report


Memorandum from the Department for Work and Pensions


Power of Exemption - regulation 13(2):

1. This Voluntary Memorandum concerns the power to grant exemptions included in regulation 13 of the Dangerous Substances and Explosives Atmospheres Regulations 2002 ("DSEAR").

2. DSEAR implements, as regards Great Britain, two European Directives, namely, Council Directive 98/24/EC ("CAD") (OJ No. L 131, 5.9.98, p.11) on the protection of the health and safety of workers from the risks related to chemical agents at work, so far as that Directive relates to safety, and Council Directive 99/92/EC ("ATEX") (OJ No. L 23, 28.1.00, p.57) on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres.

3. While Article 1.2 of ATEX contains disapplications (reflected in regulation 3(2) of DSEAR), neither Directive makes provision for a power to grant exemptions from their requirements.

4. Regulation 13 of DSEAR gives the Health and Safety Executive ("the Executive") a power to grant exemptions from the requirements or prohibitions imposed by or under DSEAR. However, regulation 13(2) includes limitations on this power; the relevant limitation for the purposes of this Memorandum provides that, before being able to grant an exemption, the Executive must be satisfied that "the exemption will be compatible with the requirements of the Directives" referred to above.

5. This general formulation for ensuring that any exemption does not breach the requirements of the Directives, rather than a precise identification of individual provisions which the exemption applies to, was considered appropriate in this particular case for the following reasons.

6. Regulation 6 and Schedule 1 (which regulation 6(8) introduces) include what could be considered as the main substantive duties under DSEAR. Regulation 6 and Schedule 1 apply more generally than just in relation to explosive atmospheres, implementing, as they do, provisions from both the above Directives; the Transposition Notes give the detail of this: Articles 3 and 5 and part of Article 7.2 of, and many of the provisions of Part A of Annex II to, ATEX have been implemented through regulation 6 and Schedule 1. To the extent that these provisions of ATEX have been made to apply more generally than just to explosive atmospheres, those provisions of ATEX have been over implemented. An exemption could, in principle, be granted by the Executive in relation to the extent of the over implementation.

7. Given the number of provisions which this over implementation applies to and that these provisions have been included, or mixed in, with provisions which implement obligations under CAD so that identification in regulation 13(2) of individual provisions which the exemption would apply to would not be practicably sufficient, it was decided to apply the general formulation which appears in regulation 13(2).

November 2002

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