Memorandum from the Department for Work
REGULATIONS 2002 (S.I. 2002/2776)
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).