2 Fireworks
Regulations 2004: defective drafting
Fireworks Regulations 2004 (S.I. 2004/1836)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted.
2.2 Regulation 7 prohibits (with one exception) the
use of adult fireworks during night hours, except during a permitted
fireworks night. Paragraph (3) defines "night hours"
as the period beginning at 11pm and ending at 7am the following
day, and "permitted fireworks night" is defined as including
the period beginning at 11pm on 5th November and ending at 12am
the following day. In a memorandum printed at Appendix 2,
the Department of Trade and Industry acknowledges that an expression
such as "midnight on that day" would have been clearer
than the italicised words. The Committee accepts that the intention
is reasonably clear in the context, but considers that the ambiguity
arising from the italicised phrase should have been avoided. "The
period from 11pm to midnight on 5th November" would have
sufficed.
2.3 Regulation 10 is headed "Information about
adult fireworks". Paragraph (3) provides that no person shall
supply any firework unless, if requested to do so by a local licensing
authority, he provides that authority with certain specified information
concerning the supply. The Department acknowledges that "any
firework" should have read "any adult firework".
2.4 Regulation 10(3) is intended to impose an obligation
on a supplier of adult fireworks to keep a record of the specified
information, in order that the information can be provided to
the local licensing authority on request. The Department states
that, in the event of a prosecution for contravening regulation
10(3), the supplier would have a defence (under section 39 of
the Consumer Protection Act 1987) if he could show that he had
taken all reasonable steps and exercised all due diligence to
avoid committing the offence, and inability to provide the information
due to his having insufficient records would be relevant to that
defence. The Committee is not certain, however, that regulation
10(3) imposes a requirement to keep records in the absence of
a request by the local licensing authority. An alternative reading
is that such a request must precede the supply in question, since
a duty, contravention of which is an offence, ought not lightly
to be implied. The Department indicates its willingness to review
regulation 10(3), and the Committee believes that it should do
so.
2.5 The Committee accordingly reports regulations
7(3) and 10(3) for defective drafting, acknowledged in part by
the Department.
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