Appendix 2 S.I. 2004/1836: memorandum
from the Department of Trade and Industry
Fireworks Regulations 2004 (S.I. 2004/1836)
1. By a letter dated 14th September 2004, the Joint
Committee on Statutory Instruments sought a memorandum on the
following points:
(1) The Committee accepts that in the context
it is possible to ascertain the meaning of regulation 7(3)(b),
but does the Department not agree that ambiguity could have been
avoided if "12 am the following day" had read "midnight
on that day"?
2. The Department notes the Committee's concern that
the expression "12 am the following day" is ambiguous.
The expression was used because it was considered technically
accurate, but we agree that another expression such as "midnight
on that day" would have been clearer.
(2) In regulation 10(3), should "any firework"
read "any adult firework"? If not, explain the heading
of the regulation.
3. The Department accepts that regulation 10(3) should
indeed have referred to "any adult firework". It apologises
for the error and undertakes to correct the Regulations at the
earliest opportunity.
(3) Is it intended that every supplier of fireworks
must, in respect of transactions which are not exempted by regulation
10(4), keep a record of the people who supplied the fireworks
to him and of the people to whom he supplies the fireworks (who
must themselves provide the supplier with their names and addresses)
so that the information can be provided to the local licensing
authority if the latter subsequently requests it? If so, explain
how regulation 10(3) achieves that.
4. The Department accepts that, whilst a supplier
is not expressly required to keep a record of the relevant information,
regulation 10(3) in practice creates such a requirement. Section
39 of the Consumer Protection Act 1987 applies to offences under
section 11(2) of the Fireworks Act 2003. Therefore, a supplier
who is prosecuted for contravening regulation 10(3) would have
a defence if he could show that he took all reasonable steps and
exercised all due diligence to avoid committing the offence. If
a supplier is unable to provide the information because he has
insufficient records of the transactions concerned, a court would
have to consider whether, in all the circumstances, the lack of
records amounted to a failure to take all reasonable steps or
exercise due diligence. If the Committee believes that the drafting
of regulation 10(3) is insufficiently clear in stating the obligations
of a fireworks supplier, the Department will review this provision
with a view to amending the regulation at the earliest opportunity.
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