3 S.I.
2012/632: Reported for defective drafting and requiring elucidation
Control of Asbestos Regulations 2012
(S.I. 2012/632)
3.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in two respects and require elucidation in
two further respects.
3.2 The regulations implement a number of European
Union Directives in relation to the handling of asbestos. The
preamble cites a combination of powers under the Health and Safety
at Work etc. Act 1974 and section 2(2) of the European Communities
Act 1972. Having regard to the constraints imposed by the 1972
Act on the provision that can be made by orders under section
2(2), the Committee asked the Department for Work and Pensions
to identify which provisions rely on that section. In a memorandum
printed at Appendix 3 the Department asserts that no provision
of the regulations relies on section 2(2), and undertakes to consider
removing the reference to that section in future regulations.
The Committee accordingly reports the preamble for defective
drafting, acknowledged by the Department.
3.3 Regulation 2(1) contains a definition which reads
as follows: ""textured decorative coatings" means
decorative and textured finishes, such as paints and ceiling and
wall plasters which are designed to produce visual effects and
contain asbestos. These coatings are designed to be decorative
and any thermal or acoustic properties are incidental to their
purpose". As the last sentence is structured as if it were
an informative statement of a type one would not expect to see
in legislation, the Committee asked for an explanation of the
intended legal effect of including it and how the intention had
been achieved. In its memorandum the Department clearly explains
the intention of including the sentence - distinguishing products
covered by the definition from asbestos coatings - but does not
explain how the intention is achieved. In the Committee's view,
the Department's explanation demonstrates that conceptually what
is intended is not text in the nature of an informative statement
but a further limit on what would otherwise be covered by the
definition. The Committee expects legislation to be structured
so that the concepts in it are accurately set out, and it notes
also that there appears to be some tautology in the definition
as drafted, both in the double use of the term 'decorative' and
in the queried sentence fastening on the defined term of art rather
than the finishes that the term of art defines. Even so, it does
not consider that a reader is likely to be misled by the difference
of approach taken in the drafting. The Committee accordingly
reports the definition of "textured decorative coatings"
in regulation 2(1) for requiring the elucidation provided in the
Department's memorandum as amplified in this Report.
3.4 Regulation 25, which falls within Part 3, sets
out indented conditions for a rebuttable presumption to apply.
The rebuttable presumption is stated to apply where "in this
Part it is stated that asbestos has intentionally been added to
a product or is intentionally added". Neither such statement
appears in terms in Part 3, but regulation 26(3) includes a requirement
for every employer to ensure among other things that no employees
are exposed to asbestos during the manufacture of "products
containing intentionally added asbestos". In its memorandum
the Department identifies that requirement as the one to which
the presumption is intended to apply but again does not explain
how the intention is achieved. The Committee expects that, where
a definitional phrase is used, the dovetailing with other operative
text should be clear. But, as in the previous example, it does
not consider that a reader is likely to be misled by the difference
of approach taken in the drafting. The Committee accordingly
reports regulation 25(3) for requiring the elucidation provided
in the Department's memorandum as amplified in this Report.
3.5 Regulation 26, as well as containing the requirement
included in paragraph (3) referred to above, contains a prohibition
relating to undertaking specified activities and procedures (paragraph
(1)) and a requirement to protect employees from exposure to asbestos
during specified processes (paragraph (2) and the remainder of
paragraph (3)). Regulation 27(1) prohibits supply, under an exemption
granted pursuant to regulation 29 or 30, of products containing
asbestos unless they are labelled in accordance with Schedule
2. Regulation 27(2) requires similar labelling of product components
unless the size of the components makes such labelling impossible.
Regulation 28(1) requires employers to ensure that, where under
an exemption granted pursuant to regulation 29 or 30 asbestos
in used in or produced by a work process, its quantity is reduced
to as low a level as is reasonably practicable. A cleaning equipment
requirement is imposed on employers by regulation 28(2) (as qualified
by regulation 28(3)) in relation to manufacturing processes giving
rise to asbestos dust. All those provisions are in Part 3. Regulation
29 (in Part 4) deals with specifically directed exemptions, which
give rise to no Committee concerns, and then Regulation 30 empowers
the Secretary of State for Defence, in the interests of national
security and by means of a certificate in writing, to exempt any
person or class of persons "from the prohibition [singular]
imposed by Part 3". In response to the Committee's question
the Department's memorandum indicates an intention that such an
exemption should apply "to the prohibitions [plural] provided
for in regulation 26 ..... in relation to the processes set out
in regulation 26" but again does not explain how the intention
is achieved. In this case the Committee is unclear on what was
intended, let alone whether the intention was achieved. For a
start regulation 26 mainly contains requirements rather than prohibitions
and, on a literal reading, they could not be the subject of any
regulation 30 exemption. In contrast regulation 27 includes a
prohibition where a section 29 exemption applies, and there appears
to be no clear reason to conclude that the section 30 exemption
could not fasten on such a prohibition. The Committee accordingly
reports regulation 30 for defective drafting.
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