Appendix 3
S.I. 2012/632: memorandum from the Department
for Work and Pensions
Control of Asbestos Regulations 2012
(S.I. 2012/632)
1. In its letter to the Department for Work and Pensions
on 16 May 2012, the Joint Committee requested a memorandum on
the following points:
(1) Explain--
(a) the extent to which any provisions of
the regulations are made purely in reliance on section 2(2) of
the European Communities Act 1972, and
(b) if those provisions impose duties or prohibitions
in so far as made in reliance on that section—
(i) what sanctions are intended to be available
by way of enforcement, and
(ii) how the intention is achieved.
(2) What
is the intended legal effect (if any) of including the sentence
beginning "These coatings" in the definition of "textured
decorative coatings" in regulation 2(1), and how is the intention
achieved?
(3) Explain—
(a) by what process the determination
described in the full-out words at the end of regulation 4(1)
is intended to be carried out, and how that intention is achieved,
and
(b) given the scope for unpredictability
in the determination as effected by a court, why no defence
of operating on reasonable assumptions has been made available.
(4) Identify the situations to which
regulation 25(3) is intended to apply and explain how the intention
is achieved.
(5) Identify to what, in Part 3, a
regulation 30 exemption is intended to apply and how the intention
is achieved.
2. The Department's response to each of the Committee's
points is outlined below.
3. Point (1)(a) and (b) - On further analysis of
the Control of Asbestos Regulations 2012 (CAR12), none of the
regulations appear to be made purely in reliance on section 2(2)
of the European Communities Act 1972 (ECA). The vires for all
of the regulations can be derived from the Health and Safety at
Work etc. Act 1974 (HSWA) and the reference to section 2(2) of
the ECA, which was carried across from the Control of Asbestos
Regulations 2006 (CAR06) is unnecessary. HSE will consider removing
the reference to section 2(2) of the ECA in any future review
of CAR12.
4. Point (2) - The sentence beginning
"These coatings" is necessary in order to provide clarity
and prevent the possibility of any overlap between "textured
decorative coatings" (TDCs) and "asbestos coating"
because their functions, risks associated with working on them
and licence requirements are different. TDCs may also have thermal
and acoustic properties which are incidental to their purpose.
The additional wording ensures that any such properties would
not make the coating an 'asbestos coating' (which means a surface
coating which contains asbestos for fire protection or sound insulation).
Asbestos coatings have a higher asbestos content, than TDCs and
their function, unlike TDCs is to provide fire protection or heat
and sound insulation; the function of TDCs is purely decorative
- although there may be thermal and acoustic properties which
are incidental. Work on asbestos coating is higher risk work.
Consequently, a licence is required for work on asbestos coating.
Whereas a licence will never be required for TDC work
5. Point (3)(a) - Regulation 4 of CAR12
re-enacts regulation 4 of CAR06 with only very minor drafting
amendments. HSE has highlighted on its website that the effect
of regulation 4 has not changed. The determination referred to
in regulation 4(1) will be undertaken in each factual scenario,
based on the relative responsibilities of the duty holders involved.
HSE has an Approved Code of Practice (ACoP), "The Management
of Asbestos in Non-Domestic Premises", which is devoted to
regulation 4 and which provides guidance to duty holders on the
interpretation of regulation 4(1). The ACoP gives examples of
common scenarios in order to provide practical assistance (paragraphs
26-33). HSE will be amending its website to make it clear that
the ACoP is still applicable to CAR12. The ACoP and guidance
will be reviewed in the near future as part of HSE's wider review
of guidance.
6. Point (3)(b) - To HSE's knowledge,
there have not been any issues to date regarding the determination
in regulation 4(1). It was not considered necessary to include
a defence of operating on reasonable assumptions. As indicated
above, it is important to consider the factual circumstances of
each case. It may also be useful to note that regulation 34 provides
a defence for any person to prove that "all reasonable
precautions were taken and all due diligence was exercised by
that person".
7. Point (4) - Regulation 25(3) of CAR12
re-enacts regulation 25(4) of CAR06. When CAR06 first came into
force, regulations 26, 27, 28 and 29 made reference to "products
containing intentionally added asbestos". Regulations 27
- 29 were subsequently revoked by the REACH Enforcement Regulations
2008. However, regulations 25(4) and 26(3) of CAR06 were retained.
Regulation 25(3) of CAR12 is still relevant in relation to regulation
26(3) and implements Article 5 of the consolidated Directive 2009/148/EC.
Whilst in practice regulation 25(3) and 26(3) may no longer have
much of a practical application, the aim of CAR12 was to ensure
there was no adverse impact on the implementation of the Directive.
8. Point (5) - The Secretary of State
for Defence exemption provided for in regulation 30 is intended
to apply to the prohibitions provided for in regulation 26. An
exemption may be granted by the Ministry of Defence only in the
interests of national security in relation to the processes set
out in regulation 26 and may be subject to conditions and to a
time limit.
Department for Work and Pensions
22 May 2012
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