1.In its letter to the Department of 17th November 2017, the Committee requested a memorandum on the following points:
(1) Explain the inclusion of two paragraphs (a) and (b) in the definition of “container” in regulation 2.
(2) Explain whether regulation 5(1)(b)(ii) is intended to give the Health and Safety Executive the power to invalidate approvals issued by other persons and, if so, how effect is given to that intention.
2.The Department’s response to the Committee’s points is outlined below.
3.The Health and Safety Executive and Government Legal Department prepared the Regulations.
4.The definition of “container” in regulation 2 comprises two lists. The first, listed (a) to (d), describes the features which the article of transport equipment must have in order to come within the definition of a container. The second, listed at the second paragraphs (a) and (b), is to give two examples of equipment that is also a container within this definition.
5.In the Freight Containers (Safety Convention) Regulations 1984 [SI 1984/1890], which the 2017 Regulations replace, the examples part of the definition of “container” in regulation 2 was given as one long set of fullout words after paragraph (d). Splitting them into paragraphs (a) and (b) was intended to bring clarity to the definition and make it easier to read. As the examples are different to the features in the first list it would not have been appropriate to continue the sequence and use (e) and (f), for example. The Department accepts that it ought to have labelled them differently so that (a) and (b) did not appear twice in the same definition. The 2017 Regulations do not contain cross references to any particular paragraph in the definition of container in regulation 2, so the existence of two paragraphs (a) and (b) should not cause difficulties in practice.
6.In relation to the Committee’s second point, regulation 5(1)(b)(ii) is intended to give the Health and Safety Executive the power to invalidate approvals issued by other persons pursuant to 5(1)(a)(ii). The mechanism for withdrawing approvals is set out in the “Green Guide” (the latest version of which is available online: http://www.hse.gov.uk/pubns/dis8-draft.pdf) at paragraphs 37 and 38. It was never the intention to allow HSE to withdraw approvals issued by other contracting states as this is not permitted under the convention (Article iv, paragraph 5 and paragraph 8 of CSC.1/138). HSE authorised officers may only exercise control over containers which appear to be unsafe or fail to carry a valid safety approval plate (paragraph 38 Green Guide). The authorised officer role is set out in Official Guidance for inspectors.
Department for Work and Pensions
22 November 2017
7 December 2017