Lithium-ion Battery Safety Bill [HL]
2.This private member’s Bill is intended to make provision for the safe storage, use and disposal of lithium-ion batteries. It is due to have its second reading on 6 September. There is no delegated powers memorandum as the Bill has not been produced with the help of the Government.
3.The Bill contains five regulation making powers each of which would appear to allow for the creation of criminal offences:
- Two of the regulation making powers are explicit in conferring powers to create offences. In those cases, there is also a power to provide for the imposition of civil sanctions (clauses 3 and 4).
- In one case the power to create an offence appears to be a necessary consequence of the power being conferred (clause 2).
- In the other two cases, the nature of the regulation making power requires an enforcement mechanism, but without making it explicit what the nature of the enforcement mechanism is. Such a mechanism would have to be the creation of offences or the imposition of civil sanctions (clauses 5 and 6).
4.All of the powers in the Bill are subject to the negative resolution procedure. In our guidance to Departments1, we make it clear that the use of subordinate legislation to create criminal offences should be treated as exceptional and that it should only be done where there is a compelling justification. We also consider that, where subordinate legislation is used to create criminal offences (or where it is used to impose civil sanctions), it should be subject to the affirmative resolution procedure.
5.In the circumstances, we consider that the Bill should be amended so that the regulation making powers conferred by it are all made subject to the affirmative resolution procedure.
6.Clause 5 requires the Secretary of State to make regulations regarding the safety standards for conversion kits for use with micromobility vehicles that run on lithium-ion batteries, and relating to the use of charging systems for electric-powered micromobility vehicles. Clause 6 requires the Secretary of State to make regulations with respect to the disposal of lithium-ion batteries. In both cases, although any requirements imposed by the regulations would need to be enforced in order to be effective, nothing is said on the face of the Bill as to what provision may be made in the regulations for the enforcement of their requirements. As noted above, it seems to us that the only possible enforcement mechanisms would be either the creation of criminal offences or the imposition of civil sanctions.
7.We consider that clauses 5 and 6 are defective in failing to specify the provision which is to be made in the regulations to enforce the requirements imposed by them. We consider that the failure to specify the enforcement mechanisms is particularly objectionable if the intention is that they should include the creation of criminal offences, given the constitutional significance of using subordinate legislation in this way.
1 Paragraph 12 of the Guidance for Departments, December 2023.