§ 2.37 p.m.
§ Lord Brabazon of Tara rose to move, That the draft regulations laid before the House on 30th June be approved. [30th Report from the Joint Committee.]
§ The noble Lord said: My Lords, I beg to move that the draft Fireworks (Safety) Regulations 1986, laid before the House on 30th June, be approved. The proposed regulations are intended to put right an oversight in relation to the repeal in 1975 of Section 91 of the Explosives Act 1875. This had the effect of taking prosecutions for the offence of selling fireworks to people under 16 out of the jurisdiction of magistrates' courts. This meant that the offence could be tried only on indictment—that is, in a Crown Court, with a jury—and because of the higher cost of prosecuting in a Crown Court, and other complications, local enforcement authorities are often reluctant to prosecute.
§ Since the main problem with fireworks is youngsters buying them and throwing them about in streets, frightening elderly people and animals, this is something that needs to be put right in time for this year's fireworks season. Furthermore, children under 16 are most at risk from fireworks. Injuries to children under 16 accounted for 593 of the 968 firework injuries reported last year, so something must be done.540
§ The regulations make it again an offence triable in magistrates' courts to supply, offer to supply or agree to supply fireworks to any person apparently under the age of 16 years. In the longer term, the offence will be put on a more permanent footing in primary legislation at the first available opportunity. It has been suggested by some members of the Joint Committee on Statutory Instruments that the regulations may be ultra vires; that is, that the Secretary of State has no power under Section 1 of the Consumer Safety Act 1978 to make regulations prohibiting the supply of all fireworks, as opposed to banning fireworks which do not comply with the particular requirements of the regulations.
§ That is a view we cannot accept. The powers have been carefully considered by my honourable and learned friend the Minister for Corporate and Consumer Affairs and also by his legal advisors. The conclusion they have reached is that the Secretary of State has power to make regulations in the form of those before the House today. A memorandum has been submitted to the Joint Committee explaining in detail the arguments justifying the manner of exercise of the power in Section 1 of the 1978 Act.
§ To those who would maintain their criticism of the proposed use of the power, I can say only that the draft regulations effectively replicate the existing provisions of Section 31 of the Explosives Act 1875 and simply make the provisions enforceable in practice by making offences triable in a magistrates' court. My honourable and learned friend has consulted widely inter alia with the enforcement authorities and with representatives of the retail trade. I commend the regulations to the House.
§ Moved, That the draft regulations laid before the House on 30th June be approved. [30th Report from the Joint Committee.]—(Lord Brabazon of Tara.)
Lord Bruce of Donington
n: My Lords, we on this side of the House are grateful to the noble Lord for introducing these regulations. In view of their inflamatory nature, I shall endeavour to deal with them in dulcet tones. The whole purpose of the regulations is quite acceptable to us and their practical consequences are well appreciated. However, I must take issue with the noble Lord in respect of his reference to the Joint Committee on Statutory Instruments. He stated that some members of that committee had objected, on the ground that the regulations may have been ultra vires. In fact, as I understand it, the Joint Committee reported as a committee and it was not merely some members of the committee who objected.
Also, we ought to go on record in expressing our appreciation of the detailed examination of the rgulations by that Joint Committee. It often has to deal with what may appear to be very mundane regulations, and it is very good to know that it reports to this House and to another place in terms which indicate that the committee always takes such work very seriously.
I read through Appendix II of the regulations, which is the memorandum by the Department of Trade and Industry in reply to the observations made by the Joint Committee. I am bound to observe that the fourth 541 paragraph of that memorandum from the Department of Trade and Industry sails very close to the wind. It places great reliance on these words, which appear in italics:"from circumstances in which the goods might be used".I have no desire to delay the coming into force of the regulations, but I wish to go on record as regarding with some slight misgivings the whole nature, purpose and possible future use of the words that have been italicised. So although on this occasion I wish to raise no objection on behalf of Her Majesty's Opposition, I put the Government on notice, on behalf of my noble friends, that reliance on those particular words as a justification for any future regulation is likely to be queried by us, should the necessity ever arise. Apart from that point, we wish the regulations well and would not want to detain the House.
§ 2.45 p.m.
§ Baroness Seear
My Lords, while similarly recognising the reason that the Government wish to introduce the regulations, we also have certain doubts and anxieties. I should first like to ask the noble Lord—perhaps I should know this—what is the definition of a firework. After all, are we really saying that a sparkler may not be bought by anybody who is under the age of 16, or those little objects that are bought as indoor fireworks and which make a most ungodly smell but cannot otherwise be regarded as dangerous? What do we mean when we talk about "a firework"? When it comes to regulations of this kind, it is surely extremely important that we know precisely what we are talking about. If we are harking back to an Act which I think the noble Lord said was passed in 1875—am I right?—it is to be expected that the nature of fireworks has changed considerably since then. So may we first of all get that definition clear?
The other point I wish to raise is really an amplification, if not merely an echo, of what the noble Lord, Lord Bruce, has said, but put in a slightly broader context. A number of Bills that have been passing through your Lordships' House recently have conferred very wide powers of regulation upon the appropriate Secretary of State. This is something about which those who are concerned about the control of Parliament over legislation and minimising the powers of the executive to do as it likes must be very anxious.
While that is perhaps a trivial example in some ways, I think it behoves us to be extremely cautious as to how the powers of regulations are used and how they are justified in terms of the legislation to which they refer. I realise that this is ground that has been traversed by a number of people, but the Secretary of State has powers to make safety regulations according to the Consumer Safety Act, which is the Act to which these regulations refer. The safety regulations may make different provisions for different circumstances. Is it really good enough to say that an age limit is a different circumstance? If the interpretation is to be so wide as to allow "different circumstance" to be translated into meaning "an age limit", how much further can the powers of the Secretary of State go in interpreting fairly widely what the terms of the actual legislation mean?
542 We are not opposing the regulations, but we want to register our doubts and we shall certainly be following up this question of the growing powers of the Secretary of State to use regulations, and in particular where those regulations seem to be drafted in terms of very broad phrases inside the legislation.
§ Viscount Dilhorne
My Lords, I shall not keep your Lordships very long. I serve on this committee and perhaps very briefly I can throw some light on what has happened. There ws a division. I was on one side fairly vigorously expressing my views, and understandably there were those on the other side who disagreed with them. I supported the view that it was intra vires.
I think the noble Lord, Lord Bruce of Donington, referred to two matters on which I may be able to help. I confirm that the committee has to report where there appears to be a doubt as to whether it is intra vires or it appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made.
If one looks at the provisions of the Act, Section 1 states:The Secretary of State may make regulations containing such provision authorised by subsections (2) and (3) of this section… for the purpose of securing that goods are safe or that appropriate information is provided.The memorandum refers to Section 9(4) which is a definition section and is in these words:'safe' means such as to prevent or adequately to reduce any risk of death and any risk of personal injury from the goods in question or from circumstances in which the goods might be used or kept, and for the purposes of section 1 of this Act".If one has to give a meaning to the word "circumstances", the recital puts in the context a different view from that necessarily put by Section 1, which controls the provision. Subsection (2) deals with what are safety regulations, and they deal entirely with goods.
I shall not go over all the ground that I went over before, but the reasons for making the instrument are clear. They could not have greater merit. There is a doubt about the construction, which may be simply put. The Act confers a power on the Minister to make regulations as he considers appropriate to secure that the goods are safe. It is on that basis that those who say that it is ultra vires—and I was not one—argue that this deals solely with goods and not with persons. I said that it dealt with persons, because the word "circumstances" introduces the concept of dealing with more than just goods. I am not sure that I was entirely right; I hope that I was.
It may be valuable to have the matter aired before your Lordships this afternoon so that you have an idea of the extent of the arguments that went to and fro for a considerable time on the instrument—longer, I think, than on any other such committee that I have sat on. If that is the meaning, it is a strange construction if a limitation on persons under the age of 16 is introduced when the Act refers to the goods themselves. I should not like to lay a wager on which way the courts would find. But I am immensely encouraged to hear my noble friend say that there is 543 likely to be legislation. If that is so, I hope that he will clarify the queries on construction. After all, all that has been done—and that is another reason why I supported the intra vires lobby—is to restore to the Act what Parliament originally intended, which was incidentally removed by another measure.
§ Lord Brabazon of Tara
My Lords, I am grateful to noble Lords and the noble Baroness who have taken part in the debate. I join the noble Lord, Lord Bruce, in his praise for the work done by the Joint Committee on Statutory Instruments. I am grateful to my noble friend Lord Dilhorne for serving on the Committee and for being here this afternoon to give a much better explanation of what .went on than I could possibly do. I hope that he may have answered some of the questions on that aspect.
The noble Baroness asked what was the definition of "a firework". I understand that there is none as such: one should be able to recognise a firework when one sees it! But I must tell her that, however innocent she may think sparklers, the accident figures are not encuraging. In 1985 there were 67 reported injuries caused by them. I admit that that is not the worst category by any means. One of the reasons why we have had two Acts on the matter is that the figures for injuries have risen rather alarmingly over the past five years, from 681 in 1981 to 968 in 1985.
Lord Bruce of Donington
My Lords, I am sorry to interrupt the noble Lord, but what he has said raises some interesting speculation as to how one defines a firework. It apparently has no legal definition. Any judge may therefore profess judicial ignorance and ask for an explanation as to what is a firework. To test that further, does the noble Lord describe a match as a firework because it has the same basic ingredients and produces a flame?
§ Lord Brabazon of Tara
My Lords, no, I obviously would not define a match as a firework. I should have perhaps said that a firework has no statutory definition.
§ Baroness Seear
My Lords, this point is important. I had not realised that when I asked the question. The noble Lord is nearer to these matters than I am by a whole generation. He must be aware of the wide range of products which are sold as fireworks, including those little items called indoor fireworks. One would have thought that they were harmless little objects. Pieces of brown paper are burnt which give off a smell that one either likes or detests according to one's inclination.
We cannot have everything that is sold as a firework prohibited to people under the age of 16. That is absurd. Surely, we must have some definition which excludes those harmless little objects.
§ Lord Brabazon of Tara
My Lords, I am afraid that I cannot give any further information at the moment. I imagine that there must be case law on what is and what is not a firework. I shall endeavour to find out and write to the noble Baroness. There we are for the time being.
I appreciate the fact that the House welcomes this measure. As I have said, it is necessary, particulary as the number of injuries is increasing year by year. As I confirmed to my noble friend Lord Dilhorne, at the earliest opportunity we intend to bring in primary legislation to cover this matter. That may be a suitable time to have a statutory definition of a firework.
We are merely putting the situation back to what it was before 1975 and to what Parliament intended it to be at that time, which was that these cases could be tried in a magistrates' court and did not have to go to a crown court.
§ On Question, Motion agreed to.