5. A regulatory approach
If any new legislation is brought forward by the Scottish Government it needs to be within the legislative competence of the Scottish Parliament and must relate to devolved matters alone. Legislation relating to the regulation of electricians, and specifically to protection of title and associated measures, must therefore not relate to matters reserved to the UK Government.
The regulation of consumer protection is reserved to the UK Government, with a framework of regulations currently in place. There is already UK legislation that covers false statements etc. in respect of qualifications, for example the Consumer Protection from Unfair Trading Regulations 2008 enforced by local Trading Standards.
However, the potential legislation which could be put in place following this consultation would in the view of the Scottish Government be to ensure that persons contracting for electrical services get a service to a suitable standard, with a focus on safety for building occupants and users, and ensuring the safety of electrical installations. Such legislation would therefore go beyond consumer protection (which is a reserved matter) and concern matters devolved to the Scottish Government. We are of the view that legislation which would have the purpose of ensuring the safety of electrical installations is likely to be within the powers of the Scottish Parliament.
The UK Internal Market Bill is currently being considered at Westminster. A number of provisions relate to providers of services. Although the Bill would not prevent the Scottish Parliament regulating in respect of electricians, providers of services affected by any regulation that contradicts the principles outlined in the Bill may be able to challenge those regulations in the courts. Therefore any potential legislation would need to be assessed against the Bill provisions. A definite view could only be taken once the provisions of the Bill have been finalised by being passed into law, and once it is seen how the powers in the Bill will be used.
Any limitations on legislative powers in relation to consumer protection does not prevent consumer awareness activities from taking place.
Protection of Title
SELECT proposes that the Scottish Government should enact protection of title for the profession of Electrician. In other words, no-one would be permitted to call themselves an “Electrician” unless they can prove that they are qualified to the UK National Occupational Standards. Such legislation could include prohibitions to such effect so as to make it a criminal offence not only to call oneself an “Electrician” but deliberately to create a false impression of being properly qualified without using the actual term. However, people other than “Electricians” would still be able to carry out electrical work.
Regulation of Electrical Work
An alternative approach would be to regulate the work, rather than the use of the title of “Electrician”. Such legislation could provide that a person had to hold certain qualifications and be registered in order to carry out certain prescribed electrical work. Doing so may raise practical issues as, unlike protection of title, it would be preventing handymen, kitchen fitters etc. who did not hold the prescribed qualifications from doing the work at all. Apprentices and labourers should, if properly supervised, be able to carry out their duties in a safe and competent manner. It is likely that there would need to be criminal sanctions attached for those carrying out the work without holding the necessary qualifications.
Licensing of Electrical Firms
The above two options would affect individuals, but as the Pye Tait report noted, domestic consumers often contract with a company and would wish to be assured that the firm is permitted to operate as an electrical contractor. A firm could be licensed to employ only suitably qualified electricians and could be penalised for shoddy work. However, the licencing of electrical firms is likely to be outwith the competency of the Scottish Parliament. This is because the regulation of business associations is a reserved matter. Any licensing requirement would affect the rules and conditions under which a type of business association (companies engaged in electrical work) may pursue a business activity (electrical work).
Other examples of regulation
Other professions and trades have been regulated using different types of regulation. Examples include:
Under the Farriers (Registration) Act 1975 only Registered Farriers, Approved Farriery Apprentices, Veterinary Surgeons or Trainees, and persons giving first aid in an emergency situation may practice farriery. For others to do so is a criminal offence which can result in a fine of up to £1000, plus legal costs and a criminal record.
The Farriers Registration Council (FRC) is a corporate body established under the Act as regulator. It maintains the Register of Farriers and sets the qualifications required to join the Register. It approves training establishments, investigates complaints and will take out prosecutions against unregistered persons when the evidence is sufficient to do so. The annual fee for farriers to register pays for the administration required.
Under the Architects Act 1997, the provision for protecting title states, ‘a person shall not practise or carry on business under any name, style or title containing the word ‘architect’ unless he is a person registered under this Act.’ The Architects Registration Board (ARB) is responsible for registration and prescribes qualifications for entry on to the register. All architects must adhere to a Code of Conduct, and can be removed from the Register if they fall below the required standards of conduct or competence.
Security Industry Authority
The Security Industry Authority (SIA) was established as an organisation responsible for regulating the private security industry in 2003. It has two main duties: the first is the compulsory licensing of individuals undertaking designated activities within the private security industry and the second is to manage the voluntary Approved Contractor Scheme. This scheme measures private security suppliers against independently assessed criteria. SIA reports to the Home Secretary.
Gas Safe Register
This is the official list of gas businesses which are registered to work safely and legally on boilers, cookers, fires and all other gas appliances By law all gas businesses must be on the Gas Safe Register.
Gas engineers must be employed by a registered business and are issued with a license to undertake gas work if they hold valid and current qualifications. This evidence of competence relates only to matters of gas safety and is obtained by every engineer through a recognised route of training and assessment. Gas Safe Register replaced CORGI as the gas registration body in 2009.
The Electricians Working Group has already concluded that protection of title alone would be insufficient to bring about the level of behavioural change required, both from individual traders and consumers. However, as a package of actions to ensure the continued safety of electrical installations in Scotland, effective implementation of protection of title could be delivered if the following measures were developed:
- Creation of an Oversight Body which would be responsible for overseeing the implementation of any necessary actions. Such a body would be a newly established independent organisation with a clear purpose to oversee any new regulations and promote the highest standards of workmanship and competence. It would aim to enhance the reputation of electricians and protect consumers against unsafe and unsound electrical installations work, for example by acting as a central hub for registration and certification of qualified or competent electricians, and to oversee development of a code of conduct for electricians. It could also provide a redress guarantee to the consumer.
- Development of a well-resourced and effective enforcement scheme to tackle those trading as an electrician who do not meet the criteria to do so. This would address any rogue trader element who may ignore regulations.
- Clear sources of funding to enable administration and enforcement to take place.
- Likelihood of successful prosecutions to act as deterrents.
The examples of other professions show that this is a complex area but barriers are not insurmountable if there is cooperation and commitment from a range of organisations, including industry, where Scottish Government does not have direct control.
The alternative approach outlined earlier would be to regulate certain types of work, with a requirement for individuals to be registered to carry out the work. Similar practical measures would be required as outlined above in order to ensure it was effective. In both cases there is a distinction between the regulation of an individual and the licensing of businesses. While regulation would only apply to individuals, the concept of competent businesses is also important in ensuring the safety of electrical installations, and they complement each other.
3. Are there any legislative changes apart from protection of title or regulation of electrical work that would have a similar impact that the Scottish Government should explore?
4. What measures would be essential to make protection of title or regulation of electrical work effective?
5. Would both protection of title and regulation of electrical work be required or would only one be necessary?
6. Where measures, for example relating to consumer protection, could not be put on a legal footing, would this weaken the effectiveness of introducing regulations?
7. How should “electrician” or “electrical work” be defined in any regulations in order to prevent unnecessary restrictions on workers, reflect the current wide variety of activities and take into account possible future development due to advances in technology?
8. How would administration and enforcement of regulations be carried out and financed?
9. Would introducing new statutory measures help in the enforcing of existing consumer protection and health & safety legislation? If so, would that be a sufficient justification in itself for legislation?
10. How should any new statutory measures interact with existing regulations?
11. If regulation is introduced, what should the industry do to support those who will need to upskill to meet the new requirements?