9. We have given further consideration to the following on the basis of a
Supplementary Explanatory Memorandum. We maintain our opinion[17] that it raises questions of political importance, but now make no
recommendation for its further consideration:--
Department of Employment
(15462)
7090/94
com(94)730 |
Amended draft Directive on the protection of the health and safety of
workers from the risks related to chemical agents at work, known as "the Chemical Agents
Directive". |
| Legal base: |
Article 118a; co-operation; qualified majority voting. |
Introduction
9.1 The aim of this proposal is to establish minimum requirements for protecting
workers against risks to their health and safety, arising from, or likely to arise from, chemical
agents at work. It is an individual directive within the Framework Directive on health and safety
of workers at work[18].
9.2 We considered earlier versions of the draft on 14 July 1993[19] and again on 19 October 1994[20] when
we asked to be kept informed of developments. We cleared the documents, noting that the
Government's concerns over the proposal were shared by the interested parties consulted. These were
set out in our Report of 14 July 1993 and included:
"-- the proposal that health surveillance should be undertaken by medical
practitioners (which would preclude the use of less professionally qualified but nonetheless
competent staff);
-- the lack of a clear relationship between risk assessment and control measures
to reduce risks;
-- the unnecessary bureaucratic requirements for record keeping, with an emphasis
on the collection of information instead of the consideration of risk;
-- the procedures for setting occupational exposure and limit values;
-- the requirement for all firms to produce and keep up-to-date a 'safety and
health' document;
-- the inconsistencies with the Framework Directive."
9.3 The concerns were reiterated by the Government in October 1994 when the Health
and Safety Executive's Economic Advisers were quoted as saying that:
"the quantified costs in the first year are estimated at £60 million (£35
million risk assessment and up to £25 million health surveillance). Recurring costs are
estimated at £30 million per year (£5 million risk assessment and up to £25 million
health surveillance)".
The new draft
9.4 In his Supplementary Explanatory Memorandum (dated 14 March) the Parliamentary
Under-Secretary of State at the Department of the Environment (Sir Paul Beresford) tells us that
the negotiations on this proposal stalled in 1994 when there was "Community-wide
consensus" that the draft at that stage was unacceptable. Under their Presidency the Irish
developed new proposals which the Dutch have amended and circulated as a working draft. The
Government has provided us with a copy, the final text not yet having been agreed.
9.5 The text of this working draft includes some amendments and considerably more
detail in some sections, though the objectives of the proposal do not differ from earlier versions.
The key changes are commented upon by the Minister in his Supplementary Explanatory Memorandum of
14 March 1997 (see paragraphs 9.6 -- 9.10 below). In his Explanatory Memorandum of 23 August 1994
he described them as:
"-- a redraft of the article on Occupational Exposure Levels;
-- the requirement to maintain "health and exposure records" for
workers undergoing health surveillance;
-- the introduction of a new section in the annex on requirements for measuring
procedures; and
-- miscellaneous drafting amendments attempting greater clarity".
The Government's view
9.6 The Minister says that the current text goes a long way to meeting the UK's
earlier misgivings. In particular, he says:
"...record-keeping requirements have been reduced; the health surveillance requirements
are in line with current UK practice".
9.7 He says that these changes will significantly reduce the potential burdens on
business and adds:
"..there is much greater alignment with the risk assessment procedure and the Framework
Directive; and there is greater clarification of the role of occupational exposure limits. The
proposal addresses UK concerns about the need for greater emphasis on risk management and
proportionality. The role of guidance has not yet been fully debated and our concerns, shared by
other Member States, that guidance should not be used to tighten up the requirements of the
directive need to be addressed...During negotiations the UK has managed to ensure that the proposal
demonstrates a clear link between risk assessment and the risk management provision. On health
surveillance, provisions now encompass a wide range of measures appropriate to the nature of the
risk, rather than strict requirements for medical examinations."
9.8 The Minister then comments that the requirement in the draft directive for
assessing and preventing fire and explosion risks are duplicated in a separate draft Directive,
proposed first by the Commission in 1994, the "Explosive Atmospheres" (ATEX) directive.
This proposal has not made progress since early 1996 when the Minister said in his EM (dated 16
January 1996) that the Government did not believe that it was necessary and would seek to get it
dropped.[21] He tells us now that the main objective of the
ATEX proposal is the classification of areas in the workplace where explosive atmospheres may occur.
He is pressing for this provision to be incorporated into an annex of the Chemical Agents proposal,
as he believes this would significantly simplify the legislation and avoid confusion for employers.
9.9 With regard to the impact on UK law, the Minister says:
"In terms of health provisions, the proposed directive now largely mirrors UK
legislation on the Control of Substances Hazardous to Health Regulations (COSHH) and the Northern
Ireland equivalent. However, minor amendments to these Regulations will be necessary in order to
accommodate some requirements in the directive. The directive also covers safety issues on
flammability. Current legislation on flammable substances forms part of HSC's Review of Regulation.
The provisions in the proposed directive are broadly compatible with the objectives of the Review.
Some new legislation may be required to implement detailed requirements which, while not changing
the current standards contained in general UK law, will clarify obligations for: emergency
procedures, reactive substances, certain chemical reactions, and asphyxiants."
9.10 The Minister has provided a Cost Benefit Analysis which, he says:
"...identifies the two key areas with the potential for significant new costs as a
result of the new proposal. Firstly, the requirement to write down 'simple and obvious' risks could
involve an initial cost of £7m, plus on-going costs of £0.7m -- £1.4m per year.
Secondly, pressure from other Member States could result in a requirement for all those exposed to
respiratory sensitisers to receive a full medical examination. This cost cannot be quantified with
any degree of precision but changes achieved in negotiation are expected to reduce what was
potentially the most significant cost of the directive. The UK has been pressing and will continue
to press for a fiche d'impact."
Conclusion
9.11 In an article in The House Magazine of 24 February 1997, the Minister
wrote that the principles on which the UK Health and Safety at Work Act of 1974 was based were:
"...self-regulation; a risk-based approach to managing health and safety; and
an emphasis on prevention rather than remedy or insurance against failures, remain applicable today.
These ideas, together with the introduction of EC legislation, have improved the UK's health and
safety performance over the last 20 years, and should continue to do so. I believe we must continue
to ensure that we do not let ill-founded EC legislation drive us off course".
9.12 The Minister does not say in his EMs on the Chemical Agents Directive whether
he regards it as "ill-founded EC legislation". Certainly the current text differs greatly
from the original text which stalled. Improvements have undoubtedly been made and these are to be
welcomed. The link which has now been made between risk assessment and what action is to be taken
is clearer. Nevertheless, there is still room for improvement. For instance, the relationship
could be made clearer between chemical agents generally, hazardous substances and preparations and
those which have been formally assessed and classified.
9.13 The Minister tells us that he is pressing for the main objective of the
Explosive Atmospheres proposal5 (ATEX) to be incorporated into an annex of this
Directive. He does not say whether he would make this conditional upon the ATEX proposal being
dropped.
9.14 Another aspect of the proposal which is unresolved is whether the provision
in the proposed directive on safety issues on flammability will require new implementing
legislation.
9.15 Some of the concerns which we expressed in our report on the Explosive
Atmospheres proposal are equally valid for this proposal. We asked the Government then what steps
were being taken to ensure better enforcement of existing legislation, which the Government claimed
was adequate.
9.16 Were it not for the Dissolution, we would maintain a scrutiny reserve on this
proposal until the draft had been further improved. However, given that much progress has been made
and that the Dutch are anxious for political agreement on 17 April, we have decided that we should
now clear it.
17.(14593) 6756/93 and (15462) 7090/94; see HC 48-xxvi (1993-94), paragraph 27 (19
October 1994). Back
18.Council Directive 89/391/EEC (OJ, No. L 183/1, 29.6.89). Seen by the previous
Committee as (10203) 5211/88, (10855) 10166/88 and (11255) 6662/89; see HC 43-xxiv (1987-88),
paragraph 3 (11 May 1988), HC 15-vii (1988-89), paragraph 3 (18 January 1989), and HC 15-xvii
(1988-89), paragraph 8 (5 April 1989). See also Official Report, 14 November 1988, cols.
769-809 and Official Report, First Standing Committee on European Community Documents, 8 June
1989. Back
19.(14593) 6756/93; see HC 79-xxxv (1992-93), paragraph 5 (14 July 1993). Back
20.(14593) 6756/93 and (15462) 7090/94; see HC 48-xxvi (1993-94), paragraph 27 (19
October 1994). Back
21.(16643) 9932/95; see HC 51-vii (1995-96), paragraph 2 (24 January 1996). Back
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