Examination of witnesses (Questions 60
- 79)
MONDAY 20 JULY 1998
DR SETON
BENNETT, MR
SHAUN HARTIGAN
and MISS GILLIAN
RICHMOND
60. Unlike the self-verification system
which is in operation for non-automatic weighing machines, the
proposed order would introduce a domestically administered regime
with no requirement for other EU Member States to impose equivalent
legislation. Is there not a significant risk that exporting such
a system without harmonised rules would not work as well as the
non-automatic arrangements?
(Dr Bennett) I do not see why it should not work
as well. The regimes are different across Europe and I do not
have all the information at my fingertips but there are countries
that are ahead of us on this. Although in 1985 when we proposed
it it was new and radical, the United Kingdom had had a new idea,
we have been overtaken. Many countries have introduced it. France
has introduced it and other countries have, and we are trying
to do something which will be compatible with the non-automatic
weighing instruments Directive because there are companies in
this country now who are manufacturing some products approved
under the Weights and Measures Act and they have to have a TSO
in to do the stamping, despite the fact that they have a quality
system which has been assessed in accordance with the requirements
of the Directive. So some products they stamp themselves, other
products they give to the inspector, and they have demonstrated
that that works very well.
61. So with your knowledge of other countries
and other regimes you do not see it causing any problems at all?
(Dr Bennett) There are none that I can foresee,
no.
Mr Stewart
62. Could I clarify that last point. Are
your comments valid for non-EU countries as well as EU countries?
(Dr Bennett) The order as drafted is open to applicants
from any country. I think it is just that the problems of assessing
the manufacturer will inevitably get more difficult with distance.
I think that is about as clearly as I can put it. There are other
countries in the world that are already talking about self-verification
that have the necessary experience. Some of that information will
come via international collaborations in the field of quality
management and where the bodies responsible for quality in this
country are already developing links on the basis of equivalence
with quality bodies elsewhere. That will give us some confidence
that in the more developed countries in the world this might be
possible, but there are a lot of countries which do not have the
infrastructure and, as I have already said, the licences will
only be given to those companies that pass these very stern tests.
They have to demonstrate that they comply with the requirements
and are fit and proper people.
Mr Letwin
63. May I come to the thorny issue of notification.
We are advised that your comments in you recent letter of 16 July
carry a great deal of weight, but there remains the question of
our general obligation to notify and I think we remain mystified
about why the Department have decided not to notify. In particular,
we would very much like to understand why the Department believes
that other departments' interests are going to be compromised
by not notifying. Have you talked to the other departments, and
if so, what have they said? Can you convince us that this is something
that we ought not to be worried about?
(Miss Richmond) The obligation to notify is to
notify draft technical regulations. The Department's view, as
the Committee will know, is that we do not accept the Commission's
view, although we want to see more arguments from the Commission,
that this is notifiable. This order is about people, not about
products, and the obligation for Member States is to notify the
measures they propose introducing which have requirements affecting
characteristics of products, and our proposals do not do that.
So this is the reason why the Department is taking what may seem
to be a view in the face of the Commission's view, but we are
in some difficulties because the Commission has not provided us
with some reasoned arguments that can persuade us that our view
is wrong. But we are proposing, and have been in touch with our
United Kingdom representatives to try and facilitate, a meeting,
an urgent meeting, with representatives of DG III, so that we
can try and have a face-to-face discussion with them about this.
Hopefully, that is something that we can have very shortly because
we are concerned that we are being asked to do something on the
one hand that may seem fairly innocuous but, as a Member State,
we are firmly of the view that we should only do what is being
required of Member States, what they are obliged to do. We have
difficulties in terms of the particular proposal, looking at the
wider policy of the United Kingdom, because we are clear that
this is a proposal that relates to authorisations of persons or
individual organisations and that it does not relate to products.
Now many other departments introduce similar measures which authorise
people to do things, not to do things, put prohibitions on people.
The conduct of individuals basically may come into things like
the general criminal law, for example, and if the Department chooses
on balance of a decision taken that it should notify these proposals,
there is another consequence which I would like to touch on in
a moment, but however much we try and ring-fence it by saying
that we do not believe that this is notifiable, we are doing this
as a matter of course or whatever, that actually will not prevent
the Commission, when looking at another instance where somebody
has not notified something that relates to licensing individuals,
prohibiting them from doing things and so on, from actually saying
we have this precedent. Our concern is that this would cause difficulties
for the United Kingdom to actually defend an action before the
ECJ, things of that nature. With that in mind we are setting up
meetings under the chairmanship of colleagues in the Cabinet Office
to actually explore this but it is a type of consequence where
we would actually need to take the views of Ministers about the
final decisions and we may need to take further legal advice at
the highest level, things of that nature. We have not had the
actual discussions we need to have to bring out the potential
consequences but they are perceived to be real consequences that
could cause us difficulty in other areas. The other problem from
our point of view at the practical level is that if we do notify
these proposals, leaving aside arguments about whether or not
they are notifiable, I think I have mentioned in the past that
there is a standstill period that kicks into action. It is for
an initial period of three months enabling the Commission and
other Member States to give us detailed opinions about barriers
to trade but it also can be extended to 12 months if the Commission
advises the Member State concerned that it intends to impose a
Directive in the area in question. Our view is that it is highly
probable with this proposal and bearing in mind the fact we have
advised the Committee there is a proposal for a Measuring Instrument
Directive that the Commission would give us that notification
at some stage during that initial three-month period and we would
then be precluded from adopting the proposal for 12 months and,
if a common position is taken, for 18 months. And contrary to
the suggestion in the letter that was sent to my colleague, Mr
Hartigan, notification would not speed up the process in the Commission
on a proposal for a Directive. The result would be to delay the
adoption of our proposals but it has no impact whatsoever on causing
them to move quicker. If it did have obviously we would be affected
but it does not have that effect. We could be 18 months down the
track and we would not be any further forward.
(Dr Bennett) Can I just underline that if we consider
after discussions with the Commission that they should be notifiable
we will notify and take the consequences but if it is not necessary
to notify to take a possible delay of up to 18 months on a piece
of legislation not related to technical requirements would be
an unnecessary delay and an irresponsible delay. We need to be
clear in our minds whether this is notifiable or not.
64. Leaving aside the second strand of your
argument about the delay, coming back to your first argument about
the precedent effect, presumably that relies on the premise that
there is not already a Member State notifying such things. Have
you investigated that? Are you clear this would be a ground-breaking
notification?
(Miss Richmond) It would be a ground-breaking
notification from the point of view of the United Kingdom. I cannot
guarantee there have not been notifications from other Member
States with something like this but what I can say is that I am
not aware of any and I have discussed this with my policy colleagues
responsible for the Directive and they are not aware of any so
we cannot guarantee because we do not have a comprehensive record
but to the best of our knowledge we are not aware of this and
we have always, as far as I am aware, had the tacit understanding
with the Commission that they are not interested in the licensing
of people.
Mr Letwin: So would
I be right to summarise the first strand of your argument as being
that other people have not set the precedent in notifying cases
where it is a matter of human beings rather than of products.
If the Commission continues to take its present view and continues
to argue the case, and proves to your satisfaction that there
is a need to notify, you would notify; but, in the absence of
evidence, you would be reluctant to notify because the United
Kingdom would be setting an EU-wide precedent about things not
previously notified?
Mr Lewis
65. To clarify this. It is obviously a matter
of principle and precedent effectively that as well as the time
delay we do not want to be seen to be unnecessarily adhering to
an instruction from the Commission which does not seem to concur
with our agreements as we understand them or agreements under
the relevant EEC regulations. Is this typical of the disputes
that we get into with the Commission or is this a one-off type
situation? If it is typical is this us making a pretty clear stand
on this issue for that reason that we feel there are a number
of instances where the British Government in a variety of situations
is put in this situation by the Commission and there has been
a decision taken that we ought to, where we feel they are exceeding
their authority if you like, make a corporate decision not just
on a decision such as this or a DTI issue that we do not allow
ourselves to be overridden by the Commission where we do not feel
it accords with agreements and our responsibilities. Is it fair
that that is a flavour of it?
(Miss Richmond) I think that reads a little bit
too much into what we can say at this stage because firstly the
Commission, I think it is clear to say from the Directive, cannot
instruct us to notify anything. They can give a view about whether
or not they think it is notifiable but they do not have under
the terms of the Directive the ability to say to us that we must.
They can take infraction proceedings so clearly their view is
something we have to take into account and take very very seriously.
We do, but I think that it is perhaps a little more than principle
in terms of the possible consequences. I am not aware of any decision
having been taken in relation to the Directive that there should
be a stand as such although that is something for policy colleagues
rather than me, but I am not aware of any stand as such and the
relationship between the Department and policy on the Directive
and DGIII is always very good. We have had situations in the past
where we have had a clear statement from DGIII that they consider
something is notifiable. Decisions have been taken by other departments
having taken advice at the highest level that they would not notify
the provisions notwithstanding knowledge of the view and notwithstanding
the fact that there was a grey area and that some other Departments
believed that there was a grey area. Not having notified one might
expect the Commission to actually take some action on the back
of that and they did not. They simply had made their statement
at the outset and 18 months down the track they have done nothing
about it.
Mrs Lait
66. I wonder if I can ask you to clarify
one or two points, Dr Bennett. You said that within the EU there
are systems of self-verification being set up or already set up.
(Dr Bennett) Yes.
67. Am I right in understanding that in
none of those EU countries they have notified the Commission nor
has the Commission requested them to do so?
(Dr Bennett) I do not have that information to
hand. I believe at least one may have been notified but I do not
have that information to hand.
68. So that part has been solved.
(Dr Bennett) There would not necessarily be identical
legislation. If the legislation had anything in it that did relate
to a product that would have to be notified. If it was not identical
to ours it would not have been. That is not something I can answer
off the top of my head, I am afraid.
(Miss Richmond) If I can help there, I am aware
of an Austrian proposal, I think it is Austrian, where they made
a notification about six months ago where they were setting up
an approval system, but at the same time they were actually setting
out boundaries in legislation for standards that the products
must reach and they were being notified on that basis. I think
that I said in my letter to your legal adviser that you often
get a combination of things in a measure, that you will have some
things that conform to a technical specification and other matters
which are not. The general approach of Member States is actually
to send the whole thing, rather than actually just little parts,
because a part of the Directive requires them to give the background
to everything as well. We have not needed actually to add on the
requirements of the product because they are already there in
the 1985 Act, the regulations made under it.
69. So in your discussions with DGIII, whenever
they take place, will you be enquiring as to whether DGIII think
they have notified the people as well as the products in the Austrian
notification?
(Miss Richmond) Well, we will certainly want to
explore with them why they are looking at what we call our "discrete
proposals" in the way of saying that this is a technical
specification when that has been ring-fenced, as such, to actually
add on to an existing structure.
70. So you will not be asking them about
the Austrian proposals?
(Miss Richmond) We will be asking them, I think,
about the generality of their arguments in terms of our proposals.
If they have formed views that things like the Austrian proposal
as a totality include all of the provisions that were notified
being technical specifications, then that is something that we
would wish to explore with them as well, but the main purpose
of our discussions with them is very much to look at our proposal
and their view on our proposal because we take these on a case-by-case
basis and, as my colleague said, every piece of legislation is
different and every Member States approaches their national legislation
in a different way.
71. Dr Bennett, can I just confirm that
you said that we were under a misapprehension that notification
would speed up the Commission's submission of a proposal, and
you think it will have no effect whatsoever?
(Dr Bennett) I think, if anything, to a very small
extent it will slow it down because some of the officials who
are at this moment working on the draft of the Directive will
probably take time out to comment on our case and I do not think,
from my limited experience of the Commission, rather more seriously,
that they will be moved to move faster because of one piece of
legislation from the UK.
72. Given that there are a number of countries
which are going down the self-verification route, however they
may be getting to it, if there is a strong feeling amongst those
countries that they want the draft Directive sooner, can you not
get together and put pressure on the Commission to produce? We
pay them, after all.
(Dr Bennett) We have. Let me tell you that this
Directive, I think, first saw the light of day in 1990. It must
be one of the longest-running sagas ever and after six years the
Commission had virtually run into the sand because of their own
views and they did not agree with Member States. I, as well as
being Director of the National Weights and Measures Laboratory,
am also Chairman of the European co-operation of 24 countries,
I think it is today, in the area of metrology and we meet to discuss
a number of issues and this in particular. In 1996, in that role,
with the backing of this international co-operation, I went to
the Commission with the Vice Chairman and somebody else and we
told them that we thought they were going in the wrong direction
and that they should change the way in which it was done in order
to get there quickly. They listened to us in the end and they
did that and two years down the road we have a draft which is
already late, but the last I heard last week is that it will now
probably appear in the autumn of this year. It was to be in the
spring, but they have consistently missed deadlines. However,
it is a long and complicated document. It is 130 pages of A4,
the last draft I saw, and it has 13 technical annexes relating
to different types of equipment and that is going to be a long
time in the Council. I would not like to guess how long that is
going to take before we reach adoption, but some people are saying
two or three years and I have a feeling that that may be optimistic,
but we will see. That of course then depends on the willingness
of the individual presidencies of the Council to find time for
working group meetings to try and thrash out the technical details,
so it is going to take a long time. We are getting there because
the Member States have ganged up on the Commission and told them
how they ought to do it, but it is still taking a long time.
73. You say you are arranging meetings with
DGIII and with colleagues in other departments in the UK and,
perhaps taking further legal advice. What is now your guesstimate
of how long it would take if everything else went smoothly and
we were to recommend that this Order goes ahead? How long do you
think it would take before we could get this into the necessary
legal force?
(Dr Bennett) I think the problem is that in Brussels
particularly, people have tended to start to go on holiday, but
I do not know if you have any experience of how long it might
take.
(Miss Richmond) What we are hoping through the
UK Representative is to try and set something up. We will try
and do something actually for next week, but whether or not that
is feasible, bearing in mind that we do actually need to have
key people going from this side and also key people over there,
I do not know, and I have left that in the hands of the UK Representative
and he will make every effort actually to get the earliest meeting
that we can get, but with the best will in the world, it is holiday
time unfortunately, but we will get over there as soon as possible
and have a discussion with them and try and thrash it out with
them. In terms of matters nationally, we would hope to actually
have a process where we envisage that there will be meetings chaired
by the Cabinet Office and they will be organising those—they
are in hand at the moment—and I would hope again that we
are talking about meetings during next week. Depending upon the
conclusion of those meetings, we may need to take further, high
level, legal advice and to impress upon those concerned that we
need a speedy answer. It is likely that Counsel would be involved
in giving advice as well on the generality as well as perhaps
the particular proposal, so we could be talking about a month
on that scenario and if we have been able to have a meeting with
the Commission in that time, it does actually mean that we can
try and bring everything together and then put the matter to the
ministers.
Chairman
74. Can I just put it to you very simply:
we have had all these arguments for and against of waiting for
Europe or going ahead with this proposal, but it is still the
Department's view, looking at the situation we are in at the moment,
that it is sensible to go ahead with the proposal, is it?
(Dr Bennett) There is no question about that.
The Directive, you may have had some of these figures last time,
but the Directive, as I have said, is probably four or five years
at least away from adoption and when it comes in, all the products
which are already approved will still be manufactured, probably
for a period of ten years, and will then continue in use, so a
petrol pump that is out there will continue to be used and repaired
over a long period and these proper quality assurances and safeguards
here are essential for that period to make sure that the consumer
is protected. This is a long-term proposal and it is not just
a stop-gap; quite the reverse, it is to make sure that we have
a single, coherent system of controls which covers products approved
under the Directive and products approved under our national legislation.
If you got the impression that it was a stopgap until we get the
Directive it is not. It is to make sure we have got something
that will run for 20 or 30 years.
Chairman: I am trying
to get it clear in my mind. I just wanted to spell your view out
very very clearly and I think you have done that. Mr Marsden wants
to come in.
Mr Marsden
75. Dr Bennett, you said at the outset that
there has been either "universal" or "near universal"
support for this measure both in the industry and we cited witnesses
who have come here, but it is not entirely the case, is it, because
when ITSA and LACOTS came to the Committee and we discussed the
question of how self-verification standards work in other parts
of the world, they said in oral evidence to us that they did not
have confidence in many parts of world that the standard will
be imposed. You have already said in answer to an earlier question
from a colleague that you now do not believe that it will be necessary
or indeed advisable for trading standards officers from the UK
to go on overseas verification and your colleague Miss Richmond
said earlier this Order was one about people and not about products.
Given therefore there appears to be no legal obligation on the
United Kingdom to extend the obligations of the Order worldwide
why has the Department done so?
(Dr Bennett) There would be a legal requirement
to extend it in Europe. There is no question about that. And we
are increasingly if not under a legal obligation under some obligation
to observe world trade conventions not to erect barriers to trade
with the rest of the world. I take comfort again in the obligation
for the Secretary of State to satisfy herself that somebody applying
meets the requirements set out in the Order. Of course there are
countries where there are not adequate metrology services or equality
of services but the manufacturers there would not meet the requirements
unless able to bring in expertise from elsewhere. These approvals
will not just be handed out. One of the reasons it is conducted
the way it is is the final say will be for the Secretary of State
in this case with the National Weights and Measures Laboratory.
There is no automatic approval to self-verify. They will have
to satisfy us that they will meet the safeguards set out in the
Order.
76. So you dismiss the concerns from LACOTS
and ITSA?
(Dr Bennett) I do not dismiss them. We have a
very good relationship with LACOTS. We have regular partnership
meetings with them and so on.
77. They are the people at the sharp end,
are they not? They are the people dealing with it worldwide.
(Dr Bennett) They are not dealing with it worldwide,
they are dealing with it in the United Kingdom. I accept their
point that there are places in the world which do not have the
same level of safeguards we have. I repeat myself in that it would
not be easy for a manufacturer to get a licence. They will have
to meet the requirements in the Order. There are many other countries
in the world particularly Europe and elsewhere that have very
well-developed equality and metrology services.
78. You said yourself this is a measure
that is not a stopgap measure; it is it a measure that is going
to be there for many years. Do you have confidence, say, over
the next five to ten years that those gaps in the system are likely
to be rectified or are they likely to remain the same—worldwide
I am talking about—because that is germane to this question,
is it not?
(Dr Bennett) Well, I think there will be some
countries that are developed countries—and this is very
true that one of the first things a developing country tries to
introduce along with a better police force and legal system is
a metrology service. They see the importance of this in consumer
confidence. Lots of countries are investing in that at the moment.
Lots of countries five or ten years down the track will not be
able to comply with the terms of this Order unless they bring
in expertise from elsewhere in the world.
79. Do you and other members of the Department
on a regular basis have experience of those systems outside of
Europe? Do you go to these countries and see them?
(Dr Bennett) We do not go and see them. I have
already indicated my involvement in a European co-operation and
international organisation that involves more than 100 countries
with a Committee on which I sit. My colleagues there have some
awareness of what is going on in other countries. The evidence
will have to be produced by the manufacturer that he has a proper
quality system properly assessed by a body we recognise. If we
do not, we will ask Who are they? What have they done? and we
will rely on that information. We are trying to get away from
a system of inspectors from all countries having to go and visit.
It is about developing confidence. Without confidence there will
not be an Order issued for a manufacturer to self-verify.
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