I
PROPOSAL FOR THE DEREGULATION (WEIGHTS AND MEASURES)
ORDER 1998 - continued
Has the proposal been the subject of, and does it take account
of, adequate consultation?
43. As the previous Committee noted[74],
proposals relating to self-verification in the weighing and measuring
industry have been under discussion since the mid-1980s. The first
systematic consultation exercise was undertaken in August 1993.
This was followed by consultation on a proposed Deregulation Order
in February 1996. On 10 June 1996, the proposal for the Deregulation
(Weights and Measures) Order 1996 was laid.
44. The third consultation document was issued on 12 February
1998, and replies were requested by 6 April 1998. A number of
respondents raised significant concerns relating to the proposed
Order; the most significant of these points have been outlined
above. However, the Department do seem to have given proper consideration
to the points made. We conclude that the timing and scope of
the consultation was adequate and that the Department has taken
account of the concerns of respondents.
Does the proposal impose a charge on the public revenues
or contain provisions requiring payments to be made to the Exchequer
or any government department or to any local or public authority
in consideration of any licence or consent or of any services
to be rendered, or prescribe the amount of any such charge or
payment?
45. The proposed Order would enable the Secretary of State to
charge fees to applicants for an approval to become a self-verifier[75].
The schedule provides that a fee may be charged on application
for an approval and on the grant of an approval. The previous
Committee recommended that, in accordance with Treasury Guidance,
the level of fees should be set at a level intended to recover
expenses[76]. This recommendation
has been accepted[77].
We have no further points to raise under this heading.
Does the proposal purport to have retrospective effect?
Does the proposal give rise to doubts whether they are intra
vires?
Does the proposal require elucidation or appear to be defectively
drafted?
46. We have no concerns to raise under these headings.
Does the proposal appear to be incompatible with any obligation
arising from membership of the European Union?
47. Directive 83/189/EEC is intended to help avoid the creation
of new technical barriers to trade within the Community. It requires
Member States to notify technical regulations to the European
Commission in draft, and then generally to observe a standstill
period of at least three months before adopting a regulation,
in order to allow other Member States and the Commission an opportunity
to influence the outcome. Non-notification of draft technical
regulations renders the regulations unenforceable in certain circumstances.
48. Technical regulations are technical specifications
and other requirements, the observance of which is compulsory
in the case of marketing or use in a Member State. A technical
specification is defined as follows:
"a specification contained in a document
which lays down the characteristics required of a product
such as levels of quality, performance, safety or dimensions,
including the requirements applicable to the product as regards
the name under which the product is sold, terminology, symbols,
testing and test methods, packaging, marketing or labelling and
conformity assessment procedures;
...production methods and processes relating to...products, where
these have an effect on their characteristics".[78]
(Emphasis added)
49. The NWML claims that the Deregulation (Weights and Measures)
Order is not a technical specification for the purposes of the
Directive, and that it is consequently not notifiable[79].
The Department argues that because the Deregulation proposals
do not seek to change the verification requirements in relation
to weighing and measuring products, but merely expand the category
of approved verifiers, the characteristics required of the products
will not be altered and hence the proposals do not qualify as
technical specifications. The NWML has resisted any suggestion
that, given the extent of the doubt over whether the draft Order
was notifiable, it should notify it to ensure its future enforceability.
This resistance has been justified on the grounds that to notify
in these circumstances would prejudice the interests of other
Departments which introduced similar measures[80].
50. While it is true that no new tests or standards will be introduced
to evaluate the characteristics of weighing and measuring equipment
as a result of the proposals, the fact that self-verifiers will
be required to establish and maintain quality systems means
that a new dimension is being added to the current regulatory
framework. The requirements for self-verifiers to establish a
quality system and to conduct verification in accordance with
a DTI Approval may well qualify as conformity assessment procedures
within the definition of technical specifications.
51. The Commission defines conformity assessment procedures as
"those used to ensure that the product conforms with specific
requirements", and distinguish such procedures from testing
and test methods, which "cover the technical and scientific
methods to be used to evaluate the characteristics of a given
product"[81].With
regard to the weights and measures proposal, the Commission has
told us that
"there can be no doubt that the determination
of the person carrying out and being responsible for the testing
and for... checking the conformity... is clearly one of the most
fundamental characteristics of any testing and conformity assessment
procedure and therefore can be said to affect the marketing or
use of the products concerned."[82]
It thus regards the proposals as notifiable within the terms of
Directive 83/189.
52. If a case were to go to the European Court of Justice, and
the Court agreed with the opinion that was expressed by the Commission
that the Order was notifiable, it is not clear what the implications
would be for the enforceability of the proposed Deregulation Order.
We were informed that the Department was trying to meet with representatives
of the Directorate-General of the Commission with responsibility
in this area (DG III)[83].
We were also told that the NWML would shortly consult interdepartmentally
to ascertain the degree of risk to other departments of notification
in this case and might need to take further legal advice following
that consultation. We were informed that if, after discussions
with DG III, the NWML considered that the proposed Order was notifiable,
it would then notify the Commission accordingly[84].
If it concluded that notification was not necessary, it would
not. We expect this matter to be resolved satisfactorily before
a draft Order is laid before the House, and we expect the Department
to report fully to us on the outcome of all these consultations
when it lays a draft Order.
Measuring Instrument Directive
53. ITSA questioned the wisdom of establishing a new system of
verification in advance of the Measuring Instrument Directive
(MID)[85]. The MID would
harmonise the verification and other requirements for around 20
categories of measuring instruments. ITSA argues that, by pre-empting
harmonisation in this field, the proposed Order would not be able
to ensure that overseas authorities were performing their duties
to the exact standards that UK inspectors would demand. LACOTS
pointed out the difficulties of extending to Europe (and beyond)
a piece of UK legislation different from that which overseas authorities
ordinarily applied[86].
Following an EC directive, this would no longer be an issue because
the requirements would be the same in the UK and other EC Member
States[87]. We concluded
at paragraph 29 that we believed that the Secretary of State could
be expected to use his discretion, on the basis of information
gathered about other countries, to ensure that self-verification
was carried out only in countries where accreditation bodies would
work to standards equivalent to those of UK inspectors. In addition,
we also accept the principle that self-verification may be extended
outside the EU.
54. Although a proposal for the MID has not yet been submitted
by the Commission, we understand that it is expected in the autumn
of this year. It would be a long, complex measure and would be
likely to take some time in Council (assuming that it is placed
on the Council agenda by successive Presidencies)[88].
The NWML does not expect it to be adopted and transposed into
UK law before around 2003 (with transitional provisions lasting
for about 10 years)[89];
this could, however, be regarded as a worst case scenario. The
NWML argued that the proposed Order was not intended as a stop
gap measure[90]; it is
intended to remove burdens sooner than would be achieved by waiting
for the directive, and moreover, is expected to form the foundations
for the implementation of the directive.
55. Having regard to the points made by ITSA and LACOTS in
paragraph 53, we see considerable merit in securing Community-wide
legislation as soon as possible and not anticipating it with domestic
legislation. However, we see this as a matter for the judgment
of the Department.
Extent
56. The proposed Order would apply to Great Britain. The NWML
believes that the equivalent provision for Northern Ireland will
be made in April 1999; it acknowledges that this timetable may
be liable to change[91].
Report under Standing Order No. 141
57. We recommend that the proposal for the Deregulation (Weights
and Measures) Order 1998 should be amended as set out in paragraph
18 before a draft Order is laid before the House.
74 First Report, Session 1996-97, paragraph 33. Back
75 Paragraph
1 of the Schedule to the proposed Order. Back
76 First
Report, 1996-97, paragraph 38. Back
77 Paragraph
1 of the Schedule to the proposed Order. Back
78 Council
Directive 83/189/EEC, Article 1(2). Back
79 Evidence,
page xxxviii. Back
80 Q63. Back
81 Commission
booklet on Directive 83/189/EEC. Back
82 Evidence,
pagexl. Back
83 Q63. Back
84 Q63. Back
85 Response
to consultation document. Back
86 Q18. Back
87 Evidence,
pagexliv. Back
88 Q72. Back
89 Q42. Back
90 Q73. Back
91 Evidence,
page xxx. Back
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