Select Committee on European Communities Eleventh Report



Letter from Lord Tordoff, Chairman of the Committee, to Angela Eagle MP, Parliamentary Under Secretary of State, Department of the Environment, Transport and the Regions

  The above proposal was considered by the Committee this afternoon, following earlier scrutiny by Sub-Committee B. As well as Mr Meacher's explanatory memorandum on 22 May, the Sub-Committee considered written evidence submitted by the Confederation of British Industry (CBI) and the Trades Union Congress (TUC). As you will see from their letters, copies of which I attach, both the CBI and TUC share a number of the Government's concerns about the amended Commission proposal, including its overlap with the Chemical Agents Directive, on which I understand a common position has now been reached.

  The CBI endorses the Government's view that the proposal will impose additional costs on industry, particularly on small and medium-sized enterprises, without yielding any significant health and safety benefit. The Confederation also agrees that the Directive would duplicate existing legislation and that a vademecum" (guidance on possible ways to comply with the Directive) able to reflect the diverse conditions prevailing in the various Member States would be too general to be useful.

  The TUC is more positive, arguing that the proposed Directive would help to improve worker health and safety, increase awareness of the particular risks associated with explosive atmospheres and promote common standards amongst Member States. While resisting in general a cost/benefit approach to health and safety rules, the TUC believes the additional costs of the Directive would be reasonable if the requirement to install surveillance equipment was deleted. The recognition in Mr Meacher's EM that new UK legislation is likely to be required suggests, in the TUC's view, that the Directive would make more explicit the legal protection offered to British workers, a development they welcome.

  The TUC opposes some aspects of the proposal, however, including the requirement to classify certain workplaces into zones. Although the TUC believes that some Member States, including the United Kingdom, should be exempted from the proposed requirement to distribute EC guidance on compliance with the Directive, on the grounds that these countries already have sufficiently good domestic mechanisms to ensure that guidance on health and safety requirements is distributed and compliance enforced, they suggest that the Health and Safety Executive needs improved resources if domestic guidance and enforcement are not to decline.

  The Committee is dismayed to note that this proposal has now reached an advanced stage, despite the fact that many of the objections to which the previous Government drew attention in their EM of 16 January 1996 do not appear to have been met in the meantime. We would welcome clarification of what steps the Government now intend to take at least to reduce the unnecessary additional burdens it would impose on industry. In particular, we would be interested to know what amendments the Government will now be seeking and how optimistic you are that a final outcome can be reached that will be acceptable both to the Government and to our witnesses. Finally, it would be helpful if you were able to shed any light on why this proposal has progressed so far despite its drawbacks and what reasons are advanced by those who support it.

  We shall maintain a scrutiny reserve pending your reply.

23 July 1997


Letter from the CBI


  Thank you for inviting the CBI to submit written evidence on the above proposal.

  The CBI has serious concerns about the Directive and questions the need for this proposal. The CBI believes that the actions proposed by this Directive and the associated cost are not justified by the gains which will be achieved in practice. In particular the CEC has not demonstrated any significant health and safety gains. This proposal would duplicate requirements already existing under health and safety directives and the majority of costs will be the additional paperwork rather than any significant changes in work practice and this cost will fall disproportionately on SMEs.

  Articles 3, 4, 6 and 7 amplify the requirements of the Framework Directive (89/391/EEC) the Use of Work Equipment Directive (89/655/EEC) and the Workplace Directive (89/654/EEC) making them more specific and prescriptive, thus imposing a cost to business which would not enhance health and safety and would reduce competitiveness. This directive would restrict employers' freedom to select the most appropriate way to control risk based on their circumstances and environment. In particular the Framework Directive requires risk assessment to be undertaken, including assessing the risk from explosive atmospheres. The CBI therefore questions the need for a separate Explosion Protection Document. This also duplicates the requirements of the Seveso II Directive regarding safety reports.

  A key element of the Directive is the requirement for zones of risk based on the likelihood of an explosive atmosphere occurring. This is unnecessary as Directive 94/9/EC requires equipment and systems designed for use in explosive atmospheres to be classified into groups and categories for use in particular zones. Therefore a zoning system is already in existence and there is no need for a specific legal requirement. Guidance on the classification of hazardous areas is already available in the form of European standards/Codes of Practice. The CBI also feels that a vademecum is inappropriate in this situation. The situations of the member states are too diverse to enable a meaningful European guidance document to be produced and its legal status in UK and Community law would be uncertain.

  Furthermore, this Directive overlaps with work currently being undertaken to develop the Chemical Agents Directive. The CAD covers both health and safety aspects of the use of chemicals, and therefore includes all potential hazards including explosive atmospheres. The creation of two pieces of overlapping legislation will confuse and impose additional burdens on business and will complicate the work of government, enforcers and industry.

  I hope these comments are useful. If I can be of any further assistance, please do not hesitate to contact me.

26 June 1997


Letter from the TUC


  Thank you for your letter of 20 June inviting the TUC's comments on the above (ATEX) Directive. I set out below only a brief summary of our views, which will of course develop as negotiations proceed.

  Now that the Chemical Agents Directive (CAD) has reached common position, the TUC believes that there is a need to reassess the UK negotiating position on the ATEX Directive. The TUC agrees with the concerns expressed by the Department about the overlaps between the two Directives, and we supported a negotiating stand that eliminated them. Since this is now unlikely, the ATEX Directive will need to be amended to cross-refer to the relevant sections in the CAD.

  Despite this, and taking into account the likely progress of negotiations, the TUC supports the introduction of the ATEX Directive as a contribution to improved worker health and safety across the EU. We believe that the Directive could:

   -   set new, higher standards, for the protection of workes exposed to risks through their work in explosive or potentially explosive atmospheres (including the emergency services, which is one reason why an explosion protection document" would be useful);

   -   ensure that employers and workers were more aware of the hazards, risks and preventive measures associated with work in explosive atmospheres; and

   -   promote greater commonality of standards in this area between Member States.

  The Department's argument that the risks are already covered by existing legislation, but that new legislation would be needed to implement the ATEX Directive suggests that there are indeed areas of the Directive which would be additional to existing UK law - partly, no doubt, in terms of greater explicitness. The TUC welcomes such greater explicitness, especiallty for the small firms sector, where employers frequently request greater clarity about how to meet their general obligations.

  Nevertheless, we believe that the Director needs to take account of some general principles already present in UK health and safety law, principally the need for an assessment of risk before preventive measures are taken (as the requirement to classify places where workers may be at risk into zones implies). We believe that there is little advantage to be gained from such a requirement and would be content for it to be deleted from the draft Directive.

  We are also not convinced of the value of the proposed requirement that Member States distribute widely planned EC guidance on ways to comply with the Directive, but we do believe that this might be helpful in some other countries. We would therefore support a negotiating position that exempted Member States where existing comparable or better domestic guidance was widely available.

  With regard to the cost benefit analysis of the ATEX Directive, we remain unconvinced in general of the process of cost benefit analysis and in particular of the acceptability of applying financial values to the health effects of regulation. Most of the anticipated costs refer to the requirement to install surveillance devices, and without that requirement, the cost could fall to below £437 per firm per year (and the TUC is not convinced that these would all be recurrent costs). The TUC believes that with the exclusion of the requirement for surveillance, the costs could be reduced to a level not disproportionate to the benefits.

  We note that the HSE considers that a substantial number of workplaces would need to classify their workplaces into zones under the Directive. This suggests that the benefits which would flow from the ATEX Directive could not be achieved solely by better guidance and more enforcement, but the option is of course open to the government to improve guidance and enforcement in any event. However, existing constraints on HSE resources make it less likely that enforcement will be stepped up in this area rather than more.

  If we can be of any further assistance, please let me know.

8 July 1997

Letter from Angela Eagle MP, Parliamentary Under Secretary of State, Department of the Environment, Transport and the Regions to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 23 July. My response to the Committee's questions is as follows.

  I should first of all point out that there is no immediate prospect of negotiations on this directive (known as ATEX) resuming, and while the Government shares the Committee's concerns about the current text, it is premature to say that the proposal has reached an advanced stage. The current text reflects amendments from the European Parliament and is not the result of initiatives by recent Presidencies or other Member States. There have been no negotiations since January 1996, and none are planned during the Luxembourg Presidency. The Government will not be giving ATEX priority during the forthcoming UK Presidency.

  The Government's overall approach, assuming other Member States were to support ATEX in its present form, would be to seek to limit the directive's impact on the UK by removing areas of overlap with existing Directives, and the more costly provisions that provide little or no health and safety benefit. In any negotiations we would seek the removal of the following from the proposal:

  (i) Article 11 provides for the development, at European level, of guidelines on possible ways of complying with the Directive (the so called vademecum). Although it would have a questionable legal status it could be seen de facto as compulsory. It could restrict an employer's freedom of choice to select other equally effective, but less expensive, methods of controlling risks. We will also oppose Article 12 which requires us to distribute the vademecum widely.

  (ii) Articles 3 (hierarchy of protection), 4 (general obligations), 5(3) (signing of hazardous areas), 6 (worker information), 7 (consultation with workers), 8 (training), and 9(1) & (2) (use of appropriate work equipment) add little to the relevant requirements of other Directives, notably the Framework, Use of Work Equipment, Workplace, Personal Protective Equipment, Safety Signs and Chemical Agents Directives, Employers may incur additional and unnecessary costs if they believe it necessary to duplicate any of that work under this proposal.

  (iii) In particular, Article 4 (1) is likely to add significant and often unnecessary cost in requiring the use of monitoring devices (closed circuit TV, etc) and modern technical means as part of the supervision of workers. Determining the appropriate level of supervision should be part of a risk assessment, and human supervision will often be adequate. Monitoring devices may lead to a false sense of security, and are sometimes accompanied by withdrawal of more effective human supervision.

  The cost of the remaining provisions (those requiring zoning of hazardous areas (Article 5(1)) and the use of appropriate workplaces (Article 9)) are likely to be more commensurate to the benefits. That said, we remain sceptical of the need for a legal requirement for zoning. We believe the Chemical Agents Directive and information provided in accordance with ATEX product Directive 94/9/EC, by the supplier of equipment for use in potentially explosive atmospheres, will already lead the user to undertake zoning. We will negotiate the exact wording of these provisions to ensure they apply only where necessary and to reflect UK practice as closely as possible.

  A number of uncertainties make the likely success of the Government's approach difficult to predict. In particular the position of other Member States is hard to gauge now that the Chemical Agents Directive (CAD) has reached common position. Initial indications suggest that there is support for a zoning requirement (particularly from Germany and some of the Nordic countries). Germany believes this is necessary to support the ATEX product Directive 94/9/EC. This is because they believe that, without a requirement to zone which is uniform across the EU, employers will not necessarily buy the same equipment for a particular situation, which could inadvertently create barriers to trade; and that zoning, which is related to the categories of equipment in the Article 100a Directive, would preclude this. We consider this argument to be overstated and legalistic. If users choose to buy equipment that offers a higher degree of protection than is strictly necessary a zoning requirement will not prevent them from doing so.

  What is not clear is how much of the rest of the proposal they regard as necessary. My officials are trying to establish the position of other Member States, but this may not become clear until negotiations proper begin.

  The ATEX proposal was proposed because of genuine concerns by the European Commission that explosion hazards were not adequately covered. Some Member States believed ATEX was necessary to complement ATEX product safety Directive 94/9/EC. The Article 118a ATEX proposal and its European Parliament amendments were therefore made before it was clear how far CAD would cover explosion hazards. Effectively, the two Directives were developed on separate tracks. Despite this, during negotiations on CAD, UK negotiators ensured that those parts of the text covering explosion hazards were worded in a very similar way to the ATEX proposal so that, if both Directives were eventually pursued, they would at least be complementary.

21 November 1997

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