Select Committee on Delegated Powers and Deregulation Twenty-Eighth Report


Letter from LACOTS - local authorities coordinating body on food and trading standards

Proposals for the Deregulation (Weights and Measures) Order 1998

Further to our telephone conversation today, thank you for giving LACOTS the opportunity to expand on our response to the consultation on revised proposals for the Deregulation (Weights and Measures) Order 1998. You will be aware that LACOTS has previously provided comments on consultations in 1993 and 1996 that culminated in consideration by the Parliamentary Deregulation Committees in 1996 to which LACOTS gave evidence.

LACOTS has always supported the principle of self-verification by manufacturers provided there are appropriate safeguards and had considered this might be extended to petrol pump repairers and installers only if appropriate extra controls were included. Accordingly we had welcomed the inclusion in the revised proposals of a notification procedure to local authorities of work carried out by repairers and installers and have recommended the provisions are enhanced to ensure the system is demonstrably effective and efficient. We also suggested that if there were continued problems in applying the proposals to any particular business sectors there may be merit in delaying the application of the proposals to those sectors and introducing the proposals in a staged approach to enable other sectors to self-verify.

LACOTS has reservations on the revised proposals on which we would make the following particular additional comments:

1. Quality Systems : General

1.1 It is the significant elements of quality systems and metrological control that must be specified in the proposals rather than the name and reference of a standard. if sufficient detail is not included in the proposals, any change in philosophy, policy or even personnel involved in the issuing of approvals could affect the conditions to which approvals to self-verify are subject because of the scope for different interpretation. Additionally, any significant elements that are not included within the legislation itself may not be considered in the future to be part of the compulsory controls both by the organisation issuing approvals and should the question of status arise during any court proceedings. It is important that approval conditions are transparent and accountable no matter which organisation has assessed a company's quality system. For example LACOTS has noted that from the Explanatory memorandum points 107 and 162 that sub-contracting of the self-verification and pre-test stamping functions may be envisaged. LACOTS is concerned that this is a new consideration to which appropriate consumer and business safeguards must be secured, particularly if this is considered in relation to the "user" of equipment being sub-contracted.

1.2 Reliance on ISO 9003 is one standard that has been specified and LACOTS is concerned that this would not cover the production process. The use of this standard would hinder the assessment of whether a quality system had been established that would ensure a product complies with legal and other metrological controls. However, we note and accept that the Minister intends to link its use to the simplest of equipment.

1.3 Any quality system registered by an accredited body is assessed to ensure the company is actually doing what it declares that it is doing and does not necessarily ensure the quality of the end product nor that it complies with any legal or other metrological controls. For this purpose it is essential that an inspector of weights and measures with the appropriate quality assurance experience is involved in the audit team as an expert adviser to the lead assessor as per the implementing arrangements for Directive 90/384/EEC. The role of the officer should include the assessment of the overall capability of the system to achieve the relevant metrological legal and approval conditions and requirements and should not be restricted to only metrology specific areas of the quality system such as calibration.

1.4 Under the proposals the accredited bodies will in effect be performing a new quasi-regulatory role. Clear help and guidance must be given to ensure that these bodies are comfortable with reporting metrological or approval condition non-compliances to Government. This would be a deviation from their more usual practice of respecting client confidentiality and working with the client to improve the system.

1.5 The accredited bodies are businesses working within a competitive market and should be given a mechanism to ensure a level playing field with their competitors. This could be achieved largely by specified minimum standards for the purposes of legal metrological and approval control eg a minimum frequency of audits.

2. Quality Standards : Overseas and Domestic

2.1 LACOTS fully appreciates and understands the reasons why the proposals have had to be revised to enable overseas companies to take advantage of the proposals. However, it has been noted that this is in advance of an EU harmonised mechanism that will be provided by the Measuring Instruments Directive presently under development.

2.2 We understand that the standards applied to overseas and domestic companies will be the same. This presumes sufficient detail is included in the proposals to ensure practical application is the same regardless of the geographical location of the company. There will be resource implications for accredited bodies deploying personnel for audits involving extensive and/or long-haul travel which may add to a case for specified minimum service levels including audit frequencies to ensure a level playing field between accredited bodies.

2.3 The most critical difference in the treatment of overseas and domestic markets is the lack of jurisdiction for local authorities overseas and the lack of sanctions through offences that could apply to overseas companies. The domestic business is disadvantaged by this. Overseas companies will not be subject to random inspections by trading standards officers who could have established whether a product continues in practice to be produced lawfully and in line with approval conditions. The importance of inspection was recognised by the inclusion in the proposals of the specific power for local authorities to enter and inspect premises where equipment as being self-verified rather than restricting this power to only those premises where equipment was actually possessed or in use for trade. Overseas companies will not be subject to enforcement action and court proceedings where serious infringements take place. Punitive sanctions will be restricted to removal of the company's approval to self-verify. Domestic companies can however, in serious cases, be taken to court when they have committed offences. Both inspection and appropriate sanctions are essential to underpin the proposals and secure public protection and fair trading.

2.4 We remain concerned that there will be significant difficulties in preventing particular products, such as failed batches of glassware intended for use in public houses, from being placed into use in the UK. At the present time such products are tested by batch and verified by a UK trading standards officer so control is exercised before a product is in use at retail level. At retail level it is extremely difficult, without details of the original batch, to assess whether a product is a legitimate failure of a batch (of which there may be a few) or is a failure from a failed batch (of which there may be many). A requirement that product is traceable to batch is essential. Overseas companies who are able to take advantage of the absence of jurisdiction for a local authority to inspect their premises will be able to `dump' failed batches in the UK with much less chance of detection than domestic companies even if there is a requirement that a retail product must be traceable to batch.

2.5 On a related matter, LACOTS understands that the pre-test stamping provisions have been restricted to approved self-verifiers because of the reduced ability to retain control over inspectors marks at overseas locations. LACOTS also appreciates that there is logic in some cases in permitting the verification mark to be incorporated into the product prior to the testing that would establish whether it would pass as fit for use for trade. However, the proposals permit a self-verifier to take advantage of the pre-test stamping provisions and do not allow the same route where local authority verification is used. The Minister has recognised that to remain competitive capacity measure manufacturers will probably seek to obtain approved verifier status. Although we note that there may be significant incentives for manufacturers to retain approved verifier status and we understand the reasons for restricting pre-test stamping to self-verifiers we remain concerned on two particular points. Firstly, local authorities who have to provide a verification service will be competitively disadvantaged as capacity measure manufacturers will stop using their verification service. Secondly, any manufacturers who wish to or cannot obtain approved self-verifier status will be significantly disadvantaged by being forced to use a local authority verification service involving the less commercially attractive "double handling".

2.6 On another related issue, LACOTS welcomes the provisions that would recognise test results from competent third parties within the EEA and prevent duplication of testing in the UK before passing as fit for trade by an inspector. LACOTS does not question the competence of overseas third parties but has recommended the inclusion of similar wording to that used in other legislation in order to avoid doubt that an inspector who suspects, for example, that equipment has been adjusted after it has been tested, could refuse to accept test results. This would be particularly important if an inspector's action were questioned in any legal proceedings. We acknowledge that the Minister has stated that this is not necessary and the proposals would not compel inspectors to accept test results.

3. Implications for Local Government

3.1 LACOTS has set up a task force to further comprehensively consider the effect that the proposals will have on local authorities and to quantify the resultant funding provision that has been recognised by Government. LACOTS will be able to provide details of its conclusions to the Committee during July 1998 should that be required. Government funding provision to local government to lessen the difficulties created by the extra burdens and higher unit costs created by the proposals may enable Chief Officers and Heads of Services to present a case to their elected members for offset funding to be allocated to their service for this purpose.

3.2 The proposals must not undermine the ability of local authorities to maintain existing levels of public protection and fair trading. A critical part of the mechanism for providing these safeguards is the unannounced inspections that local authorities may carry out as self-verifiers premises and where self-verified equipment is in use. Local authorities are also required by statute to provide a verification service and will need to ensure that companies who wish to or need to can have access to a local authority verification service and the appropriate infrastructure would therefore have to be maintained.

3.3 The proposals will remove verification income from local authorities and the proportion of verification income that is removed may be substantial. Although local authorities will endeavour to make savings as a result of a reduced verification role, such as might be achieved through regional arrangements, there may also be significant transitional costs, not least in any necessary redundancies. This will particularly effect those local authorities with a large manufacturing base subject to verification in their area. The removal of significant local authority verification income will also increase the unit cost associated with maintaining the necessary staff, premises and equipment etc. for a verification service to local businesses who choose or need to use the local authority facility.

3.4 Local authorities have been subject to continual resource constraints and have obviously looked to maximise any savings and efficiencies. One efficiency has been for metrological inspection work to take place at the same time as a verification visit where possible. This approach minimises burdens on business as well as contributing to economic efficiencies. The removal of verification income which assists on a cost recovery basis the travel to the site, maintenance of equipment etc, will have an impact on local authority resources and could effect inspection levels. The overall reduction in funding (in real terms) means that this small and vital service may be badly affected in the absence of appropriate funding.

3.5 It is essential that inspection levels are maintained to underpin present consumer and trade safeguards but also as a foundation for the vital inspection and market surveillance roles that will arise from the Measuring Instruments Directive. This Directive is under development to provide routes for all equipment to be placed on the market and put into use. It is also envisaged that at least until such a stage is reached where local authorities can risk assess self-verification, local authorities may wish to treat these companies as a higher risk assess subject to an increased inspection frequency. It is also likely that inspection levels will have to increase to take account of any extension of the proposals to sub-contractors. Local authorities will also need to assess and respond where necessary to information received as part of any notification procedures. This is essential to ensure consumer protection and fair trading but also creates extra burdens on local authorities introduced by these proposals.

We have tried to provide sufficient details here to enable the Committee to consider LACOTS concerns alongside our previous comments as part of the consultation process. Please advise us of any further information or clarification the Committee may wish to receive and we will endeavour to offer every assistance.

Shona Bendix
Senior Executive Officer
29th June 1998

Letter from SAVE - Save Service Stations Limited

Proposals for Changes to the Weights and Measures Act 1985

Page 14 - Proposed Scale Charges for approval by National Weights and MeasuresThe fees quoted should be sufficient to allow proper processing of an application and carry out an audit before approval is granted.
Page 59 - 8.2The position of an applicant signing on behalf of a company should be a Director or Company Secretary - a person who could be held accountable for the company's actions as with other licences.
Page 63 - 10 (vii) and (viii)We are trying to reduce the burdens on industry and improve service with items (vii) and (viii). We are asking proposed verifiers to carry out checks prior to repair or adjustment which is not required at present and on (viii) it is proposed that the tests to be carried out are greater than that which is normally carried out by Trading Standards Officers. This will increase costs and downtime of equipment to industry, therefore not reducing but increasing the burdens. The test carried out should be as current Trading Standards Officers tests which on average are use of a 10 litre and 20 litre measure on fast and slow. These checks should not be over-prescriptive as the burdens would increase tremendously. Extra tests would serve no specific purpose.

We totally support this proposal and in the event of any parliamentary delay, we would support the sectorisation of these proposals to allow petrol, pump manufacturers, installers and repairers to proceed with self-verification.

Mr R H Danisz
Property Development and Operations Director
2nd April 1998

Letter from the National Weights and Measures Laboratory

Proposal for Changes to the Weights and Measures Act 1985

On Friday 17 July you telephoned me to inform me that Lord Alexander, Chairman of the Select Committee on Delegated Powers and Deregulation, had expressed concern over the representation made by the London Borough of Croydon which claimed that tests had shown that some 60% of petrol pumps were inaccurate when submitted for stamping (Page 19, paragraph 91 of the Explanatory Memorandum). The Minister, in his response explained "These figures have no bearing on the integrity of petrol pump verification. It is a common practice for petrol pump installers to incorporate the inspector's results into his final adjustment of the pumps to bring them within the required limits of error."

The technology of petrol pumps is such that the final setting of the amount of fuel actually delivered, against the amount shown on the equipment display, is achieved by fine adjustment of the metering system. Once the adjustment has brought the accuracy within the required limits the metering system is sealed to prevent further adjustment. To determine whether any adjustment is required and the magnitude of that adjustment, an installer or repairer must first determine the accuracy of the petrol pump by conducting a series of tests using capacity measures in a similar way to that which a trading standards officer (TSO) employs when he conducts his verification. At present, installers and repairers will often incorporate the TSO's verification tests into his final setting of the equipment, using the TSO's initial test results to determine how much adjustment is required. This approach has certain advantages for the installer/repairer as he does not have to bear the expense of maintaining capacity measures, instead relying upon those owned by the local authority. As such this approach may well prove to be the most economical solution for the installer/repairer.

At present it is the responsibility of the TSO, and solely the TSO, to ensure that any equipment that he stamps as fit for use for trade complies with the prescribed Regulations relevant to the equipment. Under the proposals that responsibility will also fall upon those manufacturers, installers and repairers granted an approval to conduct verification. Under their approval, self-verifiers will have an obligation only to pass and stamp equipment which complies with the relevant Regulations. To stamp equipment which does not, would be a clear breach of their approval. Approved verifiers found to be operating in breach of their approval would leave themselves open to the sanctions provided under the draft Order. At worst, this could mean the withdrawal of their approval by the Secretary of State. For any organisation which had committed time and resources in obtaining such an approval this would be a compelling incentive not to abuse their approval. For some, loss of their approval may well result in a significant loss of business.

If you have any further points that you wish to raise, please do not hesitate to contact me.

Shaun Hartigan
Legal Metrology Adviser
21st July 1998

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