22 July 1998
By the Select Committee appointed to report whether the provisions
of any Bill inappropriately delegate legislative power, or whether
they subject the exercise of legislative power to an inappropriate
degree of parliamentary scrutiny; to report on documents laid
before Parliament under section 3(3) of the Deregulation and Contracting
Out Act 1994 and on draft orders laid under section 1(4) of that
Act; and to perform, in respect of such documents and orders,
the functions performed in respect of other instruments by the
Joint Committee on Statutory Instruments.
PROPOSAL FOR THE DRAFT DEREGULATION (WEIGHTS AND MEASURES)
1.Part II of the Weights and Measures Act 1985 (the 1985 Act) prohibits the use for trade of certain weighing and measuring equipment unless it has been tested, passed and stamped (verified) as fit for such use by an inspector of weights and measures (an inspector). The purpose of this requirement is primarily to ensure that such equipment is fair and just in use to both manufacturers and suppliers, and consumers, who clearly need appropriate protection. This is achieved through the inspector's tests whereby he satisfies himself that the equipment conforms with statutory requirements, measures with sufficient accuracy and, where applicable, that the equipment conforms with the certificate of type approval. Under the current licensing regime, the inspector is a local authority official and the equipment concerned includes weighbridges, petrol pumps, shop scales, and beer glasses.
2.The draft Order has three main purposes;
(i) to amend section 11 of the 1985 Act to permit certain manufacturers, installers and repairers to conduct their own testing, passing and stamping (verification) of weighing and measuring equipment as fit for use for trade, provided they are in possession of an approval granted by the Secretary of State;
(ii) to amend section 11 of the 1985 Act to allow persons requiring any weighing and measuring equipment to be passed by an inspector as fit for use for trade to submit, together with the equipment, a test report from a third party tester (in the Order referred to as official EEA testers) established in the European Economic Area (EEA) stating that the equipment has been tested in accordance with any tests prescribed for that equipment, which tests have been applied and setting out the test results. If the inspector is satisfied that the tests have been performed by a competent person, the inspector will accept the test report as part of his verification of the equipment and will not further test the equipment;
(iii) to amend section 11 of the 1985 Act to enable approved verifiers, who are also manufacturers of weighing or measuring equipment, and whose approval so permits, to apply the requisite prescribed stamp prior to that equipment being tested and passed as fit for use for trade provided the manufacturer is satisfied that the equipment will not be used unless and until it has been passed as fit for use for trade.
3.This proposal has a long history. Consultation began in 1993 on proposals to amend the Weights and Measures Act 1985. In August 1993 the Department of Trade and Industry sent a letter to some 130 organisations outlining the proposals for self-verification, third party testing, and pre-test stamping (and a fourth proposal which was later dropped). The responses were generally favourable.
4.After the passing of the Deregulation and Contracting Out Act 1994 further consultation took place on a proposal for an order under that Act. In February 1996 more than 450 organisations were consulted, including consumer and trade associations and businesses likely to be affected by the proposals. There were 58 responses, many of which reported serious worries, mostly about self-verification.
5.A proposal for a Deregulation Order was laid before Parliament on 10 June 1996. Both this Committee and the House of Commons Deregulation Committee suggested amendments and raised a question about the compatibility of one aspect of the proposed order with EEC law but otherwise gave general approval to the proposal. Consultations continued and the Minister reconsidered his proposal in the light of the Reports of the two Committees and the comments of those who had been consulted. He proposed to lay a draft Order for the second Parliamentary stage but the general election intervened.
6.The new Government consulted afresh on proposals which were based on those seen by the Committee in 1996 with the amendments then suggested together with some minor modifications arising out of earlier consultation. The revised proposals took account of all the recommendations made by this Committee in its report on the previous proposals. The 1998 consultation paper also sought views on proposed changes to amend the Weights and Measures (Prescribed Stamp) Regulations 1968 to accommodate stamping by approved verifiers and to align the stamping requirements for plastic capacity measures with those for glass capacity measures. The formal consultative paper was issued on 12th February 1998 and invited replies by 6th April.
7.The Committee is satisfied that there was adequate consultation on the proposal.
The Committee's report on the 1996 proposal
8.The original proposal for this draft order was laid under section 3(3) of the 1994 Act on 10th June 1996. We reported on the proposal in our first report of last session, dated 30th October 1996. In that report we recommended that the proposal be amended to give inspectors the power to suspend the right to self-verify for 28 days, as provided for in the Non-automatic Weighing Instruments (EEC Requirements) Regulations 1995. The Minister accepted this recommendation. We also invited the Department to examine the practicality of confining suspension to a limited geographical area in appropriate cases.
9.We believed that the special circumstances of self-verification also required that a licensed verifier should be able to be called to account. We therefore recommended that the proposal be amended to provide for an offence of strict liability, subject only to a defence of due diligence. The Minister accepted this recommendation.
10.Article 4(4) of the original proposal changed the definition of "stamp" for the purposes of the Weights and Measures Act 1985, and the new definition include "permanent adhesive labelling". We reported that we had found no satisfactory explanation of the need for this change. It did not appear to be incidental or consequential to the other amendments proposed to the 1985 Act, and we had doubts about the vires. We recommended that this item be deleted from the definition. The Minister accepted this recommendation.
11.Article 2(4) of the proposal referred to provisions of the law of Northern Ireland relating to licensed verifiers, although such provisions did not exist. We recommended that this reference should be deleted from the Order. The Minister accepted this recommendation.
12.In 1996 we reported in the following terms:
"It seems likely that there would be large savings to be derived from this deregulation proposal and considerable benefit to the industry in general. We are, therefore, satisfied that this deregulation proposal would reduce a burden, despite the possibility that it might increase the cost of services provided by weights and measures inspectors to those who are not self-verifiers."
13.We received two written submissions in response to our call for evidence on the 1998 proposals. These submissions are printed with this report. Both of these, from LACOTS and Save Service Stations Ltd respectively, supported the proposals in general terms whilst making comments on detailed aspects of the proposals.
14.Last session the Committee received evidence from the Local Authorities Coordinating Body on Food and Trading Standards (LACOTS) expressing their concerns about the proposals. In response to these concerns the then Minister recognised that there would be some new financial burden on the local authorities as a consequence of the proposals and agreed to make provision for the Department of Trade and Industry to transfer funds to the Department of the Environment to offset those new burdens.
15.Since then, further discussions have taken place between LACOTS, the Institute of Trading Standards Administration (ITSA) and officials from the Department of Trade and Industry (DTI) on the new burdens placed on local authorities as a result of the proposals. These are outlined in paragraph 44 of the explanatory memorandum as "(i) the increased powers of entry and expectation that TSOs will conduct surveillance visits on approved verifiers to ensure that they are not passing equipment which is not fit for use for trade, and (ii) the effect of the proposals upon the income of local authorities as industry begin to take up the provision to conduct their own verification." Agreement has been reached that the DTI will transfer funds to the Department of the Environment, Transport and the Regions "to offset these costs".
16.The Committee is satisfied that the proposal would remove or reduce a burden on industry.
17.The Committee notes that the amounts being recommended for transfer are likely to offset the additional cost burden on local authorities only in part. There is a further concern that, unless the money is "ring-fenced" in some way, there is no guarantee that it will in fact be used for the intended purpose. We consider that the DTI should continue discussions with LACOTS and ITSA on this issue, and that the outcome of these discussions should be reflected in the explanatory memorandum on the stage 2 draft order.
18.As outlined in paragraphs 8-11 above, the proposal has already been amended to take account of the concerns we expressed in our 1996 report about the maintenance of necessary protection. No universal system of verification of weights and measures can be guaranteed to be perfect - including the system which operates in the United Kingdom at present. With the protections incorporated in the proposal, notably the requirement for approval of self-verifiers and the creation of an offence of strict liability for inaccuracy, there are clear incentives for self-verifiers to demonstrate an appropriate level of accuracy and honesty. We therefore think that necessary protection for consumers is available under the present proposal.
19.There is, however, one further matter which we consider relevant to this issue. In response to the 1998 consultation exercise Edinburgh City Council and the London Borough of Croydon were concerned that under the proposal self-verifiers would use the same stamp (St. Edmund's crown) as inspectors, and LACOTS pointed out that this would be likely to indicate that the verification was on behalf of the Government. We invite the Minister to give further consideration to this point.
Conformity with European Union law
20.A point arose in evidence received this session by the House of Commons Committee. The European Commission's services take the view that the proposed order is notifiable under Directive 83/189/EEC. That Directive is intended to help avoid the creation of new technical barriers to trade within the European 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 the regulation, in order to allow other Member States and the Commission an opportunity to influence the outcome. The Department of Trade and Industry takes the view that the present proposal is not notifiable, on the grounds that it does not contain technical specifications for the purposes of the Directive.
21.The Committee understands that, prior to the laying of the second stage Order, the Government will try to reach agreement with the European Commission on this point. We recommend that this matter should be covered in some detail in the explanatory memorandum.
22.We have already recommended that further discussion should take place between the Department and the European Commission about the matters referred to in paragraph 21 of this report, and that further consideration should also be given to the concerns outlined in paragraph 19 of this report about the use of the St. Edmund's crown stamp by self-verifiers. Subject to the resolution of these two concerns, the Committee is satisfied that the proposal for the Draft Deregulation (Weights and Measures) Order 1998 meets the requirements of the Deregulation and Contracting Out Act 1994 and is appropriate to be made under it, without amendment.
1. 1998 consultation document, paragraph 5.Back
2. HL Paper 4, session 1996-97.Back
3. SI 1995/1907. These regulations implemented in the United Kingdom the European Community's own self-verification scheme, and replaced the Non-automatic Weighing Instruments (EEC Requirements) Regulations 1993, SI 1992/1579.Back
4. February 1998 consultation paper, Annex A, paragraph 25.Back
5. The Department has examined this possibility and the Minister now considers that the inspector's powers to suspend an approval should be provided in such terms as to allow the inspector some discretion so that it can be exercised according to the circumstances of each case. The Minister correctly believes that this meets the Committee's earlier concerns (February 1998 consultation paper, paragraphs 26-27).Back
6. February 1998 consultation paper, Annex A, paragraph 30.Back
7. Section 94(1).Back
8. February 1998 consultation paper, Annex A, paragraph 31.Back
9. February 1998 consultation paper, Annex A, paragraph 31.Back
10. Trading Standards Officers.Back
11. Paragraph 92 of the 1998 explanatory memorandum. Under the proposal self-verifiers would not need to be based in theUnited Kingdom.Back
12. This report is also published on the Internet at the House of Lords Select Committees Home Page (http://www.parliament.uk), where further information about the work of the Committee is also available.Back