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Internet Version 1 Enforcement of Weights and Measures Introduction 1. NWML held a series of working group meetings with a range of stakeholders, including retailers, equipment manufacturers and the enforcement community, and a series of bi-laterals with a range of other organisations including the Federation of Small Businesses (FSB), Confederation of British Industry (CBI), British Retail Consortium (BRC), Office of Fair Trading (OFT), British Chambers of Commerce (BCC), the Local Better Regulation Office (LBRO). Enforcement was the issue that was most talked about in every working group meeting. A number of different issues arose in the context of enforcement and this paper sets out those issues, along with some background to the requirements and current enforcement regime. The Legal requirements 2. The Weights and Measures Act 1985 is the statutory basis for the legal metrology system in England, Scotland and Wales. In Northern Ireland the equivalent is the Weights and Measures (Northern Ireland) Order 1981. National Weights and Measures Laboratory (NWML) is responsible for the Act and as such is interested in ensuring that the Act is enforced efficiently and effectively. A range of provisions are included in the current Act which are: Controlling equipment through Type Approval – basically the approval of the design of a type of measuring equipment that will be used for trade. After type approval of the design each individual piece of equipment is verified before it can be first used for trade and then is subsequently reverified after it has been adjusted or repaired during it lifetime in use for trade. The Act covers the traceability of standards. Transactions are controlled under the Act and these provide the consumer with protection at the point of sale of a good. Delivery of enforcement 3. Responsibility for enforcement in England, Scotland and Wales, of consumer protection including weights and measures, rests with the local authorities trading standards departments (called Local Weights and Measures Authorities (LWMAs) in a metrological context). In Northern Ireland, metrological functions are carried out by the Government Department of Enterprise, Trade and Investment. 4. Trading standards departments were originally known as Weights and Measures Departments prior to the expansion of their role into broader consumer protection enforcement areas. 5. Trading standards departments are responsible for enforcing a wide range of consumer protection/fair trading legislation. As well as 1 May 2008 1/16 Reform Team Internet Version 1 applying legal metrology controls they enforce laws controlling the following: food composition and labelling; trade descriptions applied to goods and services; consumer product safety; consumer credit; animal health; goods vehicle weights; and licensing e.g. petroleum filling stations, explosives stores. 6. Each department employs professionally qualified officers, known as Trading Standards Officers (TSOs), and additional enforcement staff to enforce the law on the wide range of products and services controlled. 7. Local trading standards authorities employ some 1500 Trading Standards Officers, supported by at least that number of other enforcement officers, so 3,000 in total. A full time equivalent figure of 300 Trading Standards Officers are engaged on legal metrology inspection and verification tasks, in effect this equals 10% of the total workforce being deployed on metrological activities. In Northern Ireland some 25 Trading Standards Officers are employed by the Department of Enterprise, Trade and Investment with about 25% of that resource being employed on legal metrology functions.1 How enforcement works 8. TSOs enforce the Weights and Measures Act as part of their work to enforce the overall suite of consumer protection legislation through a mix of planned routine inspections, based on a risk assessment, and intelligence-led, complaint-driven inspection. 9. An officer will carry out enforcement activity by inspecting a business. This involves performing a comprehensive inspection examining and testing not only weighing and measuring equipment, but also inspecting other areas of consumer protection law. 10. Most departments also provide a comprehensive advice service to consumers, and businesses, including „home authority‟ 2 advice to local industry. Local departments deal with some 1 million complaints and enquiries each year3. 1 WELMEC website 2 The current ‘Home Authority Principle’ is a voluntary scheme developed by local authorities to help businesses by providing contact points for advice and guidance in order to maintain high standards of public protection, encourage fair trade and develop a consistent approach to enforcement. 3 WELMEC website 1 May 2008 2/16 Reform Team Internet Version 1 WORKING GROUP FINDINGS Perceptions of Enforcement 11. Comments to date have not revealed wide-spread, deep-seated dissatisfaction with the way in which Weights & Measures legislation is currently operated. Small businesses reported that they gained value from TSO visits and looked to them for advice and guidance to help them comply with the law. 12. Some large retailers on the other hand had more to say about the cost of inspection and tended to have the view that they would rather organise and check their own business themselves or indeed pay others to check their own compliance levels rather than relying on intervention from local Government officials. 13. There was also fairly widespread criticism at the lack of consistency and perceived lack of expertise among TSOs on metrological matters. 4 There were also concerns about the low priority given to weights and measures in comparison to other matters, which impacts on the resources allocated to weights and measures. It is clear that the current, uncoordinated approach to Local Authority enforcement for weights and measures is not as effective as it could be. Although LACORS has a co-ordinating role there are currently no minimum requirements for weights and measures enforcement and no controls or requirements for local authorities to carry out the enforcement. 14. Research by the National Consumer Council (NCC) indicated that consumers‟ main concerns are measurement of high-value goods that they cannot easily check themselves, for example petrol, and businesses that take a greater share of their weekly spend, such as supermarkets and petrol stations. Consumer confidence in weights and measures in the UK currently is very high. Consumers have an innate trust that someone, somewhere, although many are not sure who, makes sure weights and measures equipment is correct, stays correct and that they are protected from receiving short measure. Consumers‟ perceptions are that weights and measures inspections take place far more frequently than they do in reality. 5 This assumption may arise from the fact there has never been any media coverage of major problems relating to weights and measures equipment. Funding 15. Money for local authorities is provided centrally through a Rate Support Grant, and locally through Council Tax. Money is not ring-fenced for any particular purpose, which, alongside local authority autonomy means local decision making results in the priorities varying from 4 Industry and retail workshop, 17th January 2008 and Enforcement meeting, 6th December 2008 5 National Consumer Council, Measuring Up – Consumer Perceptions of Weights and measures Legislation, July 2006. 1 May 2008 3/16 Reform Team Internet Version 1 authority to authority. The ability to charge a fee for equipment verification and re-verification does provide an income stream to local authorities. 16. The TSO survey6 highlighted a downward trend in weights and measures staffing over the last five years, presumably reflecting the competing priorities local authorities face in allocating resources. Moreover, the Rogers Review7 set weights and measures as a non- priority which may have exacerbated the situation. However, Rogers did prioritise fair trading and consumer protection as high, of which weights and measures enforcement, properly focused, is arguably a key element. 17. Dwindling resource at local level for administering enforcement activity is evident. Out of more than 200 LWMAs only 70 currently hold local weights and measures standards. Whilst in itself this is not necessarily a problem, it is indicative of a prevailing opinion that weights and measures enforcement by Local Authorities is of lesser importance than some other areas, and potentially could become problematic if further reductions were not effectively managed. 18. The impact of less enforcement could be to leave businesses unchecked by inspectors. This would pose a risk to effective enforcement and could lead to increased crime through declining standards of accuracy of measurement and subsequent loss of consumer confidence. Indeed it is reported that some companies have already reduced their equipment maintenance contracts as a result of a perceived reduction in weights and measures enforcement. 8 19. Notwithstanding the above, different parts of the enforcement community held different views on the adequacy of resources. Officers on the ground were concerned about the impact of a lack of funding and dwindling expertise, resulting in reduced levels of enforcement and therefore, it was claimed, a reduction in consumer protection. Officers with strategy responsibilities recognised the funding issue in the context of prioritisation of scarce resources and therefore came at things from a slightly different angle. Their view was that more leadership and direction from central Government i.e. NWML would help them argue their case for appropriate resources for this work. Delivery at individual local authority level 20. Questions were raised about the appropriateness of delivering enforcement at the level of the individual local authority. Collaborative approaches are already in existence and pay dividends in terms of availability of expertise, consistency of approach and economies of scale. The problem is that experience shows these voluntary – and often informal – collaborations to be inherently unstable; they can 6 LACORS/NWML Survey on Weights and Measures, issued February 2008 7 Better Regulation Executive, Peter Rogers: National Enforcement Priorities for Local Authority Regulatory Services, March 2007 8 th Industry workshop, 17 January 2008 1 May 2008 4/16 Reform Team Internet Version 1 quickly fall apart if personalities or policies in participating authorities change. Inconsistency 21. Problems with the consistency of weights and measures enforcement have been identified in the Hampton report9, the Public Accounts Committee report10 and the National Audit Office report11. The Public Accounts Committee report found that there was too much variation in the level and effectiveness of local authority enforcement work. For example, the proportion of high risk premises visited by local authorities ranged from 2% to 100%. This was echoed by the National Audit Office report which highlighted the need to ensure the legislation is applied consistently and proposed the introduction of performance measures to reduce variations in performance between LWMAs. 22. Inconsistency was also the main criticism from stakeholders.12 Retailers had the most to say about this issue and expressed concern about the cost this imposes on their business. Some businesses know they will be contacted on a regular basis, some know they will not; some do not know even that they might be contacted because they have never been contacted before. One of the possible causes of this is the method of financing local authorities and local prioritisation of resources. 23. Again, leadership and direction from central Government i.e. NWML was called for. Enforcers had the view that the complexity of the legislation was such that what might appear to be inconsistency, was in fact just another element of the legislation being brought to bear on rapidly evolving situations brought about by rapidly changing technological advancements. It was also recognised that the important factor was the outcome and the effect on the end consumer. 24. We have also received feedback that inconsistencies between Home Authorities were a problem. The current „Home Authority Principle‟ is a voluntary scheme developed by local authorities to help businesses by providing a single point of contact for advice and guidance in order to maintain high standards of public protection, encourage fair trade and develop a consistent approach to enforcement. 25. The Local Better Regulation Office (LBRO), is provided for in the Regulatory Enforcement and Sanctions Bill13 (RES Bill), has been set 9 HM Treasury: Reducing administrative burdens: effective inspection and enforcement Philip Hampton, March 2006 10 House of Commons Committee of Public Accounts, Department of Trade and Industry: Regulation of weights and measures, Thirty-eighth Report of Session 2002-03, 2 July 2003, The Stationery Office 11 Department of Trade and Industry, Regulation of Weights and measures, Report by the comptroller and Auditor General HC 495 session 2002-03: 14 March 2003 12 th th Industry and retail workshop, 17 January 2008 and Enforcement meeting, 6 December 2008 13 The Regulatory Enforcement and Sanctions Bill (RES Bill) was introduced to Parliament on 8 November 2007 in the House of Lords. The Bill, together with details of its progress through 1 May 2008 5/16 Reform Team Internet Version 1 up and one of its strategic objectives is to deliver consistency through the „Primary Authority Mechanism‟. This is a new scheme which is similar to the voluntary „home authority‟ principle but is more formalised and local authorities will be able to charge the company for providing the service. Under this scheme, each Trading Standards Department will act as the main contact point for enquiries concerning products and services originating from a company with its headquarters in their area. The idea is that the company, which operates over many different areas e.g. a national supermarket, will have a single contact point within Local Government and an agreed inspection plan, instead of being subject to different approaches in different regions. If another local authority finds evidence indicating that the company is non- compliant in an area it will notify the primary authority, which will then advise on whether this is consistent with previous advice that has been given to the business. Any disputes will be resolved by LBRO. 26. As businesses will have to pay to take advantage of the new primary authority scheme there is a question as to whether the new scheme will „take off‟ as businesses now already receive a very similar service free via the existing voluntary home authority scheme which is set to continue even when the new primary authority scheme comes into effect.14 27. For issues of this nature the most practical solution would probably be faster provision of definitive guidance through LACORS or NWML, or some combination of both. 28. The RES Bill and Regulators‟ Compliance Code15 are highly relevant to enforcement. NWML will work closely with the Local Better Regulative Office to ensure that the most is made of the opportunities which the Bill in particular provides to improve the consistency and focus of weights and measures enforcement. However, it is not clear that all the issues raised in our discussions with stakeholders can be dealt with effectively by these means alone. Balance of responsibility between business and government 29. Larger retailers are keen to have more control over their processes and take a greater share of responsibility for ensuring their own compliance with weights and measures legislation. Three out of the „big four‟ supermarkets pay a third party to carry out audits of their sites at a frequency of up to every four weeks. These audits cover a range of issues from cleanliness to pricing, but the point is that it demonstrates how seriously the supermarkets are taking control of their systems and Parliament, can be found on the UK Parliament website 14 th Retail workshop, 17 January 2008 15 The Regulators' Compliance Code asks regulators to perform their duties in a business- friendly way, by planning regulation and inspections in a way that causes least disruption to the economy. The Compliance Code consultation closed in August 2007 and the Government published its response in October 2007. The Government laid the Code before Parliament during autumn 2007, and it will come into force on 6 April 2008. 1 May 2008 6/16 Reform Team Internet Version 1 processes. In one case this auditing process has resulted in third party UKAS accreditation. 30. The results of the retailer research16 confirm our working group discussions: large supermarkets carry out significant checks themselves and would like to have more control and responsibility for the compliance of their sites, on the other hand small companies do not carry out checks and welcome the advice from trading standards officers petrol retailers carry out checks for environmental reasons and again would like more flexibility in the system 31. Equipment manufacturers painted a slightly different picture. In their view, retailers were reducing the amount of maintenance contracts because they knew that enforcement was now at such a low level that their equipment would not be inspected by local authorities very often. However, we need to bear in mind that equipment reliability has improved so equipment might be staying accurate for longer in use. This may be partly due to the requirements of type approval and regulations driving up reliability. 32. The enforcement community and retailers were keen to maintain control over enforcement of this area and is keen that the „threat of inspection‟ is maintained. In particular their concern is that any business „system‟ would need to be „approved‟ or audited before it came into being. Costs to Business 33. Costs to business in this area arise as a result of firstly complying with the rules themselves and secondly having the rules enforced by local authorities. 34. In order to comply with the regulations, businesses purchasing equipment that is prescribed must pay for type approved equipment. Type approved equipment is more expensive than non-type approved. That said, the resultant piece of equipment should be more accurate and reliable than a non-prescribed instrument and may not be that much more expensive – SMEs have told us that they can pick up a NAWI shop scale for about £200. 35. Once purchased, the equipment must kept accurate – at least within legal tolerances – during its use for trade. Therefore there may be a cost attached to keeping the equipment accurate. For large multi-site supermarkets the costs would potentially be a maintenance contract or a call-out contract, so either regular servicing will be done or if a problem is discovered then an engineer will come out and fix it. Similarly for petrol pumps regular checks are carried out to ensure 16 Vanilla Research, Retailer Perceptions of weights and measures, April 2008 1 May 2008 7/16 Reform Team Internet Version 1 accuracy of equipment, although we understand this is because pumps tend to give more to the consumer as they wear with time. 36. All of these „ongoing verification‟ costs fall to the company. Some of the fees are paid to Local Authorities for their verification services. 37. Other costs traditionally associated with complying with legislation arise from administrative burdens such as form filling, but in this area these costs are negligible. (Apart from the packaged goods regulations where businesses are required to keep records of the packs that they produce. However in this context, record-keeping requirements have been generally welcomed as a cheaper and more effective way of demonstrating consistency than traditional methods of inspection.) 38. The most obvious cost to business is that of inspections and other Local Authority enforcement activity. The cost of inspections involves making a person available to accompany the inspectors. The PwC figures (from the Admin burdens exercise) estimated this cost to be £500 per inspection. Many commentators, during our working group discussions, disputed this figure as being far too high. But if nothing else it represents a perception on the part of some businesses that the inspection process can be unduly disruptive and burdensome. 39. The main enforcement cost to business in the area of weights and measures arises from difficulty in interpreting the law. For example, we heard from a large supermarket that when they changed some of the software in their tills they were given three different pieces of advice from three different local authorities. The first advised the supermarket that all of the scales attached to the till needed to be reverified at a significant cost of several £10,000s in total across their whole business. A different local authority advised that some of the scales should be sampled to ensure accuracy was not affected by the software change and another local authority advised that because the change was to the software and not the scale then it would not need to verified again. This is the sort of inconsistency that reflects badly on Government, and that large businesses find frustrating and costly. Conversely there have been many reports where advice and interpretation given by local authorities has caused substantial savings for business. 40. Small businesses on the other hand reported no such similar costs and in fact most welcomed the advice on the law provided by Local Authorities as they were largely unaware of the legal requirements. 41. In conclusion the picture on costs is not straightforward; different sectors of the market have a different view. Role of NWML 42. There have been calls for greater leadership from NWML in the area of weights and measures. Such a request must be considered, however, alongside the role of the Local Better Regulation Office (LBRO), set up to improve local authority enforcement, reducing burdens on compliant business and improving targeting of effort towards non-compliant businesses across a wide range of regulatory requirements. One of 1 May 2008 8/16 Reform Team Internet Version 1 the LBRO‟s strategic objectives is to deliver consistency through the „Primary Authority Scheme‟ as set up in the RES Bill. NWML will work closely with LBRO to ensure that the primary authority scheme works effectively for weights and measures issues. Risk Assessment 43. There are no statutory periods of inspection provided for in current legislation. LACORS has issued risk assessment guidance on the criteria that may be used by local authorities in determining inspection frequencies. This is related to the complexity of the equipment, the record of the trader, the value of goods and the environment of use. 44. Inspection tolerances are normally based on double the maximum permissible error for initial verification of an instrument that is being placed on the market for the first time. Statutory reverification is only required after repair or modification. Generally, it is an offence to use equipment which has been repaired or modified until it has been reverified. The fees for reverification are as for initial verification. 45. The Regulators‟ Compliance Code, which NWML is bound to comply with in those areas where it regulates directly, stresses that risk methodologies should be reviewed regularly and, where appropriate, improved. Through our discussions with LBRO we have agreed to work together to update the current risk-assessment methodologies that local authorities might use in the area of weights and measures. 46. Local knowledge and intelligence can point to the most likely non- compliant businesses, both individually and as a type and it is right that resources are targeted at these as a priority, but it is also right that all should be scrutinised in some form at an appropriate interval of time. For example many packers never receive an inspection visit. 17 This may be in part due to local authority risk assessments rating packers as „low risk‟ but this means that the inspection playing field does not appear to be level as retailers tend to receive regular inspections whereas packers very rarely or never. Allowing any sector to think it is very unlikely to ever be inspected may give rise to more non- compliance. IDEAS UNDER CONSIDERATION Delivery through collaboration 47. Ideally there needs to be coordination and collaboration of weights and measures enforcement. One option to tackle this issue would be to give NWML, as a regulator, powers to make authorities work together. Contractual Approach 48. A further option would be to turn the enforcement model around by placing the primary duty to enforce on the Secretary of State (i.e. 17 Weighing and software club, 28 November 2007 and enforcement meeting, 6 December 2007 1 May 2008 9/16 Reform Team Internet Version 1 NWML), who could then delegate responsibility for enforcement in particular areas or sectors to third parties (local authorities or others) as appropriate. This model would be similar in some respects to the way in which NWML enforces the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2008 on behalf of the (BERR) Secretary of State. Such an approach would enable Local Authorities and other interested parties from the private or public sectors to group together to bid for what would be in effect a contract to deliver enforcement. This would facilitate specialisation by allowing enforcement activity to be divided up on either a geographical basis or by way of market segmentation. For example, a contract could be awarded to check all petrol retailers‟ compliance and another for large retailers. Alternatively contracts could be awarded to cover different regions of the UK. Market Segmentation 49. Different instrument and market groupings could have bespoke minimum enforcement requirements devised to reflect the distinct risk ratings and perceived enforcement needs of the group including, for example, the recommended frequency of inspection. The market could be segmented into groups such as petrol/diesel, large retailers, packers, SMEs (Small & Medium Sized Enterprises), each of which could have its own bespoke enforcement criteria and strategy. The benefit of this would be that if the recommended inspection plan for one group was higher than another, the lesser group would not be unnecessarily burdened with inspections that were not needed. A single enforcement framework for all instruments and market groupings would not allow this level of flexibility. Minimum Standards 50. If NWML had the power to step in, in the event that enforcement activity was not acceptable, this implies that there would be minimum levels of delivery expected. 51. The Food Standards Agency use a system whereby authorities are audited against the Food Law Enforcement (FLE) Standard in the Framework Agreement, which sets out the structure within which enforcement policy, monitoring and audit are delivered and the minimum standards of performance expected from local authorities across the full range of their food law enforcement activities. 52. In a weights and measures context, Local Authorities could be audited against minimum legal metrology enforcement requirements, which could be set out in a Framework Agreement on Local Authority weights and measures Law Enforcement. How collaboration could work 53. Local Authorities could coordinate and collaborate through a formal structure, but remain independent. NWML would need a directing 1 May 2008 10/16 Reform Team Internet Version 1 power to ensure any directions or minimum requirements were achieved. 54. Alternatively free-standing regional structures could be set up. This may be attractive to local authorities as they may not wish to be centrally controlled at all. However, this may not be realistic as regional groupings only exist voluntarily and if the political will changes the co- operation and groupings disappear.18 55. A further structural approach would be to create a National Enforcement Service, operated through regional offices operating on the basis that enforcement was pulled to the centre (an NWML regional network). If sufficient financial resources for weights and measures enforcement could be obtained, a national service would enable effective distribution of these resources. Consistency across the board would be ensured and the playing field levelled by ensuring that the legislation is fairly and equally applied across the country and to all sectors. Expertise required for the task would be maintained. 56. A weights and measures risk evaluation and assessment could be introduced that is applied equally across the function so that local interpretations are not able to skew the results. A centre for intelligence-led enforcement would be maintained for use across the country. This would also allow for the maintenance of appropriate staffing levels and specialist knowledge necessary to perform the more technically challenging functions. 57. However, whilst there are a number of benefits of this approach it is unlikely to be attractive to many Local Authorities who would prefer to maintain complete control on how they administer their own local priorities. More importantly, it is unlikely there would be resources available to set up a free standing body to enforce only weights and measures which is arguably only a small part of the overall consumer protection regime. 58. A more realistic approach would be to have a „mix and match‟ approach combining the advantages of contracting out of enforcement activity and the introduction of a framework document with NWML having sufficient controlling powers to introduce the changes effectively. This represents the most flexible solution but would still achieve the required result. NWML would need to be given enough controlling power to make the proposed changes work. NWML Stepping in 59. Another option would be to enable NWML to „step in‟ itself to provide enforcement activities. This would mean providing concurrent powers for NWML to enforce directly if delivery was not acceptable. Moreover, NWML could charge the resulting activities back to the non delivering 18 Enforcement meeting, 13th February 2008 1 May 2008 11/16 Reform Team Internet Version 1 local authority. This would be similar to the enforcement approach taken by the Food Standards Agency (FSA). 60. The Food Standards Act 1999 gives the FSA powers to monitor and audit local authorities. The Act provides the Agency with statutory powers to strengthen its influence over enforcement activity and to ensure national priorities and objectives will be delivered. It gives the Agency powers to carry out the following duties: set standards of performance in relation to enforcement of food law; monitor the performance of enforcement authorities; require information from local authorities relating to food law enforcement and inspect any records; enter authority premises to inspect records and take samples; publish information on the performance of enforcement authorities; make reports to individual authorities, including guidance on improving performance; and require local authorities to publish these reports, and state what action they propose in response. 61. Section 6(3) of the Food Safety Act 1990 and the FSA‟s codes of practice give the FSA powers to step in if a local authority is not delivering19. If the SoS deems it necessary to step in the resulting activities can be charged back to the non delivering local authority. 62. NWML could carry out some of the required enforcement activity itself in addition to local authorities, in a similar way to how Health and Safety Executive (HSE) has enforcement functions as well as local authorities. Improving consistency 63. One solution to the issue of inconsistency is to work closely with the LBRO to ensure that the Primary Authority Principle works optimally on issue of weights and measures. Another practical solution is faster provisions of definitive or more comprehensive guidance through LACORS or NWML or some combination of both. Balance of Responsibility 64. Various options were discussed during the stakeholder meetings about how the enforcement community could take business practice into account by recognising the actions that businesses themselves are 19 Food safety Act 1990 Section 6 (2) Every food authority shall enforce and execute within their area the provisions of this Act with respect to which the duty is not imposed expressly or by necessary implication on some other authority. (3) The Ministers may direct, in relation to cases of a particular description or a particular case, that any duty imposed on food authorities by subsection (2) above shall be discharged by the Ministers or the Minister and not by those authorities. 1 May 2008 12/16 Reform Team Internet Version 1 taking. One idea is to recognise the business as „accredited‟ in some way and to build on the information and verification or auditing that the businesses undertake themselves. One of the key differences here is that verification (or third party auditing) is at the request of the business, as opposed to inspection which is under the control of the local authority and in a sense is „done to‟ the business outside their own planned work. Approved Business 65. One way of dealing with some of the enforcement issues would be to build on checking already undertaken by businesses by recognising and taking into account these activities in order to reduce government funded inspections. In effect this would transfer some of the activities over to the private sector by recognising a business as „approved‟ in some way; taking into account a quality system or other checks in order to reduce the level of risk attached to the business and therefore reducing or indeed changing the nature of enforcement activity; checks could be on the quality system rather than checking equipment. 66. For those businesses that receive regular inspections there may be an advantage for them in becoming an „Approved Business‟ which could reduce their companies risk status and mean they receive fewer inspections. There would be a shift from the company being inspected for compliance by government to the company taking responsibility and demonstrating its compliance to government. 67. This is a new concept for weights and measures enforcement relating to inspections and should not be confused with the „Approved Verifier‟ or „Approved Manufacturer‟ schemes in place for self verification under national legislation or conformity assessment under the NAWI and MID EU Directives respectively. Extending verification to businesses other than manufacturer, installer and repairer is dealt with in a separate verification reform paper. 68. Some large supermarket chains already pay a third party to check their stores so we should explore whether we can take this into consideration in enforcement practice. Benefits 69. Businesses with quality systems or other auditing or checks already in place could use this to demonstrate compliance and be removed from the planned inspection regime. The emphasis of enforcement will move away from Local Authorities (LAs) policing compliance via inspections to companies demonstrating compliance. The responsibility for compliance shifts from LAs to businesses. Issues for Consideration 70. Introducing this concept would not necessarily require any legislative changes, however the system would need full backing from LACORS, TSI and the enforcement community as a whole and businesses would 1 May 2008 13/16 Reform Team Internet Version 1 have to be able to see the benefits of approval for this system to be able to be a success. 71. Introducing this as an option for business will not necessarily level the inspections playing field as it would not capture those businesses that are currently not inspected. Those businesses who currently receive little or no inspection will not be motivated to become an „Approved Business‟. However, if the system works, LA resources would be freed up, allowing a greater focus on those businesses that are currently not being inspected. 72. If this were introduced as mandatory for all businesses, it would constitute a significant extra burden on business which would not be in line with current better regulation agenda or Hampton. 73. It was reported that there is little use made of recognised quality management systems in the retail sector so these businesses would not be able to build on these types of already existing quality systems.20 However many retailers have their own bespoke systems and checks in place21 which it could be possible to build upon. Log Book 74. Another option would be to have an accompanying logbook kept alongside equipment (or in “virtual” electronic form) showing the calibration and verification history of the equipment. This would enable enforcers to check equipment quickly and easily by looking at the records. Actual physical checking of the equipment (which can take about 25 minutes per piece of equipment) may be reduced as checking the records may be enough. However, business were concerned that this could be just adding a further layer of bureaucracy to the system and need to have reassurance that this would not just be an additional requirement. 75. It is difficult to imagine a situation where instruments are never inspected; in fact the current level of inspection is probably the minimum sustainable amount to present a robust system of control given current levels of prescription. 76. However, instruments in some premises are “inspected” by more than just government officials, they are some times “inspected” in-house or “inspected” as part of a service or maintenance contract. 77. It would reduce the burden of inspection on compliant companies if there was a greater deal of flexibility in the way they could demonstrate to Trading Standards Officers that the risk of non-compliance was significantly reduced. 78. It is proposed that the burden of demonstrating that an instrument be compliant could move from the inspectors test to the business or organisation concerned. They could opt to do nothing and the inspector 20 Retail Reform Workshop, 17th January 2008 21 Vanilla Research, Retailer Perceptions of weights and measures, April 2008 1 May 2008 14/16 Reform Team Internet Version 1 will continue to physically test the equipment but alternatively they could present evidence of compliance to the inspector thus reducing the potential risk of non-compliance and the time burden in terms of supporting the inspection. 79. A clear code of practice for instrument owners that contained a log book of installation, verification, maintenance and testing could allow them to demonstrate to the inspector that their equipment was both controlled and within appropriate tolerances. The code would provide guidance to the inspector as to appropriate actions that should be taken based on the assessment of the information supplied e.g. is it up to date, complete, relevant, non-fraudulent etc. 80. It might be thought necessary to place the option of self declaration within legislation. This could be done by placing a positive requirement on users of equipment that choose this method to demonstrate compliance to maintain evidence of compliance on the premise with the equipment. Benefits 81. This opens up the possibility of “inspections” at a distance, a company maintaining electronic instrument records could be asked to supply them to a Trading Standards Officer who could evaluate them away from the premises and make a risk based decision to reduce or terminate completely the physical inspection. Issues for Consideration 82. A high degree of trust from local authorities would be required for distance inspection of equipment. 83. The change would be from local authorities checking instrument compliance to businesses demonstrating instrument compliance. However the concept may change rather than lessen the burden. Role of NWML 84. Throughout the project there were calls for more leadership from NWML. As a result NWML aims to work closely with LBRO and would consider the development of a framework document with the enforcement community if appropriate. Conclusion 85. There is much we could do to improve enforcement to tackle inconsistency, costs and modernise the balance of responsibility between government and business. 86. As discussed above costs arise in a number of ways. There are several ways in which NWML would like to reduce costs as a result of reforming the legislation and enforcement. We would like to reduce costs by: 1 May 2008 15/16 Reform Team Internet Version 1 making the law easier, quicker and cheaper to understand by making it simpler, clearer and keeping detail that is relevant, up to date and necessary to provide clarity for business; improving the levels of consistency of enforcement by working with LBRO on the primary authority principle and by providing more definitive guidance (with LACORS) more quickly; and scaling back inspections where business carry out their own checks. 1 May 2008 16/16 Reform Team
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