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                     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


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        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


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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.


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        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


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        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


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        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.




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           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


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        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


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        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


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        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



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           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


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        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.



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        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




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           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


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        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:




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            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.




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