Committee for Enterprise,
Trade and Investment
Wednesday 6 February 2002
MINUTES OF EVIDENCE
Biocidal Products Regulations
Mr P Doherty (Chairperson)
Mr M Bohill Department of Enterprise, Trade and Investment
Mr D Barr Health and Safety Executive for Northern Ireland
You are welcome, and I am glad that you can appear before the Committee.
Thank you for your introductions. I will introduce my team, make a statement, and we will answer any questions afterwards. I am head of the business and consumer regulation division of the Department of Enterprise, Trade and Investment. I am responsible for drafting health and safety at work regulations, including the biocidal products regulations that are being considered today. To assist the Committee, Denis Barr of the Health and Safety Executive (HSE NI), who is also responsible for drafting health and safety regulations, is here.
Statutory Rule 2001 No 422 is required to implement a European Directive on the placing of biocidal products in the market. In his fourth report, the Examiner of Statutory Rules brought the attention of the Assembly, the Department and the Committee for Enterprise, Trade and Investment to these regulations. In making his report, he drew heavily on the report of the Joint Committee on Statutory Instruments at Westminster, which had reviewed the corresponding GB regulations and criticised, in particular, Regulation 8 (5) and Regulation 25 (6) as defective.
However, in his report the Examiner acknowledged that the defect identified by the joint Committee at Westminster in 25 (6) was not reflected in the Northern Ireland regulations. That meant that he drew particular attention to Regulation 8 (5). His recommendation was that the Department should give it further consideration in consultation with the GB Department.
His report set out his grounds for that recommendation, which were that the regulations create an offence under Regulation 8 (5) that has the effect of transferring the burden of proof that compliance with the regulation has been achieved to the user of biocidal products rather than leaving it, as conventionally happens, with the prosecution.
After taking account of the joint Committee's report, our regulations were drafted in close consultation with our legal advisors and legal advisors and colleagues in the Department of Transport, Local Government and the Regions in GB. During that drafting, the joint Committee was aware that the GB Department was not minded to accept its views. Because we were satisfied that that Department's original draft of the regulation would achieve the proper implementation of the Directive, we adopted the same draft to ensure a consistent approach to the European legislation.
In the light of the Examiner's concerns, I am happy to tell the Committee that, first, the Department agrees to the Examiner's recommendation that it further consider the regulation in consultation with the GB Department. Secondly, the Department intends to set out in paragraph 8(5) the substance of the offence - in other words, the improper application of products will be made an offence. Thirdly, the Department does not intend the onus to be on the defendant to prove the application of the product in accordance with the regulations as a defence to the charge. Fourthly, the Department accepts that if an individual is prosecuted for improper use, the onus will rest with the HSE NI to prove all the elements of improper use. Fifthly, the Department is happy to remove any apparent ambiguity in or potential misunderstanding of the regulation by rephrasing the terms of the offence. Finally, the Department proposes, subject to the Minister's agreement, to amend Regulation 8(5) when further amending regulations are made later this year.
We had serious concerns about this, but you have responded to all our questions already. The problems in respect of Regulation 8(5) must be resolved to set everybody's mind at ease.
We are happy to remove any apparent ambiguity in the regulation.
The Committee Clerk:
Will the redrafted Regulation 8(5) come to the Committee for consideration?
It will come before the Committee after we have made further amending regulations. It is likely that that will happen between April and June this year.
You are the first witnesses to have answered all members' questions before they asked them. You have left us speechless.
That is a way of getting your retaliation in first.
You zoned in on the Committee's precise areas of concerns. In a sense, you floored us, and that is an achievement. You dealt with the matter in a focused and clear way. The evidence session has comprised the quickest exchange of views that the Committee has ever had. Thank you.