The EU vs the HSE – another expensive regulatory farce


Click for Biocidal Products Directive

Yesterday, I heard from a local businessman about the kafkaesque nightmare that has been inflicted upon his industry by the EU – made far, far worse by our own bureaucracy.

The firm manufactures water-disinfection systems used in hospitals and other health facilities. The EU has just imposed another round of over-regulation on that particular industry. The new set of rules — the Biocidal Products Regulations – are flawed but what concerns me is the new ban on the use of copper as a biocide i.e. as an ingredient use to disinfect water from any germs it may contain.

At the moment, copper, along with silver, is a standard ingredient of disinfection systems. It is so effective that many countries are asking to opt out of this ban. Our own Health & Safety Executive approves copper for the control of Legionella and says so in its Accepted Code of Practice. It hasn’t changed its mind and it has promised the industry that it will also apply for Britain to ‘derogate’ — the official term for opting out — which we can do because copper is in “essential use”.

So far, just a standard tale of unnecessary, unstoppable, inconvenient and expensive interference from Brussels. However, watch how a British quango magnifies a drama into a disaster. Bear in mind that although the EU cocked up a regulation that would make disinfection possibly less effective, certainly more expensive and cost a fortune in replacement costs, we do have a route out — if we choose to take it.

The EU Parliament passed the regulation on 19 January 2012. An application for derogation must wait for 60 days for comments from anyone interested before it can be approved by our overlords in Brussels. So what does the HSE Exec do? Do they apply for our derogation in January, February or March? Do they work it over thoroughly for six months and apply in the summer, to make sure they get it absolutely right? Do they copper-bottom, gold-plate, belt-and-bracer their submission, put it aside, come back to it and set their best and brightest to look at it with fresh eyes in the autumn, to ensure it is the most technically excellent and flawless application for a derogation that could be conceived in the mind of man?

No. They don’t do any of those things. They don’t do it at all.

So time passed and 1 December came around. That’s an important date because it is 60 days before 1 February, when the ban comes into force. Instantly, the HSE website has begun advertising the change in the law from 1 Feb. Firms have suddenly found their orders being cancelled. Hospitals and care facilites all over the country are starting to worry about their legal and insurance position if their water-disinfection system not conforming to the new regulations. They are starting to think about spending precious money on replacing their current equipment.

Yes. The law will change on 1 Feb and everyone will be obliged to conform – for a few months. Then, once our derogation kicks in, the law will change back again and copper will no longer be banned. Health Trusts will either have wasted our money changing their kit or they will have flouted the law and opened themselves to who-knows-what legal penalties and/or court judgements. Products will be illegal for a few months, then legal again. And all because the HSE didn’t get the form in the post in time.

When will people realise that things like this are inevitable in the regulatory state? In another great victory for joined up government, European and British regulators do not agree on what one would have thought was a matter of scientific fact, indicating a basic technical incompetence somewhere. That is compounded by the administrative failure to sort out a British derogation, which will cost taxpayers and firms real money. A private firm, properly driven by profit and loss, wouldn’t bear this waste, at least not twice. But the state, motivated by rule following and serenely un-moved by financial discipline, can and does festoon the world with these inexcusable cock-ups.

I’ve cleared my diary to ask the minister responsible for the HSE some questions about this on Monday. Watch this space.

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Comments & Responses

6 Responses so far.

  1. Catherine in Athens says:

    Brilliant, Steve!
    Good luck with whichever DWP minister it is and let us know what you find out. Thank goodness we have people like you on our side.

  2. Nick Heath says:

    A fantastic example of how poor and uneccessary regulation costs businesses, for no tangible benefit to either that business or society generally. Keep up the good work!

  3. Thanks for some sense, we are directly involved in this and met the HSE in July when we were told they, the HSE would apply for derogation, thats if we wrote the application and agreed that, should we get derogation we would commit to pay for the copper application, at an estimated cost of £250k, both Tarn pure and ourselves agreed.
    So imagine our surprise, we do all the work for them and agree to pay for the application. They then sat on their asses and then undermined all our efforts by publishing on their website these legal statements.
    We have over £400k worth of orders cancelled or put on hold!
    These Govt departments issue statements with no regard to the concequenses, even when they are pointed out!
    We were with Andrew Selous on Thursday and hes offering his support, I mentioned that Tarn Pure had contacted you and he indicated that he would try to team up with you.
    Cheers

    Nick

  4. Great article!

    It’s unfathomable how this kind of thing can happen. It has untold effects on small to medium sized businesses that we should be protecting, especially in an innovative industry like this.

    Keep up the good work.

  5. Jamie says:

    It is so unfair that the government can effectively destroy an industry that has been proven to combat Legionella more effectively than other methods within the marketplace. Silver and Copper ionization tends to operate at lower costs and with less of an environmental impact than other methods sanctioned by the government (and big business – surprise, surprise).

    All that these Silver and Copper ionization companies are looking for is an even playing field. How can that exist when the government does things like this.

  6. Byron says:

    I work for a small company that is starting to make progress in the marketplace. Like Copper and Silver ionisation we are innovative and encapsulate British entrepreneurialism. We would be destroyed by this kind of action within our market and I have every sympathy for copper and silver. The government proclaims that it is behind small companies and then allows this to happen. Disgusting!