Competence and regulation

Today I had a most helpful phone call with a kind lady from the Health and Safety Executive (HSE), and it has illuminated the area of the competence world, related to regulation, that I was very unclear about, so I thought I would try to share my increased understanding.

The EU often comes up with directives intended for the good of European citizens in general. In this case, as an example we are looking at Directive 2009/128/EC of 2009-10-21 “establishing a framework for Community action to achieve the sustainable use of pesticides”. Good that this one looks uncontroversial in principle – we don’t want people to use pesticides in an unregulated way, potentially polluting common air, water or ground (potentially without our even being aware of it), so I guess most people would support the principle of regulation here.

If you work your way down to Article 5 of this directive, you see:

Article 5
Training
1. Member States shall ensure that all professional users, distributors and advisors have access to appropriate training by bodies designated by the competent authorities. This shall consist of both initial and additional training to acquire and update knowledge as appropriate.

The training shall be designed to ensure that such users, distributors and advisors acquire sufficient knowledge regarding the subjects listed in Annex I, taking account of their different roles and responsibilities.

2. By 14 December 2013, Member States shall establish certification systems and designate the competent authorities responsible for their implementation. These certificates shall, as a minimum, provide evidence of sufficient knowledge of the subjects listed in Annex I acquired by professional users, distributors and advisors either by undergoing training or by other means.

(I will say nothing at all about what “competent” means as in “competent authority”. Maybe it is quite different.)

It goes on. So what is this Annex I? That is really significant for the purposes of knowledge, skill and competence. It’s worth perhaps repeating this in full, just to get the full flavour of one example of the language and way these things are set out.

Training subjects referred to in Article 5

All relevant legislation regarding pesticides and their use.

The existence and risks of illegal (counterfeit) plant protection products, and the methods to identify such products.

The hazards and risks associated with pesticides, and how to identify and control them, in particular:

risks to humans (operators, residents, bystanders, people entering treated areas and those handling or eating treated items) and how factors such as smoking exacerbate these risks;

symptoms of pesticide poisoning and first aid measures;

risks to non-target plants, beneficial insects, wildlife, biodiversity and the environment in general.

Notions on integrated pest management strategies and techniques, integrated crop management strategies and techniques, organic farming principles, biological pest control methods, information on the general principles and crop or sector-specific guidelines for integrated pest management.

Initiation to comparative assessment at user level to help professional users make the most appropriate choices on pesticides with the least side effects on human health, non-target organisms and the environment among all authorised products for a given pest problem, in a given situation.

Measures to minimise risks to humans, non-target organisms and the environment: safe working practices for storing, handling and mixing pesticides, and disposing of empty packaging, other contaminated materials and surplus pesticides (including tank mixes), whether in concentrate or dilute form; recommended way to control operator exposure (personal protection equipment).

Risk-based approaches which take into account the local water extraction variables such as climate, soil and crop types, and relieves.

Procedures for preparing pesticide application equipment for work, including its calibration, and for its operation with minimum risks to the user, other humans, non-target animal and plant species, biodiversity and the environment, including water resources.

Use of pesticide application equipment and its maintenance, and specific spraying techniques (e.g. low-volume spraying and low-drift nozzles), as well as the objectives of the technical check of sprayers in use and ways to improve spray quality. Specific risks linked to use of handheld pesticide application equipment or knapsack sprayers and the relevant risk management measures.

Emergency action to protect human health, the environment including water resources in case of accidental spillage and contamination and extreme weather events that would result in pesticide leaching risks.

Special care in protection areas established under Articles 6 and 7 of Directive 2000/60/EC.

Health monitoring and access facilities to report on any incidents or suspected incidents.

Record keeping of any use of pesticides, in accordance with the relevant legislation.

What we have here is a kind of syllabus, but in some ways quite a vague syllabus. It does not make it expressly clear what people have to be able to do as a result of training with this syllabus, as is now good practice for many learning outcomes, particularly vocational ones. So it falls to the Member States to interpret that, with the result that different Member States may do things differently, the resultant competences may not be the same, and there may well be considerable differences across Europe in how safe people actually are from the dangers the regulation was brought in to counter.

So the European directive works its way down through the system to national governments, and out comes something like The Plant Protection Products (Basic Conditions) Regulations 1997. In this case, though the area is similar, this UK legislation was obviously created long before the above European directive. Here we read:

1. It shall be the duty of all employers to ensure that persons in their employment who may be required during the course of their employment to use prescribed plant protection products are provided with such instruction, training and guidance as is necessary to enable those persons to comply with any requirements provided in and under these Regulations and the Plant Protection Products Regulations.

and later

3. No person in the course of a business or employment shall use a prescribed plant protection product, or give an instruction to others on the use of a prescribed plant protection product, unless that person—
(a) has received adequate instruction, training and guidance in the safe, efficient and humane use of prescribed plant protection products, and
(b) is competent for the duties which that person is called upon to perform.

and yet later

7.—(1) No person in the course of a commercial service shall use a prescribed plant protection product approved for agricultural use unless that person—
(a) has obtained a certificate of competence recognised by the Ministers; or
(b) uses that plant protection product under the direct and personal supervision of a person who holds such a certificate; or […]

The UK Regulations do not themselves define in detail what counts as “adequate instruction, training and guidance”, nor indeed “competent” and “competence”. This is where the HSE comes in, by approving as “adequate” the proposals of awarding bodies aimed at the certification of this training etc.

Do we get the general idea here? I hope so. But wait a minute …

One cannot help remarking on the differences between the language of the EU regulation and the language recommended, say, in the Europass Certificate Supplement, where it is clear that each skill or competence item should start with an action verb. Is it therefore a case of lack of effective communication between DGs? It looks likely, but I have no evidence.

Nor do I have an opinion about the merits of leaving definitions open (perhaps deliberately so) to give room for courts to establish case law and precedent.

But it would seem to me a good idea, when formulating this kind of regulation, at the same time to put together a well-structured framework of knowledge, skill and competence to define the required abilities of the people concerned. Not defining them clearly just means that the cost of defining them is multiplied through being borne by every Member State, resulting not only in divergence but in considerable administrative work that one could say was unnecessary. Multiply this across all the relevant European regulations. OK, admitted, I have little knowledge of the workings of such bureaucracy. Maybe there is a reason, but at present I am an unsatisfied citizen.

And this is one area where InLOC outputs could potentially play a role. It would be principally at a European level, though national governments could do something similar for any national regulations. Some central European body could define the required knowledge and ability, for each European regulation across all areas of public life, according to clear and sensible standard approaches that relate directly to learning outcomes, competence, training and assessment. The requirements could be published in InLOC format in all relevant languages. (That’s what InLOC is set up to facilitate). How to train and assess would still be up to training, assessment and awarding bodies, and there would still have to be structures and practices (probably with considerable national variation) within which this is controlled, and operating licences managed. But at least several stages would be removed from the process, which could be much quicker. The Commission could be seen to be more in touch with the grass roots. Procedures would look more transparent and fairer. Maybe, even, European regulations would be held in higher repute. That would be a nice outcome.

Thanks for your insights here, Alan. Let’s see if we can find real points of agreement …

I agree that we may find, on further investigation, that the differences between professional structures, processes and products in different countries lead to the creation of variant “certification systems” (Article 5, point 2) where we cannot expect certification to carry seamlessly across between different countries of the EU.

IMHO this would be a pity, though perhaps not a disaster.

Accepting that, the effect of Directive 2009/128 would in practice be, not the full European mobility of workers in the pesticides area, but instead a national patchwork of regulations where there would be no more than the hope that some if not most of the competence would transfer — that workers in this area would have to be recertified in different countries, but that recertification would be not too onerous, because there would be some general understanding of a common core “curriculum” (defined by Annex 1.) I expect we can agree on this as an effect, even if we don’t agree on how inevitable or desirable this would be.

Probably it is no more than my personal opinion that I would expect a higher aspiration from those drafting the directives. If we are to have proper labour mobility, and a properly free labour market, it is necessary to have more harmonisation of regulations. But is Europe currently backing away from this kind of harmonisation?

I sense ambivalence in the wording of the Directive. The use of the words “appropriate” and “sufficient” in Article 5 point 1, unqualified, to me gives some impression that there is expected to be agreement on what is appropriate, and what is sufficient. On the other hand, point 2 of Article 5 uses the phrase “as a minimum”, suggesting that member states are free to impose extra conditions on certification, beyond the minimum “sufficient knowledge of the subjects listed in Annex I”. If that is correct inference, then those drafting the Directive must accept that some countries will have stricter standards of regulation than others.

Still, would it not surely be useful if at least the common core could be defined in a way that is understood commonly across Europe? Then it would be clear what is the core, and what is each members state’s additional requirements, and training providers could provide courses that explicitly did, or did not, include the extra requirements of given states.

One of the issues here is that, without even this assurance, effectively the training market will be fully segmented. A training course in one country cannot expect or pretend to being certified in another. Is that what we all really want? It would not satisfy me personally. If I were in a regulated occupation, I would want to be able to work across Europe with the minimal additional training, not to have to start from scratch in each country I worked in.

Where I start to shake my head is that, if the common minimum is not more clearly defined, why bother with a directive in this area at all? Why not simply let member states do whatever they want, to suit their own traditions and established practices? With this Directive, have we as European citizens actually gained anything of more value than the appearance of some commonality?

What I really object to is authorities doing things (like making laws) that result in substantial extra burdens on people, without proportionate common good resulting. Is that not just the kind of action that occasionally brings European bureaucracy into disrepute?

(I wonder if we would agree on that… )

So the burden of the original post is that in my opinion it is worth trying to define the common core in a way that is more universal and transferable across countries. If it really cannot be transferred, leave it out of the regulation! (a principle that applies well to interoperability standards…)

2 thoughts on “Competence and regulation”

Alan Paull says:

April 2, 2012 at 14:48

Very interesting, Simon.

“But it would seem to me a good idea, when formulating this kind of regulation, at the same time to put together a well-structured framework of knowledge, skill and competence to define the required abilities of the people concerned.”

I suspect that this may be the nub of the problem. Bearing in mind that the regulations are at a higher level than individual competencies and are parameters for each EU member state’s systems for regulating sustainable use of pesticides (but not an individual’s competence in the sustainable use of pesticides), the formulation of a framework as you suggest depends on how these systems are designed in each member state. There may be very different professional structures, usage processes and definitely different products (in response to very different pests) across member states, such that defining the roles (and therefore the required competencies) of “the people concerned” across different member state systems may be problematic. There will also be cultural, scientific, organisational and societal differences that impact directly on the meaning of such words as “appropriate”, “sufficient” and “safe”.

I’m not an expert in the pesticides area, but I do have friends who work as professionals in the EU regulatory side of pesticides after several years similarly engaged in the UK. They experienced significant ‘culture shock’ moving from UK to EU level, particularly because of these very different perspectives on the similar problems, including very different regulatory and professional frameworks across Europe (for example the differing weighting between academic and commercial operations and perceptions in that area across member states, such that in one state a particular skill might be considered a professional competence, whereas in another it wouldn’t be).

Alan

Simon Grant says:

April 10, 2012 at 14:38

Thanks for your insights here, Alan. Let’s see if we can find real points of agreement …

I agree that we may find, on further investigation, that the differences between professional structures, processes and products in different countries lead to the creation of variant “certification systems” (Article 5, point 2) where we cannot expect certification to carry seamlessly across between different countries of the EU.

IMHO this would be a pity, though perhaps not a disaster.

Accepting that, the effect of Directive 2009/128 would in practice be, not the full European mobility of workers in the pesticides area, but instead a national patchwork of regulations where there would be no more than the hope that some if not most of the competence would transfer — that workers in this area would have to be recertified in different countries, but that recertification would be not too onerous, because there would be some general understanding of a common core “curriculum” (defined by Annex 1.) I expect we can agree on this as an effect, even if we don’t agree on how inevitable or desirable this would be.

Probably it is no more than my personal opinion that I would expect a higher aspiration from those drafting the directives. If we are to have proper labour mobility, and a properly free labour market, it is necessary to have more harmonisation of regulations. But is Europe currently backing away from this kind of harmonisation?

I sense ambivalence in the wording of the Directive. The use of the words “appropriate” and “sufficient” in Article 5 point 1, unqualified, to me gives some impression that there is expected to be agreement on what is appropriate, and what is sufficient. On the other hand, point 2 of Article 5 uses the phrase “as a minimum”, suggesting that member states are free to impose extra conditions on certification, beyond the minimum “sufficient knowledge of the subjects listed in Annex I”. If that is correct inference, then those drafting the Directive must accept that some countries will have stricter standards of regulation than others.

Still, would it not surely be useful if at least the common core could be defined in a way that is understood commonly across Europe? Then it would be clear what is the core, and what is each members state’s additional requirements, and training providers could provide courses that explicitly did, or did not, include the extra requirements of given states.

One of the issues here is that, without even this assurance, effectively the training market will be fully segmented. A training course in one country cannot expect or pretend to being certified in another. Is that what we all really want? It would not satisfy me personally. If I were in a regulated occupation, I would want to be able to work across Europe with the minimal additional training, not to have to start from scratch in each country I worked in.

Where I start to shake my head is that, if the common minimum is not more clearly defined, why bother with a directive in this area at all? Why not simply let member states do whatever they want, to suit their own traditions and established practices? With this Directive, have we as European citizens actually gained anything of more value than the appearance of some commonality?

What I really object to is authorities doing things (like making laws) that result in substantial extra burdens on people, without proportionate common good resulting. Is that not just the kind of action that occasionally brings European bureaucracy into disrepute?

(I wonder if we would agree on that… )

So the burden of the original post is that in my opinion it is worth trying to define the common core in a way that is more universal and transferable across countries. If it really cannot be transferred, leave it out of the regulation! (a principle that applies well to interoperability standards…)