On 10 November 2020, the House of Lords is scheduled to debate the draft Construction Products (Amendment etc.) (EU Exit) Regulations 2020 (the 2020 regulations).

The Government laid the instrument on 15 October 2020 under the draft affirmative procedure. This means that both Houses of Parliament must approve it before it can be brought into force.

What would the draft instrument do?

The instrument would amend the Construction Products (Amendments etc.) (EU Exit) Regulations 2019 (the 2019 regulations) so that they are applicable to Great Britain only. The 2019 regulations, as originally drafted, applied to the United Kingdom and will correct deficiencies in the following pieces of legislation when they become retained EU law:

• Regulation (EU) No. 305/2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC (the EU Construction Products Regulation) and EU tertiary legislation under that regulation; and
• The Construction Products Regulations 2013.

The 2019 regulations will remove references to the European Union when the above legislation becomes retained EU law, ensuring that the law can operate effectively after the end of the transition period (11pm on 31 December 2020).

The 2019 regulations are scheduled to come into force at the end of the transition period. The 2020 regulations would come into force immediately before the 2019 regulations.

What is retained EU law?

This European Union (Withdrawal) Act 2018 will create a new category of domestic legislation that will be known as ‘retained EU law’ after the end of the transition period. The draft explanatory memorandum describes the function of the European Union (Withdrawal) Act 2018 as follows:

The European Union (Withdrawal) Act 2018 […] will preserve EU law, as it stands at the moment the [transition] period ends, in UK law. The European Union (Withdrawal) Act 2018 creates a new body of domestic legislation from directly applicable EU law being brought into domestic legislation, as well as saving EU-derived domestic legislation which was made to implement the UK’s obligations as a member of the European Union; together this will be retained EU law.

Why does the draft instrument need to amend the 2019 regulations?

In January 2020, the EU and the UK ratified the Ireland/Northern Ireland Protocol. The Protocol forms part of the Withdrawal Agreement and requires certain provisions of EU law to continue to apply to Northern Ireland after the end of the transition period. This includes provisions in EU law relating to construction products, namely the EU Construction Products Regulation.

The 2020 regulations would amend the 2019 regulations so that they are applicable to Great Britain only, ensuring that the EU Construction Products Regulation continues to apply in Northern Ireland.

The 2020 regulations would also provide Northern Ireland with an enforcement regime for construction products that is based on EU law. The power to enforce the EU Construction Products Regulation in the UK is currently provided for in domestic legislation, namely the Construction Products Regulations 2013. The responsibility of enforcement rests with Trading Standards in England, Wales and Scotland, and district councils in Northern Ireland. The 2020 regulations would provide an enforcement regime for Northern Ireland that is instead based on the EU Construction Products Regulation. This would enable the existing enforcement regime to continue largely unchanged, whilst ensuring that the Ireland/Northern Ireland Protocol is implemented.

What is the purpose of the EU Construction Products Regulation?

The draft explanatory memorandum describes the function of the EU Construction Products Regulation as:

[…] lay[ing] down harmonised rules for the marketing of construction products in the EU. The regulation provides a common technical language to assess the performance of construction products. It ensures that reliable information is available to professionals, public authorities, and consumers, so they can compare the performance of products from different manufacturers in different countries.

For instance, where a harmonised standard exists for a certain product in the EU, the EU Construction Products Regulation requires the product to be affixed with a ‘CE’ mark. This mark demonstrates that the product meets relevant EU standards and is compliant with EU legislation, amongst other things. Products that are required to have a CE marking can include certain electrical equipment, toys and medical devices.

The EU Construction Products Regulation will automatically become part of domestic law after the transition period as a result of the European Union (Withdrawal) Act 2018. The 2020 regulations will ensure that Northern Ireland continues to apply the EU law, namely the EU Construction Products Regulation, after 31 December 2020.

What parliamentary scrutiny has taken place?

The House of Lords Secondary Legislation Scrutiny Committee did not draw the 2020 regulations to the special attention of the House. At the time of writing, the Joint Committee on Statutory Instruments had not considered the 2020 regulations.

No date has been set yet for consideration by the House of Commons.

Cover image by Michael Browning on Unsplash.