On 27 November 2020, the House of Lords is due to debate the draft Product Safety and Metrology etc. (Amendment etc.) (UK (NI) Indication) (EU Exit) Regulations 2020. The instrument was laid under the draft affirmative procedure. This means it must be approved by both Houses before it can be brought into force.
The regulations make law in the area of product safety and metrology (weights and measures). The explanatory memorandum states that the aim of such law is to:
Ensure that products [are] safe, compliant and accurate to use and would not cause harm to consumers, workers and others. It also ensure[s] that products identified as unsafe or non-compliant could be removed from the market.
Until the end of the transition period, the UK operates under the EU regulatory framework. This places obligations on manufacturers, importers and authorised representatives (a person or company within the EU that has a formal contract to represent a manufacturer outside the EU). For some products, third party conformity assessment bodies, known as notified bodies, assess whether products conform to the rules. These notified bodies must be established in the EU. Once assessed, the product must show the EU’s conformity CE marking.
Under the EU (Withdrawal) Act 2018, the EU framework will be taken into UK statute when it leaves the EU. In 2018 and 2019, the Government laid a series of regulations to amend these laws. The most significant instrument was the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019. This set out how products would need to be assessed for their conformity with the UK product standards regime. Its provisions included:
- After the end of the transition period, importers must be established in the UK, unless they are already established within the European Economic Area prior to the end of the transition.
- Authorised representatives established in the EEA prior to the end of the transition period can continue to be authorised representatives for the UK market after that date.
- UK notified bodies established under the EU framework automatically become approved bodies for conformity testing in the UK.
- Once the new regime is in place, products should be marked with a new UK conformity mark, UKCA.
- Allowing for the CE marking to remain recognised for a period after Brexit that would be time limited. The length of time was not defined in the regulations.
- Correcting certain practical problems with the EU framework, such as changing references to EU institutions to UK ones.
The 2019 regulations are due to come into force at the end of the transition period, on 31 December 2020. They have already been amended several times to reflect various provisions of the EU withdrawal agreement and the Northern Ireland Protocol. For example, amending regulations have ensured that, where appropriate, EU laws continue to apply in Northern Ireland after the end of the transition period, by restricting the provisions of the new regime to Great Britain.
Figure 1: Product conformity markings: the existing EU CE mark, and the new UKCA and UK(NI) marks
The Government says that this instrument, along with the Product Safety and Metrology etc. (Amendment) (Northern Ireland) (EU Exit) Regulations 2020 (laid on the same day under the made negative procedure), makes the final changes to the 2019 regulations in preparation for the end of the transition period. It seeks to:
- Implement the Northern Ireland Protocol in the EU withdrawal agreement in respect of product standards. In particular, it provides details of a new product conformity marking, the UK(NI) mark. This will be required if the product is for sale in Northern Ireland and has been tested in a UK conformity testing centre.
- Ensure “unfettered access” for qualifying Northern Ireland products to the rest of the UK market.
- Introduce or amend certain transitional provisions.
- Correct further “deficiencies” in the EU framework, as taken into UK law.
UK(NI) conformity marking
The regulations introduce a new UK(NI) conformity marking. The Government says this will allow a product to be sold in Northern Ireland when it has been tested by an accredited body in Great Britain. The marking will be required when all the following criteria are met:
- a manufacturer wants to supply a product for the Northern Ireland market;
- the product requires third party conformity assessment under the relevant EU legislation; and
- a UK notified body is used to provide the assessment against EU standards.
Goods tested and marked in this way cannot be sold in the EU. Under the EU’s regime, testing bodies must be based in the EU, and goods must bear the CE conformity mark.
A product may bear both the UK(NI) and CE marks if it has been tested in both Great Britain and the EU. This would allow it to be sold in Northern Ireland and the rest of the EU. A Northern Ireland product bearing either the CE or UK(NI)+CE marks could also be sold throughout the UK, to ensure “unfettered access” (see next section).
Under the Northern Ireland Protocol, EU rules on product standards and testing will be the applicable regulations in Northern Ireland. The House of Lords Secondary Legislation Scrutiny Committee has noted that this gives rise to a disagreement between the UK Government and the EU on whether accredited bodies in the rest of the UK will be able to provide conformity assessments for goods sold in Northern Ireland.
The EU has stated they will not. The committee questioned the Government further on this point. The Government said that it does not agree with the EU’s view, arguing that its approach was permitted by article 7.3 of the protocol. The committee said that this “apparent difference” was “likely to be an issue on which the House will wish to press the minister for clarification”.
The regulations also provide for a sanctions regime for misuse of the UK(NI) conformity mark. The Government has said that it is working with trading standards bodies to ensure that a “robust” enforcement process is in place for the post-transition period. There is also an exact specification for the appearance of the UK(NI) mark (see figure 1 above).
Unfettered access for qualifying goods
The concept of “unfettered access” seeks to ensure that qualifying Northern Ireland goods that meet EU requirements can also be sold in the rest of the UK without further checks or controls, without regulatory discrimination and on the basis of mutual recognition of regulatory standards. The principles of unfettered access are being implemented through the UK Internal Market Bill. Further details are being introduced through a series of statutory instruments, including this one.
The definition of “qualifying goods” has been put forward in a separate statutory instrument, the draft Definition of Qualifying Northern Ireland Goods (EU Exit) Regulations 2020. In that instrument, qualifying goods are defined as those which:
- are lawfully present in Northern Ireland and are not subject to customs control (other than customs procedures arising on export); or
- have undergone processing in Northern Ireland.
This instrument has been approved by the House of Commons following a delegated legislation committee debate on 10 November 2020. It has not yet been scheduled for its House of Lords debate.
The provisions in the draft Product Safety and Metrology etc. (Amendment etc.) (UK (NI) Indication) (EU Exit) Regulations 2020 mean these qualifying goods can be sold in Great Britain as long as:
- they meet the requirements of the product legislation applicable in Northern Ireland, which, because of the protocol, would remain the EU regulations; and
- the importer to Great Britain carries out any required checks, as they would under the existing EU framework.
If these conditions are met, the products can be marketed in the UK with either the CE or CE and UK(NI) marks.
The regulations also allow any individually identifiable goods, already legally on the EEA market before the end of the transition period, to remain on the market in Great Britain. They may pass though their whole supply chain until they reach their end user.
Transitional provisions and correcting deficiencies
The draft regulations set the time period for which the CE marking will continue to be accepted in Great Britain as 12 months from the end of the transition period. They also include other transitional provisions. For example, they increase the time for which a UKCA mark can be affixed to an existing label or documentation, from 18 months to 24 months.
Deficiencies the instrument seeks to correct include amending the definition of authorised representatives to ensure that they must be based in the UK after the end of the transition period.
The regulations were laid before Parliament on 13 October 2020.
The House of Lords Secondary Legislation Scrutiny Committee considered them alongside the Product Safety and Metrology etc. (Amendment) (Northern Ireland) (EU Exit) Regulations 2020, referred to in the ‘Legislative background’ section above. In its joint report, it drew the two instruments to the attention of the House.
As described in the section on the UK(NI) conformity marking above, the committee identified a disagreement between the UK Government and the EU on whether bodies based in Great Britain could accredit goods to be sold in Northern Ireland. The committee suggested that the House might seek further clarification on this point.
The committee also raised one point specifically in relation to this instrument. This concerned the costs of implementing the regulations. In the explanatory memorandum, the Government said that its analysis found “limited/negligible additional costs to business” from the provisions. The committee obtained a copy of the assessment from the Government. It found that “between 10,000 and 17,000 UK manufacturers and up to 135,000 UK wholesalers and retailers will be impacted”. It estimated costs to businesses over a ten-year period of £25.7 million for conformity marking, £3.7 million for conformity assessment and £6.6 million for “familiarisation”. This would be a total of around £36 million. The committee stated that this meant the regulations affected a “significant” number of businesses. On this basis, it said that the assessment should have been ready and published when the instrument was laid before Parliament, to enable effective scrutiny.
The Joint Committee on Statutory Instruments has considered the regulations and raised no concerns.
The House of Commons debated the regulations in a delegated legislation committee on 16 November 2020. The Parliamentary Under Secretary of State for Business, Energy and Industrial Strategy, Paul Scully, said the regulations, together with the other statutory instruments referred to above, would ensure “the UK continues to have a fully functioning product safety and legal metrology framework in place from the end of the transition period”. He also said that it would give business clarity on that regime, and how the transition arrangements would operate.
Sam Tarry (Labour MP for Ilford South) said that the Opposition would not oppose the regulations, because they were necessary to provide a meaningful regulatory framework. He called for the Government to provide support to businesses, particularly in Northern Ireland, affected by the costs of implementing the new regime. He also proposed further work to ensure that people were aware of the UKCA marking,
The Commons formally approved the instrument on 17 November 2020.
- Peter Foster, ‘Manufacturers urge government to clarify UK’s new standards regime’, Financial Times (£), 20 July 2020
- House of Lords Library, United Kingdom Internal Market Bill: Briefing for Lords Stages, 9 October 2020
- House of Commons Northern Ireland Affairs Committee, Unfettered Access: Customs Arrangements in Northern Ireland after Brexit, 14 July 2020, HC 161 of session 2019–21; and Government Response, 14 September 2020, HC 783 of session 2019–21