Draft Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019

Hannah Bardell Excerpts

Tuesday 12th March 2019 General Committees

[Kelly Tolhurst]

I thank the hon. Lady for that intervention, and I can answer her questions. We consulted with more than 6,000 business, which are quite important in this legislation as they have to understand and implement it, and are ultimately responsible for placing safe products in the marketplace. It was therefore vital that we could confirm that with stakeholders. I can reassure the hon. Lady that organisations such as Which? were invited to our reading rooms and fed into the process, and that consumer groups were given the same amount of access to the draft SI.

I appreciate that there are concerns about the impact of such a significant instrument on business. Despite being de minimis, we have completed and published a full impact assessment given the importance of this SI and in the interests of transparency. During development of it, we have been mindful of the impact on business of the changes to processes as a result of the UK’s exit from the EU. Where possible, we have made specific arrangements, including an 18-month transitional period for importers regarding labelling and a 90-day transition period for notifying a new UK database of cosmetic ingredients. Businesses have welcomed that.

Having touched on process, I move on to addressing some more detailed points about the substance of the regulations, given the issues that cut across many of the individual schedules. The regulations provide for continued recognition of goods assessed against EU regulatory requirements, including continued acceptance of products lawfully carrying the CE marking and of product certifications carried out by EU recognised bodies. This means that products that meet EU requirements in these areas can still be placed on the UK market after exit. In the event the UK leaves the EU without a deal, this is intended to be for a time-limited period and will help minimise disruption to the public and business in the event of no deal. At the same time, the regulations establish an equivalent UK framework to ensure that the legislation functions domestically once we leave.

I will now turn in more detail towards some of the further elements of the framework, including the new UKCA marking and the establishment of UK approved bodies.

[Hannah Bardell (Livingston) (SNP)]

On the point about CE marking, I knocked a door in my local area at the weekend, in Livingston, and was met with a chap who worked for a mechanical engineering company. He was particularly concerned about this and asked how, despite the fact that the UK may want to have its own regulations, we will keep up with the EU and what impact that will have on businesses. Can the Minister tell us about what impact assessment she has done on that?

[Kelly Tolhurst]

I thank the hon. Lady for her intervention, particularly regarding CE marks, which I shall go on to discuss. I want to reassure her that part of developing this UK framework and having it all in the one place is to ensure that, in a no-deal scenario, we can improve and keep in step with any improvements in regulations. In fact, when scientific evidence suggests that we can make a change, powers that previously referred to the European Commission are given to the Secretary of State. In some respects, the SI gives us more flexibility to make those changes.

From my past knowledge, I can tell the Committee that we were part of the formulation of some of the regulations, particularly as regards some the areas covered and some of the technical and particular product requirements, when they were considered by the European Union. I am therefore confident that, with our focus on product safety and the development of requirements, that we in the UK will continue to operate as we always have done in this area.

The UKCA marking will cover most goods subjected to CE marking. Whereas the CE marking indicates compliance with EU rules, the UKCA marking will indicate compliance with UK rules. Products lawfully made and assessed against EU regulatory requirements, including those with CE markings affixed, will continue to be accepted on the UK market. The vast majority of businesses will therefore be able to continue applying the CE marking as they do now, and they will not need to use the new UKCA marking.

It is legally necessary to create the new UK marking as part of a domestic legal framework so that products can still be assessed by UK-based conformity assessment bodies, which will no longer be recognised as meeting the requirements of the EU legislation in a no-deal scenario, meaning that manufacturers using them will no longer be able to affix a CE marking to products.

There is a requirement that some of the products covered by the legislation should be assessed by third-party organisations, called conformity assessment bodies, before the product can be placed on the market. For most of the products within the scope of this legislation, the conformity assessment bodies are usually called “a notified body”, and they play a valuable role in ensuring products available to businesses and the public are safe, and are produced according to a legal framework.

The EU has made it clear that in the event of a no-deal exit, it would no longer recognise work carried out by UK-notified bodies to assess products for sale on the EU27 market. That is why we are putting in place a UK framework that will allow UK bodies to continue to assess products. This benefits not only the bodies themselves but also their customers, who might not be seeking to export to the EU and would prefer to continue to have their products assessed by a body established in the UK. Therefore, for areas within the scope of the legislation, UK-based notified bodies will automatically be given new status as UK-approved bodies. Products successfully assessed by these bodies will then be marked with the UKCA marking before being placed on the UK market.

A further common element of the product legislation covered by this SI is the use of authorised representatives, commonly known as ARs. These are natural or legal persons established in the European economic area who can be appointed by a manufacturer of a product to carry out certain tasks on their behalf. The regulations provide for the ongoing recognition of existing ARs in the EEA, however any new AR appointed after exit day will need to be based in the UK.

For cosmetic products, a different approach is being taken because of the risk they pose to human health. Responsible persons playing a key role in ensuring the safety of cosmetic products on the market will be required to be based in the UK rather than the EEA from the point of exit.

To conclude, the regulations establish a domestic product safety framework in the event that the UK leaves the EU without a deal. They are making only the changes to the framework that are needed to ensure the UK’s product safety and metrology system functions effectively and to the same high standard after exit; otherwise they maintain and secure the current system in domestic legislation. As hon. Members will recognise, it is essential that the UK has a functioning product safety framework in place in the event of a no-deal to prevent a flood of unsafe and non-compliant products into the UK market. I urge the Committee to approve the regulations.

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[Maria Eagle]

It is a pleasure to serve under your chairmanship, Mr Gray. I thank both Front Benchers for the way in which they set out the points they made, and the SNP spokesman for his contribution.

I am deeply concerned about this SI. Apart from the fact that it is as thick as a brick and weighs probably more than that, I find it difficult to conceive that anybody who might be affected by it could understand the meaning of it by reading it. It simply is not possible.

Let me give the Minister an example of what I mean: if we turn to schedule 26, which is on page 318 and is something I have picked out at random, it sets out the amendments to the Non-automatic Weighing Instruments Regulations 2016. The schedule goes on to set out what the amendments to those regulations are, but needless to say, the regulations that are being amended are in a different document that, by the way, is not in the room. If I wanted to assure myself that the measures in the SI were doing what they purported to do, it would be difficult for me to do so, because I do not even have the document that is being amended present in the Committee Room.

I know we now have the wonders of the internet, but when I was a Minister it was the practice always to have present in the Committee Room all those documents—primary legislation and statutory instruments—that were being amended, so that if somebody sitting in the Committee wished to consider whether a particular clause was doing what the Minister, in all good faith, said it was doing, they could check that. It is impossible today for us to do that.

It is impossible—and it will be impossible should this instrument pass—for anybody picking it up and reading it to understand, without having a whole library of legislation, what on earth the provisions are doing and whether what they purport to do is what they do do, or whether, because the civil service is so hard-pressed these days from having to produce these documents, there has been some technical error in the drafting. That is a problem that I have referred to in other SI Committees. Not having the documents that are being amended in the room is a problem.

I turn now to the fact that this is the Tyrannosaurus rex of SIs, or the Giganotosaurus—one of those enormous dinosaurs that got really, really large—and the impact assessment tells me in annex A that 38 pieces of legislation are subject to amendment by this SI. Some of them are extremely important bits of legislation in terms of public and consumer safety. They are also extremely varied, from the General Product Safety Regulations 2005 through to specific regulations such as those on toy safety, the making available on the market and supervision of transfers of explosives, aerosol dispensers, gas appliances, cosmetics and cosmetic products, intoxicating liquor, consumer protection more generally, weights and measures, and all kinds of things. I could read out all 38 pieces of legislation, but that would detain the Committee for too long. However, that is an illustration of the problem.

[Hannah Bardell]

The hon. Lady is making a powerful and appropriate point. Those 38 measures include ones on offshore installations: the Offshore Installations (Safety Case) Regulations 2005 and the Offshore Installations (Offshore Safety Directive) (Safety Case etc.) Regulations 2015. What business do those have being in a document with cosmetics? That is not to diminish the importance of regulations about cosmetics, but those on offshore installations are vital and should have had specific time dedicated to them. Is not the reality that we are in such a rush and a dash to do something that might never even need to be used that such things are being rushed through without proper scrutiny?

[Maria Eagle]

I cannot but agree with the hon. Lady. The scope and range of the legislation subject to amendment by this one SI are extensive and startling. Many of those pieces of legislation do not have obvious connections to others being amended by the same instrument.

I must agree with my hon. Friend the Member for Sheffield, Brightside and Hillsborough about the assessment of the costs of implementation. I bear in mind the fact that the Minister has said, in total good faith I am sure, that the aim of the draft regulations is to keep things as they are in the envisaged circumstances of no deal. I do not suggest for a minute that there is any bad faith in any of this, but it is impossible for us to consider properly whether what the Minister seeks to ensure happens will actually happen. The extent and size of the regulations, and the way in which the legislation is written, with the powers that Ministers have given themselves to change legislation, is impossible to scrutinise properly.

In answer to my intervention, the Minister told us about stakeholder reading rooms and the 6,000 businesses involved. That sounds like a lot until one turns to page 21 of the impact assessment: the number of manufacturing industries covered by specific product safety regulations amounts to 24,255. Just over the page, in table A1.2, we see that other manufacturing industries producing consumer products amount to 38,614. The wholesale industries affected consist of some thousands more and the retail industries affected consist of very many thousands more businesses.

I also note that paragraph 87, on page 17 of the impact assessment, states:

“Based on data from the ONS…around 95% of manufacturing businesses and over 96% of distributors in the industries affected by the SI are small or micro businesses.”

Those are exactly the kinds of businesses that simply do not have the time or capacity—if they are to stay in business—to buy this statutory instrument; to look in it to cross-reference it to the EU directives, other statutory instruments and primary legislation that it amends; to understand and interpret the legal language, of which there is a lot; and therefore to understand what their obligations are.

I, too, will vote against the draft regulations because they are too large a piece of legislation, with too wide a scope to enable those of us scrutinising it in Committee the appropriate opportunity to do so properly. Not only that, but even after the SI passes, it will be almost impossible for anybody who is bound by an element of it to pick it up and understand what on earth it is that they are bound by.

The Minister says that the SI is not intended to make any changes, but changes may have been made, even inadvertently, through the language it uses. We have been unable to check that; I certainly could not check that in Committee today, in respect of even one of the pieces of legislation it amends, never mind 38 of them. It is an exceedingly bad way of making law, it is to be deplored, and I will not be supporting it.