Construction Products (Amendment etc.) (EU Exit) Regulations 2019

Lord Beecham Excerpts

Wednesday 13th February 2019 Grand Committee

[Lord Shipley (LD)]

My Lords, I sympathise with the view of the noble Lord, Lord Adonis, about the volume of statutory instruments that we have to consider, the lack of time to consider them and, thereby, the lack of time to do justice to them. I shall, nevertheless, comment on the statutory instrument. The noble Lord, Lord Adonis, has raised a number of crucial issues on the possibility of divergence to which we need to be alert.

As the Minister said, the statutory instrument is to come into force only if there is a no-deal outcome on 29 March. It aims to preserve the current outcomes—that is, properly licensed and tested construction products, tradeable without barriers across all 28 EU countries, as far as possible. However, the only one it can actually guarantee, it does: that any approved EU kitemarked products will continue to be recognised as compliant under UK law.

It gives the Secretary of State the power to set new UK standards for products in future, either those that are purely UK-tested or by simply adopting future EU standards. Given that up to a quarter of all components and materials used in construction are imported from the EU, it is clearly hugely in the interests of the UK industry to maintain common standards, and it is unlikely that it would ever welcome a divergence from whatever was the current EU standard. In practice, any UK manufacturer wanting a test certificate for a new product would want it to comply with the EU version of the testing and carry a kitemark, so that it was accepted across the EU and the UK thereafter, whereas there is no automatic right for our tests to be accepted across the Channel, limiting our export potential. Inevitably, the Government will have to set up a UK system, but in real life nobody will want to use it. It is therefore wrong to say that there is no impact and so no need for an impact assessment, although that is the conclusion the Government seem to have reached.

It is not that there are deficiencies in the drafting of the statutory instrument; it is yet another shocking example of the complete waste of time that all this work on no deal is producing—for the Government, for Parliament and for the industry. If, by any chance, there was no deal, the additional cost of setting up a system parallel to the EU which practically no one would ever volunteer to use is certainly not a minor matter. I hope that when he responds, the Minister will comment on that and, I hope, express his agreement with that conclusion.

I raise one further issue, which relates to the responsibility for enforcement before and after. It will lie with trading standards, mostly decimated by funding cuts. What estimate have the Government made of the increased workload for trading standards as a consequence of the introduction of the proposed new regime?

[Lord Beecham (Lab)]

My Lords, I concur with many of the points made by preceding speakers about this process and this instrument as an example of the secondary legislation on which we are having to spend so much time.

In the light of the Grenfell disaster, the subject of these regulations assumes greater importance than might otherwise have been the case. It is therefore even more unsatisfactory that no impact assessment has been published. What assurances can the Minister give that, in the absence of a deal, there will continue to be comparisons for industry and the public as to the performance and safety of products from other countries? Will the Government ensure that EU regulations are constantly kept under review and that steps will be taken to ensure that our standards keep pace with increased safety considerations applied within the EU? In the absence of an impact assessment, has there been any conclusion on the potential cost to businesses as a result of the change? The noble Lord, Lord Shipley, made that point.

What will be the process for designating standards under the new regime? Will parliamentary scrutiny of such new or amended standards take place? If so, will that happen under the “made affirmative” procedure? What form of consultation will be applied? In particular, will the British Standards Institution remain a member of the European Committee for Standardization? The Explanatory Memorandum declares:

“Existing European harmonised standards will become UK ‘designated standards’”,


and will be “identical”. Is that to be a permanent position? If not, what timescale is anticipated within which they may be reviewed or changed? What cognisance will be taken of any changes in the EU standards during that period, and by what methods?

Finally, is it to be a requirement that manufacturers must affix a UK mark to products? If so, to what extent have the Government received assurances that such a mark will suffice to satisfy buyers in the European Union or elsewhere?

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords for their contributions to these undoubtedly important regulations; indeed, I do not deny that they are important. Obviously, I am not responsible for the usual channels and the timetabling of matters in the House and the Moses Room. I firmly believe that the comment made by the noble Lord, Lord Adonis, has probably been picked up elsewhere so I will leave others to deal with that matter. I apologise if he thought I was being discourteous but I do not think he asked me to give way, which is perhaps why I did not. However, I will deal with his points.

I can confirm that the regulations will not change the law, except mutatis mutandis, in that we are coming out of the EU so some of the terminology is different. The regulations seek to preserve the existing position on exit day, which is why there is no impact assessment. Bear in mind that both scrutiny committees have not commented on the lack of an impact assessment; there will be no impact because the law on exit day will remain exactly the same because of the regulations. To pick up on a point made by the noble Lord, Lord Beecham—I think I covered this in my opening speech but perhaps not at sufficient length or with sufficient clarity—any departure from existing standards will require new legislation through the “made affirmative” procedure, on which consultation will be necessary. At the moment, the normal review period for standards is a five-year cycle. I am not saying that this will always necessarily be the case, but any reason to depart from it would have to be strong.

The second general point made by noble Lords concerns the likelihood of our suddenly diverging, or diverging at all, if it is inappropriate for British industry and if there is no great clamour from the British public. It is hard to see why this would be done; indeed, it would not make sense. We should credit our legislators and builders—people with more common sense. There would be no reason to diverge just for the sake of it, particularly given the necessity of the consultation I mentioned. It is hard to see how that would become a priority in any way or something that anybody would want to do.

I take issue slightly with another theme that seemed to come through in noble Lords’ remarks: that the regulations are about safety. Essentially, they are not. They are about standardisation. We have a separate domestic safety regime, as one can see from the Hackitt review and the Grenfell disaster. This has not emanated from Europe; by and large, Europe has not been the focus of the Grenfell inquiry or the response to it, nor of the Hackitt review. This is domestic. I am not denying the importance of these regulations, but essentially they are about standardisation and supply chains so that, for example, bricks and window frames are of a standard size. They are not largely about safety, so I want to keep the focus where it properly belongs. That is the point. That is the reason for the lack of an impact assessment and, as I said, one of the committees would have picked it up if we were in breach of proper procedures. As noble Lords will know, they are very effective committees.

The noble Lord, Lord Shipley, talked about trading standards and additional burdens. He will know that there is already an existing provision that new burdens have to be properly financed. We would expect to consult on that with the LGA and interested parties. If there are new burdens to be imposed, that would be a necessary consequence.

With those comments, and with the certain knowledge this will be brought up again in the Chamber, I commend these regulations.