On 4 September 2024, the UK Government introduced the Product Regulation and Metrology Bill (the Bill) in the House of Lords. According to the Bill’s explanatory notes, the Bill contains measures that relate to the UK product safety, regulation and metrology framework. Metrology relates to the system of weights and measures.
As the Bill includes power to make provision in devolved policy areas, it engages the legislative consent process. The Scottish Government published a legislative consent memorandum (LCM) on 24 September 2024. In the LCM, the Scottish Government recommended that at this stage based on the content of the introduced Bill, the Scottish Parliament should not grant legislative consent to the relevant provisions in the Bill.
This blog focuses on the relationship between the Bill and the potential to align with EU law. A further SPICe blog analyses the Bill’s proposal to confer powers on UK Ministers to legislate in devolved policy areas.
Powers in the Bill in relation to the marketing or use of products
As the Bill’s explanatory notes highlight, the UK’s product safety and metrology framework is mostly derived from European Union (EU) law, which was developed whilst the UK was a member of the EU, and remains on the UK statute book post EU exit as assimilated law. One of the key purposes of the Bill Is to ensure that UK Ministers can make appropriate changes to the framework for the purpose of ensuring that:
“the UK is better placed to address modern day safety issues to protect consumers, harness opportunities that deliver economic growth, and ensure a level playing field for responsible businesses operating online or on the high street. The Bill is intended to enable the UK to maintain high product standards, supporting businesses and economic growth, by allowing the UK Parliament the power to update relevant laws.”
A key measure in the Bill is the proposal to confer a power on UK Ministers to make regulations to:
make provision, in relation to the marketing or use of products in the United Kingdom, for the purpose of—
(a) reducing or mitigating risks presented by products;
(b) ensuring that products operate efficiently or effectively;
(c) ensuring that products designed for weighing or measuring operate accurately. (clause 1(1))
The Bill also specifically proposes to confer a power on UK Ministers to make regulations to:
“make provision, in relation to the marketing or use of products in the United Kingdom, which corresponds, or is similar, to a provision of relevant EU law for the purpose of reducing or mitigating the environmental impact of products.” (clause 1(2))
The clause 1(1) and 1(2) powers do not permit UK Ministers to make regulations in areas listed in the Bill’s schedule. These areas include:
- Food,
- feeding stuff and fertiliser,
- plants, fruit and fungi,
- animal by-products,
- products of animal origin,
- aircraft,
- military equipment, and
- medicines and medical devices.
According to the Memorandum concerning the Delegated Powers in the Bill the reason the UK Government is seeking to confer the power in clause 1(1) is:
“A delegated power is needed in order to ensure that the Secretary of State is able to respond swiftly to any new risks and hazards that might arise in this area, as well as ensuring continuity across the United Kingdom internal market. This will include an ability to maintain continuity with relevant EU law where it is deemed appropriate and, in the United Kingdom’s best interests to do so, but also the ability to make different provision to the EU.”
The UK Government’s explanation for seeking to confer the power in clause 1(2) is:
“We require the flexibility to be able to continue to recognise EU law, and/or to align with EU rules across the United Kingdom, where this is in the interests of the United Kingdom. EU product regulation pursues a range of objectives that may go somewhat beyond product safety, such as the Radio Equipment Directive 2014/53/EU (RED), which the Commission describes as “setting essential requirements for safety and health, electromagnetic compatibility, and the efficient use of the radio spectrum.
Other measures, such as the Common Charging Directive and the Noise Emission in the Environment by Equipment for Use Outdoors Directive contain measures which, through the imposition of essential requirements, standards and conformity assessment procedures, pursue the objective of reducing the environmental impact of products.
We are therefore seeking powers to make regulations pursuing similar objectives, so that the United Kingdom may make a case-by-case decision on whether to recognise EU requirements and whether to make similar provision in the United Kingdom. The Secretary of State must have regard to social, environmental and economic impact before making provision to recognise EU requirements. We do not want United Kingdom consumers to be left behind or for products to become more expensive or less available on the United Kingdom market, which could happen if we do not have such provision.”
The Bill and EU law
Joel Reland, writing for the UK in a Changing Europe has argued that the regulation of many different products do come within scope of clause 1(2) including “the majority of consumer products and many industrial goods, ranging from cosmetics and toys to heavy machinery”.
Clause 1(2) refers to relevant EU law which is defined in the Bill as Decision 768/2008/EC of the European Parliament and of the Council on a common framework for the marketing of products or any other EU law that has the purpose of harmonising the conditions for the marketing or use of products in the EU. Joel Reland highlighted the potential wide-ranging scope of the power conferred by clause 1(2):
“Despite the arcane name, this is a powerful piece of law which would allow the UK to unilaterally align with EU regulations related to the environmental impact of products. It is not entirely clear which EU regulations are in scope, nor how government intends to use the powers in practice; and Parliament has an important role to play in clarifying these ambiguities.”
He also highlighted that use of the power must relate to the ‘marketing or use’ of products adding that:
“this is a wide-ranging definition which includes their manufacturing, composition, certification, storage, transportation, packaging, labelling, disposal and online marketing.”
Finally, it is not entirely clear what the “the purpose of ‘reducing or mitigating environmental impacts’ means in practice. Whilst it is possible the definition may be limited to product safety rules which is the focus of the power in clause 1(1), a pertinent question is why the clause refers to environmental impacts rather than just product safety rules.
Is this about EU alignment?
Writing for the UK Constitutional Law Association, Thomas Horsley, Professor of Law at the University of Liverpool identified EU alignment as a key legislative objective of the Bill highlighting that:
“Clause 2(7), for example, would provide the Secretary of State with the power to declare UK product requirements met where these fulfil the requirements of a relevant EU law, subject to their having prior regard to the social, environmental and economic impact of EU alignment.”
Joel Reland also argues the Bill would be beneficial to UK businesses looking to sell into the EU market:
“There is an obvious rationale to this: ongoing, broad-spectrum alignment with EU rules makes life easier UK businesses which export to the EU (and vice-versa). They could adapt their processes to meet new EU regulatory requirements while remaining confident that this would be sufficient for access to the entire UK market.”
UK alignment with EU rules would also help avoid new divergence between Great Britain and Northern Ireland. Under the Windsor Framework, Northern Ireland is continuing to follow EU product rules.
Whilst voluntary alignment might appear beneficial for some businesses, it won’t address the issues of removing checks on UK goods being sold into the EU Single Market to ensure they meet EU standards. This was one of the issues highlighted by the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee in its report on the UK-EU Trade and Cooperation Agreement: Barriers to trade in goods and opportunities to improve the UK-EU trading relationship.
The powers conferred on UK Ministers by clause 1(1) in the Bill could also allow them to make regulations which result in the UK diverging from EU law in areas of product regulation if the UK Government believes that is the best approach to take.
The opportunity to scrutinise UK Government decisions about alignment and divergence was raised by the House of Lords Delegated Powers and Regulatory Reform Committee during its evidence session on the Bill with UK Government Ministers. Baroness Chakrabarti highlighted that as proposed the Bill would give Ministers, not Parliament, the opportunity to make “decisions about alignment or non-alignment with the EU on crucial issues of product safety and so on”. In response Justin Madders MP, Parliamentary Under Secretary of State at Department for Business and Trade said “there will still be the opportunity for parliamentary scrutiny”.
The Scottish Government’s view
As discussed above, this Bill provides UK Minsters with powers to ensure continued alignment with elements of EU law. This approach would be broadly consistent with the Scottish Government’s stated policy position of ensuring alignment with EU law where appropriate.
However, in its LCM the Scottish Government highlights that whilst the power conferred by clause 1(2) might ensure continued alignment:
“Other powers in the Bill are not specifically focused on EU law and could lead to either alignment or divergence of UK product and metrology regulations, including on devolved product matters, depending on future decisions by the UK Government. This could include changes to assimilated law.”
Conclusion
The latest EU law tracker produced for the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee by Dr Lisa Whitten highlighted that the potential for divergence between Scots law and EU law increases over time as the two legal orders and regulatory regimes continue to develop separately after Brexit. In addition, Dr Whitten highlighted the potential for tension between decisions by the Scottish Government to align with EU law and legislative developments elsewhere in the UK.
The UK Government’s Product Regulation and Metrology Bill provides a way for UK Ministers to ensure UK law continues to align with EU law in relation to the marketing or use of products. Where alignment with EU law in this area is pursued, this would mean the UK Government mirroring the Scottish Government’s alignment policy and address the potential for tension highlighted by Dr Whitten.
However, what is not clear from the Bill is how wide the power conferred on UK Ministers by clause 1 is, and as a result the level of alignment with EU law that the UK Government will pursue.
Iain McIver, SPICe Research