Product Safety and Metrology etc. (Amendment etc.) (UK (NI) Indication) (EU Exit) Regulations 2020

Motion to Approve

Moved by

That the draft Regulations laid before the House on 13 October be approved.

My Lords, this SI is one of a series of SIs that amend the previously laid 2019 regulations. Those original regulations, the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, were drafted in the event that a deal was not agreed and will need to be amended before coming into force at the end of the transition period.

The SI we are debating today is needed to take account of the withdrawal agreement, in particular the requirements of the Northern Ireland protocol. This amending instrument—the sixth in the series—will do a number of things to complete the picture on how goods from the EU and from Northern Ireland will be treated on the market in Great Britain and provide businesses with certainty about these arrangements.

The aim of the original product safety and metrology EU exit regulations 2019 was to bring the existing EU system of essential requirements, standards and conformity assessment into our domestic law. It made some changes that are needed by virtue of the UK leaving the EU—regardless of any deal—while retaining the fundamental elements of the product safety and metrology regulatory regime.

As I am sure noble Lords will recognise, the UK product safety and legal metrology system is among the strongest in the world. Alongside the original EU exit regulation, which left that framework largely unchanged, this amending SI will ensure that we continue to have a robust product safety framework in place to prevent unsafe and non-compliant products, whether that is toys, cosmetics, lifts or machinery, entering the UK market. Specifically, this SI will allow for continued acceptance of CE-marked goods into the market of Great Britain for 12 months, before making the new UKCA mark mandatory from January 2022. It will introduce a number of transitional arrangements to help minimise costs to economic operators and give them time to prepare. It will provide for unfettered access for Northern Ireland to the rest of the United Kingdom, and introduce and implement the UKNI marking for certain goods on the Northern Ireland market.

By making these amendments, this SI will ensure that the UK is able to provide continued robust protection to UK consumers, giving confidence that only safe and compliant products can be placed on the market, maintaining a robust product safety and legal metrology framework from the end of the transition period. There will, of course, be interest in what the new UK regulatory regime will look like going forward. This SI does not set out what that future regime will look like; it sets out the building blocks that will be a matter for future consultation and future legislation. On this matter, I will simply say that the Government are committed to ensuring that consumers are protected from unsafe products and we will look to deliver a future product safety regime that is simple, flexible and fit for the opportunities ahead of us.

My Lords, I thank the Minister for his introduction and the very helpful letter and factsheet he sent us yesterday. However, I must say I found the Explanatory Memorandum to this SI even more interesting—and much more revealing. The obtuse title of the SI hides a lot of important issues, but in the limited time available I will confine myself to a few questions to the Minister.

As he said, we have already agreed four Sis, in 2018 and 2019, on this subject in preparation for a no-deal exit from the EU, which could now come into force on 31 December. As I understand it, we have six SIs to amend those because of the withdrawal agreement: four already laid and two more still to come. We do not know yet if there will be a deal or no deal, so can the Minister explain how we will deal with these SIs if there is a deal, and if there is no deal?

This instrument deals with a wide variety of important matters, as the Minister said, including noise emissions by outdoor equipment, aerosol dispensers, toy safety, lifts, recreational craft—including motorboats—gas appliances, and PPE, yet there was no formal consultation on this. Why not? This instrument also covers the important issue of firework safety and the designation of an approved body for pyrotechnics. Interestingly, maybe astonishingly, it allows for it to be based in any country—the UK, in the EU or in the rest of the world, presumably including China. Can the Minister explain why the present arrangement is not acceptable?

The regulations also provide for unlimited fines for the misuse of what are complicated product safety rules, but the Government say they will be used rarely. How can they make such a prediction?

This is just one of hundreds of such SIs from this and other departments taking up the valuable time of capable officials, which could be better spent elsewhere. And it is all because of the chaos and confusion arising from a bungled and unnecessary exit from the European Union market—a market that was working well.

My Lords, these measures are, like others we have dealt with in recent weeks, designed to implement the Northern Ireland protocol as well as the other objectives that the Minister set out this afternoon.

Noble Lords will know how many in Northern Ireland feel about the protocol, which was implemented and imposed on the people, businesses and communities here without any consent being forthcoming from Northern Ireland and without even the need for it to be voted on in the Assembly by our elected representatives. In the limited time that I have, I will not go into all the major issues, big and small, that that creates. I seek assurance from the Minister this afternoon that qualifying Northern Ireland goods can be sold in the rest of the United Kingdom without the need for checks and controls, in line with the commitment to unfettered access, that there will be no regulatory discrimination, and that it will be on the basis of the mutual recognition of regulatory standards. Can the Minister assure the House that that will continue to apply in the future, whatever the EU requirements or the requirements set by Her Majesty’s Government for the rest of the UK may be?

I also seek reassurance on the matter highlighted in the Secondary Legislation Scrutiny Committee’s report about conformity assessments carried out in Great Britain. Can we be assured that assessments, registrations, certificates and approvals issued or carried out by the competent authority of the United Kingdom will be valid in Northern Ireland? It would be unacceptable for that not to be the case. It is clearly in line with the provisions of the protocol.

On costs, we are told that over 100,000 businesses need to familiarise themselves with these new requirements. Tens of thousands of retailers, wholesalers and manufacturers are affected. What is the impact of the measures being taken to implement the protocol, and what is the financial impact on businesses and manufacturers in Northern Ireland? Who will bear these costs going forward? Surely the Government must ensure that both the starting and ongoing costs are met by government. There cannot be an extra cost on business.

My Lords, good design and branding have been at the heart of commercial success at least since the Great Exhibition. For example, in 1913, Frank Pick, the legendary managing director of what became the London Underground, commissioned Edward Johnston to produce a typeface for that railway. That typeface is still in use to this day. It is a London icon—clean, simple, modern—and was the exclusive property of TfL until the copyright expired in 2015. It is used on signs, letterheads, the Tube map and everywhere you look.

If noble Lords turn to the sample of the form of the UKNI logo to be imposed on Northern Ireland businesses from the end of this year, they will find that it fails to meet that standard by a long way. To my mind, it is ugly, blockish and typographically illiterate, with its mixture of serif and san-serif letters, designed almost to hamper, rather than promote, the export of Northern Ireland goods and products. My question to my noble friend the Minister is who designed it. Did he have a hand in it himself, or was it produced by a committee? Was public money paid for it and, if so, can we get our money back? Is there anything that can be done, even at this late stage, to improve it?

My second question is more constitutional. Who is making this law? I understand, at a simple level, that this Parliament is clearly making this regulation, because it is in front of us for that purpose. But let us say that, a few months or some time down the road, the democratic leaders in Northern Ireland join together—as I am predicting they might—to say that this logo is not doing the job of marketing and branding, and they would like it changed. To whom would they write? Would it be to the UK Government, so that we could make that decision unfettered? Would they have to write to this strange and unaccountable joint committee that now appears to set many of the rules for the Northern Ireland protocol? Would they be reduced, as leaders in Northern Ireland—the DUP and Sinn Féin—were only a couple of weeks ago, to writing a begging letter to Brussels, in that case to ask if their supermarkets could still be supplied on the customary basis?

The noble Lord, Lord Moylan, made some interesting points at the end of his contribution. The Minister, during his introduction, referred to the UK being a sovereign independent nation once again. However, how can someone from Northern Ireland feel part of that sovereign independent nation when, for several weeks and months in this House, we have been passing secondary legislation that distinguishes us from the rest of the United Kingdom? We are talking today about marks, and the noble Lord, Lord Moylan, makes valid points, but the fact that they are there illustrates the differences that have been created between different parts of the United Kingdom.

As is common to a number of these SIs, the impact assessment refers to how

“relevant EU legislation will continue to apply to Northern Ireland by virtue of the Protocol.”

It is as if the protocol is some kind of wonderful achievement. As far as I am concerned, it is a dagger pointed at the heart of the union, and the fact that we are having these discussions and making these differences illustrates that.

We are now going to have to pile more work and burdens on to our businesses and manufacturers. We are creating a situation where you can run the CE label with the other label for a year. What happens if, over time, differences in standards emerge? Whose standards will prevail? Will it be the Brussels or the UK standard? What will happen if a product made in Northern Ireland falls foul of the regulations that apply in Great Britain? There are no answers to these questions.

The Government have consistently refused to accept the fact that what they have done with the protocol is to turn Northern Ireland into virtually an overseas territory of the European Union with its own set of discrete pieces of legislation. The regulatory regime is to be left in the hands of Brussels. We are still subject to state aid rules where Great Britain will not be, and we have a huge pile of problems that will arise in the next few weeks whereby every tin of baked beans that comes into Northern Ireland will have to be notified to the authorities in advance and be subject to inspection. How under these circumstances, can the Minister maintain that we are in any sense on an equal footing with our colleagues in the rest of the United Kingdom?

It is a great privilege to follow the noble Lord, Lord Empey, and I follow him in the spirit of the issues he has raised. Can the Minister explain how certification and labelling will affect trade between Great Britain and Northern Ireland? Let us suppose that a supermarket sources foods within Great Britain for distribution throughout the United Kingdom, including to its stores in Northern Ireland. Surely it would be onerous, if not impossible, for the supermarket and its suppliers to have two varieties of goods, one labelled “UK CA” and the other “CE”. Who will enforce the labelling requirement on goods from Great Britain going to Northern Ireland and where will that be enforced? If it is not going to be enforced at the ports of Great Britain and Northern Ireland—and we have had assurances that it will not be—it must be enforced within Northern Ireland, presumably by trading officers, in practice, when goods are brought to their attention either by a retailer or a customer. If that is possible, why cannot Northern Ireland have the same labelling requirements as us and any enforcement on goods that filter over the border to Ireland be enforced within Ireland by its trading officers, having had the goods brought to their attention by their customers and retailers without any border controls? I simply do not understand why we have got ourselves into this invidious position.

Finally, since my time is running out, I ask my noble friend to imagine what would be the situation in the United States if Alaska had to adopt Canadian rules because tribes crossing the border insisted on that, so that any goods moving from the 48 states to Alaska would have to go through a different regulatory process. Likewise, what would happen in France if goods coming from the Hexagon had to have different rules and regulations on labelling from those in Corsica, or in Italy, if goods sold legally on the mainland could not be sold in Sicily? None of them would accept that. Are British Ministers making these points in the Joint Committee and elsewhere to our partners in Europe, and in Congress to Speaker Pelosi?

My Lords, I thank the Minister for his explanation of these complex regulations and for the factsheet that we received yesterday. However, I still have certain questions for him. Like the noble Lord, Lord Foulkes, I agree that all of this would not be happening if we did not have to leave the European Union. But, sadly, that is taking place and, although I always will be a remainer, I will have to accept that.

Notwithstanding that, I have certain questions for the Minister. Where does the conformity marking take place for goods manufactured in Britain to be sold in Northern Ireland and vice versa? What compensation arrangements are in place to facilitate the delays that could take place in supplying goods because of the specialised marking indicators required, notwithstanding that there is a year’s grace period?

The Lords Secondary Legislation Scrutiny Committee, as the noble Lord, Lord Dodds of Duncairn, referred to, has pointed out the disagreements between the EU and the UK 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 says that the UK will not be able to do that, but the UK asserts article 7.3 of the protocol, which indicates that it is allowed to. Will the Minister provide the House with an update on the discussions and negotiations on that matter? Can the Minister further provide an update on the sanctions regime for the misuse of the UK/Northern Ireland conformity marks?

This is going to place a considerable financial burden on Northern Ireland businesses, which are already impacted on by the costs not only of Brexit but of Covid. Will the UK Government provide the Northern Ireland Executive with the funding to deal with the costs of implementing the regulations? It has been suggested that between 10,000 and 17,000 UK manufacturers and up to 135,000 UK wholesalers and retailers will be impacted. That is a massive cost to businesses.

I am delighted to follow the noble Baroness, and I would like to build on her arguments. I thank my noble friend for introducing the instrument today and for the fact sheet sent with his letter. He has argued that this instrument is necessary for greater clarity, but I regret that the main thrust of this debate is that that is certainly not the case.

The noble Baroness, Lady Ritchie of Downpatrick, and the noble Lord, Lord Dodds, have highlighted the disagreement that exists between the UK Government and the EU. What is the legal position on this? How will that disagreement be resolved? Does it have to be resolved by 1 January?

The noble Lord, Lord Foulkes, referred to the fact that there has been no formal consultation. Why has a decision been taken on principle not to have one? I am grateful, as I am sure are others, for the note from the Library and for the 32nd report from the Secondary Legislation Scrutiny Committee, which looked at these issues and highlighted them in their report.

The noble Baroness, Lady Ritchie of Downpatrick, noted the numbers of those affected, which are staggering. The estimated cost to businesses over a 10-year period is in the region of £25.7 million for conformity marking, £3.7 million for conformity assessment and £6.6 million for familiarisation, leading to a total over the period of £36 million—a not inconsiderable sum. Can my noble friend explain why the impact assessment was not made available at the time of the scrutiny by the Secondary Legislation Scrutiny Committee? Is it available for us to look at now? I am sure it would be of great interest to the businesses affected.

I further reinforce the point made by the noble Baroness, Lady Ritchie of Downpatrick, about what the impact will be on agrifoods as of 1 January, both under this particular instrument and more broadly. What discussion has there been between the Minister’s department not just with the agrifood industry but with the road haulage owners and operators, who I know are deeply concerned? I understand that my noble friend Lord Agnew has met the English equivalents, but has anyone actually had the courtesy to meet the Northern Ireland road hauliers?