Joël Reland unpacks the significant Brexit bill no-one’s talking about – the Product Regulation and Metrology Bill, which would give UK ministers the power to unilaterally align with EU regulations related to the environmental impact of products. He highlights that there is still much that’s not clear about the Bill at this stage, and that parliamentary scrutiny will be crucial.
When it comes to Labour’s EU reset, almost all the attention is on what might be delivered in future negotiations with Brussels. Yet the most significant piece of policy change may already be underway. The Product Regulation and Metrology Bill was introduced to House of Lords on 4 September and had its second reading this week.
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.
The key passage is Clause 1(2). It grants the Secretary of State powers to ‘make provision… which corresponds, or is similar, to a provision of relevant EU law for the purpose of reducing or mitigating the environmental impact of products.’
This means the Business Secretary has the power to mirror EU product regulations in UK law, so long as certain conditions are met.
First, the law must relate to a product, as defined by the bill. A useful rule of thumb is that this is anything you can’t ingest or start a war with. It covers the majority of consumer products and many industrial goods, ranging from cosmetics and toys to heavy machinery. Meanwhile agrifoods, aircraft, military equipment, medicines and medical devices are excluded.
Second, it must relate to the ‘marketing or use’ of products. This is a wide-ranging definition which includes their manufacturing, composition, certification, storage, transportation, packaging, labelling, disposal and online marketing.
Third, the legislation must serve the purpose of ‘reducing or mitigating environmental impacts’. But what that means exactly is unclear – and the bill’s ultimate power hinges on the ambiguity.
One possibility is that it refers to product safety rules. This is the focus of the bill’s preceding Clause 1(1), granting the Secretary of State powers to pass regulations to mitigate risks presented by products and ensure their effective operation.
This would not be an insignificant power. It would allow the government to keep pace with new EU product safety regulations, so that the UK does not become a dumping ground for goods banned in the EU. It could also mean goods which bear the EU ‘CE’ mark – denoting conformity with EU product requirements – would continue to be accepted on the GB market even as the EU rulebook evolves, avoiding new administrative costs for businesses.
The supporting documentation to the bill suggests this is the primary focus. It highlights the CE mark issue and pinpoints several pieces of new EU product safety legislation where there are benefits to alignment, ranging from toys and e-bikes to better regulating online marketplaces (like eBay and Amazon).
But, if that is the aim, why does Clause 1(2) refer to ‘environmental impacts’ rather than product safety? This strongly implies it is intended to cover a broader – or distinct – range of EU legislation, and could open the door to UK alignment – at least in part – with many pieces of heavyweight regulation which the EU has passed in recent years.
To give but a few examples, new rules on supply chain auditing, deforestation-free products, vehicle emissions, product packaging and AI are all rooted at least partly in environmental considerations, and all have major ramifications for business operations. The fact that the bill’s title was changed from ‘Product Safety and Metrology’, when originally signalled in the King’s Speech, to ‘Product Regulation and Metrology’ might hint at more expansive intentions.
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.
It would also help avoid new divergence between Great Britain and Northern Ireland, which continues to follow EU product rules under the Windsor Framework. Otherwise, future divergence could mean products made in Great Britain are no longer permitted in Northern Ireland, or become more difficult to export.
But there are also potential limitations and drawbacks. For one, this sort of voluntary alignment does not bring any relief from EU regulatory checks. You follow EU rules, with no say over their design, but still don’t get market access.
And, perhaps most strikingly, this alignment would be done via statutory instrument, not primary legislation. That means MPs will be unable to amend and have little ability to scrutinise the EU legislation being copied over, despite their potentially contentious contents.
The EU’s new packaging rules, for instance, were reportedly the most-lobbied in EU history, and incoming deforestation regulations have proved similarly controversial. If the government chose to align with these via the powers in the bill, would the potentially wide-reaching implications – including differentiated impacts on big and small businesses and devolved governments – be properly considered? Especially as there is no longer a Commons committee devoted to the scrutiny of EU issues.
Another question is how the government will choose which EU regulations to mirror. Will it set criteria which must be met: for instance, around impacts on the environment, consumer safety, trade or Northern Ireland? And how will it monitor and assess the significant volume of EU law which could potentially be replicated?
Alignment with EU regulations is much easier said than done. Such a task could easily consume a small government department. Perhaps the ‘Brexit Opportunities Unit’ will be resuscitated as the ‘Alignment Opportunities Unit’. In any case, the government will need to commit significant resources to do the work properly – which seems far from guaranteed.
There are a number of ‘known unknowns’ about this bill. Which EU laws are in scope? How will its powers be exercised? By whom? For what purpose? On what principles? And with what oversight role for Parliament?
These are questions of vital importance, and it is incumbent upon parliamentarians to dig into the details before the bill becomes law.
By Joël Reland, Senior Researcher, UK in a Changing Europe.