The Retained EU Law (Revocation and Reform) Bill and product safety

If passed as introduced, all ‘EU-derived subordinate legislation’ and ‘retained direct EU legislation’ will be revoked on 31 December 2023 (or at a later date prior to 23 June 2026 if a consensus to delay is reached) unless Members of Parliament take steps to retain it in UK law.

This means that the former EU Regulations that are now retained law would disappear. To most following this area, this is not terribly surprising, as it has formed part of the ongoing rhetoric for some time. What is more surprising is that EU derived subordinate legislation is also on the chopping block. 

This means that regulations that at some point in the last 40 years implemented an EU Directive would also be lost, as well as any others made under section 2(2) of the European Communities Act 1972 implementing EU obligations. 

The Bill's potential impact on the UK's product safety framework

The impact is potentially seismic—all key product safety provisions including the General Product Safety Regulations 2005, SI 2005/1803 (subscription required), and product-specific safety regulations including those covering the safety of toys, cosmetics, PPE and electronics fall within scope of the Bill. This means that unless expressly retained by law, they will be revoked or replaced with hastily drafted substitutes. 

Once the Bill becomes law, then the countdown clock starts ticking towards the revocation date and each government department must rush to review the current framework at a time where the government is tackling the cost of living crisis, the country's recovery from the coronavirus (COVID-19) pandemic, and a recession.

Which product safety laws could become re-stated, revoked or modified

In short, there's no indication of that. The pro-Brexit narrative around releasing the UK from the shackles of the EU is starkly reflected in the Bill, and while some in the UK government have a strong political and ideological motivation to ensure UK law no longer contains hallmarks of a bygone EU era, revoking it wholesale seems impractical and therefore unlikely given the timescales and general concern that has been raised by regulators and the regulated alike. To add further complexity, definitions and concepts often overlap across EU laws, making it difficult to get rid of one without seeing a chaotic domino effect. While there is opportunity for improvement, a more targeted and strategic approach is likely required. As for wellfunctioning laws, as the adage goes, ‘if it ain't broke…’.

Still, in this most political of areas, political influence cannot be ignored. The Bill was introduced by the last government and specifically by the former Secretary of State for Business, Energy and Industrial Strategy, Jacob Rees-Mogg. It was also championed by former Prime Minister, Liz Truss, and at that time, there were promises about wiping the EU regulatory slate clean. Now, we have the Sunak government which may take a different approach, it is noteworthy that during his election campaign Rishi Sunak only promised to commence a review of former EU law. This may mean that as the Bill moves through the Parliamentary process that it is softened or adjusted to extend its sunset date. As Prime Minister, Sunak faces the challenge of placating both those who wish to see an immediate severance of anything EU and those who wish to see a review undertaken in a more pragmatic fashion.

How will decisions be made about which product safety laws could become re-stated, revoked or modified; and will the Office of Product Safety and Standards (OPSS) have a role in scrutinising how the government makes its decisions

The Bill gives powers to ministers to decide whether to save or axe laws, bypassing typical legislative processes. The proposed lack of oversight has received major criticism for being undemocratic.

As the department responsible for product safety, it is likely that the OPSS would provide input. However, no detail has been released on how decisions will be made and, as mentioned above, the timescales will likely limit any meaningful consultation with internal (or external) stakeholders.

The UK’s safety regime in relation to the EU's regime and proposals the UK have to address that

In its ‘Benefits of Brexit’ policy document published in January 2022, the UK government said that a review of the EU-derived framework for product safety will ensure the UK's approach is proportionate, innovative and forward-looking (see: LNB News 31/01/2022 59 (subscription required)). 

In May 2022, the OPSS published a study on the limits of current product safety law (see: LNB New 24/05/2022 58). 

Unsurprisingly, similar challenges were identified to those highlighted by the European Commission in its review of the current EU framework – a lack of clarity on the extent to which smart technologies fall within definition of ‘product’, the gap in application to technologies whose safety implications can change over their lifetime, and a lack of accountability for online marketplaces.

The UK’s proposals are due to be published by the end of 2022 but may be delayed due to the political turmoil that has plagued the government in recent months. 

Implications for UK producers or manufacturers who serve both EU and UK markets

While there is a clear convergence between the priorities of the EU and UK when it comes to future-proofing product safety, their means, processes and timescales will differ. The resulting uncertainty and potential divergence between laws in the EU and UK will likely prove complex and costly for producers and manufacturers who serve both markets. 

Actions to take in light of this Bill

The legal advice to clients is to continue complying with current law unless and until it is changed. 

Given that the Bill is at the beginning of its legislative journey and there is considerable concern about the impact of removing all of the regulation in this way, it has the potential to see significant change. 

Clients should keep a close eye on the progress of the Bill, and if it is passed, the government's progress in reviewing in-scope law by using the government's Dashboard, which contains a list of retained EU law alongside its current status.

This article was prepared together with Lexis®PSL, first published on 2 November 2022, and can be found here (subscription required).

 

If you are concerned about the potential regulatory changes and would need advice, or would like to discuss any points raised in this article, please contact our experts.