Instruments of interest
Draft Architects Act 1997 (Amendment) Regulations 2022
2.Following Brexit, these draft Regulations propose to amend the Architects Act 1997 to enable the Architects Registration Board (ARB) to enter into agreements with overseas regulators on the mutual recognition of architectural qualifications. The Department for Levelling Up, Housing and Communities (DLUHC) says that the ARB has a memorandum of understanding with its Irish counterpart and has concluded negotiations for recognition agreements with counterparts in the USA, Australia and New Zealand. According to DLUHC, these new mutual recognition agreements (MRAs) are ready to be signed once this instrument comes into force.
3.The instrument also proposes to remove legal provisions that underpin the automatic recognition of architectural qualifications from the EU in the UK which continued after Brexit. This is reciprocal, as the EU no longer automatically recognises UK architectural qualifications. DLUHC says, however, that architects with EU qualifications who are already on the ARB register will not be affected, as their qualifications will continue to be recognised. In addition, a briefing note by the ARB states that in the absence of an MRA with the EU, the ARB has decided unilaterally that, in practice, it will continue to recognise EU qualifications listed in the former Mutual Recognition of Professional Qualifications Directive until a new MRA is agreed with the EU or the ARB changes its approach. This means that architects with relevant EU qualifications will still be able to apply using a simpler registration process. DLUHC told us that the UK is currently seeking a new MRA with the EU under the UK-EU Trade and Cooperation Agreement.
Draft Product Safety and Metrology (Amendment and Transitional Provisions) Regulations 2022
4.The main purpose of these draft Regulations is to provide businesses with more time to transition to the post-Brexit UK conformity assessment marking (UKCA) regime. The UKCA marking has been valid for placing goods on the market legally in Great Britain (GB) since 1 January 2021. The UKCA regime requires UK assessment bodies to carry out conformity assessments before goods can be placed on the GB market. The Department for Business, Energy and Industrial Strategy (BEIS) says that there is “currently full [assessment] coverage for BEIS products sector areas”.
5.According to BEIS, the aim of the extension is to prevent immediate cost increases and burdens for businesses in the context of current cost of living and global supply chain challenges. It is the second time that the transition has been extended. Specifically, this instrument proposes to:
- Extend for a further two years, until 31 December 2024, existing transitional provisions which allow certain products that meet EU requirements and markings to be placed on the market in GB. This would give businesses the option to use the EU’s CE marking, instead of the UKCA marking.
- Provide that where a manufacturer has taken action under EU conformity assessment procedures up until 31 December 2024, but those goods have not been placed on the GB market, that action will be treated as having been taken under the equivalent UK conformity assessment procedures. This is to apply for as long as any conformity certificate issued is valid, or until 31 December 2027, whichever is sooner.
- Extend, until 31 December 2027, existing transitional provisions which allow businesses to affix the UKCA marking and to include importer information for products imported from European Economic Area countries and Switzerland, on a label affixed to the product, rather than on the product itself, and to include details of an EU rather than a UK responsible person on cosmetic products.
6.These further extensions raise questions about the future of the UKCA marking regime which, in effect, is being deferred again through the continued recognition of the EU’s CE marking regime. We are particularly concerned that businesses may already have incurred substantial costs to prepare for the new regime on the assumption that the UKCA marking would be required from 1 January 2023. We also note that this is one instance of post-Brexit policymaking that has proved to be much more complex than may have been expected. We are concerned that there may be more such examples in the wake of the Retained EU Law (Revocation and Reform) Bill, and that this will put significant pressure on both the Executive and Parliament if the proposed sunset provisions contained within the Bill are passed in their current form.
Ammonium Nitrate Materials (High Nitrogen Content) Safety (Amendment) (No. 2) Regulations 2022 (SI 2022/1182)
7.The purpose of this instrument is to continue to allow detonation resistance tests (DRTs) for imported Ammonium Nitrate (AN) to be carried out at listed and accredited laboratories based in the EU as well as the UK. This extends an existing temporary provision1 from the end of this year to the end of 2027. The Regulations also extend to the same date a specific exemption for AN imported from the EU from a rule which limits the validity of a DRT to 60 days.
8.The Department for Environment, Food and Rural Affairs (Defra) explains that these changes are needed to ensure that fertiliser suppliers in Great Britain (GB) have access to sources of AN at a time when increased gas prices have driven up the cost of AN and all fertiliser types globally. According to Defra, this has significantly reduced AN production in the EU and UK and the availability of AN for export. The UK is a net importer of fertiliser from the EU. The EU accounted for around 70% of all fertiliser products and some 95% of AN imported to GB between 2017 and 2021.
9.While not explained in the Explanatory Memorandum, we note that AN is an explosive material that can be used for terrorist purposes. DRTs must be completed to ensure that each batch of AN has a sufficient degree of resistance to detonation and is therefore considered safe to transport and store appropriately. DRTs are required for all solid AN products which are not categorised as an explosive, have a nitrogen content greater than 28% by weight and weigh over 500 kilogrammes. We also note that EU fertiliser legislation continues to apply in Northern Ireland (NI) and relevant products under this legislation require a DRT. This means that AN products entering NI from GB (under licence) and AN products entering GB from NI require a DRT.
1 Ammonium Nitrate Materials (High Nitrogen Content) Safety (Amendment) Regulations 2022 (SI 2022/29) and see SLSC, 28th Report (Session 2021-22, HL Paper 153).