Construction product standards – Before and after Brexit

As Brexit draws closer and the noise of nervous speculation grows louder local authorities will welcome clear advice regarding the effect of leaving the EU, especially in a no-deal scenario.

One area of concern is that of product standards.  Our industry relies on the current ‘CE’ mark but how will this regime work here once we leave the EU? The issue is important because public authorities, professionals and consumers must be able to compare the performance of products from different manufacturers in different countries based on reliable, available information.

The answer for construction products lies in proposed legislation known as the draft Construction Products (Amendment etc.) (EU Exit) Regulations 2019 (we’ll call them here the “Draft Regs”). The Draft Regs were laid before Parliament on 18 December 2018 and, together with a raft of similar measures relating to other areas of law, await approval in preparation for Brexit.  If the UK does not reach a deal on such matters and no implementation period is entered into, the draft Regulations will come into force on exit day.

Their job is to ensure that the current Construction Products Regulations (“CPR”), which are EU law and govern the CE mark in the construction product context, are amended so as to apply in the UK seamlessly after Brexit.  Without the Draft Regs, and a no-deal alternative looking increasingly possible, the CPR would become ineffective here once the “direct” EU law ceases to apply to us.  The result, at best, would be confusion in the industry and disruption to the flow of goods.

This is the problematic legacy of “Retained EU law” i.e. the EU law that has, over the years, been incorporated into UK legislation by means of UK statutes and the like.  Such amendments to retained EU law avoid a no-deal outcome rendering rafts of statute nonsensical.

Life after Brexit

These particular Draft Regs include a transitional period during which products meeting the EU’s CPR standards can continue to be placed on the UK market without further testing or additional marking.

Changes could become more apparent as new UK standards are introduced after Brexit. The Draft Regs provide two routes for this:

• The Secretary of State can issue a mandate to a UK standardisation body – such as the British Standards Institution (“BSI”) – to develop our own UK standards and a ‘UK mark’; or
• The Secretary of State could designate a harmonised standard already adopted by a European standardisation body, such as the European Committee for Standardisation (“CEN”). The BSI, as a member of CEN, will have participated in the development of that standard.

Such flexibility will enable the UK to maintain the CPR regime and to respond to technical progress, new or emerging issues. Whilst divergence from EU standards has the potential to confuse users and to so disrupt deliveries to site that is not an inevitable consequence. Life could go on much as before.

Significance to Local Authorities (and others)

What does all this mean for local authorities wanting now to specify the products (and services) being tendered for a future project – for a leisure centre or new school, perhaps?  In practice, the UK’s product standards under the CPR immediately after Brexit will be identical to those under the current EU regime: that at least is of reassurance.  Post-Brexit a time-limited period to adapt and be guided will help, and care will be needed by those specifying which standards are to be met.

Meantime, it may be wise to seek fresh assurances on the wording included in tender invitations and, of course, the contracts that result.

That is because statutory product standards are often just one criterion when specifying the details of construction projects.  Recent case law has highlighted that where multiple standards are specified, it is not for the contractor/supplier to pick and choose which to comply with – rather, it is likely the higher standard must still be met.  Divergences between UK and EU regimes could make this a subtle distinction.

Also, in addition to any express terms or contract specifications, statute usually provides that goods sold in the course of a business must be reasonably “fit for any purpose” made known to the seller.  It is therefore in a local authority’s best interests to ensure that all parties in the supply chain are aware of the purpose of any products to be procured as part of a larger construction project.  That purpose will usually be obvious in the context but it is as well to spell it out where appropriate. This will be an important safety net in case the ‘wrong’ product standard should inadvertently be specified or followed.

Summary

Even if there is a no-deal Brexit, the CE mark regime will effectively continue for the time being, to be augmented gradually by new UK standards (which may well match EU standards).

Despite this, local authorities would be well advised to review proposed construction contracts and future tender invitations to ensure that they reflect the possibility of dual regimes. Including a range of standards, plus an explanatory ‘fitness for purpose’ statement may also reduce the risk of surprises.

As ever, preparation is key – even if it sometimes seems impossible in the current Brexit turmoil.  If you can keep your head whilst all about you are losing theirs, yours will be a more orderly world after Brexit.