On 4 September 2024, the UK Government published the Product Regulation and Metrology Bill (the PRMB). Introduced in the Lords, the PRMB is certainly not the most headline-grabbing Bill announced in the King’s Speech. Its substance – product standards and weights and measures – is important, but unlikely to excite the masses. However, as the new UK Government’s first intervention to regulate the UK internal market, the Bill is remarkable for at least two reasons.

First, the PRMB departs from more recent approaches to the design of UK Bills regulating domestic trade in areas of devolved competence. Where devolved competences are engaged, the Bill would centralise decision-making in the hands of the UK Government without any statutory obligation requiring UK ministers to secure the consent of the devolved governments and/or their parliaments. If this is what resetting relations looks like under UK Labour, there may be cause for concern in Edinburgh, Cardiff and Belfast – at least on the face of the current Bill. Secondly, though sharing the same functional space, the PRMB says nothing about its relationship with the primary instrument for UK market regulation post-Brexit: the United Kingdom Internal Market Act 2020 (the UKIMA). This silence is striking, and may indicate a ‘reset’ at Westminster in a different sense; specifically, the new UK Government’s preference, where possible, to sidestep rather than revisit the UKIMA.

The PRMB and Domestic Trade: Objectives; Further UK Powers

The PRMB regulates product standards and units of measurement. Of particular relevance for this post, the Bill would grant the UK Secretary of State new powers to enact regulations on the marketing and use of products placed on the UK market, as well as on the units of measurement and quantities in which goods may be sold. These powers are intended to enable the UK to update and futureproof its product regulation framework (which is mostly derived from EU law) to maintain high product standards, enhance consumer protection and support business and economic growth. The Explanatory Notes explain that new primary legislation is needed to address isolated product risks such as e-Bike battery fires as well as to tackle broader challenges, notably AI and the regulation of online marketplaces.

EU alignment is a key legislative objective, and the PRMB proposes the introduction of new powers for the UK Government to keep pace with applicable EU legislation. Clause 2(7), for example, would provide the Secretary of State with the power to declare UK product requirements met where these fulfil the requirements of a relevant EU law, subject to their having prior regard to the social, environmental and economic impact of EU alignment.

The PRMB and Devolution

The regulation of product safety standards and units of measurement are reserved matters under the devolution statutes, meaning that the UK Parliament retains competence to legislate without any formal requirement to seek the consent of the devolved legislatures (see eg C.8 and C.9, Sch.5, Scotland Act 1998; C.7 and C.8, Sch. 7A, Government of Wales Act 2006; and paras. 37 and 28, Sch.3, Northern Ireland Act 1998). However, despite its title, the PRMB covers more than just product safety standards and metrology. On the face of the Bill, the PRMB reaches into areas of devolved policymaking, notably environmental regulation. Clause 1, for example, proposes granting the UK Secretary of State the power to enact regulations on the marketing and use of products that correspond, or are similar, to EU laws ‘for the purpose of reducing or mitigating the environmental impact of products’ – a policy matter that is not reserved.

The Bill’s intersection with devolved competences extends further when one considers the scope of the powers it proposes to create. The Explanatory Notes focus the PRMB on the regulation of specific issues, notably product safety. However, on the face of the Bill, the proposed new powers are not so limited. Consider, for example, Clauses 1 and 2. Taken together, these provisions would grant the UK Secretary of State the power to adopt UK-wide regulations on the marketing and use of products to ensure their ‘efficiency’ and/or ‘effectiveness,’ not just to reduce or mitigate safety risks. Moreover, the list of permissible ‘product requirements’ that may be adopted is broadly defined. The definition of product requirements (Clause 2(2)) includes rules on the production, composition or other characteristics of products; the use and marketing of products; the provision of information in relation to products; the making of statements about products; and the monitoring, assessment, verification or certification of products.

The UK Government acknowledges the Bill’s intersection with devolved competences ‘in part’ and has requested Legislative Consent Motions (LCMs) from the devolved legislatures. Draft LCMs are expected in the next couple of weeks, ahead of the Bill’s second reading in the Lords on 8 October 2024.

The devolved governments are likely to welcome important aspects of the PRMB, notably its introduction of new powers to secure alignment with EU standards. The UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 enshrines this aspiration into law with respect to devolved policymaking in Scotland. But it is not the substance of the Bill itself that ought to concern the devolved governments, but the process through which regulatory choices will be made under it. The PRMB departs with more recent, emerging approaches to the design of UK Bills regulating domestic trade in areas of devolved competence. Where devolved competences are engaged, the PRMB proposes to centralise decision-making in the hands of the UK Government without any statutory obligation requiring UK ministers to secure the consent of (or even consult) the devolved governments and/or parliaments. The key provisions that intersect with devolved competences, including Clauses 1 and 2 on product regulations (noted above), are exercisable without devolved consent (in any of its statutory forms).

Relations Reset or Regression?

The approach under the PRMB is at odds with recent evolutions in the regulation of the UK internal market under the UKIMA. Recall that the UKIMA, adopted under Johnson’s Conservative Government, introduced the market access principles (the MAPs) to regulate, among other things, intra-UK trade in goods and services following the UK’s exit from the EU internal market (see eg Horsley, 2022; McEwen et al, 2022). The two principles – mutual recognition and non-discrimination – function as practical restraints on policymaking in devolved areas (Horsley, 2022). Under the MAPs, the devolved governments are precluded from applying devolved legislation to products (and services providers) entering their respective markets from other parts of the UK and subject to different (read: potentially lower) standards. The effect on devolution is far-reaching. The application of the MAPs has already frustrated progress towards the introduction of ambitious new policy initiatives within the devolved nations; for example, on single-use plastics and deposit return schemes. One solution for the devolved governments has been to work jointly with the UK and other devolved governments towards the adoption of UK-wide regulatory standards, thereby avoiding direct conflict with the MAPs.

Intergovernmental cooperation on regulatory standards poses its own challenges to devolution. In particular, the shifting of decision-making to the intergovernmental space makes it harder for the devolved legislatures to scrutinise, not to mention shape, policy in devolved areas. For the devolved governments, securing agreement on UK-wide standards also means compromising on ambitions in terms of the scope, depth and timing of new policies. However, these issues notwithstanding, the trend towards ‘four nations’ policymaking under the UKIMA did appear, in recent months, to be strengthening the institutional role of the devolved governments (if not their legislatures) in the adoption of UK-wide standards (eg Horsley, 2023).

Consider, for example, the Tobacco and Vapes Bill, which fell in the pre-election wash up. That Bill emerged following joint UK and devolved government consultation and, as introduced, would have granted the devolved governments meaningful powers in relation to the adoption of UK-wide restrictions on the sale, packaging and flavouring of tobacco products and vapes. Under Clause 67, the devolved governments would have been given the power to veto the UK Secretary of State’s adoption of UK-wide restrictions on tobacco products and vapes that were within devolved legislative competence. The logic of that veto power being, of course, that it would serve to protect devolved preferences in the adoption of UK-wide regulations. The devolved governments could leverage their vetoes in intergovernmental negotiations to defend their respective policy preferences as far as possible.

The fact that the PRMB would not require the UK Secretary of State formally to seek the consent of the devolved governments (or their parliaments) before adopting UK-wide regulations in devolved areas appears at odds with pre- and post-election talk of a ‘relations reset’ between the UK and devolved governments. It is not clear the extent to which, if at all, the new UK Labour Government engaged privately with devolved ministers in the preparation of the Bill. There appears to have been no public consultation ahead of its publication. In any case, responses from Edinburgh, Cardiff and Belfast will soon appear when the draft LCMs are published and a degree of pushback should be expected.

One thing the PRMB does not propose is its entrenchment under the devolution statutes as a ‘protected enactment,’ which the devolved parliaments would be precluded from repealing or modifying (see eg Sch.4, Scotland Act 1998; Sch. 7B, Government of Wales Act 2006; and s.7(1), Northern Ireland Act 1998). Accordingly, if enacted as introduced, the devolved parliaments could, in principle, legislate to override the UK Secretary of State’s decisions on product regulations to the extent that these address non-reserved matters. However, to do so would leave the devolved governments confronted with another, more insurmountable problem: the application of the UKIMA. The introduction of different rules on, say, the environmental impact of products, by the devolved parliaments would likely trigger the application of the MAPs, with serious practical implications. Just as with efforts to legislate to ban single-use plastics or to establish deposit return schemes within the nations, the devolved governments would likely find themselves unable to apply their own product rules to goods entering their territories from other parts of the UK (read: principally, England).

The PRMB thus marks a possible return to the idea of managing the UK internal market from the centre (i.e. by the UK Government) with limited formal input from the devolved institutions. This was a key criticism of the UKIMA at the time of its enactment. The Johnson Government adopted that Act to furnish itself with important gatekeeping functions in relation to the regulation of intra-UK trade post-Brexit. The devolved parliaments withheld legislative consent. The UK and devolved governments have subsequently reached agreement on key issues around the UKIMA’s operation; for example, on the process for securing additional exclusions from the MAPs. But such agreements still privilege the position of the UK Government. As the Scottish Government found out when seeking to introduce a deposit return scheme for Scotland, UK ministers retain ultimate control regarding whether or not to allow the devolved nations to apply their regulatory preferences in devolved areas to goods and services entering their respective markets from elsewhere in the UK.

There is no suggestion here that the new UK Government has any intention to enact the PRMB without first obtaining the consent of the devolved legislatures. What this post does suggest, however, is that the UK Government may find consent difficult to obtain as a result of the Bill’s present design – a design that reinforces an approach to devolution that is more antagonistic than cooperative. A more constructive approach to market management would, at the very least, integrate devolved institutions, ideally the parliaments, into the exercise of the PRMB’s new powers to the extent that devolved competences are engaged. Given that the devolved governments are unlikely ultimately to disagree much with the UK Government on matters of substance (especially EU alignment), this point may appear somewhat moot. But it is process and principle that matter here, and the approach of the UK Government under the PRMB raises concerns for devolution.

Don’t Mention the UKIMA

The PRMB regulates the UK internal market. But the Bill says nothing about its relationship with the UKIMA despite the fact that, if enacted, it will occupy the same functional space. The only mention of the UKIMA is found in the Explanatory Notes in relation to Northern Ireland. Pursuant to s.13(c) of the European Union (Withdrawal) Act 2018, as amended by the Windsor Protocol, the UK Minister introducing the PRMB issued a statement on the Bill’s impact on the UK internal market and, in particular, trade between Northern Ireland and the rest of the UK. The Bill’s objectives – product safety; EU alignment; economic growth – are framed without reference to the UKIMA.

The PRMB and the UKIMA sit awkwardly together as instruments regulating domestic trade. For one thing, the two instruments differ in scope. With respect to goods, the UKIMA applies to regulations governing ‘sale and supply,’ (s.15) whereas the PRMB would provide the UK Government with broader powers to adopt regulations on the ‘use’ of in-scope products (Clause 1). The PRMB and the UKIMA also take different approaches to justifying regulatory intervention. Under the UKIMA, the list of public interest requirements justifying regulation (i.e. the suspension of the MAPs) is narrowly circumscribed (eg Schedule 1 and s.8(6)). Contrastingly, the PRMB sets out a broader range of public interest requirements justifying the adoption of new regulations in relation to the marketing and use of products throughout the UK. Clause 1(4), for example, categorises ‘risk’ with reference to threats to the health and safety of persons, domestic animals and property as well as electromagnetic disturbance. The lack of clarity around the PRMB’s relationship with the UKIMA is unhelpful, not least for business, and is liable to frustrate rather than promote growth and competitiveness.

It would be premature to read too much into the PRMB’s silence on the UKIMA. However, if intentional and repeated, it could indicate the new Labour Government’s preference, where possible, to sidestep or workaround the UKIMA, rather than to concentrate on its reform. Indeed, thus far, the Labour Government has said very little publicly on the UKIMA. Emphasis is placed on more macro-level objectives that cut across the UK internal market rather than address it specifically; for example, resetting relations with the devolved governments, furthering English devolution, and establishing a new Council of the Nations and Regions (eg Change: Labour Party Manifesto 2024).

Next Steps

The appearance of the PRMB is a reminder that we are still some way off mastering the functional challenges associated with managing the UK internal market under devolution. Whilst the Bill addresses much that it is reserved to the UK Parliament, the powers it proposes to grant the UK Government extend to important areas of devolved policymaking, including environmental protection. The devolved governments are unlikely to object to the PRMB’s substantive aims, particularly as the Bill opens up new space for EU alignment. But they should be alert to process concerns regarding the design of the Bill as introduced.

It is striking that, to the extent that devolved powers are engaged, there is no requirement for UK ministers to secure the consent of the devolved governments and/or their parliaments before exercising their powers. The devolved governments should consider pushing for amendments to address this as part of the LCM process. Clause 67 of the defunct Tobacco and Vapes Bill (discussed above) offers a template here. If enacted, that Clause would have required the UK Secretary of State to obtain the consent of the devolved governments where proposals for new UK-wide restrictions on tobacco and vapes contained provisions that would be within the legislative competence of the devolved legislatures. A relations reset with the devolved governments ought not to involve jettisoning examples of more constructive policymaking such as this that were emerging prior to the change of Government at Westminster.

My thanks to Mike Gordon and Paul Scott for their helpful comments on an earlier draft of this post. All errors remain my own.

Thomas Horsley is Professor of Law at the University of Liverpool

(Suggested citation: T. Horsley: ‘Relations Reset or Regression? Devolution and the Product Regulation and Metrology Bill’, U.K. Const. L. Blog (17th September 2024) (available at https://ukconstitutionallaw.org/))