KANBrief 3/21
The article is a personal view based on conversations with key players and the author’s experience as former head of the HSE Safety Unit (UK market surveillance of work products, product safety policy) and former chairman of a number of EU wide bodies including the ICSMS System, the Machinery ADCO Group (EU market surveillance authorities) and the MACHEX Group (inspection policy concerning the use of work equipment). Philip Papard was also a member of the EU Commission’s editorial team drafting the Machinery Directive Guide.
The UK had a troubled history in the European Economic Community/EU. Part of its negativity was linked to the lingering memory of the British Empire, when the English ruled a large part of the world and used this position to build a very beneficial (for the UK) trading system. The Empire is gone but is remembered by the older generation. I remember visiting the local “Home and Colonial Store” with my grandmother in the 1950s to buy groceries from across the Empire. Couple this with the UK not having been invaded since 1066 and it is easy to understand why some UK citizens are not as interested in European cooperation as those who suffered fascism, death, and destruction in mainland Europe. Instead, they look to former Empire countries where English is the main language – the USA, Australia, New Zealand, Canada, and South Africa.
Brexit was presented during the referendum as a restoration of sovereignty, but with little detail of what it would mean. We were fed images of millions of Turkish immigrants flooding the UK; stories about the EU banning the English cup of tea; and notions of being able to trade easily with both all of Europe and the rest of the world as we had done prior to joining the European Economic Community (EEC). There was talk of the Norwegian model or being like Switzerland – but little detail of what Brexit really meant. There was almost no discussion of how the Single Market was beneficial to UK industry and the influence the UK had via its seat at the table in the development of legislation and harmonised standards – issues all too technical for the level of debate seen.
As a result, we got Brexit but did not know what it meant. The consequences of this hard Brexit are only now beginning to be understood by the UK public, but there is still a long way to go before the implications are fully understood, a fact not helped by the Covid-19 pandemic clouding the effects.
Prior to Brexit the UK was very influential in developing and maintaining EU product legislation and in development of the related harmonised standards. It was a key player in developing and rolling out the ICSMS system, which supports the interchange of information on inspected products among all market surveillance authorities (MSAs) and avoids wasted duplication of their work. The UK now no longer has access to this system and its cooperation with EU MSAs has diminished. The UK was also central in the development of worker safety legislation. This included setting up and running the DG Employment’s MACHEX group, which brought together labour inspectors dealing with issues concerning the use of work equipment of all types. Again, the UK has lost this access.
This hard Brexit means that the UK’s direct influence on the core EU Acquis has been lost, and UK industry and its employees have become a rule taker rather than a contributory rule maker. The UK may diverge from some requirements and standards, but to trade with its largest market, manufacturers will still have to comply with the EU Acquis and standards for the products concerned. This could mean manufacturing two sets of products, one set CE marked and the other, for the UK market, only CA marked (the CA mark indicates conformity with the applicable requirements for products sold in Great Britain) – not an efficient or cost-effective option.
To CE mark the product the company may need to involve a Notified Body; these bodies however now no longer include UK-based bodies. Companies that previously used UK-based Notified Bodies may be able to continue working with them, as many of these bodies have moved their HQs to EU member states such as Ireland or the Netherlands, under the governance, compliance scrutiny and approval systems of the EU country concerned. The manufacturers will also need to appoint an authorised representative based in the EU to supply technical files to MSAs under the Machinery and similar Directives. Dublin and Amsterdam appear to be favourite locations for these parties.
Harmonised standards are central both to the New Approach and to helping industry comply with product requirements. UK industry is very keen not to lose its influence in developing such standards. Discussions, still ongoing, have resulted in BSI involvement and membership of CEN/CENELEC continuing in a revised format. The new arrangement was necessary as previously, only the standards bodies of EU, EFTA1 and candidate countries were CEN/CENELEC members.
To allow time to reach an agreement, it has been determined that BSI’s current CEN/CENELEC membership be continued to the end of 2021. The detailed planning that has taken place should ensure the continued membership of the British Standards Institute after 2021, with the same level of technical participation of UK experts but with less influence on future CEN and CENELEC policy owing to the reduced formal status. The UK’s status outside the European Economic Area already means that if the result of a formal vote on a standard is not positive, the vote will be recalculated excluding the vote of BSI (and similar non-EEA members). If the result in this case is positive, the standard must be adopted by all EEA2 members and also by the non-EEA members who voted for its adoption. If for example the UK voted against the standard, it would not be forced to adopt it in the event of it being approved following the recount.
BSI’s new membership status in CEN and CENELEC would enable critical work that UK industry contributes in TCs and WGs in the development of standards to continue. BSI will also cover the additional expenditure needed to make up for the EU Commission funding from which members from EU and EFTA countries benefit owing to their governments’ contributions to the EU and EFTA budgets.
BSI’s membership status is expected to be confirmed by CEN and CENELEC in November 2021. It will be interesting to see how this all develops over the next few years when – hopefully – the positive and constructive cooperation between the UK and the EU on workplace and product safety is able to continue.
Philip Papard
OBE (Officer of the Order of the British Empire)
1 European Free Trade Association
2 European Economic Area: EU Member States + Norway, Iceland and Liechtenstein