The Construction Products (Amendment etc.) (EU Exit) Regulations 2020

• (ii) that an application for admission, or the giving of such a notice, would defeat the object of the entry, or that the premises are unoccupied, or that the occupier is temporarily absent and it might defeat the object of entry to await the return of the occupier,

the justice may by warrant under the justice’s hand, which shall continue in force for a period of one month, authorise any officer of an enforcement authority to enter the premises, if need be by force.

• (3) An officer entering any premises by virtue of paragraph 19 or a warrant under sub-paragraph (2) may be accompanied by such other persons, and bring such equipment, as may appear necessary to the officer.

• (4) On leaving any premises which a person is authorised to enter by a warrant under sub-paragraph (2), that person must, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against unauthorised entry as that person found them.

• (5) Where any construction products seized by an officer under paragraph 19 are submitted to a test, the officer must inform the persons mentioned in sub-paragraph (1) of the result of the test and, if—

• (a) proceedings are brought for an offence in relation to the products under any provision of Part 2 of this Schedule or for the forfeiture of the products under paragraph 9, or a suspension notice is served in respect of the products; and

• (b) the officer is requested to do so and it is practicable to comply with the request,

the officer must allow any person who is a party to the proceedings or, as the case may be, has an interest in the products to which the notice relates to have the products tested.

• (6) The references in sub-paragraph (2) to any information on oath shall be construed as references to any complaint on oath.

• (7) If any person who is not an officer of an enforcement authority purports to act as such under paragraph 19 or this paragraph, that person shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Obstruction of authorised officer

21

• (1) A person shall be guilty of an offence if the person—

• (a) intentionally obstructs any officer of an enforcement authority who is acting in pursuance of any provision of this Schedule; or

• (b) intentionally fails to comply with any requirement made of that person by any officer of an enforcement authority under any provision of this Schedule; or

• (c) without reasonable cause fails to give any officer of an enforcement authority any other assistance or information which the officer may reasonably require of that person for the purposes of the exercise of the officer’s functions in relation to any provision of this Schedule.

• (2) A person shall be guilty of an offence if in giving any information which any officer of an enforcement authority may reasonably require of that person for the purposes of the exercise of the officer’s functions in relation to any provision of this Schedule—

• (a) the person makes any statement which the person knows is false in a material particular; or

• (b) the person recklessly makes a statement which is false in a material particular.

• (3) A person guilty of an offence under sub-paragraph (1) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

• (4) A person guilty of an offence under sub-paragraph (2) shall be liable—

• (a) on conviction on indictment, to a fine;

• (b) on summary conviction, to a fine not exceeding level 5 on the standard scale.

Appeals against detention of products

22

• (1) Any person having an interest in any construction products which are for the time being detained under any provision of this Part of this Schedule by an enforcement authority or by an officer of such an authority may apply for an order requiring the products to be released to that person or to another person.

• (2) An application under this paragraph may be made—

• (a) to any magistrates’ court in which proceedings have been brought in Northern Ireland—

• (i) for an offence in relation to the products under any provision of Part 2 of this Schedule, or

• (ii) for the forfeiture of the products under paragraph 9;

• (b) where no such proceedings have been so brought, by way of complaint to a magistrates’ court.

• (3) On an application under this paragraph to a magistrates’ court, an order requiring products to be released may be made only if the court is satisfied—

• (a) that proceedings—

• (i) for an offence in relation to the products under any provision of Part 2 of this Schedule, or

• (ii) for the forfeiture of the products under paragraph 9,

have not been brought or, having been brought, have been concluded without the products being forfeited;

• (b) that no procedures are pending in relation to the products involving Member States or the Commission under Article 56 (procedure to deal at national level with construction products presenting a risk), 57 (Union safeguard procedure) or 58 (complying construction products which nevertheless present a risk to health and safety) of the EU Construction Products Regulation; and

• (c) where no proceedings under paragraph (a) have been brought, that more than six months have elapsed since the products were seized.

• (4) Any person aggrieved by an order made under this paragraph by a magistrates’ court, or by a decision of such a court not to make such an order, may appeal against that order or decision to the county court, and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981).

Compensation for seizure and detention

23

• (1) Where an officer of an enforcement authority exercises any power under paragraph 19 to seize and detain construction products, the enforcement authority shall be liable to pay compensation to any person having an interest in the products in respect of any loss or damage caused by reason of the exercise of the power if—

• (a) no offence under paragraphs 3, 4 or 5 has been committed in relation to the product;

• (b) no suspension notice, prohibition notice, or notice to warn has had effect in relation to the product; and

• (c) the exercise of the power is not attributable to any neglect or default by that person.

• (2) Any disputed question as to the right to or the amount of any compensation payable under this paragraph shall be determined by arbitration.

Recovery of expenses of enforcement

24

• (1) This paragraph shall apply where a court—

• (a) convicts a person of an offence in relation to any construction products under any provision of Part 2 of this Schedule; or

• (b) makes an order under paragraph 9 for the forfeiture of any construction products.

• (2) The court may (in addition to any other order it may make as to costs or expenses) order the person convicted or, as the case may be, any person having an interest in the products to reimburse an enforcement authority for any expenditure which has been or may be incurred by that authority—

• (a) in connection with any seizure or detention of the products by or on behalf of the authority; or

• (b) in connection with any compliance by the authority with directions given by the court for the purposes of any order for the forfeiture of the products.

PART 4 — Miscellaneous and supplemental

Restrictions on the disclosure of information

25

• (1) A person shall be guilty of an offence if that person discloses any information to which sub-paragraph (2) applies, except in a case where sub-paragraph (3) applies.

• (2) This sub-paragraph applies to information—

• (a) which was obtained by that person in consequence of its being given to any person in compliance with any requirement imposed by this Schedule;

• (b) which consists in a secret manufacturing process or a trade secret and was obtained by that person in consequence of the inclusion of the information—

• (i) in written or oral representations made for the purposes of paragraphs 11 to 14, or

• (ii) in a statement of a witness in connection with any such oral representations;

• (c) which was obtained by that person in consequence of the exercise by the Secretary of State of the power conferred by paragraph 15;

• (d) which was obtained by that person in consequence of the exercise by any person of any power conferred by Part 3 of this Schedule; or

• (e) which relates to any construction product and was disclosed to or through that person by virtue of Article 27(2) of the RAMS Regulation, other than information to which regulation 3 (offence of disclosure of restricted information by specified persons) of the Customs Disclosure of Information and Miscellaneous Amendments Regulations 2012¹² applies.

• (3) This sub-paragraph applies where—

• (a) the disclosure is of information which—

• (i) has been disclosed in any civil or criminal proceedings, or

• (ii) is or has been required to be contained in a warning published in pursuance of a notice to warn; or

• (b) the disclosure is made—

• (i) for the purpose of facilitating the exercise of a relevant person’s functions under this Schedule,

• (ii) for the purpose of facilitating the exercise of a relevant person’s enforcement or regulatory functions under any enactment (whether passed or made before or after the making of this Schedule),

• (iii) for the purposes of compliance with an EU obligation, or

• (iv) in connection with the investigation of any criminal offence or for the purposes of any civil or criminal proceedings.

• (4) In sub-paragraph (3)(b)(ii) the reference to a person’s functions shall include a reference to any function of making, amending or revoking any regulations or order.

• (5) A person guilty of an offence under this paragraph shall be liable—

• (a) on summary conviction, to a fine not exceeding level 5 on the standard scale;

• (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

• (6) In this paragraph—

• “relevant person” means any of the following— a Minister of the Crown or Northern Ireland department; any district council; any other person on whom enforcement or regulatory functions are conferred by or under any enactment.

Defence of due diligence

26

• (1) Subject to the following provisions of this paragraph, in proceedings against a person for an offence to which this paragraph applies it shall be a defence for that person to show that the person took all reasonable steps and exercised all due diligence to avoid committing the offence.

• (2) Where in any proceedings against any person for such an offence the defence provided by sub-paragraph (1) involves an allegation that the commission of the offence was due—

• (a) to the act or default of another; or

• (b) to reliance on information given by another,

that person shall not, without leave of the court, be entitled to rely on the defence unless, not less than seven clear days before the hearing of the proceedings, the person has served a notice under sub-paragraph (3) on the person bringing the proceedings.

• (3) A notice under this sub-paragraph must give such information identifying or assisting in the identification of the person who committed the act or default or gave the information as is in the possession of the person serving the notice at the time when that person serves it.

• (4) A person shall not be entitled to rely on the defence provided by sub-paragraph (1) by reason of reliance on information supplied by another, unless the person shows that it was reasonable in all the circumstances to have relied on the information, having regard in particular to—

• (a) the steps which the person took, and those which might reasonably have been taken, for the purpose of verifying the information; and

• (b) whether the person had any reason to disbelieve the information.

• (5) This paragraph applies to an offence under paragraph 3(1) or (4), 4(1), 5(1), 6(6), 11(4) or 13(2).

Liability of persons other than principal offender

27

• (1) Where the commission by any person of an offence to which paragraph 26 applies is due to an act or default committed by some other person in the course of any business of that other person, that person shall be guilty of the offence and may be proceeded against and punished by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

• (2) Where a body corporate is guilty of an offence under this Schedule (including where it is so guilty by virtue of sub-paragraph (1)) in respect of any act or default which is shown to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, or any partner in a limited liability partnership, that person, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

• (3) Where the affairs of a body corporate are managed by its members, sub-paragraph (2) shall apply in relation to the acts and defaults of a member in connection with that member’s functions of management as if that member were a director of the body corporate.

Service of documents etc.

28

• (1) Any document required or authorised by virtue of this Schedule to be served on a person may be so served—

• (a) by—

• (i) delivering it to that person, or by leaving it at that person’s usual or last known address or by sending it by post to that address, or

• (ii) sending it by electronic mail to that person’s electronic mail address; or

• (b) in the case of a body corporate, on the secretary or clerk of that body, by—

• (i) delivering it to the secretary or clerk, or by leaving it at the address of the registered or principal office of the body corporate or by sending it by post to that address, or

• (ii) sending it by electronic mail to his or her electronic mail address; or

• (c) in the case of a partnership, on a partner or on a person having control or management of the partnership business, by—

• (i) delivering it to the partner or the person having control or management of the partnership business, or by leaving it at the address of the principal office of the partnership or by sending it by post to that address, or

• (ii) sending it by electronic mail to his or her electronic mail address.

• (2) For the purposes of this paragraph the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom is its principal office within the United Kingdom.

Commencement of proceedings

29

In relation to any offence under paragraph 3(1) or (4), a magistrates’ court may try a complaint for such an offence if the complaint is made within twelve months from the time when the offence is committed.

Transitional provisions

30

• (1) In respect of a construction product which is made available on the market in respect of Northern Ireland during the pre-exit period, notwithstanding the amendments made by the 2019 Regulations and Schedule 2 to these Regulations, regulation 4 of the Construction Products Regulations 2013 continues to have effect as it did immediately before those amendments came into force.

• (2) Where a suspension notice, which relates to construction products in respect of Northern Ireland, is served before IP completion day on any of the grounds in Schedule 1 to the Construction Products Regulations 2013, the reference to those grounds in paragraphs 3(b), 7(b) and 8(b) of Schedule 2 to those Regulations is to be read on or after IP completion day as a reference to the grounds as they had effect immediately before that day.

• (3) Where a prohibition notice, which relates to construction products in respect of Northern Ireland, is served before IP completion day under regulation 11(1) of the Construction Products Regulations 2013, any reference in Schedule 3 to those Regulations to establishing that the grounds for the service of the notice are not made out is to be read on or after IP completion day as a reference to the grounds as they had effect immediately before that day.

• (4) In this paragraph “pre-exit period” means the period beginning with 1st July 2013 and ending immediately before IP completion day.

Signed

Signed by authority of the Secretary of State for Housing, Communities and Local Government

Christopher Pincher — Minister of State — Ministry of Housing, Communities and Local Government — 2020-11-26

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations amend the Construction Products (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/465) (“the 2019 Regulations”) before they come into force, and also make additional standalone provision in relation to Northern Ireland. Broadly the amendments in this instrument restrict the amendments in the 2019 Regulations so instead of having effect in relation to the United Kingdom they have effect in relation to Great Britain only. Schedule 2 amends the Construction Products Regulations 2013 (S.I. 2013/1387) so that the enforcement rules in those Regulations apply only in relation to the construction products regime in Great Britain (and not the whole of the United Kingdom). Schedule 3 sets out enforcement rules in relation to the construction products regime in Northern Ireland.

Regulation 3 and Schedule 1 make amendments to Schedule 1 to the 2019 Regulations. Schedule 1 to the 2019 Regulations amends Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC as it had effect immediately before IP completion day to correct deficiencies. The amendments in Schedule 1 to this instrument provide for the amendments in Schedule 1 to the 2019 Regulations to have effect in relation to Great Britain only (in Northern Ireland existing EU law, not retained EU law will continue to apply).

Regulation 3 and Schedule 2 make amendments to Schedule 2 to the 2019 Regulations. Schedule 2 to the 2019 Regulations amends the Construction Products Regulations 2013 to make consequential corrections on the UK exiting the European Union. The amendments in Schedule 2 to this instrument amend Schedule 2 to the 2019 Regulations so the Construction Products Regulations have effect in relation to Great Britain only (the enforcement rules which will apply in respect of Northern Ireland are set out in Schedule 3 to this instrument (see below)).

Regulation 4 makes provision to implement the Ireland/Northern Ireland Protocol to the Withdrawal Agreement. In particular, it provides a number of glosses to Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC as it has effect in EU law as amended from time to time, including providing for an accompanying product marking ie the UK(NI) indication.

Regulation 5 and Schedule 3 make provision for the enforcement of the EU law construction products regime in respect of Northern Ireland. Schedule 3 makes provision in respect of Northern Ireland which is akin to the provisions of the Construction Products Regulations 2013 (S.I. 2013/1387), with provisions not relevant to Northern Ireland being removed. The effect of the Schedule is to maintain the status quo from IP completion day and to implement the Ireland/Northern Ireland Protocol to the EU Withdrawal Agreement as it applies to construction products. The Ireland/Northern Ireland Protocol provides in certain cases for use of product marking ie the UK(NI) indication. Consequently, paragraphs 3, 4 and 5 of Schedule 3 provide for new offences in relation to affixing etc of the UK(NI) indication on construction products. Paragraphs 6 and 7 (suspension notices) make provision for the service of notices by an enforcement authority suspending the supply of construction products on grounds of the commission of an offence under paragraphs 3, 4 or 5, or on grounds relating to breach of certain provisions of Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC as it has effect in EU law as amended from time to time, and for appeals against suspension notices. Offences are provided for in respect of breach of notices. Paragraph 9 makes provision for forfeiture of construction products on grounds similar to those for the service of suspension notices. Paragraph 10 requires enforcement authorities to send certain details in relation to suspension notices to the Secretary of State.

Paragraphs 11 to 14 of Schedule 3 make provision for the service of notices by the Secretary of State prohibiting the supply of construction products, and requiring the issue of warnings in relation to construction products, on grounds of the commission of an offence under paragraphs 3 or 4, or on the grounds set out in paragraph 16. Offences are provided for in respect of breach of notices. Provision is also made for the procedure by which representations may be made against the grounds for service of a prohibition notice, and for notice to be given in advance of service of a notice to warn, and for a procedure for representations to be made against the service of the notice.

Paragraph 15 of Schedule 3 provides a power for the Secretary of State to require information to be provided to assist in deciding whether to serve prohibition notices and notices to warn, with an offence for non-compliance or provision of false information. Paragraph 17 enables district councils in Northern Ireland, amongst other things, to carry out market surveillance in their areas. Paragraph 18 of Schedule 3 empowers them to investigate and prosecute in relation to offences anywhere in Northern Ireland. Paragraphs 19 and 20 govern powers of entry, search and seizure in connection with failures to comply with the requirements of the EU Construction Products Regulation and offences under Part 2 of the Schedule. Paragraph 21 provides offences for obstructing, or giving false information to, an officer of an enforcement authority. Paragraph 22 covers appeals against detention of products. Paragraph 23 deals with compensation in certain circumstances in relation to seizure or detention of products and paragraph 24 provides for recovery of expenses, for example from a person who is convicted. Paragraph 25 provides an offence for disclosure of information obtained. Paragraphs 26 and 27 provide for a due diligence defence in certain cases and for other persons whose acts or default caused the principal offender to commit the offence to also be guilty of an offence. Paragraph 28 covers service of documents and paragraph 29 sets out the long stop date for commencing proceedings for an offence under paragraph 3(1) or (4). Paragraph 30 contains transitional provisions in relation to enforcement action which was started before the end of IP completion day under the Construction Products Regulations 2013.

An impact assessment has not been produced for this instrument as no significant impact on the private, voluntary or public sector is foreseen.

Footnotes

Editorial notes