11.—(1) The Secretary of State may serve on any person a notice (“a prohibition notice”) prohibiting that person, except with the consent of the Secretary of State, from supplying any construction products in respect of Northern Ireland which are described in the notice and in relation to which the Secretary of State—
(a)has reasonable grounds for suspecting that an offence under paragraph 3 or 4 has been committed; or
(b)considers that there are grounds for the service of a prohibition notice in accordance with paragraph 16 (grounds for service of notices).
(2) A prohibition notice may include a requirement that any construction products to which it relates that have been made available on the market be recalled.
(3) A consent given by the Secretary of State for the purposes of a prohibition notice may impose such conditions on the doing of anything for which the consent is required as the Secretary of State considers appropriate.
(4) A person who contravenes a prohibition notice shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 5 on the standard scale or to both.
(5) A prohibition notice in respect of any construction products must—
(a)state that the Secretary of State considers that one or more of the grounds for the service of a prohibition notice in sub-paragraph (1) is made out in relation to the products, and specify which are the grounds in question;
(b)set out the reasons why the Secretary of State considers those grounds to be made out;
(c)where the construction products are to be recalled, state the terms of the recall;
(d)specify the day on which the notice is to come into force; and
(e)state that the person on whom it is served may at any time make representations in writing to the Secretary of State for the purpose of establishing that the matters stated in accordance with paragraph (a) are not the case.
(6) A notice that is based on the ground in paragraph 16(6)(a) must, in order to allow the Secretary of State to comply with Article 21 of the RAMS Regulation, state that it shall not have effect until the end of the period of ten days beginning on the day after it is served, but this requirement does not apply if the circumstances leading to the issue of the notice are such that paragraph (3) of that Article permits a measure to be taken without a period of consultation.
(7) The Secretary of State may revoke or vary a prohibition notice by serving on the recipient a notification stating that the notice is revoked or, as the case may be, is varied as specified in the notification.
(8) The Secretary of State may not vary a prohibition notice so as to make the effect of the notice more restrictive for the recipient.
(9) The service of a notification under sub-paragraph (7) shall be sufficient to satisfy the requirement in paragraph 12(10) that the recipient must be informed of the decision of the Secretary of State.
12.—(1) If representations in writing about a prohibition notice served under paragraph 11 are made by the recipient to the Secretary of State, it shall be the duty of the Secretary of State to consider whether to revoke the notice and—
(a)if the Secretary of State decides to revoke it, to do so;
(b)in any other case, to appoint a person to consider those representations, any further representations made (whether in writing or orally) by the recipient about the notice and the statements of any witnesses examined under this sub-paragraph.
(2) Where the Secretary of State has appointed a person to consider representations about a prohibition notice, it must serve a notification on the recipient which—
(a)states that the recipient may make oral representations to the appointed person for the purpose of establishing that the matters stated in accordance with paragraph 11(5)(a) are not the case; and
(b)specifies the place and time at which the oral representations may be made.
(3) The time specified in a notification served under sub-paragraph (2) must not be before the end of the period of twenty-one days beginning with the day on which the notification is served, unless the recipient otherwise agrees.
(4) A person on whom a notification has been served under sub-paragraph (2) or that person’s representative may, at the place and time specified in the notification—
(a)make oral representations to the appointed person for the purpose of establishing that the matters stated in accordance with paragraph 11(5)(a) are not the case; and
(b)call and examine witnesses in connection with the representations.
(5) Where representations in writing about a prohibition notice are made by the recipient to the Secretary of State at any time after a person has been appointed to consider representations about that notice, then, whether or not the appointed person has made a report to the Secretary of State, sub-paragraphs (6) to (8) shall apply instead of sub-paragraphs (1) to (4).
(6) The Secretary of State must, before the end of the period of one month beginning with the day on which it receives the representations, serve a notification on the recipient which states—
(a)that the Secretary of State has decided to revoke the notice, has decided to vary it or, as the case may be, has decided neither to revoke nor vary it; or
(b)that, a person having been appointed to consider representations about the notice, the recipient may, at a place and time specified in the notification, make oral representations to the appointed person for the purpose of establishing that the matters stated in accordance with paragraph 11(5)(a) are not the case.
(7) The time specified in a notification served for the purposes of sub-paragraph (6)(b) must not be before the end of the period of twenty-one days beginning with the day on which the notification is served, unless the recipient otherwise agrees or the time is the time already specified for the purposes of sub-paragraph (2)(b).
(8) A person on whom a notification has been served for the purposes of sub-paragraph (6)(b) or that person’s representative may, at the place and time specified in the notification—
(a)make oral representations to the appointed person for the purpose of establishing that the matters stated in accordance with paragraph 11(5)(a) are not the case; and
(b)call and examine witnesses in connection with the representations.
(9) Where a person is appointed to consider representations about a prohibition notice, it shall be the duty of that person to consider—
(a)any written representations made by the recipient about the notice, other than those in respect of which a notification is served under sub-paragraph (6)(a);
(b)any oral representations made under sub-paragraph (4) or (8); and
(c)any statement made by witnesses in connection with the oral representations,
and, after considering any matters under this sub-paragraph, to make a report (including recommendations) to the Secretary of State about the matters so considered and the notice.
(10) It shall be the duty of the Secretary of State to consider any report made under sub-paragraph (9) and, after considering the report, to inform the recipient of the decision with respect to the prohibition notice to which the report relates.
(11) This paragraph and paragraph 11 are without prejudice to the operation of—
(a)Article 21(4) (restrictive measures: withdrawal of measures after effective action) of the RAMS Regulation in the case of a prohibition notice based on the ground in paragraph 16(6)(a);
(b)Article 57(2), second sentence (Union safeguard procedure: national measure considered unjustified) of the EU Construction Products Regulation in the case of a prohibition notice based on the ground in paragraph 16(6)(b); and
(c)Article 58(4) (complying construction products which nevertheless present a risk to health and safety: evaluation of national measures by the Commission) of the EU Construction Products Regulation in the case of a prohibition notice based on the ground in paragraph 16(6)(c).
(12) Where in a notification served on any person under this paragraph the Secretary of State has appointed a time for the making of oral representations or the examination of witnesses, it may, by giving that person such notification as the Secretary of State considers appropriate, change the time to a later time or appoint further times at which further representations may be made or the examination of witnesses may be continued; and sub-paragraphs (4) and (8) shall have effect accordingly.
(13) For the purposes of this paragraph the Secretary of State may appoint a person (instead of the appointed person) to consider any representations or statements, if the person originally appointed, or last appointed, to consider those representations or statements has died or appears to the Secretary of State to be otherwise unable to act.
(14) In this paragraph—
“the appointed person”, in relation to a prohibition notice means the person for the time being appointed under this paragraph to consider representations about the notice;
“notification” means notification in writing; and
“recipient”, in relation to a prohibition notice, means the person on whom the notice is or was served.
13.—(1) The Secretary of State may serve on any person a notice (“a notice to warn”) requiring that person, at that person’s own expense, to publish, in a form and manner and on occasions specified in the notice, a warning about any construction products which that person supplies or has supplied in respect of Northern Ireland which are described in the notice and in respect of which the Secretary of State—
(a)has reasonable grounds for suspecting that any offence under paragraph 3 or 4 has been committed; or
(b)considers that there are grounds for the service of a notice to warn in accordance with paragraph 16.
(2) A person who contravenes a notice to warn shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 5 on the standard scale or to both.
(3) If the Secretary of State proposes to serve a notice to warn on any person in respect of any construction products, the Secretary of State must, before service of the notice, serve on that person a notification in writing which—
(a)contains a draft of the proposed notice;
(b)states that the Secretary of State proposes to serve a notice in the form of the draft on that person;
(c)states that in respect of the products described in the draft the Secretary of State considers that one or more of the grounds for the service of a notice to warn in sub-paragraph (1) is made out in relation to the products, and specify which are the grounds in question;
(d)sets out the reasons why the Secretary of State considers the matters described in paragraph (c) to be the case;
(e)states that the person may make representations to the Secretary of State for the purpose of establishing that the matters stated in accordance with paragraph (a) are not the case if, before the end of the period of fourteen days beginning with the day on which the notification is served, the person informs the Secretary of State—
(i)that the person intends to make representations, and
(ii)whether the representations will be made only in writing or both in writing and orally.
(4) Where the Secretary of State has served a notification containing a draft of a proposed notice to warn on any person, it must not serve a notice to warn on that person in respect of the products to which the proposed notice relates unless—
(a)the period of fourteen days beginning with the day on which the notification was served expires without the Secretary of State being informed as mentioned in sub-paragraph (3)(e);
(b)the period of twenty-eight days beginning with that day expires without any written representations being made by that person to the Secretary of State about the proposed notice; or
(c)the Secretary of State has considered a report about the proposed notice by a person appointed under paragraph 14(1).
(5) The Secretary of State may revoke a notice to warn by serving on the person on whom the notice was served a notification stating that the notice is revoked.
14.—(1) Where a person on whom a notification containing a draft of a proposed notice to warn has been served—
(a)informs the Secretary of State as mentioned in paragraph 13(3)(e) before the end of the period of fourteen days beginning with the day on which the notification was served; and
(b)makes written representations to the Secretary of State about the proposed notice before the end of the period of twenty-eight days beginning with that day,
the Secretary of State must appoint a person to consider those representations, any further representations made by that person about the draft notice and the statements of any witnesses examined under this paragraph.
(2) Where—
(a)the Secretary of State has appointed a person to consider representations about a notice to warn; and
(b)the person whose representations are to be considered has informed the Secretary of State for the purposes of paragraph 13(3)(e) that the representations the person intends to make will include oral representations,
the Secretary of State must inform the person intending to make the representations of the place and time at which oral representations may be made to the appointed person.
(3) Where a person on whom a notification containing a draft of a proposed notice to warn has been served is informed of a time for the purposes of sub-paragraph (2), that time must not be—
(a)before the end of the period of twenty-eight days beginning with the day on which the notification was served; or
(b)before the end of the period of seven days beginning with the day on which that person is informed of the time.
(4) A person who has been informed of a place and time for the purposes of sub-paragraph (2) or the person’s representative may, at that place and time—
(a)make oral representations to the appointed person for the purpose of establishing that the matters stated in accordance with paragraph 13(3)(c) are not the case; and
(b)call and examine witnesses in connection with the representations.
(5) Where a person is appointed to consider representations about a proposed notice to warn, it shall be the duty of that person to consider—
(a)any written representations made by the person on whom it is proposed to serve the notice; and
(b)in a case where a place and time has been appointed under sub-paragraph (2) for oral representations to be made by that person or that person’s representative, any representations so made and any statements made by witnesses in connection with those representations,
and, after considering those matters, to make a report (including recommendations) to the Secretary of State about the matters so considered and the proposal to serve the notice.
(6) It shall be the duty of the Secretary of State to consider any report made under sub-paragraph (5) and, after considering the report, to inform the person on whom it was proposed that a notice to warn should be served of its decision with respect to the proposal.
(7) If at any time after serving a notification on a person under paragraph 13(3) the Secretary of State decides not to serve on that person either the proposed notice to warn or that notice with modifications, the Secretary of State must inform that person of the decision; and nothing done for the purposes of paragraphs 13(3) and (4) and this paragraph before that person was so informed shall—
(a)entitle the Secretary of State subsequently to serve the proposed notice or that notice with modifications; or
(b)require the Secretary of State, or any person appointed to consider representations about the proposed notice, subsequently to do anything in respect of, or in consequence of, any such representations.
(8) Where a notification containing a draft of a proposed notice to warn is served on a person in respect of any products, a notice to warn served on that person in consequence of a decision made under sub-paragraph (6) must either be in the form of the draft or must be less onerous than the draft.
(9) This paragraph and paragraph 13 are without prejudice to the operation of—
(a)Article 21(4) (restrictive measures: withdrawal of measures after effective action) of the RAMS Regulation in the case of a notice to warn based on the ground in paragraph 16(6)(a);
(b)Article 57(2), second sentence (Union safeguard procedure: national measure considered unjustified) of the EU Construction Products Regulation in the case of a notice to warn based on the ground in paragraph 16(6)(b); and
(c)Article 58(4) (complying construction products which nevertheless present a risk to health and safety: evaluation of national measures by the Commission) of the EU Construction Products Regulation in the case of a notice to warn based on the ground in paragraph 16(6)(c).
(10) Where, in a notification served on any person under paragraph 13(3), the Secretary of State has appointed a time for the making of oral representations or the examination of witnesses, it may, by giving that person such notification as the Secretary of State considers appropriate, change the time to a later time or appoint further times at which further representations may be made or the examination of witnesses may be continued; and sub-paragraph (4) shall have effect accordingly.
(11) For the purposes of this paragraph the Secretary of State may appoint a person (instead of the appointed person) to consider any representations or statements, if the person originally appointed, or last appointed under this sub-paragraph, to consider those representations or statements has died or appears to the Secretary of State to be otherwise unable to act.
(12) In this paragraph—
“the appointed person”, in relation to a proposal to serve a notice to warn, means the person for the time being appointed under this paragraph to consider representations about the proposed notice; and
“notification” means notification in writing.
15.—(1) If the Secretary of State considers that, for the purpose of deciding whether—
(a)to serve, vary or revoke a prohibition notice; or
(b)to serve or revoke a notice to warn,
information is required which another person is likely to be able to provide, the Secretary of State may serve on the other person a notice under this paragraph.
(2) A notice served on any person under this paragraph may require that person—
(a)to provide to the Secretary of State such information as is specified in the notice, within a period so specified;
(b)to produce such records as are specified in the notice at a time and place so specified and to permit a person appointed by the Secretary of State for the purpose to take copies of the records at that time and place.
(3) A person shall be guilty of an offence if the person—
(a)fails, without reasonable cause, to comply with a notice served on that person under this paragraph; or
(b)in purporting to comply with a requirement which by virtue of sub-paragraph (2)(a) is contained in such a notice—
(i)provides information which the person knows is false in a material particular, or
(ii)recklessly provides information which is false in a material particular.
(4) A person guilty of an offence under sub-paragraph (3) shall—
(a)in the case of an offence under paragraph (a) of that sub-paragraph, be liable on summary conviction to a fine not exceeding level 5 on the standard scale;
(b)in the case of an offence under paragraph (b) of that sub-paragraph, be liable—
(i)on conviction on indictment, to a fine,
(ii)on summary conviction, to a fine not exceeding level 5 on the standard scale.
16.—(1) There are grounds for the service of a suspension notice under paragraph 6(1)(b), a prohibition notice under paragraph 11(1)(b) or a notice to warn under paragraph 13(1)(b), as the case may be, where one or more of the following sub-paragraphs applies in relation to the construction products concerned.
(2) This sub-paragraph applies where the service of such a notice is appropriate because there has been a failure to comply in respect of Northern Ireland with any requirement under any of the following provisions of the EU Construction Products Regulation—
(a)Article 11(2) (duty of manufacturer of construction product to keep technical documentation and declaration of performance for 10 years etc);
(b)Article 11(8) (duty of manufacturer of construction product to provide information and documentation to demonstrate conformity with declaration of performance etc.);
(c)Article 12(2) (duty of manufacturer’s authorised representative to keep technical documentation and declaration of performance etc.);
(d)Article 13(8) (duty of importer of construction product to keep technical documentation and declaration of performance etc.);
(e)Article 13(9) (duty of importer of construction product to provide information and documentation to demonstrate conformity with declaration of performance etc.);
(f)Article 14(5) (duty of distributor of construction product to provide information and documentation to demonstrate conformity with declaration of performance etc.); or
(g)insofar as it imposes duties in relation to Article 11(2) and (8), Article 15 (duties of importer and distributor to comply with Article 11 as if a manufacturer etc.).
(3) This sub-paragraph applies where Article 20 (products presenting a serious risk) of the RAMS Regulation is applicable to the products.
(4) This sub-paragraph applies where Article 29(1) (control of products entering the Community market (national measures): serious risk) of the RAMS Regulation is applicable to the products.
(5) This sub-paragraph applies where the service of such a notice is appropriate in accordance with Article 29(2) (control of products entering the Community market (national measures): product not complying with Community harmonisation legislation) of the RAMS Regulation.
(6) This sub-paragraph applies where the service of such a notice is appropriate in accordance with—
(a)the second sub-paragraph of Article 56(1) (procedure to deal at national level with construction products presenting a risk) of the EU Construction Products Regulation;
(b)Article 56(4) or (8) of the EU Construction Products Regulation; or
(c)Article 58(1) (complying construction products which nevertheless present a risk to health and safety) of the EU Construction Products Regulation.
(7) This sub-paragraph applies where the product must be withdrawn from the market in the European Union (including Northern Ireland) as a non-compliant construction product by virtue of Article 57(2) (Union safeguard procedures) of the EU Construction Products Regulation.
(8) This sub-paragraph applies where the service of such a notice is appropriate in accordance with Article 59(2) (formal non-compliance) of the EU Construction Products Regulation, without prejudice to sub-paragraph (2).