Product Regulation and Metrology Bill [HL]
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Lord Sharpe of Epsom
Member’s explanatory statement
This amendment seeks to remove the broad powers granted to the Secretary of State under product regulations, when defining and regulating risks and determining what constitutes efficient or effective product operation.
Lord Sharpe of Epsom (Con)
My Lords, I will speak to Amendments 1 and 80 in my name, and to Amendment 133 in the name of the noble Lord, Lord Fox. As noble Lords will know, I was not present at Second Reading, having only just assumed this position. I hope that the Committee will indulge me if I range a little more freely than I would normally in my remarks on the amendments.
Amendment 1 is necessary because Clause 1 provides such broad powers for the Secretary of State on product regulations. The Delegated Powers and Regulatory Reform Committee regarded this clause and other clauses in the Bill as “skeleton legislation”. I thank the Minister for his letter dated 24 October detailing the Government’s position in answer to the committee’s original report, which was published on 15 October. But I note that the committee maintained its original position after an evidence session with Ministers on 16 October, which concluded that Clauses 1, 2, 3, 5, 6 and 9
“are inappropriate and should be removed from the Bill”.
His Majesty’s Official Opposition agree with the committee, and we reserve the right to return to this at later stages of the Bill. For now, I have tabled a series of amendments designed to elicit more information.
The committee rightly pointed out that Clause 1 confers considerable discretion to legislate in critical areas, such as product marketing, efficiency and accuracy, via statutory instruments. This amendment aims to address those concerns by ensuring that any regulatory powers in this space are appropriately balanced and subject to full legislative scrutiny. Clause 1 grants wide- ranging powers to the Secretary of State to make regulations through statutory instruments, SIs, a process with limited parliamentary oversight. Such discretion risks undermining democratic accountability, as SIs are not subject to the same level of scrutiny as primary legislation. Again, I think it is worth quoting the committee:
“skeleton legislation should only be used in the most exceptional circumstances and where no other approach would be reasonable to adopt”.
The report goes on to state that the Government are, in effect,
“asking Parliament to pass primary legislation which is so insubstantial that it leaves the real operation of the legislation to be decided by Ministers”.
On these Benches we argue that it is all so insubstantial, that the Bill could lead to regulations that significantly impact businesses and consumers without thorough debate or consultation. It is so insubstantial that it does not give businesses the certainty and predictability they need to thrive. It is so insubstantial that granting considerable discretionary powers could lead to frequent unpredictable changes in regulations, creating compliance challenges on a ministerial whim.
Removing this clause would promote stability and confidence, particularly for small and medium-sized enterprises, which may otherwise struggle to adapt to rapidly changing environments. Clause 1(1)(b) on
“ensuring that products operate efficiently or effectively”
is surely something that can best be left to market forces. Consumers are going to purchase products that work better than others, and this will incentivise producers to provide products that work well. Why is this the business of the state?
On Amendment 80, we see that there are similar issues. The Delegated Powers and Regulatory Reform Committee stated that Clause 5 is another example of skeleton legislation. Clause 5(2) confers sweeping powers to the Secretary of State to dictate the quantities in which goods may be marketed and the units of measurement used. We will return to this theme in later amendments. Granting such broad discretion risks bypassing parliamentary scrutiny and undermining democratic accountability. Decisions affecting trade, business practices and consumer choice should be subject to thorough debate, not delegated to ministerial regulations. The power to use metrology regulations to replace and repeal primary legislation merits a full explanation and compelling justification, but the memorandum fails to provide this—something that the Government admitted in the sixth report of the Delegated Powers and Regulatory Reform Committee on 30 October.
I thank the noble Lord, Lord Fox, for his Amendment 133, which requires that regulation must be referred to a Joint Committee of both Houses for review. The amendment aims to address a serious flaw in the Government’s approach to regulatory changes under this Bill. Specifically, it would ensure that regulations are subject to proper scrutiny by Parliament through a Joint Committee of both Houses, with further safeguards in place if significant departures from existing law are proposed.
By bypassing established mechanisms for scrutiny and relying heavily on statutory instruments, the Government exhibit a clear lack of respect for the legislative process and, indeed, the opinions of their own Attorney-General. As the Constitution Committee noted in its demolition of the Bill in its report on 18 October:
“We endorse the view of the Attorney General expressed at his recent Bingham Lecture on the rule of law: ‘[E]xcessive reliance on delegated powers, Henry VIII clauses, or skeleton legislation, upsets the proper balance between Parliament and the executive. This not only strikes at … rule of law values … but also at the cardinal principles of accessibility and legal certainty. In my view, the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means, in particular, a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards’”.
This amendment would restore Parliament’s rightful role in scrutinising significant legislative changes—“proper balance”, in the Attorney-General’s words—reaffirming its sovereignty and its duty to represent the interests of the people. In short, I agree with the Attorney-General. The fact that two committees have slated the Bill suggests that it is not justified, so we support this amendment. We think Clauses 1, 2, 3, 5, 6 and 9 should be junked. Does the Minister agree with his own Attorney-General? I beg to move.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
If this amendment is agreed, I shall not be able to call Amendments 2 or 3 by reason of pre-emption.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I welcome this landmark Bill, and I welcome my noble friend the Minister and the noble Lord, Lord Sharpe, to their Front-Bench positions. I firmly believe that the Bill protects consumer rights. However, I declare an interest as a member of the Secondary Legislation Scrutiny Committee, which scrutinises statutory instruments. In that respect, I refer to the amendment in the names of my noble friend Lady Crawley, the noble Earl, Lord Lindsay, and the noble Lord, Lord Foster of Bath, which would require the Secretary of State to conduct appropriate consultation on draft regulations under the Act.
It is vital that we set out as we mean to go on. One criticism that our committee had of many of the statutory instruments is the lack of proper consultation, as well as inadequate memorandums and impact assessments. This amendment in the name of my noble friend Lady Crawley is timely, and I urge my noble friends on the Front Bench to accept it. More effective scrutiny processes are required in legislation to ensure that the policy decisions made with the powers set out in the Bill can be effectively scrutinised as products and marketplaces evolve, particularly those that will evolve online. It is important that consumers are totally protected.
The noble Lord, Lord Jackson, referred to relationships with the EU. I hope that the Government are successful in resetting that relationship and that there is a closer relationship with the EU, because it is important not only for trade but for society and economic growth—and it is good for wider relations in this part of our global world.
Lord Frost (Con)
I shall speak briefly to my Amendment 128. I begin, like others, by congratulating my noble friend Lord Sharpe on his role.
My amendment is only a small one, and it is overwhelmed by the pretty savage surgery proposed in other amendments tabled by other noble Lords—a surgery that is well merited, on the basis of what we have seen so far. I shall save my substantive remarks on my main concerns about the Bill until the fourth group, where most of my amendments lie. I share the concerns about constitutional and democratic process expressed by other noble Lords so far. I would probably not go so far as the noble Lord, Lord Anderson, in advocating a very complex, process-heavy and corporatist EU-type process for the Bill, because I believe that speed and simplicity in legislation are also advantageous —but certainly, if any of the Bill survives, we need some sort of serious scrutiny-sifting process to make it work.
My Amendment 128 is just one tiny part of this. It would ensure that, if Clause 2 survived at all, the powers under Clause 2(7) would be exercised—if they were exercised—under the affirmative procedure. That, however, is really a minor part, when we look at some of the other proposals on the table. Nevertheless, I hope that the Minister will reflect, and I look forward to hearing his thoughts.
Lord Leong (Lab)
I thank the noble Lord for that. I shall take it away and speak to officials about this, but the purpose of the Bill is not to be too prescriptive, so that we cover most of the activities that can be described by various stages of production.
I want to conclude, if I may. I hope that I have been able to provide reassurance on all these matters and have assured noble Lords that the Government have carefully considered the importance of parliamentary scrutiny and sought to strike a careful balance. I therefore respectfully ask that the amendment is withdrawn.
Lord Sharpe of Epsom (Con)
My Lords, I do not really have very much to say. I am partially reassured by what the Minister has tried to say, but we will have to study the contents of this debate, which has been fascinating and wide-ranging. It was remiss of me not to have thanked the Minister earlier for his engagement and that of his team, and I apologise. We reserve the right to come back to this, but I beg leave to withdraw the amendment.
Lord Sandhurst (Con)
My Lords, I will speak to Amendment 10, in the name of my noble friend Lord Sharpe of Epsom, which seeks to delete Clause 1(4). It is worth looking at that subsection. It says:
“For the purposes of this Act, a product presents a risk if, when used for the purpose for which it is intended or under conditions which can reasonably be foreseen, it could … endanger the health or safety of persons”
or of domestic animals—I paraphrase—
“property (including the operability of other products), or … cause, or be susceptible to, electromagnetic disturbance”.
That is a bit beyond my knowledge grade.
I looked at this provision and it really is very broad. Where does it end? We say that the provision must be removed because it provides excessively broad powers to the Secretary of State to address things we simply know nothing about. It comes, of course, under the skeleton legislation; I have already made my points about the problems with that.
The definition of risk here has the potential to be so expansive that nearly any product, except an aircraft or certain other things which my noble friend has just identified, could be construed as presenting a risk under certain circumstances. A motor car can be perfectly safe and wonderfully designed but, if driven too fast or just badly in some other way, it will of course endanger life. That happens every other day. The same applies to a whole raft of mechanical tools and instruments—anything one wants to think about. If misused, they will cause danger.
If we have at some time in the future a Government who feel very strongly about something which, at the moment, none of us object to, they will be able to address that by secondary legislation, which will not be ultra vires—outside the scope of the legislation. It can do almost anything. We can all think of almost anything that we use at home, such as a power drill or a stepladder. If you misuse and fall off that, you break your skull. It could be motor cars or anything. This is absolutely absurd and far too broad.
If the Government want to legislate to say that motor cars must have a speed restriction, or must have brakes which do this or that, they should do that with specific regulation under specific legislation directed at that target, because Parliament has said, “We’ve had far too many accidents of this sort. We’ve got to address it”. That is the normal process we have as society develops, but a clause of this sort is just extraordinary. It really is Brave New World stuff.
Our complaint is simply that the broad scope of this definition could, in future, empower regulators to impose unnecessary restrictions on products where the risks are minimal or purely hypothetical—and certainly not within the scope of the imaginations of those of us in this Room—because somebody comes along, or a Government come along, in five years’ time and decides that they want to deal with it. Rather than having an embarrassing and difficult debate in Parliament, the Minister just has his way. That is not how we proceed in this country. We are a parliamentary democracy under, as we have been told, the rule of law. We would suggest that the Government have already attacked businesses, high-street retailers and farmers. Will these relentless, unidentified attacks on businesses ever stop? This provision, like others, risks creating legal uncertainty and regulatory overreach. We really must put a stop to it.
I say again that Clauses 1 and 2, as they stand, must be significantly revised or removed entirely, or the promise remains that we will move for them to be removed on Report.
The Minister of State, Department for Energy Security and Net Zero (Lord Hunt of Kings Heath) (Lab)
My Lords, it is a pleasure to respond to this particularly interesting debate. I, too, welcome the noble Lord, Lord Sharpe, to his new position. I must say, the noble Lords, Lord Sharpe and Lord Sandhurst, seem to have undergone a conversion, certainly since the former’s time in the Department for Business. I have not been able yet to count the number of regulations in primary legislation that the noble Lord took through but, given that he was a Home Office Minister and given the Home Office’s—how shall I put it?—productive record in producing legislation in Parliament, I hasten to suggest that it was quite a few.
Clearly, behind that is an important consideration about the shape of the Bill and why we need a regulation-making power. On the other hand, the Government would say to noble Lords that the intention is to use those regulations proportionately on the back of the policy consultation that has just taken place. We see here, in a sense, a tension between those noble Lords who wish to make sure that the legislation covers areas of concern—we have heard about the areas of concern for the noble Lords, Lord Foster and Lord Fox—and those noble Lords who feel that the regulation, or the power given here to Ministers through regulation, goes too wide. Clearly, a balance needs to be drawn.
Lord Fox (LD)
There is no dichotomy. We do think that the powers are too wide but part of what we want to do is channel those powers by making the sort of suggestions to which the Minister just referred.
Lord Hunt of Kings Heath (Lab)
I was hoping to assure the noble Lord that the way the Bill is constructed should give him comfort in relation both to the issues he has raised around safety and to the comments of the noble Lord, Lord Foster. Clearly, we think that consumer safety is very important. It is central to the Bill and a key component of our product regulation.
The Bill as drafted seeks to uphold a high standard of consumer protection and guarantees that the risks associated with products are minimised; Clause 118 provides for this. Although some products have risks that may be reduced through improvements to the design or clear warnings, others may be so dangerous that they should never be allowed to be sold in the first place. Baby self-feeding pillows are an example of this. They were recalled by the Office for Product Safety & Standards in 2022 due to the fact that the risks they presented could not be mitigated.
The noble Lord, Lord Fox, referred to Clause 1(1)(a), which refers to “reducing or mitigating risks”. We believe that that wording puts safety at the heart of the Bill while permitting regulations to acknowledge the wider spectrum of risk. This concept of a wider spectrum of risk covers the point that the noble Lord was trying to make.
That really is the same response as the one to Amendment 10, in the name of the noble Lord, Lord Sharpe, to which the noble Lord, Lord Sandhurst, referred—essentially, how the Bill explains the term “risk”. My noble friend Lord Leong explained how the Bill puts product safety, and reducing the risks associated with it, at its heart. That includes risks to the health and safety of persons, and Clause 10 makes it clear that “health” can refer to the physical or mental health of a person.
I understand what the noble Lord, Lord Sandhurst, was saying. He was concerned about the wide scope of the Bill, particularly Clause 1(4). However, in a sense, we have to capture in the Bill a definition wide enough to allow us to deal with some of the circumstances that noble Lords have raised. The aim is to be comprehensive but also proportionate. The noble Lord said that the Minister could just do this willy-nilly, but the fact is that regulations have to go through Parliament. He knows that in your Lordships’ House, one Member, even on a statutory instrument under the negative procedure, can ensure that a debate takes place. To come back to the words he used, at the very least for Ministers that can be a challenging and extensive process. A regulation will not be produced without full consultation as well. I would therefore argue that this is not an overweening power of the Executive; it is a sensible balance whereby we try to set out a broad enough definition to cover the kind of risks that noble Lords are concerned about. However, because it has to go through a parliamentary process and a consultation process before that, there are sufficient safeguards to ensure that any future Government or Ministers are not overriding in the way that the noble Lord suggested.
Clause 1(4) also ensures that damage to property is also included within the meaning of risk, meaning that regulations made under the Bill can be made for the purposes of mitigating risks to property, including the operability of other products. I can say to the noble Lord, Lord Fox, therefore, that the Bill captures the spectrum of risks that products may present to the health and safety of people and their property.
I also emphasise that not every element of our product safety framework is focused entirely on safety in the traditional sense. Our current regulatory framework covers a wide range of topics. This includes the use of radio spectrum, the ergonomics of protective gear and noise emissions from some outdoor machinery, such as concrete breakers and lawn-mowers. A number of our existing regulations, such as those covering fireworks and pressure equipment, also cover risks to domestic animals. By the way, I point out to the noble Lord, Lord Fox, that that is why domestic animals are mentioned in the clause; it is also for this reason that we cover the interoperability of products and their susceptibility to electromagnetic disturbance, along with the risks to domestic animals, as I said.
Amendment 7, in the name of the noble Lord, Lord Foster, would create in the Bill a category of high-risk products where regulations can apply across the board. He worries that the Bill is too discretionary. I understand where he is coming from.
Lord Foster of Bath (LD)
Just for absolute clarity, I did not say that the Bill was too discretionary; I said that the current arrangements were too discretionary and I want a change from that situation.
Lord Hunt of Kings Heath (Lab)
I am sorry if I misinterpreted what the noble Lord said, but I get his drift. We believe that the operation of our current product regulation framework already recognises the point that he made.
Lord Foster of Bath (LD)
I apologise but I am not quite sure what the Minister’s concern about my amendment therefore is. It specifically suggests that we put into the Bill a power for the Secretary of State to choose to bring forward regulations that will enable the classification of high-risk products in the way that he has just described. They are all included, including the recently developed framework, as possible ways of doing that within the amendment. I genuinely do not understand the Minister’s argument. I am giving an opportunity for clarity—so that in all circumstances there is an opportunity to use that framework.
Lord Hunt of Kings Heath (Lab)
If the noble Lord will let me explain, Clauses 1 and 11 grant powers to make regulations relating to product safety for a range of purposes, general or specific. The Government have set out in their response to the product safety review our intention in the months ahead to begin a process of sector reviews. They will consider whether any changes are needed to our existing regulation of higher-risk products to reflect modern challenges, such as those that the noble Lord has pointed out in two speeches this afternoon. We will also consider whether updates to the GPSR are necessary to ensure that cross-cutting and emerging risks are properly addressed, particularly where products fall outside current sector-specific rules.
Furthermore, in December 2022, the Office for Product Safety & Standards developed a product safety risk assessment methodology for GB regulators to use with non-compliant products. The methodology requires consideration of the tolerability of the risk identified. Where a risk is intolerable, a regulator can act robustly in relation to risks that may have a low possibility of occurring, but where, if they did, the outcome would be disastrous. A noteworthy example is the effort made by the Office for Product Safety & Standards to protect young people from the dangers of ingesting small, powerful magnets.
In Amendment 95 the noble Lord, Lord Fox, makes the sensible point that safe disposal can be a key part of protecting consumers and businesses. Clause 1(5) makes clear that regulations can cover safe disposal of products. We will consider whether particular products need specific regulation in this area on a case-by-case basis.
On the disposal of batteries specifically, the Government are committed to cracking down on waste as we move toward a circular economy. We shall have a discussion on the circular economy—I was going to say “in a few minutes”, but that might be a little hopeful. We are reviewing and propose to consult on reforms to UK batteries regulation before setting out our next steps.
Finally, regarding the question from the noble Lord, Lord Jackson, on the Schedule to the Bill, the things mentioned in the exclusions are covered by separate legislation. It is as simple as that.
Lord Jackson of Peterborough (Con)
I am grateful for the Minister’s indulgence; I have a straightforward question regarding Amendment 7 in the name of the noble Lord, Lord Foster. The Minister has answered it thoroughly but I still do not understand. What else would the Government be doing, in looking at the efficacy of product safety, that is not already in the amendment? Surely the noble Lord’s amendment merely formalises actions with regard to product safety that the Government themselves would do in analysing what they need to do to protect consumers. I cannot understand the Minister’s resistance to at least being a bit more emollient towards what seems to me quite a sensible amendment.
Lord Hunt of Kings Heath (Lab)
My Lords, I think that is surprising support from the noble Lord, Lord Foster. This is an iterative process in Committee, and we are certainly always prepared to look at suggestions put forward. My response is simply that we think the Bill as it stands, and the reviews that will take place, cover the points he raises. The Attorney-General’s advice also suggests that we should not unnecessarily add to legislation, but we will give it some consideration.
Lord Frost
Member’s explanatory statement
This amendment removes from the Bill a broadly-drawn power to align with EU environmental regulation.
Lord Frost (Con)
My Lords, in moving Amendment 4, I will also speak to my Amendments 6, 15, 36, 37 and 42. I thank the Minister for the constructive exchanges we have had in the previous two or three weeks, both face to face and in writing.
Lord Frost (Con)
My Lords, I will pick up where I left off. I was about to note that my six amendments in this group have a substantive purpose and, I guess, a probing, clarificatory purpose. I will begin with the substantive. My amendments are separate, but they all stem from the same broad thought, and they are designed to deal with the fact that the powers in the Bill give Ministers the ability to make regulations for products in the UK, or GB, in a range of areas defined by simple reference to existing EU laws; and, beyond that, to provide for those regulations to evolve dynamically —that is, when the EU changes its law, that change feeds through into our regulations.
Personally, I am not and have never been a purist in this area. I do not think it is necessary for GB to have its own defined sets of rules on every single thing, with the UKCA designation that covers everything—unless, of course, we were to drop the current approach to regulation entirely, which was, after all, developed in the last few decades under an EU law framework, and revert to a more traditional, common-law, objectives-based framework. That is possibly a step too far for the time being. Given that, it makes sense to look at other standards and whether they work for us. In practice, that is what happens now, in a limited way. For example, we recognise the CE marking for the EU while sometimes having the UKCA marking or our own rules in parallel, but there are two problems with this.
First, I do not see why that possibility of recognising other standards should be limited to EU law only. Of course, I do not really agree with the thrust of Amendment 17 in this group, which we are about to discuss, which would require alignment with EU law. We may want to use other standards from other territories with less prescriptive regulatory frameworks, and we may want to allow goods with different standards from more than one place to compete on our market to make the country open to the best standards globally. That is the first problem the Bill presents.
Secondly, I do not really think it is right for us in this Parliament to subcontract our lawmaking to another body. It must be clear what the law of this country is at any given moment; it must be properly on our books. It is not good enough to say to the question “What is the law on product X?” that the answer is whatever EU regulation number whatever says it is today. My amendments are designed to deal with these points, and I take them in logical, not numerical, order.
Amendment 4 deletes Clause 1(2). I propose this really to explore why it is necessary, in a Bill specifically on product regulation, to include the ability to import large areas of EU environmental law. I can see that it might be convenient, but the same could be said of lots of other areas too. If there is a more specific and persuasive explanation, I would be interested to hear it from the Minister.
Baroness Lawlor (Con)
May I clarify something? I specified that e-commerce was part of this study, in line with other digital arrangements. Many producers sell their goods through e-commerce.
Lord Sharpe of Epsom (Con)
My Lords, before I start, I thank all noble Lords, who have been incredibly generous to me this afternoon and this evening. I am immensely flattered.
I say to the noble Lord, Lord Hunt of Kings Heath, that, having been on the wrong end of a couple of punishment beatings by the Secondary Legislation Scrutiny Committee, I am a changed man. I have seen the light. I am reformed. I urge the Government to follow my lead and reform themselves.
This has been a most interesting debate. I thank all noble Lords for introducing their amendments and points of view with such admirable clarity. I thank in particular my noble friends Lord Frost and Lady Lawlor for their amendments. I have signed Amendments 4, 9, 15 and 42; I will explain why.
These amendments would ensure that we maintain our competitiveness on the global stage without being governed solely by EU standards. Amendment 4 seeks to remove a broadly drawn power that allows the Secretary of State to align UK product regulations with EU environmental laws. The provision, as currently drafted, could potentially lead to extensive regulatory alignment on environmental standards without proper parliamentary scrutiny or oversight. I am sorry to harp on about this but the Delegated Powers and Regulatory Reform Committee has expressed significant concerns about this clause, stating that it grants
“Ministers maximum flexibility to choose the direction that the law will take”.
Specifically, the committee warned that this could allow Ministers to align UK law “completely” with EU regulations, even when that may not be in the best interests of the UK or its regulatory framework. Through an overreliance on EU standards, we risk locking ourselves into a regulatory framework that does not necessarily reflect our national interests; of course, we acknowledge that it also might.
Amendment 6 in the name of my noble friend Lady Lawlor and Amendments 15, 36, 37 and 42 in the name of my noble friend Lord Frost are critical for positioning the UK as a global leader in product regulation and consumer protection. They would allow the UK to benefit from the best practices in product safety and environmental regulation from across the world, including from the US, Canada, Japan and other advanced economies. By allowing broader access to international standards, we would ensure that the UK can adapt to global trends and provide consumers with high-quality products. There should be no reason for the Government to oppose such an amendment—unless they are looking for dynamic alignment with the EU.
Amendment 15 is an excellent amendment that would ensure that the UK’s trade agreements with key partners are not undermined by regulations introduced under Clause 1. Those agreements represent some of the most dynamic and rapidly growing economies in the world; ensuring that we do not disadvantage our position with these treaties is crucial to the future growth and success of our global trade. This amendment is about maintaining and strengthening the UK’s competitiveness on the global stage.
The countries involved in these trade agreements, such as those in the CPTPP, are the fastest-growing economies in the world. In ensuring that regulations do not undermine our standing in these markets, the UK is better positioned to take advantage of these growing economies. If we align rigidly with Europe in this way—this is not an ideological point but a practical one—we risk missing opportunities in these markets, where growth is happening at a much faster pace than in the EU.
My noble friends Lord Jackson and Lady Lawlor hinted at this, and I also looked at some of the figures. To put things into perspective on the US versus the EU, in 1982, US and European Union GDPs were broadly similar. However, fast forward to today and the US’s economy is now roughly 45% larger than the EU’s, both in nominal terms and on a per capita basis. Those figures are from the World Bank. Purchasing power parity in the US is 38% larger than in the EU. The US has outpaced the EU significantly in its economic growth. I am not saying that this is due solely to differing regulatory regimes—of course it is not. These numbers encapsulate many varying factors, but it cannot be denied that regulation plays a major part in economic development. The simple conclusion is not that we should slavishly align with the US, just that we should retain flexibility.
The argument is clear: the EU is not the only partner with which the UK should align. We are seeing stronger growth opportunities in markets such as the US, Japan and Australia, with countries that are part of key trade agreements such as the CPTPP and in other areas. Given that the Government have talked extensively about boosting the UK’s growth prospects post Brexit—arguments with which we wholeheartedly agree—it is difficult to understand why they would not support an amendment that protects the UK’s position in these high-growth markets.
If the UK is to remain competitive, it must have the flexibility—which I do not believe is an abstract notion, as claimed by my noble friend Lord Kirkhope—to engage with the most dynamic global markets, rather than being rigidly shackled solely to the EU. There is no logical reason to oppose this amendment, unless there is an ideological fixation on aligning solely with the EU.
This amendment gives the UK the flexibility to take advantage of the best international practices without being locked into EU-centric frameworks that might not be in our best interests in the long term. I urge the Government to accept Amendment 15 in the name of my noble friend Lord Frost.
I will speak briefly on Amendment 17. I have great respect for the arguments made by all its proponents—my noble friend Lord Kirkhope, the noble Lords, Lord Russell, Lord Browne and Lord Fox, and others. In fact, I agree with their reasons for proposing the amendment, but it is perfectly reasonable to arrive at different conclusions. I agree with the noble Baroness, Lady Ritchie, who is no longer in her place but who, in an earlier debate, said that we should reset our relationship with the EU. Of course we should but, for the reasons that I have outlined, this is the wrong way to do it.
I oppose Amendment 17, which proposes to replicate EU law in relation to relevant product regulations. The notion of mandating such alignment with EU regulations post Brexit is not only inappropriate but, we believe, detrimental to the UK’s ability to independently shape its regulatory future. The amendment, by insisting on replicating EU law as the default position, undermines the very essence of the UK’s independence post Brexit. It will inevitably involve importing aspects of EU law that do not suit this country’s future. The entire purpose of leaving the European Union was to take control of our laws, regulations and trade policies. This amendment would force us to retain EU regulatory alignment, unless Ministers could justify divergence—a process that still places undue reliance on the EU framework. Our focus should be on maximising global competitiveness and exploring new trade opportunities, not tying ourselves to EU standards that might not be in our best interests while also accepting that they might.
Finally, I reassure the noble Lord, Lord Russell, that the new leader of the Opposition is well aware of what we are doing. I urge the Government to accept the amendments that I have signed, as I believe they are pro-business, pro-trade and pro-consumer.
Lord Frost (Con)
My Lords, it has been a very interesting debate, even though it may have had a slightly retro feel to those who lived through it all in 2019 and 2020.
I have a couple of quick points. On Amendment 37, if it is genuinely the Government’s view that this clause is not intended to and does not give the power to create ambulatory references, it seems we agree on substance—but maybe it could be clearer in the Bill.
On my question about the Windsor Framework, I gently suggest that the Minister has not quite answered the point. It is not about mirroring in GB; it is about goods that are able to circulate in Northern Ireland and therefore can circulate in the rest of the UK without further ado. I would appreciate it if that could be clarified further. I will not prolong this debate, even though I suspect we will return to this on Report. I beg leave to withdraw my amendment.
Lord Fox (LD)
My Lords, I will speak very briefly on Amendments 30, 115 and 125, which are in my name. As the noble Baroness, Lady Bennett, observed, they are designed to produce guard-rails that significantly strengthen the environmental and sustainability part of the Bill. It seems inconceivable to me that legislation of this kind would not carry these requirements.
Amendment 30, which is the substantive one, would add new subsection (2A) to Clause 2 in order to ensure that future regulations under the Act include provisions that relate to environmental impact assessments, the circular economy and granting consumers the right to repair products. On the latter, despite attempts, the tendency is to continue to find products manufactured with increasingly complex modules that defy cost-effective repair or sensible re-use, which should be an important part of the future economy. This amendment does not dot “i”s or cross “t”s, because that is the role of the actual regulation, but it sets a standard that we should be looking at for the regulation process. That is it; I could go into more detail, but I do not think I have to.
Amendments 115 and 125 are definitions that would help explain what we mean by “circular economy” and “right to repair”. I hope that His Majesty’s Government will find some sympathy with all of this group and find a wording. I am not proud about my words; I am sure that the noble Baroness, Lady Bennett, is the same. Let us find a way of putting these proposals into primary legislation because these are really important issues.
Lord Sharpe of Epsom (Con)
My Lords, I will be brief. I thank the noble Baroness, Lady Bennett, for introducing this group. I assure her and the noble Lord, Lord Fox, that we on these Benches want to see a bright future for our green and pleasant land. That said, we have some concerns about these amendments.
The first relates to the themes that the Committee has been exploring throughout this session. The Bill confers, as we have discussed at length, extensive Henry VIII powers on the Secretary of State. These amendments are broadly drawn and, we feel, have considerable holes in them. Given the wide Henry VIII powers conferred on the Secretary of State, it is not hard to imagine a world where a crazed zealot occupies the position of Secretary of State—it is not hard to think of those, is it?—and decides to apply these provisions in extreme ways without any scrutiny. We really should not lay ourselves open to that. These decisions should be subject to democratic scrutiny. Opinions will be sure to differ on the definitions of some of the phrases in these things. That is not to say they are wrong; it is just that opinions can, and will, differ.
My second point is that we are concerned that the amendments would impose significant costs on businesses. They will stifle competition and harm growth; obviously, this comes at a time when businesses are grappling with significant challenges. Although the proposals appear virtuous on the surface, in practice, they represent an unnecessary and impractical burden on businesses and consumers. That comes at a time when the country needs growth—a point that has obviously been acknowledged by the Government.
These amendments would create additional regulatory burdens, which would hamper industries already struggling with economic headwinds. I also note—I will expand on this theme in later debates—that the market is already supplying many of the solutions sought through these amendments. We believe that, for the many businesses —especially small and medium-sized enterprises—that are already struggling due to various factors, the cost of compliance with these rigid requirements could be devastating. It is not just businesses that will be affected because, of course, those costs will be passed on to consumers. Before any amendments in this group can be considered, surely we must assess the potential unintended consequences for businesses and consumers.
We have a strong record of delivering improvements for our environment but we on these Benches are clear that we should avoid overburdensome regulation on businesses. That said, informing consumer choice is an important component of efficient markets so, notwithstanding our objections, Amendments 28 and 30 in the name of the noble Lord, Lord Fox, have some merit. He is channelling his Orange Book foundations here. Overall, we would not support these amendments, for the reasons that I have outlined.
Lord Hunt of Kings Heath (Lab)
My Lords, it has been an interesting mini debate and I am grateful to the noble Baroness, Lady Bennett, and the noble Lord, Lord Fox, for their amendments. I want to remark on the miraculous conversion to regulatory purity of the noble Lord, Lord Sharpe. I can only refer to Luke, chapter 15, which states that
“joy shall be in heaven over one sinner that repenteth, more than over 90 and nine just persons, which need no repentance”.
I am not a crazed zealot but perhaps in my case, with due acknowledgement to St Augustine, “Oh Lord, make me regulatory pure, but not quite yet.”
We have encapsulated a very interesting debate because I think we all accept the really important point raised by the noble Baroness, Lady Bennett, and the noble Lord, Lord Fox. On the other hand, there are issues about the wording of the amendment and the unintended consequences, alongside the fact that we believe that current legislation allows us to do what both the noble Lord and the noble Baroness would require us to do.
Amendments 30, 115 and 125 are intended to reduce waste. They promote recyclability, repair and reuse of products, and seek to mandate that all product regulations made under the Bill would require an environmental impact assessment and provisions related to the right to repair and the circular economy. Amendment 50 of the noble Baroness, Lady Bennett, seeks to achieve similar by making it a requirement that regulations made under the Bill include provisions to promote circular economy principles. The noble Baroness’s amendment then goes a step further, requiring the Secretary of State to issue guidance on such principles within 12 months, and to review and update that guidance at least once every three years.
Under the duty set out in the Environment Act 2021, Ministers and policymakers must already consider the environmental impact of all new government policies. I certainly empathise with the whole concept of the circular economy, on which both the noble Baroness, Lady Bennett, and the noble Lord, Lord Fox, spoke with such eloquence. The Secretary of State for the Environment, Food and Rural Affairs has set the reduction of waste by moving to a circular economy as one of Defra’s top five priorities. In fact, the Secretary of State has convened a small ministerial group on the circular economy and asked his department to work with experts from industry and academia to develop a circular economy strategy. I will feed this debate and noble Lords’ contributions into the ministerial task force.
I understand the importance of the right to repair. The product regulations made under the Bill will cover many types of products, some of which may be inappropriate to repair. That is really part of the point; for instance, cosmetics is one example—the point that the noble Lord, Lord Sharpe, made. The Ecodesign for Energy-Related Products and Energy Information Regulations 2021 introduced measures including requirements for repairability for the first time in Great Britain. Those regulations contribute towards circular economy objectives by increasing the lifespan, maintenance and waste handling of energy-related products. Our aim is to introduce further right to repair measures when regulating individual products under the ecodesign for energy-related products regulations, where appropriate. That is probably the best way in which to approach it, rather than putting a generic requirement in this piece of legislation.
With regard to Amendments 5 and 28, I reassure noble Lords that the provisions in the Bill do not prevent the UK introducing new environmental regulations. Should we wish to set out broader regulations that exceed or differ from EU rules, we already have powers under other legislation to introduce wider environmental protection rules.
I understand the desire of noble Lords to have something in the Bill in relation to these important issues, but there is a problem of imposing requirements where they cannot reasonably be met or duplicate existing policies. I know that is not the intention, but we think that would be the effect of the amendments before us. We clearly want to avoid conflicting or duplicating regulations. In essence, we agree with the principles put forward by the noble Lord and the noble Baroness. We think we are covered by existing legislation and regulations, but I am grateful to them for bringing them forward.
Baroness Bennett of Manor Castle (GP)
My Lords, I thank the Minister for his response and noble Lords who have taken part in this time-constrained debate. I take some encouragement from the expressions of at least general support. Like the noble Lord, Lord Fox, I look forward to further discussions with the Minister on this issue. That is part of the reason why I tabled a number of amendments taking different approaches and going into different parts of the Bill because of the different ways of approaching it. We are very open to anything that might put in some kind of guard-rail.
If I may say so, the Minister gave a classic Civil Service response: “But it is covered by other legislation”. I point him to the figures I cited about how little progress has been made on waste reduction towards a target that is only three years away. What we are doing now is clearly not enough, and it is not working.
We are talking about the product regulation Bill, and on the point about right to repair and cosmetics, there are obviously different rules to be applied to different products. That is true of any Bill that covers product regulation.
I wish briefly to pick up the points made the noble Lord, Lord Sharpe, who suggested that these amendments might produce a further burden on consumers. If consumers found that their fridge lasted longer, for the kind of period that fridges used to last, that would be not a burden but a considerable advantage. If they were able to fix their mobile phone instead of having to pay a multinational company a large sum of money for a new one, that would certainly not be a burden on consumers. It would perhaps be a rebalancing of the Government acting in the interests of consumers rather than those of giant multinational producers.
We can see clearly that this is a debate that will continue, but in the meantime, I beg leave to withdraw Amendment 5.
Lord Hunt of Kings Heath (Lab)
My Lords, I say at once that I pay due regard to the Civil Service and the advice I receive, but these are the words of Ministers. There is a judgment here that you do not want to add legislation where you already have it. The point the noble Baroness makes is that the legislation is not being used effectively. The whole point of the Secretary of State for the Environment, Food and Rural Affairs’s task force is to look at the progress we are making and to refocus in relation to the circular economy. I hope the noble Baroness will not think that this is a damp squib of an answer because we take what she says very seriously. Of course, we will be happy to meet her and the noble Lord, Lord Fox, to discuss this important matter further.
Lord Sharpe of Epsom (Con)
My Lords, I reassure the noble Baroness that my fridge is more than 20 years old, and I have a very good mobile-phone repairer.
Baroness Bennett of Manor Castle (GP)
I guess the noble Lord has chosen his products well and been extraordinarily lucky. I am afraid some of my fridges have not lasted anything like so long.