Grand Committee

Wednesday 27th November 2024 Grand Committee

Wednesday 27 November 2024

Product Regulation and Metrology Bill [HL]

Committee stage
Wednesday 27th November 2024 Grand Committee

Committee (3rd Day)

Relevant documents: 2nd, 4th and 6th Reports from the Delegated Powers Committee. Scottish, Welsh and Northern Ireland legislative consent sought.

16:15

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bell rings and resume after 10 minutes.

Clause 2: Product requirements

Amendment 23

Moved by

[Baroness Finlay of Llandaff]

23: Clause 2, page 2, line 42, at end insert “and emergency services”
Member's explanatory statement
This amendment is intended to ensure regulated marketplaces co-operate with emergency services (where appropriate) to protect consumers from unsafe products.

[Baroness Finlay of Llandaff (CB)]

My Lords, much of this Bill, as we know, is underpinned by secondary legislation, which has yet to be set out. That, of course, includes online marketplaces. To support the development of effective regulation, the Government, I hope, will set out their timetable for developing such secondary legislation as soon as possible. They should also provide clarification on who those referred to in the Bill as the “relevant authorities” are, particularly in relation to online marketplaces, which have to co-operate with others in Clause 2.

The UK’s fire and rescue services provide front-line response when dangerous products are sold in an online marketplace and catch fire or set fire to other properties and cause terrible burns to anyone who happens to be nearby. The London Fire Brigade, to which I am most grateful for the information it has given me, has seen a stark rise in e-bike and e-scooter fires in recent years. It responds to an incident about every 48 hours now. In this year alone, there were 131 fires from January to September. Given the role of the fire and rescue services, it would be helpful to set it out and recognise it in regulations. That is the reason for my Amendment 23, which is the lead amendment in this group, and Amendment 105, which goes with it.

Amendment 23 would ensure that regulated marketplaces co-operate with emergency services where appropriate to protect consumers from unsafe products and allow fire and rescue services to respond to fire safety concerns about known products. Some online marketplaces already co-operate with fire and rescue services. One of those—which I will not name because I do not think it appropriate to provide advertising—is a major online supplier that does include safety advice from the London Fire Brigade, but unfortunately, not all sites do.

The Bill is a welcome step to protect consumers from harmful products. It has very wide scope, but it needs to cover the online marketplaces that facilitate the sale or giving away of products through private individuals from one to another, as well as those sold as new. That includes the likes of some of the trading websites—again, I will not name them because I do not want to advertise them. From investigations by the London Fire Brigade, we know that products sought from second-hand online marketplaces include e-bikes, chargers and batteries, which have the potential to cause great harm. It has seen examples of incidents such as the Sutton railway station fire in March, when fire crews were called to the station during rush hour as commuters were on their way home. A bike owner had bought an e-bike from an online marketplace four months beforehand and had had no issues with the purchase. The station commander has confirmed that the fire was ferocious, happened extremely quickly and would have been devastating if things had worked out differently. He said that he hates to think of the tragic consequences that could have occurred. It was, in a way, just fortunate that it happened where it did and that no one was injured, but it serves to highlight the dangers when products are purchased or given away for free from one individual to another.

I know that Amendment 32 has already been debated, and I apologise to the Committee that I was unable to be here; I was on an aeroplane, because the railway lines were flooded. But I read Hansard, and the comments there are all relevant to the stark rise in e-bike fires in the capital.

Turning to Amendment 105 and Clause 7, the proposals would give the regulator the power to require companies subject to the regulation to provide information on the products being sold. As drafted, this clause would give the regulator only the power to require the provision of information and does not give them a responsibility to share this with bodies that have a statutory duty or responsibility for public safety, including fire and rescue services. The role of the data from the London Fire Brigade has been really important and has shown us the scale of the problem. Ensuring that emergency services have access to all the data will be welcome going forward in monitoring safety and spotting things—perhaps products that we currently cannot even imagine, which may come on to the marketplace and subsequently prove to be unsafe.

The change to Clause 7 in my Amendment 105 would ensure that regulations make provision for sharing information about unsafe products with the emergency services, including fire and rescue services, and that they have the information they need to respond to these emerging risks. They also run prevention campaigns and can provide accurate safety messaging, which can all be supportive of public safety, so that the Bill can meet its overall and much-needed aims. I beg to move.

[Lord Foster of Bath (LD)]

I rise briefly to support the amendments in the name of the noble Baroness. I also draw the Minister’s attention to the fact that when I moved Amendments 2 and 27 in an earlier group, on the issue of installation, I pointed out that in respect of the potentially very dangerous lithium-ion batteries used in EV charging-point systems, for example, and solar panel array storage batteries, there is currently no requirement on the competent person scheme individual who is installing those systems to notify relevant authorities of the installing of those batteries.

I pointed out at the time that lithium-ion batteries, about which we will no doubt speak a great deal when we come to group 5, can create huge fires at high temperatures and very toxic gases; I also pointed out that, crucially, they cannot be put out by the use of water. That is why it is so important that the relevant authorities, particularly the emergency services, are aware of the current location of such devices. The current arrangements require the individual house owner to make such a notification. My amendment argued that it should be the responsibility of the installer not only to check on the safety of the entire system but to make that notification. For that reason, I am particularly supportive of the noble Baroness’s amendment.

[Lord Fox (LD)]

My Lords, had I been a little shrewder on the grouping, I would have included in this group Amendment 106, which we will debate in the antepenultimate group of the Bill, as it also addresses Clause 7 and goes after the same objective of information sharing. Whether it is lithium-ion batteries or some other danger, it is important that we learn from the problems that are established and that the right people can get that information, so that learning process can start.

I suggest that, whether it is the process set down by the noble Baroness, Lady Finlay, which we support, or something like my Amendment 106, or something that the drafters sitting behind the Minister can do much better than we can, there needs to be a point in this Bill about a process of information sharing, whether it is set out in detail, as in my amendment, which talks about who or what those bodies are, or whether it is a more general duty, as the noble Baroness, Lady Finlay, has set out. We support these proposals, and I hope that we can have a debate next time. I hope that the Minister will acknowledge the need to understand dangers, learn from them and move to be able to prevent them.

[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness, Lady Finlay, for her important amendments. I, too, am looking forward to exploring the meaning of “relevant authorities” in the next group. If this is really about product safety, of course we have to have regard to unsafe products, and of course that information ought to be shared with the emergency services, so I have absolutely no problem in supporting all those amendments.

[The Minister of State, Department for Energy Security and Net Zero (Lord Hunt of Kings Heath) (Lab)]

My Lords, I am grateful to noble Lords who have spoken in this interesting debate. Obviously, the noble Baroness, Lady Finlay, speaks with great experience in this area, on the higher risk of the online second-hand marketplace and the relationship between that, the information and the emergency services, as she so rightly says. I take the point made by the noble Lord, Lord Foster, which we will debate later on. I have also noted Amendment 106 from the noble Lord, Lord Fox, which seeks to ensure that the information-sharing provisions apply to more bodies, including medical examiners and coroners. In fact, he has put an extensive list in that amendment.

On the issue of secondary legislation, I cannot as yet commit to a detailed timetable. Clearly, this Bill is starting in your Lordships’ House, so we do not know when it is going to get through and, I hope, receive Royal Assent. Then work will obviously take place in relation to secondary legislation, but my understanding is that, in the meantime, we are continuing to work with stakeholders to make sure that we can do this as quickly as possible.

We are coming on to the issue of relevant authorities but, as we see it, it is restricted under Clauses 3(2) and 6(2) to those authorities fulfilling a public function, such as local authorities and sectoral regulators. We think that any further specification would limit our ability to ensure that enforcement authorities can be equipped with necessary powers to enforce their areas of responsibility. Relevant authority and inspector functions are outlined in Clauses 3(3), 6(3), 3(4) and 6(4) respectively, but I suspect that we will come back to this in relation to the amendment from the noble Lord, Lord Fox, later on.

The noble Lord, Lord Foster, mentioned lithium batteries. We know that he is making a very important point—we very much acknowledge that. We think that the powers in the Bill will allow us to determine what changes and updates to our regulations may be needed to ensure the best protections for consumers and support for reputable retailers, including those related to installation.

On data sharing, which the noble Baroness, Lady Finlay, has raised, I have worked with the noble Baroness in the past on CO₂ safety issues, where again the issue of data being shared is very important. That also relates to death certification, in getting accurate information. I well understand that. The draft provisions already allow regulations to make provision for information sharing and co-operation with emergency services. Existing legislation that seeks to facilitate information exchange does not always cover the type of data needed to help protect consumers from unsafe products. We believe that the Bill aims to improve data exchange on product safety among public authorities, emergency services and consumers. Powers in the Bill will allow for regulations to enable extending data-sharing agreements to include public agencies such as emergency services. Sharing information is clearly an important feature in the work of relevant authorities; their ability to obtain and share information enables them to undertake their activities effectively and efficiently. As Clause 7(5) makes clear, any information-sharing regulations must not contravene existing data protection legislation, which covers personal data.

16:30

On Amendment 105, the noble Baroness is right to highlight that information sharing with emergency services can help protect consumers. Information sharing exists between authorities and bodies but it usually needs to be underpinned by legal gateways. Although the suggested amendment would make it compulsory to make provisions on information sharing with services, we do not think that we need to go so far. If this were made compulsory, there would be no option but to make information-sharing arrangements, which might be a blunt approach and might not allow for specific circumstances. The reason why the power is drafted in this way is to give a discretionary power and to enable us to make effective, tailored and proportionate regulations.

I assure the noble Baroness that the Government share her concern about the recent increase in deaths as a result of lithium battery fires. The data she shared shows that there is effective collaboration between OPSS and the fire service on this. She mentioned the London Fire Brigade; its product-related fire notification data transfers show that it has attended 176 product-related fires involving some form of lithium-ion battery. As a direct result, OPSS and regulators were able to take effective action to protect consumers using products such as e-bikes and e-scooters.

In essence, we think that the noble Baroness’s amendments—the second one, in particular—are well intentioned but go too far. They would mean that we would have to do this in every circumstance. We believe that we have the right method to have a discretionary, proportionate approach. However, I would be happy to meet the noble Baroness to discuss this further—or my noble friend would be, I should say.

[Baroness Finlay of Llandaff (CB)]

I am most grateful to the Minister for having such an open door in discussing these issues. I may be wrong, but I understood from the London Fire Brigade that, although its collection of data is comprehensive, other fire brigades around the country do not feed in in the same way. We also have the issue of devolved responsibilities in the devolved nations. Therefore, there is a need to clarify data sharing. I wonder whether we might need to go over this in order to be clear in regulation that some incidents are notifiable.

In responding, the Minister referred to carbon monoxide, which is a colourless gas that does not smell but that can, at high levels, kill you in three minutes. Carbon monoxide deaths are still occurring in this country because of faulty boilers, gas cookers and so on; they are also caused by faulty vehicles when exhaust fumes leak. I understand that we cannot have regulation that includes notifying absolutely everything, but we need further debate on where to draw the line in terms of what becomes notifiable and what is not. It is about an assessment of risk of harm, perhaps.

[Lord Hunt of Kings Heath (Lab)]

On carbon monoxide, one of the issues concerns medical certificates and cause of death; there is a big problem because, often, carbon monoxide poisoning is not mentioned. The argument is that there is nothing in this legislation that precludes taking action in the way the noble Baroness wants us to take action. The question is whether the noble Baroness’s amendment is proportionate; we can have a further discussion about that.

[Baroness Finlay of Llandaff (CB)]

I completely accept that it is about what is and is not included. I recall having learned, on many occasions, the danger of having lists in legislation, because there is always something that has not been included, which becomes a tension. I look forward to further discussion. I am most grateful to others for supporting these amendments and recognising their importance. In the meantime, I beg leave to withdraw Amendment 23.

Amendment 23 withdrawn.

Amendments 24 to 28 not moved.

Amendment 29

Moved by

[Lord Lucas]

29: Clause 2, page 2, line 43, at end insert—
“(l) the withdrawal from sale of products of a type concerning which Trading Standards have raised concerns, until such time as the seller has satisfied Trading Standards that those concerns are unfounded.”

[Lord Lucas (Con)]

My Lords, the market we have at the moment is such that, if there is, say, an orange teddy bear on the market, it may appear in a hundred or more different guises from ostensibly different sellers. Perhaps it has a different label or name attached, but it is, in essence, the same product. If we insist on trading standards proving that each of these instances is dangerous, we will find ourselves unable to enforce this legislation properly.

Amendment 29 suggests reversing the process so that, when trading standards become aware that, say, an orange teddy bear of a particular description appears to be dangerous, they can stop them being sold and put the onus on the sellers to prove that they are safe. In that way, we can achieve the protection of the public quickly and simply, without overwhelming trading standards. I beg to move.

[Baroness Crawley (Lab)]

My Lords, I will speak to Amendments 31, 85, 97, 98 and 109, all on enforcement issues. Amendment 31 in my name and Amendment 98 in my name and that of the noble Lord, Lord Foster of Bath, deal with the subject of fulfilment houses. Yes, it sounds like a slightly dodgy building, does it not? Anyway, I have been educated.

Amendment 31 addresses Clause 2. At the end of line 14 of page 3, it would insert

“a person who controls fulfilment houses in the United Kingdom”.

This amendment adds to the list of persons in Clause 2 on whom product regulations may impose product requirements. I thank the Chartered Trading Standards Institute for its advice on this issue.

Fulfilment houses or centres store, pack and ship products for other companies, which are third-party sellers, often from overseas. Without clear rules, these products easily skip safety checks, creating risk for consumers. It is important to aim for compliant products only to enter the market, and these fulfilment houses should play a critical role in ensuring that.

There is presently a lack of clarity regarding the specific obligations of fulfilment houses, as their operations may not fall directly under the role of traditional retailers or manufacturers. This amendment makes it clear that fulfilment houses must meet safety standards, just as regular shops must, and are accountable if they are storing and passing on products for delivery that are unsafe or dangerous.

Amendment 98 aims to close a critical gap in the supply chain and protect consumers from non-compliant goods from third-party sellers. The amendment seeks to define “fulfilment houses” because at present the Bill does not. This is needed as these houses are, as I said, a key loophole for unsafe products entering the UK market. The amendment also outlines how fulfilment houses will have to keep records showing that the products they store meet all necessary product safety requirements. These houses are also to work with enforcement officers if that is needed. Although fulfilment houses already register for tax due diligence, this extension to product safety is a necessary logical next step towards ensuring safe consumer products across the board.

Amendment 85 in my name and that of the noble Lord, Lord Foster of Bath, is on enforcement of metrology regulations. This amendment, advised by trading standards officers, makes it the duty of weights and measures authorities in Great Britain and a similar body in Northern Ireland to ensure that products are accurately measured and to add to the list in Clause 6 on page 6, line 30.

Although the Bill currently includes rules about measurement units and product quantities, it does not, according to weights and measurements officers on the ground, fully cover the checking of equipment used to make these measurements. Accurate measuring equipment is essential for ensuring fair trade, so expanding the regulations to include equipment testing, as our amendment suggests, would help authorities to enforce those rules more effectively. There are also concerns that the Bill may allow people other than trading standards officers to carry out enforcement, even though trading standards officers are already trained and authorised to do this work.

This amendment clarifies who is responsible for enforcement, helping build consumer trust in fair measurements, which affects consumers UK-wide. It will also ensure that local authorities will be responsible for regularly checking products to ensure accurate measurements, investigating complaints and taking action if they find issues. This will mean that all sellers follow the same standards so that consumers can trust the quantities they are buying—whether groceries, petrol or other goods—and that they are measured fairly.

I shall now speak to Amendment 97 in my name and those of the noble Earl, Lord Lindsay, and the noble Lord, Lord Foster of Bath. The explanatory statement says:

“This amendment inserts safeguards to ensure non-regression from existing legal protections, as well as providing for the due consideration of the precautionary principle when scientific evidence about a possible risk may not yet be fully available but there is a need to be cautious given the potentially serious consequences for the safety of individuals”.


In current legislation, Regulation 10(5) of the General Product Safety Regulations 2005, for example, includes the duty that

“An enforcement authority … take due account of the precautionary principle”.

That point was relied on by the organisation Which? in its campaign to persuade the Government in 2019 to take action and require Whirlpool to recall dangerous tumble dryers that were responsible for starting hundreds of fires. When the scientific evidence was not fully available, the precautionary principle kicked in. At that point, scientific evidence is not completely collated but, when there are hundreds of fires, something needs to be done.

The Bill provides the Government with the opportunity to introduce new regulations that will upgrade consumer rights, but we believe there needs to be a more encompassing principle to keep consumers safe and underpin all future regulation with key consumer protections. With this amendment, we are seeking to ensure that the primacy of a high level of consumer protection is built into the Bill.

16:45

Amendment 109 in my name deals with the issue of cost recovery in the Bill. The amendment would ensure that fees collected under Clause 8(1) in respect of cost recovery must be ring-fenced and allocated to local trading standards authorities. I believe the noble Lord, Lord Lucas, made a similar point on the previous day of Committee.

People may say, “Well, this is special pleading”. It is, but it is very much needed. In the last 14 years we have seen trading standards losing north of 40% of the resources available to them. Local trading standards officers enforce many product safety and measurement rules, but they have many competing priorities, which means that not as much enforcement work takes place as each local trading standards service would wish. That becomes more problematic with more online sales taking place year on year.

Right now, the Bill proposes that fines collected from rule breakers go to the local authority, but that is often swallowed up by other crucial services such as adult social care. The amendment would make sure that the money from penalties stayed with trading standards so that they could allocate proper resources to the checks needed to protect consumers and maintain compliance. By keeping fines and penalties within local trading standards, the amendment would provide them with a steady source of funding. That would help local authorities to do more checks and investigations, especially on products sold online.

Reliance on penalties alone will not solve the funding shortage being felt at local level, but it would ensure direct support for enforcement. It would bring about enhanced consumer safety and level the competitive field, benefiting high street retailers by ensuring that online and overseas sellers faced equivalent compliance standards, so creating fairer competition across sales channels. I look forward to my noble friend the Minister’s response to the amendments.

[Lord Foster of Bath (LD)]

My Lords, these amendments deal with a range of issues concerning enforcement. As the noble Baroness, Lady Crawley, said, I have signed and fully support the numerous amendments she has tabled, and I do not intend, other than very briefly, to touch on those at all.

I said at Second Reading that improved safety will come about through this legislation only if there is effective enforcement of the various regulations that are going to be laid. As I understand it, the thrust of the amendments of the noble Lord, Lord Sharpe, which he will describe in more detail later on, is that they seek clarification on who is going to be responsible for enforcement and what their responsibilities will be.

My noble friend Lady Brinton, who is unable to be with us today, has an amendment that in part suggests that trading standards officers should be the ones responsible since, frankly, they have the expertise and skills and are best placed to take on the role. Indeed, I am pretty sure—although obviously, we will have to wait until we hear the Minister’s response—that trading standards officers are going to play a crucial role in enforcing the Bill and, much more significantly, the as yet unknown contents of regulations arising from it.

The amendment from the noble Lord, Lord Lucas, which I fully support, assumes that trading standards will be the ones who will have the key responsibility, but my noble friend’s amendments and my own Amendment 64 seek to ensure that whoever does the enforcement also has the necessary resources, including financial, to carry out the work.

When I raised this issue at Second Reading, the Minister talked about improved enforcement capability, which he said would come through the more efficient use of time, better notices, better data-sharing opportunities and the support that will be offered, such as support on technical queries from the OPSS—but not a whiff of a promise of additional funding.

At the very helpful meeting then organised by the Minister, I asked how the new burdens principle fitted into all this, whereby the Government will be expected to fund costs arising from new burdens placed on other bodies. The Minister promised to write to us, and indeed he did. He stated:

“No new burdens are being imposed”


by the Bill. He went on:

“The principal enforcement activities currently undertaken by local authorities and delivered by trading standards are not changing”.


Clearly, that is not the case, if we take into account all the regulations that will flow from this skeleton Bill. In fairness, to some extent the Minister acknowledged that. He said that there is a “potential”—an odd choice of word since we know it will happen—for the regulations to bring new burdens. He promised to continue dialogue with a new burdens team, and he pointed to the cost- recovery powers in Clause 8, clarification of which has rightly been sought by the noble Baroness, Lady Crawley, in her Amendment 109.

However, we should surely be acutely aware of the current position faced by trading standards officers around the country. Frankly, they do an excellent job. Over the last year, 2023-24, trading standards prevented more than £905 million of consumer detriment in England and Wales, equating to £8.39 saved for every £1 spent. But despite that really good value for money, over the last decade, spending on trading standards has been cut by more than 50%. Over the same period, staffing levels in local authorities have fallen by between 30% and 50%. Frankly, many local authorities no longer have sufficient resources to enforce all the consumer protection legislation for which they are responsible. Therefore, without additional resources, they certainly will not have the capability to cope with more, which might—or rather, will—come as a result of this Bill.

Whoever takes on the enforcement responsibility will need additional resources to do the job, and that will not be achieved by things such as better data sharing and support on technical queries by the OPSS. I hope the Minister can give us far more assurances than he has so far that the Government are alert to this issue. I hope that he will provide us with assurances that extra resources will be made available, as proposed by my noble friend’s amendments and my own.

I have a couple of other amendments to touch on briefly. In a sense, my Amendment 70 builds on Amendment 98, which I have signed, in the name of the noble Baroness, Lady Crawley. When buying a product online, the buyer is often aware who the seller is. Amendment 98 would place a duty on the fulfilment houses that store all this stuff before it goes out to the consumer to ensure that appropriate safety legislation has been taken into account. Other amendments suggest that there should be a responsibility on online market- places to ensure that appropriate safety regulations have been met by all the products available on their platform. My Amendment 70 goes a little further and suggests that we should therefore give the consumer the right to bring a claim against the online marketplace, regardless of who the original provider of the product was, if this has not happened and they suffer as a result of the product not having met the appropriate standards.

Finally, Amendments 63 and 87 seek to expand enforcement powers by giving the relevant authority or an inspector the power to require a person to attend an interview to answer questions, a power usually known as an interview notice. In similar legislation, authorities including regulators have that power. In the Data (Use and Access) Bill that is currently before your Lordships’ House, the Government seek to give the Information Commissioner that power to give interview notices. The Government are also seeking to give the Security Industry Authority that power in the Terrorism (Protection of Premises) Bill, and the new independent football regulator, in the Football Governance Bill currently before your Lordships’ House, will be given the same power. Yet it is omitted, bizarrely, from this Bill. That means that, on the one hand, the relevant authority would have the power to enter and search premises and seize items but, on the other hand, it would not have the power to question persons about the related entry, search and seizure of those products. I find that particularly bizarre. I hope that the Minister will acknowledge this point and either accept the amendment or offer his own way forward.

I began by saying that the Bill and the regulations that flow from it will, frankly, be pretty meaningless without proper enforcement, so we need clarity about who will be responsible for that enforcement, we need to be assured of what those responsibilities will be and we need assurances that they will be properly resourced to carry out those responsibilities. On all counts, we are at present unaware of any answers to those questions, so we hope that the Minister will shed some light on this when he winds up.

[Baroness Finlay of Llandaff (CB)]

My Lords, I found the introduction to these amendments from the noble Lord, Lord Lucas, and the clarification from the noble Baroness, Lady Crawley, very revealing. It is a reminder that you can have a product made somewhere that comes into this country and then gets badged by lots of different people, but it is the same basic product with the same problems. The two examples that come to mind are the tumble dryers, when there was a fault in how they were constructed, and magnetic toys, which eventually got withdrawn. Several children ended up inhaling or swallowing small magnets that were in those toys, which were marketed under lots of different guises—but the basic product that came in included these little magnetic particles.

It has been a really interesting debate, because you can see that there is a point at which the trading standards people have the powers to intervene. I hope that, in responding, the Minister will able to describe to us how the powers are strong enough at the point of entry, rather than the trading standards people having to go after one label, then another and then another. That will be very heavy on workload and will not deal with the problem of an unsafe product being produced elsewhere and brought into the country.

[The Earl of Lindsay (Con)]

My Lords, I support most of the amendments in this group, but I particularly want to support the amendments in the name of the noble Baroness, Lady Crawley—namely, Amendments 31, 85, 97, 98 and 109. Some of those are also in the name of the noble Lord, Lord Foster of Bath. I declare an interest as president of the Chartered Trading Standards Institute. My predecessor in that role, of course, was the noble Baroness, Lady Crawley, hence our common approach to the issues raised.

In relation to Amendments 31 and 98, dealing with fulfilment houses, those houses play a critical role in the distribution chain, especially for products from overseas retailers. These amendments would ensure that they were accountable for product safety, thereby reducing the risk of non-compliant goods reaching consumers. Amendment 98 also addresses gaps in the supply chain. The fulfilment houses play a critical role in the distribution chain for overseas sellers and the amendment would ensure that they were accountable for product safety, reducing the risk of non-compliant goods reaching consumers, but would also require fulfilment houses to maintain compliance records and facilitate inspections. The amendment would increase traceability and accountability for the products that they handle. Furthermore, Amendment 98 aligns fulfilment houses with current due diligence obligations. While they already register for tax due diligence, this extension to product safety is a logical step towards ensuring safe consumer products across the board.

17:00

Amendment 85 formalises the enforcement role of local authorities and gives them the necessary powers to enforce accurate measurements and maintain consumer confidence in fair trade. By involving both Great Britain and Northern Ireland, this amendment aims for uniform enforcement, reducing regional disparities and supporting consistent application of metrology standards. To support this role, a code of practice may well enhance consistency across different jurisdictions and standardise enforcement approaches.

I turn to Amendment 97. Online marketplaces have become extraordinarily popular as a means for people to shop. However, as we all know, they are not subject to the same protections as more traditional retailers. There are two stark facts behind this amendment, the first from the consumer group Which?. It conducted research that shows that 95% of UK consumers have made purchases through online marketplaces at least once in the last two years, with around 23.4 million UK consumers making monthly transactions online. Bear that in mind and the second statistic becomes all the more stark.

The Office for Product Safety and Standards—OPSS—conducted research in 2021 that found that 81% of the products tested from online marketplaces failed safety tests. I emphasise that 81% of products failed safety tests. In the meantime, online marketplaces have continued to expand rapidly since 2021, in number and popularity, while UK legislation has stood still. This has created a dangerous blind spot that allows unsafe products to flood in.

For the Bill to tackle the harms of online marketplaces and protect consumers, it is vital that future legislation must be designed to maintain a high level of consumer protection and require that products must be safe. While I acknowledge that the Bill provides the Government with an opportunity to introduce welcome new regulations that will upgrade consumer rights, there needs to be a more encompassing principle to keep consumers safe and underpin all future regulations with key consumer protections.

The Bill’s reliance on future regulation featured prominently in the report on the Bill by the Delegated Powers and Regulatory Reform Committee, of which I am a member. We drew attention to the skeleton clauses in the Bill, which give Ministers and future Ministers the power to write or rewrite regulations. These delegated powers make it imperative that future regulations be made with regard to keeping consumers safe and upholding key consumer protections. Amendment 97 would do this; it would achieve this through introducing an overarching clause that ensures the primacy of consumer protection as the underlying goal of any new product regulation and reiterating key principles that are an essential element of the current framework, including the precautionary principle.

Finally, I will say a few words in support of Amendment 109. Ring-fencing the funds raised would help to mitigate current critical shortages in funding for trading standards. This would better enable them to sustain enforcement efforts and activities, especially in high-risk areas such as online marketplaces. With dedicated funds, trading standards can increase their operational capacity, enabling them to perform regular checks, respond to complaints and uphold compliance more effectively. This amendment would also help to level the competitive playing field. It would benefit our high streets—our bricks and mortar retail outlets—by ensuring that online and overseas sellers face equivalent compliance standards, creating fairer competition across different sales channels.

[Lord Stewart of Dirleton (Con)]

My Lords, I wish to address the Committee on Amendments 60 to 62 in the name of my noble friend Lord Sharpe; I thank him for his amendments on enforcement regulations in this Bill.

As has already been pointed out, the Bill fails to provide clarity about who will be the relevant authority, how that authority will be appointed and what criteria will be used to determine this. In setting out these points, I merely echo concerns already raised by your Lordships’ Committee. The concern is that a dangerous precedent is created, particularly where such broad powers are granted for enforcing product regulations—including sanctions—and for carrying out investigations.

To illustrate the risks of these broad and as yet undefined powers, we need look only to the Horizon scandal. In that case, as the Committee and indeed the whole House is aware, sub-postmasters were wrongly prosecuted based on flawed evidence and poor decision-making by the responsible authorities—a private prosecutor in England and Wales. The lack of proper scrutiny and oversight in that situation resulted in innocent people facing wrongful charges. Lives were ruined; indeed, lives were lost. The situation was greeted with mounting horror across our House, as it was across the country at large, as details began to emerge.

The Horizon case highlighted the dangers of unchecked power or power in the hands of those lacking the professional cultures to exercise such power responsibly. Our concern is that this could easily be replicated under the Bill if we do not ensure that the powers of the relevant authority are defined carefully and according to strict standards of accountability. We submit that the Government must provide clear criteria for the appointment of a relevant authority and establish rigorous oversight in order to ensure that the powers given under the Bill are used fairly and transparently. The Bill should ensure that those granted authority are highly qualified, possess relevant experience and are subject to ongoing monitoring in order to prevent misuse of power.

These clauses are considered skeleton legislation by the Delegated Powers and Regulatory Reform Committee. The House has collectively expressed its concern as to the dangers of skeleton legislation in other contexts, where vague provisions allow the Executive to bypass parliamentary scrutiny; indeed, the dangers and undesirability of such skeleton legislation were touched on yesterday in a take-note debate on the rule of law. Bypassing Parliament on such a critical matter—especially with the ability to bring solemn criminal charges on indictment, not just at summary level—creates risk and sets a dangerous precedent. We are by no means claiming that the Government are consciously seeking to set up a situation and a system of abuse of power, and we recognise the importance of effective regulation for consumer protection; our concern is that a lack of clarity in the Bill threatens to create an environment ripe for the misuse of power, at a time when our consciousness, and of the country at large, of those risks has never been sharper.

[Lord Sharpe of Epsom (Con)]

My Lords, I will speak to Amendments 60, 61, 62, 66, 67, 83, 84, 86, 88 and 89 standing in my name.

Before I get on to that, I thank all noble Lords who have spoken. I have not heard very much that I have disagreed with, and in particular I welcome the specialised and clearly considerable expertise of the noble Baroness, Lady Crawley, and my noble friend Lord Lindsay in this area. I also thank my noble and learned friend Lord Stewart of Dirleton, who brought a valuable legal perspective to my Amendments 60, 61 and 62. If I may say so, the Committee should also thank him, because that has relieved me of the duty of mentioning the delegated powers in the Bill.

To probe, starting with my Amendment 60, what is a relevant authority? My amendments as a group seek clarity. There is far too little of it, and I will explain why. There may be a case for a degree of generalisation on product safety laws, which we have discussed in previous Committee days, but when it comes to the enforcement of the law, as my noble and learned friend has just outlined, the Government should not be this vague. The clause that this amendment seeks to remove grants wide discretion in designating one or more persons as the relevant authority, without defining criteria or scope. Businesses need to know who they are engaging with when it comes to compliance and enforcement. The uncertainty in the Bill creates a challenging situation for businesses, in particular small and medium-sized enterprises, which may lack the resources to navigate unclear or fragmented enforcement mechanisms.

Without clearly defined enforcement roles, companies face potential delays and additional costs due to duplicative enforcement efforts, all of which could hamper innovation, productivity and growth. This clause effectively hands unchecked power to Ministers, allowing them to designate any person or organisation as a relevant authority without sufficient parliamentary scrutiny. But it fails to address critical questions, such as what qualifications or expertise the designated authority will require. How will conflicts of interest be avoided? Will there be oversight mechanisms to ensure that these authorities are held accountable for their enforcement activities?

The Government have repeatedly claimed that one of the goals of the Bill is innovation, and that they wish to be a leader on trade, yet unclear enforcement mechanisms may send the wrong message to trading partners and investors. Inconsistent enforcement practices could harm the perceived reliability of the UK’s regulatory regime, potentially complicating cross-border trade agreements and deterring foreign investment.

The Government’s Explanatory Notes suggest that the relevant authority could include the Secretary of State or

“other bodies exercising public functions”.

But nowhere in the Bill or the Explanatory Notes is there any mention of specialised bodies—including those represented by the noble Baroness, Lady Crawley, and my noble friend Lord Lindsay—which have clear expertise in product enforcement, safety and standards. We think this omission is striking. Will product safety specialists such as trading standards and accredited safety bodies be considered? Will enforcement fall to entities with deep technical knowledge and understanding of the complexities of product regulation?

The Bill uses the phrase

“other bodies exercising public functions”,

a catch-all term that could encompass almost anyone who engages in some form of public work. In practice, this could mean highly skilled and knowledgeable experts, but it could also mean organisations or individuals with no background in product safety. Could a local administrative body or other government-adjacent organisation whose primary function is entirely unrelated end up being designated as a relevant authority? Despite the Government’s claims of promoting clarity and higher standards, the wording here does the exact opposite.

This is not a trivial matter. The enforcement authority will determine how the rules are applied and the standards by which businesses are judged. Without explicit safeguards, this clause risks allowing enforcement to be carried out by ill-equipped individuals or bodies, potentially damaging the entire framework of product safety. I appreciate that I have ranged far and wide here, but unfortunately, the way the Bill is drafted invites all these questions, so I look forward to the Minister’s responses.

Turning to Amendment 61, also in my name, we of course recognise the importance of ensuring compliance with product regulations, but the manner in which these powers are drafted raises serious concerns about vagueness, overreach and potential misuse. This subsection includes functions such as monitoring compliance, investigating suspected non-compliance and even mitigating the effects of non-compliance. While monitoring compliance and addressing breaches are legitimate, the concept of suspected non-compliance is especially problematic. What constitutes suspicion? Will it be based on clearly defined criteria, or could it arise from arbitrary interpretations by an as yet to be defined relevant authority?

17:15

The Bill provides no clear mechanism for how suspicion needs to be determined. That opens the door, again, to potential misuse or discretionary investigations without adequate justification. The investigatory powers later outlined in the Bill allow for searches, seizures and potentially intrusive measures that could be triggered by these undefined suspicions. Are we seriously suggesting that businesses can face such disruptions on the basis of such a vague suspicion? Such actions risk being disproportionate and harmful to legitimate business.

That ambiguity places businesses in a permanent state of uncertainty. Will they be investigated merely for innovating or attempting something new? Are these powers being designed to encourage entrepreneurship, or to suppress it? Such vague investigatory thresholds justify such questions and create an environment where innocent businesses could face intrusive actions, as I have already outlined. If businesses are constantly worried about triggering investigations, how can we expect them to innovate? Innovation often involves taking risks, pushing boundaries and experimenting with new ideas. However, under these new powers, every new product, creative design and experimental prototype could be viewed as a potential compliance risk. The powers outlined in subsection (3) do not serve the interests of innovation or growth. Instead, they undermine the very foundations of a thriving economy by targeting production, stifling innovation and punishing enterprise. I urge the Government to reconsider this provision before it inflicts lasting damage on our business landscape.

Turning to Amendment 62, the powers listed in subsection (4) include the ability to inspect premises, seize products, demand documentation and dispose of products. While the intention of these powers may be to protect consumers and ensure compliance with product regulations, I have to express serious concerns about the scope and potential abuse of such powers. The kind of powers envisaged in Clause 4 could open the door to overbearing government intervention in business activities. The powers to seize goods, inspect premises and demand documents without clear safeguards are not dissimilar to the regulatory regimes seen in some of the most authoritarian Governments in history. The provisions in this subsection represent a dangerous expansion of government powers that, while potentially well-meaning, could easily be misused. The wide-ranging powers proposed are open-ended, with vague criteria about how they can be applied.

Critical areas of concern include the power to enter, inspect and search premises. The ability for inspectors to enter and inspect business premises could lead to the unjustified disruption of private enterprise. Businesses could face unannounced visits, and the grounds for such inspections are not clearly defined. With inspectors being granted such broad powers, businesses are left with little recourse but to defend themselves from arbitrary actions.

These provisions raise important questions about the lack of checks and balances. If they are not amended, we risk unqualified officials, or indeed rogue Ministers, wielding immense power over the activities of business. The Bill does not clearly define the criteria for suspicion or provide procedural safeguards for businesses that may be unjustly targeted.

These broad and overreaching powers will create an environment of uncertainty, and the business climate will be negatively affected as companies may be reluctant to innovate or expand their operations if they fear arbitrary inspections and product seizures. As businesses divert resources from innovation and growth to compliance and legal defence, the economy will suffer. We believe that investors will be more hesitant to invest in markets where the regulatory environment is unclear and businesses are at risk of having their products arbitrarily seized or destroyed. The result will be a decline in competition, a stagnation in product development and, ultimately, higher costs for consumers as market dynamics are stifled.

I could go on, but I shall turn to Amendment 66. The issue with the provision to which the amendment relates lies in the lack of clarity regarding the term “others”. This vague wording creates the possibility for the law to impose unnecessary and broad obligations on businesses or individuals, with no clear definition of who constitutes “others”. Who are they?

It is vital that the Government establish the precise scope of this requirement in order to ensure that businesses are not overburdened or faced with unreasonable demands that may lead to unintended consequences. This subsection could lead to unnecessary warnings to a number of stakeholders, some relevant and some not. After a careful reading of this clause, the Government’s claim regarding clarity for business is more of a soundbite, as opposed to anything grounded in truth. Does “others” refer to consumers, other businesses, specific industry groups or even the general public? This wording could result in misunderstanding by both business and enforcement authorities, again leading to unnecessary warnings being issued. A company could be required to post warnings on all platforms, inform all stakeholders or even issue blanket public alerts, when the risk may be relevant to only a specific group or sector.

Turning to Amendment 67, the primary issue with subsection (7) is the lack of clarity about exactly what will be considered non-compliance under the regulations. The Secretary of State, a relevant authority or potentially any other person or body could be given the power to decide what constitutes non-compliance, without businesses knowing who is making this determination or on what grounds. For businesses to operate effectively, they need clear guidelines, as we have discussed many times, on what constitutes compliance and non-compliance. This is not just an issue of understanding the law; it is critical for businesses to be able to plan, operate and ensure safety. The vagueness of non-compliance opens the door to unpredictable and arbitrary enforcement. One critical question the Government must address is the distinction between suspected non-compliance and non-compliance. Again, what is the threshold for suspicion? The fact that the Government are introducing regulations for both these situations suggests that they believe there is a distinction, but they have not provided the clarity we seek.

The Bill also allows for sanctions based on failure to co-operate with the relevant authority or inspector, but what does this mean in practice? Does it mean a minor delay in documentation or a misunderstanding over procedures, or does it require full co-operation under any and all circumstances? Again, without clear definitions and procedures, businesses could be penalised for circumstances outside their control or in situations where they made a good-faith effort to comply. The lack of clarity on what constitutes co-operation again leaves businesses vulnerable to arbitrary enforcement.

Just like Clauses 1 and 2, Clause 3 should either be removed from the Bill, as recommended by the DPRRC, or heavily rewritten.

I thank the noble Lord, Lord Foster, for his Amendment 70, which would allow consumers to bring a claim against an online marketplace for products that have caused harm. I suggest that this amendment was tabled because of the lack of clarity in Clause 3, which I have just outlined at some length. If there are going to be regulations in place for products, there should also be regulations to ensure protection for consumers who are victims of an online marketplace failing to adhere to product safety. I recognise that the Government’s intentions are good. We all wish to protect consumers, but the Bill includes little or no information about how consumers are compensated. That shows a lack of preparation for the Bill. We urge the Government to have regard for consumers, and we look forward to debating this in future days in Committee.

Noble Lords will be pleased to know that I am going to keep it briefer on metrology. The provision made in Clause 6 is basically identical in all material respects to that made in Clause 3 with respect to the enforcement of product regulations. As again highlighted by the DPRRC, Clause 6 is an example of skeleton legislation. The DPRRC states that this clause contains

“almost no substance about units of measurement and the quantities in which goods must or may be marketed”.

This is simply unacceptable. There is no requirement for consultation. How can the Government justify that? The Government’s response in their letter of 30 October is not comprehensive enough. They claim that these broad powers are necessary as a result of existing legislation being inadequate and there being barriers to enforcement, but they must explain why there should be little to no parliamentary scrutiny and no requirement for consultation on the units or on goods and services.

Turning to my Amendments 83, 84, 86, 88 and 89, we find that Clause 6 contains the same fundamental flaws I have already addressed. I intend to highlight only Amendment 88, because it relates to subsection (6), which states:

“Provision described in subsection (3)(c) or (d) may include provision conferring power on a relevant authority by notice to require a person to do or cease to do something”.

As I read that “something” repeatedly, looking for a glimmer of hope, it dawned on me that that phrase sums up the objections of the DPRRC, the Constitution Committee and these Benches. That might be the worst piece of legislative drafting I have ever seen—and having been at the Home Office, I have seen a bit. If your Lordships think about the possible nasty consequences of this, I think we deserve a definition of all the phrases I have outlined. They are too vague and too broad. What does “something” mean? I appreciate that it relates to subsections (3)(c) and (d), but it is very unclear.

I urge the Government to take the amendments on enforcement very seriously. We realise that the Government’s intentions are good, but unless the clauses are heavily rewritten, we will return to them on Report.

[Lord Fox (LD)]

My Lords, very briefly, and complying with time constraints, I warned your Lordships and the Government when speaking to another group that the skeletal nature of the Bill allows everybody to superimpose all their worst suppositions on it. We have just heard a thorough example of that from the noble Lord, Lord Sharpe.

I am of course here to help. In considering previous Bills, it helped when the Government published their draft code of practice between Committee and Report, so that we could get an inkling of their thinking. Doing so will not change our need to address the skeletal nature of the Bill, but it might allay some of our worst fears about the intention, and guide us in wording the amendments we could table on Report to help tie things down a little more, along the lines of the fears outlined by the noble Lord, Lord Sharpe. Can the Minister say whether a code of practice is planned, and undertake to show us a draft of it between now and Report?

[Lord Leong (Lab)]

My Lords, I thank all noble Lords for their detailed consideration of the Bill, and especially the noble Lord, Lord Sharpe, for his thorough exposition of his amendments, based on his experience at the Home Office and previously as an enforcement officer. He obviously knows a lot about the various amendments he has tabled.

I hope to clarify the Government’s position and explain the reasons behind the approach we have taken. First, I will address the use of delegated powers in the Bill, noting the concerns of the Committee.

Product regulation must legislate for innumerable kinds of products, ranging from heavy machinery to children’s toys. This is best done through regulation, due to the amount of very technical and scientific detail required. In some cases, sectors can be covered by general requirements. However, often they require specific tailored regulations that recognise their individual requirements. For example, a penalty for failure to properly mark a product “harm suffered” is likely be different when comparing a highly sensitive product in a nuclear energy installation versus a lower-risk product.

To proportionately reflect the dangers of a sector, requirements, enforcement powers, offences and penalties must be tailored. This is how the regulators operate at the moment, with over 2,500 pages of technical product safety regulation on the statute book. Alongside reviewing this existing legislation, we will need to consider on an ongoing basis whether there are emerging products or hazards that would benefit from specific rules.

Product regulation is a regulatory area that we have seen go through significant disruptive change with the growth of e-commerce, and this looks set to continue with AI and 3D printing. The activities conducted by different kinds of businesses have changed as well. The spine of the existing system was codified in primary legislation based on bricks-and-mortar businesses, and that led to uncertainties and gaps in duties, penalties and enforcement powers.

17:30

I hope that goes some small way towards clarifying that, while I have the utmost respect for noble Lords’ concerns about the rule of law and the principle of legal certainty, we have constructed powers that support and are led by the rule of law’s need for precision and proportionality both now and in future. Through secondary regulations, we can make crystal clear responsibilities and proportionate penalties, and we can keep regulations up to date as products and business models evolve. However, I recognise the concerns raised by all noble Lords about delegated powers, and I assure them that we listen carefully to their points and will continue to engage constructively on these matters.

I turn to Amendments 64 and 65 and the concerns they reflect regarding enforcement authorities’ resources. As we recognised at Second Reading, enforcement authorities, particularly local authority trading standards, do crucial work with sometimes limited resources. Existing complex legislation can drain trading standards’ resources. The Government intend to consolidate and simplify where possible, giving enforcement authorities more time for enforcement. The provision of civil monetary penalties will also give trading standards more efficient penalties for certain offences, as well as easing pressure on the courts. Furthermore, Clause 8 enables the implementation of cost recovery powers for enforcement authorities.

In addition, the Office for Product Safety and Standards will continue to support trading standards. This support includes training, access to experts, direct support on some cases, and ring-fenced funding for specific projects. The OPSS also undertakes enforcement on nationally significant cases. In 2022, after conducting safety testing, it issued a product safety alert on a highly dangerous product: self-feeding baby pillows. Enforcement teams ensured the removal of 469 pillows from the market. However, local authority budgets are allocated by the Ministry of Housing, Communities and Local Government, and local authorities rightly have discretion over the use of that budget. These amendments potentially conflict with those arrangements.

On Amendment 65, enforcement authorities will not be left without powers. They will use existing powers until new enforcement regulations are implemented. When new regulations are implemented, enforcement authorities, including trading standards, will be named following existing responsibilities. Requiring that trading standards offices be named as relevant authorities within six months would serve only to place a limit on the amount of time available to develop regulations and ensure that they are robust.

I have been asked many times who the relevant authority will be under this regulation. Currently, the Bill provides that the relevant authority must exercise a public function. Under the current system, enforcement authorities include the Secretary of State, the Health and Safety Executive, local authorities and the Office for Nuclear Regulation.

Amendments 66, 67 and 89 seek further clarification of the Bill’s terminology. The term “others” in Clause 3(6)(a) should be taken to mean anyone whom a relevant authority believes should be warned, such as affected consumers. Non-compliance should be taken to occur when any product or metrology regulation is contravened. These terms are commonly used across many pieces of both general and product safety legislation and will be elucidated in regulations where necessary. Consequently, I ask that these amendments be withdrawn.

Amendment 70 seeks to introduce a legal framework for a consumer to bring a claim against an online marketplace for products that have caused harm. The primary route to seek damages for harm caused by defective products is through the Consumer Protection Act 1987. Depending upon the specific facts, an online marketplace may have responsibility under this legislation. My department is currently reviewing this legislation and we will consider the UK’s product liability regime holistically, including the question of how it should apply to online marketplaces. This is not a change that we would seek to make without considering all the evidence, which is why we cannot accept this amendment.

On Amendment 85, I reassure the Committee that we understand the importance of ensuring accurate measurement standards for consumer protection and confidence in commercial transactions. The Bill includes the necessary provisions to enable enforcement of metrology regulations. Clause 6 is drafted sufficiently broadly to empower relevant authorities to inspect, test, investigate and act. Weighing and measuring instruments are products in their own right and are covered by Clauses 1 and 3.

I move on to Amendment 97 and reassure noble Lords that there is no plan to dilute the current protections that consumers enjoy under the existing product safety framework. The Bill will support changes to technical regulations based on scientific evidence and robust risk profiles. The inclusion of this amendment may in fact undermine the ability to strengthen our technical regulations in the future.

I turn to Amendment 109. The purpose of Clause 8 is to enable relevant authorities to recover the costs of their enforcement activities. The fees collected through cost-recovery powers are intended to meet the costs already incurred in the process of enforcement activity. It follows that enforcement authorities will be able to take other and more action if recouping costs means that their activities become more financially sustainable. The precise circumstances where the use of those powers will be available, as well as the handling and redistribution of those funds between authorities, will be laid out in regulations that contain cost-recovery powers.

Amendments 29, 63 and 87 seek to ensure that enforcement regulations can include a power for relevant authorities to require a person to attend an interview and a power to withdraw products from the market. The powers set out under Clauses 3 and 6 cover the tabled amendments. The

“power to require a person to … provide … information”

does not specify whether information is to be provided orally or through paperwork. Powers under Clause 3(6)(d) explicitly mention the ability to withdraw products from the market. Further specification would only restrict the necessary flexibility of these powers.

The Bill also contains powers within Clause 3 that enable the introduction of the function described by the noble Lord, Lord Lucas. Suspension notices are already used by trading standards to remove products from the market while safety checks are being made. That function will continue.

I thank my noble friend Lady Crawley for her Amendments 31 and 98 on fulfilment houses. The intent of the Bill is to enable requirements to be introduced, tailored and updated appropriately to reflect the range of relevant supply chain actors and their activities—now and in the future. Clause 2(3) is therefore sufficiently broad to enable requirements to be introduced via the Bill’s powers on persons

“carrying out activities in relation to a product”,

including fulfilment houses, which are captured by Clause 2(3)(h). I therefore assure my noble friend that Amendments 31 and 98 are not necessary to achieve her aim.

Amendments 60 to 62, 83, 84, 86 and 88 seek to further clarify the role and function of relevant authorities and the powers that can be afforded to inspectors through product and metrology regulations. Those that may be designated as relevant authorities are restricted by Clauses 3(2) and 6(2) to only those authorities fulfilling a public function, such as local authorities and regulators, as my noble friend Lord Hunt mentioned earlier.

Any further specification would limit our ability to ensure that enforcement authorities can be equipped with necessary powers to enforce their areas of responsibility. Relevant authority and inspectors’ functions are outlined within Clause 3(3), 6(3), 3(4) and 6(4).

[Lord Lansley (Con)]

I apologise for interrupting the Minister, but Amendment 60 asks who the relevant authorities are. Paragraph 3 of Schedule 5 to the Consumer Rights Act 2015 tell us in statute, as things stand, who the domestic enforcement authorities are. That is not in subordinate legislation—it is in primary legislation. The Minister appears to be taking a list that is in primary legislation, which is amendable by regulation, and turning it into something that is a power to specify by subordinate legislation. What was wrong with retaining the enforcement authority list in Schedule 5 to the Consumer Rights Act and adding to or subtracting from it as necessary?

[Lord Leong (Lab)]

I thank the noble Lord for that point. As I said earlier, as it stands the relevant authorities are exercising public functions—that is, the Secretary of State or the Health and Safety Executive, in the examples that I gave earlier. However, because of the evolving and changing nature of the new products on the market, we may need more people with specific technical knowledge. We do not want this Bill to straitjacket us so that, every time we need to appoint somebody, we have to come back with new primary legislation.

[Lord Lansley (Con)]

But can the Minister tell us why the list in primary legislation under Schedule 5 of that Act, which has been amended from time to time since 2015 by regulation, is not a suitable basis for proceeding in future? What is wrong with using that list?

[Lord Leong (Lab)]

Personally, I do not see why there is anything wrong with it—but in this Bill itself, I am trying to say that we need the flexibility. I just have to continue.

Further clarification of powers and functions would restrict the ability for enforcement regulations to provide powers needed to enforce new product and metrology regulations. We must enable flexibility so that we do not create gaps in enforcement powers now or in the future. We intend to plug the gap in enforcement by making regulation applicable at the border, so that enforcement can take place before unsafe or non-compliant products are sold.

I understand the good intentions behind these amendments but, equally, I hope that I have resolved the concerns that led to them. The Bill provides simple, flexible powers that will help enforcement authorities to fulfil their roles. I submit that we have balanced parliamentary scrutiny with the necessary flexibility in a way that best serves the rule of law. It is for these reasons that I ask the noble Lord to withdraw his amendment.

[Lord Fox (LD)]

I asked a specific question about publishing the code of practice in advance. Can I have an answer, please?

[Lord Leong (Lab)]

I thank the noble Lord for that. We would expect regulators and authorities to carry out enforcement in line with the regulators’ code, which I am happy to share with noble Lords.

[Lord Lucas (Con)]

My Lords, the debate ranged a long way beyond my amendment, and I shall not attempt to summarise it. I suspect that I shall be listening to many of the arguments again at Report, specifically those from my noble friend Lord Sharpe of Epsom and perhaps the noble Baroness, Lady Crawley, too. In his reply to my amendment, I felt that the Minister rather missed the point, which is that, no, they do not have the powers at the moment. That is why this amendment has been tabled, because they are saying that they do not have the powers. Yes, you can name a product and have it taken off, but if it appears in 100-plus different guises, which all claim to be different but are actually the same, you are stuffed. That is what I am trying to get at. I shall come back to this at Report, after taking further advice.

I am also grateful to the noble Lord for reminding us of how overregulated our nuclear industry has become and that allowing it to continue to be the subject of such a ridiculous free for all—resulting in us paying five times more than it costs the Koreans to build a nuclear power plant—is not something that should be waved away in the breadth of the powers that we have in this Bill. I beg leave to withdraw my amendment.

Amendment 29 withdrawn.

17:45

Amendments 30 to 33 not moved.

Amendment 34

Moved by

[Lord Fox]

34: Clause 2, page 3, line 26, at end insert—
“(d) the licensing of voluntarily committed standard essential patents which protect technology essential for implementing technical standards;(e) limiting the remedies available when a patent mentioned in paragraph (d) is enforced.”Member's explanatory statement
This amendment seeks to ensure that essential software for regulated products which relies on standard-essential patents (SEPs) is shielded from unfair legal abuse.

[Lord Fox (LD)]

My Lords, I also support Amendment 35 in the name of the noble Lord, Lord Lansley. As opposed to the last group, which focused on a large number of slightly different issues, these two amendments focus on one area and, given that they are only in the names of the noble Lord and myself, you can be sure that they will be technical in content.

I am sure the Minister has often wondered why his mobile phone can operate on Bluetooth in any country of the world, and why the automated vacuum cleaner that my noble friend Lord Foster so ably described in the last session can pick up wireless instructions no matter where it is working. The answer is that sitting underneath all of those are things called standard essential patents, or SEPs. They are patents that are necessary to the implementation of a collectively-agreed technical standard—5G, wifi, Bluetooth and so on. Standardisation across communications technologies makes it possible for devices to work with one another wherever they are.

Connectivity is increasingly a part of the products that the Bill seeks to regulate, as we have heard. UK industry is at the forefront of developing connected products that aim to address some of the biggest issues that we face, including healthcare and climate change. The Bill is about ensuring product compliance with technical standards. Compliance or conformance with the technical standard can often be premised on the implementation of a particular technology; as I have said, wifi is an example. For a product to use the wifi logo and technology, its technical performance with the chip set has to be tested and certified. Bluetooth and other wireless technologies used for power management in the context of electric vehicle chargers and smart metering are all examples of where the technical standards of operation are underpinned by these SEPs.

I realise that the Bill is not about intellectual property, but it is about regulating the properties of things. Unless the situation of SEPs is fixed, those properties can be in a state of flux. SEPs should be treated differently from other patents, which is why we are introducing them into this debate.

Of necessity, as a result of a dominant market position, the SEP holders have to voluntarily commit to license their technologies on fair, reasonable and non-discriminatory terms. The licensing of SEPs is important in ensuring that UK businesses are able to use the most modern and effective versions of these technical standards. In practice, SEP holders often evade their voluntary commitments to license their patents fairly because of a lack of clarity over what constitutes fair, reasonable and non-discriminatory, caused by weaknesses in the UK’s legal framework. SEP holders can abuse their position as gatekeepers of these technical standards by using the threat of costly court action and injunctions to force potential licensees to accept excessive royalty demands or quit the market. That can effectively prevent smaller companies from entering into, and being able to operate in, a market. In the previous group, the noble Lord, Lord Sharpe, asked whether the Bill was pro-innovation or anti-innovation. Unless we round up this issue on SEPs, I have to say that it is absolutely stifling innovation.

In most cases, SEP holders are well resourced and aggressive, while many licensees, especially SMEs, lack the knowledge and resources to defend their rightful position in court or push back against the mere threat of litigation. Increasingly, there is a third sector of people who buy up the rights to these patents and treat them as a revenue stream, whereby they go after and literally squeeze the people who have to use these SEPs. In essence, it becomes a secondary market for these things, without the necessary protections.

There are two issues. First, the availability of injunctions to the UK’s current SEP framework means that both small and large technical innovators who operate downstream of the primarily foreign SEP holders can be forced to accept excessive SEP licensing fees because they want to use this technology. The second problem is the lack of transparency: they quite simply do not know who holds these patents until they get an injunction through the mail. That is the problem. With the threat of injunctions and lack of transparency, UK manufacturers are frequently faced with a no-win situation. They have to either pay these fees or get out of the market, because they cannot afford to defend them at an injunction. This is in spite of the SEP holders making a voluntary commitment to license the SEPs on fair terms as part of the standard-setting process. So there is a problem.

The situation creates significant cost and uncertainty for some of the most innovative UK firms, it stifles innovation and, importantly, in the context of this Bill, it challenges the efficiency and effectiveness of products that rely on SEPs and are regulated by this legislation. That is why it is appropriate to have this discussion here today. The UK IPO is aware of issues concerning the licensing of such technology but to date has done nothing, or has insufficiently acted, to protect UK businesses that must use these technologies. This amendment is an opportunity for the Minister to commit to legislative action on SEPs to address the critical issues of products being threatened with exclusion from the people who need them, the imposition of unfair royalties and SEP licences being refused to companies that need them. I beg to move.

[Lord Lansley (Con)]

I am most grateful to the noble Lord, Lord Fox, for explaining so expertly what standard essential patents—SEPs—are and how important they are to the use of legislation in specifying product requirements, which of course are directly linked to the standards that we will go on to talk about. We have previously talked about the importance of standard-setting, but there is no point in setting standards if they cannot be fulfilled, turned into product requirements and brought to the market—that is what we are talking about. In particular, the noble Lord was absolutely right to stress that we should be thinking in this legislation about how we can promote innovation. Addressing this issue is one of the central ways in which we can do that.

Our two amendments serve the same purpose. The only distinction is that I was trying to suggest, in this particular instance, the importance of taking a power and not attempting in the primary legislation at this point to specify precisely how that power should be structured, because it is necessary for there to be a full consultation about the changes that would need to be made—not least, probably, to the Patents Act itself. When we come back on Report, if we go down this path there may be a need to have a power to amend the Patents Act as well.

The point here is that, as the Intellectual Property Office itself said, SEPs will be

“of growing importance to the UK economy”.

This is not a small matter, and it is becoming more important because of connectivity, the internet of things and the multiple range of SEPs associated with many of these standards. The noble Lord, Lord Fox, is absolutely right about the problems that can emerge for companies, particularly SMEs, in understanding the visibility of SEPs and who holds them—and, for that matter, in being absolutely clear about which ones are essential and which are asserted to be so, but which are not in fact essential to the standard.

I shall not delay the Committee now, but I want to focus on the question of why we need a power. First, the Intellectual Property Office is trying to do its best within the powers available to it. In July, Ministers announced the establishment of the resource hub, which gives guidance in relation to SEPs and enables companies to understand the SEP ecosystem. However, that does not change some of the fundamental issues to which the noble Lord, Lord Fox, referred. There are licence holders who are delaying access to their patents, and who are using that as a mechanism to get terms that are not fair, reasonable and non-discriminatory. SMEs are finding it very difficult to know what FRAND terms look like in relation to many of these products.

There is another issue: not only the individual royalties that must be paid in relation to these licences, but the global royalties that need to be available. Although there is case law that can be looked at, it is very difficult for SMEs in particular to understand how that may be applied to them. Of course, there are global royalties being established through large cases, which delay access to this intellectual property for some of those who need to use it; they are therefore unable to know how viable their product may be.

These issues have been addressed in the European Union. At present, there is a regulation agreed between the European Commission’s proposal and the European Parliament, and it is awaiting the conclusions of the Council of Ministers. Let us just focus on that for two seconds. What does it do? It sets out that there needs to be transparency, a mandatory register, and the ability for an official body to undertake a reality check asking, in essence, whether something is actually essential to a standard. It facilitates fair, reasonable and non-discriminatory terms. It also delays for nine months the point at which any licence holder could go to court to secure an injunction for these purposes while there is a requirement for a negotiated process; indeed, it entertains the possibility that, under the regulation, this may relate not only to individual royalties for licences but to the aggregate of those royalties for licences. So there is a legal structure in the European Union for these purposes, in order to overcome what is otherwise, for SMEs in particular, an extremely difficult set of circumstances arising from case law for them to understand and interpret.

This is not a small problem for some SMEs. For example, I have been talking to Tunstall Healthcare, which I know well from its role in providing connectivity, particularly for people who require care at home; it looks after more than 100,000 of them. In order to access licences for 4G and wifi connectivity, it needs to negotiate many licences and to identify where they exist. A company called Bullet was trying to develop and market highly resilient smartphones, but it ceased trading, owing millions of pounds to SEP holders, which contributed to its inability to continue trading. So I think we need to act.

The IPO has said that it will respond to the consultation at the end of 2024—so any minute now. I am told, however, that that will not now happen in 2024. What I really want to hear from the Minister is, first, that this is a suitable Bill and a suitable opportunity to take a power—without specifying all the details of that power—to make provision in relation to SEPs. Secondly, I want to hear that the IPO and Ministers will undertake to respond to the consultation in the early part of next year, putting forward proposals for how the new power is to be used and inviting responses.

18:00

I hope that, in the period between Committee and Report—with the noble Lord, Lord Fox, and others contributing to this debate, along with the Department for Business and Trade, the IPO and the Department for Science, Innovation and Technology, given its responsibilities for intellectual property—we can have a round-table discussion about what the power in the Bill should look like and how that might be given effect in the months ahead as a strong, pro-innovation measure in the Bill.

[Lord Sharpe of Epsom (Con)]

My Lords, I will be very brief indeed. I have learned a lot from this brief debate and thank both noble Lords for their expert explanations. As a novice in this subject, I cannot think of a single possible objection, frankly, to either of the amendments from the noble Lord, Lord Fox, and my noble friend Lord Lansley. I hope the Government will welcome these as an example of well-informed common sense and give due consideration to some sort of amendment along these lines. I believe the Government to be sincere in their intention to promote growth and innovation, and it seems to me that both these amendments would, in some form or another, help to deliver that. If the Government do that, we will be supportive.

[Lord Leong (Lab)]

My Lords, I thank the noble Lords, Lord Fox and Lord Lansley, for their Amendments 34 and 35. When I saw the first amendment, I had to go and check what SEPs means. Now, after speaking to officials, I think I know a little bit and I welcome the opportunity to address the issues raised regarding software products that rely on standard essential patents, or SEPs.

These amendments go far beyond the intended focus of this legislation by expanding the scope of regulatory powers. Due to their complexity, the regulation of SEPs should not be reduced to a short provision in a Bill that was not drafted with the intention of regulating in this sphere. Any policy measures need to achieve a balance between rights holders being able to appropriately protect and enforce their rights, and users’ ability to access such technologies and innovations through fair and appropriate licensing forms.

However, I agree with the noble Lords that this is an important issue. The Intellectual Property Office has already engaged extensively with industry and business to determine whether any change to the framework for SEPs is necessary in order to ensure that businesses can license SEPs effectively and fairly. This engagement has included a call for evidence and views, and a questionnaire has been sent out to small and medium-sized enterprises. In response, the IPO has already launched a SEPs resource hub—an information resource that helps to address the very problem the noble Lords have identified. The IPO is also considering whether to consult formally next year on measures, as indicated by the noble Lord, Lord Lansley, and further to improve transparency in the SEPs ecosystem and enable more efficient dispute resolution. Any such consultation would be subject to ministerial decision, and we are currently working on that. In the meantime, I assure noble Lords that the IPO is continuing informal engagement with industry on both this matter and the SEPs ecosystem more generally. I hope that is reassuring to the Committee.

While I agree that this is an important issue, this Bill is not the right avenue to address the problems that the noble Lords raise. I therefore ask that they withdraw or do not press their amendments.

[Lord Fox (LD)]

I sort of thank the Minister for his response, but not much, because I think he could have acknowledged that this is a problem, rather than that SEPs exist, because it is a problem. Whether or not the Bill is the solution to it, the Department for Business and Trade should have an interest in solving that problem, but it did not seem that there was much appetite for that. Perhaps the Minister could disabuse me of that by acceding to the suggestion of the noble Lord, Lord Lansley, to have a meaningful round table with the right people for us to further this discussion. If this is not the avenue to deal with it, we need something else, because it is a real and present problem that needs a meaningful solution.

While the efforts of the IPO are clear, the point of the noble Lord, Lord Lansley—I should call him my noble friend in this case—is that the IPO needs more power and something needs to be done. If it is not this, it needs to be something else.

[Lord Leong (Lab)]

I want to be very clear that the Department for Business and Trade wants to support businesses of all types and sizes, but we have to be fair as well, so as not to burden too many SMEs with regulations and financial costs. This area is being led by the IPO but, at the same time, there is a way that the Department for Business and Trade can engage with the IPO. I am than happy to arrange a meeting between the noble Lords, Lord Fox and Lord Lansley, and officials from the IPO and the Department for Business and Trade.

[Lord Fox (LD)]

I thank the Minister for that offer, which I am sure we will take him up on. If the Government wish to unburden small and medium-sized businesses, solving this problem would be a slam dunk. With that, I beg leave to withdraw Amendment 34.

Amendment 34 withdrawn.

Amendments 35 to 37 not moved.

Amendment 38

Moved by

[Lord Lansley]

38: Clause 2, page 3, line 37, at end insert—
“(7A) Provision made in reliance on subsection (1) may (among other things) identify product requirements by reference to international agreements or standards relating to the marketing or use of products, including agreements or standards as they have effect from time to time.”Member's explanatory statement
This amendment would enable product requirements to by met by reference to international standards.

[Lord Lansley (Con)]

My Lords, there was a substantial debate on a previous day and earlier group on whether product requirements should, from time to time, be set by reference to the European Union standards to which they should be aligned dynamically or, as my noble friends Lord Frost, Lady Lawlor and Lord Jackson of Peterborough argued, set by reference to standards in other jurisdictions. “Relevant foreign law” was the term that they used.

I think that we should lift our eyes beyond that debate and say that we want not simply to arrive at a point where we set our standards by reference to those determined in other jurisdictions, but that we should maximise the opportunity for international standards to be the basis on which standards and product requirements are set in all these jurisdictions. I say this not least because in June, before the election, when regulations were going through for the temporary effect to which this Bill gives a permanent basis, there was some legitimate concern about whether the competencies inside our standards-making organisations would be retained in this country if the UK conformity assessment is little used relative to other conformity assessment processes.

I have two amendments in this group by which I want to do two things. First, I want to be clear in the Bill that product requirements may refer directly to international standards. Secondly, I want to promote through a new clause a strategy, which I am asking the Office for Product Safety and Standards to lead, for the United Kingdom to lead in the further establishment of international standards.

I mentioned in some detail at Second Reading how I do not think we are doing this in any way contrary to the thrust of thinking in other jurisdictions. The European Union strategy for standardisation in 2022 pointed directly towards the importance of the greater use of international standards:

“Traditionally, the EU has been a strong leader in international standardisation activities but needs to take account of a changed geopolitical situation, as other countries start to approach international standardisation more strategically”.


So, the European Union is working in that direction. Mario Draghi’s report to the European Commission emphasised the importance of international standards as a means of promoting regulatory harmonisation and reducing trade friction and said that the European Union should lead in framing international standards. We are not alone in this process.

On Monday, my noble friend Lady Lawlor referred to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. Article 8.5 states:

“The Parties recognise the important role that international standards, guides, and recommendations can play in supporting greater regulatory alignment, good regulatory practice, and reducing unnecessary barriers to trade”.


I hope that with the Ministers and the Government I am pushing at an open door and that international standards are at the heart of how we want to proceed. I have been given an estimate that something like 80% of standards in some form or to some extent derive from international standards. That would be the case, not least if one includes many that are part of a process in which they are incorporated into existing European Union standards. It is not that this is something we do not presently do; it is something we do at present, but we want to do more and to make it a clear priority.

Why do we need it in this legislation? One expert to whom I talked said that the Secretary of State has the power to designate standards and that it is frequently used in relation to international standards. That is fine, but let us remember what this Bill does. Later on, the Bill contains the power to repeal Section 11 of the Consumer Protection Act. Unless I am missing something, it is Section 11 of the Consumer Protection Act that gives the Secretary of State the power to designate standards in that way, so we do not know how the Government intend to use the powers that the Minister has explained are going to be taken and used flexibly in relation to Section 11. How is that power going to be used in future? If it is to be effectively recreated under this legislation, it is important for this legislation to state that the power should reference international standards wherever appropriate and effective.

I am supported in that view in that, in 2021, Ministers—the noble Lord, Lord Hunt of Kings Heath, was a participant in those Committee and Report debates—took medical devices out of Section 11 of the Consumer Protection Act and put them into the Medicines and Medical Devices Act and created a power to regulate medical devices in the same way as this Bill creates a power to regulate many other products. In the Medicines and Medical Devices Act particular language was used, which is the language that is reproduced for the purposes of this Bill in Amendment 38:

“Provision … may (among other things) identify product requirements by reference to international agreements or standards relating to the marketing or use of products, including agreements or standards as they have effect from time to time”.


I have not invented that language. It is the same as is in the Medicines and Medical Devices Act 2021. If we do not include that language in the Bill, people will wonder why, when making similar new legislation, we did not use the language in relation to other products and standards setting that was used in 2021 in relation to medical devices. I think it is best that we use the same language.

Secondly, for the reasons I have just explained, I do not know whether the power to designate standards by reference to international standards might be diminished in some way by the future repeal of the Consumer Protection Act. I want to make sure that, in so far as new powers are used, they are used to deliver a strategy of using international standards wherever appropriate and effective. I beg to move.

18:15

[Lord Russell of Liverpool (CB)]

My Lords, I will be brief. The noble Lord, Lord Lansley, has made a fairly persuasive case for this. I would hope that to a large extent what he is looking for is already happening fairly systematically as part of good practice in any regulatory authority. Given that it is likely that a large amount of our regulation will probably continue to be broadly in alignment with the EU, it would make a lot of sense for our respective regulatory authorities to be in pretty close contact to make sure that they have, to the extent that it is sensible, the same view and understanding and the same breadth in scanning the different international regulations so that, essentially, they are talking the same language. That would be extremely helpful.

In principle, this is a very good idea. However, it is fine for us, as legislators, to talk theoretically or in detail about statutes and subsections, but the proof is the view business takes of what we are discussing. If business regards this as entirely sensible and something that should be done anyway as a matter of doing regulation well, that is well and good. If it has concerns that this will complicate things further, slow things down and lead to slightly arcane arguments about relative international standards from goodness knows where in the world, I suspect it will not be quite so keen.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank my noble friend Lord Lansley for introducing his amendments so incredibly clearly and expertly. It is obvious that international standards are vital for facilitating global trade. Products that adhere to international standards are more easily accepted across borders. They reduce trade barriers, open new markets for UK business and so on. They ensure that UK products can continue to compete internationally and maintain their high reputation for quality and reliability.

Aligning product requirements with international standards ensures that UK consumers also benefit from high levels of safety. This alignment builds consumer trust, as consumers know that the products they are buying meet rigorous global benchmarks. Amendment 43 specifies that this requires consultation. It is vital that consultation takes place with experts. In principle, we absolutely support the spirit and intent of these amendments.

[Lord Leong (Lab)]

My Lords, I thank the noble Lord, Lord Lansley, for tabling Amendments 38 and 43. I know from when I was on the Opposition Benches that he brings great expertise to this House, debating legislation as varied as the Trade Act 2021, the Procurement Act 2023 and the Bill before us today. His amendments raise important points about the role that international standards can play in domestic product regulation and in ensuring a strategic approach to their delivery and implementation.

Regarding Amendment 38, I reassure the noble Lord that Clause 2(6) enables product regulations to continue to reference international standards to support regulatory compliance, as is the case for medical devices. Provision is already made in current product regulations for the ability to designate a standard adopted by an international standardising body.

We work closely with all departments, including the Medicines and Healthcare products Regulatory Agency, and will continue to work with them to ensure the supply of safe and compliant products. However, each responsible department must individually consider the best approach for its own area.

Before the Secretary of State designates the standard for products regulated under the Bill it is assessed by government. The standard may be designated fully, with restrictions or not at all, depending on how far the standard ensures the relevant product requirements. Therefore Clause 2(6) sufficiently addresses the noble Lord’s concern. There is also no need to specifically reference the ability to designate international standards because that provision is already covered in product safety sector-specific legislation already on the statute book.

[Lord Lansley (Con)]

Which legislation is the Minister referring to? Is it not Part 2 of the Consumer Protection Act, which is able to be repealed by this legislation?

[Lord Leong (Lab)]

I have been told by officials that it is a specific product regulation.

[Lord Lansley (Con)]

Where is the power? Is it in the Consumer Protection Act?

[Lord Leong (Lab)]

I will write to the noble Lord on that.

On Amendment 43, the Government published a memorandum of understanding with the British Standards Institution on 16 September, of which there are copies here available to noble Lords. This sets out in respect of its activities as the UK’s national standards body its role in supporting government policy and acting in the UK’s national interest in the international standards-setting arena. This includes supporting UK policy to strengthen the global approach to standardisation and maximise UK influence.

Within the international standards system the UK already occupies a strong leadership position through the BSI’s membership of international and non-EU private sector European regional standards organisations. The BSI also manages a significant number of important committees in those organisations. In its role, the BSI systematically adopts international and European standards that representatives of UK stakeholders have influenced and withdraws standards that are no longer relevant. This includes internationally agreed standards designed to support regulatory compliance to UK product legislation.

In Articles 2 and 3 of the memorandum of understanding, the Government and BSI agree on the primacy of international consensus and that the two parties will co-operate with each other on international standards policy, while Article 4 ensures that the BSI provides the necessary standards the Government require for UK regulations. The Government are in the process of finalising a document entitled “The UK Government’s Public Policy Interest in Standardisation”, which is referenced in the MoU with the BSI, that explains why standards are a key factor in support of a number of government policies. It also reinforces the policy of influencing international standards and the importance of maintaining a constructive relationship with the BSI.

Given the close collaboration and the mechanisms in place, I believe that the objectives of Amendment 43 are already being met on the points I have just outlined. I hope that I have been able to provide sufficient reassurance to the noble Lord that what he seeks to achieve is not only already possible through the Bill, but also common practice across a range of sectors. If helpful, I will ask my officials, following Committee, to provide further information on the important role that international standards play in the UK system. With that in mind, I respectfully ask the noble Lord to withdraw his amendment .

[Lord Lansley (Con)]

I am grateful to the Minister for his response. He has obviously taken some trouble to think about it quite carefully.

First, I do not dispute that current powers enable international standards to occupy a central role in our standards-setting process, and I share the Minister’s admiration of the British Standards Institution as our national standards body in doing that, although I note that many of its experts are now in Amsterdam. Let us leave that on one side as noble Lords know which side I was on in that argument and that it was not the same side as my noble friend Lord Frost.

However, not least with the way the European Union is moving and the commitments we are entering into with the new ratification of the CPTPP, would it not be useful to take language such as where Article 8.9 of the CPTPP says the parties should seek

“greater alignment of national standards with relevant international standards, except where inappropriate or ineffective”?

There is language of that kind to which we are party, which in my view it is suitable to incorporate into legislation where we are setting out new legislation that is intended to say how powers should be used in future. That is the point I make. I am not arguing in any sense in a way that is at odds with the intentions of the Government, but I think they have to look and say, “Well, legislation sometimes must be very clear about how people should think and act in the future”. I hope Ministers might think more about this before Report. However, on the basis of the discussion we have had, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Amendments 39 to 42 not moved.

Clause 2 agreed.

Amendment 43 not moved.

Amendment 44

Moved by

[Lord Foster of Bath]

44: After Clause 2, insert the following new Clause—
“Regulations relating to lithium-ion batteries(1) The Secretary of State must lay before Parliament a statutory instrument containing regulations relating to lithium-ion batteries within six months of the passing of this Act.(2) Before laying the statutory instrument referred to in subsection (1), the Secretary of State must consult with the relevant statutory consultees including the fire services, and with relevant consumer, industry, manufacturing and trade bodies.”Member’s explanatory statement
The amendment seeks to clarify the issues relating to the regulation of lithium-ion batteries, including the increasing numbers of fires, deaths and injuries as a result of lithium-ion batteries.

[Lord Foster of Bath (LD)]

Amendment 41 was tabled by my noble friend Lady Brinton but, as I have explained, she is unable to be with us today. Her amendment and others in this group, including my own and those of my noble friend Lord Redesdale, seek to address an issue that I have frequently raised in your Lordships’ House: safety issues in connection with lithium-ion batteries. Indeed, I have already done so on a number of occasions in earlier groups, particularly in the previous group, where I used lithium-ion batteries as an example of why we need specific regulations regarding high-risk products.

Whenever I have discussed these issues, I have always recognised the vital importance of lithium-ion batteries. They currently provide a crucial role in our drive towards low carbon or zero carbon. After all, they can store more energy than any other commercially available battery at present. However, they have their dangers.

If incorrectly constructed—an issue that is picked up by Amendment 46 from the noble Earl, Lord Lytton, which I support—or if they are damaged or misused, not least through incorrect charging, there can be a thermal runaway, reaching enormously high temperatures of many hundreds of degrees. These fires give off toxic and dangerous gases and, as I pointed out in an earlier discussion, they cannot be put out by using water.

Amendment 44 recognises that this is a framework Bill and new regulations are going to come at a later stage, but it argues that the particular urgency relating to the dangers, especially of fire and explosion, of unregulated lithium batteries, which are often purchased from abroad, requires urgent action from the Government. It therefore proposes that the Secretary of State must lay regulations relating to lithium-ion batteries within six months of the passing of this Act, and that in the period prior to doing so the Secretary of State will have consulted all the statutory consultees, including the fire service and relevant consumer industry bodies and manufacturing and trade bodies. My Amendment 49 seeks to place a duty on online marketplaces to take all reasonable steps to ensure that products containing lithium-ion batteries sold on their platforms comply with the UK safety standards that will be developed.

18:30

Many noble Lords will have received numerous statistics about the problems that can arise from lithium-ion batteries; it is not my intention on this occasion to repeat them, other than to draw attention to just a couple. In the UK, the number of fires linked to lithium-ion batteries increased by 46% in 2023, compared to 2022. Fire services attended 921 fires linked to lithium-ion batteries in 2023, of which one-third involved e-bikes, with the London Fire Brigade attending one such fire every two days. They are the fastest-growing cause of fire in the capital.

It is worth noting that concerns in this area are widespread—to the point that, for example, people are now forbidden from taking e-bikes on to any London Transport vehicles. Interestingly, Chiltern Railways has put up posters forbidding the bringing of lithium-ion batteries on to its trains, with “Lithium-ion batteries cause fires” written in huge letters. There is real concern here, which we must urgently address.

As I pointed out in our debate on an earlier amendment, in the absence of action by the Government, the e-bike sector is trying to do what it can by promoting safe use and safe charging—as well as by drawing attention to reputable sellers of e-bikes that ensure that the correct safety standards are adhered to—but, frankly, the Government should not be leaving this to the industry. They must do more themselves, and urgently.

We should of course be concerned about the impact of the growing number of lithium-ion batteries, particularly in terms of fire services and the risk that such fires put fire officers under, and about the huge costs arising from damage to property. However, our biggest concern should be about the injuries and, tragically, the deaths caused by such fires. Let me give one example. In June 2023, Gemma and her two children, Lilly and Oliver, were killed in Cambridge as a result of an e-bike bought online exploding in their home. Her partner, Scott, survived with very serious injuries; he was in a coma for a month. He subsequently said:

“I feel like my life has ended and I don’t know how to move on. Before the fire, I had no idea about the dangers of these lithium-ion batteries. I bought my battery online and just assumed it would be safe, I never imagined it could be so dangerous. The battery exploded under my stairs, whilst my family was asleep. Flames were coming up the stairs like a flamethrower. The fire and smoke filled the house up in seconds. I told them to jump but they couldn’t get out”.

This appalling story—there are many others that I could have quoted—explains why I believe the Government must move sooner rather than later in regulating lithium-ion batteries, as well as in educating the public about the dangers.

Responding to our debate on the first group of amendments, the noble Lord, Lord Hunt, said that he believes the Bill will enable regulations addressing concerns about lithium-ion batteries to be brought forward. I absolutely believe that that is the case and that it is the Government’s intention so to do. However, at this stage, we need clear assurances that they will come forward and will cover all the concerns raised; equally importantly, we need assurances that they will come forward quickly. This is why I am so keen for the Government to accept my noble friend Lady Brinton’s Amendment 44, which would ensure that action happens within six months of the passing of this Bill: any delays beyond that will result in far more horror stories like Scott’s. I beg to move.

[Lord Redesdale (LD)]

My Lords, I will speak to Amendments 55 and 56 in my name. I start by commending my noble friend on the work he has done, over many years, in dealing with fire safety and issues around lithium-ion batteries; indeed, he had a Private Member’s Bill on lithium-ion batteries, but I beat him to it and got one in myself. From discussions with the Minister, I know that the Government are taking this issue forward, so I will not speak specifically on the dangers of chargers of lithium-ion batteries. However, I will mention my Amendment 56, which is the Minister’s own fault: in his bringing forth of this Bill, I raised this issue, and it has now taken on a life of its own.

I will speak first to my Amendment 55, which is about bikes and stopping their theft. I am sure that the noble Lord, Lord Hunt, will be open to my debate here because we often park our bikes outside the front of this building. I am happy to say that I do not have to lock that bike—not because I believe that people passing through the building are inherently honest; it is more that, if somebody can get past two guys with machine guns, they can have my bike. But I am lucky; not everybody in the capital has that joy, obviously.

To go back to the serious point, an estimated 200,000 bikes are stolen each year in London—and that is just the tip of the iceberg because many bikes are stolen but not reported to the police. It is possible that only stolen bikes that can be claimed on insurance are reported to the police, as I have myself experienced in the past. This is a real issue going forward because the cost is not only to the individual but to the insurance companies, the environment and the way in which we structure a transport strategy. If people have their bikes stolen on a regular basis, they will move away from cycling as an option.

So I have come up with a simple solution. The Minister will ask, “Why should I introduce it in this Bill?” The answer is simple: as I say to people, lobbying is 90% hard work and 10% luck. If you do not have the 10% luck, where you can squeeze something in, you might as well give up. This Bill talks about online regulation; it is difficult to get Bills that deal with online regulation through because of some of the inherent difficulties associated with it.

My concept is that there a simple solution to bike theft, which has been proven in the work of Merseyside Police: making sure that bikes have a security marking. If a bike has a security marking, which can be done cost-effectively and cheaply, and it is put on a register, which does not involve any new bureaucracy, you end up with a situation where it is very difficult for those stealing bikes to sell them on online platforms; this is proven to be the case. I have been talking to the Metropolitan Police lead on bike theft. His view is that thieves will not sell bikes in this way—this is the major way in which people sell bikes—because they would be sitting on stolen goods and could be clearly identified with the stolen object.

The Minister is going to say that, obviously, this should be outside the Bill because it does not talk about safety. However, I would argue that, for those who are buying a stolen bike, the theft of the bike will have probably damaged the bike and that it is not in the interest of whoever stole it to look after its maintenance and repair. Bikes on roads can be extremely dangerous. There are two types of dangerous bikes—those that are poorly maintained and those Lime bikes that people drive around—but that is a separate argument.

This would be a very simple measure to take forward. If the Minister is minded not to put it in this part of the Bill, I very much hope that he will agree to a discussion with the lead police authorities, because this would cut crime. In fact, it would not only cut crime but increase confidence in the police because 90% of bikes stolen in London are never recovered, with their thefts never solved. I hope that the Minister will agree to a meeting to look at whether this measure could be included in the Bill; I would argue that the Bill is so wide in its parameters that this could be added, which would be a way forward. Can he also discuss which other legislation we could add this to?

Amendment 56 came out of the arguments that we were having about lithium-ion batteries. I came up with an interesting solution: I plan to bribe the Government by saying that, if they agree to measures to take this forward or discuss it, I will remove my lithium-ion Private Member’s Bill and so free up a Friday morning. Actually, I am not sure that is bribery; it may be coercion.

This is a very simple look at how to remove lithium-ion batteries from the waste stream. My noble friend has talked about how lithium-ion charging and bikes are a danger but, with the advent of throwaway vapes, even if the batteries are removable, you still have the problem with small lithium-ion batteries ending up in the waste stream because people just throw them away. A large number of fires are taking place, at massive cost to local authorities and insurers, because batteries being thrown away in the waste streams are crushed or get water in them and then cause fire. The best thing would be to remove them from the waste stream in the first place.

I am developing this argument—I will come back to it at a later stage with a more refined amendment—but this amendment would allow online retailers to provide buckets so that people could put batteries in them and take them away. I have talked with all elements of the industry. There is no reason why this should not happen. There is no hazardous waste; it falls under the hazardous waste directive, so Defra could not complain about it. It would be a quick and easy way of recycling batteries, which I know are not meant to be thrown into the waste stream; they have a sign on them saying “Do not bin” but, of course, loads of people do. How many people have a bag of used batteries, lithium-ion or otherwise, in a drawer? My argument is that, if they are dangerous in the waste stream, they are dangerous in people’s homes, so removing them from people’s homes is important.

People might say that you can take them to supermarkets or recycling centres. My argument is that, yes, they must be recycled from supermarkets because there is a duty on the supermarket to provide that facility. The problem is that online retailers often get around this by saying, “We don’t have a premise”. My argument is that that really does not fly any more. Amazon provides its own batteries so it should take them back. I do not think that it can rely on saying, “Take it to someone else’s supermarket”; it has a responsibility to take them back. Of course, the point at which it should take it back is from the delivery: if you cannot go to a shop, because Amazon does not have shops, the only point you have is the delivery driver. Amazon may make the point that it does not own the vehicle but it still has the obligation. In talking to the industry, I have shown it—I could not bring it in here, obviously—a small plastic bucket to be taken along. Not every delivery would end up with people providing batteries; it would be a small amount because, once you got rid of the batteries once a year, you would probably then collect.

I have been talking to people from Duracell about this. They believe that, over a year, you could probably recycle about 1 billion batteries through that method; that is an enormous amount. This would take the lithium-ion or other batteries out of the waste stream and make sure that they could be recycled. It would also allow us to build up the waste streams in this country in order to make the development of recycling facilities here profitable. I do not think that the buyback scheme everyone suggests would work because one Duracell AAA battery is worth 0.0002p in recycling, if I have got the noughts right, so that is not worth while; however, once it is recycled, it has a value in the recycling scheme.

Could I meet the Minister and his officials to discuss whether this regulation could be put forward? Could we get direction from the Government, in our debate on the next amendment, saying that this is something that could be taken forward? Online retailers already have an obligation but it has not been pushed at the moment because people have gone back to the default position of, “We do this in shops”. If that is the case then, after the discussion at the next stage, the Minister could just stand up and say, “This is an obligation”, at which point we could make sure that the buckets went out and that this process started. The whole battery industry is keen on making sure that this happens.

I have put forward these amendments. I very much hope that the Minister can give me some assurance that we can meet.

18:45

[Lord Fox (LD)]

Briefly, I of course support these four amendments from my noble friends, but I will say a few words on Amendment 56. In a previous group, amendments tabled by me and the noble Baroness, Lady Bennett, on the circular economy and disposal, also touched on these issues and it would be worth while looking at those in conjunction with the amendments from my noble friend Lord Redesdale.

To give a bit of advice to my noble friend, the noble Baroness, Lady Finlay, made some interesting points about it being fulfilment centres rather than the actual online marketplace. In some cases, the supplier is foreign but the fulfilment centre is local. Perhaps there is some advice to take from the thoughts of the noble Baroness, Lady Finlay, on that, as they seemed a way of bridging the issue of the supplier being a long way away in a different country, whereas the people dispatching the item are most definitely here. With those provisos, I reiterate my support for all four amendments.

[Lord Sharpe of Epsom (Con)]

My Lords, I will be very brief. I found that a most interesting explanation of lithium-ion batteries and their various aspects. I confess to not being an expert at all, so it is very clear that I—and, I imagine, the general public—need to be better informed on this. I imagine that regulations will form an essential component of becoming better informed.

It was interesting how the noble Lord, Lord Redesdale, said that he was worried about the scope of the Bill. This Bill will take pretty much anything you like—it is enormous—so I would not have too many concerns about that. I ended up, funnily enough, with a couple of questions, which we can perhaps discuss later. I am curious to know how much of the safety of these batteries is contingent on the way that they are stored, used and maintained. That would be an interesting subject to explore further.

[Lord Redesdale (LD)]

My Lords, it is worth mentioning because we have raised the issue and it is picked up whenever we discuss the danger. The actual danger of good batteries is extremely low. The problem is in the waste stream when they are hit by water or crushed. That is the issue that local authorities have.

[Lord Sharpe of Epsom (Con)]

Again, I think that my ignorance probably suggests that the public ought to be slightly better informed about that. Maybe they are; maybe it is solely me being ignorant. I do not know.

The other thing that struck me, while I again say to the noble Lord, Lord Redesdale, that I like his Amendment 56, is that surely we need to be a little bit careful about exploding Amazon trucks if they are this unstable. I will leave that thought with him.

There is, finally, a third subset of safety issues that I thought about when the noble Lord was talking about bikes. It is about those, Lime bikes in particular, that are left lying in the middle of the road unexpectedly as you go round a corner—he said, speaking from personal experience.

All these amendments have considerable merit. I am very interested to follow them and will consider supporting them.

[Lord Leong (Lab)]

My Lords, I thank the noble Lords who have spoken, in particular the noble Lord, Lord Foster, for speaking on behalf of the noble Baroness, Lady Brinton. The issue of lithium-ion battery safety is rightly getting a lot of attention and I am grateful for the opportunity to discuss it. I also mention the work of the noble Lord, Lord Redesdale, who has tabled a Private Member’s Bill on this same topic and with whom I have had valuable discussions during the passage of this legislation.

The Government have already taken significant steps to protect people from the dangers posed by products containing lithium-ion batteries. The Office for Product Safety and Standards has been working with colleagues across government and industry to identify the root causes of safety issues associated with lithium-ion batteries and to ensure that steps are taken to protect consumers and remove dangerous products from the market. We are also working with UK businesses to ensure that they comply with regulations. In addition, we have collaborated with fire and rescue services to identify products involved in incidents and have taken the appropriate action when unsafe products are identified.

Since 2022, efforts have resulted in 20 separate product recalls and 22 other enforcement actions for unsafe or non-compliant e-bikes or e-scooters. The OPSS has issued 26 withdrawal notices to eight online marketplaces, two manufacturers and 16 separate sellers to halt the sale of two dangerous e-bike battery models manufactured overseas by Unit Pack Power—UPP—that were discovered during fire and rescue investigations.

In terms of regulatory change, we need to ensure that any regulation is effective at stopping harmful products reaching the market. We also need to make sure that good businesses, which are in the majority, are not undercut by these unscrupulous traders.

The Bill is designed to provide powers across a broad range of products, including lithium-ion batteries. It does not highlight particular sectors that are in need of regulation. Noble Lords will appreciate that a very large range of products are covered by the Bill; therefore I would be hesitant to draw out lithium-ion batteries or specific measures in it. That would also limit our flexibility to work with all interested groups to identify the most effective way to tackle this issue. Today it may be lithium-ion batteries, while tomorrow it may be magnesium batteries, sodium batteries, salt or seawater—all of which may pose some safety features. So we need the flexibility to identify those new products on the marketplace.

Indeed, during Second Reading of the Bill in the name of the noble Lord, Lord Redesdale, a number of Peers highlighted that battery technology is changing. That is part of the reason why the Product Regulation and Metrology Bill works in this flexible way, as I stated earlier. It is to ensure that future regulations are able to take account of developing technologies.

We are, none the less, considering what change will make a meaningful difference to lithium-ion battery safety. My department has commissioned extensive research from the Warwick Manufacturing Group to better understand battery safety, including compatibility issues. This research is being finalised and we expect to publish it in due course. This will help us identify the root causes of battery risks and options to better protect consumers.

We want to take action about these unsafe products. We cannot commit to a timescale as we want to take the right action—but we do want to take action. One area where we have been very clear about the need for action is products sold via online marketplaces. I thank the noble Lord, Lord Foster of Bath, for his Amendment 49—and his well-informed advocacy in this area—that would require online marketplaces to take reasonable steps to ensure that products containing lithium-ion batteries sold on their platform are compliant.

In addition to the action I just mentioned, the OPSS wrote to major online marketplaces earlier this year, expressing concerns about the availability of unsafe products online. The OPSS has issued online marketplaces with legal notices that prohibit the supply of unsafe products. However, while much has already been done to keep people safe, our product safety regulations could go further.

As mentioned at Second Reading, we will use the Bill to clarify and modernise the responsibilities of online marketplaces in secondary legislation. These requirements will build on best practice to create a proportionate regulatory framework where online marketplaces take steps to prevent unsafe products from being made available to consumers. This will help prevent unsafe goods, including unsafe lithium-ion batteries, from reaching UK consumers.

The enforcement provisions in Clause 3 enable the introduction of enforcement powers for the purposes of monitoring and investigating, and securing compliance with product regulations. A requirement for the production of safety certificates that the noble Lord, Lord Foster, seeks as part of Amendment 49 could be implemented using the Bill’s powers as drafted. As I said, we are keen to continue working with noble Lords and others to identify the regulatory work that would be most effective.

Specifically on Amendments 55 and 56 on bikes, e-bikes and lithium-ion battery products sold on online marketplaces, we agree that online marketplaces should take steps to provide relevant information to consumers so that they can make well-informed purchasing decisions. This is also important to bridge the gap between the information consumers see before a purchase online, compared to the high street, where they can see the product and packaging.

In general terms, the Bill would enable us to introduce requirements on online marketplaces, including the provision of specific information, for the purpose of reducing or mitigating risks presented by products or ensuring that products operate effectively.

I thank the noble Lord for raising another important issue where consumer information can be beneficial to provide product traceability. As he discussed with me previously, this might help to deter the sale and assist the recovery of stolen bikes. The Home Office works closely with policing and academic leads to examine what more can be done to tackle the disposal market for stolen goods. We will therefore engage with the Home Office on this topic to explore whether product regulations could contribute to crime prevention. I will ask my officials to organise a meeting with the noble Lord and officials from the Home Office and other relevant authorities.

I also thank the noble Lord for his Amendment 56, which seeks to require online marketplaces to put in place a return policy for products containing lithium-ion batteries for the purpose of appropriate battery disposal. The Environment Act 2021 provides powers for the Government to introduce new requirements on online marketplaces with respect to the take-back of lithium-ion batteries and products containing lithium-ion batteries. Under the existing producer responsibility legislation, producers of industrial batteries, which include e-bike and e-scooter batteries, must take back waste products free of charge on request. Ministers are currently reviewing proposals to consult on reforms to UK batteries regulation before setting out next steps on battery disposal.

At this point, I wish to mention that I have spoken to my noble friend Lady Hayman of Ullock, Parliamentary Under-Secretary of State at Defra. It is clear to me that noble Lords will discuss the issue of disposal of lithium-ion batteries.

I hope this assures noble Lords that the Government take the issue of lithium-ion battery safety extremely seriously. We have already taken enforcement action and are keen to work with all interested groups to ensure that further regulatory change is effective. Consequently, I ask the noble Lord, Lord Foster, to withdraw his amendment.

Before I sit down, I wish to say that my private office has sent an invitation to noble Lords who have expressed an interest in visiting the OPSS. I very much hope they will take up that offer.

[Lord Foster of Bath (LD)]

My Lords, on behalf of my noble friend Lord Redesdale, I thank the Minister for his kind offer to him. I am sure the Minister will understand that I will want to go and put a wet towel over my head and read very carefully what he has just said in response to this group of amendments. However, I say to him that reading a list of successful examples of unsafe products coming into the UK by the OPSS is something I did myself in a previous debate. It does not indicate that we have got it right. The figures on the number of fires from lithium-ion batteries, for instance, are going up dramatically, so something is not quite right.

The problem, which the Minister touched on both in this answer and the answer he gave to a previous group when I raised the issue of high-risk products, is that the current arrangements are somewhat discretionary, and not at all clear so that we know what they are. For animal products, there is a very clear procedure: everything has to be checked for whether it is low risk, medium risk or high risk. Earlier, I proposed that we do exactly the same for all products. I am grateful to the Minister for agreeing to meet me and other people about that.

In the light of that and the discussions we will have, for the time being I beg leave to withdraw my amendment. However, I assure the Minister that we will come back to these issues at a future stage.

Amendment 44 withdrawn.

Amendment 45 not moved.

19:00

Amendment 46

Moved by

[The Earl of Lytton]

46: After Clause 2, insert the following new Clause—
“Construction product safety: regulations and requirements(1) Within twelve months of the passing of this Act, the Secretary of State must, by regulations under section 1, make provision to reduce risks as defined in section 1(4) presented by construction products.(2) For the purposes of this section, construction products include, but are not limited to, any components used in the construction of buildings, such as external cladding.(3) Within twelve months of the passing of this Act, the Secretary of State must also make provision about construction product requirements by regulations under section 2.(4) Regulations under subsection (3) must set out requirements for the production, use, marking, marketing, testing, approval and provision of information (including information about risk) of construction products.”Member's explanatory statement
This amendment intends to probe whether the Secretary of State will use powers under sections 1 and 2 to regulate products used in construction.

[The Earl of Lytton (CB)]

My Lords, members of the Committee will be aware that there are concerns relating to the suitability and safety of construction products, especially in the light of the Grenfell phase 2 report, and will know my professional interest in this area.

First, I pay tribute to the clerks in the Public Bill Office for their help in drafting this amendment, although its objectives and the rationale behind it are entirely my responsibility. I consider that the amendment speaks for itself in probing the Government’s intentions and resolve in bringing construction products specifically within the Bill’s scope, although they are not excluded, either by the Long Title or by the matters listed in the Schedule. My underlying purpose is to clarify this Bill’s specific focus in the objective regulation of a construction-related product’s inherent characteristics rather the nature of its use, particularly in combination with other products. To put it another way, it is concerned with the regulation, testing, certification and marketing of products for their specific stated use and application—namely, the aims of the Bill.

The British Board of Agrément—the BBA—is one of the main industry certifying bodies for construction products. In virtually all the BBA certificates I have looked at, it is made clear that the approval is for the specific use and application as presented. This is logical because behind every approval is an assessment or test of some kind that will be specific as to the proposed use. However, we know from the Grenfell phase 2 report how things can be misrepresented. Of course, none of this prevents misuse of some sort, or abuse, but it starts to clarify responsibility as applying to those who have true agency in the specification and use of products, especially where fire safety is concerned. I hope this gives the Minister an opportunity to confirm that, so far, I have got this right.

At the meeting with the noble Lord, Lord Leong, and officials, for which I thank him, it was suggested that while the provisions of the Bill cover construction products, in all probability any regulations would be made under a different legislative provision, such as the Building Safety Act 2022—so I looked in that Act for the word “regulation”. I got 650 hits, which sounds a bit like Henry VIII on steroids, I am bound to observe. I alighted on paragraph 10(1) of Schedule 11 to that Act which states:

“For the purposes of this Schedule, “safety-critical products” means construction products which are included in a list contained in construction products regulations”.


It is getting a bit circular, I suspect. Sub-paragraph (2) states:

“A construction product may only be included in a list under sub-paragraph (1) if … in the view of the Secretary of State any failure of the product would risk causing death or serious injury to any person”.


I would be grateful if the Minister could confirm that I am right in believing that this is the relevant regulation-making measure that might be used in the Building Safety Act to implement some of the provisions of this Bill, if they are not implemented directly. If so, it has to be noted that the Building Safety Act relates to critical life-safety risks to persons, first and foremost. The Bill does not use that metric, so I consider that the relationship between this Bill and the BSA, for example, needs further clarification.

It has long been my professional assessment that if a building is robust, occupant safety is likely to be assured as well, but focusing on critical fire risk which interests itself only with occupants’ risks consigning them to significant risks of an emotional and financial nature if the building lacks durability and is effectively considered expendable. In terms of human life, that is absolutely the right approach, and I get that, but in terms of mercantile practice and peace of mind, it is a philosophy with gaps, especially if the general Building Safety Act approach is one of proportionality or tolerable risk—although I question by whose objective standards those might be measured, but that is another question.

So if I am correct, even allowing for the point that a building is not “product” as a term of art, why regulate such an important matter as construction products to be used in a residential block via different standards as compared with, say, those for a fridge-freezer or a washing machine? As set out in Clause 1(4)(c), we are concerned with a product that could “reasonably be foreseen” to cause damage to property. How is that, in the case of buildings under the BSA, a proportionate or tolerable risk to life? In the Government’s view, does the latter include the former? If so, I would be delighted to get confirmation of that; it is something that I tried to get hold of right the way through the then Building Safety Bill’s time before us. If not, how does the BSA afford the implementation of product safety in construction products?

Note if you will that the assemblage of products and processes used as someone’s home represents their place of safety. It is often their largest investment; it is also often incomparably more valuable an entity than most consumer products, both to them and in market terms. So standards and regulation matter very much. I invite the Minister to enlighten the Committee on this apparent legislative inconsistency.

Had this amendment been debated earlier in the evening, I might have been tempted at this point to have a little rant about British Standards being set behind a paywall—as well as the invidious nature of that when they are also embedded in regulation; the regulation is open source but the BS is not—but I will leave that matter in part to one side for the moment. I appreciate that some of the points I have mentioned go beyond what I discussed in the meeting with the Minister so, if he is unable to answer them right now, perhaps he could write to me before the next stage of the Bill. I beg to move.

[Lord Fox (LD)]

I will briefly respond to the noble Earl. He is right to raise this issue, which is clearly important; we look forward to seeing how the Government respond to it. There are serious issues that need to be addressed somewhere. As has been observed by the noble Lord, Lord Sharpe, and others, the open nature of this Bill offers an opportunity for things like this to be properly discussed and to be, if not solved in this way, perhaps solved in another way.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is very good to respond to this debate. I am delighted that the noble Lord, Lord Fox, sees that there is some advantage in the way that we have drafted the Bill.

I thank the noble Earl, Lord Lytton, for raising what is a really important matter. We all recognise that there are failings in the system by which construction products are tested, assured and made available for sale. The noble Earl described his amendment as probing whether the Government are prepared to use the powers in Clauses 1 and 2 to regulate products used in construction. The noble Earl has huge professional expertise. He referred to the BBA and the specific approval given but warned of the risk of misuse; I very much take that point.

The straightforward answer is that we think this issue is very important. We intend to bring forward robust regulatory reforms in order to provide confidence in the construction products regime and to ensure that only safe products are used in buildings and infrastructure. To that end, we also intend to ensure that the testing and assessment of products’ conformity must be undertaken by those who are competent, impartial and effectively held to account. We have committed to working with the sector on system-wide reform, including examining the institutions that play a key role in the construction products regime, so that businesses and, in particular, consumers can have confidence in the products and services they purchase. The proposed new clause to be inserted after Clause 2, through the noble Earl’s Amendment 46, would place a duty on the Secretary of State to use the powers and to make provision for construction products regulations within a year of Royal Assent of the Bill.

I turn now to the Building Safety Act 2022, about which the noble Earl made some interesting points. That Act already includes powers to introduce construction product requirements and regulations. We are exploring how best to use those available powers, including their sufficiency—I take his point on that—as part of considering system-wide reform. He will know that since the Grenfell tragedy in 2017 some action has been taken on construction products, but we know that more needs to be done.

In December 2018, regulations came into force that banned the use of combustible materials in and on the external walls of buildings over 18 metres. The national regulator for construction products was established in 2021 and leads on market surveillance and enforcement of construction product regulation across the UK.

The Government extended the period of recognition of CE marking for construction products in September this year to give the industry sufficient certainty to support supply chains and to allow time to address the inadequacies across the wider construction products regime, but we recognise that this action is piecemeal and does not go far enough. We have confirmed that we will respond to the Grenfell inquiry within six months. We are also committed to bringing forward proposals for system-wide reform of the construction products regulatory regime.

I have listened very carefully to the noble Earl’s analysis of the Building Safety Act and his suggestion that it is not sufficient for our purposes. We are considering this and I will write to him in some detail about the points he has raised. But to be fair to him, I have to say that this Bill does not specifically exclude construction products and that there could be an opportunity to use the Bill powers in the future should we discover that the Building Safety Act 2022 may be insufficient.

I hope that he will accept this as a positive response to the issues he has raised.

[The Earl of Lytton (CB)]

My Lords, I am very grateful to the Minister for that reply and I am certainly prepared to accept what he says in relation to the Government’s intentions. I will need to consider very carefully what he has said, particularly if he is writing to me—I am grateful for that offer. I will consider things in the light of that.

Without further ado and given the hour, I simply beg leave to withdraw the amendment.

Amendment 46 withdrawn

Amendment 47

Moved by

[Lord Hope of Craighead]

47: After Clause 2, insert the following new Clause—
“Product regulations: devolved administrations(1) Product regulations may not be made until the Secretary of State has consulted the devolved administrations as to their impact and effect on the marketing and use of products in the areas within the United Kingdom over which they have legislative competence.(2) The Secretary of State may by Regulations exclude the application of this Act to products to be marketed or used in areas within the United Kingdom over which the devolved administrations have legislative competence to enable effect to be given to an agreement that forms part of a common framework agreement.(3) A “common framework agreement” is a consensus between a Minister of the Crown and one or more devolved administrations as to how devolved or transferred matters previously governed by EU law are to be regulated.”Member's explanatory statement
This amendment ensures that devolved administrations are consulted before regulations are made under this Part of the Bill, and that common framework agreements receive the same protection to enable them to receive effect as they have under section 10 of the UK Internal Market Act 2020.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to the noble Lord, Lord Fox, and the noble and learned Lord, Lord Thomas of Cwmgiedd, for adding their names to this amendment in my name.

The amendment seeks to insert a new clause into the Bill with two objectives. The first is to ensure that the devolved Administrations are consulted before any regulations are made under this part of the Bill

“as to their impact and effect on the marketing and use of products in the areas … over which they have legislative competence”.

The second is to preserve agreements made under the common frameworks from being nullified by these regulations.

The first part requires very little introduction. The Bill extends to England, Wales, Scotland and Northern Ireland, and consumer safety standards, which is what the Bill is all about, are devolved matters in relation to Wales, Scotland and Northern Ireland. That has been acknowledged by the Government as is noted in paragraph 10 of the Explanatory Notes. Legislative consent is being sought, as one would expect, and indeed is still being sought, for the provisions that engage the legislative consent process.

That may be difficult to achieve because, while the Bill makes provision about what is to happen in each of the jurisdictions within the United Kingdom, it does not contain any provisions that require the consent of, or at least consultation with, the devolved Administrations before the wide-ranging powers to make regulations under Clauses 1 and 4 are exercised.

19:15

As I am sure the Minister understands, the Sewel convention does not extend to delegated legislation—that is the concern that I have in moving this amendment—so it cannot be said that UK Ministers are required by convention to seek the consent of the devolved Administrations before exercising these powers. There is at least a risk that, unless something is said about this in the Bill, these powers could be exercised to engage matters that are not reserved to the UK Ministers in ways that would impinge significantly on devolved competence without the devolved Administrations being involved.

The Constitution Committee has recommended on numerous occasions that in matters of this kind engagement with the devolved Administrations should be a formal requirement. In paragraph 34 of its report on this Bill, it suggests that clarification is needed about the processes of consultation and consent that the Government intend to apply, if the powers in this Bill are used to make regulations in areas of devolved competence.

To some extent, my amendment is a probing amendment, but I suggest that it offers a sensible solution to a point of very real concern to the devolved Administrations. I am not going as far as I sometimes do to ask that consent should be required before these powers are exercised. There is no need to go that far because close and timely consultation, which is what the Constitution Committee is contemplating, should be enough to sort things out in a way that satisfies both sides. Consultation, not consent, is what this clause would require. I hope that the Minister will feel able to assure me that the Government will take this point seriously and perhaps bring forward an amendment that deals with it in their own words for consideration on Report.

The second objective relates to the common frameworks, about which I need to say a bit more. They were created to ensure that a common approach was taken to ensure that some measure of consistency was achieved across policy areas returned to us from the EU which intersect with devolved competence. That is rather convoluted language, but it makes the essential point that it is inherited from the EU and, under the EU system, devolved Administrations had a measure of independence about how they dealt with various matters. Their engagement with devolved competence matters because one of the features of the way in which these matters were dealt with in the EU was that it enabled the devolved Administrations to diverge from other parts of the UK about how matters that were within their devolved competence, for example, with regard to the pasteurisation of milk or single-use plastics, should be dealt with.

The way the common framework system works is that there is a process of consultation that enables a proposal for divergence to be discussed to enable its effect, if any, on the other parts of the United Kingdom to be identified and assessed. It is only if, and when, agreement has been reached that it would not be to the disadvantage of the other parts of the UK that the proposal can proceed to enactment.

This system was up and running when what became the United Kingdom Internal Market Act 2020 was introduced. The market access principles that the Act introduced were designed to ensure that there is a single market across all parts of the UK. Central to its provisions is the principle that whatever is done by way of marketing or the use of products that is compatible with the framework in one part of the UK can be done anywhere else within the UK irrespective of what the local legislative framework may provide. In other words, any provision about the marketing or use of products in one part of the UK that may diverge from what applies elsewhere will, in practice, be unenforceable. That is not how the common framework system is designed to operate.

I was able, with the much appreciated support of the Labour Party and the Liberal Democrats, to persuade the Government in the course of discussions about the internal market Bill to insert a provision in what is now Section 10 of that Act to enable the Secretary of State by regulation to exclude the application of the UK market access principles to enable effect to be given to an agreement that forms part of a common framework agreement.

Subsections (2) and (3) of my proposed new clause are designed to give a common framework agreement the same protection against what product regulations may provide for. Without that protection, agreements of that kind run the risk of being rendered unenforceable. As with Section 10 of the United Kingdom Internal Market Act, I leave whether to exercise the power to the discretion of the Secretary of State. That is what the Government agreed to then, and I hope that the present Government will feel able to do the same in the case of this Bill. It is important because in view of the wide ranging-nature of the Bill, which everybody has commented on, it is quite impossible at this stage to work out exactly what is going to happen when these powers are exercised. That is why the protection I am seeking to insert into the Bill is so important for the protection of the devolved Administrations. I beg to move.

[The Deputy Chairman of Committees (Lord Ashton of Hyde) (Non-Afl)]

My Lords, I have been informed that we are not going to take the last group, and the Minister is confirming that. If anyone is waiting just for the last group, they should not, and they can go.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, it is an enormous privilege to have been in a position to add my name to these two amendments and to have listened to the elegant description of the way in which they are meant to work, as explained by my noble and learned friend Lord Hope of Craighead.

I come to them from a slightly different perspective. The new Government have brought into being a desire to make the union work as a union by co-operation between the Governments in London, Edinburgh, Cardiff and Belfast. Looking particularly to Cardiff, one would have hoped that this is an ambition capable of easy realisation. These clauses give one an opportunity to mark that stated aim in very clear terms. It seems to me that if one looks at what the two clauses have brought about, which my noble and learned friend has so elegantly explained, one sees that they touch on areas of devolved competence, without any doubt at all, and there are legislative consent Motions before the respective devolved legislatures.

There are two areas, as my noble and learned friend has explained. One is consultation. I have never understood why across the board in areas such as this consultation is not mandatory. The previous Government were not very good at that; they did not uphold it properly, I regret to say. I hope they will now see a changed way through, and I very much hope this Government will accept the first amendment on consultation. I can see no argument whatever for not accepting that change.

The second area, as my noble and learned friend Lord Hope, explained, is common frameworks. He has explained how it is necessary to make the amendment, but I hope there is also something to the amendment that will breathe life back to common frameworks. It is fairly useful to go back to what was said in the communique issued after the heads of Government meeting in 2017:

“As the UK leaves the European Union, the Government of the United Kingdom and the devolved administrations agree to work together to establish common approaches in some areas that are currently governed by EU law, but that are otherwise within areas of competence of the devolved administrations or legislatures. A framework will set out a common UK, or GB, approach and how it will be operated and governed. This may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued. Frameworks may be implemented by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate”.


Those were lofty ambitions. Regrettably, and it is not the occasion to go into it now, those ambitions were not properly realised. I pay especial tribute to what my noble and learned friend Lord Hope did when the United Kingdom Internal Market Act was promulgated in obtaining the clauses to which he has referred. It was only by his skill, diligence and considerable persistence—I say with respect—that we got these amendments through. Unfortunately, if there is not the spirit of co-operation—I regret that such spirit was not there for a lot of the past two or three years, although it came back towards the end, particularly under Mr Sunak’s Government—we cannot begin to hope for the lofty ambitions of a union where the Governments work together being realised again.

I hope that, because we have referred to common frameworks in this legislation, we will see them coming back. Much has been said about the need for co-operation and working together, but I think these two amendments are important because it is often said that men are judged not merely by words but by deeds—one could put it in a more colloquial phrase. It seems that these two amendments, drafted in the Government’s words, are and ought to be the deeds by which the Government show that they really mean to go ahead and operate on the basis of a union where, in these areas of devolved competence, there is co-operation but within a framework that permits divergence. Therefore, I very much hope that the principle of these amendments will be accepted, because it is so important to the future of the union.

[Lord Fox (LD)]

My Lords, my noble friend Lord Foster will speak to his Amendment 102 in a few minutes, but it makes sense to follow the noble and learned Lords with my comments on Amendment 47 and the two amendments in my name, Amendments 93 and 96.

It is an enormous pleasure and something of a responsibility to follow two absolutely fantastic speeches on this subject, and I am afraid that my mind did go back to the long nights of the internal market Bill and the tenacity—as the noble and learned Lord, Lord Thomas, set out—of the noble and learned Lord, Lord Hope, in bringing his amendments forward, because a really important thing was eventually done there.

The noble and learned Lord, Lord Hope, referred to the danger of impinging on the devolved authorities. I will give just one practical example and this is not theoretical, because it is already something that the Welsh Government have raised. In their response, the Welsh Government concluded that

“there are relevant provisions in the Bill which, for the purposes of Standing Order 29, are within the legislative competence of the Senedd and therefore a Legislative Consent Memorandum (LCM) is required”.

I do not think that is disputed by the Government.

For example, the power within Clause 1(1)(a) could be used to reduce or mitigate risks presented by products that endanger the health of a person, distinct and separate from any risks to a person’s safety. The use of “health” in Clause 1(4) broadens the scope of how power could be exercised beyond simple product safety, which is a reserved matter, and enables provision to be made for public health purposes, which is an area within the Senedd’s legislative competence. This is just one example.

In their response document, the Welsh Government raise issues covering product regulations, product requirements, emergencies, information sharing, cost recovery, consequential amendment of certain Acts, interpretation, and the Schedule. Happily, the Welsh Government seem okay with Clauses 5 and 6, but the rest of the Bill forms a grey area around competence and responsibility.

19:30

I hope this debate will give us a chance to start to give an opportunity for the Minister to put on record how the Government currently regard their discussions of the Bill with the three devolved Administrations. Let us be realistic: relations between some of those, particularly between London and Edinburgh, were strained for some considerable time under previous Administrations, and the issues around Northern Ireland will be particularly apposite given some of the issues that the Bill will put forward. The point that the noble and learned Lord, Lord Thomas, put forward about this being a chance to restart and demonstrate a future relationship with the devolved authorities is absolutely central to these amendments.

It is a pleasure for me to support Amendment 47 from the noble and learned Lord, Lord Hope. My Amendment 93 is short and would probably be unnecessary in the event that Amendment 47 was accepted, and Amendment 96 was tabled before I knew that the noble and learned Lord was putting forward his amendment—and, as he puts it, they are in different parts of the Bill as well.

This is an opportunity for the Minister to explain explicitly where the Government see the role of frameworks going forward. Will this be properly used, as was envisaged at the outset of where we find ourselves now? If frameworks are still in the frame—if your Lordships will excuse the phrase—they need to be explicitly applied to this Bill. If they are not, the Minister needs to explain how these difficult problems will be negotiated in future. It seems that a mechanism is already available, and it would be very helpful if the Minister could explain whether and how frameworks will be used. With that, I look forward very much to the Minister’s response to this going forward.

[Lord Foster of Bath (LD)]

My Lords, it is an enormous pleasure to follow my noble friend and the two noble and learned Lords, and I am certain that I will not be anywhere near as eloquent in speaking to Amendment 102 as any of them were. Their amendments all deal with the operation of the Bill in the context of the different Administrations that make up the United Kingdom. My probing amendment—it is just that—aims to seek to understand how the Bill will operate in terms of its applicability and its jurisdiction beyond the borders of the United Kingdom. I thought that it might be helpful to noble Lords if I gave an example not of a product but of the issue that particularly drew me to consider this problem, as I see it.

I am the chairman of Peers for Gambling Reform and I have done a lot of work on the issue of gambling. Some time ago, my attention was drawn to an online image which was very clearly identified as coming from Paddy Power. When I looked at this image, I came to the conclusion that it was in breach of our code of conduct in relation to advertising, set by the so-called CAP. I therefore drew it to the attention of the Advertising Standards Authority and asked it to investigate whether this particular image was in breach of the CAP code. It took very many months and several follow-up letters from me before it eventually came back to me and told me that it was somewhat uncertain as to whether it had the jurisdiction to act in respect of that particular image. In the end, it came to the conclusion that it did not have the ability to act—it was something beyond the territorial powers that it had.

When it comes to this Bill, I have to ask myself the question: if somebody acts outside the United Kingdom, what powers do we have for the appropriate body to be able to investigate the activities of that individual or organisation? Will we be able to call for documents or evidence or require it to come for interviews so that an investigation can take place? I appreciate that in many cases we have a situation where we have an internet provider providing this service, and internet service is at the basis of all this. When I look at the Online Safety Act, I notice that that Act defines the internet service in such a way that it has extraterritorial application. Given that an online marketplace is making use of an internet service, one has to ask whether this Bill has extraterritorial powers. In the case of the Paddy Power image, a solution was found because it turns out that we have reciprocal arrangements with the equivalent ASA body in Ireland and it is now going to look into that case—even though the image used pound signs rather than euros, so it was quite clearly intended for a UK audience.

I have suggested an amendment to ensure that there are extraterritorial powers for the various measures in the Bill. I have no idea whether that is the Government’s intention, but I hope it is because so many of the products come from abroad and so many of the services that enable us to purchase those products are based abroad, even though the firms concerned may well have offices within the United Kingdom. It is a probing amendment and I hope that when the Minister replies to the important issues that have been raised by the three preceding speakers, he will also help me understand more clearly what the Bill has in respect of these issues outside our borders.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all four noble Lords for their remarks, which I found absolutely fascinating. I agree with the noble and learned Lord, Lord Thomas, that the noble and learned Lord, Lord Hope of Craighead, deals with parliamentary matters with considerable skill, diligence and persistence. It is always a pleasure to follow the noble and learned Lord. I am very grateful for the reference to the Constitution Committee, a subject I have laboured on at some length. It is important that we continue to return to the fact that the Government need to heed the comments of both the committees that opined on this Bill.

Before I go on, I say that I perhaps take a slightly different view of the previous Government’s interactions with the devolved Administrations than the noble and learned Lord, Lord Thomas, and gently remind him, colloquially, that it takes two to tango. When there is a hard-left Government in Wales and a nationalist Government in Scotland they are perhaps not warmly disposed to being enthusiastic interlocutors with a Conservative and Unionist Government.

The first three amendments in this group have a similar theme, so I shall speak mostly to Amendment 96 in the name of the noble Lord, Lord Fox, which would require the Secretary of State to have regard to Part 1 of the United Kingdom Internal Market Act 2020. We are very proud of our record in helping businesses by reducing barriers for them through that Act, and I pay due tribute to the noble and learned Lord, Lord Hope, for his work on it. The Internal Market Act guarantees that goods, services and qualifications recognised in one part of the UK are automatically recognised across all parts. For businesses, this means certainty, simplicity and reduced administrative burdens, themes that we have explored all evening, and enables them to sell goods and provide services without encountering unnecessary barriers or conflicting regulations. It also allows qualifying Northern Ireland goods to be sold in Great Britain in reliance on the market access principles.

This amendment does not seek to rewrite the principles of the Bill. Rather, it seeks to ensure that its implementation is compatible with the vital provisions of the UK Internal Market Act. The market access principles of mutual recognition and non-discrimination are central to the UK Internal Market Act, as it stops protectionist measures that might favour goods or services originating from one part of the UK over another and safeguards fair competition, fostering a level playing field across all regions.

Our views on prioritising growth and investment and adhering to the provisions of the UK Internal Market Act 2020 are well known; we believe that this measure is necessary to achieve that. I am relatively agnostic as to which of the amendments the Government would wish to look at but some amalgam would clearly be a welcome step forward, so I support the amendments.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been a really interesting group of amendments on which to finish our deliberations tonight. I thank the noble and learned Lords, Lord Hope and Lord Thomas, for their Amendment 47; the noble Lord, Lord Fox, for his Amendments 93 and 96; and the noble Lord, Lord Foster, for his Amendment 102. As noble Lords have suggested, the amendments relate to the application of the Bill’s powers in the United Kingdom, particularly in terms of consultation with the devolved Governments; the United Kingdom Internal Market Act 2020; and the issue of the frameworks, including how they would relate to this legislation.

I can give reassurance about the general approach of the Government to their relationships with the devolved Governments and the way in which we will conduct this. However, I want to reflect on some of the points raised by both noble and learned Lords; I will perhaps come back to them between Committee and Report.

The noble Lord, Lord Sharpe, mentioned the constitution. I am very cognisant: I know that both noble and learned Lords, in our discussions on a number of Bills in the past few years, have wanted to ensure that, in the words of the Constitution Committee, if we are to make the union work, the key words are “respect” and “co-operation”. I fully accept that. We believe that we have, in our first five months, begun to reset the relationship between ourselves and the devolved Governments. We want to work constructively with them. For instance, the noble Lord, Lord Fox, mentioned the input from the Welsh Assembly Government. We are considering it very carefully at the moment; my noble friend has also had some fruitful discussions with Scottish Ministers. That is the way we see ourselves going forward in future.

Many of the regulations made under this Bill will concern technical areas in relation to product regulation and metrology. These matters are largely reserved but some touch on devolved areas. I can confirm, and absolutely make clear, that the UK Government will continue to discuss product regulation and metrology matters with the devolved Governments. I am confident that, through this positive engagement, we will be able to reach a position where legislative consent can be gained. We will keep noble Lords updated on progress, obviously, but they will know that these matters sometimes take time. Equally, this is a Lords starter, so we have time over the next few months to ensure that we work in conjunction with the devolved Governments; we want to do that.

On the Sewel convention and secondary legislation, I was a Whip on the Scotland Bill and I remember the discussions involving Lord Sewel. I take the point made by the noble and learned Lord, but it would certainly not be our intention that, because of the convention, we could simply put through secondary legislation without seeking the input of the devolved Governments, certainly Scotland. We would not take forward regulations without engagement with the devolved Governments.

19:45

The issue of the common framework is a very interesting discussion. I have just been reading a paper by the Institute for Government on that very subject—how it interrelates with the 2020 Act. I accept there are some issues about how it works practically. There is no doubt that it has been helpful in ensuring that a common approach is taken with the powers returned from the EU, which then intersect with policy areas of devolved government. There is a series of common frameworks, and it is interesting to look at the extensive list of frameworks that have been agreed by UK government policy departments with their devolved government counterparts, and with parliamentary scrutiny following.

I say to the noble and learned Lord, Lord Thomas, that in general we see the frameworks programme as being designed to enable new frameworks to be established, or to make the decision that a framework is no longer required in a particular policy area. We see these decisions being taken by the relevant Minister in each individual department. However, I assure him that this Government remain committed to fully implementing the common frameworks programme.

On the interface between common frameworks and this legislation, I am advised that we think that products affected by regulations made under the Bill would not fall under any extant common frameworks, because the frameworks themselves are relatively tight in scope and, as noble Lords have reflected, the Bill goes rather wider than that. Whether that is an advantage or a disadvantage depends on your point of view.

We will ensure that consultation takes place with the devolved Governments regarding regulations made under the Bill, whether or not the products in question fall under a common framework. Having said that, I shall take away the points made by both noble and learned Lords and the noble Lord, Lord Fox, to make sure that we have got this absolutely right. We would be happy to have further discussions about that between Committee and Report.

Amendment 96 seeks to ensure that, in making regulations under the Bill, the Government have regard to the market access principles of Part 1 of the United Kingdom Internal Market Act 2020. In a sense, we have to, because it is legislation that is on the books. The Bill has been structured and drafted with the principle of the UKIM Act in mind, meaning that products can move freely across the UK. We believe that the powers in the Bill allow us to consider UK-wide market access impacts as regulations are developed. Our established consultation processes with the devolved Governments will enable engagement on regulating matters under the Bill, and we think that will enable us to address any concerns there.

With his interesting amendment, the noble Lord, Lord Foster, has raised an important and quite difficult subject. The Bill is intended to protect consumers from unsafe products regardless of the product’s origin or where a business is based. The powers in the Bill can be used to introduce requirements on online marketplaces based overseas where they are marketing products to UK consumers, but the problem is enforcement. That is a challenge and, standing here today, I just do not have an easy answer. Essentially, we think that the Bill—again, this is the advantage of flexibility—allows us to explore options for taking action against businesses operating from overseas. While we cannot readily enforce in other territories, we will seek to ensure that businesses selling non-compliant and dangerous goods cannot continue to do so in the UK market. The reality is that this is work in progress, and discussions about it are taking place in government. I thank the noble Lord for his input, and we are giving great consideration to this issue.

[Lord Foster of Bath (LD)]

Does it not therefore draw attention to the vital importance of very effective enforcement taking place at our borders? That requires us to look very carefully at the funding and resources of whatever body, or bodies, will be responsible for that enforcement. Does it not also mean that we need to have much clearer arrangements for the specification of the level of risk of different products that come in, so that that enforcement can be done relatively smoothly and openly to our total satisfaction?

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Lord always poses his questions wishing me to say “yes”. I am sympathetic to the points he raised but I cannot commit, and I cannot go further than what I said this afternoon except to say that this is a very important area and clearly something that we as a Government need to strongly reflect upon.

Having said that, I hope that I have indicated to noble Lords that I understand the important issues raised. I have given an absolute assurance from the Dispatch Box that we want to make our relationships with the devolved Governments as effective as possible. It is true that four can play but we hope that we will be able to deliver this and that we will get consent. Again, I would like to reflect some more on some of the tricky legal issues that both the noble and learned Lords raised.

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to the Minister for his response to my amendments and for his assurances on the way forward that he sees on these matters.

I would like to make two points. First, I appreciate entirely that consulting on every single regulation would be a very time-consuming process, and I have seen the extent of to-and-fro engagement that goes on behind the scenes with good will between civil servants on both sides of the border. It is obviously a matter that deserves reflection and I absolutely understand why the Minister would like to take more time to look closely at it.

Secondly, as far as common frameworks are concerned, it always struck me in dealing with this subject that it is a great misfortune that the language chosen to identify them was not as readily identifiable as “internal market”. When you talk about the internal market everybody knows at once what it means but when you talk about common frameworks nobody knows what it means.

The Minister has obviously done some homework and has reassured me he understands the point, but the particular point about common frameworks is that it is a living process. It is perfectly true that there is a list of the frameworks—some 32 of them—but the prospect of having new ones is there all the time. One of the examples is that, in Wales, they are considering diverging from elsewhere on single-use plastics. I may be wrong but our products are developing all the time and each part of the UK might have an idea that it suits them to have a particular regime that they would like to discuss and introduce.

I ask the Minister to bear in mind that it is a living process and we have to make provision for the future. That is what my amendment seeks to do. I chose the words that were indeed the Government’s words in the internal market Act, so it is a system that they were prepared to accept. I am quite prepared to discuss this with the Minister further if he would like to and welcome his promise of future engagement before Report.

[Lord Hunt of Kings Heath (Lab)]

My Lords, of course, I very much welcome that. It is worth just referring to Section 10 of the 2020 Act, which defines a “common framework agreement” as

“a consensus between a Minister of the Crown and one or more devolved administrations”.

I take the noble and learned Lord’s point that “common framework agreement” does not readily come off the tongue but the wording very much sets the tone of the relationship that we want to see developed.

[Lord Hope of Craighead (CB)]

The Minister is right. Consensus lies at the heart of the common framework system. There will not be agreement across the various Administrations without consensus but, where consensus exists, it is a signal that they should be protected against any misfortune on legislation that is across the entire United Kingdom.

Having said all that and with gratitude to the Minister for what he said, I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Amendments 48 to 51 not moved.

Committee adjourned at 7.55 pm.