Grand Committee

Wednesday 11th December 2024 Grand Committee

Wednesday 11 December 2024

Arrangement of Business

Wednesday 11th December 2024 Grand Committee

Announcement

16:15

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells have rung.

Product Regulation and Metrology Bill [HL]

Committee stage
Wednesday 11th December 2024 Grand Committee

Committee (4th Day)

Scottish, Welsh and Northern Ireland legislative consent sought.

16:15

Amendment 52

Moved by

[Lord Holmes of Richmond]

52: After Clause 2, insert the following new Clause—
“Review of product regulations and supply chains(1) On the day on which this Act is passed, the Secretary of State must initiate a review of all product regulations and standards as they pertain to supply chains.(2) The review must assess how product regulations align with the principles of traceability, transparency and trust.(3) The review must recommend a new supply chain standard to take into account factors including the supply chain of a product’s—(a) environmental impact;(b) transparency and traceability, in real time, of products, financial, trade and legal documents.”

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to take part in today’s Committee proceedings on the Bill. In doing so, I declare my interests as set out in the register, not least my technology interests; in particular, I have advised and socially recruited for an AI business.

In moving Amendment 52, I shall speak also to Amendments 53 and 79 in my name. These may seem disparate and interestingly grouped together, but they have three things largely in common. There are three of them, I wrote them all and, most importantly, they are all underpinned by the potential of having a golden thread of inclusion and innovation running right though them.

On Amendment 52, I am looking for the Government to consider a metrology standard around supply chains, which are notoriously opaque. If you try to go beyond even one step back in any supply chain, things start to get a bit fuzzy. As a result of the technologies now available to us, however, there is the potential to unite in real time physical goods, legal documentation, financial documentation and all customs documents. More than that, there is the potential to link all the environmental factors, not just of that supply chain but of the goods and services involved in it, right from the point when they were brought into being. This is another example of the extraordinary power of the new technologies and what the data that underpins them can bring in driving economic as well as social benefits, while under- pinning environmental benefits as a consequence. What is the Government’s position on how we could look at developing such a standard for the supply chain, which would be beneficial not just in each specific supply chain—for all those businesses and entities involved—but right across our society and economy?

Amendment 53 looks at large language models—the foundational models that have had so much publicity and focus, not least in the last two years. As with Amendment 52, I suggest the development of a standard around LLMs and consider the achievement of that standard to enable access to the UK market and economy. Again, that would be beneficial to consumer and citizen, and social, economic and, yes, environmental benefits could all flow from it. It is important to consider not only the economic and environmental costs of developing those foundational models but their usage, every time somebody asks one of these models—we all know their names—a query about those costs. All that would be worth considering in the development of a standard. On the specifics of some of the data used in the development and training of those models, we should look at the IP and copyright issues and consider the legislation and whether the LLMs would fall into the category of an article for the purposes of the copyright Act.

I should be interested in the Minister’s view on the specifics within that amendment and the benefit that could be gained from the development and work—even if a standard was not the final output—to be done around these models, and the levels of understanding and public awareness that could flow from such a piece of work.

Amendment 79 suggests the development of a standard: inclusive by design, or IBD. Be one young, old, a disabled person, or somebody from any socio- economic group, geography or city, putting IBD in a product benefits everybody by the very nature of that inclusion. There are two parts to this. First, all new products should be developed and deployed as inclusive by design. That should be self-evident and relatively straightforward to bring about. Secondly, and perhaps as important, largely because it is less discussed, there is what happens when a product has previously been inclusive and accessible but then, as a result of a change, an update or a new product rollout, becomes inaccessible and exclusionary.

It is probably best to draw this out through example. Consider the card readers that we all use to pay for goods. For many years, they were inclusive to me as a blind person and to all members of society, not least through the simplest elements of raised keys and a dot on the “5” key. I would know exactly where that was and I, inclusively and independently, could put my PIN into the card machine. Then we saw the rollout of completely flat-screen card payment machines. They are not inclusive or accessible, and of no use to me and millions of people up and down the country who, prior to that product rollout, could have inclusively, independently and—crucially in this context—secretly made their payments. What option is there now, if presented with a flat screen machine? Should one whisper, sotto voce, “4982”? That is not my PIN number. Even if it were, the paucity of funds in the account renders it worthless for noble Lords to remember. Or should I give my card to a friend or ask the person in the store to make the payment under those terms?

None of that is inclusive, independent, secret or in any sense dignified for a citizen in 21st century Britain. Amendment 79 is all about looking into the development of a standard, inclusive by design. Imagine what we could do right across our society and economy. Think about the debate, discourse and discussion, and the positive input that the development of this standard could have across this country, and then connecting right around the world. Such a positive piece of work could drive benefits, business, economic opportunities and social inclusion. It would be good for citizens, business, innovators, investment and our country.

I look forward to the Minister’s response. I hope it will be seen as a positive piece of work that could easily be picked up and rolled out by the Government. I very much look forward to the debate. I beg to move.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I always like the opportunity to hear my noble friend Lord Holmes because his amendments mostly very much appeal to me. Today’s Amendment 79, to which he has just spoken so eloquently, certainly appeals to me, and I just wanted to add a few words.

I am responsible, for my sins, for the Parking Act 1989, which I am sure noble Lords will spend a lot of time reviewing and considering. The nature of that Act was for the first time to allow parking to take place in this country in a way that did not exclusively require the use of cash. We were slightly ahead of the game at the time, because I think we had only Barclaycards and not telephone exchanges that you could ring into to park your car. All these things have come about because of that simple Act.

I share the frustrations of my noble friend Lord Holmes when we look at how so many things nowadays are developments of such initiatives but without taking into account the great importance of trying to be as broad as possible in their appeal and use. A good example of that was given by my noble friend. There are many machines—I know he has expressed his frustration before about cash machines—and other products, in the general sense, that cannot be accessed by people with disabilities, or where there is insufficient explanation of how they can be implemented. I very much support his ideas about inclusive by design and see no reason why, in the 21st century, we cannot be more enlightened about this. It seems unnecessary for it to have to be raised in this way regularly in legislation that we pass in Parliament, but here we have a marvellous opportunity for the Government—the Minister is looking very excited about this prospect—to introduce, in a legitimate area of the Bill, something that will really make lives much better for those with disabilities through product development. I very much support Amendment 79.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Kirkhope of Harrogate, and to commend the noble Lord, Lord Holmes, for a very clear introduction to three amendments. The Green group is very happy to support all of them. I apologise to the Committee that was I absent for the last two days of Committee. Once I was stuck in the Chamber and the other day I was unavoidably away, so I apologise for missing some of my own amendments, but I really wanted to speak on these amendments. I will start with Amendment 79. We have just heard a very useful argument for it and I will briefly add to it.

Inclusive by design is talking about going beyond accessibility and beyond saying, “We have this thing. What do we do now to make it accessible?”. This starts from the very beginning and takes us back to the social model of disability. Our society and our products are designed to be non-inclusive. That is what we are doing now and that is wrong in terms of allowing so many people to fully participate in our society. It is also always important to make the argument that it is better for all of us, not just those who may have a disability, now or in the future, if products are made to be easy to access so that you are able to do things. There is wrestling with opening a jar or that terrible rigid plastic packaging on toothbrushes and other things that many people struggle with. If you made those things inclusive by design, they would be better for all of us.

Following the technological arguments already made, I thought back to when I helped an elderly man attempt to access his banking. It was certainly not accessible to him and, as a friend, I knew his password and everything else because I had to. The machine he had to press was about the size of a matchbox; the keys were on it and I struggled to press them. There was two-factor authentication, and I could not understand the text message or work out which numbers in the text message you were supposed to put in, and I have been using technology for many decades. This is so important and could be a real advance.

16:30

On the other amendments in this group, the noble Lord, Lord Holmes, said he expected that I would appreciate Amendment 52, and I very much do. It rather reflects, but approaches the matter in a different way from, my Amendment 28, which the Committee debated earlier. It reflects a meeting I hosted this morning with SOAS ICOP entitled “The price of a product: who really pays?”. The noble Lord, Lord Holmes, referred to fuzzy supply chains and the lack of transparency in the supply chains of so many ordinary products that all of us are forced to consume every day. Yet hidden behind that fuzziness are human rights abuses, environmental destruction and an enormous amount of misery. We occasionally find out about that when a group of journalists do a great deal of work and go to great effort to write an exposé of a particular product. However, we actually need to say that this has to be taken out of all our supply chains. This amendment to a Bill about product regulation is potentially taking us in that direction.

I note that the world is going ahead with this. In the EU, the corporate sustainability due diligence directive is coming in. There is a proposed UN treaty on business and human rights. This morning, I heard from the Corporate Justice Coalition, which is calling for a failure-to-prevent provision in our supply chains, mirroring something the Government already did in the Bribery Act 2010—a failure-to-prevent-bribery provision. Companies should have a responsibility to prevent abuses in their supply chains. Of course, they will be able to show that only if they have the kind of transparency that the noble Lord’s amendment calls for.

Finally, I shall briefly comment on Amendment 53. I commend the noble Lord in using the words “large language models”; they are not artificial intelligence. The amendment stresses that these are being rushed in with great environmental impact, as the noble Lord said. They are potentially reshaping our entire physical world as well as our virtual world. It is really important that we have regulation on how that reshaping happens.

[Lord Fox (LD)]

My Lords, I shall be brief and start with Amendment 79. We could join in the chorus of approval and my noble friend Lady Brinton could come up with dozens of examples that justify the noble Lord’s amendment but, in the interests of time, we will not. If noble Lords would like more examples, I am sure my noble friend could provide them. We very much support Amendment 79.

I commend the noble Lord for persuading the Public Bill Office to allow him to table Amendment 53. The spirit is very much met. Given the nature of all the digital Bills, with which he is completely familiar, I suspect this is an argument we will have again and again in those Bills. The spirit is correct.

I want to say a few words on Amendment 52 which are different from the words noble Lords have heard. I sit on the International Agreements Committee and we look at the CPTPP trade deal. Rules of origin are central to all this. The nature of CPTPP is that, for example, a product built in Malaysia can start to move freely within the countries that are signatories to that trade deal. Whether we have the details of the components of that product before it starts moving around our alliance depends on His Majesty’s Government asserting their right to know what is in those products. Whether the Government like it or not, in this Bill, with their signing of the CPTPP, they are going to have to start to interest themselves in a detailed way on what is in the stuff travelling around the CPTPP.

Why is that? One of the biggest exporters of components into Malaysia is China. That brings us back to the whole China question, which I will not repeat here. If, for example, we find that that country is the subject of either embargo or tariff, we will really have to know what is going on in all those products. So it makes a lot of sense, from the very start, for the department to flex its muscles and develop its skills to understand the supply chains of the things coming through people’s doors every day, courtesy of the large online retailers.

When a piece of electrical stuff comes through our door, we have absolutely no idea what is in it, where it was made and its safety for our families. We cannot know that without knowing the supply chain and the rules of origin of what is moving around our country. It is difficult, of course, but it is something in which we will have to increasingly interest ourselves.

[Lord Sharpe of Epsom (Con)]

My Lords, before I start on these amendments, I thank the noble Lord, Lord Leong, for the generous letters that he sent the Committee after previous sessions, which answered a number of questions. I generally commend the Government on their spirit of co-operation on these matters.

I am sincerely grateful to my noble friend Lord Holmes for introducing this critical amendment and for supplying his PIN. Like my noble friend Lord Kirkhope, it very much appeals to me too, because the principle of being inclusive by design reflects a visionary and much-needed step forward in ensuring that products in the UK are accessible and equitable for all members of society—as my noble friend so eloquently and powerfully set out.

The establishment of an inclusive-by-design standard underscores our collective commitment to creating a society where accessibility and inclusion are the norm and not the exception. Moreover, inclusive design benefits everyone, as the noble Baroness, Lady Bennett, pointed out. Features designed for accessibility, such as voice commands or larger interfaces, often enhance usability for all users. For businesses, I would have thought it an opportunity to innovate and differentiate themselves in a very competitive market. For consumers, it is a guarantee that their needs are being respected. So I have no hesitation at all in supporting Amendment 79.

I am also happy to support Amendments 52 and 53. I will not say much about them except to add that Amendment 52 also addresses pertinent and indeed poignant national security or—perhaps this is a better expression—security of supply concerns. A complete national understanding of supply chains makes unarguably good sense.

In conclusion, I wholeheartedly support Amendment 79 and am very sympathetic to Amendments 52 and 53, and I urge the Government to think seriously about them.

[Lord Leong (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate, and I specifically thank the noble Lord, Lord Holmes, for his amendments. During the second day in Committee, the noble Lord illustrated his knowledge of and passion for the subject of AI.

I turn first to Amendment 53 on the review of large language models. We have already discussed the intersection or interaction between this Bill and AI in a previous group, and I will briefly restate some of the key points I made in that debate which are relevant here. Evidently, the use of AI in products is still in its infancy. How exactly this technology will develop remains to be seen, but we have drafted the Bill in such a way that it keeps pace with technological change; Clause 2(2)(a) allows regulations to take account of intangible components of a physical product.

However, the Bill does not and will not regulate digital products or artificial intelligence in and of themselves. Instead—I hope this reassures the noble Lord, Lord Holmes—the Government are developing a wider policy around AI, which I am sure will take into consideration proposals for AI safety legislation as announced in the King’s Speech. I recognise that noble Lords keenly anticipate the detail of these proposals, so I assure your Lordships that my noble friend Lady Jones will update the House in due course.

The Office for Product Safety & Standards is considering the use of AI in products and the regulatory challenges for product safety associated with that. We are just at the start of that process but know that it will become more important as technologies develop. I will ensure that the House is kept up to date with progress on this work.

Amendment 52 addresses product traceability and responsibilities within supply chains, including digital supply chains. I agree with noble Lords that it is essential that those responsible for producing or importing products are identifiable. Existing regulations already require relevant supply chain parties to maintain necessary documentation for tracing product origins and, as we consider updates to product requirements, we will also review these traceability provisions to ensure that they are fit for purpose. The noble Lord, Lord Fox, mentioned CPTPP, which in fact comes into force this Sunday when the UK becomes a full member. I suppose we will just have to review the application of this whole supply chain and traceability, and monitor how it goes.

[Lord Fox (LD)]

I thank the Minister, but perhaps there is another of his letters here—for which I also thank him. The CPTPP is not like the European Union—there is not a secretariat overseeing what is going on. If you think something wrong is going on, it is up to the Government to raise it. It would be useful to know how the department is now going to police or at least find out what it needs to deal with. Otherwise, it is essentially transparent.

[Lord Leong (Lab)]

I totally agree with the noble Lord. I will ensure that officials in the department look into this and either write to him or have a meeting on this.

Over the coming year, our priority will be continuing to address the sale of unsafe goods on online marketplaces—an area that noble Lords are right to highlight and on which they have demonstrated extensive knowledge and passion in the best traditions of this House. As outlined in the Government’s response to the product safety review consultation, we will also explore digital solutions, including the use of voluntary digital labelling, to streamline business processes and support authorities in monitoring product safety.

However, it should be noted that issues of traceability are much broader than ensuring the safety or proper functioning of products. This would bring in myriad other policy issues, such as the nature of global supply chains and cross-border jurisdictional arrangements. I believe that noble Lords would agree that these issues warrant careful discussion and debate, but they are distinct from the Bill’s purpose of ensuring the safety and functionality of products.

Amendment 79 relates to the creation of a mandatory inclusive-by-design standard. I am pleased to inform the noble Lord that the British Standards Institution has already developed and published a British Standard that provides guidelines for the adoption of an inclusive approach to the design of products. The standard sets out a strategic framework and processes to enable business executives and design practitioners to understand that inclusive design should be a core organisational driver.

I refer back to the example the noble Lord, Lord Holmes, gave of credit card payments. We have come a long way, but I still remember those zapping machines that zapped your credit card and you had to sign the receipt. That obviously creates a lot of situations where fraud can happen. Then we had the PIN, and nowadays contactless. I have been reading some articles before today’s debate, and some of the financial institutions are looking at mobile wallets, whereby an encrypted account number is embedded within the wallet itself. But these are early days, so we have to keep watching this area and see how it develops.

Furthermore, an updated version of the ground-breaking, government-sponsored, fast-track standard on inclusive data use in standards was published by the BSI in August this year and is free to download. This helps standards makers to work with data with inclusion in mind so that the standards produced are representative and include communities that are traditionally excluded, helping to minimise harm and deliver more robust products. Standards are voluntary in nature and the Bill, as with our current product safety regulations, continues to allow the use of standards to remain voluntary, avoiding potential barriers to trade.

I hope that the noble Lord is satisfied with the explanations given today and that the amendment will be withdrawn.

16:45

[Lord Holmes of Richmond (Con)]

I thank all noble Lords who took part in this interesting debate, and the Minister for his response. Clearly, there is still a long way to go when it comes to an inclusive experience, inclusive products and inclusive services—and, thus, a sense of living in communities and cities, and in a country, that are inclusive by design.

I thank the Minister for his response. I would not be averse to a letter; it is always nice to receive one. Christmas cards are also possible at this festive time. I will certainly look carefully at Hansard, but I fancy that we may well return to “inclusive by design” on Report. For the time being, I beg leave to withdraw Amendment 52.

Amendment 52 withdrawn.

Amendments 53 to 56 not moved.

Amendment 57

Moved by

[Baroness Bennett of Manor Castle]

57: After Clause 2, insert the following new Clause—
“Clothing safety: regulations and requirements(1) Within three years of the day on which this Act is passed, the Secretary of State must, by regulations under section 1, make provision to reduce risks as defined in section 1(4) presented by clothing.(2) For the purposes of this section, clothing means items of fabric, leather, plastic and similar materials usually worn on the human body.(3) Within three years of the day on which this Act is passed, the Secretary of State must also make provision about clothing product requirements by regulations under section 2. (4) Regulations in accordance with subsection (3) must set out product requirements for the production, use, marking, marketing, testing, approval and provision of information (including information about risk) of clothing.”Member’s explanatory statement
This amendment intends to probe whether the Secretary of State will use powers under sections 1 and 2 to regulate clothing products, given the human and environmental health risks they represent from artificial fibres and chemical constituents.

[Baroness Bennett of Manor Castle (GP)]

My Lords, in moving Amendment 57, I will also speak to Amendments 58 and 59 in my name.

I feel I must begin by offering credit to the noble Earl, Lord Lytton. I was looking at the Bill and thinking, “How do we address particularly pressing issues of safety and environmental concern around products, addressing particular types of products?” The noble Earl put down an amendment on building products, and my drafting owes a great deal to his amendments, so I feel I should acknowledge that. I note that my amendments mirror each other in many ways, although noble Lords will notice that there is a difference: the clothing safety amendment suggests a three-year period before action is taken, while the single-use plastics amendment suggests two years and the period products amendment suggests one year. That is a reflection of capability, scientific understanding and the importance of having the ability to take action as quickly as possible. Viable timeframes have been carefully selected in each one.

These three amendments fit together very well because all of them address the way in which we are exceeding the planetary boundary for what are known as “novel entities”, as identified by the Stockholm Resilience Centre. These are substances made by humans and previously unknown in the natural world. Generally speaking, the natural world has no capacity to deal with, process or get rid of them. In talking about the natural world, I am also talking about the bodies of human animals—all of us. These products, chemicals, plastics and other substances are accumulating in our environment day by day, week by week, month by month and year by year. They are not going away. It is the people in the most disadvantaged communities and situations who are most exposed to these products and their increasingly understood health effects.

Amendment 57 concerns clothing safety. I suspect that there was probably puzzlement in some quarters when people saw this: “Unsafe clothing?” I have to pay credit to a new independent feature documentary by the fashion designer Jeff Garner, called “Let Them Be Naked”. I went to a London Fashion Week showing of this documentary, which focuses on the use of toxic chemicals in fabrics and the harmful impacts on human and environmental health. Clothing worn next to our skin for long periods exposes us to chemicals that can cause short-term and long-term health effects, including cancer and fertility issues. Repeated testing of clothing such as socks, school uniforms and work uniforms has found harmful quantities of toxic chemicals well above legal limits and standards. It is worth noting that, whether it is school pupils or workers with a uniform, people have no choice in these matters. Of course, this issue affects not just the people wearing this clothing but the people who make it, where the material is dumped, et cetera.

I will briefly bring in some detailed information. Laboratory research commissioned by the Canadian Broadcasting Corporation showed that, out of 38 samples of clothing and accessories, one in five contained high levels of harmful chemicals such as lead, PFAS—known as “forever chemicals”—and phthalates. A North American lab study of stain-resistant school uniforms identified high levels of PFAS—of course, these uniforms are worn by often very small children, so the ratio of the amount of PFAS to body weight is very high. Another chemical of concern is bisphenol A. Research for the Center for Environmental Health found that over 100 popular brands of socks contained up to 31 times California’s legal safety limit for BPA. There is a famous case of Alaska Airlines, which introduced a new uniform. Staff who were forced to wear it reported symptoms of chemical sensitivity, sore throats, coughs, shortness of breath, itchy skin, rashes and hives, itchy eyes, loss of voice and blurred vision.

I will pick up one chemical and cite some interesting British research from just this year, published in the journal Environment International. This was a real break- through piece of research. Previously, it had been said of PFAS, these forever chemicals, “Don’t worry—they don’t cross the skin barrier, so you can be wearing them, but they won’t harm you”. But this research demonstrated that that is simply not true. It is of course already known that PFAS can enter the body through being breathed in or being ingested in food or water, and it is known that, by those routes, it causes a lower immune response to vaccination, impaired liver function and decreased birth weight in babies. In this study from the University of Birmingham, 15 of 17 PFASs tested showed substantial absorption through the skin. Remember that it had been said, “No, no—this does not happen. It’s fine”. But 15 of the 17 tested were being absorbed through the skin and at least 5% of the exposure dose was being absorbed. For PFOA, which is one of the most regulated ones—it is regulated because it is considered dangerous—13.5% was absorbed through the skin. This is on people’s clothing, effectively being injected into their bodies.

There is also the important issue of plastics. It is starting to be understood—but still little understood—that, as the marine conservation organisation Plastic Soup Foundation pointed out recently, 69% of fashion is now synthetic materials. Noble Lords have heard me talking before about how microplastics are being found in human testes, placentas, breast milk and brains. But it is not just the microplastics themselves. At the Future Fabrics Expo in London earlier this year, it was pointed out that nylon in particular is very detrimental to our lungs, especially in terms of repair and growth. It is not the fibre itself that is the primary culprit but the chemicals associated with it. I was looking around this Committee and thinking that I cannot see a lot of artificial fibres, but we are a very privileged group of people; if you looked at a different socioeconomic group, that would not be the case. That is my clothing introduction.

I turn to Amendment 58, which of course is closely related because it is about single-use plastics. We mostly hope that clothing is not a single-use item, but in our environment today there is an enormous amount of single-use plastic that is sometimes used for seconds and then will exist in our environment for hundreds of years.

Here I pay credit to City to Sea, a campaign group that I am sure many noble Lords are aware of. If noble Lords have not seen its briefing, I would be delighted to share it. Some 220 million tonnes of plastic waste were created in 2024. Globally, the average is 28 kilos per person. That is a 10% rise since 2021. Although we have been talking about plastics and having a UN plastics treaty, the amount of plastic being produced and put out into the world is still going up.

As we referred to on the previous group, so many of the products we are talking about have unnecessary single-use plastics wrapped around them. If we are to be serious about making a safe world for people to live in, we need product regulation that drastically slashes this amount of single-use plastic. In the UK alone, households throw away an estimated 90 billion pieces of plastic packaging. That is nearly 70% of our plastic waste. If we are regulating products, we need to think about the packaging as well.

Thinking again about the health impacts, a letter by the Plastic Health Council and signed by a range of doctors, including from the Alder Hey Children’s Hospital, the Royal College of Paediatrics and Child Health, Queen’s University Belfast, Doctors Against Harm, and NHS trusts, calls for action. This was in the UN context, but it also applies to the Bill. The letter recognised that endocrine-disrupting chemicals in plastics can impair sperm quality and fertility, and cause cancers, endometriosis, early puberty, neurological and learning disabilities, abnormalities in sex organs, altered growth and nervous system and immune function, and diverse respiratory, cardiovascular and metabolic diseases. I note that there has been a global decline in sperm counts of more than 60%. Leading scientists have suggested that most couples may have to use assisted reproduction by 2045.

I am aware that noble Lords may feel I am battering them over the head with a whole lot of statistics, but we are talking about people’s lives, health and future. I have talked about things that apply to us all—clothing and single-use plastics—but I turn now to the amendment in which I have suggested that we should see action from the Government within a year on period products. Here, I draw extensively on the work of the Women’s Environmental Network, which has a proposed menstrual health, dignity and sustainability Act containing elements of this and much more besides.

I will start with the biology. The vagina contains a very large number of blood vessels, which means that the skin is very absorbent. What is in period products really matters. Yet, as I learned from Helen Lynn at Wen, there are currently more regulations about what can be in a candle than what can be in a tampon. Earlier this year, lead, arsenic and cadmium were all found in a variety of tampons tested in the UK and internationally. Single-use menstrual products have been shown to contain phthalates, bisphenols and parabens, which I have already talked about in other contexts. Despite their apparently cottony appearance, tampons and pads can be up to 90% plastic, meaning they continually shed microplastics during use and afterwards.

Many of these products contain fragrances, which are of particular concern. These synthetic fragrances are compiled from a cocktail of up to 3,000 different chemicals, none of which, of course, is recorded in the packaging or—to pick up the point from the noble Lord, Lord Holmes, about transparency—available to consumers, even if they go hunting to find what they are. They contain chemicals that are carcinogens, allergens, irritants and endocrine-disrupting chemicals, which I have talked about before. Despite changes in bleaching practices to purify wood pulp, chlorine and dioxin—you really do not want to put dioxin in your body—can still be found in menstrual pads and tampons.

Finally, I come to a fast-developing and crucial issue that is a real illustration of how a lack of regulation lets us go horribly wrong. Because of environmental concerns, we have rightly seen a shift towards reusable menstrual products. Broadly, that is obviously a good thing, but there is a stigma around menstrual products and period blood. These products are often advertised as tackling menstrual odour—which is not a thing; it is an advertising construction—and contain silver or nanosilver. This applies not just to menstrual products; see also socks, T-shirts and other clothing. That causes direct toxicity to the human body and negative impacts on the vaginal microbiome—known as microbiotoxicity —which can lead to bacterial infections and even problems with pregnancies.

Of course, noble Lords have heard me talk many times before about antimicrobial resistance. The silver washes out of these reusable products and down our drains to join the cocktail of other antimicrobial-inducing products swilling around in our drains, where there are microbes that will be influenced by them and develop resistance.

17:00

I am aware that I have given lots of facts and have perhaps battered the Committee with these issues, but they are crucial to human health and to every consumer in Britain buying any of the products I have outlined. They are crucial to the people who make these products, whether they are in Leicester or Dhaka. We wear these products some of the time; they are exposed to them every minute of their working day, and they live in communities where the residue of these products is all around people.

I am aware that the Government’s intention with the Bill is to set an overall picture, but I really hope to hear from the Minister about the Government’s intention to take action in all these areas, and to do so particularly quickly in the area of period products. These are probing amendments, but I need to hear some very positive news about action; otherwise, I may well return to them on Report. I beg to move.

[Baroness Brinton (LD)]

My Lords, I thank the noble Baroness, Lady Bennett, for tabling these three amendments. I have a question about Amendment 59.

Paragraph 9 of the Schedule says that:

“Medicines and medical devices as defined in the Medicines and Medical Devices Act 2021, other than devices designed for weighing or measuring for medical purposes”


are excluded from the Bill. I say that because the guidance on what is and is not covered by that Act is somewhat contradictory. It says that sanitary towels and tampons are

“not normally considered to be medical devices”,

yet incontinence pads, which are not internalised in the body, are. In America, tampons are deemed medical devices because they are used inside the body.

I appreciate that I am putting the Minister on the spot. I do not expect an answer, but I wonder whether the very good speech by the noble Baroness, Lady Bennett, might point to a problem with the Government’s guidance under that Act that needs to be amended.

[Lord Sharpe of Epsom (Con)]

My Lords, I was not planning to say very much about this, but I thank the noble Baroness, Lady Bennett. I do not feel remotely battered; I feel significantly better informed, and I am grateful for that.

It struck me that Amendment 57 is somewhat pertinent to the discussion we have just had about supply chains. I wonder, for example, whether the habitual buyers of fast fashion would be quite so enthusiastic if they understood how it was made and the environmental despoilation it entails. Of course, a lot of fast fashion is single use.

I am also intrigued to know—I have just been thinking about this—what makes a non-iron shirt non-iron. I imagine it is some sort of chemical. As a fan of said shirts, I would rather like to know, not least because the noble Baroness’s description of the destination for microplastics made me wince slightly, to be honest.

Of course, a lot of single-use plastic ends up in the ocean. Frankly, as a keen scuba-diver who has found single-use plastics below depths of 30 metres, I think that societies across the world need to address that.

I do not have much to say apart from that, but I will be very interested in the Government’s answers. I would also be keen to pursue these issues later.

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

My Lords, that was a very interesting debate, and I am very grateful to the noble Baroness, Lady Bennett, for her amendments. She spoke tellingly about the impacts the products to which she referred are having on the world, on disadvantaged communities and on human health more generally. She gave a lot of information and I will try to respond to the general principles, but I will also take away her speech and ask my noble friend to write to her with a more considered response, as I would like our officials to have a look at some of the details of the concerns she raised.

Amendment 58 is about single-use plastics. The Government recognise the concerns the noble Baroness raised about plastic products, plastic waste and plastic pollution. We think we already have the right powers and, to an extent, with what comes in this legislation. The question she is really challenging us on, I think, is whether the Government’s action is sufficient. I will try to persuade her that we are very much on this, that we have the legislation and we are pursuing the issues she has raised.

For instance, there are powers under the Environment Act 2021 and the Environmental Protection Act 1990 that allow us to regulate certain matters relating to products, including single-use plastics and plastic packaging, that show evidence of harm to the environment and/or human health. This includes powers for bans on manufacture, product design and labelling requirements, charges and targets. UK REACH also contains powers to address harmful additives that might be added to plastics to ensure the safety of consumer products. We know about, and I pay tribute to, the carrier bag charge. It has been very successful and has had a great impact on the United Kingdom. We have also seen other product bans and restrictions, such as those relating to microbeads, and plastic straws, cotton buds and stirrers.

Additionally, the forthcoming extended producer responsibility for packaging uses the powers in the Environment Act 2021 to make producers responsible for the costs of managing packaging once it becomes waste, and encompasses packaging of all materials, not only plastic. The improved packaging design—and I think the noble Baroness made a very important point about this in the previous debate—will be incentivised through the modulation of the fee the producer must pay based on its environmental sustainability. There is, of course, a risk in focusing just on plastic that we encourage companies to use some other material that might be equally damaging. Therefore, it has to be considered in the round.

Also, the noble Baroness may have seen the Statement made by my colleague Emma Hardy, the Minister for Water and Flooding, in the other place about the final negotiations that we are involved in to develop an international treaty on plastic pollution. The Minister said:

“Plastic pollution is one of the greatest environmental challenges that the planet faces. The world produces 400 million tonnes of plastic waste each year. Scientists predict that there will be a threefold increase in the amount of plastic entering the ocean between 2016 and 2040. A global agreement on plastic pollution is urgently needed”.


She then goes on to say,

“The Government have an ambition to catalyse the transition to a circular economy”—


which we have debated in previous days in Committee—

“and the treaty is one of the key levers available to us to achieve the systems-wide changes needed to make that a reality”.

She went on to say:

“Plastic waste has for too long littered our streets, polluted Britain’s waterways and threatened our wildlife. This Government are committed to cleaning up Britain and cracking down on plastic waste. We will roll out extended producer responsibility to incentivise businesses to cut plastic packaging and the deposit return scheme to incentivise consumers to recycle”.—[Official Report, Commons, 25/11/24; col. 31WS.]


So we are taking this seriously and we think we have the legislation that we require. It is worth noting that, as part of this work, the Defra Secretary of State has convened a small ministerial group on the circular economy and asked his department to work with experts from industry, academia, civil society and the Civil Service to develop a circular economy strategy.

We will come on to the issue of clothing. In the meantime, the Government continue to fund action on clothing through Textiles 2030. This is a voluntary initiative that supports businesses and organisations within the fashion and textiles industry to transition to more sustainable and circular practices. I also assure noble Lords that Defra will keep the House updated with work in this area and we are happy to ensure that the noble Baroness can speak with relevant Ministers to discuss this matter further.

Amendments 57 and 59 seek to ensure that regulations are made to reduce the risk posed by clothing and period products. Again, the noble Baroness made a powerful speech. I must admit, a frisson of fear shook me when she mentioned London Fashion Week because it recalls the time when I was Minister for Sustainability in Defra, quite a long time ago. We were involved in starting developments in sustainable clothing, and I was invited to make a speech on sustainability on the first day of London Fashion Week. I thought it went well until I saw the review in the Daily Telegraph, which ignored my speech but referred to my suit being rather crumpled, which was a trauma I have never recovered from.

I come to the substance of what the noble Baroness said and the legislation. The General Product Safety Regulations do not make specific provisions for reducing the risk to consumers from harmful chemicals among some products, potentially including those that the noble Baroness raised, including period products. Although the legislation requires that the product placed on the market must be safe, it is not tailored to mitigating these risks. What it does is enable the introduction of new regulations to ensure that the Government can continue to reduce and mitigate the risk to health and safety posed by products, which could potentially include those listed in Amendments 57, 58 and 59.

The Bill can ensure that we are able to regulate the use of chemicals in consumer products, as we currently do for cosmetics and toys, as well as in other consumer products with similar chemical exposure risks. I reassure the noble Baroness that we will use the powers to identify product sectors and hazard types that require action, including period products where regulations may need to be strengthened or updated. This will be done on a risk-led basis. It will be evidence led, proportionate and follow appropriate stakeholder engagement. It goes back some time but, as an example, the Nightwear (Safety) Regulations 1985 set flammability and labelling requirements for children’s and adults’ nightwear. They are an example of risk-based regulations where a particular hazard was identified, and that can be done again.

To conclude, the noble Baroness, Lady Bennett, made a powerful speech. I want us to have a look at some of the details. We think we have the legislation. The debate is really about what the Government should do and we are active in this area.

I am afraid that I shall have to duck the interesting question from the noble Baroness, Lady Brinton, and write to her. We will have a look at the details of that.

[Baroness Brinton (LD)]

The Minister worked on the medical devices Act, as indeed I did. That Act is mentioned here, and I hope we might be able to table an amendment to this Bill to amend that Act because of the inconsistency. Will he look at that before he writes to me?

[Lord Hunt of Kings Heath (Lab)]

I very much remember the debate because we worked closely on it. We will look into this and get back to the noble Baroness with a detailed explanation of the issues so that everyone is clear.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I thank everyone for their kind words about my introductory speech. I thank the Minister for his detailed response. I say to the noble Baroness, Lady Brinton, that I also worked on the Medicines and Medical Devices Act. Well done for picking up that cross-reference, because my understanding was that tampons, pads and reusable products were not medical devices under that Act. There is a complication there that we need to address.

17:15

I thank the noble Lord, Lord Sharpe, for clearly listening so closely and taking to heart and to person what I said. Perhaps we can look forward to having a future discussion on that subject.

I was writing down what the Minister said in his response. I appreciate the intentions and the Government’s concerns here, but the words I kept writing down were “The Government have powers to regulate”, “We have a voluntary agreement in textiles 2030” and “The producer-pays principle is hoped to incentivise companies to improve their behaviour”. What we are talking about here is things that can happen, might happen and that the Government have the power to act on. What we do not have in legislation is a direction to the Government to act.

[Lord Hunt of Kings Heath (Lab)]

My Lords, we are still but just over five months in office. Clearly, we have to think very carefully about the actions we are going to take. What I seek to demonstrate to the noble Baroness is that we have the powers and determination. There are a lot of areas that we have to look at, but I think that the Written Statement I read out in relation to plastics shows where we want to go. We want to see real progress in the areas that she has developed.

[Baroness Bennett of Manor Castle (GP)]

I thank the noble Lord for his intervention. I think he perhaps misunderstood where I was going with that. It was not meant to be a criticism of this Government—I fully take the point of five months in power. What I was criticising or questioning was the legal framework, which allows the Government to act, whereas in these amendments each proposed new subsection (1) says that the Secretary of State “must” regulate. This is proposing a different kind of framework. It is asking the Houses of Parliament whether they are prepared to direct, within a certain timeframe, that the Government have to take action. I am questioning not what the Government are doing but whether we as a society and a Parliament want to say, “There is a real problem; the Government must take action and that is what the legal framework should be”. That is what each of these amendments does.

While I fully acknowledge that the Minister expressed some good intentions, I have to pick the noble Lord up on the reference to the straws, cotton buds and stirrers regulations. I am afraid that, when I was responding to that regulation, I was accused of being rude. I pointed out that, in 100 years’ time in a plastic- choked world, the generation then will not say, “Oh but they banned straws, stirrers and plastic cotton buds back then in the UK”. It is a very tiny scale tackling of a very large issue.

None the less, I appreciate everything that has been said. I will note that the phrase “precautionary principle” did not appear anywhere. I think that is very relevant here. We will continue the discussion. I very much appreciate the Minister’s offer of meetings to talk about these issues. I would be delighted to take that up.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I apologise for interrupting and delaying the Committee, but I did say that we would use our powers to identify products and sectors that require action and that this work would be evidence-led and proportionate.

[Baroness Bennett of Manor Castle (GP)]

Proportionate is not precautionary principle. Anyway, I am not going to pick up that. I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Amendments 58 and 59 not moved.

Clause 3: Enforcement of product regulations

Amendments 60 to 67 not moved.

Amendment 68

Moved by

[Lord Sharpe of Epsom]

68: Clause 3, page 5, line 6, leave out subsection (9)
Member’s explanatory statement
This amendment seeks to clarify the offences which could be created or expanded under subsection (9), as well as the civil sanctions which might be imposed.

[Lord Sharpe of Epsom (Con)]

My Lords, I will speak to Amendments 68 and 90, which are in my name. These amendments address the serious concerns raised by the provisions in Clause 3 and Clause 6, which give the Government sweeping powers to create or widen criminal offences and impose civil sanctions.

I have to revisit some old ground here but, given the gravity of this issue, I feel we have no choice. As was pointed out by the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, these clauses are skeletal legislation, meaning that they lack detail, leaving critical decisions about enforcement and prosecution to be made at a later stage via secondary legislation. We feel that the approach of using skeletal legislation for such crucial issues is problematic. These clauses give broad powers to create and enforce criminal offences without providing clear primary legislative guidance on who will have the authority to impose sanctions. This is particularly concerning because it leaves us very little clarity on which bodies will hold the responsibility to prosecute criminal offences.

The DPRRC and the Constitution Committee have highlighted these concerns, noting the lack of detail in the Bill and its potential to bypass parliamentary oversight. The Government’s decision to leave critical decisions about enforcement powers to be determined later by regulation, rather than in the Bill, undermines the transparency that businesses and consumers need. The Bill as written provides no information about the exact scope of the criminal offences that could be created or widened. This is not just a technical issue. It raises serious questions about the accountability of the bodies that will enforce these sanctions. The Minister may not be happy that these issues continue to be addressed but, until we receive clarity, we have a duty to bring these issues up, as I hope the Committee would agree.

The most concerning aspect of the clause is the provision allowing the creation or widening of criminal offences by regulation. The powers given to the Secretary of State or any other body of a public nature in this regard are overly broad, with little or no clear guidance or justification on what these offences will be. The Bill should, at the very minimum, provide some specification of the type of offences that may be created, rather than leaving this to broad, undefined powers that will most likely lead to overreach. The question has to be asked: why is it necessary to give the Government the power to create new criminal offences by regulation in the first place? Given the gravity of criminal sanctions, the Bill should be more transparent and specific about what offences will be created and who will be responsible for enforcing them—a point that the noble Lord, Lord Fox, made in his reference to the CPTPP, incidentally.

Criminal sanctions carry serious consequences and it is fundamental that Parliament has a say in the creation of such offences, rather than allowing the Government to define them through secondary legislation. We understand that the Government have argued for flexibility in enforcement and that the regulatory framework must be adaptable, but that flexibility should not come at the cost of clarity or proper oversight.

We have heard serious concerns from businesses and industry stakeholders about the skeleton clauses in this Bill. Specifically, there is real uncertainty about which public bodies the Government intend to designate as having the authority to impose criminal sanctions. Again, the question has to be asked: what additional public bodies are the Government planning to empower to prosecute businesses for currently barely defined criminal offences under the Bill?

As my noble friend Lord Lansley pointed out on the previous Committee day, currently enforcement responsibilities for consumer protection laws are set out clearly in Schedule 5 to the Consumer Rights Act 2015, which names very specific enforcement authorities, but the Bill removes that clarity and instead gives the Government the power to designate by secondary legislation which public bodies can impose criminal sanctions. This creates a situation where businesses may have to deal with a wide array of bodies, many of which may not have the expertise or experience needed to understand the complexities of product and metrology regulations.

This broad power to assign enforcement duties to any body that is deemed appropriate opens the door to a wide range of unknown authorities, so the question here is: why are the Government attempting to create this uncertainty? Why not retain the existing list of enforcement bodies in the Consumer Rights Act 2015 and allow changes to be made to that list through normal, well-defined procedures, rather than using secondary legislation to grant powers to an unknown set of authorities? Businesses deserve to know exactly who will be responsible for enforcing the regulations and imposing sanctions. The Bill’s current drafting creates a legal vacuum where there is no certainty about the powers of various public authorities, which could have serious consequences for businesses’ legal security.

The ambiguity surrounding criminal sanctions is deeply troubling for business, especially when these powers can be used by a range of authorities that may not be clearly identified at this stage. It raises serious concerns about due process and the fairness of enforcement actions. If a business is unsure whether it is complying with regulations and there is uncertainty about which body will be enforcing them, the risk of facing criminal sanctions obviously becomes much higher and that creates an environment of fear and uncertainty for business, which is already facing difficult economic conditions.

This situation is further complicated by the fact that secondary legislation will define the details of how these sanctions are imposed, potentially without proper scrutiny by Parliament. Criminal penalties should never be determined by regulation alone; they must be clearly laid out in primary legislation with full parliamentary oversight.

The balance of probabilities standard in civil cases can create significant challenges for businesses as well, especially in the context of the provisions outlined in the Bill regarding enforcement and sanctions. The balance of probabilities standard makes businesses more vulnerable to claims from enforcement authorities or competitors. In the absence of clear regulations and objective criteria, businesses may find it difficult to mount a defence as the mere likelihood of non-compliance could be enough to trigger sanctions. This could result in a climate of fear and uncertainty whereby businesses are hesitant to innovate or engage in new activities, due to the potential for legal action based on speculative or incomplete evidence.

The Government have claimed that this Bill will support economic growth and innovation, yet its skeletal nature and the conversations that we have had with leading industry experts suggest that they are concerned. Moreover, the Bill already includes an emergency clause—we will come on to this in our debate on the next group, I think, and we will address it later—that allows for swift regulatory action if necessary. So there is no reason why criminal sanctions cannot be made clear at the outset. There is simply no need to leave the scope of criminal offences and enforcement powers so broad and undefined.

To clarify, we absolutely recognise the importance of product safety and the need both to protect consumers and for necessary regulations. We oppose the various skeletal clauses in the Bill, as we have made clear over the course of these Committee sessions, because of the lack of clarity and the potentially authoritarian powers given to unnamed, undefined public bodies in some of these regulations. I hope that the Minister will address the many concerns the amendments in this group address and will commit to clarity for business. I beg to move.

[Baroness Brinton (LD)]

My Lords, my amendments in this group—Amendments 69, 91 and 107—cover a somewhat wider area than those in the name of the noble Lord, Lord Sharpe of Epsom. I shall return to his amendments and the speech he has just made later, to comment on them—but I start by saying that Amendment 92 in the name of the noble Lord, Lord Jackson of Peterborough, is helpful. One of my concerns at Second Reading was how Parliament can be made fully aware by more than just the laying of regulations, when a Minister or another body decides to create or widen the scope of criminal offences, that they must lay an Explanatory Memorandum in the Libraries of both Houses. I look forward to hearing the noble Lord speak later; his amendment is part of a possible solution.

At Second Reading, the Minister said:

“We have minimised the use of the powers in the Bill as much as possible and we have worked closely with the Attorney-General—who, quite rightly, is a stickler for these kinds of things—to find the best approach. So we look forward to the report of the Delegated Powers and Regulatory Reform Committee, which we will carefully consider”.—[Official Report, 8/10/24; cols. 1940-41.]


In my speech later on in that debate, I raised my concerns about a Minister who was not based in the Justice Department being able to create or extend criminal offences by regulation, with no ability to amend and much less detailed debate in both Houses of Parliament.

At Second Reading, we had not seen the second report of the Delegated Powers Committee, because that was published on 15 October—a week afterwards. Its summary about this part of the Bill is blunt. It says:

“We consider that … the Government have failed to provide a convincing justification for the inclusion of skeleton clauses in the Bill”


and suggests that

“the delegations of power in clauses 1, 2, 3 and 9 are inappropriate and should be removed”.

There is some detail about why it thinks that, in particular, there is a problem with the creation of, or the widening of the scope of, criminal offences. I mention this because I absolutely appreciate everything that the noble Lord, Lord Sharpe, has said about the skeletal nature of the Bill earlier on—indeed, my noble friends have also made those comments—but I want to focus on the impact of having new criminal offences on the criminal justice system. I shall come to that in a minute.

My first two amendments tackle the creation of criminal offences—in the first part of the Bill on product regulation and in the second part on metrology. I have also laid Amendment 107, which seeks to ensure that new criminal offences are not created through the clauses on information-sharing regulations. Clause 7(3)(d) talks about

“sanctions for non-compliance … including … creating, or widening the scope of, criminal offences”.

That is exactly one of the points that the Delegated Powers Committee is making: the Bill is so skeletal in nature, it appears that information sharing is a route by which criminal offences could be made. I would be grateful if the Minister could respond to that.

17:30

I come back to a wider concern of mine. We know that the criminal justice system is under real stress at the moment, so much so that the Secretary of State for Justice is considering that fewer convicted offenders will be imprisoned and that those who are will be imprisoned for a shorter period. But prisons are only part of the criminal justice system; an offence for which a convicted offender can be sentenced for a term of up to two years also relies on substantial time from the CPS, police, court staff, solicitors and barristers, and judges and recorders. This is at exactly the moment when we have people waiting for years for serious cases of rape even to be considered.

In my experience of working with other noble Lords on either home affairs or justice amendments, Justice Ministers from all parties have repeatedly said, “Please, no more criminal offences and no more offences with lots of longer time”. I see the Deputy Chairman smiling wanly, because he and I have both been in that position.

I want to ask the Minister again about the formal discussions with the Attorney-General, which were referred to at Second Reading. Have they taken place not just with the Attorney-General about the principle but more widely with the Home Office, the Ministry of Justice, the court service, the Probation Service and the Prison Service? Is there an impact assessment for those departments, because it is not covered in the impact assessment for the Bill? Given the current crisis in our criminal justice system, we need to think carefully before moving ahead with this.

The explanation from the noble Lord, Lord Sharpe, of his Amendments 68 and 90 was interesting. I agree with many of the principles that he outlined, but he seeks to remove only subsection (9) from Clauses 3 and 6, not subsections (9), (10) and (11), as I do in my amendments—both on the product regulation and metrology parts of the Bill. I accept that both his and my amendments are probing, but I am somewhat bemused by that, because I cannot see how removing just subsection (9) would create the effect that he desires. It leaves in the right to appeal to a court or tribunal in subsection (10) and the scope of triability of an offence and the levels of fines or imprisonment, with a maximum term being up to two years, in subsection (11).

If only subsection (9) were removed from Clauses 3 and 6, it would still be possible to appeal and to have the terms of triability for an offence and the levels of the fines and imprisonment in place, but with no power for the Minister to create or widen the scope of criminal offences. I may have misunderstood the objective of the noble Lord’s amendments, but I am concerned that they create even more power for a Minister, which I am trying to rationalise, certainly to hold them to account. I hope that, when the noble Lord, Lord Sharpe, responds to the debate after the Minister has spoken, he could perhaps explain this a little more. I also look forward to hearing the Minister’s response to my amendments. I am very grateful for the meetings with the Ministers, but I have seen nothing in writing about this issue with criminal offences.

[Lord Jackson of Peterborough (Con)]

My Lords, it is a pleasure to have the opportunity to contribute to your Lordships’ Committee. I apologise for not having been here throughout all the deliberations on the Bill. I was called away by the excitement of the Football Governance Bill, but I am back to speak to my Amendment 92.

This is pretty straightforward. That the Bill will be unamended is a big assumption, because I sincerely hope that the Government will see fit to bring forward their own amendments or accept opposition amendments on Report—I thank the noble Baroness, Lady Brinton, for her kind words. However, my amendment seeks to fill the gap in appropriate scrutiny and oversight of a very wide-ranging and pervasive Bill, particularly in this respect of potentially creating criminal offences arising from non-compliance.

It is vital that, if new offences are created or if other powers are exercised by Ministers in this clause, it should be subject to some form of rudimentary scrutiny by Parliament. That is why I have tabled this amendment, which says that at least 30 days before making such provisions the Secretary of State must put that rationale into the Library of both Houses in the form of an Explanatory Memorandum.

Let us just remember what this clause on enforcement of product regulations does. It allows, by regulations, the Government to appoint inspectors to

“enter, inspect and search … seize and retain products or evidence of non-compliance … require a person to retain or provide a document or information … dispose of a product or require a person to dispose of a product”.

Those are pretty draconian powers, and they have significant ramifications for civil liberties, the unwarranted interference into the lawful operation of markets, and the potential undermining of due process and norms in the criminal justice system. Most importantly, there is a lack of accountability.

It goes without saying, of course, that I strongly support the amendments from my noble friend Lord Sharpe of Epsom. In fact, I agree with all the amendments in this group, including those from the noble Baroness, Lady Brinton. I do so because—it bears repetition—this is an egregious example of skeleton legislation, as the Delegated Powers and Regulatory Reform Committee found. I also had an opportunity to look at paragraph 12 of the Guidance for Departments on the Role and Requirements of the Committee—the Delegated Powers and Regulatory Reform Committee. I give Ministers half points rather than nil points, because they have actually done half of what the memorandum asks them to do under the heading “Criminal offences”. It says:

“Where a bill creates a criminal offence with provision for the penalty to be set by delegated legislation, the Committee would expect, save in exceptional circumstances, the maximum penalty on conviction to be included on the face of the bill”.


We have seen that, so that is great. But it also says in that same paragraph—and the Government have not met this requirement—that

“where the ingredients of a criminal offence are to be set by delegated legislation, the Committee would expect a compelling justification”.

I am afraid, as with virtually all of the Bill but particularly and specifically on this issue of the creation of criminal offences, that skeleton legislation gives rise to significant risks of the creation of offences, with punishment meted out to businesspeople and others associated with commerce without proper scrutiny and oversight.

For those reasons I strongly support all the amendments in this group, and I look forward to the Minister addressing the particular issue of what are the compelling reasons that necessitate that wording in the Bill and why the Government have chosen to go in that direction. I hope he will think again on Report about perhaps amending the wording in the Bill, as we have argued for today.

[Lord Leong (Lab)]

My Lords, I thank noble Lords for their amendments in this group related to criminal offences. This is an important area, and I am grateful for the knowledgeable and informed contributions in this debate, demonstrating the significant expertise in this House. My response sets out the general principles relating to criminal offences, but I will try to answer many of the various questions that noble Lords asked.

As I mentioned previously, I am very aware of the concerns that noble Lords have raised on delegated powers and the importance of consultation and scrutiny more generally. In particular, I am grateful for the thoughtful and comprehensive reports of the Delegated Powers and Constitution Committees. I have mentioned this before: noble Lords will be aware that we have provided responses to both committees, and my colleague, Minister Madders, and I gave evidence to the DPRRC. I was very grateful for the opportunity to explain the Government’s approach to these issues.

I begin by stating a central point. The severity of the harm caused by breaches of regulations across different product sectors varies. To proportionately reflect harm, offences and penalties must be tailored to individual sectors and duties.

I hope noble Lords would agree that, with regard to criminal offences, the rule of law is best served by precision. Only by having criminal enforcement provisions alongside product requirements can proportionality be ensured. Take, for example, a penalty for failure to properly mark a product: the harm will be very different for a highly sensitive product within a nuclear energy installation versus a lower-risk product.

As well as creating issues of proportionality, codifying criminal offences and penalties in the Bill would likely lead to enforcement gaps later. Offences would not correspond directly to new duties created for existing supply chain actors or responsibilities placed on new actors who enter the supply chain over time.

Lord Bingham’s principles require that the law be accessible and, so far as is possible, intelligible, clear and predictable. Setting out the details of offences and penalties in the Bill would undermine those principles. It would necessitate drafting speculative penalties to fit duties yet to be created. That would leave ambiguity over to whom offences may apply in future and create statutory maximum penalties that would be disproportionate for some actors.

Lord Bingham’s principles go further to support the approach of tailoring clear, proportionate offences and penalties that correspond to supply chain actors’ duties as they arise over time. If we instead place the detail in primary legislation, we risk undermining those crucial principles by locking in terms that become ambiguous over time as business models and products evolve, and with penalties that can cater to only the most serious version of the offence. Setting the maximum penalty in primary legislation means that the penalty can be calibrated to only the most serious version of the offence, leaving a broad discretion to judges to determine the appropriate sentence for less serious cases. Legal certainty and predictability of applicable penalties are better served by specific, tailored provision being set out in secondary legislation.

Noble Lords have highlighted that the DPRRC, in its report on the Bill, recommended that elements of criminal offences are set out within primary legislation. The Government value the work of the DPRRC and the incredibly important role it plays. We have considered its recommendations carefully within the department. However, the approach taken to setting out criminal offences within regulations is not novel. Other Acts that underpin broad regulatory regimes allow for the creation of criminal offences in regulations, including the Building Safety Act 2022, the Retained EU Law (Revocation and Reform) Act 2023 and the European Union (Withdrawal) Act 2018. I also highlight some examples of existing product regulations that set out criminal offences and penalties, such as the Nagoya Protocol (Compliance) Regulations 2015 or the Simple Pressure Vessels (Safety) Regulations 2016.

Noble Lords may also be interested to note that, to ensure proportionality, the maximum criminal penalties that may be implemented by regulations are set out in the Bill and follow existing precedent, as seen in sector-specific regulations such as the Electrical Equipment (Safety) Regulations 2016. This is a key point. Our approach provides this strong safeguard that enables discretion to set lower and more proportionate penalties in secondary legislation, which will also have parliamentary oversight. We submit that secondary legislation ensures parliamentary oversight but also the flexibility required to ensure that we can implement proportionate criminal offences that comply with the vital principles underpinning the rule of law.

17:45

I will now address our commitment to following the affirmative procedure. In 1973, the Brooke committee set out three circumstances where the affirmative procedure would normally be appropriate. The third circumstance is where a delegated power involves considerations of special importance, providing the example of a power that may be used to create a new criminal offence of a serious nature. We have followed this recommendation.

The approach taken also reflects the treatment of similar powers in other recent significant Acts. Paragraph 8F of Schedule 7 to the European Union (Withdrawal) Act 2018 requires mandatory use of the affirmative resolution procedure in the case of an instrument made under its powers that

“creates, or widens the scope of, a criminal offence”.

I refer to Amendment 92 in the name of the noble Lord, Lord Jackson. We have agreed that the affirmative procedure will apply when regulations broaden the scope of a criminal offence or set a new penalty to reflect the serious potential implications for individuals. In committing to that, we have guaranteed an opportunity for debate, consideration and, of course, rejection of regulations should the House see that as appropriate.

When draft regulations containing new offences or penalties are laid, they will be accompanied by an Explanatory Memorandum that will justify in detail any provisions relating to criminal offences. Draft regulations will be introduced only after thorough engagement with the Ministry of Justice. Engagement will include the completion of a detailed justice impact test that justifies the need for such new offences. Statutory instruments will not be laid until those justice impact tests have been interrogated and agreed with the Ministry of Justice. We will also engage the justice departments of the devolved Governments, as required.

The noble Baroness, Lady Brinton, highlighted the difficulties facing our courts and the additional burden that the creation of new criminal offences may cause. We must be able to replicate the existing structure of criminal offences and introduce new offences, where necessary, to meet the requirements of changing product sector responsibilities. However, we intend to introduce civil monetary penalties for non-compliance with certain regulatory requirements that carry less severe consequences if contravened. This would, ultimately, alleviate the pressure on the courts and the prison system.

I refer to the question of the noble Lord, Lord Sharpe, about relevant authorities. I wrote to the noble Lord, Lord Lansley, yesterday, setting out more information on relevant authorities. If the noble Lord, Lord Sharpe, does not have a copy, I can provide one to him and all other noble Lords in this debate.

I understand the good intentions and concerns—of all noble Lords—behind these amendments. I have highlighted, I hope, that we are following precedent. With that in mind, I ask noble Lords not to press their amendments in this group.

[Baroness Brinton (LD)]

My Lords, the Minister has been very helpful in explaining about the affirmative process, and he has talked about the Explanatory Memorandum, but he has not responded to my questions about the consultation with the Home Office, the Ministry of Justice and the relevant agencies. If that happens, will it form part of the Explanatory Memorandum? My concern is that this is all still led very much by the Department for Business and Trade and does not take account of the concerns and pressures faced by the Home Office, the justice system and their respective arm’s-length bodies.

[Lord Leong (Lab)]

I thank the noble Baroness for the question. I will need to come back to her on it because I want to be absolutely clear that I am giving her the correct information, rather than me saying something now on the fly.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who contributed to this brief discussion. The noble Lord, Lord Leong, praised our expertise. Can I just say that any expertise he thought he might have spotted in my remarks belongs not to me but to my noble friend Lord Sandhurst, who was very helpful. He cannot be here, I am afraid, and I am not a lawyer.

Unfortunately, in spite of the detailed explanation of the Government’s intentions supplied by the noble Lord, Lord Leong—I am very appreciative of it—I am only partially reassured. I still have some concerns, so I will go back to Hansard and study his remarks carefully, particularly those related to Bingham.

In answer to the noble Lord, Lord Leong, on the list of bodies, I have not seen the letter, so I apologise again if I have repeated something that he has already addressed, but it is fair enough that he agrees that the rule of law deserves provision. I totally agree—that is fair enough—but it does not really seem to explain why there should not be a list of specific enforcement authorities, as per Schedule 5 to the Consumer Rights Act 2015. That seems to give too much latitude, but perhaps the letter explains that, in which case I will cheerfully withdraw these remarks.

In relation to the question asked of me by the noble Baroness, Lady Brinton, we considered following her example, obviously, but we also felt that leaving out subsection (9) would in effect render subsections (10) and (11) null and void. But I totally accept that the noble Baroness has a point about how that could be interpreted, so I will go back, have a look at it and consider what we do next. For now, I beg leave to withdraw the amendment.

Amendment 68 withdrawn.

Amendments 69 and 70 not moved.

Clause 3 agreed.

Amendment 71 not moved.

Clause 4: Emergencies

Amendment 72

Moved by

[Lord Sharpe of Epsom]

72: Clause 4, page 5, line 30, at end insert—
“(3) The Secretary of State must lay before both Houses of Parliament a comprehensive framework outlining the conditions and procedures for the use of emergency powers under this section.(4) Product regulations providing for emergency disapplication or modification may not be made until this framework has been laid before Parliament and approved by a resolution of both Houses.”Member’s explanatory statement
This amendment requires the Secretary of State to present a framework to Parliament defining the use of emergency powers.

[Lord Sharpe of Epsom (Con)]

My Lords, I will speak to Amendments 72 and 73, and I thank my noble friend Lord Trenchard for signing them. Clause 4 is a short clause dealing with emergencies. It allows for product regulations

“to be disapplied, or to apply with modifications, in cases of emergency”.

It also provides:

“The disapplication … may be made subject to conditions”.


That is it. I wonder what happened to the rest of the explanation that a clause of this type surely deserves. Perhaps the parliamentary drafter was using only headlines and forgot to fill in the blanks.

These amendments are designed to introduce some checks and balances. As the clause is currently written, there is no definition of what constitutes an emergency. There is no definition in Clause 10, which deals with interpretation. Who defines an emergency? How long might an emergency last? How will emergency provisions be enforced? The committees that we have talked about so much have been very clear. We have discussed this many times. The Bill is skeletal in nature and introduces a number of Henry VIII powers. I am only surprised that this clause was not added to the list of clauses that they think should be removed from the Bill in its current form.

My Amendment 72 is merely an attempt to seek answers to some of those questions and to apply a minimal level of parliamentary scrutiny. I simply do not think it is right that an undefined individual or body could introduce undefined emergency powers of an unspecified duration without a basic level of scrutiny —frankly, that way despotism lies.

My Amendment 73 expands on this and would introduce an element of ongoing scrutiny. Again, I can see no reason why the Government would disagree with this because, in their response to the Delegated Powers Committee’s report, they said that

“the Department is committed to … engage with stakeholders … including in cases of emergency”.

I have included that exact form of words in my amendment, as well as requirements to justify the continuing need for these powers, to assess their impact and to introduce some time limits. I cannot see any reason at all why the Government would not accept this amendment, given that, in effect, they have already committed to doing pretty much what it says. I beg to move.

[Lord Leong (Lab)]

My Lords, once again I thank the noble Lord, Lord Sharpe, for his amendment. I begin by reaffirming that this Government take their responsibility to parliamentary scrutiny very seriously. We have listened carefully to the views expressed and we will reflect on them as we move forward. It is always our aim to strike the right balance between thorough oversight and addressing the technical and practical demands of product regulation.

Amendments 72 and 73 seek to ensure that the use of emergency powers is transparent and proportionate. I fully appreciate the intentions behind these amendments, and I reassure the noble Lord, Lord Sharpe, that we believe that the Bill already provides robust mechanisms for oversight.

Clause 4 is intended to be used in rare emergency situations. It is introduced in this Bill following the recent example of the Covid-19 pandemic, when there was a shortage of personal protective equipment. To be clear, this clause is not about quickly implementing regulations on new products; it is about emergency situations where there could be a need to temporarily disapply or modify existing regulations to allow current products to be brought to market much more quickly. Any regulations made under Clause 4 are subject to the draft affirmative legislative procedure, ensuring that both Houses can scrutinise and approve them. We believe this process provides a balanced and proportionate mechanism for oversight and accountability, ensuring thorough scrutiny.

The Government are also committed to developing a clear framework of how the policy will work in practice, and this will be done in consultation with stakeholders. However, we do not believe it will be necessary to formally lay this framework before Parliament, as the oversight arrangements provided by the draft affirmative procedure for any secondary legislation under Clause 4 are believed to be sufficient.

The Office for Product Safety & Standards will take the lead in developing the framework and will publish guidance on the conditions and procedures for using these emergency powers. The guidance will then be made publicly available to Members of this House and relevant committees on the GOV.UK website which, if needed, can be used to supplement any future scrutiny on emergency measures. In addition, Clause 4 is intended to provide a proportionate response to emergencies, and conditions can be applied which will be context specific. Therefore, any disapplication or modification of regulations will be targeted, with safeguards in place to ensure public safety remains paramount.

As the House can appreciate, emergencies can be unpredictable and cannot always be anticipated in advance. Imposing an initial fixed three-month sunset period and review process for extensions risks reducing the Government’s ability to respond effectively to emergencies that may evolve over time. Instead of applying a fixed three-month sunset period to all regulations, we believe that each regulation in response to an emergency should be targeted and tailored to its unique circumstances. This approach ensures that the measures remain both proportionate and effective, addressing the specific challenges of the emergency and the product or situation involved while avoiding unnecessary constraints.

[Lord Jackson of Peterborough (Con)]

The Minister is making a powerful argument, but he raised the issue of Covid. He is aware, of course, that it is quite possibly the case that you can expedite fast-track legislation in extremis. He will no doubt know that between 1989 and 2009, 15 Northern Ireland Bills that were terrorism and security-related were fast-tracked through both Houses. So, in a fundamentally very serious emergency situation, you can expedite fast-track primary legislation. I offer that as a suggestion to the Minister.

[Lord Leong (Lab)]

I thank the noble Lord for that, and I am sure the officials will have taken notice as well.

I must also highlight that, in line with the Government’s commitment to transparency and informed decision-making, proportionate impact analysis will accompany future secondary legislation. This will be prepared in accordance with the Better Regulation Framework, ensuring that Parliament has access to evidence-based assessments that support effective scrutiny.

I hope that I have been able to provide reassurance on all these matters and assure the noble Lord, Lord Sharpe, that the Government have carefully considered the importance of parliamentary scrutiny and sought to strike a careful balance in relation to emergencies. I am happy, as always, to meet the noble Lord or, for that matter, any other noble Lords to discuss with them further our approach in this area. On that basis, I ask for the amendment to be withdrawn and for the other amendments in this group not to be moved.

18:00

[Baroness Brinton (LD)]

I am grateful to the noble Lord, Lord Jackson, for his question because it reminded me that when all the primary and secondary legislation on Covid was going through, most of the references to “emergency” were the definition in the Civil Contingencies Act. That Act is not defined in this Bill, and “emergency” is used loosely on its own. I wonder whether there is a bear trap there. If the department means to use “emergency” in the sense of the Civil Contingencies Act, it may be better and more helpful to name it. If not, will the Minister explain why the use of the definitions in the Civil Contingencies Act are inappropriate?

[Lord Leong (Lab)]

My Lords, I really do not know the answer to that. Obviously I will find out and write to the noble Baroness.

[Baroness Brinton (LD)]

I thank the Minister—I am grateful.

[Lord Leong (Lab)]

I am told that we were advised by counsel that this word is more flexible to use. I do not know whether that is sufficient but perhaps we can explore that further.

[Lord Sharpe of Epsom (Con)]

I again thank the noble Lord, Lord Leong, for his detailed explanation. However, the fact is that that explanation and the recent comment about flexibility rather illustrate again, I am afraid, the point about the Bill. Let us go back to the DPRRC report, Democracy Denied. It states:

“Skeleton legislation signifies an exceptional shift in power from Parliament to the executive and entails the Government, in effect, asking Parliament to pass primary legislation which is so insubstantial that it leaves the real operation of the legislation to be decided by ministers”.


I am afraid that in spite of the noble Lord’s reassurances, that is still very much where we are.

I accept that emergencies are unpredictable. Of course they are, by their very nature: they are rare and emerging situations. But I do not accept the three months argument made by the noble Lord, which strikes me as inconsistent. Surely three months is enough to define and decide on the relative importance, scale or urgency of an emergency. I can see no reason at all why any emergency cannot be defined over the course of 12 weeks, and that would have gone for Covid as much as anything else.

There is some inconsistent logic in the Minister’s replies. I am partially reassured, and obviously some considerable thinking has gone into his replies, which I appreciate, but we will reserve the right to revisit this situation. I beg leave to withdraw the amendment.

Amendment 72 withdrawn.

Amendment 73 not moved.

Clause 4 agreed.

Amendments 74 to 79 not moved.

Clause 5: Metrology regulations

Amendment 80 not moved.

Amendment 81

Moved by

[Lord Sharpe of Epsom]

81: Clause 5, page 6, line 2, at end insert—
“(2A) The Secretary of State may not use any powers under this Act to remove or disapply the use of the pint as a unit of measurement for alcoholic beverages sold or marketed in the United Kingdom.”Member’s explanatory statement
This amendment ensures that the pint remains an accepted unit of measurement for alcoholic beverages.

[Lord Sharpe of Epsom (Con)]

My Lords, Clause (5)(1) states the following:

“The Secretary of State may by regulations make provision about the units of measurement that are used to express quantities (whether of goods or other things), including provision about … (a) how units of measurement must or may be calculated or determined … (b) how units of measurement must or may be referred to”.


Subsection (2) goes on to state:

“The Secretary of State may also by regulations make provision about … (a) the quantities in which goods must or may be marketed in the United Kingdom, and (b) the units of measurement that must or may be used to express such quantities”.


Subsection (4) states:

“‘unit of measurement’ means any unit of measurement, including measurement of length, area, volume, capacity, mass, weight, time, temperature or electrical current ... ‘goods’ means tangible items”,

and

“‘quantity’ means quantity expressed by number or a unit of measurement”.

Yet again we have a set of provisions that, while seemingly innocuous, give a relevant Secretary of State incredibly wide powers to do pretty much anything they like about pretty much anything they like.

Both the noble Lords opposite will shortly argue that the Government have no plans to replace the British pint as a standard measure for beer. They are both honourable and sincere, and I believe them, but this careless drafting confers the power on a Secretary of State to do exactly that. It is not difficult to imagine some point in the future when the office of the Secretary of State is held by a metric maniac or, perhaps worse, an interfering busybody who decides that they know what is better for the health of the nation than those who make up the population of the nation. Perhaps that does not entail a metric replacement for our pint, but something even worse—for example, an Aussie schooner. With apologies to the noble Baroness, Lady Bennett, this is an abomination of a vessel that is marginally too large for a sensible sherry, but far too small for a sensible beer.

My Amendment 81 seeks to make sure that this can never happen. It will make the pint safe. It will defend a beleaguered and endangered pub industry from more punishment, and it will guarantee a fundamental tenet of our history. A pint of beer is not a bloodless “tangible item”. It is a tangible institution. It is a link to our history and a part of our heritage. It was formally adopted as a measure for beer in 1824, but was probably used well before then—who knows, maybe even by Anglo-Saxon thanes, when they were on a session in their village hall, drinking what they then called beor and no doubt wondering what to do about the dastardly Vikings. I am reliably informed that they may even have had a word used to describe this community and that is—the spelling is tricky and the pronunciation is trickier—ge beorscipe.

I encourage the Government to accept this amendment on the pint’s formal 200th anniversary. It is straightforward and simple. If they do not, we will return to the subject on Report.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will be brief. The main point I wish to make initially is that the next time someone complains about your Lordships’ House not giving enough time to pass important legislation, I will reference this debate. However, given the attack that we have just had on the Australian schooner, I have to point out to the noble Lord, Lord Sharpe, that it evolved organically from the community in 1930s Australia as an unofficial measure. It was a measure of change and of the grass roots making decisions for themselves.

The noble Lord may think that his amendment will save pubs in the UK. I point out to him that, in the first quarter of this year, about 80 pubs closed in England each month. That was a 56% increase on 2023. One of the things that has been suggested might be a saviour of pubs—the noble Lord might choke on his pint at this point—is that we live in a world of change, and sales of low or no alcohol beer have exploded in the past few years. It is very hard to take this amendment seriously.

Despite that, I agree with the noble Lord that there are problems with the Henry VIII nature of the Bill and the way that it allows the Government to do virtually anything. However, picking out one particular small point is not the best way to illustrate that.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it falls to me to respond to this amendment. Unlike the noble Baroness, I think this is a very serious matter. Of course, the noble Lord, Lord Sharpe, has a track record in this area. I think the final order he laid as a Minister in the Home Office was to extend the licensing hours during the summer’s Euro 2024 tournament for football fans. I cannot believe it, but I think he said it was to

“get properly on the lash”.—[Official Report, 24/05/24; col. 1281.]

The Government are glad that his devotion to the pint continues in Opposition, despite his seeming about-turn on the appropriate use of executive powers. He may like to know that I prepared myself for this debate by sampling pints of beer in a number of hostelries and restaurants over the past few days. I am happy to confirm that I had no difficulty in ordering a pint of bitter—or, indeed, more than one pint of bitter.

The Government rejoice in the use of pints as a measurement. I am less worried about the loss of the pint than I am about the worrying news of a shortage of Guinness. Noble Lords may have seen reports in the media in the past few days that Guinness is being rationed to make sure there is enough available over the Christmas period.

I have made it quite clear that we value the pint; there will be no change. There is no question of using the Bill’s powers to do anything other than preserve the pint. The specific drafting is to allow for changes to legislation on units of measurement, but the reason is primarily to provide powers to fulfil our international obligations and keep pace with updates to the globally used international system of units.

The argument running through the whole debate is that we want flexibility in order to keep up to date with the sorts of situations that the noble Baroness, Lady Bennett, outlined earlier, or with changes happening globally. We are not using this—I do not believe any Government would use this—as a draconian effort to get rid of imperial measurements in the way the noble Lord fears. I hope he will take it from me, as the spokes- person for the Government, that the British pint is safe with us.

[Lord Sharpe of Epsom (Con)]

My Lords, I am delighted that the noble Lord, Lord Hunt of Kings Heath, rejoices in the pint, as do I. Of course I understand where he is coming from, but there is a serious underlying point, as pointed out by the noble Baroness, Lady Bennett: the Bill is drafted so loosely that it could be interpreted in any number of ways. I make no apology for my previous form of being on the side of the British drinker; I shall continue to maintain that. I have to say that the more I read this Bill, the more pints I need, but that is a separate issue—it is my problem, and I am dealing with it carefully.

I thank the noble Baroness, Lady Bennett, for her contribution. It seems that our brief meeting of minds a few groups ago is already over. I am not quite sure how the schooner evolved but I am not sure it was a community thing. For now, I beg leave to withdraw the amendment.

Amendment 81 withdrawn.

Amendment 82

Moved by

[Baroness Brinton]

82: Clause 5, page 6, line 8, at end insert—
“(3A) Regulations under this section must have regard for the impact of metrology regulations on small and medium sized enterprises.”Member’s explanatory statement
The amendment ensures that new metrology regulations under the act have regard for impacts on small and medium sized enterprises.

[Baroness Brinton (LD)]

My Lords, the noble Lord, Lord Fox, is unable to be in his place at this stage of the day because today’s Committee date was confirmed only after he had made an appointment that cannot be changed. On his behalf, I will speak to Amendment 82, which would ensure that new metrology regulations under the Bill have regard for impacts on small and medium-sized enterprises.

It is self-evident that the capacity of small and medium-sized businesses to process and understand regulation is many orders of magnitude different from that of large companies. That is why the Bill should explicitly consider this difference in capacity every single time a new regulation is to be tabled. How will a two-person organisation cope? What is the appropriate level of regulation? This Government say that they are about growth. SMEs are largely the engine of growth, and misplaced overregulation is a key brake on those size of companies. I hope the Minister can answer these questions. In the light of these concerns, this simple amendment calls on regulators to keep this at the front of their minds.

18:15

[Lord Sharpe of Epsom (Con)]

My Lords, I shall speak to Amendments 103, 104 and 104B standing in my name. I want to take a moment to emphasise the current environment in which the Bill is being debated. The timing of this amendment is critical. Consumer confidence in the UK is at a particularly low point, especially during the festive season, when retailers are hoping for a boost in their sales. As we know, this is a critical time of year for retailers. Business confidence has also hit a two-year low. That is significant, as it indicates that the very businesses that we are depending on to drive growth—the engine, in the word of the noble Baroness, Lady Brinton, driving innovation and consumer choice—are also facing significant headwinds.

More troubling is the fact that consumer confidence has dipped sharply. According to a recent survey, consumer confidence in the health of the economy fell in November. The British Retail Consortium’s sentiment monitor showed a concerning dip in consumer confidence, with the index dropping to -19, down two points from October. Consumer confidence is obviously a key driver of spending, and when confidence falls, people tighten their purses, avoid spending and delay purchases. The festive season, which should be a time of consumer optimism, is instead a time of deep uncertainty. This is a problem not just for the retail sector but for the economy as a whole, as it reflects the broader issue of economic pessimism.

At a time when confidence is fragile, we must ensure that we are not inadvertently creating barriers to consumer access, increasing costs or limiting choice. The impact of regulation on consumer choice should not be underestimated. While the intent behind product regulation is to ensure safety, fairness and transparency, we must balance this with the potential burden that such regulations may place on business and, by extension, on consumers. For example, if regulations lead to higher costs for businesses, those costs are often passed down to consumers in the form of higher prices. If businesses face a reduction in profitability, it may lead to a decrease in variety or availability of goods in the market.

Sensible product and metrology regulations are essential to protecting consumers and ensuring fairness in the market. These regulations help create a framework in which businesses can operate with transparency, consumers can have confidence in the safety and reliability of products and the economy can continue to thrive—there is no dispute about all that. However, to illustrate the importance of these regulations, I draw attention to a study from the consumer advocacy group Which? This research found that half of consumers feel that consumer protection regulations enhance their confidence in the safety of goods and services they buy. This confidence is critical in ensuring consumers feel comfortable purchasing products, but it does not just benefit consumers—it also incentivises business. When consumers trust that products are safe, businesses are encouraged to innovate and compete, creating a dynamic, thriving marketplace and, in turn, that increases the production of high-quality goods, stimulates demand and further incentivises businesses to improve products that they already produce. Business and consumer interests are not at odds; in fact, they are complementary. Overly complex regulations or regulations that unintentionally increase the cost of compliance for business could lead to a reduction in the range of products available to consumers. We must avoid creating an environment where smaller businesses cannot afford to comply with the regulations and larger companies dominate the market, reducing choice and competition.

This amendment ensures that the Government will take a careful and considered approach in monitoring the impact of the legislation on consumer choice, and the report will provide important evidence to guide future policymaking and help us to avoid any unintended negative consequences for consumers and businesses alike.

I thank the noble Baroness, Lady Lawlor, for signing my Amendment 104B. The Government have to recognise that SMEs are the backbone of our economy—I know the noble Lords opposite would agree with that. SMEs face unique challenges in comparison to larger corporations, particularly when it comes to compliance with regulations. This amendment seeks to ensure that the impact of these regulations on SMEs is properly assessed, understood and investigated and, if necessary, mitigated.

Innovation is essential to the growth of our economy, and SMEs are often at the forefront of this innovation. Complex or overbearing regulations can stifle creativity and innovation. This amendment seeks to assess whether the regulations in the Bill will help or hinder SMEs in their ability to compete in the marketplace and develop new ideas. The success of any regulatory framework depends on meaningful consultation with those it affects the most, so this amendment ensures that SMEs have a voice in the process. By engaging with representatives from the SME sector, the Government will gain valuable insights into practical challenges that SMEs face and will be able to tailor policies to better support them. I urge noble Lords to support this amendment, which will help guarantee that the regulations in the Bill are not only effective but fair, ensuring that SMEs are not unduly burdened and can continue to thrive, compete and innovate.

On page 3, paragraph 4 of the Government’s Explanatory Notes, it states:

“The Bill aims to support economic growth”.


Hence, I thought it was perfectly appropriate to introduce an amendment that requires the Secretary of State to conduct a review of the impact of this Bill on the economy, and I hope that the Ministers opposite will agree. For small and medium-sized enterprises often most affected by regulatory changes, these reviews can identify disproportionate impacts early and prompt remedial actions to mitigate harm. A structured review process provides empirical data to inform future legislative and regulatory decisions, ensuring that measures remain fit for purpose and aligned with market dynamics.

[Baroness Lawlor (Con)]

My Lords, I support the amendments in the name of my noble friend Lord Sharpe, to which the noble Viscount, Lord Trenchard, and I have added our names. They would ensure that in the Bill we have a statutory procedure for assessing the impact on the economy in general on consumers and the choices they have to make, and on the producers.

The Bill poses potential costs for producers, which are likely to have an impact on the economy of which they form part. Even though the general scope, as set out in Clause 1, seems sensible and reasonable and appears to reflect consumer protection arrangements which have proven their worth over decades, there is in this very slim Bill less clarity as to what the precise requirement may be, or where precisely liability for transgression lies. It is something of a leap in the dark. Lawyers will be needed to work out who exactly may be covered by the provisions, sanctions and punishments, given that the Bill will touch on many features of production and marketing, and many sorts of person will be involved in the process.

The question really is, if I am an entrepreneur or a small business innovator, do I risk my small pot of savings and those chipped in by my family to get the idea from the drawing board—possibly in the garage—off the ground, into the retail outlet and into use? Sir Hermann Hauser, the technologist and entrepreneur who set up Acorn in Cambridge, did that in the 1970s. He once told me that when you start a business like his—and most start in the garage—they do not have any money, and with what they have, they want reasonable certainty that the law will stay the same, that it will do what it says on the tin, that they can buy the stock they need for the component parts, they can use their judgment within reason about whether a product is safe, and they can take a risk. They have good arrangements for risk assessment, and our law also has pretty good arrangements, as well as for consumer protection. But if—and this is the danger of the Bill—there are open-ended powers, and there is the possibility for a regulation-mad Government to make constant changes, and if, as I have spoken about before, so I will not come back to it, EU law, which is based on the precautionary principle, is mirrored or otherwise imposed, we will be causing greater uncertainty and there will be a greater possibility of costs and of lost stock, because it goes out of date. Such people will also not have time to develop their product properly, bring it to market and make a profit. They may go bankrupt, thanks to a raft of new provisions and new uncertainties.

These three amendments—Amendment 103, on consumer choice and an impact assessment; Amendment 104, on an impact assessment on the whole economy; and Amendment 104B, on an impact assessment on SMEs to be laid before both Houses of Parliament within six months—will help us find out exactly what the impact of these rules are, even if we do not know what they will be when we set out on this road. Successful businesses—small, medium and big—and the consumers who buy their products and services, both in this country and overseas, are the beating heart of our economic life. If businesses are to flourish, the rules need to be clear from the start. Compliance needs to be affordable and the rules must encourage innovation, entrepreneurship and risk-taking.

Most businesses in this country are small—there are 5.51 million of them, as we have heard—with zero to 49 employees. There are only 40,000 businesses that count as medium-sized, with 50 to 250 employees. These small and medium-sized businesses provide most of the employment of people, but the vast majority of them—3.1 million—are sole traders. November’s House of Commons analysis, which is the most up-to-date analysis that I have found, gives the figures, with SMEs accounting for 99% of the business population, providing 60% of UK employment and 48% of business turnover. As the noble Baroness, Lady Brinton, pointed out, they are far less able to bear the costs of the regulatory steamroller that may face us. This is one of the big problems that we hear about all the time from small producers and entrepreneurs: the costs of compliance and of dealing with the uncertainties this brings in. Even the bigger businesses, which provide 40% of the jobs and almost half the turnover, also have to pay—I was told by an NHS trust—almost 18% of their overheads.

Whether or not this Bill directly affects the product market—it does—or the service market, we are a service economy. This is a product regulation Bill, but most services use products. Let us take the hospitality trade: it needs to buy products to ply its trade and make money. Cabbies need to buy cars. Every single service—except financial services, perhaps, which is indirectly affected—will be affected by this Bill. It will have a very big impact on the whole economy. If we price risk-taking and innovation out of the product market, on top of the costs of employment—including through higher tax and higher employees’ NICs—UK small businesses will shrink or close. Jobs will be lost. We shall go the way the French went, with their high- tax protectionist model and a centralised structure in which the small challenger is driven out of the game—and with it, the hope of keeping a competitive economy open to new entrants. That is what has happened in France in the post-war years and is now cast in stone by the EU model, with ever bigger national, transnational or multinational corporations having a monopoly and driving up prices for the consumer while driving choices down.

I fear that this is an alien model to our market economy of competitive small businesses that can have a go without fear or favour under the protection of good law. We cannot afford to lose jobs or businesses and raise prices. Our productivity in GDP per hour is already lower than that of our most similar G7 neighbours, France and Germany. I am sorry that this figure is in dollars, although I am sure that noble Lords are very dollar literate: they earn $92 and $95 respectively per hour, while we earn only $79 per hour. If the Government want higher productivity and higher growth, they need simpler and clearer rule books; I must add that that will not happen by mimicking Brussels’ notorious system, whether it is an imported version or a home-based mirror image of what goes on over there.

18:30

To conclude, your Lordships will have seen the recent debate prompted by Donald Trump’s economic advisor, Stephen Moore. He stated in a bold fashion that the UK will have to decide whether its future law lies with freedom or the more socialist direction of the EU, as the recent tax-raising Budget implied. I am no fan of any measure under any Government of any complexion that gives the Secretary of State powers to make laws arbitrarily by statutory instrument over our goods economy. I am concerned about the uncertainty that this poses for our businesses—most of which are small—in terms of jobs, employment and costs. I am even more concerned at the blank cheque that it gives the Secretary of State arbitrarily to import EU law, which is notorious for its attempt to drive out all risk under a very different legal approach to that of the UK, as it is based on the code-based precautionary principle. It drives out challenges and small businesses to the detriment of jobs, costs and consumer choice.

However, the dangers that this Bill seem to pose to our economy are nothing compared to what will happen if we do not require under law an active regular assessment of the impact on the wider economy, businesses and the SMEs that make up most of the UK’s business sector—as well as our customers, without whom businesses cease to exist. For these reasons, I hope that the Government will accept the amendments.

[Lord Leong (Lab)]

My Lords, I thank all noble Lords and noble Baronesses for their contributions in the debate on this grouping of amendments; in particular, I thank the noble Lords, Lord Fox and Lord Sharpe, for their amendments. This Government are committed to supporting businesses as we get the UK economy growing.

I begin with Amendment 82 in the name of the noble Lord, Lord Fox, which was moved by the noble Baroness, Lady Brinton. He specifies that regulations made under Clause 5 of the Bill

“must have regard for the impact of metrology regulations on small and medium sized enterprises”.

The noble Lord has also proposed the publishing of impact assessments of affirmative regulations, to be laid every six months after the Bill’s implementation.

Similarly, Amendments 103 and 104 in the name of the noble Lord, Lord Sharpe, propose publishing a report assessing the Bill’s impact on consumer choice 12 months after the Bill is passed, as well as another report every two years on the economic impacts of the Bill. The noble Lord’s Amendment 104B would further require the Secretary of State to present a report to Parliament detailing the impact of regulations made under the Bill’s powers on SMEs.

I am happy to confirm that the impact of any new regulations will be fully considered through the development of proportionate impact analysis. As I said before, the Better Regulation Framework is the system that government uses to manage the flow of regulation and understand its impacts, including on SMEs and micro-businesses. On 7 December, the Government launched their new Business Growth Service to ensure that it is easier for SMEs to find government advice and support, giving them more time and money.

In line with the Better Regulation Framework, for regulations where significant impacts—above £10 million per year—are anticipated, full impact assessments will be published. For regulations with lower anticipated impacts, a proportionate assessment impact analysis will be completed. These assessments will, as a matter of course, consider the impacts of regulations on SMEs. Furthermore, officials currently routinely engage with SMEs and stakeholders to shape policy, including in the light of emerging technological and industry developments, and to identify and address any disproportionate burdens. The OPSS regularly engages with a small business panel as part of policy development.

I hope that this confirmation provides reassurance to the noble Baroness, Lady Brinton, and the noble Lord, Lord Sharpe, on this important area, and I am grateful to them for raising it today. The Government remain committed to supporting SMEs and recognise the vital role they play in the UK economy. As such, the Bill will allow the Government to update product and metrology regulation to avoid extra cost to business and provide continued regulatory stability. It will also allow the Government to end recognition of EU requirements where this is in the interests of businesses and consumers. The Bill will enable the Government to introduce proportionate product safety requirements that protect consumers and create a fairer playing field for law-abiding businesses.

As some noble Lords will know, before I came to this place I was a serial entrepreneur all my working life. I understand how micro-businesses and SMEs work. SMEs spend most of their time creating and growing the business. They do not want additional costs or regulations impacting their business. Having said that, all that businesses want is a level playing field where they know the rules of the game and what regulations are in place. Imposing additional regulation is not the intention of this Government. We are constantly consulting SMEs to ensure that, whatever regulation is in place, it does not impact SMEs and micro-businesses.

As I said, growth is the Government’s number one priority. On 14 October, we published a Green Paper, Invest 2035, setting out a credible 10-year plan to deliver the certainty and stability that businesses need to invest in the high-growth sectors that will drive our growth mission. This industrial strategy will create a pro-business environment and support high-potential sectors and clusters across the country. By giving the UK the flexibility to adapt its own regulatory framework to keep pace with international regulatory developments and respond to global trends, the Bill supports economic growth and innovation.

This flexibility ensures that the Bill supports economic growth—as I mentioned—reduces unnecessary regulatory burdens and ultimately benefits businesses, including micro-businesses and SMEs. However, introducing a statutory reporting obligation would risk duplicating existing processes, diverting resources and delaying the implementation of timely and effective regulations that provide businesses and consumers with the certainty they need.

I am sure that many noble Lords know that the EU’s general product safety regulation comes into force this Friday 13 December. Under the terms of the Windsor Framework between the UK and the EU, we have to apply it in Northern Ireland, so we will publish on the Government’s website clear guidance to SMEs that want to export to Northern Ireland and the EU. We will prepare a statutory instrument to implement a new enforcement regime in Northern Ireland to allow this GPSR to be enforced. This is a requirement of the Windsor Framework.

I mention this to show that there are regulations that SMEs have to abide by—this is one of them—that will impose a certain amount of burden on SMEs, especially in the run-up to Christmas. Many small businesses will now find it very difficult to export to Northern Ireland and Europe if they do not have a legal representative in the country to verify their goods.

As I have outlined, I believe that the very laudable sentiment behind these amendments is already covered by existing practice, so I ask noble Lords not to press them.

[Baroness Brinton (LD)]

I am grateful to the speakers in this debate and to the noble Lord, Lord Sharpe, for his Amendments 103, 104 and 104B. They aim, I think, to achieve the same objective as Amendment 82 in the name of the noble Lord, Lord Fox, but in more detail.

I am with the Minister—I thank him for his response —in saying that more paperwork and more regulation is not what we on these Benches wanted to achieve in Amendment 82, which is why it says that any regulations “must have regard for”. I hope that the Minister will take that on board. I want to ask him something; perhaps he might write to me, if he intends to write anyway. He kindly talked about the different types of impact assessment, including whether they would be full or proportionate. We completely understand that those would happen, but will those impact assessments specifically highlight SMEs? In other words, will an untutored eye flicking through see “effect on SMEs” in bold, and then something underneath it? I am seeing nods from the Minister, and I look forward to his letter.

I am glad that the Minister raised the extra burdens on firms either selling into Northern Ireland or the reverse. It is not just about that: over the last few years, we have seen very small businesses having sometimes to double the number of their administrative staff to cope with, for example, things such as music groups touring across Europe. The objective has to be keep that paperwork down as much as possible. Obviously, I will confer with my noble friend Lord Fox, and I look forward to the Minister’s letter. We may return with this later.

[Lord Leong (Lab)]

Before the noble Baroness withdraws, I can confirm that, when we do the impact assessment, we take SMEs into consideration as well.

[Baroness Brinton (LD)]

I beg leave to withdraw the amendment.

Amendment 82 withdrawn.

Clause 5 agreed.

Clause 6: Enforcement of metrology regulations

Amendments 83 to 92 not moved.

Clause 6 agreed.

Amendments 93 to 104B not moved.

Clause 7: Information sharing

Amendment 105 not moved.

Amendment 106

Moved by

[Lord Foster of Bath]

106: Clause 7, page 8, line 15, at end insert—
“(d) coroners, medical examiners or procurators fiscal investigating the causes of deaths in England, Wales, Scotland or Northern Ireland,(e) the Office for National Statistics, National Records of Scotland or the Northern Ireland Statistics and Research Agency,(f) bodies designated to make super-complaints on behalf of consumers pursuant to section 11 of the Enterprise Act 2002 (super-complaints to OFT),(g) NHS England,(h) the Royal College of Emergency Medicine,(i) other bodies specified by the Secretary of State which play a role in representing the public interest in relation to reducing the risks presented by products,(j) persons conducting academic research into the extent, causes or reduction of harm arising from or potentially associated with the use of products, or(k) bodies or persons performing roles comparable to those in paragraphs (a) to (h) in this subsection in the European Union, OECD or individual member states of either of those organisations.”Member’s explanatory statement
The amendment ensures that the information sharing provisions of the Act apply to more bodies responsible for investigating harms and deaths caused by products.

[Lord Foster of Bath (LD)]

My Lords, I am extremely conscious that I will not excite your Lordships as much as our earlier debate on pints did. Nevertheless, I rise to move Amendment 106 on my noble friend Lord Fox’s behalf, and I will also speak to my Amendment 108. Both relate to issues arising out of Clause 7, which is about information sharing. Clause 7(1) enables the making of product regulations or metrology regulations permitting the sharing of information between persons who are specified later on in Clause 7(2). Those persons who can share information are described in, frankly, incredibly general terms:

“another relevant authority … the emergency services, or … a person specified, or of a description specified, in product regulations or metrology regulations”.

My noble friend’s amendment provides a list of additional persons and bodies that should be specified in relevant subsequent regulations, not least those persons or bodies responsible for investigating harms and deaths caused by products. The list of proposed additions is not, of course, exhaustive. After all, the Bill permits others to be added—but by adding the basic cadre of persons or organisations, we can ensure a healthy flow of information between relevant bodies to help develop future regulations.

18:45

I give two examples to illustrate why we need to do a bit more than is currently in the Bill. For example, the concept of emergency services is already in the Bill at Clause 7(2)(b) but Clause 7(6) restricts the meaning of such services to those who can be summoned by 999 calls—the sort of services that deal with serious injuries. But the vast majority of product-related injuries lead to people seeking walk-in services, not blue lights at all. Again, that is an argument for extending the list.

On the other hand—at the other end of the scale—the amendment adds coroners. Here there is real value in creating the data that coroners can provide to help us understand systemic problems with a product or its regulation. If the data is regularly collected, it creates the opportunity to identify patterns and trends that could point to the need for new regulation. The amendment also broadens the scope of bodies that could be permitted to receive information. At the moment, as well as emergency services, the Bill limits reporting to include only people specifically referred to in a given regulation. We have suggested that there is scope to extend this in a number of directions to include bodies such as Which? or CABs, which are able to make super complaints on behalf of consumers, as covered by Section 11 in the Enterprise Act.

I am acutely aware that I have been in Parliament for over 30 years and am well aware that Governments of all persuasions hate amendments that provide lists of things to be included. I am well aware that the Minister is about to stand up and say why he objects to a list. However, on this occasion, I hope that the Minister will be acutely conscious before he does that of a problem that he would face in so doing. That is because Part 9 of the Enterprise Act 2002 can be used to restrict the disclosure of vital safety information by a public body in the exercise of its statutory function, unless the information has previously been made public. However, the Bill makes it explicit that the disclosure of information would constitute the exercise of a statutory function. This means that, at least for the bodies listed, the Enterprise Act cannot be used to limit important information-sharing. If my list is included, the items do not fall foul of Part 9, brought in some years after 2002. So there is real value in including the list that my noble friend’s amendment has proposed. It is one occasion, therefore, where naming as many relevant bodies as possible will help to achieve the Bill’s aims. I hope it will not be lightly dismissed by the Minister.

I turn to my Amendment 108, which has a somewhat different purpose. I have already offered full support for information-sharing because of the benefits that it will bring but we should recognise the need for some limits or some guardrails to the information that bodies are required to share. That is standard practice in other pieces of legislation but currently absent in the Bill. As in other legislation, as the amendment says, information-gathering powers through information or interview notices cannot be used to gather privileged information, whether that be parliamentary or legal professional privilege or the right to be protected from self-incrimination.

All three of these protections are well established. For example, the protection from self-incrimination is covered by, among others, Article 6 of the European Convention on Human Rights and the Police and Criminal Evidence Act 1984. Parliamentary privilege has been protected in common law ranging back for centuries to Lake v King in 1667; it is enshrined in the Bill of Rights of 1689.

I appreciate that the guard-rails I am proposing may be intended for inclusion in secondary legislation, but that would risk the relatively easy removal of such protections by any future Government. It would also risk the possibility of proper protection of privileged information not being included, even by this Government, in the product or metrology regulations that they will bring forward after the passage of the Bill. Protecting privileged information in the Bill insures against such possibilities; I hope the Minister agrees. I look forward to his response and beg to move Amendment 106.

[Lord Sharpe of Epsom (Con)]

My Lords, I am very grateful to the noble Lord, Lord Foster, for introducing these two amendments. Amendment 106 is in the name of the noble Lord, Lord Fox. It is vital to ensure that, as the noble Lord, Lord Foster, explained, a broader range of organisations, such as coroners, NHS bodies, statistical agencies and researchers, can access and share information to investigate and reduce harms caused by products. By involving expert groups and their international counterparts, we would strengthen our ability to identify risks, protect public health and ensure evidence-based action. It is a forward-thinking addition that ensures we leave no stone unturned in safeguarding public welfare.

Amendment 108 is an important and well-balanced safeguard for preserving essential legal protections. It provides clarity and fairness by ensuring that information requirements under the product and metrology regulations are not overly burdensome or unjustly intrusive. The careful limitations on when information can be disclosed and used as evidence reflect a thoughtful approach to balancing the need for enforcement with respect for due process. That contributes to a more trustworthy and transparent regulatory system, where both the public and those under investigation can have confidence in the fairness and integrity of the process. I look forward to hearing the Government’s answers, but these Benches give a guarded welcome to both amendments.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I thank the noble Lord, Lord Foster, for introducing the amendment from the noble Lord, Lord Fox, which seeks, as he said, to introduce a list of bodies that can be subject to information-sharing obligations. I also thank the noble Lord for his comprehensive and detailed Amendment 108 and his consideration of the Bill.

I take both these amendments very seriously; these are clearly important and interesting points on the limits and scope of information sharing. I assure the noble Lord that I will reflect very carefully on what he said. Over the past few years, your Lordships’ House has debated information sharing and risks to personal information, and the noble Baroness, Lady Brinton, has taken part in those debates. There is a difficult balance to be drawn between the benefits you can get and the risks, and we are trying to test that all the time in order to get the balance right.

The noble Lord argued that we need to include a wider range of organisations in the Bill. He was very careful not to be exclusive, because he anticipated that I would come in with the list defence. I need to look into the Enterprise Act further, if the noble Lord will let me write to him on that issue.

I certainly agree with the sentiment behind the amendments. With this Bill we are clearly trying to ensure that consumers are protected from any harm caused by unsafe or non-compliant products. In a consumer world that is always evolving—it seems to be evolving faster and faster—and where new products are being traded increasingly easily, regulatory authorities need to be able to marshal relevant data and information that may provide crucial evidence of certain product-related issues. Where such issues come within the terms of the Bill, we want to encourage the sharing of appropriate information.

On the other hand, there must be appropriate safeguards about sharing information. The noble Lord mentioned the word “guard-rails”. He was not running two horses; he was reflecting the tension there is and trying to find a way through, for which I applaud him very much. He mentioned the coroner. One of the coroner’s duties is to issue a prevention of future deaths report to related relevant persons, which may well include government bodies. We know that this data sharing can lead to important interventions.

We think that regulations proposed under the Bill will allow public health agencies such as the NHS to share data recorded in the course of their activities that relates to injuries caused by products. I have taken part in previous debates on the importance of this and of the NHS having the information and the registries that enable it to happen. There is a contrast between, say, supermarkets, which, when a product is found to be defective seem able to identify it very easily, and a service such as the NHS, where sometimes, as we have seen in the past, there are real issues around the ability to trace patients and the product. Clearly, this is a vital area in terms of safety. I refer to the report of the noble Baroness, Lady Cumberlege, First Do No Harm, in relation to pelvic mesh, for instance. She clearly identified the need to grip this issue.

It is very important that health bodies do the right thing here, but we think the Bill enables greater sharing of relevant data between public authorities, including emergency service authorities. That will bring more public agencies, including emergency services, within the scope of data-sharing agreements and schemes. We think that regulators need to take a co-ordinated approach to incidents to prevent future harm. However, we are wary of mandating reporting requirements. Going back to the previous debate—I see the noble Baroness there—clearly, more onerous reporting requirements can increase cost and resource burdens for those submitting information, so we need a targeted and efficient approach in this area.

In the normal course of creating such information-sharing obligations, and in relation to the noble Lord’s proposed new subsections (1) to (5), the regulations will state the general power “to share information between ‘x’ and ‘y’ for ‘z’ purpose”, for example. Clause 7(5)—here is the guard-rail—already provides that it will not override the UK general data protection regulations, and Article 9 of the Bill of Rights will apply to prevent a court from compelling information provided to Parliament.

The regulations will also set out any further safeguards that will apply to the information-sharing provisions, tailored to the circumstances envisaged in the regulations. In the context of a discretionary power to share information, for instance, there would be no need to exclude self-incriminating evidence.

Clearly, the UK GDPR provides stringent data-sharing safeguards that require individual consent to share personal data with third parties—as I have already mentioned, that is in Clause 7(5)—but the GDPR allows data sharing where there is a legal basis to do so. The Bill will not contravene that important legislation. We want data to be shared where it will enhance the intentions in the Bill, but we do not want to undermine the necessary protections in the GDPR legislation for information held about individuals.

We hope that we have the balance right, but we will take away the noble Lord’s comments, because this needs careful consideration. It has been very helpful to have this debate and try to tease these issues out.

19:00

[Lord Foster of Bath (LD)]

My Lords, I am enormously grateful that the noble Lord, Lord Sharpe, rather surprised me in seeming more excited by these amendments, in view of my earlier comments about beer, than I had expected. I am grateful for that, but I am particularly grateful for the very thoughtful response of the Minister. I am pleased that he thought I had made important and interesting points and by his promise to reflect on them. Just like the noble Lord, Lord Holmes, it looks like I may be getting a letter or a Christmas card—

[Lord Hunt of Kings Heath (Lab)]

I can assure him of that.

[Lord Foster of Bath (LD)]

I am not sure which it was: the letter or the Christmas card.

[Lord Hunt of Kings Heath (Lab)]

It will only be the letter, I am afraid.

[Lord Foster of Bath (LD)]

Time is not on our side—but it would be very helpful if, in his response, he could look at the issue of the definition of, for example, emergency services, and pick up my point about others. Could he also look very carefully at what he said, when he chose the example of coroners? Because of the work I do in relation to gambling, I am conscious that I very often say in speeches about it that there is well over one gambling-related suicide every day. The latest estimate is that over 400 a year take place. Our difficulty is that, unless we have information from coroners about causes of death, it is very difficult to build up the pattern. That is why coroners were included. Finally, he talked about GDPR, and the Bill itself refers to data protection legislation, as it puts it, but he did not make any specific comments about my concern about Part 9 of the Enterprise Act 2002.

[Lord Hunt of Kings Heath (Lab)]

I think I did say that we wanted to have a look at that and will come to him on it.

[Lord Foster of Bath (LD)]

I am grateful for that, and hope that, too, will therefore be included in the letter. With those remarks, particularly to say thank you to the Minister for his very thoughtful response, I beg leave to withdraw the amendment.

Amendment 106 withdrawn.

Amendment 107 not moved.

Clause 7 agreed.

Amendment 108 not moved.

Clause 8: Cost recovery

Amendment 109 not moved.

Clause 8 agreed.

Clause 9: Consequential amendment of certain Acts

Amendment 110

Moved by

[Lord Sharpe of Epsom]

110: Clause 9, page 9, line 19, leave out subsection (1)
Member's explanatory statement
This amendment prevents the repeal of provisions made by Parts 2, 4 and 5 of the Consumer Protection Act 1987.

[Lord Sharpe of Epsom (Con)]

My Lords, I shall speak to Amendments 110, 111 and 112, standing in my name. Clause 9 is a skeleton clause, as has been pointed out by the DPRRC, which recommended its removal—a point that may have been made a few times over the course of this Committee, often by me. In giving this degree of power to repeal existing legislation around consumer protection and metrology regulations by negative procedure, the Government have argued that aspects of the regulatory regime may need to be updated swiftly and frequently. However, they have failed to explain why they should be done with little scrutiny. In their response to the DPRRC, they suggested that it is because existing legislation has proven ineffective at times. The most recent consultation on the Bill suggested that 87% of respondents supported reviewing inspection powers, but it is one thing to review powers and another to have the power to completely repeal existing legislation and replace it with whatever an undefined—that word again—relevant authority feels is necessary.

I am very grateful to my noble friend Lord Lansley for his thoughts on Amendment 110. He is not in his place but I wish him a happy birthday, as I am sure most Members of the Committee do too. I am very grateful for his opinions, some of which I am incorporating in my next remarks. On Amendment 110, he pointed out that the Government are proposing to take the power to repeal Part 2 of the Consumer Protection Act 1987. If they were to do so, we would lose Section 2, which sets out primarily that the Secretary of State may make regulations for the purpose of securing goods that are safe. We would also lose Section 19, which defines “safe”. Section 19(1)(c) includes that “safe” means,

“there is no risk, or no risk apart from one reduced to a minimum, that … the keeping, use or consumption of the goods”

will

“cause the death of, or any personal injury to, any person”,

and that “unsafe” should be “construed accordingly”. The Bill does not make the equivalent provision: “reducing or mitigating risks” in Clause 1 is lesser than “safe” as defined, and the 1987 legislation has a long history of implementation, interpretation and enforcement.

At this late stage of the Bill, the question is: is it His Majesty’s Government’s intention to repeal Sections 2 and 19 of the Consumer Protection Act 1987? If it is not, we can assess the overall legislative framework which will result. If it is, we will need to revisit this issue when looking again at the purpose of the Bill. If His Majesty’s Government say they will decide later and seek to avoid overlap, we should again look at how this Bill and how the Consumer Protection Act 1987 may overlap, and consider whether the continuation of a defined requirement for safe products should be included in the Bill.

The other two amendments follow a very similar vein. I think I have said enough, and I beg to move.

[Baroness Lawlor (Con)]

My Lords, briefly, I support this. It is important that we do not give the Minister powers to repeal one of the best-known Acts, which many consumers in this country have had experience of. We all know it is a flagship Act, and it has been proven in the decades since 1987.

I strongly support my noble friend’s proposals to remove the concern about giving the Government the power to do away with these protections which are in those sections of the Act. The meaning of “safety” is particularly relevant and needs to be very clear for businesses and consumers alike. Were we to go along this route, heaven knows what a Government could do. It is wrong for this House to allow that to happen; it is constitutionally out of order that such a well-known piece of legislation—which is so important to our economy and those who make our economy—can be done away with using sleight of hand and without any proper scrutiny or discussion.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Lord and the noble Baroness, but I disagree with her. From the debates we have already had, there is a recognition that what businesses need is certainty and for government to move quickly when it is clear that action needs to be taken to protect the consumer and the other aims of the Bill.

I accept that there has been criticism by your Lordships’ Select Committees and by noble Lords here about the skeletal nature of the Bill, but the point is that we need flexibility to keep pace with fast movement in this consumer area. That is the reason why the Bill is constructed the way it is. I will come on to the Consumer Protection Act, but I hope I can reassure noble Lords on that.

The Government are of course looking very carefully at the reports of both the Delegated Powers Committee and the Constitution Committee and we are reflecting on them. Clearly, as I have said, we are trying to get the right balance between proper parliamentary accountability and the need for flexibility and clarity for all the people affected by the legislation. For instance, in Clause 9 itself, subsection (4) enables us to make minor technical adjustments to ensure coherence across the legislative framework without the need to introduce separate primary legislation for every amendment. I have to say that a general consequential power is typical and required to keep the law functional. If you remove that power, it would mean new primary legislation for adjustments that are primarily procedural or corrective in nature.

Also, the Bill includes safeguards to ensure that the use of the Clause 9 powers is proportionate and justified, with changes to primary legislation subject to the affirmative procedure. Of course, this means debates in both Houses.

As far as the Consumer Protection Act 1987 is concerned, I of course accept the importance of that legislation. As noble Lords will know, Part II of that Act grants powers to the Secretary of State to make regulations to ensure the safety of products, but the powers in Clauses 1 and 2 are intended to replace those powers. So, when product regulations are made under this Bill, it may be appropriate to repeal any or all of Part II of that Act in order to avoid duplication.

Likewise, Part IV of that Act sets out provision for the enforcement of regulations made under Part II. So, because the Bill includes provision in Clause 3 relating to the enforcement of product regulations made under this Bill, it may be appropriate to repeal any or all of Part IV of that Act when new product regulations are made. Included here are the powers for enforcement authorities to investigate and seize goods that have not yet reached the market and the power for customs officers to detain goods.

Part V of the Consumer Protection Act contains miscellaneous and supplemental provisions that may also require amendment when new regulations are introduced. There is no attempt here, nor any desire on the part of the Government, to undermine the Act fundamentally. We simply have to make adjustments in the light of this legislation.

I have listened to the noble Lord and the noble Baroness. As I say, we are considering very carefully the reports of those two Select Committees; clearly, we will reflect on them between now and Report.

[Lord Sharpe of Epsom (Con)]

I am, obviously, grateful to the Minister for that reassurance because, as he acknowledged, the committees’ reports are incredibly powerful and make some extremely good points.

With regard to the specifics, I thank the Minister. We agree on much. Businesses want certainty but they have certainty under the existing legislation, of course, which is the point of the amendments I have laid. I agree on flexibility as well but, unfortunately, “flexibility” is a word that allows a reasonably flexible definition. That is the point we seek to make here: we need to clarify this in a way that affords businesses a much more rigorously defined definition of “flexibility”.

As the Minister pointed out, businesses crave a degree of certainty, but the existing legislation is perfectly functional and has been for a long time. They have that certainty now, so I think that the Government need to justify why, in our view, they seeking to weaken that certainty.

For now, I beg leave to withdraw my amendment. I very much look forward to hearing what the Government have to say when they have considered the reports and, perhaps, to having further conversations ahead of Report.

Amendment 110 withdrawn.

Amendments 111 to 113 not moved.

Clause 9 agreed.

Clause 10: Interpretation

Amendments 114 to 125 not moved.

Clause 10 agreed.

Clause 11: Regulations

Amendments 126 to 133 not moved.

Clause 11 agreed.

Clauses 12 to 14 agreed.

19:15

Schedule

Amendment 134

Moved by

[Lord Liddle]

134: The Schedule, page 12, line 19, at end insert—
“7A Products and equipment for use in civil aviation.”Member's explanatory statement
This amendment is intended to probe the Government’s position regarding the use of the powers in the Bill to regulate products used in civil aviation.

[Lord Liddle (Lab)]

My Lords, it is not my intention to delay the conclusion of this very exhaustive and thorough Committee for very long. I will only take a minute. Some noble Lords will be aware that before the election I covered transport from the Opposition Front Bench. One of the issues that has come up is how the regulation here proposed by the Department for Business and Trade relates to the existing regulatory framework for aircraft, which comes under the Department for Transport.

I am sure that this matter can be sorted out without too much problem through extensive departmental conversations. We are glad that aircraft, which are regulated very strictly and with heavy international content—it is basically an international issue—are excluded by the Schedule. However, it is possible there may be some confusion created unless the definition of aircraft is more broadly defined.

My proposal, which is purely a test—I am not saying that it is perfect by any means—is that the Government take a look at the question of products and equipment for use in civil aviation, which is broader than aircraft themselves, think about this and come back on Report with a view. With that, I move my amendment.

[Lord Leong (Lab)]

My Lords, I thank my noble friend Lord Liddle for his amendment in this final group in the Committee on this Bill. He raises a very interesting point. I will start by briefly explaining the operation of the Schedule of the Bill. Noble Lords will appreciate that the Bill’s definitions have been drafted to capture the range of products covered by existing regulations. This means that the Bill needs to cover products as diverse as toys, cosmetics, fireworks, lifts and pieces of heavy engineering. The Bill therefore defines a product as

“a tangible item that results from a method of production”.

To place some limitation on this scope, the Schedule lists some exclusions. These refer to certain products that do not require coverage by this Bill because, for example, they are regulated by separate legislation. The Schedule includes an exclusion for aircraft. The noble Lord’s amendment would widen this exclusion to include all products and equipment intended for use in civil aviation.

As my noble friend has said, product regulation is not always as clear-cut as that. Many sectors have products feeding into them that span other sectors. Aviation is an important and complicated field when it comes to safety. It is right that there is an extensive suite of existing legislation, overseen by the Department for Transport, that covers that. It is not the Government’s intention to create any confusing parallel structure of regulation.

However, we need to ensure that, by excluding a wider range of products that can be used in aviation, we do not accidentally exclude dual-use products that might also need to be captured by this Bill. It cannot be the case that a manufacturer or other supplier can evade regulation on the grounds that, as well as supplying consumers, they also supply the aviation industry. My noble friend has raised an important and nuanced issue. Aviation safety is a serious matter. The Government will definitely reflect on this matter, and I am happy to have discussions with my noble friend before Report.

As this is the last group in our consideration of the Bill in Committee, I would like to express my thanks to all noble Lords for their thoughtful and constructive contribution during this stage of the scrutiny of the Bill. I would also like to thank my officials and all the staff here in the House, including the clerks, Hansard and the doorkeepers, for ensuring that the Committee has run as seamlessly as possible.

As I have said many times during today’s debate, the Government have valued the debates we have had, and the issues raised by all noble Lords. We have heard, clearly and loudly, the mood of the Committee on a number of areas. I can assure noble Lords that the Government will carefully reflect on all concerns. I give an undertaking that I will come back to noble Lords on these issues.

I look forward to continuing my constructive conversations with noble Lords as we approach Report to ensure that this important Bill is suitable to deliver the policy objectives that many in the debates have outlined their support of. With that said—and to ensure that noble Lords are not totally surprised—I would like to end on a familiar note and ask that Amendment 134 be withdrawn.

[Lord Liddle (Lab)]

My Lords, I am happy for Amendment 134 to be withdrawn. I am very grateful for the assurances the Minister has given me that this will be a matter subject to further consideration.

Amendment 134 withdrawn.

Amendment 135 had been withdrawn from the Marshalled List.

Schedule agreed.

Bill reported without amendment.

Committee adjourned at 7.22 pm.