Product Regulation and Metrology Bill [HL]

Report stage
Wednesday 26th February 2025 Lords Chamber

Report (1st Day)

Relevant documents: 2nd, 4th, 6th and 15th Reports from the Delegated Powers Committee, 2nd Report from the Constitution Committee.

Scottish, Welsh and Northern Ireland Legislative Consent sought.

15:54

Amendment 1

Moved by

[Lord Sharpe of Epsom]

1: Before Clause 1, insert the following new Clause—
“Purpose(1) The purpose of this Act is to improve the regulation of products and metrology.(2) The Secretary of State must, in taking any actions under this Act, advance that purpose while prioritising the maintenance of the United Kingdom’s regulatory autonomy.(3) Accordingly, and so far as it is possible to do so, provision made by virtue of this Act must be read and given effect so as to achieve the purpose mentioned in subsection (1) to the extent that it is consistent with the maintenance of the United Kingdom’s regulatory autonomy.(4) When taking action to improve regulation under this Act, the Secretary of State must have regard to maintaining the highest quality regulatory framework.”

[Lord Sharpe of Epsom (Con)]

My Lords, this Bill has a troubled history. It should not have been introduced to either House in its current form. It has now fallen foul of the Delegated Powers and Regulatory Reform Committee on three occasions and of the Constitution Committee on two occasions. We acknowledge the Government’s efforts to assuage the DPRRC’s concerns, and we thank the Minister for engaging so fulsomely and openly and driving through a number of government concessions. Those concessions are welcome, and we will support them, but, regrettably, they do not go far enough, in our view.

I speak today about the critical importance of having a purpose clause in the Bill, and its implications for the United Kingdom’s regulatory autonomy. In its current form, the Bill contains no explicit mention of respecting the UK’s regulatory autonomy, which is the foundation of a prosperous, independent economy. This absence is exactly why we need this purpose clause: to fill that gap and provide clear direction for the actions of the Secretary of State under the provisions of the Bill. After all, the reason we left the European Union was to regain the ability to make our own decisions, free from external control. Yet without this purpose clause, the Bill does not sufficiently safeguard the autonomy we have worked so hard to reclaim. This is precisely why we need this purpose clause. It explicitly addresses the need to protect and prioritise the UK’s regulatory autonomy in any actions taken under the Bill. It would establish a guiding principle that the Government must always act in a way that protects the UK’s sovereignty in regulating products and metrology, free from undue influence by foreign laws or regulations.

By explicitly requiring the Secretary of State to ensure that regulations are of the highest quality, this proposed new clause would push the Government to focus on creating a regulatory environment that stimulates rather than stifles business, and extend a clear message that the UK’s regulatory framework should encourage technological development, support start-ups, protect consumers and ultimately contribute to economic growth. We live in a highly competitive global market, where businesses need certainty and the freedom to operate according to clear and fair rules. A regulatory framework that ties the UK’s hands by aligning with foreign laws could create significant barriers to growth and innovation.

I appreciate that this preamble is lengthy in the context of an amendment on Report, but the proposed addition of this purpose clause makes sense only with some of that historical context. These arguments will inform many of our other amendments, so noble Lords will be relieved that they will not need to listen to them again too often.

If the Government are determined to force through this unfinished skeletal legislation in the teeth of perfectly reasonable objections from the committees of this House, and, indeed, from their own Attorney-General, the least we can do is give the Bill an overarching purpose: to improve the regulation of products and metrology, while prioritising the United Kingdom’s regulatory autonomy. If the Government are serious in their stated growth intentions—earlier today, the noble Baroness, Lady Anderson of Stoke-on-Trent, said, “We will always act in the national interest to secure what is best for Britain, British businesses and citizens”—surely they will find nothing to object to in either of those aims and will therefore accept this amendment. I beg to move.

[Lord Deben (Con)]

I apologise to the House for not being able to be present at many of the earlier debates, but I have come specifically to hear the explanation of this amendment, and I have to say that I am not convinced. The purpose of regulation is, of its nature, to do the best for growth and for business, and if it is best for growth and business to have a regulation that aligns us with somebody else then that must be sensible. There is no reason to say that the priority is not to be aligned. Indeed, I rather think the opposite: the priority is probably, in most cases, to be aligned.

To tie the arms of a future Government on the basis that somehow or other we are living not in the world that we now live in but in some mysterious world that people would like to live in seems wholly unacceptable, and I must say that I am sad that the Government have been opposed on this basis. It runs through all these out-of-date amendments, all of which seek to reassess and restate the disastrous policy of leaving the European Union, which we all know to be a huge success—everyone, throughout the country, knows how very good it has been, so let us make it even better by making it even more difficult to try to come to terms with the world in which we now live. I very much hope that the House will not agree to this amendment.

[Lord Lansley (Con)]

My Lords, I did not intend to support my noble friend on the Front Bench, but I am moved to do so by the speech from my other noble friend. I say to my noble friend Lord Deben that there is a later amendment, which we may or may not pursue, the purpose of which is to make it clear that, when making regulations, Ministers should have regard to the likelihood of the United Kingdom being an attractive place in which to manufacture or supply products. I am sure he agrees that is right.

16:00

My noble friend Lord Sharpe’s amendment serves two important purposes. First, it illustrates that the Government have not, even in this framework Bill, taken the trouble of telling Parliament the purpose of this legislation, other than that it is to make regulations at Ministers’ discretion. It does not really do much more than that, and that discretion is extremely wide.

The second benefit of the amendment is that it says—and I rather like this idea—that we should have a high-quality regulatory framework and a priority to maintain our regulatory autonomy. That does not mean we do not align with other jurisdictions; it means that we retain control of the extent to which we are aligned with other jurisdictions. In so far as that is encapsulated in a purpose clause at the outset, it would illustrate what use this legislation should be put to. We will come on to discuss the deficiencies of the Bill and whether the framework is sufficiently clear, but the more one is clear in statute what the purpose of a framework Bill is, the easier it is subsequently to scrutinise the many statutory instruments that will come forward in reference to it.

[Lord Frost (Con)]

My Lords, I support the amendment from my noble friend Lord Sharpe. We discussed what the point of the Bill is on many occasions in Committee, but I am afraid we are none the wiser and certainly no better informed on that subject as a result. That is why it is necessary to have a clearer purpose clause written into the Bill. The nearest we have is in the Explanatory Notes from a few months back; I will not read the full text, but they say:

“The Bill intends to ensure the UK is better placed to address modern day safety issues”


and high modern standards

“by allowing the UK Parliament the power to update relevant laws”.

Correct me if I am wrong, but the UK Parliament already has the power to update any law that it wishes, so I do not see how that can be the purpose of this Bill; there must be something else to it. Of course, one could speculate about it. Perhaps it is just to relieve the Government of the burden of having to go through the effort of legislating for the full range of manufactured goods that we still produce in this country, to delegate that power to the European Union and to recreate the situation that existed before we left that organisation. Perhaps it is to help with the woeful arrangements of the Windsor Framework and to make it a little easier to move goods across the internal border from Great Britain to Northern Ireland—I do not know.

What the purpose of the Bill cannot be is to reduce trade barriers—or it can be so only on one condition—because aligning with EU law does not reduce trade barriers. The EU itself is very clear about that; the process remains because it is a different legal system. The one condition on which that could be true would be if the UK and the EU reached an agreement that the aligned legislation under this Bill was to be considered as EU law and would be enforced by the Commission and the court—in other words, a Swiss-style arrangement. We have heard chat that that might be what the Government are aiming for in their reset.

In so far as I can see a purpose to the Bill, without the proposed new purpose clause in Amendment 1, it is maybe to prepare the ground for a Swiss-style agreement. Can the Minister, when commenting on this group, confirm or deny whether that is the intention of the Government and the purpose of this legislation? If it is not, it is very hard to see why the Government would not accept the proposed new purpose clause in Amendment 1.

[Lord Jackson of Peterborough (Con)]

My Lords, I support the amendment in the name of my noble friend Lord Sharpe of Epsom. I hope that over the course of my remarks I can illuminate the rationale for the amendment, for the benefit of my noble friend Lord Deben. This amendment is not about relitigating the Brexit battles. It is about holding the Government’s feet to the fire in a Bill that is deeply flawed. It is found to be deeply flawed by your Lordships’ Constitution Committee and delegated legislation committee—more of that later.

The two reasons that Ministers should look benignly on this amendment are that it is not substantially at odds with the Bill’s raison d’être and it is not only a noble aspiration of the Government. The Government were concerned—indeed, the previous Government were also concerned—that they did not have sufficient powers to respond to the EU’s regulatory initiatives efficaciously and that this would have negative trade consequences. It is perfectly proper that the Government seek to address that issue.

The fundamental problem of the Bill is that it does not articulate how far the Government intend to exercise the wide-scale, sweeping enabling powers in favour of alignment with the European Union only, and not other jurisdictions. For that reason this amendment should receive the support of your Lordships’ House. It is a purpose clause and a fundamental issue. I hope your Lordships will forgive me if I stray into the remit of Amendment 2. They are very similar and both look at Clause 1.

Before I go any further, I thank the Minister for how congenial and open he has been in engaging with all sides of the House—including our friends on the Liberal Democrat Benches—in seeking to improve the Bill and have a proper debate. Although there is no specific mention of dynamic alignment in the Bill, my noble friend Lord Frost makes a very astute point on whether the Government are moving towards a Swiss-style agreement—multiple bilateral agreements—which would potentially not be in the best interests of the UK as a much larger and more substantial economy than Switzerland.

The Minister should accept that our amendment seeks clarity, certainty and an explicit purpose, without undermining the concept of improving the regulation of products and metrology. This is not one giant statutory instrument. It is a piece of primary legislation. It is quite sensible to have the purpose of that legislation explicitly set out. It has an impact in terms of protecting the autonomy of the UK as an independent trading nation. As my noble friend Lord Hannan of Kingsclere made clear in Parliamentary Questions earlier, adopting a regulatory regime over which we have no effective influence, input or sanction is not a sensible way to proceed. It would certainly circumscribe our capacity to make new, advantageous trade arrangements with countries—not just those outside the EU but others that will come into the EU as new members subsequently.

The noble Lord, Lord Hunt, chunters that “It would be in our interest” from a sedentary position. That is a value judgment.

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

I said that what we do is totally in our own hands. The Bill gives us the right to adopt if we want to—to change, if we want to. This is about the UK having control. I thought that is what the party opposite wanted.

[Lord Jackson of Peterborough (Con)]

That would be the case if the Bill was not an egregious offence in respect of huge Henry VIII powers and enabling powers.

[Lord Hunt of Kings Heath (Lab)]

I am sorry to intervene on the noble Lord again but I cannot resist it. Surely the whole point about the Bill is to give us flexibility to do what the noble Lord is asking us to do.

[Lord Jackson of Peterborough (Con)]

Then the noble Lord would support a purpose clause, which—one might make the case—is much clearer and more explicit. Incidentally, I agree with every word said by my noble friend Lord Lansley and will be supporting his amendment later.

But, as the noble Lord, Lord Hunt of Kings Heath, rises to the Dispatch Box, I would just like to conclude my remarks with the words of his noble friend the Attorney-General. This has been mentioned before, because it is very important within the context of the Bill. It is not just that this is primary legislation; it is unclear. It gives ministerial fiat—wide-ranging ministerial powers—and there are not explicit protections. Indeed, the Delegated Legislation Committee specifically says there are not proper procedures for even consultation with key stakeholders. But the noble Lord will know that on 14 October, the Attorney-General—who is not as high-profile in this House as he used to be—said in his Bingham lecture on 14 October that

“excessive reliance on delegated powers, Henry VIII clauses, or skeleton legislation, upsets the proper balance between Parliament and the executive. This not only strikes at the rule of law values … but also at the cardinal principles of accessibility and legal certainty. In my view, the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means, in particular, a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards”.

I could not have put it better myself. On that basis, I hope that Ministers may be minded to support my noble friend Lord Sharpe’s amendment.

[Lord Fox (LD)]

My Lords, it is a pleasure to take part in this Report debate and to speak to this amendment.

I am grateful to the noble Lord, Lord Jackson, for reminding us that we are not relitigating the Brexit debate, because sometimes in Committee it was very hard to understand that point, given the speeches that came from his Benches. We are not relitigating the Brexit debate; we are trying to put in place a regulatory regime and the ability to deliver regulation that benefits the people of this country.

I was minded to consider that if I was using an electric lawn-mower and I started either to be electrocuted by it or have my toes removed by it, the last thing I would worry about was whether the regulation for that was autonomous. I would be worrying: why was it not safe? Why was the product not preserving my rights as a consumer not to be electrocuted or amputated? There is a serious point to this. If the noble Lord wanted to put a purpose to the Bill, its purpose is not to deliver some mystical autonomy—if we look at Amendment 8, we see that the Minister, far from delivering autonomy, is going to tie us to a whole bunch of other regulatory regimes. It is about delivering a regime that protects people and the environment, and gives consumers right of recompense if they are sold faulty products—all those sorts of things that we see before us. If we look in the draft code of conduct, that is what is set out in the introduction to it.

Sometimes we use before Clause 1 purpose amendments to make sure that we are the first speaker up. I do not think in this case that was in the mind of the noble Lord, Lord Sharpe. His amendment is designed—

[Lord Jackson of Peterborough (Con)]

Will the noble Lord give way?

[Lord Fox (LD)]

If I can finish my sentence, please. The noble Lord’s amendment is designed to completely change the purpose of the Bill. I think he has admitted that, and that is right. I suggest that in all the discussion we have had, all the amendments that we have talked about through Committee have been about the consumer, safety and the other issues that actually matter. If we want a purpose, I am very happy to sit down with the noble Lord, Lord Sharpe, and the Minister and we can draw up a purpose that encompasses that if it makes people feel happier, but the key issue is not the autonomy, it is the effectiveness of that regulation. I give way.

16:15

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

I remind noble Lords that we are on Report, we are not in Committee. It is very clear in the Standing Orders that you can speak only once on Report unless you are the mover of the group, in which case you can respond to the Minister. It is not within the rules to have this sort of debate. That is for Committee, not for Report.

[Lord Fox (LD)]

I am grateful to the noble Lord. Our focus will be—

[Lord Jackson of Peterborough (Con)]

Will the noble Lord give way?

[Lord Fox (LD)]

No, as the noble Lord just said—

[Lord Jackson of Peterborough (Con)]

The noble Lord agreed to give way.

[Lord Fox (LD)]

I give way to the Whips to suggest what to do.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I realise that I should apologise to the House, because I should not really have intervened on the noble Lord. In apologising to the House, I suggest that we allow the noble Lord, Lord Fox, to finish his speech.

[Lord Fox (LD)]

Thank you. There is not much more, your Lordships will be pleased to know. We will be focusing on the key issues. When we come to further groups, your Lordships will see that the work we on these Benches have done has been to try to prioritise proper scrutiny of the issues that I have talked about—safety, the environmental impact and the consumer, as well as legal issues—and to make sure that that can be done and this Bill changed in a way that survives contact with a huge government majority in the House of Commons. That is what we will be doing, and that is why we will not be supporting the noble Lord, Lord Sharpe, on his amendment.

[Baroness Lawlor (Con)]

I am awfully sorry: I was not quick enough on my feet before the noble Lord, Lord Fox, spoke. I should like to speak for a few minutes in support of my noble friend Lord Sharpe—if that is all right with the noble Lord, Lord Hunt.

I support my noble friend’s amendment because I think it sets out the framework and purpose clearly, and that is very important when we are making laws by statutory instrument. Besides, I think it is important to retain regulatory autonomy, and I will discuss that point with the noble Lord, Lord Fox, in a later group, but I do not think this is the time to have that discussion. It is regulatory autonomy that allows us to do all kinds of things to protect our consumers and ensure that we make the right sorts of laws for our products and our economy. That regulatory autonomy also allows us to align with any laws we like from any jurisdiction and, of course, the Government have a point in that.

My concern about not having an explicit regulatory autonomy aim in the purpose clause is that it would make us out of step with our existing arrangements with other trading partners, where we have agreed outcomes, conformity assessment procedures and other arrangements to recognise. We should not militate against that, which we may be in danger of doing if our purpose does not state these things explicitly.

[Lord in Waiting/Government Whip (Lord Leong) (Lab)]

My Lords, I thank all noble Lords who have given up so many hours to meet me and my officials to go through this Bill. I really appreciate those meetings. I thank the noble Lord, Lord Sharpe, for his amendment seeking to introduce a new clause about the purpose of the Bill. Likewise, I thank all noble Lords who have spoken this afternoon.

We have had many hours of debate on the Bill and I think that we all support the intent of this amendment—the importance of improving product regulation. On that, I hope that there is consensus. As the Secretary of State for Business and Trade pointed out when giving evidence to the Lords International Agreements Committee, the powers that the Bill would provide give the UK regulatory autonomy. If the previous Government had continued in office, they would have needed the same Bill.

We require this Bill, as powers in other legislation are inadequate for updating our extensive product metrology and regulatory regime and responding to new risks and threats. I refer to the point made by the noble Lord, Lord Jackson, about secondary legislation. This is about 2,000 pages of highly technical regulations. It is not a good use of parliamentary time to use primary legislation every time these are updated. There are, however, differences in how we go about improving regulation. That often requires a balance to be struck, such as where obligations sit, or regarding requirements that businesses must meet. That nuanced debate, which we heard during the Bill’s passage, may not be best served by introducing a broad “purpose to improve” in the Bill.

The Bill is about strengthening the UK’s regulatory autonomy. It will make sure that there are appropriate powers to regulate products to suit the UK’s needs and interests. Parliament will have ultimate control, with oversight of the regulations made under the Bill. The Bill is about providing powers to enable the UK to change regulation to suit the UK’s needs and interests, ensuring consumer safety and certainty for businesses. The Bill is necessary because we do not currently have those powers as a nation state. As I said earlier, all changes will be subject to parliamentary scrutiny.

I hope that I have been able to outline why this amendment is not necessary and ask that it be withdrawn.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken in this debate, particularly my noble friends Lord Lansley, Lord Frost, Lord Jackson and Lady Lawlor for their support of this amendment. I also thank my noble friend Lord Deben for his intervention, which gives me an opportunity to agree with my noble friend Lord Jackson that this is absolutely not about relitigating Brexit. Regulatory autonomy guarantees the freedom to pursue the best-quality regulation, as is made clear in the amendment. Subsection (1) of the proposed new clause states:

“The purpose of this Act is to improve the regulation of products and metrology”.


There is no disagreement about that, and it more than takes care of the lawnmower that the noble Lord, Lord Fox, referred to. Precisely as my noble friend Lord Lansley said, it allows the Government to retain control.

The Minister asserts that the previous Government would have delivered this Bill in its current form. They would not have done so; it would not have come in this form. As my noble friend Lord Jackson pointed out, this amendment is straightforward. There does not seem to be much disagreement about the purpose of the Bill. Therefore, I am at a bit of a loss as to why the Government will not just accept the amendment. As my noble friend Lord Jackson pointed out, it provides clarity, certainty and explicit purpose. I am afraid that I am not satisfied with the Minister’s response and would like to test the opinion of the House.

16:24

Division 1

Ayes: 177

Noes: 228

16:35

Clause 1: Product regulations

Amendment 2

Moved by

[Lord Hunt of Wirral]

2: Clause 1, page 1, line 3, leave out subsection (1)

[Lord Hunt of Wirral (Con)]

My Lords, in moving Amendment 2, I will speak also to Amendment 60, both standing in the name of my noble friend Lord Sharpe of Epsom. Amendment 2 seeks to remove the broad powers granted to the Secretary of State under “Product regulations”.

As my noble friend stated in Committee:

“Clause 1 grants wide-ranging powers to the Secretary of State to make regulations through statutory instruments, SIs, a process with limited parliamentary oversight. Such discretion risks undermining democratic accountability, as SIs are not subject to the same level of scrutiny as primary legislation”.—[Official Report, 20/11/24; col. GC 24.]


Unfortunately, since Committee, the Government, despite the valiant efforts of the Minister, have still failed to address this adequately.

I am very grateful for the tremendous amount of work that has been done on the Bill by the Delegated Powers and Regulatory Reform Committee. In October last year, the DPRRC published its second report on the Bill after an evidence session with the Minister and his Commons colleague. The committee was not mollified and, on 28 October, published the following:

“In our view, the delegation to Ministers of law-making powers in this Bill involves legislative power shifting to an unacceptable extent from the democratically appointed legislature to the Executive”.


Having now had a chance to look at the Government’s recent concessions, the committee has just published its latest views, on 21 February. Its unanimous view is that

“these are limited changes that do little to address the significant concerns that we expressed about the Bill in our Reports of 15 and 28 October. The Government has not taken the opportunity to add flesh to the bones of this skeleton Bill … We remain of the view that … the delegation to Ministers of law-making powers in this Bill involves legislative power shifting to an unacceptable extent from the legislature to the Executive”.

Nothing, therefore, has changed.

Meanwhile, on 18 October our colleagues on the Constitution Committee also published a very scathing report. They unpicked the Government’s arguments that much of the existing law in these areas is already secondary legislation by pointing out that the transposition of EU law into domestic law by way of secondary legislation was previously constrained by Section 2(2) of the European Communities Act 1972, which allowed for the use of delegated powers only to implement EU law, and that invariably this law had been subject to scrutiny by EU law-making institutions. They were backed up by the House of Commons European Scrutiny Committee, among others.

This Bill will replace those limited secondary powers with potentially open-ended ones. I do acknowledge—and the House must acknowledge—that the Government, and in particular the Minister, have moved a long way in terms of consultation and some use of affirmative powers. Nevertheless, the DPRRC noted on 21 February that,

“even if the House were to agree to those delegations of power, in our view those powers should be constrained so that product regulations and metrology regulations are in all cases subject to affirmative procedure scrutiny”.

This is not to oppose for the sake of opposition; it is a vital issue of principle. We take the view that, if two vitally important committees of this House express such serious reservations on more than one occasion, those reservations should be taken seriously. We accept, of course, that the Government have the right to disagree and to make their case—indeed, we did so in government on a number of occasions—but this Bill quite simply asks us to go too far.

It is not just the committees that think this. I speak, of course, as the immediate past chair of the Secondary Legislation Scrutiny Committee. We have dealt so much in the past with the inadequacy of controls on the Executive so far as secondary legislation is concerned. I do not know whether the House will remember— I do not want to go too far back in history—but the Secondary Legislation Scrutiny Committee published on 10 October 2022 Losing Impact: Why the Government’s Impact Assessment System is Failing Parliament and the Public. Then, on 2 February 2023, came Losing Control? The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill. Even more important was the report published as long ago as 24 November 2021—so this is a reflection on the previous Government—entitled Government by Diktat: A Call to Return Power to Parliament. I suppose that is what I am now asking for.

I do have an ally. My noble friend Lord Jackson of Peterborough has quoted very persuasively already, although he was unconstitutionally interrupted twice by my fellow Lord Hunt, the noble Lord, Lord Hunt of Kings Heath. This was totally contrary to the rulebook, as I understand it—but I hesitate to criticise because I am sure I have probably done the same thing myself. Report stage, as the noble Lord, Lord Russell of Liverpool, quite correctly pointed out, is constrained. Here am I, asking everyone to pay attention to the views of our Select Committees; I should also ask everyone to pay attention to the Companion.

It is quite right. I saw the Attorney-General last night during the course of the votes and warned him that we would be quoting, as my noble friend did, from his Bingham Lecture. I thought it was an absolutely brilliant lecture. Indeed, it was so good that I circulated it at the time, as the noble Lord, Lord Russell of Liverpool, will know, to all my fellow members of the Secondary Legislation Scrutiny Committee and asked the clerk to make sure that all our Select Committees were made aware of what was, I felt, a brilliant speech by the Attorney-General.

16:45

He laid down a clear procedure to follow: namely, the rule of law. The rule of law has a range of values which the Attorney outlined in that speech. They are all to do with the cardinal principles of accessibility and legal certainty. I am not going to repeat the words of the Attorney because they are already on the record in this debate, but I recognise that Governments tend to prefer a system where they can lay down in primary legislation that they can do what they like in secondary legislation, even to the extent of repealing primary legislation. In many ways, we have to say to ourselves, “Is this the way we want to proceed?”

Amendment 2 in particular gives the House an opportunity just to say, “Enough—no more. Please go back and find a better way of proceeding in this vitally important area of law”. I beg to move.

[The Senior Deputy Speaker (Lord Gardiner of Kimble)]

My Lords, I must inform the House that, if Amendment 2 is agreed to, I will not be able to call Amendments 3 and 4 by reason of pre-emption.

[Lord Anderson of Ipswich (CB)]

My Lords, I rise not to support the noble Lord, although it is a pleasure to follow him, but to address government Amendments 44 and 61 in this group, which I have signed, together with government Amendment 55, which will be for another day.

The Constitution Committee has already been kindly mentioned by the noble Lords, Lord Sharpe and Lord Hunt. As a member of that committee, I register my appreciation for the fact that the Government have not only listened to the committee’s concerns and to those developed with impressive persistence by the Delegated Powers and Regulatory Reform Committee but have reacted constructively to them. The Henry VIII powers have been greatly reduced in scope and a credible explanation has been given for the small remainder. While the Bill continues to contain uncomfortably wide ministerial powers to make significant policy decisions, the broad duty of consultation in Amendment 61 is a welcome mitigation. The third part of the package—an extension of the affirmative procedure—is another positive step.

It might have been possible to go further, as the Delegated Powers Committee has rightly said. But, for my part, I would not go so far as to support the noble Lord, Lord Hunt, in his—I am tempted to say “wrecking” —Amendment 2. How to avoid the unconstrained use of excessively broad delegated powers is a problem that will not go away. It was raised by this Bill in a particularly acute form. The Government have grappled with it conscientiously and they deserve credit for that.

I have one final thought. It is rather a dry one, I am afraid, but what do you expect from the Cross Benches? I hope that, some day, the relevant committees of this House might have occasion to discuss the constitutional issues around framework Bills and delegated powers with the Government, not only Bill by Bill, as we do at present, but in a more structured and strategic way. Such discussions would give proper weight to the constraints on government but could also draw on the guidance provided by our committees and bodies such as the Hansard Society over many years. Perhaps the Minister will agree, after his generous and productive engagement on this issue, that the goal of a more consistent and principled approach on both sides of the fence might at least be worth pursuing.

[Lord Lansley (Con)]

I shall speak to my Amendment 4 in this group, which, we are advised, would be pre-empted if Amendment 2 were to be passed, by reason of the deletion of the relevant provision in Clause 1(1), to which it would add an additional subsection. It would add to the overarching objective of making regulations, which is to secure safe products:

“In considering whether regulations should be made … the Secretary of State must have regard to the likelihood of the United Kingdom being seen as a favourable place in which to develop, manufacture or supply products”.


Of course, many of the debates that we have on the Bill will relate to the question of alignment, or otherwise. One of the reasons why we are considering this legislation is because there would be significant issues to do with the manufacture, distribution and supply of products in this country were we to diverge significantly from the standards that lie behind the CE marking from the European Union. Rather than continue, as we have done, with reliance on the retained EU law legislation, it is the Government’s intention, through this legislation, to enable us to accept CE marking. That is not necessarily on a dynamic basis—I agree that it is a matter of choice whether we do so—but the Bill’s structure is intended to enable that to happen. Because we seek to do that by reference to the adverse economic consequences that may flow from failing to be able to bring products here, which may drive some economic activity elsewhere, it seems important that Ministers making regulations under this legislation should consider whether, as a result, the UK is an attractive place in which to manufacture, distribute or supply products.

This is not a new concept. The noble Lord, Lord Hunt of Kings Heath, on the Government Front Bench will recall that the Medicines and Medical Devices Act 2021 includes effectively the same provision in relation to medical devices. Medical devices are outside the scope of this Bill but it is relevant to a wide range of other industrial products. I do not understand why it should not be an essential part of the way that Ministers consider making regulations that have such an impact to have regard to the positive benefits that can accrue to business from ensuring that we have the right product regulatory framework for them, so I commend Amendment 4 to the House.

I do not agree with the noble Lord, Lord Anderson, that Amendment 2 is a wrecking amendment. Why not? Because, if the first subsection were to be removed by that amendment, the regulation-making power would be removed from the Bill so the Government would have to think again. However, the noble Lord and the House will note that later in this group is government Amendment 44. The original formulation in the Bill was to have consequential amendments to Parts II, IV and V of the Consumer Protection Act 1987. In response to the suggestion from the Delegated Powers Committee, which was unhappy with the sweeping power to amend that Act, the Government have instead said, “We’re going to omit Parts II and IV now”. Part II is the bit I am interested in; it is the part of the Act that relates to product safety. The Government simply propose to remove Part II of that Act.

I say to the House and to my noble friend on the Front Bench that if Amendment 2 were to be passed the Bill would clearly have no further regulation-making power in it. However, if at the same time the House were to resist government Amendment 44 then there would continue to be powers in the Consumer Protection Act 1987 for the purpose of making regulations for product safety. The House will be reminded that Section 11(1) of the 1987 Act says:

“The Secretary of State may by regulations … make such provision as he considers appropriate for the purpose of securing … that goods to which this section applies are safe”.


More detail follows, including the respective ways in which provisions can be determined.

The Government should tell us either how they are going to legislate using the powers in the 1987 Act or, if they want to get rid of them, how they are going to replace them in detail. They have done neither of those things. I know we are going to come back to talk about legislation on product liability at a later stage. The Consumer Protection Act is nearly 40 years old and we know it needs updating, but the Government are not doing that; they are sweeping it away and not giving us anything like the detail that was in that Act as to how the powers are going to be used. Nearly 40 years’ worth of scrutiny of the Section 11 provisions on product safety will also be swept away, because the language in this Bill is not the same as in that Act.

The House will have to forgive me: I am slightly anticipating the next group and Amendment 3, because if Amendment 2 is passed, Amendment 3 will not be debated; it will have been pre-empted. I want to make it absolutely clear that although I support my noble friend’s criticisms of the way the Bill is constructed, there is a route available to maintain the powers for determining regulations for product safety. That would force the Government to come back and amend the Consumer Protection Act in ways that are more substantive and clearer than what the present Bill offers us.

[Lord Pannick (CB)]

My Lords, I recognise and value the constitutional principle that the noble Lord, Lord Hunt, eloquently draws to our attention. Ministers should not be given broad delegated powers, but constitutional principles are not absolute; they have to recognise practical reality.

In the context of this Bill, the practical reality is that technical regulations of the breadth and complexity that will be produced cannot sensibly be enacted by primary legislation. We are dealing, in Clause 1(1), with regulations that reduce or mitigate risks presented by products; to ensure that products “operate efficiently and effectively”; and that ensure that products designed for weighing or measuring operate effectively. Are we really to debate each and every such regulation in this House, either on the Floor of the House or in Grand Committee? We would have little, if any, time for anything else.

If the regulations raise issues of principle, Parliament retains control. Parliament does not have to accept the regulations; it can vote against them under the normal principles. The noble Lord, Lord Hunt, suggested, quoting someone from one of the committees—I cannot remember which—that this is Government by diktat. I suggest to him, with the greatest of respect, that that is unfair and inappropriate in this context, for the reasons I have given.

[Lord Deben (Con)]

My Lords, I make it clear that, having disagreed with Amendment 1, I agree with the noble Lord, Lord Hunt, in his discussion here. I fundamentally disagree with the words of the noble Lord, Lord Pannick, because this is exactly the moment when we give away basic parliamentary control. We know perfectly well that, although it is better than it was, it is still true that a great deal can be done by ministerial diktat which ought to come to Parliament.

I am not in any way suggesting that everything should come to Parliament. Of course, it is very easy to say, “You can’t have everything”, but that does not mean that we should allow this to go through without insisting on having a much clearer definition of where ministerial diktat is proper and where it is not. Until we get that right, this is, if I may dare say so to the noble Lord, Lord Pannick, the slippery slope.

17:00

I opposed the previous Government—my own Government—again and again on precisely this problem. Ministers always want these powers, and they are always encouraged by civil servants to have them. As a Minister for 16 years, it did me a great deal of good not to have those powers and to have to argue the case across the House. I therefore beg this House to support the amendment from the Opposition, not because it does not have to be overturned and have something else replace it, but because it will make the Government think again about the effects of the wide-ranging powers which they have demanded.

I remind people that we believed, or were told, that we were taking back control. I think we in fact did not take back control at all; we made ourselves less powerful in controlling our futures. But the one thing that we did not say we would do was to give Ministers the unfettered control which some had objected to in the European Union, so it is necessary for the Government to go further. I usually find the noble Lord, Lord Anderson of Ipswich, very persuasive, but I fear that he has given way too early. We ought to ask for further concessions before we can safely pass this Bill.

[Lord Jackson of Peterborough (Con)]

My Lords, I will speak briefly to Amendment 39, tabled in my name, which has ended up in this particular group almost by accident. It relates to a specific issue about the making of regulations as they relate to criminal offences arising from non-compliance in respect of metrology. This amendment is quite important because it requires that, at least 30 days before the making of a provision in respect of regulations as described in Clause 6(9), those regulations be placed in the Libraries of both Houses in the form of an Explanatory Memorandum.

This is important because the creation in secondary legislation of any criminal offence is a serious matter, and one that needs proper scrutiny and oversight. On that basis, it is a reasonable request for the Government to look benignly on this amendment, because they have previously committed to transparency and openness in many respects in the Bill. This would give parliamentarians an opportunity to raise some questions about the likelihood of a criminal offence arising from metrology regulations. For that reason, I may press this amendment.

[Lord Holmes of Richmond (Con)]

My Lords, following the theme of benign attention from government to amendments that have washed up in this group, I shall speak to my Amendment 41. In doing so, I declare my technology interests as set out in the register, not least as it applies to Socially Recruited, an AI business.

There are many things that are not in the Bill, data centres being one of them; yet these are the factories and foundries that are going to fuel our fourth industrial revolution, which is already well under way. We might think back to all that Victorian factories legislation, all quite appropriate and proper, whereas all I am seeking here is not even a whole statute—which we could have on data centres alone—but merely one amendment, which I hope the Government can look benignly upon. It simply asks the Government to undertake a consultation to look at a new standard for the measurement of the power usage of data centres.

We are going to rely increasingly on data centres for almost everything that we do in this country. How we power them, where we site them, the inputs, the outputs, where the technology comes from—all of these are key features currently utterly unconsidered in any legislation or regulations. All that my Amendment 41 seeks to do is suggest that the Government launch a consultation, following the passage of the Bill, to look at the effectiveness of a,

“metrology standard for the power usage of data centres”,

and, not least, to reconsider the current power usage effectiveness—PUE—standard and whether it is up to the job in hand.

[Lord Fox (LD)]

My Lords, this has been a really interesting debate. It is a shame that we cannot have this debate on group 3, where we could set out some of the issues that I am going to explain very briefly—without repeating the speech that I am going to make in group 3 —on how scrutiny can be enhanced for secondary legislation. I share the concern of your Lordships’ House that insufficient and inadequate scrutiny happens even when we have statutory instruments. As the noble Lord, Lord Hunt of Wirral, pointed out, we need something better than the way in which we deal with statutory instruments at the moment. Very rarely, if ever, are they turned away; we have regret Motions that, in sum, make no difference at all.

To some extent, we are protecting a paper tiger here. What we should be talking about is whether there is a way we can make sure that these future regulations go through a process that is properly scrutinised. The proper debate on that will happen in group 3, and we will take it through. I completely agree with the noble Lord, Lord Jackson, that the issue of criminal sanctions is a concern and that we need to have a way of scrutinising it. That will be included when I speak to group 3, as will be the environmental measures raised by the noble Lord, Lord Holmes, in this group, and by the noble Baroness, Lady Bennett, in the next group.

We do have a way of having greater transparency, but it is not by statutory instrument to be nodded through over and over again. We have to be honest with ourselves about what we actually do when we are dealing with secondary legislation. That is why I have been working very hard, and why I welcome the conversations I have had with the Minister and his team, to try to open up something that will not only give us better scrutiny—I would say nearly proper scrutiny—but also something that will survive contact with the government majority at the other end. That is the opening point which, to some extent, is a speech for a different group.

With respect to this group, Amendment 61 mandates additional consultation, and Amendment 55—which has strangely been put in group 12—strengthens the affirmative process. I was very pleased to see the name of the noble Lord, Lord Anderson of Ipswich, added to those amendments; I very much appreciated his speech today, and that of the noble Lord, Lord Pannick. Those amendments add further resilience and help to meet some of the issues that were raised by your Lordships’ committee.

Once we have discussed the changes in group 3, hopefully with the response of the Minister, they will also contain some of the issues raised by the noble Lord, Lord Deben. Again, the fundamental question is: how do we properly review legislation? I am hoping that we have come up with a way that will do this. That is why we are keeping our powder dry on these Benches. We have put a lot of work and a lot of hope in what we are going to be doing in the next group, and I think we can give your Lordships’ House, and indeed parliamentarians as well as all the external bodies, a way of participating in the proper pre-scrutiny of statutory instruments before they ever reach your Lordships’ House, whether it is by affirmative or negative process when they get here.

[Lord Leong (Lab)]

My Lords, first, I welcome the noble Lord, Lord Hunt of Wirral, to his place; I look forward to working with him constructively in the months ahead. I thank the noble Lord, Lord Fox, for giving us a little peek into what to expect in the next group.

I have listened carefully to the concerns around the scrutiny of such regulations from Peers, the Delegated Powers and Regulatory Reform Committee, and the Constitution Committee. I have also read my noble friend the Attorney-General’s lecture, which we have taken on board. That is why the Government propose to introduce a mandatory consultation requirement on the Secretary of State to consult such persons as they consider appropriate. This was welcomed in the DPRRC’s latest report; I particularly appreciate the committee’s constructive engagement. Consultation is a crucial part of the Government’s commitment to continued stakeholder engagement.

I refer to Amendment 4, in the name of the noble Lord, Lord Lansley. Basically, we are amending the Bill to require consultation. The Government will need to consider how to ensure that the UK is a good place to manufacture, develop and supply products. I am sure that businesses will let us know their strong views.

Amendment 61 has been drafted in such a way to ensure that consultation is appropriate to the circumstances, reflecting the potential risks posed and those with an interest. This is well precedented in existing legislation and allows for a variety of approaches, including: calls for evidence on specific areas, such as the recent common charger and outdoor noise calls for evidence; full consultations, such as that undertaken as part of the product safety review; and technical discussions to consider sector-specific actions—for example, on cosmetics—where a specialist scientific committee has been commissioned to form an opinion.

We have set out more details in an accompanying statement within our new code of conduct on how, when and with whom the Government currently engage on regulatory matters associated with product safety and metrology. This code of conduct is available in the Library of the House, and I hope Peers will find it a useful document.

Amendment 60 seeks to introduce a mandatory six-week minimum period for consultations. We believe that this will not always be necessary or appropriate because changes to product and metrology requirements can range from minor technical amendments to more substantial changes. It is important that the consultation requirement gives flexibility to the Secretary of State to consult as needed, and as appropriate, on a case-by-case basis. However, we have not stopped at a consultation requirement.

We have thought hard about an overall package of amendments. I now refer to Henry VIII powers. I thank the noble Lord, Lord Pannick, for his insightful contribution, and the noble Lord, Lord Anderson of Ipswich, a member of the Constitution Committee, for his contribution.

We have heard the concerns expressed about Henry VIII powers and are amending the Bill to eliminate most of them. Amendments 44 to 47, 62, 63 and 65 therefore restrict the number of Henry VIII powers to the absolute minimum necessary. We are removing entirely the power to amend or repeal provisions of the Consumer Rights Act 2015. We are putting in the Bill repeal of the absolute minimum necessary for provisions in the Consumer Protection Act 1987 and the Weights and Measures Act 1985. Commencement regulations will be used to bring those repeals into force at the right time, once regulations are made under this Bill to remove duplication in the statute book or to provide for regulatory continuity. We are pleased to see the DPRRC welcome these amendments.

Alongside these changes, the Government have introduced two small changes through Amendment 42, which is a necessary technical fix to the Bill, and Amendment 52, which is consequential.

I understand that noble Lords have concerns about the creation of criminal offences, which is the subject of Amendment 39, from the noble Lord, Lord Jackson of Peterborough. I reassure the House that regulations that introduce or widen the scope of criminal offences will be subject to the affirmative procedure. This is right and proper. To inform this debate, an Explanatory Memorandum will justify the proposed changes and be drafted after the justice impact tests and impact assessments have been completed. Additionally, the Government have brought forward an amendment to remove the criminal offence in the Weights and Measures Act 1985 applying to the sale of goods in non-permitted quantities.

17:15

Finally, I will touch on Amendment 41, in the name of the noble Lord, Lord Holmes, on the policy around the interaction between artificial intelligence and metrology. The Government cannot support this amendment. As we said in Committee, this is not an AI Bill. We will of course consider how the growth of AI affects the safety of the products that this Bill seeks to regulate and our regulatory responses to that. We will continue to work with businesses and consumer groups to understand the needs and development of AI, and what that means for the risks that physical products may present to consumers, before we consider any regulation of products containing AI under this Bill.

While I have listened to concerns, I have been pleased to see Peers across the House, as well as the DPRRC and the Constitution Committee, indicate an understanding for the need for some form of legislation. As technology and regulation continue to develop, we need new powers to keep our existing body of product regulation up to date and to address future threats and hazards. Amendment 2 in the name of the noble Lord, Lord Sharpe, would remove core provisions in the Bill that will allow us to do this. This would leave our product regulation framework frozen in time, unable to respond to either technical updates or substantial new risks.

Powers in other legislation are inadequate for updating the framework. For example, powers in the retained EU law Act are restricted and, except in limited circumstances, cannot be used to make further changes to provisions already amended using those powers or to impose tighter safety measures. I know that no Member on any side of the House wants that. Clause 1(1) is vital to delivering that aim. Our existing regulatory framework covers matters as broad as the use of the radio spectrum, the ergonomic design of protective equipment and noise emissions from certain products, such as lawnmowers and excavators. The powers in Clause 1 must be broad enough to cover these matters too.

I understand concerns about leaving the details of such important matters to secondary legislation, but our regulatory framework has developed over many years. It covers extremely technical details and I do not believe that it would be a good use of parliamentary time—as the noble Lord, Lord Pannick, mentioned—or give businesses the clarity they need, to table primary legislation every time such detailed regulation needs to be updated. We believe that the new statutory consultation requirements and changes to the number of Henry VIII powers, along with providing for greater use of the affirmative procedure across the Bill—which we will debate later—provide good guard-rails for the use of the powers under the Bill.

I hope this assures noble Lords that the regulation-making powers in the Bill serve the interests of consumers and provide clarity for businesses, as indicated by the noble Lord, Lord Hunt, by allowing our product regulation framework to be responsive. Consequently, I ask noble Lords not to press their amendments.

[Lord Hunt of Wirral (Con)]

My Lords, this has been a fascinating debate. I thank the Minister for his kind tribute to me at the start of his remarks. We have had a good tour d’horizon. It reminds me of someone I always counted on in moments like this; we still hugely miss Lord Judge. He taught me so much about Henry VIII clauses. In fact, he told me things that I did not know as a practising solicitor. He was brilliant, and we miss him so much.

I say to the noble Lord, Lord Fox—I read his contributions in Committee, particularly about the Delegated Powers Committee—that he was in total agreement, and I do not know what has happened. Perhaps we should have a consultation about a consultation. I will come back to what the Minister said in just a moment. The Attorney-General said that

“the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means … a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards”.

The one message that I take from this short debate—but one of great substance—is that we need to give further reflection to the Private Member’s Bill of the noble friend of the noble Lord, Lord Fox, the Statutory Instruments (Amendment) Bill. I made a special journey—I will not go into the detail—to support that Bill. My colleagues on the Secondary Legislation Scrutiny Committee thought it was a breath of fresh air, but it met with a stonewall from the Government. If only the Government would just think again about how we deal with secondary legislation, so much of what we have been discussing would be unnecessary.

I say to the noble Lord, Lord Anderson of Ipswich, how wounding it can be to describe this important constitutional debate as a wrecking amendment. I was giving the Minister an opportunity to come forward with some new proposals. He has failed to convince the Delegated Powers Committee. Are we to consign that committee’s further report to the rubbish tip? I will not; I will continue to return to its theme that the Government have got it wrong at the moment.

It is perfectly possible for the Government to come forward with something on Third Reading. If we pass Amendment 2 tonight—I am minded to test the opinion of the House—the Government have a real opportunity to listen even more closely to this latest report, which they have only just received from the committee. It was a unanimous report: Cross-Bench, Liberal Democrat, Conservative and Labour Peers all united in saying that the Government have got it wrong in producing what is in effect a skeletal Bill.

I am disappointed that the Minister, who had an opportunity to give more ground and to go away and consider this further, did not take that opportunity. I am grateful to my noble friend Lord Lansley, who directly contradicted what the Minister has just said about the effect of this amendment, as it would not have that effect. His Amendment 4 is such a good amendment.

I am so surprised that the noble Lord, Lord Pannick, should come forward and oppose this. It flies in the face of many of the speeches he has made before. My noble friend Lord Deben—it is like old times; we worked together for 16 years in government—pointed out that we are on a slippery slope, and we just need to make the Government think again.

My noble friend Lord Jackson of Peterborough has a really good amendment in Amendment 39, as does my noble friend Lord Holmes of Richmond in Amendment 41. We have had such a good debate, and it is a shame that the Government have refused to think again. That is why, in my view, we should test the opinion of the House.

[The Deputy Speaker (Baroness Watkins of Tavistock) (CB)]

My Lords, I must reinform the House that if Amendment 2 is agreed, I will not be able to call Amendment 3 or Amendment 4 by reason of pre-emption.

17:25

Division 2

Ayes: 189

Noes: 232

17:36

Amendment 3

Moved by

[Lord Lansley]

3: Clause 1, page 1, line 4, at end insert—
“(za) securing that products to which this section applies are safe;”Member’s explanatory statement
This amendment would retain the existing requirement in the Consumer Protection Act 1987 that product requirements must include that they are safe.

[Lord Lansley (Con)]

My Lords, having supported Amendment 2—unsuccessfully—I now have the opportunity to move Amendment 3. The noble Lord, Lord Fox, and I both slightly anticipated some of the arguments in the previous group, but we very much look forward to him speaking to his amendments in this group. I will speak to two sets of amendments: Amendments 3 and 12, which are linked, and then Amendment 28, which is to a separate and different purpose.

Amendment 3 would insert into the regulation-making power a requirement that the regulation should have the purpose of

“securing that products to which this section applies are safe”.

Where does this come from? As noble Lords may recall from the previous group, the amendment seeks to reinsert into this legislation the same provision that is in Section 11 of the Consumer Protection Act 1987. As we discovered from the Minister in the previous group, the Government are going to remove Part II of the Consumer Protection Act 1987; they will not simply have a consequential power to amend it but, under this Bill, will remove it.

I am not an expert on product safety legislation, but for nearly 40 years this provision has been in place and has been the basis for much of our product safety legislation until, broadly speaking, it was augmented or replaced by the general product safety regulations coming out of the European Union. Those regulations, through the assimilated legislation, are the basis on which much of our subordinate legislation has been created for product safety.

Why do I want to do this? I freely admit why I am moving my amendment and have already told the Minister so. Partly, I am trying to find out why the Government believe that the language of the Bill—which, as noble Lords will recall, is that it should have the purpose of

“reducing or mitigating risks presented by products”—

is a better construction than the proposition that products should be safe; it is certainly different. The noble Lord, Lord Fox, in the debate on the previous group, helpfully used a very straightforward analogy: when he uses his lawn-mower, he wants it to be safe. I do not think, if I may paraphrase him, that he wants to stand there, with the lawn-mower going across his toe, and think, “I do wish that the Government had introduced regulations that mitigated the risk of this happening”; he wants it to be safe.

I have included Amendment 12 because, of course, there is no point in putting the word “safe” back into the legislation unless one defines it. The Consumer Protection Act 1987 defines “safe”; for these purposes, I have amended that definition by taking out “goods” and inserting “products”, because that is consistent with the structure of this Bill, which relates to products. There has been case law that has found difficulty in the limitations of the interpretation of “goods”.

Amendment 3 is there to ask Ministers whether it would not have been better—and it is not too late, in either this House or another place—to consider whether it might be straightforward to maintain the intention that products should be safe, and define “safe”, alongside the reduction and mitigation of risk? There is arguably—only arguably—a difference between the two. I know that when you use different language in legislation you are generally thought to be intending to secure a different objective. Since we are, in this Bill, removing the requirement for products to be safe, and inserting a requirement for products to have their risks reduced or mitigated, I suppose there is a difference that is more than semantic between these two constructions. If the Minister can assure us that they will, in effect and in reality, mean the same thing, then I will not press my amendment.

I turn to Amendment 28, which proposes a new clause. Its purpose is to build on what is in the Bill about the regulation of online marketplaces. There is some rather helpful material in Clause 2(3)(d) which brings online marketplaces within the scope of the product regulation and product requirements. Amendment 49 to Clause 10, which we have not yet reached, also helpfully clarifies the definition of online marketplaces. That is all good news. However, none of that would change the fact that limitations remain in relation to the determination of liability for unsafe or defective products that are sold through intermediary online marketplaces. I do not need to tell the House of the increasing use of online marketplaces, or that many of them are not necessarily domiciled in the United Kingdom.

In Committee, the Minister, in response to a helpful amendment from the noble Lord, Lord Foster of Bath, said:

“The primary route to seek damages for harm caused by defective products is through the Consumer Protection Act 1987”—


I should point out this is a different part of the Consumer Protection Act 1987 from those parts which are to be deleted by this Bill. The Minister went on to say:

“My department is currently reviewing this legislation and we will consider the UK’s product liability regime holistically”.—[Official Report, 27/11/24; col. GC 232.]


However, we have here a situation which is very similar to that in relation to product regulation generally, but in relation to product liability: the European Union has moved and we have not moved with it. I am not making an argument for dynamic alignment—the Minister laughs as he knows I have never been one for dynamic alignment in these debates—but I can see the merit in our ability to align where it is in our interests to do so.

There is clearly a problem. Under the existing legislation, the liability applies to the producer of the product, somebody who holds themselves to be the producer —for example, through trademark—or the importer. That does not necessarily apply to online marketplaces, which often do not fit within any of those definitions.

17:45

The European Union’s new product liability directive, which came into force on 8 December 2024, is intended, from the EU’s point of view, to update product liability in relation to online marketplaces. The European Commission describes the effect of the product liability directive now to be that online marketplaces can be held liable when they act as one of the economic operators —a manufacturer, an importer, an authorised representative, a fulfilment service provider or a distributor. This Bill does not create a similar parallel set of obligations in relation to online marketplaces and it does not hold online marketplaces liable for harmful or defective products that they supply in the same way that the European Union’s product liability directive does.

The Office for Product Safety and Standards has included these issues within its consultation. The measures consulted upon included responsibility for online marketplaces for the identification of potentially harmful or defective products being offered via their systems, so it is about transparency, identification and a take-down kind of provision. But it did not go so far as to create, as the European Union’s directive does, a liability directly for the harm done by products where they are responsible. The European Union’s directive is essentially about ensuring that in all cases there is a business domiciled within the European Union that is responsible and may be held liable for harmful or defective products. We do not have something like that at the moment, but we should.

The Government have brought forward a product safety Bill but not a product liability Bill. I hope that by the means of Amendment 28 the Government might, even now, be thinking that there is scope for the insertion of additional potential powers to secure changes to our product liability regime, likewise to ensure that online marketplaces would be held accountable in the same way as other suppliers of products in this country.

I join with others in saying how helpful the Minister and his officials have been in a number of contexts in the discussions we have had. I do appreciate it. But I wonder whether, even at this stage, he might say that, as with some other steps that the Government have undertaken to move on, they will move on product liability and consider some of these wider issues about the responsibility of online marketplaces for harmful or defective products, do so rapidly and find, if not necessarily with this Bill, an early legislative opportunity to remedy the deficiencies in the legislation.

With those remarks about Amendment 28, I beg to move Amendment 3.

[Lord Foster of Bath (LD)]

My Lords, before turning to my Amendment 7, I pick up the points raised by the noble Lord, Lord Lansley, in relation to his Amendment 28. Perhaps to his surprise, I accept that this is a case where there may be dynamic alignment between us. As he rightly pointed out, in Committee I tabled amendments in relation to the need for a liability approach and a redress mechanism. In fact, I went further and suggested that we need to do things such as remove the anonymity of sellers on online platforms so that such a redress mechanism would be possible. Like the noble Lord, I certainly hope that the Minister—who, as he says, has been enormously helpful—will be able to explain how the Government intend to handle this issue. It is my understanding that it may not be possible to do it through this legislation but that alternative routes will be found. I very much hope that is the case.

I similarly hope there will be a positive response to Amendment 7 in my name and those of my noble friend Lord Fox and the noble Earl, Lord Lindsay. In your Lordships’ House I have frequently raised my concern about the safety of lithium-ion batteries and the urgent need for tighter reform. In doing so, I have pointed to significant support for such action from a wide range of bodies including Electrical Safety First, local fire brigades, many local councils, insurance companies and many others. They have all pointed to the need for tighter regulation in this area.

One of the sponsors of the amendment, the noble Earl, Lord Lindsay, is the president of the Chartered Trading Standards Institute, which is equally concerned about this issue. Its concerns, like mine, have arisen from the tragic loss of life we have seen and the huge amount of damage to property from fires caused by, for example, poorly manufactured lithium-ion batteries or faulty charging systems. It is worth reminding ourselves, I hope for the last time, that the London Fire Brigade has to respond to such a fire every two days. It is now the fastest-rising cause of fires throughout the city. More than 180 parliamentary constituencies have had fires caused by lithium-ion batteries in the last two or three years. Work needs to be done.

I am delighted that Electrical Safety First, in its very good report Battery Breakdown, has provided a great deal of technical information about not only the fires but their causes, and has provided some sensible solutions and ways forward. I am therefore delighted that in the debate on the previous group of amendments, the Minister made absolutely clear that there is now a commitment to detailed consultation before new statutory instruments are brought forward on this matter and lots of others that will come forward. It is right that the technical expertise that Electrical Safety First, for example, has demonstrated is made use of.

Lithium-ion batteries are clearly not the only high-risk products that need to be identified and regulated appropriately. Fireworks are a good example. But many are not covered by existing product safety regulations or covered adequately by the General Product Safety Regulations. I am also concerned that we need not only to cover a wide range of products but to have future-proofing for the legislation to be flexible enough to take into account new products that come on to the market in future.

Sadly, at the moment there is no systematic approach to the identification and regulation of such high-risk products. Hence my amendment relates to

“the marketing or use of certain products, or categories or groups of product, that present a high risk (known or emerging) to consumer health and safety”.

I am particularly grateful to the Minister and his officials for meeting with me, Electrical Safety First and the London Fire Brigade to discuss establishing such a proactive system for assessing and regulating high-risk products and emerging technologies. I am the first to accept that there are more ways than one of skinning the cat and that there may be alternative ways, other than my amendment, of achieving what I wish to achieve.

My noble friend Lord Fox’s Amendment 9 would require the Secretary of State to publish a statement, before SIs are laid, outlining how product risks will be identified and assessed, including those posing a high hazard, such as lithium-ion batteries. I am willing to accept that, if his amendment is accepted by the Government, and is backed by the appropriate statement and a code of practice in relation to the identification and regulation of higher-risk products, it may well provide a way forward and ensure the flexibility and transparency that my amendment has sought.

I will listen with great interest to my noble friend Lord Fox, and in particular to the response from the Minister. I very much hope that today’s outcome will mean that, at last, action will be taken to tackle the very real dangers to public health and safety caused by inadequately regulated high-risk products, including lithium-ion batteries.

[Lord Fox (LD)]

My Lords, I am looking forward to the novelty of my noble friend Lord Foster listening to me.

I will explain how Amendment 9, in my name, supports Amendment 7, in the names of my noble friend Lord Foster, the noble Earl, Lord Lindsay, and me. At the heart of both amendments is the desire to ensure that there has been sufficient scrutiny of the regulations that are designed to make products safe; I use that word advisedly, in support of the noble Lord Lansley, because “safe” is a good word to find in there somewhere, and I hope that through these discussions we will find a way. In my experience, the noble Lord, Lord Lansley, is relatively tenacious, so I suspect that something may emerge.

We need a process that takes into consideration all high-risk and higher-risk products. Lithium-ion batteries are a stark and horrific example when they go wrong, as set out eloquently by my noble friend, but there are other products, some of which we do not yet know about. Legislation has to be broad enough to be able to take those into consideration.

Amendment 9 also addresses the important elements of parliamentary scrutiny that we discussed in the last group. We have heard the concerns. If applied properly, this will go a long way towards ameliorating many of them. If we get it working properly, it will provide greater genuine scrutiny than the affirmative process tends to do, because it will edit secondary legislation before it is laid—in other words, it will have gone through a process.

Amendment 61, tabled by the Minister and signed by the noble Lord, Lord Anderson, undertakes that the Secretary of State will consult when the Secretary of State thinks it is appropriate. My Amendment 9 seeks to move this on to a more structured footing. It causes the Secretary of State to issue a statement that sets out the consultation process that the Secretary of State must undertake before tabling secondary legislation.

In some trivial cases, that will not be much consultation, but in other cases a great deal of work could be required, such as for an entirely new product, an entirely new use of an old product, or the reregulation of something that has proved problematic. All these would need to be addressed and assessed, to decide what level of risk we are dealing with. Higher-risk products would need a greater scrutiny process in order to reduce and mitigate risk, and make them as safe as possible.

As a result of this amendment, the Secretary of State would have to notify Parliament of the process for the identification and assessment of risks in products. I thank the Minister and his team again for the discussions we have had on this. We have had a number of meetings and each time we have moved forward in this process; together, we have been able to get to something that can work. I am happy that, rather than enshrining a particular technology in primary legislation, we are putting in place a process, and one that can evolve, if it needs to, going forward.

I hope that the Minister will set out further details of how this process will work and what the statement will include. I hope that he will take into consideration the concerns that have been demonstrated by my noble friends Lady Brinton and Lord Foster, as well as many other noble Lords during Committee. I should say, as an aside, that I was pleased to see the code of conduct, which is another brick in the wall, but this is the process by which that puts people’s noses to the grindstone and starts to apply it.

18:00

In addition, I would like the Minister to identify how the future statement will set out the process of assessing new regulations before secondary legislation is laid. I hope it includes how some products may be considered to present a higher risk than others, and considers enforcement and sanctions, taking into account the marketplaces and the changing issue of liability—which would be where Amendment 28, in the name of the noble Lord, Lord Lansley, could find a home. This process should be proportionate and appropriate. As well as the level of risk, the consultation should consider environmental issues, supply chain accountability, and compliance and penalties—be they criminal or civil sanctions, which the noble Lord, Lord Jackson, mentioned and my noble friend Lady Brinton has raised on a number of occasions. The issue of criminal sanctions needs to be addressed somewhere, and this may well be the place to do it. Finally, the consultation should consider the impact of any new regulation on SMEs and businesses in general.

I hope the Minister will be able to fill in more detail and set out the breadth of organisations and experts that would be included in this consultation, including consumer rights groups, charities, expert product groups, safety organisations, the devolved Governments—which we will touch on through the issues that the noble and learned Lord, Lord Hope, will speak to later—and, of course, parliamentarians.

I am hopeful that the Government will support Amendment 9, and give details of the statement process and how it will work. I am also hopeful that, having done that, we on these Benches will have met our strategic aim to improve the Bill and make it more accountable and thorough, in a way that a number of organisations can gauge, in the formulation of these future regulations. I hope that it meets the injunction of the noble Lord, Lord Hunt of Wirral, that we need to do things better. It may not be perfect—I am sure it will not be—but I hope that it will be a useful step in the right direction.

I should warn your Lordships that I plan to press Amendment 9 when the appropriate moment comes.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak to the four amendments in my name in this group, starting with Amendment 26. Backed by the noble Baronesses, Lady Freeman of Steventon and Lady Smith of Llanfaes, it is about period-products regulation. It sets out a requirement that, within one year of the Act being passed, the Secretary of State must create regulations to reduce the health risks of period products.

I have circulated to many noble Lords, and will be delighted to share it with any who has missed it, a briefing prepared by the Women’s Environmental Network. The briefing is now complete, and includes a list of NGOs that support the briefing, which backs the amendment: the Women’s Environmental Network, the Pesticide Collaboration, the Hazards Campaign, City to Sea, Hey Girls, UK Youth 4 Nature, Pesticide Action Network UK, Natracare, the Soil Association, MCS-Aware, Savitri, the Menstruation Research Network, the Rivers Trust, Period Positive, Fidra and the British Society for Antimicrobial Chemotherapy. There is a lot of backing for this amendment.

I offer my thanks to the Minister and his officials, who have kindly provided their time for a science-rich, detailed debate looking at policy in this area, but I am afraid that they have not convinced me that we do not need this amendment. Although many large-scale across-product actions need to be taken, this is something that can be done now, directly for health. It is perfectly possible, and this amendment would deliver it.

These period products are, of course, as the removal of VAT recognised, a necessity and not a luxury consumer item, used by roughly 15 million people who menstruate each month. Currently, these products theoretically come under the General Product Safety Regulations, but there is no specific mention of period products there. That lack of specific regulation means that there are few limitations or restrictions on the presence of potentially harmful chemicals or additives in period products. This is in sharp contrast to, for example, cosmetics.

The practical reality is that period products are used next to or in one of the most absorbent parts of the human body, unlike the other consumer items which come under the GPSR. Internal products, such as tampons, menstrual cups and discs, have direct access to the bloodstream. The absorption rate through the vulva is much greater than through the skin of the rest of the body.

In the past 10 years or so we have seen an advertising arms race among period products. A worrying number of potentially harmful chemicals and metals have often been explicitly added to or are found in single-use disposable and reusable period products. I went into this at some length in Committee, but I will identify just some of the biggest issues.

Biocidal silver, an untested additive currently waiting to be assessed for safety by the UK Government, is being used in many period pants as an antimicrobial. There is research showing that it affects the microbiome in the vulva. After the first 10 washes, 72% of it washes out. It is very toxic to aquatic life and contributes to antimicrobial resistance. I note that the National Audit Office has explicitly said today that we are not collectively doing anything like enough about antimicrobial resistance.

Also found in period products are endocrine-disrupting chemicals, such as phthalates, bisphenols and parabens, all of which have been identified as disrupting the function of our endocrine system. They are linked to cancer, reproductive and development disorders, birth defects, asthma and allergies. PFAS is an acronym that will be familiar to many noble Lords as forever chemicals. These have been found in period products and are used for waterproofing. They are also widely used elsewhere, as I will come back to. There are also heavy metals. Last year, lead, arsenic and cadmium were all found in tampons tested in the UK and internationally. For lead, there is no safe level of exposure.

Of course, I now come to microplastics. Despite their apparent cottony appearance, tampons and pads can both be up to 90% plastic and very likely continually shed microplastics. I say “very likely”, but I can point to research from Galway that recently found microplastics from period products in outlets from wastewater treatment plants, having gone through those plants. The University of Manchester found that tampons can shed 17 billion nanoplastic fibres—an average of 9.4 billion per tampon. That means people are being exposed to 86 trillion fibres over a lifetime of use.

Synthetic fragrances, encouraged by advertising, have been used in period products to address consumer anxiety about the social construct of so-called menstrual odours. These add nothing to functionality but contribute to stigma. If a comparable amount of fragrance was found in a cosmetic product it would have to be labelled, yet there is no such regulation for period products.

Noble Lords might say, “Oh, but this is an amendment that says the Government must act within one year”, but I can point them to New York state, Catalonia, Wales and Scotland, where regulations are already in place. The European ecolabel prohibits the use of many of the chemicals I referred to, although it is unfortunately only a voluntary code of excellence. These examples show that it is possible to act. What is needed is political will to protect our population. That is what I am asking for and I have given notice to the House that it is my intention to put this amendment to a vote.

I refer also to my other amendments in this group, which help put Amendment 26 on period products in context. Amendment 33 is a development from two amendments I tabled in Committee about the harmful impacts of clothing and a call for a ban on single-use plastics. As one is supposed to, I have developed that in bringing this forward on Report to see what we might be able to do in the short term to understand the scale of the problem we face.

I say this in the context of a study out this month that many noble Lords may have seen about the number of tiny fragments of plastic that will be in your brain. They were thought not to be able to cross the blood-brain barrier, but they very clearly are. The study showed that the concentration of microplastics in analysed brains increased by 50% from 2016 to 2024. On examination, the brains of 12 deceased patients with dementia had three to five times as much microplastic as people who died without suffering from dementia. That is one study, but we know that the amount of plastics produced in the world doubles every 10 to 15 years. The figures from these brains reflect what we are doing to the environment.

Microplastics are, of course, just one in the cocktail, alongside PFAS, endocrine-disrupting chemicals, pesticides and pharmaceutical products, all of which are accumulating in our environment every day. Governments and regulators have failed to consider how human bodies are being barraged and penetrated by these dangerous materials, and how they interact with each other, potentially damage our health and make us more susceptible to the impacts of other challenges, be they these materials or infectious agents.

When I started the discussion of these issues in Committee, the noble Lord, Lord Sharpe of Epsom, acknowledged that it had started him wondering about the non-iron shirt he was wearing that day, what had altered the fibres of the cotton to produce such a result, and what impact it might be having on his health. The answer is almost certainly a resin that releases formaldehyde, which is a known carcinogen and mutagen. It might also be a direct immediate problem for anyone who suffers from contact dermatitis. The EU has introduced new stricter regulations on that substance, starting from next year, noting that people are likely to be exposed to it from a wide range of sources—from car interiors to furniture, and from electronics to construction materials.

When they tackle these issues, Governments’ responses are almost invariably siloed. It is great, and world-leading, that the French Government have just banned the manufacture, import and sale of most PFAS-treated products from next year and of all PFAS-treated textiles by 2030, but they are tackling just one issue among many, and cleaning up the universal contamination of this class of chemicals just cannot be done.

I said I would tie this to Amendment 26. If we think about the bodies of people using period products in our society today, they are, like all of us, exposed to all of this and they are also getting the extra from the period products.

Finally, and very quickly, I come to Amendment 27A and the linked Amendment 66. This is a probing amendment that relates to the Environment Act. It is now 1,205 days since that Act became law.

[Noble Lords]

Oh!

[Baroness Bennett of Manor Castle (GP)]

I could have split these amendments out but chose not to. Perhaps I can have another minute, as others have had? The Act grants the Government powers to work towards the ending of the UK’s contribution to deforestation. Are the Government—

[Lord Hunt of Kings Heath (Lab)]

I am sorry to intervene but the rules are quite clear.

[Baroness Bennett of Manor Castle (GP)]

I think a previous noble Lord spoke for 12 minutes. I will ask the Minister a question and write a comment piece to cover the rest.

Do the Government plan to bring forward rapidly the necessary secondary legislation under Schedule 17 to the Environment Act, and to confirm that regulations will take the most ambitious form possible within existing UK law?

[Baroness Freeman of Steventon (CB)]

My Lords, I will speak very briefly to Amendment 26, to which I have added my name. Period products are currently regulated in the UK only under the General Product Safety Regulations, as the noble Baroness, Lady Bennett, said. In many other countries they come under more stringent regulations, even being considered as medical products. It is fantastic to see innovations in period products—we have seen improvements to them and a greater range of options over recent decades—but innovations can raise safety risks as well. I will give one example.

In the late 1970s, a super-absorbent alternative to cotton in tampons was invented. It could absorb 20 times its own volume, and so it needed changing much less frequently. It seemed life-changing. Unfortunately, its super-absorbency and longer use created the perfect environment for the bacteria staph aureus. Then, the tampon caused scratches because it absorbed too much and left people dry. It was a deadly combination. The bacteria could then get into the bloodstream, causing toxic shock—a syndrome that could rapidly kill, with minimal warning signs. Thousands of people died from it before the problem was identified and the product withdrawn.

18:15

We now have whole new ranges of products, which often include biocides that change the bacterial composition of the vaginal microbiome and cause infection risks. There are even experiments with products containing coagulants that could be used to clot blood. Many of these are undoubtedly great, but we need to ensure that they are properly regulated—at least as regulated as cosmetics, but probably not as tightly regulated as medical devices. It is shocking to me, and anyone I speak to, that blusher is more regulated than tampons. I ask the Government to consider this amendment, or something similar, very carefully. It would allow us to ensure the safety and the clear labelling of these products, so that we do not see any repeat of the toxic shock tragedy.

[Lord Hope of Craighead (CB)]

My Lords, I would like to say a quick word about Amendment 3 from the noble Lord, Lord Lansley. It has the attraction of introducing the word “safe” into the Bill, which does not appear anywhere else. The Bill uses the word “safety” and talks about minimising risk and so on. It recognises that products may involve some element of risk, whereas the amendment suggested by the noble Lord talks about eliminating risk. It is a desirable aim in itself, but I am not quite sure how that can be achieved. The noble Lord asked the Minister to say that the Bill is saying the same thing as he is, so he will not have to press his amendment. It seems to me that there is a real difference, and it is a very interesting difference, so I think that may be stretching the matter too far.

[Baroness Smith of Llanfaes (PC)]

My Lords, I apologise for not being involved in earlier discussions on the Bill. I rise in support of Amendment 26, which attracted me to contribute to today’s discussion. As a young woman and a user of these products, I was very shocked and surprised to hear about the different chemicals in them. A lot of young women would also be surprised and shocked to know about these chemicals, that they are not advertised, and that this information is not shared with the products’ users. I commend the noble Baroness, Lady Bennett, on bringing forward this very important amendment, and I urge the House to support it.

[Baroness Finlay of Llandaff (CB)]

My Lords, we are on Report, and I draw this House’s attention to the report by the Delegated Powers and Regulatory Reform Committee, which I am on. We certainly put the Minister through his paces and took the unusual step of asking him to give us evidence, because we felt that the Bill was skeletal and had regulatory powers, which we will come on to in a later group of amendments.

I want to use our latest discussion on Report to address support for Amendment 9. The importance of consultation has been brought up. I am most grateful— I am speaking personally and not on behalf of the committee—to the Minister for meeting with me and others from the committee to draw the consultation phases to our attention.

I hope that in summing up, the Minister will also cover the issue of consultation where there is a potential mismatch of products. The problem with lithium batteries is that people buy the batteries and chargers separately; it is when they put them together that the chance of a fire goes up dramatically, not when the right charger is bought with the right battery. We are dealing with a complex world, and I am well aware that there are an enormous number of regulations to be made, potentially, some of which are very complicated. Consultation will be critical to make sure that they are appropriate.

[Baroness Brinton (LD)]

My Lords, I declare my interest as a vice-chair of the All-Party Parliamentary Group on Fire Safety and Rescue. In that context, I support Amendment 7 in the name of the noble Lord, Lord Foster, and endorse his comments on lithium batteries, given that I had similar amendments in Committee. Importantly, the product is not included, and I hope the Government will be able to take note of that and help.

I also support Amendment 9, in the name of the noble Lord, Lord Fox. I think I was the first person at Second Reading to raise the question of criminal issues. The amendment helps us to get to a solution that provides scrutiny. Early scrutiny by Parliament is much stronger than the affirmative procedure.

I continue to support the campaign of the noble Baroness, Lady Bennett, which is encapsulated in her Amendment 26. I also support the powerful example given to us by the noble Baroness, Lady Freeman. However, I disagree, in that, in my view, tampons should be as well-regulated as blusher. They should be deemed to be a medical device, for all the biocidal reasons that the noble Baroness, Lady Bennett, explained —and I will not rehearse those. I remind your Lordships’ House that paragraph 9 of the schedule at the end of the Bill removes medicines and medical devices as defined in the Medicines and Medical Devices Act. Unfortunately, with period and incontinence products there are health issues. If they are not defined under that Act, there needs to be some way of recognising that they have an impact on individual health. I therefore support Amendment 26 and hope that the Government will listen to that as well.

I should also point out that there is more information on the government website about the correct taxation of period products and incontinence products than there is elsewhere on the health issues.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for their amendments in this instructive and interesting debate. I am a little wary about speaking after finding out how much plastic is in our brains, because that is obviously potentially to invite unfavourable comment.

I shall speak sympathetically to my noble friend Lord Lansley’s Amendments 3 and 12. One of the many problems that we have already discussed at some length, now and in Committee, is the vagueness of the Bill as drafted. That lack of clarity creates significant uncertainty for both businesses and consumers, so I thank my noble friend for his contributions. His amendments offer important suggestions that could help to address some of these issues, particularly by expanding the definition of safety and, indeed, providing a definition of safety.

As technology continues to develop, it is critical that we recognise that our understanding of what constitutes safety must also evolve. My noble friend’s amendments reflect that forward-thinking approach, acknowledge that new technologies and innovations may require updates to safety standards over time and, by expanding the definition, would ensure that the legislation remained flexible and adaptable, allowing for future growth and innovation without sacrificing safety. As my noble friend pointed out, different language suggests different outcomes, so I hope the Minister will be able to address that in answering my noble friend’s questions. We believe that these amendments provide much-needed clarity in areas where the Bill could have been more precise, and we are grateful to my noble friend Lord Lansley for bringing this issue into sharper focus.

Amendment 7 in the name of the noble Lords, Lord Foster of Bath and Lord Fox, and my noble friend Lord Lindsay—who, as the noble Lord, Lord Foster, pointed out, is president of the Chartered Trading Standards Institute—has significant merit. The noble Lord, Lord Foster, made a persuasive case, with some alarming statistics and illustrations. Consumers should have confidence that the products they buy, whether from a high street store or an online platform, are safe and, if things go wrong, that there is a clear route to accountability. By allowing regulations to extend liability to online marketplaces and ensuring the proper disclosure of evidence in claims for compensation, this amendment would strengthen consumer rights and help to create a fairer system. We will return at a later stage to the definitions of online marketplaces.

Amendment 9 in the name of the noble Lord, Lord Fox, would also help to do things better. I should remind the noble Lord that, in effect, it would mean more consultation. I am reluctant to remind the noble Baroness, Lady Finlay of Llandaff, of this, but the DPRRC, on which she sits, said in its most recent report on 21 February that

“consultation is not a substitute for Parliamentary scrutiny”.

However, I recognise that, in pointing that out, I am probably flogging something of a dead horse.

I turn to Amendment 26 and the other amendments in the name of the noble Baroness, Lady Bennett, which were spoken to—again, very persuasively—by the noble Baronesses, Lady Freeman and Lady Smith. These amendments address an important issue: ensuring that period products meet high safety standards while also considering their environmental impact. Given that these products are used by millions of women and girls, often over a lifetime, it is only right that their safety, composition and labelling are subject to clear and effective regulation; the list of organisations quoted by the noble Baroness, Lady Bennett, is illustrative of the interest in this particular area.

The safety and regulation of period products is a matter of both public health and consumer protection, so ensuring that individuals can make informed choices about the products they use is obviously essential. Amendment 26 seeks to introduce clear and necessary provisions for testing, marking and risk information, reflecting the need for greater transparency and oversight in this area. By addressing both single-use and reusable products, it acknowledges the evolving nature of the market while prioritising safety and well-being. We ask the Government to take further consideration and to carry out additional study on this important area—and, indeed, to expand it to some of the other areas that the noble Baroness mentioned, such as the formaldehyde that is present in non-iron shirts. Of course, one of the other uses of formaldehyde is to preserve dead bodies; I am not sure what that tells us about our sartorial choices, but there we are.

As the market for period products continues to evolve—particularly with increasing interest in reusable products—it is obviously essential that any regulation stays relevant and up to date, so we expect to return to this issue in future health-related Bills. The noble Baroness, Lady Brinton, made some very good points about the fact that these products should be treated as medical devices; those deserve to be explored further. It is crucial that we continue to monitor and adapt the regulation of these products in order to ensure that public health and consumer protection are maintained.

[Lord Leong (Lab)]

My Lords, I thank noble Lords for their contributions. May I put on the record that I do not buy any non-iron shirts? I am pretty old-fashioned: I buy 100% cotton shirts.

I am grateful to the noble Lord, Lord Lansley, for Amendments 3 and 12. Both in Committee and on Report, he has illustrated his thoughtful scrutiny of this legislation. A major element of our product regulations, and a focal point of this Bill, is consumer safety. Safety is at the very heart of this Bill, but products exist on a spectrum of risk, which can be mitigated to different levels and in different ways. That is why the Bill refers to risk rather than to safety.

Turning to Amendment 7, I start by thanking the noble Lord, Lord Foster, for his consistent and thoughtful engagement on this issue; I also thank him for his relentless campaigning on both this issue and areas such as lithium-ion batteries and various other fire risks. In many ways, he has got to the nub of our system of product regulation with his amendment and his remarks: how do we consider risks from products? I am also grateful to the noble Lord, Lord Fox, for his constructive discussions and for tabling Amendment 9.

As I set out in Committee, our current system of product regulation quantifies risk in a number of ways. At the most basic level, all consumer products must meet the baseline general safety requirements unless specific, additional or unusual risks are identified and they therefore need additional bespoke requirements; cosmetics or pressure equipment may be an example of that. Identifying and assessing risk are already at the very heart of Clause 1; indeed, it is inherent in passing product regulations that a risk must be identified in the first place. The powers in this Bill already enable regulations to consider product risks and the response to them in such cross-cutting ways.

18:30

However, we need to ensure that this is sufficiently flexible and capable of encompassing new and changing risks, and the process should be transparent and designed explicitly to take input from experts. What might be a sensible way to organise levels of risk today may not work in five, 10 or 15 years’ time. However, I accept that there is a need for greater transparency on the part of the Government in terms of how such technical decisions are made, and I recognise the efforts of the noble Lord, Lord Foster, in raising this. I am also grateful for his work bringing government and consumer groups together to discuss. I thank him. In addition, we have had a number of helpful meetings with him on this issue.

As noble Lords will be aware, the Government have published and shared a code of conduct on product regulation that sets out the statutory and non-statutory controls in place to ensure that regulation made under this legislation is proportionate and evidence based. This includes detail on how risk is currently considered. I thank the noble Lord, Lord Fox, for tabling Amendment 9. This would amend the Bill to require the Secretary of State to publish a specific statement explaining how the Government identify and assess product safety risks before secondary legislation is laid, including how it is determined that some products may present a higher risk than others.

I am pleased to confirm that, following discussions with the noble Lord, Lord Fox, the Government support this amendment and will lay the statement it requires. In addition to outlining the nature of consultation, the statement would also consider enforcement and sanctions, taking into consideration how marketplaces change. This statement, along with the code of conduct already published, will set out how, when and with whom the Government engage with on regulatory matters associated with product safety, including risk. The Secretary of State’s statement will set out the key consultation processes necessary before secondary legislation is laid before Parliament. The statement will be able to be updated as products and the risk they present evolve. We believe this amendment increases the transparency of our product regulation system, without unnecessarily binding our hands to an inflexible way in which to determine product risk.

Amendment 28, tabled by the noble Lord, Lord Lansley, seeks to allow the Secretary of State to make regulations providing for the liability of online marketplaces for defective and unsafe products, and to ensure that those suffering harm from unsafe or defective products can obtain redress. We discussed this amendment in Committee, when it was first tabled by my noble friend Lady Crawley; she is not here today and we wish her a speedy recovery. As I said at the time, the primary statutory route to seek damages for harm caused by defective products is through the Consumer Protection Act 1987. Depending upon the specific facts, an online marketplace may have responsibility under this legislation. I again say to noble Lords that the Government are reviewing this legislation and we will consider the UK’s product liability regime holistically, including the question of how it should apply to online marketplaces. We will take the time to consult relevant parties such as other government departments, consumer and business groups, and legal experts such as the Law Commission. We will seek to make any changes needed in parallel with legislation necessary to implement the EU’s updated product liability directive in Northern Ireland. We are committed to doing so under the Windsor Framework. We expect this work to be completed by the end of 2026.

We know that primary legislation will be needed to implement any revised product liability regime. Therefore, as the primary legislation to cover the full regime will go beyond the scope of this Bill, for instance to cover food and medical devices, and as we need to work with stakeholders to determine the future regime, we will not be introducing product liability measures through this Bill.

I turn to Amendments 26, 27A, 33 and 66 from the noble Baroness, Lady Bennett, Amendment 26 being supported by the noble Baronesses, Lady Freeman and Lady Smith. In relation to Amendment 26, the various noble Baronesses made a very compelling and reasonable case. While period products must comply with the general safety requirement so that only safe products can be placed on the market, they are right to highlight that they are not subject to specific regulations. Period products are one of a number of products where we intend to make the existing framework more robust and clearer for consumers and business alike.

I agree that it is not just the control of chemicals that is important but other elements of consumer protection, such as labelling requirements. It does not feel correct that for some products with similar risk exposure pathways—for example, cosmetics—there are stringent rules relating to the listing of ingredients, but these same rules do not apply to period products. This is an important area that we intend to consult on soon after Royal Assent, ensuring that the framework is sufficiently robust to address the issues raised by the noble Baronesses. I would be very happy to work with all noble Baronesses and key campaigners such as the Women’s Environmental Network in the development of these proposals.

I turn to Amendment 27A. The Government recognise the importance and urgency of ensuring that UK consumption of forest-risk commodities is not driving deforestation and are carefully considering their approach to addressing this, which we will set out in due course. This will include the approach to any new legal powers that may be required.

In relation to Amendment 33, the Government are already taking action to address plastic products, such as through the forthcoming extended producer responsibility for packaging, which encompasses all materials, including plastic, and will incentivise improved packaging design through modulated fees.

Amendment 66 would remove food, feeding stuff and fertiliser, and plants, fruit and fungi from the excluded products in the Schedule and bring these products within the scope of the Bill’s powers. I hope the noble Baroness will not mind me saying, after the concerns expressed about the Bill in Committee, that it is refreshing for someone to be arguing for expanding the scope of the Bill’s powers. The Schedule lists a number of products excluded from the Bill’s scope. This is largely because such products are not covered by our product regulation framework but by other legislative schemes. We will of course consider any regulations made under the Bill carefully to ensure that they fit with other legislation.

I now turn to the point from the noble Baroness, Lady Finlay, about mismatch of products. I draw her attention to the published code of conduct, which sets out how we identify issues, including how products are used and modified, as well as the mismatch of products she identifies.

I hope this reassures the House and I therefore humbly ask the noble Lord to withdraw his amendment.

[Lord Fox (LD)]

Before the Minister sits down, can I ask just briefly whether he can confirm that the consultation process which we have discussed, and he very carefully laid out, will include parliamentarians and the devolved Governments?

[Lord Leong (Lab)]

I can confirm that. In fact, the Secretary of State will publish a Written Statement when the consultation happens and this will extend invitations to civil society groups, any stakeholders, parliamentarians and interested parties.

[Lord Lansley (Con)]

My Lords, I know that we are all most grateful to the Minister for what I thought was an extremely helpful response to these important and interesting issues that we have debated in this group.

For my part, in relation to Amendment 3 and the use of “safe”, I agree with the noble and learned Lord, Lord Hope of Craighead, that the use of “safe” in a Bill that is intended to ensure that products are safe would be most helpful. He will note that Amendment 12 defines “safe” in a similar way—not precisely the same as the Consumer Protection Act does at present—as meaning

“that there is no risk, or no risk apart from one reduced to a minimum”,

so it is not to say that a product has no risk.

The Minister is right that this is about product safety—I completely agree—and identification of risk. I think where the noble Lord, Lord Fox, is coming from is on understanding how risk is identified and so on. I have some sympathy with the points he makes on Amendment 9, but I find it entirely arguable whether the definition of safe in the present legislation and the definition in this Bill are very close to one another. I slightly rest my argument for the Minister, and perhaps his officials, to think about: would it not therefore be helpful to include a provision in Clause 1 saying that products should be safe, meaning that there is no risk or a risk that is reduced to a minimum or mitigated, since that is what the Government intend to do? They are intending that people should be able to say that products are safe; they have just chosen to take the word out of statute. I think it would be rather helpful to put it back in. I rest my case there and will not press it further.

On Amendment 28, the Minister very helpfully said more than he said in Committee, although it was not inconsistent with what he said then. In particular, he gave us a timetable, which, of course, is immensely helpful. It is quite a long one and goes to the end of 2026, but I know how these things grind through the machines. He will find that there is a pressing need for a review of the product liability directive, especially in relation to online marketplaces, not least because the Law Commission identified this as an area for reform of the law in its 14th work programme—and that was something like three years ago. We are not only well out of date but well beyond the point at which a need for action on product liability had been identified. I hope we might keep pressing, alongside the Minister, for the progress that needs to be made in the consultation and subsequent legislation.

I have one more point. On Amendment 26 and the question of period products, I say to the noble Baroness, Lady Brinton, that I was wondering about this. I have checked, but if I understand the position correctly, period products are not regarded as medical devices; they are regarded as consumer products. Incontinence pants—disposable body-worn pads—are treated as medical devices by the MHRA. That is a distinction without a difference, one that I do not understand. I think that period products are regarded as medical devices by the Food and Drug Administration in America. Of course, we follow where the European Union’s general product safety regulation has been and the definitions it has put into its own regulations. One area that Ministers might think about is whether it would be more appropriate for these products to be regarded as medical devices and brought under the scope of the regulations.

[Baroness Brinton (LD)]

I have a very minor and technical point, but I referred to products and not just pants, because the whole line of products has changed. I do not believe that either period or incontinence pants are covered. That is my concern but I thank the noble Lord for his point.

[Lord Lansley (Con)]

I will not argue but there is probably a good basis for thinking about whether—rather than including them in the Bill, I say with great respect to the proposers of Amendment 26—it would be more appropriate to revisit the question of having them covered under the Medicines and Medical Devices Act 2021. I will leave it there.

On the basis of the point that we have reached with Amendment 3, and that the Minister will have heard, at the very least, the argument for the consumer and communications benefit of saying that we are aiming to make products safe, I will leave it in his capable hands and not seek to press this. I beg leave to withdraw Amendment 3.

Amendment 3 withdrawn.

Amendment 4 not moved.

Amendment 5

Moved by

[Lord Frost]

5: Clause 1, page 1, line 9, leave out subsection (2)
Member’s explanatory statement
This amendment removes from the Bill the broadly-drawn power to align with EU environmental regulation.

[Lord Frost (Con)]

My Lords, I will also speak to the several other amendments in my name in this group. I thank my noble friends Lord Sharpe, Lord Jackson of Peterborough and Lady Lawlor, and the noble Baroness, Lady Hoey, for supporting them. The provisions we are now considering are the core of the Bill—the novel provisions granting Ministers unprecedented powers by secondary legislation to align our laws with those of the European Union. This is a significant constitutional matter that you would probably not have been aware of if you had relied only on the Bill’s Title. I will try to be brief about the groups of amendments I have tabled, which cover different aspects of the problem generated by Clause 1(2) and Clause 2(7) and (8).

18:45

Amendments 5 and 18 would remove from the Bill the powers in those two clauses to align UK law directly with EU law. This would not deprive the Government of the power to do what they want to do in this Bill; it would simply remove the ability to take the easy way out of making a simple cross-reference to EU law and leaving it at that.

Amendments 6, 11 and 19 take the alternative route. They say that if we must have alignment with foreign laws—there is a case for it in certain areas—why should the European Union be the only source of law that we seek to align with? EU regulation is not generally regarded as perfect in every respect, as is true of every country or territory’s regulation. After Brexit, we now have an opportunity to pick and choose. If we want to align with the regulations of another country, we can choose any high-standard country with which to do so. We can link to more than one set of regulations if we wish. That is the purpose of these amendments—to allow similar cross-references to align with the laws of a defined list of broadly western territories and countries that have the same standards and approach to regulation as we do and to allow regulatory competition, potentially, to allow the best regulations to drive out the worst.

An appendage to this set of amendments is Amendment 24, which is there to make it difficult for Ministers to revert to plan A with this Bill. It would require them to justify their choice if, even though they have the choice to align with the regulations of more than one country, they still choose to align with only one.

Amendment 25 comes back to the point I touched on in the debate on Amendment 1 about the possibility of the Bill opening the way to a Swiss-style deal, which the Minister—who is not in his place—carefully side- stepped. Just making a cross-reference to EU law does not make UK law formally the law of the European Union, but it opens the possibility that the UK could reach an agreement with the European Union to consider that law to be EU law. If the EU were to agree, that would require the court, the Commission and all the panoply that the EU always requires to enforce its law. Maybe the Government intend to go down that road; maybe they do not. I do not know. There are certainly strong rumours that that is the intention, particularly in the SPS world, which is not covered directly by the Bill.

I repeat the point I raised earlier: if the Government do not intend to go down the new Swiss-style route, they should have no difficulty in accepting Amendment 25 because it provides simply for enforcement of laws of this country to be undertaken by the authorities of this country—something that in normal circumstances would go unsaid and be unexceptionable, but unfortunately perhaps needs to be spelled out. I would listen with care to anything the Minister said on that point.

Finally, Amendment 32 is a more straightforward provision for a review panel. This is a novel mechanism, a new way of doing things, however it is introduced. There is a strong case for some sort of provision to consider and decide whether it is working, whether it is improving competitiveness, whether these new mechanisms are working in the right way and whether it is helping the economy and regulatory standards. That is what stands behind Amendment 32.

To conclude, all these amendments are intended to shape, constrain and control the environment in and purposes for which the novel powers in the Bill can be used, and to require more justification of those powers when they are used.

[The Deputy Speaker (Lord Beith) (LD)]

If this amendment is agreed to, I will not be able to call Amendments 6, 8 or 27A by reason of pre-emption.

[Lord Russell of Liverpool (CB)]

My Lords, I have put my name to one of the many amendments in this group, Amendment 13, which in essence is perhaps a more balanced version of the amendment tabled in Committee. This more balanced amendment seeks to ensure complete and utter equivalence and transparency, whether the Government decide—for reasons that have to be stated, clear, transparent and the result of consultation—to align with the EU or with any other country or group of countries. It is simply to try to make sure there is complete equivalence and transparency, with no hidden agendas, no constitutional crisis, as the noble Lord, Lord Frost, described it, in understanding the rationale behind the decisions that are taken. As I stated at Second Reading and in Committee, however people may interpret my intentions, they are decidedly Cross-Bench and apolitical. I have no interest in revisiting some of the painful politics and turbulence of the last decade or so, which this country has willed on itself.

In relation to the specific amendment, what is really driving this is what I think should be paramount: the interests of the country, obviously. In an instance such as this, I personally regard the interests of the country to be predominantly to do with the views of the businesses most directly affected by these regulations. The organisation that I think has taken the closest interest in this and has been talking to its members in great detail about it is the British Chambers of Commerce. Your Lordships may or may not be aware that I should declare an interest in that its president is a fellow Cross-Bencher, the noble Baroness, Lady Lane-Fox. It did an extensive survey of its membership, which was published just before Christmas. I remind your Lordships that the chambers represent about 50,000 businesses across the UK, which employ about 6 million people and have an aggregate turnover across all the companies involved of about £600 billion per annum—a not inconsiderable part of the economy.

The views of the membership are pretty clear. They are in no way ideological about this, but there is a clear view on the part of a majority of the businesses that, in many instances, alignment with the EU is in the direct interests of their businesses and employees, particularly if they wish to grow their businesses. Many are involved in exports—and imports—to the European Union, which continues to be their single largest export market. They have an understandable wish for the ability to grow their businesses to be as easy as possible. What has happened over the past few years has, in many cases, made it a great deal less easy than they would wish.

There is, therefore, a very clear stated wish. They have come up with a wish list that they hope the Government will focus on. It is interesting that one thing they said should be a medium-term view relates specifically to the Bill that we are discussing. They say that the UK should build on the Product Regulation and Metrology Bill to facilitate alignment of UK regulation with relevant—but only where it is relevant—primary, secondary and tertiary EU decisions in the traded goods sectors. That does not deny the fact that, in some areas and in some sectors and instances, it will not make sense to align with the EU. The point that the noble Lord, Lord Frost, made—and I am sure others will make—about having the ability to align with other countries or groups of countries is entirely open to the Government to do. I think, however, that they will do that only as a result of careful consultation with the interested bodies. They would then have to make a judgment call on what is in the best economic interests of the UK in terms of which direction they go in.

That is quite simply what this amendment is about. It is meant to promote growth. Those businesses are looking for greater predictability, transparency and consultation—the feeling that they have actually been listened to. Above all, what I think they are looking for—and what sometimes one senses, from some of the interventions on this Bill, is missing—is rebuilding a sense of genuine trust between those who may have slightly different views about the direction that we should take on issues such as this, as well as a relationship that is more trust-based and transparent and where dialogue is easier with some of the bodies, including the EU but also those other countries that we might align with, than has been the case hitherto.

[Lord Lansley (Con)]

My Lords, I want to speak briefly to Amendment 20 in this group, which is in my name. It is an opportunity to restate an argument, which I will not dwell on at length but which noble Lords may recall from Committee: there is an inherent advantage and desirability that, when we are determining product requirements and regulations, we should, wherever possible, do so by reference to international standards and agreements.

This is of course something that the Government, like the previous Government, are committed to, not least under the latest statement of public policy in relation to standardisation, which was published this year. It gives very useful examples of how this country, the British Standards Institution, some of the organisations to which we contribute and the innovations that we have led have been the basis of the establishment of many of those international standards. I am convinced that it is not absolutely necessary to put it into the legislation in order for this to be the case. I hope that, in response to this debate, the Minister will again restate the Government’s intention that international standards should be the basis.

However, I wanted the opportunity to add one further thought. If we were to arrive at a point where EU legislation or regulations diverged, in our view, from an international standard or agreement or from sound science—for example, the precision breeding legislation and statutory instruments that have just been brought forward, which technically diverge from where the European Union is now; I hope, declaring an interest in the European Union context, that the EU will change its legislation to bring it much closer to us, rather than the other way round—there should be a presumption that adherence to international standards would be the priority. We should look to that as the basis on which we set our standards and not treat the decisions made by the European Union as ones to which we should necessarily incline.

19:00

On Amendment 13, I say to the noble Lord, Lord Russell, that I am very familiar with the British Chambers of Commerce. I was once, in a different century, its deputy director-general, and I have no doubt that what its members say is an accurate reflection of its interests. However, it is not necessarily the basis on which one writes laws. We should be very clear that the place we want to arrive at is where we enter into mutual recognition agreements with as many like-minded countries as possible. Those would be mutual recognition of conformity assessments, because the relevant EU law we are talking about is, in essence, about the principles for conformity assessment. We should do that with the European Union, America, Australia, Canada, New Zealand and so on. As a consequence, we would enter into what would be regarded as positive a third-country trading relationship with the European Union as possible.

What I hope we will not do is make permanent what the previous Government thought was an expedient measure: to recognise CE marking unilaterally. We should not make that permanent; our presumption should be that, at some point in the future, CE marking would be recognised by this country because UKCA marking would be recognised by the European Union and there would be a mutual recognition agreement to cover it.

Therefore, I cannot support my noble friend, because I worry that his amendment will not just unilaterally disarm our conformity assessment provisions with the European Union; it will it unilaterally disarm our conformity assessment processes with a wide range of potential countries. That is not the path that we should go down. In this legislation, we should try to stick, for now, to the principles that we will seek to adhere to international standards, we will build the UK conformity assessment regime, and we will negotiate to secure mutual recognition with other countries on that basis.

[Lord Deben (Con)]

My Lords, I very much support the comments that have just been made. My concern is that we should live in the world that actually exists, rather than some mythical world that we might like to exist.

Some of the comments made by my noble friend Lord Frost seem intent on trying to make it impossible for people to organise themselves in the world in which we live, because of the particular view that he takes about the rest of Europe. I do not want that to be the view that we should have. We should have a fundamental view: first, that our regulation should be in accordance with the science—which is why I very much agree with my noble friend Lord Lansley—and, secondly, that we should take into account where our major markets are and where it is important that we have common standards, if they are possible. We should not be hidebound by some past view.

It happens to be true that the world in which we live includes the fact that the rest of Europe is pretty close to us, and we will therefore find that it is probably true that the area where we will most need to have common views will be there. I say that not to try to reverse the decision made by Britain but to face the facts of geography and trade.

In my business life, I advise a very large number of big and small businesses. We do not discuss whether we were in favour of our leaving the European Union; we discuss how we should run the business and make it work today. One thing that we all agree on is that the present system does not work very well. We can leave the past aside, but if we are to make it work in the future, we must give the Government the opportunity to align where alignment seems sensible in the context of the science. We will have to accept, by the nature of life, that much of that alignment may be with the countries with which we do most of our business and with which we will continue to do so.

We must not insert into the Bill matters that are not about it, but about reasserting a particular view of the way the world ought to work. We in this House should be prepared to accept that we are where we are, and that our job is to make life easier for the businesses we want to grow and to be able to work with other countries in our continent as well as beyond. Sometimes it will be more sensible to be aligned in a much wider sense. Much of the time it will not be, but that will be for the particular issue, the particular moment and the particular decision. We should not make it more difficult here to make the best decision on every occasion.

[Lord Browne of Ladyton (Lab)]

My Lords, I rise to speak to Amendment 13, in the name of the noble Lords, Lord Russell of Liverpool, Lord Kirkhope of Harrogate and Lord Fox. It is a pleasure to follow the noble Lord, Lord Deben, whose common sense I often agree with. I am happy to echo his request that we treat and judge these amendments in the world we live in, rather than the world we would like to live in.

My name was attached to a predecessor of this amendment when the Bill came before your Lordships’ Committee. Its absence at this stage does not reflect any diminution of my belief that its provisions would both enhance the effectiveness of this legislation and strengthen Parliament’s scrutinising role. The fact is, I just left it too late to add my name.

The moving spirit behind this amendment is a desire for the greatest possible transparency and, leading from that, the greatest role possible for your Lordships’ House and the other place in examining regulatory decisions and subjecting them to scrutiny. The coverage surrounding this legislation has frequently described it as an enabling Bill, but I see this amendment as one that enables Parliament to have access to the thinking of relevant Ministers when they choose to align with or diverge from EU or other law. These decisions should and will be made according to a calculus of national self-interest, rather than—as I suspect some on the Opposition Benches are determined to believe—a desire unthinkingly to ape EU regulations, whether such alignment is in the interest of British business and industry or not.

In that respect, this amendment is rather more narrowly drawn than its predecessor, to which I put my name. It does not represent dynamic alignment but offers a greater measure of regulatory certainty for business, while ensuring that decisions that prove not to be in our interest are regularly reviewed. As I have said, I am aware of the fears of some on the Opposition Benches, and the suggestion that the Bill encompasses the extinction of British regulatory independence. I do not agree with them but suggest that if this is indeed their belief, the greater transparency and reviewing requirements of this amendment should offer a vehicle for more effective scrutiny.

This amendment has been drafted carefully and is consonant with the aims of the Bill as a whole. It does not suggest or conform to any preconceived determination that alignment with EU standards is inherently desirable. As we have heard, it simply imposes on Ministers a duty to report to Parliament when a decision has been made against or in favour of regulatory alignment. In a further departure from this amendment’s predecessor, the yardstick against which that decision has been taken will be a simple one: whether the decision is to the benefit of British businesses.

Recent weeks have made it abundantly clear that we now live in a more transactional world. Although I might regret that fact, I recognise it and accept that this is the world that we live in, as the noble Lord, Lord Deben, would say. Even judged by that metric, this amendment’s value is clear. Its starting point is what is good for our national economy and businesses; it ensures that Parliament is to be apprised of the basis on which Ministers make their regulatory determinations; and it ensures that if these have proved mistaken, they can be scrutinised and, where necessary, reversed. For those reasons, it should be part of the Bill. Whether through proceedings in your Lordships’ House or the other place—which, I am sure, will have an opportunity to consider it—I hope that this amendment, or something very like it, will make its way on to the statute book.

[Lord Jackson of Peterborough (Con)]

My Lords, I support my noble friend Lord Frost’s amendments in this group, tabled in his and other noble Lords’ names.

I begin by focusing on the amendment tabled by the noble Lord, Lord Russell of Liverpool, and others. It would be churlish and unreasonable not to concede that it is slightly different from the amendment tabled in Committee and that it is slightly better, although I am surprised by the noble Lord’s comments, echoed by my noble friend Lord Lansley, about the basis on which we seek to legislate with primary legislation. We do not do it for businesses; we do it for the good of the greater population of this country and not necessarily a small group, however estimable it is in the case of the British Chambers of Commerce. This is not a bad amendment but it is potentially a Trojan horse amendment, in that it closes out options other than the regulatory and legal regime of the European Union.

That brings me to Amendment 11, tabled by my noble friend Lord Frost. The key issue here is that we are considering a Bill that we hope will improve the productivity and competitiveness of British business and commerce and reduce trade frictions. It is not sensible to close off the possibility of different opportunities for the United Kingdom to prosper outside the European Union. The ideas are not mutually exclusive. Being open and transparent, and putting in legislation the means to improve trade globally, does not necessarily mean that we are resiling from our friends in the European Union and our trade with them. However, by dollar denomination, global trade with the EU has reduced from, I think, 32% 30 years ago; it is likely within the next 10 years to drop to about 14%.

Therefore, we have a duty and a responsibility. It is imperative for us as legislators to put in place legislation that recognises those economic realities—that we will be trading more with Indonesia, Japan, Mexico, South Africa and other countries. Of course, we are not taking the view that Europe cannot prosper. It is in our best interests that the European Union prospers. But to put in the Bill only the legal and regulatory regime of one part of the global trade possibilities closes off options that Ministers would be sensible not to close off.

My final remarks are on my noble friend’s Amendment 25, which affects Clause 2, on page 3 of the Bill, concerning the legal jurisdiction of potential supranational legal entities and the impact they will have on the regulatory regime of the United Kingdom. Again, I press the Minister to answer my noble friend’s question: as a result of this Bill passing, are we going to have a situation in the near future analogous to that of Switzerland—a fractious and difficult relationship as a result of many bilateral agreements with the European Union, and is that in the best interests of the United Kingdom? That is the rationale behind this very sensible amendment. For those reasons, I support my noble friend Lord Frost’s amendment, and I would resist the amendment from the noble Lord, Lord Russell of Liverpool.

19:15

[Baroness Lawlor (Con)]

My Lords, I rise to speak in favour of my Amendments 21 and 59, and to support the amendments, to which I have added my name, from the noble Lord, Lord Frost.

Amendment 21 is designed to prohibit ambulatory provisions and dynamic alignment with any foreign law, including that of the EU, which is specifically mentioned in the Bill. Amendment 59 would introduce a sunset clause for regulations under subsections (1) and (2) of Clause 1 for using foreign laws under subsection (7), so that they expire after four years. As explained throughout all the proceedings on this Bill, this is an open-ended measure; it gives sweeping powers to the Minister to make law by decree, including to import and mirror EU laws. That is a very different matter from updating and making safe our own laws. I would like to thank the Minister for his constant courtesy and willingness to discuss these issues, and for making it a pleasure to work on this Bill, though the subject is not to my liking.

The Government justify this approach by referring to the highly technical nature of the Bill and the sheer number of regulations. They seek to reassure us by saying that they will use these powers only when in the best interests of the country. There are good reasons for prohibiting dynamic alignment with any foreign laws, as well as for not allowing ambulatory provisions. I will speak about those first. Not only should we do so to temper the use of the open-ended power proposed for the Executive, which is the subject of constant discussions and of my noble friend Lord Hunt’s eloquent and persuasive amendment today; there are also good economic and trade reasons to prohibit dynamic alignment with foreign laws, including those of the EU, which the Bill specifically mentions.

I would like to mention a few of those reasons. UK law is well tested and brings certainty to businesses in developing goods for market and competing overseas. Here, the Minister is on very strong territory in saying that many of us would be happy with such laws having gone through such a process, without having to go through parliamentary process every time. Our processes operate under a legal system that is celebrated for its expertise, experience and independence. It follows well-understood process systems: evidence-based testing, some scientific assessment, and consultation with consumers and producers alike. So, by the time the goods get to market and are approved, everyone understands what is at stake. They know the laws and they have been consulted on them; they trust the science and the evidence base.

However, laws and regulations made elsewhere under a code-based system—I refer particularly to the EU’s—are often based on input from officials who are remote from the area of law they are making. With the EU, there is the danger that we are importing anticompetitive laws because, as has been pointed out—including by one of the current President’s economic advisers—EU laws are protectionist. The EU has a different economic system, which was designed by the French to lock in, for very good reasons, the German economic growth that was expected after the Second World War. I can understand the French’s reasoning. They have a centralised command-system economy, which may work for France. So there are very good reasons not to import, on a dynamic basis, laws which are protectionist.

In Committee, I gave examples of where these laws add cost, drawn up by EU economists. They would also mitigate—some economic law lawyers will corroborate this—against our free trade treaties with other trading partners, such as the CPTPP. These are reached on the basis of mutual agreement over standards, which are subject to conformity assessment and independent dispute arbitration and regulation. If we are going to mirror—and mirror dynamically—one set of laws, particularly those of the EU, we may be increasing costs and changing standards, and be in breach of our agreement with the CPTPP.

I turn briefly to why we want a sunset clause. There are very good reasons for having sunset clauses. They bring benefits to legislation, and they give Parliament the chance to consider its merits after a fixed period, which is especially needed for a law imported by statutory instrument. They involve the user in the regulatory plan: for instance, they know that the law in question is going to be introduced on condition that it will be assessed, and that involvement can institute behavioural changes. A sunset clause helps to safeguard democracy and bring legal certainty. It makes clear in legislation what is subject to expiry, when, and under what conditions. Professor Helen Xanthaki, at UCL, has pointed out that sunset clauses improve the quality of legislation and they

“serve as tools of clarity, precision and unambiguity; and as tools for efficacy”.

For these reasons, I ask the Minister to consider my amendments and the others in this group. They open up this measure, and require any Government to be more open, broadly, to foreign laws, ensuring that any laws we do import are subject to a sunset clause and that there will not be dynamic alignment, which goes very much against the transparency and clarity that are the hallmarks of good legislation.

[Lord Fox (LD)]

My Lords, I was going to give a long analysis of the economics that demonstrate how poorly manufacturing businesses have performed since the implementation of the trade and co-operation agreement, but that would have been a Second Reading speech, so I decided not to give it. Instead, I will speak to the amendments we have before us. I am grateful to the noble Lord, Lord Russell, for tabling his amendment and for allowing me to sign up to it.

Members on the Conservative Benches seem to find terror wherever they go. There is danger; there are plots, schemes and Trojan horses all over place. I would not like to live in their world; it must be very frightening. This Bill does what it says it does, and this amendment does what it says it does. It makes simple a process that has been put forward very carefully and in a measured way by the noble Lord, Lord Russell of Liverpool.

There are all sorts of things that the Liberal Democrats would like to do that are far more extreme than the noble Lord’s amendment, but we recognise the limitations of this legislation and the nature of what we are debating. That is why I have supported the noble Lord, Lord Russell. It is a simple and modest measure that has the practical benefit of helping out businesses.

To close, the noble Lord, Lord Jackson, said that it would not be sensible to close off options—quite. Closer alignment with EU regulations within the government negotiated red lines would yield a boost to the UK economy of between 1% and 2%. That sounds like an option to me.

[Lord Sharpe of Epsom (Con)]

My Lords, in view of the lateness of the hour and the closeness of the dinner break, I will also be very brief. I thank my noble friends Lord Frost, Lord Jackson and Lady Lawlor for bringing forward these important amendments. I was happy to sign some of them. They raise a fundamental concern about the potential alignment with the European Union, specifically through regulations that could be made under the Bill. As my noble friend Lord Frost put it, that is a significant constitutional matter and, I might add, it is one that has been highlighted by the Constitution Committee—again, we are back to the committees of your Lordships’ House.

The issue at hand is that, as currently drafted, the Bill contains provisions which would allow the United Kingdom’s regulatory framework to align with EU laws in—this is key—a dynamic or ambulatory manner. This means that, as time goes on, our regulations could automatically change in line with the evolving laws of the EU without any further scrutiny or review by the Houses of Parliament. This is deeply problematic. It would allow the UK to be influenced by regulatory frameworks and standards that are set externally and potentially lock us into a regulatory direction that we do not wish to follow. That is not the same as saying that we should not be able to adapt, adopt, negotiate, recognise or seek mutual recognition of the best regulations from whichever equivalent regime they come from.

These amendments address and achieve the aims set out so eloquently by my noble friends. If my noble friend is minded to test the opinion of the House later, we will support him.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it has been a very interesting debate. Although more general issues to do with Brexit have emerged, it has been very helpful to focus minds on what this Bill will actually do rather than the fears some noble Lords have expressed. In essence, all the Bill does is to allow the United Kingdom to choose to recognise or to end recognition of relevant EU product requirements where it is in the interests of both consumers and businesses so to do. I agree with the noble Lord, Lord Russell. He was certainly right to acknowledge the contribution of chambers of commerce. I understand the point he made about business requiring transparency, predictability and stability, and I would add a flexible approach to alignment within that context.

Equally, the noble Lord, Lord Jackson, is right that the ultimate interest is the public interest—the interest of consumers. That goes to the heart of what we are seeking to do. Essentially, the power in Clause 1(2) will allow us to update UK regulations which address the environmental impact of products where a similar provision exists in EU law. We know the EU is updating its product safety regulations. We are seeing an increase in the changes being made, including provisions to mitigate products’ environmental impact. This power will allow us to provide regulatory certainty and stability for industry.

Let me make it clear that this is not designed to regulate the wider environment but to let us choose whether to make similar product rules where we believe it is in the interests of the country so to do. Clause 2(7) makes clear that we can provide that requirements in our own law can be satisfied by meeting specified EU requirements. We believe that this means we can act in the best interest of our businesses and consumers. Let me make it clear that these clauses in no way oblige the UK to recognise or mirror EU provisions. Let me reassure the House that we have been clear that such decisions will be taken only on a case-by-case basis and will be subject to appropriate parliamentary scrutiny.

19:30

I turn to Amendments 6 and 11. Together, they propose broadening the powers in Clause 1(2) to update UK regulations to mirror a wider set of international jurisdictions. Let me explain: the reason for explicitly referencing the EU but not other jurisdictions is simply that the bulk of UK product regulation is currently derived from EU law. It is by listening to the voices of consumer organisations and businesses that we have concluded that this is the most sensible way to go forward.

I say again that we will have to lay a statutory instrument if we want to update references to EU law within regulations made under this Bill, so there will be consultation—the normal consultation that you have to go through in relation to regulations; there will be transparency; and, clearly, judging by the interest noble Lords here take in these proceedings, there will be debates in Parliament.

Let me make it clear that I take the point on international standards; of course they are good for business. They standardise the conditions of market access across many countries throughout the world and reduce technical barriers to trade. I agree with the noble Lord, Lord Jackson, on the importance of this and assure him that, by taking this Bill through, we are not closing the options.

I take the point of the noble Lord, Lord Lansley, about divergence, but we will consider this on a case-by-case basis, with the Bill giving us powers to be adaptable. I take his point about speed and flexibility—that, surely is what we are trying to do. As the noble Lord, Lord Deben, suggested, we are trying to make the best of our current position in the real world, where businesses have to operate.

I refer noble Lords to The UK Government Public Policy Interest in Standardisation 2025, which is very important in this sense. Published only a few weeks ago, it underlines how key policy ambitions can be supported by UK global leadership in developing and promoting international standards. The noble Lord mentioned the British Standards Institution, the UK’s national standards body. It plays a crucial role in shaping global best practice, and I pay tribute to it. We believe that it supports the UK’s flexible and pro-competitive regulatory model.

This Bill, under Clause 2(6), will continue to allow the reference of international standards for products in scope. The specific mention of the EU is not some sinister attempt by the Government to align themselves on all matters EU in an underhand way. It is simply the practicality that so much of our current regulatory law in relation to products stems from the EU. We will take a pragmatic approach.

Regarding Amendments 13 and 32, we have published a code of conduct, drafted with valuable input from noble Lords. It sets out the various guard-rails that will be in place when the powers in the Bill are exercised, including an impact assessment. All secondary legislation made under the Bill will be subject to the statutory and non-statutory assessments set out in the code of conduct.

I turn to Amendment 59. The Bill does not allow dynamic alignment. As a Government, we do consider the inclusion of sunset clauses where appropriate, but I say in response to the argument of the noble Lord, Lord Russell, about stability and certainty for business, that a sunset clause would not be beneficial to businesses because it would immediately introduce absolute uncertainty about the future, and we want businesses to invest in the long term. They need stability, and I do not think a sunset clause would be helpful at all.

On Amendment 54, we are committed to appropriate parliamentary scrutiny, which is why we have tabled government Amendment 55, which increases the number of provisions that are subject to the affirmative resolution procedure. On Amendment 24, I believe that we are already taking a transparent approach to regulation. Parliament is able to scrutinise our proposals when we table statutory instruments.

On enforcement, let me be clear that only UK authorities can take enforcement action under the Bill; similarly, only the UK courts will interpret regulations made under the Bill. Regulations under the Bill will constitute UK law—not foreign law, as has been suggested —and only our courts can determine any issues arising out of the regulations. They would be our regulations, passed by our sovereign Parliament, not by some entity that is perceived to be broad and damaging in the way that some noble Lords have suggested.

I hope I have reassured noble Lords. This is not a sinister approach to simply completely align ourselves with the EU on all matters to do with these issues. It is pragmatic, and business wants it and consumers want it. I hope the noble Lord will not press his amendment.

[Lord Frost (Con)]

My Lords, I have listened with care and interest to the eloquent words of the Minister, but I am sorry to say that I have not found them particularly reassuring. I suspect that that will not surprise him, and I will not dwell on the reasons now.

There is perhaps a contradiction between his attempt to say that all this Bill does is give the power to align with EU rules—so where is the problem with that?—and his then going on to say that everybody wants to align with EU rules: businesses want it, consumers want it, allegedly, and we have a Government who want it. I therefore think that this power will in fact be used rather extensively, however reassuring the Minister seeks to be now.

On a point of detail, the Minister said—and it was said before in Committee—that the Bill does not allow dynamic alignment. I simply cannot see what that statement is based on. The Bill seems very capable of allowing dynamic alignment, and I cannot see any provision which would preclude it. I will just leave that hanging.

I will make two brief final points. I expect to test the opinion of the House on some of these amendments, one of which is Amendment 11, and so I want to respond to the point made by my noble friend Lord Lansley. I do not believe that there should be a specific UK-only rule for every manufactured good—that does not make sense. We have an opportunity to look at rules from around the world and align with them, and indeed we do just that in pharma regulation. The MHRA has a new explicit provision, the international recognition procedure, which allows accelerated recognition of products that have been approved in other jurisdictions, not just the EU but the US, Japan, Australia, Canada, Switzerland, Singapore and so on. If it can be done there, I cannot see any reason, in principle, why it could not be done more widely.

In response to the noble Lord, Lord Fox, I do not think we live in a world of plots—although perhaps one person’s plot is another person’s vigilance. Certainly, we have learned over the years just how many people are not particularly confident or comfortable with this country’s self-government and want to see it undermined. We are right to be careful and to look at the detail. On the basis of what I have heard so far, I am not particularly reassured. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendments 6 and 7 not moved.

19:39

Consideration on Report adjourned.