Product Regulation and Metrology Bill [HL]

Debate between Baroness Fookes and Lord Anderson of Ipswich

Wednesday 20th November 2024 Grand Committee

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

If this amendment is agreed, I shall not be able to call Amendments 2 or 3 by reason of pre-emption.

[Lord Anderson of Ipswich (CB)]

My Lords, I support Amendment 133, to which the noble Lord, Lord Sharpe, has just spoken and to which I put my name. This evening’s inaugural Lord Judge memorial lecture in legal history will address the early modern practice of legislating by proclamation without Parliament. According to the advance publicity for the lecture, Professor Sir John Baker will say that this practice

“may be compared with those resulting from our ‘elective dictatorship’, Parliament having become an instrument whereby a modern Government can exercise more absolute power than that formerly attributed to the King’s prerogative”—

a point often made by the noble and learned Lord, Lord Judge, himself. The truth of those words is demonstrated by this Bill, about which the Constitution Committee remarked—with our customary understatement —that

“several powers in the Bill are widely drawn and could facilitate the making of law that goes beyond the updating of existing rules to involve the making of new policy”.

When the EU makes new policy, as it did with the general product safety regulation, which will come into force next month, the process is properly and appropriately democratic. A road map and a public consultation in 2020 were followed by a Commission proposal in 2021, the usual substantive reports by parliamentary committees, a provisional agreement between the Council and the Parliament, approval by COREPER and IMCO and, eventually, adoption of the GPSR by both Parliament and Council in 2023. The process was more extensive, but so is the end product. The GPSR contains a detailed list of factors to be taken into account when assessing the safety of products. It sets out the obligations of manufacturers, authorised representatives, importers, distributors and—a difficult one—online marketplaces. It outlines a traceability system and makes provision for market surveillance, reporting and recalls. Detailed powers, of course, are delegated to the Commission, but the guiding principles were decided on by the legislature at an appropriate level of detail for a legislature.

My point is not that we should or should not follow the substance of what the EU has done. It is that where such wide-ranging matters of policy are engaged, it is not appropriate for Parliament to abdicate its power to the Government as entirely as this Bill proposes to do. Matters that in Europe are decided upon by the Council and the Parliament are here reserved to unamendable and, in practice, unblockable statutory instruments under this Government as they were under the last.

The noble Lord, Lord Sharpe, like the Constitution Committee, quoted the Attorney-General’s recent Bingham Lecture, in which he criticised excessive reliance on skeleton legislation and expressed the view that,

“the new Government offers an opportunity for a reset”.

I believe that the Attorney-General has talked the talk with complete sincerity about this issue, but his words do not sit happily with this Bill. The practical question is how are we going to walk the walk? A comprehensive solution would be to adopt the Hansard Society’s proposals for a new system of delegated legislation, a concordat agreed between Parliament and government to reset the boundary between primary and delegated legislation, and a new Act of Parliament to ensure that Parliament can calibrate the level of scrutiny to the content of a statutory instrument.

Limiting ourselves to this Bill, two other solutions are possible, short of the wholesale omission of clauses that was recommended by both the Delegated Powers Committee and the Constitution Committee. The first would be to copy the amendments to what is now Section 14 of the retained EU law Act 2023, tabled in the names of the noble Lords, Lord McLaughlin and Lord Hamilton of Epsom, the noble and learned Lord, Lord Hope, and myself. These would have provided for a sifting committee of both Houses, or of the House of Commons, to identify proposed regulations that are particularly deserving of parliamentary attention, and for regulations falling into that category to be amendable by agreement of both Houses under a power modelled on Section 21 of the Civil Contingencies Act 2004. Those amendments were passed by large majorities in your Lordships’ House in May and June last year, with the support of Her Majesty’s Opposition, and drew support from all parties in the Commons before eventually falling at ping-pong.

The second solution, proposed by the noble Lord, Lord Fox, in his Amendment 133, is, by comparison, gentle indeed, and if the noble Lord were a fast bowler, he might describe it as a loosener. No power of amendment is claimed for Parliament. A joint sifting committee would simply have the authority to refer a statutory instrument to a process requiring parliamentary approval if the regulations made a substantive change to the law, or if they had not been consulted upon. A substitute for European levels of democratic engagement I am afraid it is not but a pragmatic improvement to the Bill it is, and I look forward to seeing whether the Minister sees merit in it or whether, as I fear, this is an issue to which we will have to return with renewed energy on Report.

Environment Bill

Debate between Baroness Fookes and Lord Anderson of Ipswich

Report stage
Wednesday 8th September 2021 Lords Chamber

[Lord Anderson of Ipswich (CB)]

I am grateful to all noble Lords who have contributed to this short if somewhat one-sided debate and, of course, to the Minister for his characteristically courteous and speedily delivered response.

In view of the time, I do not seek to summarise the excellent points made in support of these amendments. I simply pick up one point made by the Minister when he spoke of the need for certainty, which, as our Amendment 27 accepts, is an important factor in the court’s discretion. The need for certain outcomes needs to be balanced against the need for lawful outcomes, which is I think the point that the noble Lord, Lord Duncan, was making; that balance can be performed by the courts only in the individual case and not by preordaining the result.

Having listen carefully to the Minister, I see a stark contrast between the wish to portray these clauses as an effective series of remedies and the reality that they fall well short. I regret that the Minister has not been able to give the requested assurances and, for that reason, I propose to test the opinion of the House on Amendment 27.

[The Deputy Speaker (Baroness Fookes) (Con)]

We are considering Amendment 26.

[Lord Anderson of Ipswich (CB)]

I am so sorry. I meant to move the amendment but put only Amendment 27 to the vote. I must apologise that I did not rehearse myself in the proper language.

Amendment 26 withdrawn.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Fookes and Lord Anderson of Ipswich

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have received two requests to speak after the Minister, from the noble Lord, Lord Anderson of Ipswich, who I will call first, and the noble Lord, Lord Kennedy of Southwark. I call the noble Lord, Lord Anderson.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I am grateful to the Minister for his courteous and measured response, but can I press him for clarity on the Government’s position on my Amendments 17 and 72, so that I can work out where to go next?

First of all, as I understood it, the Minister asserted the importance of making the new Section 29B consistent with the existing Section 29 of RIPA, which he said did not require belief to be reasonable. But he then relied on section 3.10 of the code of practice, which in contrast to sections 6.1 and 6.3, which I cited earlier, does, as the Minister put it, imply a requirement of reasonableness. The Minister first pleads for consistency and then identifies an inconsistency between part of the code and the Bill, without undertaking to amend either. I may, of course, be missing something. Could the Minister please explain whether the Government support a requirement of reasonableness, as the Solicitor-General appeared to do in the Commons, in which case will he undertake to amend both the Bill and section 6.1 and 6.3 of the code of practice to bring them into line with section 3.10 of the code of practice, to which he referred? Or are the Government against a requirement of reasonableness, in which case could he explain why?