Product Regulation and Metrology Bill [HL]

Lord Hunt of Wirral Excerpts

Report stage
Wednesday 5th March 2025 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, I rise to support my noble friend Lord Frost, and I will speak very briefly. I am concerned about the Government’s likely resistance to this amendment being moved, because this goes to the very heart of what the Bill is about: proper parliamentary scrutiny and oversight.

We have had many debates about the Delegated Legislation Committee and its significant reservations about the enabling powers and Henry VIII powers which will potentially be discharged by Ministers. The kernel of the debate is: why should we of necessity default to just one regulatory regime? People like the noble Lord, Lord Fox, will say that it is our closest economic partner and, of course, it is absolutely logical.

I hesitate, because I know I will be accused of relitigating the Brexit battles, from which I have many scars on my back. However, the fact of the matter, is that, rightly or wrongly, we no longer have direct input into the design and execution of those regulations. So to put in primary legislation, with the background of the Delegated Legislation Committee expressing those significant reservations, a sub-clause which defaults to the position that any regulation, because it comes from the EU, is of necessity the right regulation for our country—in the context, as we have previously debated in Committee and on Report, of an expanding global economy where we will be trading with many different countries and different regulatory regimes outside the European Union—seems to me to be a mistake. On that basis, it is eminently reasonable and sensible for Parliament to have the opportunity to look in detail at these regulations via the affirmative procedure.

For that reason—I know the hour is late and there is other pressing business in the House—I ask Ministers to at least look at supporting this very important amendment on Third Reading. On that basis, I am delighted to support the amendment of my noble friend Lord Frost.

[Lord Hunt of Wirral (Con)]

My Lords, to echo what my noble friend Lord Lansley has just said, we are reflecting at the moment on how this country is governed and the extent to which the Executive can be held to account.

In many ways we take pride in our committees. I know from what he has said in the past about government legislation that the noble Lord, Lord Hunt of Kings Heath, has many times criticised what we describe as skeleton Bills. In effect, the Government are saying, “Please allow us to do whatever we eventually decide we would like to do, but give us that power now and we will then do it by secondary legislation”. Speaking as the immediate past Chair of the Secondary Legislation Scrutiny Committee, I always worked very closely with my colleagues in the Delegated Powers and Regulatory Reform Committee. Although my noble friend Lord Lansley said a few moments ago that the Government had introduced a number of amendments, they came back before the Delegated Powers and Regulatory Reform Committee, which said, “That’s not enough”. So, in a way, we are now deciding whether or not the Government are right to ignore the unanimous report of the Delegated Powers and Regulatory Reform Committee.

I turn to Amendments 48, 57 and 58 standing in the name of my noble friend Lord Sharpe. I commend my noble friend Lady Lawlor, and my noble friends Lord Frost, Lord Jackson of Peterborough and Lord Lansley, for all that they have said. But, to summarise, this is our last real opportunity to deal with what is in effect a skeleton Bill that allows an unacceptable transfer of power from an elected legislature to the Executive.

We welcome the amendments the Government have put forward, but let me quote from paragraph 8 of the unanimous report of 20 February from the Delegated Powers and Regulatory Reform Committee, from which I have quoted before. Having considered all the issues, it said,

“these are limited changes that do not address the fundamental concern we have about the skeletal nature of this Bill”.

There is of course provision for consultation, which is warmly to be welcomed, but the committee said,

“consultation is not a substitute for Parliamentary scrutiny”.

Surely, we as a House must agree with that.

It is not enough simply to engage stakeholders behind closed doors while sidelining proper legislative oversight. The Bill in its current form creates a dangerous precedent. This Parliament is asked to cede control over critical regulatory decisions in favour of unchecked Executive power. That is surely not how this democracy should function. If the Government are serious about ensuring transparency, accountability and proper legislative oversight, they must surely go beyond mere consultation and commit to meaningful parliamentary scrutiny at every stage of the regulatory process.

In a moment we will hear from the noble Lord, Lord Leong. Will he allow me to quote him? In Committee on 20 November, he said this:

“Some regulations will relate to very minor technical changes, so it really would be taking up too much parliamentary time for that, whereas other regulations may need a full scrutiny, and we will have avenues for that”.—[Official Report, 20/11/24; col. 39.]


What I ask is—and I hope the Minister will reply in a moment—what are those avenues exactly? The Government are yet to provide any clarity at all on how they will distinguish between so-called minor technical changes and more significant regulatory shifts. They have yet to explain why the negative procedure will apply to all subsequent provisions. If some regulations will require full scrutiny, as the Minister acknowledged, why do his Government, in this Bill, predetermine that every future provision beyond the first use of the power will require the negative procedure?

The Government cannot state for a fact that all future provisions will be technical. Markets change, technology advances and legal interpretations, as all lawyers in this House know only too well, will shift. This is precisely why proper parliamentary scrutiny must remain in place for all product and metrology regulations, as recommended by a committee of this House. If the Government concede that some regulations may need full scrutiny then it follows that the affirmative procedure should apply in all cases. Anything less simply hands Ministers a blank cheque to determine the level of scrutiny after the fact, with Parliament left powerless to insist on proper oversight.

I said that I would refer to the noble Lord, Lord Hunt of Kings Heath, because I remember what he said. I looked it up when I heard he was going to be here. He said about the Medicines and Medical Devices Bill, admittedly in 2021:

“We are increasingly seeing the use of skeleton Bills and Henry VIII clauses. We really must come to a point where we say to the Government”—


I would add any subsequent Governments—

“that we will not put up with this any longer”.—[Official Report, 12/1/21; col. 657.]

As he reflects on his words, I hope he will offer some wise advice to his good colleague.

I urge the Government to reconsider their position and accept the DPRRC’s recommendation that powers should be constrained so that product regulations and metrology regulations are, in all cases, subject to affirmative procedure scrutiny. Surely that is the very least that is required to ensure proper democratic accountability.

[Lord Leong (Lab)]

My Lords, I thank all noble Lords who have spoken. I will speak to the government amendment and respond to the debate. I thank all noble Lords who have contributed to the development of the government amendment for raising in Committee the important matter of ensuring that there is appropriate parliamentary scrutiny of regulations made under the Bill.

I will touch first on the affirmative procedure. In the light of concerns from Peers, the DPRRC and the House of Lords Constitution Committee, Amendment 55 increases the number of provisions that will be subject to the affirmative procedure to include certain types of new or novel provisions. These provisions are product regulations made in relation to online marketplaces and where requirements are imposed for the first time on any new category of actors in the market. The amendment will ensure that appropriate parliamentary scrutiny is applied to new regulatory approaches for online marketplaces, and for regulations that place duties and product requirements on new supply chain actors for the first time, while maintaining the flexibility to make timely, uncontentious technical updates to existing regulations.

However, the Government accept that making regulations for new or novel matters makes the higher level of parliamentary scrutiny more appropriate. Therefore, when product regulations made under the Bill seek to impose a requirement on a new type of supply chain actor that is not otherwise listed in Clause 2(3), the affirmative procedure will apply the first time such requirements are laid.

I turn to Amendments 48, 56, 57 and 58. I thank all noble Lords for their concerns regarding the affirmative procedure. On Amendment 48, we discussed the importance of consultation last week, particularly in relation to the Government’s statutory consultation amendment. I do not really want to repeat these arguments, apart from saying that regulations brought forward under this Bill will have been informed by consultation with key stakeholders. Specifically, on Amendment 43A, our recently published code of conduct sets out that regulations under this Bill will be subject to assessment and engagement with an appropriate range of stakeholders, including scientific evidence where appropriate.

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Moved by

[Lord Hunt of Wirral]

48: Clause 9, page 9, line 33, at end insert—
“(5) Regulations made under this section that amend or replace primary legislation must be subject to the affirmative resolution procedure.(6) Before making any regulations under this section, the Secretary of State must—(a) conduct a consultation for a period of no less than six weeks;(b) publish a statement outlining the purpose and necessity of the proposed regulations, the expected impact on businesses, consumers, and enforcement bodies, and the outcome of the consultation.(7) Within six months of any regulations made under this section which amend or repeal primary legislation, the Secretary of State must publish a review of the effect of that regulation and lay it before Parliament.”Member’s explanatory statement
This amendment requires that any regulations made under Clause 9 that amend or replace primary legislation be subject to the affirmative resolution procedure.

[Lord Hunt of Wirral (Con)]

My Lords, I do not think that there is any need to detain the House very much longer, except to say one thing. The noble Lord, Lord Hunt of Kings Heath, was shouting from a sedentary position when I quoted him earlier. I just remind him that he said the only answer is the super-affirmative procedure. Does he remember that? That is what he advocated. All I am asking for this House to agree is that the affirmative procedure is the right approach. I do so, finally, by quoting a committee that I thought we all respected. The Delegated Powers Committee has looked at all the government amendments and, in a unanimous report, agreed by all the parties on the committee, concluded this:

“We would add 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”.


That is why I beg to move Amendment 48 and wish to test the opinion of the House.

Product Regulation and Metrology Bill [HL]

Lord Hunt of Wirral Excerpts

Report stage
Wednesday 26th February 2025 Lords Chamber

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.

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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.

Product Regulation and Metrology Bill [HL]

Lord Hunt of Wirral Excerpts

Report stage
Wednesday 26th February 2025 Lords Chamber

[Lord Leong (Lab)]

My Lords, I will try to be brief on this set of government amendments, as outlined in the Marshalled List. They are largely intended to ensure absolute clarity and that the Bill covers a number of matters raised by noble Lords in Committee. Amendments 14 and 17 make clear that the Bill’s powers are able to set requirements on how products are installed in wider systems and on the people who carry out that installation. Many products do not operate in isolation and their safety can be significantly affected by how they are installed in the wider systems. As I explained in Committee, the Bill already enables requirements to be set on the installation of products. However, I accept that absolute clarity on this matter in the Bill is helpful.

Amendment 23 covers a similar matter. The Bill covers tangible products and the risks they present. Software is now a fundamental component of many physical products and can significantly affect their risk profile. Amendment 23 makes clear that software as a component of the physical product is included.

Amendments 50 and 51 relate to the definition of online marketplaces. These amendments reflect the points raised by noble Lords in Committee and aim to ensure that marketplaces that are part of a wider platform —such as Facebook Marketplace as part of Facebook—are captured. Our use of a broad and clear definition of online marketplaces in the Bill enables new requirements to be introduced in a flexible and proportionate way via secondary legislation by using the powers provided in the Bill—for instance, by tailoring specific requirements to particular online marketplace activities or business models.

On Amendment 67, which addresses aviation, in Committee my noble friend Lord Liddle raised the question of wider products used in aviation. The Department for Transport oversees a comprehensive body of legislation that extends beyond the finished aircraft to the whole system of components that make it up. The Government have no plans to create any kind of parallel regulatory framework. This amendment therefore clarifies that, alongside the exclusion of aircraft, the Bill does not apply to component products and parts in so far as they are used or designed for use in aircraft. As an exception to this, the amendment would allow for the Bill’s powers to be used in relation to unmanned aircraft that are toys, or for radio equipment used to operate or control unmanned aircraft.

It is useful to clarify that aviation safety products are exempted from the Bill, but we are aware of questions from industry about several other areas. We will always work closely with all sectors before bringing regulations, but it is not our intention to use the powers under the Bill to regulate where there are existing comprehensive product regulatory regimes—for example, in relation to transportable pressure equipment and ships and their equipment.

I hope I have been able to provide assurance to noble Lords and I beg to move.

[Lord Hunt of Wirral (Con)]

My Lords, while the Minister recovers his breath, we will all carefully reflect on every word that he has just said but, given the speed with which he delivered that speech, I hope he will forgive me if I do not respond in detail. I shall just deal with what we believe is the overly broad current definition of an “online marketplace”, as the scope could be inadvertent. I speak to Amendments 49 and 53 on behalf of my noble friend.

The current definition of an online marketplace would inadvertently capture a number of online services not thought of as marketplaces, such as search engines, online advertisements and price comparison websites. Potentially, even further removed services, such as app stores, could be captured by this proposed definition. This risks placing disproportionate requirements on services whose functionality is not what the Bill is intended to regulate and will require careful drafting of the necessary secondary legislation to avoid confusion and potential challenges. That is not guaranteed, however, due to the extensive delegation of powers and limited oversight provided by the Bill.

This broad scope will create unnecessary regulatory burdens on businesses that were never intended to be covered by the legislation. It could also discourage innovation and investment in digital services if companies fear that they will be subject to complex and costly compliance requirements. Our amended definition would therefore capture services that are not meant to be dealt with under the Bill but is more appropriate in its scope when it comes to goods and products, giving greater context and identifying the subjects of the sellers being provided, namely consumers and third-party sellers. I hope that gives an indication to the Minister of why we feel these amendments are required.

[Lord Fox (LD)]

My Lords, I thank the Minister and the noble Lord, Lord Hunt, for their comments. The noble Lord, Lord Hunt, in the amendments that he is putting forward, really puts his finger on the problem and the challenge of defining an online marketplace. What was not an online marketplace yesterday can be one tomorrow. You can be looking at what starts off as a chat site where people exchange photographs, which suddenly becomes somewhere you can sell things. The problem that we therefore have, in being very specific in the definition, is that we create the loopholes for other people to use.

I am sympathetic to the problem that the noble Lord sets out, which is the inadvertent inclusion of other things, but the more we try to nail it down with a framework, the less likely we are to legislate for what is coming round the corner. I am very happy to have that discussion with the noble Lord. Perhaps there is a way of having something that can flexibly move, but we have all seen the changing world of online selling—it is absolutely changing every day. I am sympathetic, but sceptical that the amendment would do what we need it to do.

I co-signed government Amendments 23 and 51, which took on board issues that I brought forward in Committee. I thank the Minister for his reaction to that. Overall, with the exception of that key issue—marketplaces are where this is happening and we need a process whereby liability can be properly attributed, but I am convinced that primary legislation will not be the place to do that because of the changing world that we live in—and with those provisos, I think we need a way of moving forward that gives us that flexibility.

Operation Conifer

Lord Hunt of Wirral Excerpts

Tuesday 8th October 2024 Lords Chamber

[Baroness Brinton (LD)]

My Lords—

[Lord Hunt of Wirral (Con)]

My Lords—

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, both noble Lords can get in; we have plenty of time. Shall we take the noble Baroness’s question first?

[Lord Hanson of Flint (Lab)]

If I may, I will look into the issues that the noble Baroness has raised and write to her with the detail very shortly in response.

[Lord Hunt of Wirral (Con)]

My Lords, in declaring my interest as the immediate past chair of the Sir Edward Heath Charitable Foundation, I warmly welcome the Minister’s commitment to this House that he has an open mind, which I believe has tremendous support. But it is not just what is in the police files; there are a number of other matters that require scrutiny. The first is the fact that the former chief constable of Wiltshire, Mike Veale, has now been totally discredited. There is also the fact of the manner in which the police and crime commissioner was cut out of the whole investigation by the appointment of a so-called scrutiny committee, and then there is the fact that so many of the police logs at the entrance to Sir Edward Heath’s home, Arundells, were wantonly destroyed. All these matters require close investigation.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord, Lord Hunt, for his comments. It draws me back to the point I put to the noble Lord, Lord Lexden, on the suggestion of the Opposition Front Bench. The chief constable of Wiltshire rightly has the investigatory powers to investigate any matters that are of concern, including those raised by the noble Lord in relation to her police force, as indeed does the police and crime commissioner in response to this, who is a different police and crime commissioner to the one who was operational at the time. I would suggest that, whatever my reflections on these matters are—I will make those reflections—it would be helpful for the noble Lord, Lord Lexden, to raise those issues again with the current chief constable and the current police and crime commissioner.