Product Regulation and Metrology Bill [HL]

Lord Jackson of Peterborough Excerpts

Committee stage
Wednesday 11th December 2024 Grand Committee

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

[Lord Jackson of Peterborough (Con)]

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

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

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

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

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

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

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

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


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

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

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

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

[Lord Leong (Lab)]

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Leong (Lab)]

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

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

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

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

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

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

[Lord Jackson of Peterborough (Con)]

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

[Lord Leong (Lab)]

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

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

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

Illegal Migrant Returns Agreements

Lord Jackson of Peterborough Excerpts

Tuesday 3rd December 2024 Lords Chamber

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord for his question. It is really important that we have voluntary returns where people have no right of abode in the United Kingdom. Of the 9,400 returns since we have had custody of this post on 5 July 2024, 2,590 were enforced returns but the other 7,000-ish were voluntary returns. We need to encourage that, because if people have been through a range of mechanisms to ensure they have no right of abode in the United Kingdom, then, quite frankly, they have no right of abode.

[Lord Jackson of Peterborough (Con)]

My Lords, on 26 November I tabled a Written Question to the Minister asking why the Government do not routinely collect data on foreign national offenders who have been in prison for than more 12 months at the end of their sentence, whether they are deported and, if not, why not. Unfortunately, he did not provide me with an adequate Written Answer. Is he able to say now whether the Government intend to collect that data and, if not, why not?

[Lord Hanson of Flint (Lab)]

The noble Lord will be aware that the Government intend to look at a whole range of data. One of the reasons we have deported more than 2,500 people forcibly, including 1,500-plus people who are foreign national offenders, is that we recognise that when people have completed their sentence, there is the right to remove them if the Government wish to remove them. We get notification when foreign national offenders complete their sentences, and we will certainly examine that issue. Perhaps the noble Lord could ask his own Front Bench why there were 100,000 such foreign offences last year alone.

Asylum Seekers: Wethersfield

Lord Jackson of Peterborough Excerpts

Thursday 28th November 2024 Lords Chamber

[Lord Hanson of Flint (Lab)]

The noble Lord makes an extremely valid point: one that is on the Government’s agenda. He will know that, since July 5, the Prime Minister has made considerable efforts, meeting with European partners in particular to look at the flow across the Mediterranean and to take action on some of the long-term issues, which are linked war, climate change, hunger and poverty, as well as a small proportion who are involved in criminal activity and/or irregular migration for economic purposes. A number of the drivers can be solved by international action and it is on this Government’s agenda to do so.

[Lord Jackson of Peterborough (Con)]

My Lords, two weeks ago, 146 asylum seekers were moved into the Dragonfly Hotel in the west of Peterborough, without the knowledge of the Labour-led Peterborough City Council or the two Labour MPs for Peterborough and North West Cambridgeshire. Irrespective of whether one agrees with the policy, can the Minister please take on board the necessity to improve protocols around communication, because the movement of asylum seekers at that level has an impact on wider public services? To impose that situation on an urban area such as Peterborough, which already has issues, is not fair or appropriate and, frankly, the Home Office needs to do better.

[Lord Hanson of Flint (Lab)]

I say to the noble Lord that it is right and proper that consultation takes place. It should take place and I will ensure I take that message back to the Home Office.

Product Regulation and Metrology Bill [HL]

Lord Jackson of Peterborough Excerpts

Committee stage
Monday 25th November 2024 Grand Committee

These amendments aim to reflect and build upon the definition of “online interface” that is already set down in the Digital Markets, Competition and Consumers Act. What we do not want to see is an emerging online marketplace, such as TikTok Shop, avoiding new regulations by arguing that it is simply acting as a third-party link to other services and not providing that service itself. I look forward to the Minister’s response to these and to Amendments 48 and 71.

[Lord Jackson of Peterborough (Con)]

My Lords, I support the probing Amendment 45 from the noble Baroness, Lady Brinton, as she referenced my earlier Amendment 33. She expressed in a more erudite and articulate way what I should have said last week on Amendment 33. However, I think we have both alighted on the fundamental problem in that subsection, which is that despite its opacity and the fact that it is drawn very widely, it does not achieve what we all hope it will achieve—in other words, to point out the obligations on buyers and sellers. The noble Baroness quite rightly pointed out the lacuna inherent in that.

My very brief question to the Minister is whether it might be possible—this is not a criticism but merely an observation in respect of the drafting—for this subsection to be redrafted before Report so that that confusion that we see now, which could potentially give rise to substantial amounts of litigation, is ameliorated and we could have tighter wording to address some of the issues that the noble Baroness and I have pointed out.

[Lord Foster of Bath (LD)]

My Lords, so many of our deliberations in our various sittings have been seeking to put some flesh on to the skeleton nature of the Bill before us; I have done that on a number of occasions, as have many other noble Lords. For instance, in our last-but-one grouping, I proposed that we seek to use the Bill to address concerns about data scraping for the development of new AI products. I gently point out to the Minister that he told me that this would be covered by the Data (Use and Access) Bill. I have double-checked Hansard and can tell him that at the end of the debate on that Bill, when this was raised with the noble Baroness, Lady Jones, the Minister responsible, she replied that this issue was not covered by that Bill and that DCMS and DSIT Ministers are jointly working and looking forward to bringing forward proposals in due course. She ended by saying:

“We will announce more details in due course”.—[Official Report, 19/11/24; col. 197.]


So it is not covered, and this is a good opportunity to do it.

As the noble Baroness, Lady Crawley, and other noble Lords who have spoken have pointed out, this is an area, in terms of online marketplaces, where there is an urgent need to put flesh on the bones and to have a clearer understanding of the definition of an online marketplace and of what regulations should apply to them. I have frequently raised in your Lordships’ House my concerns that consumers have far less protection from faulty products bought online than they have when they purchase them on the high street.

It simply cannot be right, as we have seen from all the evidence that we have all received from various organisations, such as the British Toy & Hobby Association, Which? and Electrical Safety First, as well as others, that so many unsafe products are available for sale online. In an earlier contribution, the noble Baroness referred to the fact that 86% of toys sold online do not comply with UK safety requirements. I have referred to the sad fact that many electrical appliances purchased online do not meet appropriate safety requirements and, sadly, have led to loss of life and damage of a great deal of property.

It certainly cannot be right that products that have been withdrawn by a manufacturer, often because of concerns about safety, can still be purchased online, and it certainly cannot be right that consumers have not only less protection but fewer opportunities for redress when purchasing products online compared to what they have when purchasing them on the high street. I support all the amendments addressing those concerns because collectively they would improve consumer protection by ensuring accountability by imposing a clear and enforceable duty on online marketplaces to ensure the safety of products sold on their platforms, especially those coming from third-party sellers overseas. Incidentally, I shall later propose an amendment that would strengthen the extraterritoriality covered by the Bill.

The amendments that we have before us further protect consumers by removing anonymity so that third-party sellers can no longer hide behind platforms to evade product safety regulations and by making it easier for them to seek any form of redress. It establishes direct liability on platforms for unsafe products sold throughout them, which leads to the opportunity for much greater fairness in terms of redress because, at the moment, consumers dealing with faulty high street products expect and receive a full refund or replacement, but when problems arise with online purchases, particularly from overseas sellers, consumers often seem to have no recourse. Amendments in this group deal with that issue. Finally, the amendments would clarify something that is lacking in the Bill at the moment: the issue of accountability. Who is actually accountable in the multinational marketplace structures that we have to deal with now?

Given that these platforms are evolving at an incredibly rapid rate, with people almost daily finding new ways to market their products, we need amendments that ensure that there is no room for manoeuvre to get around the regulations by online marketplaces now and, crucially, in future. We need a clearer definition of what we mean and what is covered by an online marketplace, and I welcome and support the amendments in the group that do just that.

I add one additional point. In Clause 10, the definition of an online marketplace includes,

“any other platform by means of which information is made available over the internet”.

Clause 10 does not define “the internet”, despite quite a point being made of doing so in other legislation. Indeed, other pieces of legislation prefer the phrase “internet service”, not just “internet”. To avoid further ambiguity, I have proposed in Amendments 117 and 122 that the Bill uses “internet service” instead of “internet” and that the definition of “internet service” is exactly as set out in the Online Safety Act 2023.

Given, for instance, that the Tobacco and Vapes Bill has this definition simply copied and pasted into it, I see no reason why this Bill could not do the same. Failing to do so would unhelpfully leave the definition to common law. We should be aiming to ensure that levels of protection and redress are as powerful online as they are on the high street. Amendments in this group will achieve this and will also ensure that we have a future-proofed definition of “online marketplace” and that clear duties and responsibility towards consumer protection are imposed on all relevant bodies. On these Benches, we certainly support them.

Police Accountability

Lord Jackson of Peterborough Excerpts

Monday 28th October 2024 Lords Chamber

[Lord Hanson of Flint (Lab)]

The noble Lord is absolutely right that policing is undertaken by consent. To have that consent, policing needs both to reflect and to understand the community. I have no problem with police officers stopping and searching individuals—that is part of the prevention of criminal activity—but they need to do so in a way that is conducive to consent and to community relations, while having full accountability and explaining why and how those activities have taken place. The noble Lord’s point about the disregard between members of the black community and the police is a source of deep sadness. Many of the people who were involved in, and have been killed by, some of this concerning behaviour were innocent people from the black community. Therefore, trust is a long-term measure. My right honourable friend the Home Secretary is trying to build a stronger mechanism of community policing, but I will certainly take on board the points the noble Lord mentioned, and we will reflect on how we can build that confidence in the community to ensure effective, proper policing.

[Lord Jackson of Peterborough (Con)]

My Lords, I declare my interests as set out in the register. I welcome the Minister’s typically sensible and pragmatic approach to this issue. Does he agree that we have to strike a balance in the bulwark of our system, which is judicial independence, notwithstanding the sui generis nature of the Kaba case, but that part of the review should also include the not quite unprecedented but unusual decision by the judge to release the name of Sergeant Blake, which had massive ramifications? That should be part of the review, because there has to be a robust evidential basis for a decision to plunge that officer potentially into a very difficult situation by removing anonymity.

[Lord Hanson of Flint (Lab)]

My response to the noble Lord will not be critical of the judge. I simply say that, having seen the implications of that decision, my right honourable friend and I have taken the view that anonymity is the best way to protect the safety of anybody charged with these offences who is a police officer. I hope that Members of this House who have a judicial background will not take that as a criticism. It is a way in which we can review what has happened in this case, and the consequences of what happened after naming the individual, and try to put in a framework that in due course will potentially have legal backing from this House and the House of Commons.

King’s Speech

Lord Jackson of Peterborough Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, I welcome the new Ministers to the Front Bench—the noble Lord, Lord Hanson of Flint, for his pragmatism and common sense and the noble Lord, Lord Timpson, for his business acumen and philanthropic endeavours. I wish them well and congratulate the Minister on his fine maiden speech; similarly, my noble friend Lord Goodman of Wycombe made an excellent and erudite maiden speech.

I want to talk about two issues today: very briefly, the small boats saga and illegal immigration; and, more substantially, the prison estate. I read with great care on Monday the Home Secretary’s Statement on immigration and the possible fast-tracking of 70,000 asylum seekers, a policy which is ill thought-out, uncosted and a short-term fix—and it was not in the Labour manifesto. What consideration has been given to public safety, national security, community cohesion, the public good and the financial burdens placed on central and local government by that policy? Administrative reorganisations and press releases about smashing the gangs are unlikely to act as a realistic deterrent to the people smugglers’ business model. Securing bilateral and multilateral agreements and new legislation is both time-consuming and expensive. Nevertheless, we await with interest the border security, asylum and immigration Bill later this year.

We know the prisons estate is a mess, with too few new prisons built, overcrowding and unsanitary conditions, too many drugs, extremism, poor leadership and mismanagement, and not enough education, training and rehabilitation. I wish Ministers well if they seriously dealing with the issue of foreign national offenders. There are 11,000 of them in the estate, costing more than £40,000 each per annum. I urge Ministers to look at the excellent Question for Short Debate we had on 25 April, when we focused on the poor record-keeping and lack of proper data collection when developing policies for removing foreign national offenders.

Labour’s mantra is “change”, so I was very disappointed not to see in the King’s Speech bespoke legislation envisaged on recidivism, citizenship, support for families, literacy and numeracy and meaningful work—all meat and drink to the new Minister, the noble Lord, Lord Timpson. Of course, I am realistic enough to suggest, too, that we need proper funding for new prisons and new staff. Ministers will have to take that up with the Treasury.

By contrast, the Lord Chancellor said on Monday that there would be the early release of 5,500 prisoners later this year—again, an emergency measure. Again, this is without a proper budget or timescale, and important details such as licence conditions, curfew arrangements, electronic tags and so on are also absent from the policy. Again, that was not in the Labour manifesto.

Emptying prisons is not the answer, despite what the noble Lord, Lord Carter of Haslemere, says. It will drive up crime and disorder and damage society, alienating the law-abiding majority. It is quite permissible to think that the most egregious criminals should go to prison for longer, but that those who are in prison have a meaningful path to a better life. I do not see any discordant thinking in that.

The liberal mantra is that there are too many people in prison; it is a liberal shibboleth and demonstrably untrue. Prisons protect the public and keep crime down. Only one in 10 prisoners are first offenders, and half the prison population are there for violent or sexual offences. Some 53% of criminals have 11 or more previous convictions or cautions, and only one-third of career criminals with 15 or more convictions or cautions received other than a caution or non-custodial sentence.

In conclusion, Ministers need to focus on sentencing and management of hyper- and ultra-prolific offenders, a realistic capital building programme, education, training and rehabilitation, and, of course, on the removal of foreign national offenders. I note that, nine years ago, the UK Government did a deal with the Jamaican Government to build a new prison in Kingston in order to repatriate Jamaican nationals to that country. It has still not been expedited after nine years. I blame the previous Government for that, but I do not think that a Labour Government would have been any different.

If Ministers take up this challenge, they will have strong bipartisan support. In any event, the public are watching; blaming the Tories will only go so far, and this Government will of course be judged on their results and not their rhetoric.