Product Regulation and Metrology Bill [HL]

Debate between Lord Sandhurst and Lord Leong

Wednesday 20th November 2024 Grand Committee

[Lord Sandhurst (Con)]

My Lords, I begin by saying that, like others, I am grateful to the Minister for the time he gave to meeting me. However, the fact remains that our concerns about the Bill have not been assuaged. There are fundamental flaws, as others have said. We do not disagree with the aims of the Bill in general terms; the problem is that we just do not know what the specific policies are. We do not know what route will be taken to address the issues that may arise. It is simply too vague. There will be no opportunity for consultation on, or challenge to, the policies or regulations: policies will be produced by the Minister and that will be that. We know that policies should be in the Bill.

I thank the noble Lord, Lord Foster, for his thoughtful amendments and his commitment to addressing the significant issues raised by Clauses 1 and 2. These electronic developments, such as lithium-ion batteries and so on, are serious issues; they certainly need to be addressed. However, these amendments relate to Clauses 1 and 2, which have been identified by the Delegated Powers and Regulatory Reform Committee and the Constitution Committee as fit only for complete removal from the Bill, for the reasons set out in their reports. Those committees have strongly criticised these clauses because they lack substance and give excessive discretion to Ministers; as I said at Second Reading, this is a Henry VIII Bill par excellence.

We must therefore now be told—we are still waiting—in much more detail what direction the Government think we should take on the matters of substance and importance that the Bill addresses. Ministers are to be empowered to legislate by statutory instrument on matters that are really important for businesses on the receiving end and for consumers, also on the receiving end—or not, if nothing is done—such as marketing, product regulation and metrology. Here in Parliament, we have been given no clear framework or policy direction.

The Delegated Powers and Regulatory Reform Committee’s detailed report of 15 October, which of course came after Second Reading and after substantive objections had been raised by me and others, stated that the skeleton clauses, which include but are not limited to Clauses 1 and 2,

“contain almost no substance about the marketing and use of products but instead give Ministers very broad powers which confer considerable discretion to legislate in that area by statutory instrument”.

On 16 October, the same committee held an evidence session at which it discussed these concerns with the noble Lord, Lord Leong; Justin Madders MP, the Minister in the other place; Helen Le Mottee, deputy director legal for products, business and better regulation; and Tony Thomas, deputy director for product safety policy. The committee said:

“In the evidence session, the Ministers and their officials provided helpful additional information about … the existing legislation that could be amended by regulations made under the powers that the Bill confers; and … the need for the Bill to confer regulation-making powers that would allow detailed and technical provision to be tailored for different types of products and would give Ministers the flexibility to respond quickly and effectively to rapid technological changes and product safety concerns … That additional information could helpfully have been included in the Delegated Powers Memorandum provided by the Department for Business and Trade”.


The committee recognised the need for the Bill to delegate some legislative powers—I think we all understand that that is necessary. However, the committee stood by and repeated the essence of its 15 October first report, notwithstanding the improvement of approach. It said that

“skeleton legislation should only be used in the most exceptional circumstances”—

and we are not there; this is not Covid. We are not in another emergency situation—

“and where no other approach would be reasonable to adopt”.

That, it explained—and I make no apology for repeating this—

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

Frankly, I say, if they do it with this Bill, they will do it with all future legislation. There was enough fuss in the last Parliament about what those on this side were doing, and now we are going straight down that route and extending it into the distance. As the committee said, the Government

“needs to explain why the Bill provides for almost all of the substance of product regulation and metrology to be provided for by Ministers in regulations under the new powers, and little or nothing to be settled under the fuller Parliamentary scrutiny given to Bill provisions”.

Without clear boundaries or principles, these powers could allow Ministers to fundamentally alter product regulation, metrology standards and even consumer protections with little notice or prior consultation. They can just do what they like if a Minister fancies it or a civil servant has a bee in his bonnet—I mean nothing personal about the civil servants sitting there. I think your Lordships all understand what I have in mind. People have idées fixes, their opportunity comes along, off they go and Parliament will be able to do absolutely nothing about it. This risks creating legal uncertainty, regulatory overreach and a chilling effect on business, stakeholders and consumers.

Clauses 1 and 2 as they stand must, we say, be either significantly revised or removed entirely, as recommended by both committees of which we have already heard rather a lot. Failing such improvements, we on this side of the House will move for the offending clauses to be removed on Report. The Government should understand that.

[Lord Leong (Lab)]

My Lords, before I address Amendments 2 and 27 tabled by the noble Lord, Lord Foster, I need to make a clarification. The Attorney-General made a general comment about excessive reliance on delegated legislation; he did not comment on this Bill. We certainly do not believe this Bill contains excessive reliance on delegated legislation.

Product Regulation and Metrology Bill [HL]

Debate between Lord Sandhurst and Lord Leong

2nd reading
Tuesday 8th October 2024 Lords Chamber

[Lord Leong (Lab)]

My Lords, I would first like to thank all noble Lords for their very kind remarks; they are much appreciated. I also thank noble Lords for taking part in today’s debate, and for the contributions from all sides of the House. Today’s debate has been not only informative and wide-ranging but also illustrated the depth of expertise and experience present in your Lordships’ House.

I was particularly pleased to hear the maiden speech of my noble friend Lady Winterton. She brings much experience and wisdom, having served with distinction as Deputy Speaker in the other place and as a Minister in multiple government departments between 2001 and 2010. Freed as she now is from the necessary neutrality of a formal role, we welcome her warmly to the government Benches, where I suspect that, like her former boss, Lord Prescott, she will pull no punches. I look forward to hearing from her many more times in the future.

As we have heard, product safety failures can have devastating consequences. We are determined that our regulatory framework is agile and flexible in its response both to new threats and to complex supply chains. For innovation to flourish and potential for growth to be realised, it is essential that consumers can have confidence in the safety of the products they buy and in the businesses that they buy from.

I will try my very best to address as many of the issues and questions raised today as possible within my timeframe of 20 minutes. If I do not have the time, I will get my office to go through Hansard and provide written answers to noble Lords and have a copy placed in the Library. Finally, let me assure all noble Lords that I want to work constructively and proactively in the passage of this Bill, and I will have many more conversations and share information with noble Lords through Peers drop-in sessions—my office is always open, so feel free to contact me and my private office.

The noble Lords, Lord Frost, Lord Browne and Lord Jackson, and the noble Baroness, Lady Lawlor, raised concerns that this Bill is tantamount to the UK rejoining the EU through the backdoor. Let me be extremely clear: this Bill is not rejoining the EU by the backdoor. This Bill gives us the flexibility to ensure that product regulation, now and in the future, is tailored to the needs of the UK. There will be some instances where we will want to take a similar approach to the EU, and there will be others where it makes sense for the UK to diverge. Those decisions will be based on the best interests of the UK’s businesses and consumers, and any secondary legislation will be subject to the usual parliamentary scrutiny. As I said in my opening speech, we are taking back control, seeking closer, more mature trading partnerships with the EU and forging new trading relationships with the global world out there.

The noble Lords, Lord Foster, Lord Browne of Ladyton, Lord Bourne, Lord Fox and Lord Johnson, and the noble Baroness, Lady Bennett, raised questions about devolution. The vast majority of product safety and metrology legislation is reserved, with some specific exceptions. We expect the overwhelming majority of secondary legislation brought forward under the main powers in Clauses 1 and 5 to be reserved. Given the technical nature of product regulation and metrology, it is possible—as many noble Lords have mentioned—that some elements of secondary legislation may touch on devolved aspects, such as regulating the environmental impact of certain products, as we consider safety impacts alongside.

Following meetings with my counterparts, I welcome their broad support for the policy intentions behind the Bill. However, we recognise that the devolved Governments have raised some concerns about the drafting and breadth of delegated power in the Bill. As outlined in our manifesto, this Government are committed to reset the UK Government’s relationship with the devolved Governments in Scotland, Wales and Northern Ireland. I have had positive meetings with my counterparts in the Welsh Government and Northern Ireland Executive and will be meeting with the Scottish Government this week. My department is engaging with all devolved Governments in an open and collaborative spirit, and we hope that we will gain legislative consent Motions from the devolved legislatures. I will keep the House informed of those discussions.

On the specific case of Northern Ireland, which has been raised by several noble Lords, in order to ensure dual access to both the UK internal market and the EU single market, Northern Ireland applies certain EU product regulations and metrology rules under the Windsor Framework. The Bill provides the Minister with the ability to make a sovereign choice and effectively manage upcoming regulatory divergence between the UK and EU, and therefore to ensure continuity across the UK internal market, where it is in our domestic interest to do so. As such, we expect that the Bill will have a positive impact on trade between Northern Ireland and the rest of the UK.

The noble Lords, Lord Foster, Lord Fox and Lord Johnson, raised the importance of ensuring that the enforcement authorities have adequate resources to fulfil their function. With this Bill we intend to improve enforcement capability, leading to more efficient and effective use of time through a better suite of notices and better data-sharing opportunities. The Office for Product Safety and Standards will continue to provide a range of support to enforcement authorities. This will include support on technical queries, access to product testing and an ongoing programme of training and continuous professional development. The Office for Product Safety and Standards will also produce guidelines for the application of any new powers so that enforcement authorities are equipped to use them efficiently.

The noble Lord, Lord Lansley, and several other noble Lords raised an important issue relating to international standards. The Bill will enable us to continue to amend product regulations as well as allow the designation of international standards for products in scope. In line with WTO obligations, the UK recognises the benefits and supports the use of international standards, as well as regional standards, to break down trade barriers with our trading partners. The British Standards Institution regularly reviews UK standards, replacing domestic standards with appropriate international ones. This is also something that the UK pursues in its international agreements.

The noble Lords, Lord Sandhurst, Lord Foster, Lord Lucas, Lord Jackson and Lord Fox, and the noble Viscount, Lord Trenchard, asked whether any draft regulations under the Bill would be produced. The Government are working through policy positions on a range of issues following the election, including addressing the sale of unsafe products via online marketplaces. Additionally, we are reviewing changes the EU is proposing to its registration regulations and considering the applications. Throughout, our response will depend on the outcome of our call for evidence and policy discussions with stakeholders.

The noble Lord, Lord Sandhurst, asked about the poor way we are approaching legislation. The review he referred to was issued by the previous Government. It was clear then that to make fundamental changes to product regulation requires primary legislation because the powers were not available to us, hence bidding for this Bill to ensure that we secure the powers to act in good time to address emerging risks.

The noble Lords, Lord Foster and Lord Sandhurst, asked about online marketplaces. It was right for us to bring forward this Bill to give us the powers we need to address sales of unsafe products by online marketplaces —an area on which the product safety review consulted. Consumer groups such as Which? have also been calling for us to take action. This Bill will allow us to take action now.

The noble Lords, Lord Sandhurst, Lord Foster and Lord Johnson, asked why we have not published a response to the product review consultation. We have bid for the necessary powers to make changes to our regulations and have introduced this Bill, which will deliver enabling powers to allow us to implement a lot of the policy proposals emanating from the product safety review to which the noble Lord, Lord Sandhurst, referred. That review received 126 responses covering regulatory changes. Action on online marketplace enforcement was supported by all respondents. The powers in the Bill are available powers and we have continued conversations with a wide range of stakeholders on the detail.

[Lord Sandhurst (Con)]

I appreciate that, but we have not actually got any detail at all, or even a summary, of what the responses are. We really do require that; it is normal.

[Lord Leong (Lab)]

I thank the noble Lord, Lord Sandhurst. I will ask my officials and come back to the noble Lord on that request.

The noble Lord, Lord Foster, asked about lithium-ion batteries. I am pleased to advise that, while we have been in this debate, Minister Madders, my colleague in the other place, is in Paris at the OECD global awareness campaign, which this year focuses on lithium-ion batteries. The UK and the Office for Product Safety and Standards have been leading on this campaign. The noble Lords, Lord Redesdale and Lord Fox, raised additional points about disposal. Ministers are referring proposals to consult on reforms to UK battery regulations before setting out next steps.

The noble Lord, Lord Russell of Liverpool, asked why the UK wished to be able to continue recognising the CE marking. This Bill will allow the Government to choose to recognise updates to EU product regulation to provide continued regulatory stability and avoid extra costs for business where this is in our interests. It will also allow us to end recognition of EU requirements where it is in the interest of business and consumers. We presently recognise current EU regulations for a range of products. Legislation passed in May 2024 to continue CE recognition for 21 product regulations is estimated to save UK businesses £640 million over a 10-year period, largely from avoiding duplicate compliance and labelling costs. Provisions in the Bill allowing us to continue or end recognition of EU requirements will enable us to provide the certainty that businesses need to plan for the future and innovate, supporting economic growth. The UK and EU share information on trade, including changes to the trade and co-operation agreement.

The noble Lord, Lord Foster, and several other noble Lords asked about the disposal of lithium-ion batteries. The Government are committed to cracking down on waste as we move towards a circular economy, where we keep the resources we use for longer and reduce waste. The existing product responsibility scheme for batteries and waste electronics makes producers responsible for the cost of end-of-life treatment. Under existing UK legislation it is already mandatory for all batteries placed on the market in the UK to be clearly marked with the crossed-out wheelie bin.

The noble Baroness, Lady Crawley, asked why there have been no changes to legislation on product safety since our exit from the EU. I can reaffirm that this is real, hence bringing forward powers in this Bill to allow us to make changes before divergence happens and we fall further behind.

The noble Lord, Lord Frost, asked why we cannot use existing powers. The new Bill powers are required to enable the Government to modernise and future-proof product regulation, ensuring that it is tailored to the needs of the UK. The powers in the retained EU law Act 2023 are limited, in that they can be used only to revoke and replace assimilated law and have other inbuilt restrictions—for example, secondary legislation that is made under REUL must be deregulatory. This means that we would not be able to use the powers to increase safety requirements to respond to new and emerging threats through further amendments and legislation which was not assimilated law before.

The noble Lord, Lord Frost, also asked whether the Bill will make the UK a rule-taker or a rule-maker. We are definitely not a rule-taker. We are a rule-maker, and the Bill will provide powers to give the UK greater flexibility in setting and updating its own product-related rules, as well as enabling the UK to choose whether to recognise relevant EU products requirements. Any further changes made using these powers will be subject to appropriate parliamentary scrutiny. The noble Lord asked whether the Bill protects internal markets. The Bill will give us flexibility to ensure product regulation and metrology now and in the future. It is tailored to the needs of the UK as a whole. It will enable us to make changes to product regulation and metrology legislation that will benefit businesses and consumers.

The noble Lord, Lord Frost, also asked about the Windsor Framework. In updating its regulation, the EU will be seeking to deal with many of the same challenges that the Bill will address: for example, online marketplaces and batteries. The Bill will enable a choice to be made as to whether it is in the interests of UK businesses and consumers for UK regulations to take the same or a similar approach, or indeed a different one.

The noble Baroness, Lady Brinton, asked whether the Government will commit to a policy of alignment with EU chemical protections. This Government are committed to protecting human health and the environment from the risks posed by chemicals. We are currently considering the best approach to chemicals regulation in the UK separately to this Bill and will set out our priorities and next steps in due course. The noble Baroness also asked how the Bill will help the Government respond to emergencies.