Product Regulation and Metrology Bill [HL]

Debate between Lord Sharpe of Epsom and Lord Stewart of Dirleton

Committee stage
Wednesday 27th November 2024 Grand Committee

[Lord Stewart of Dirleton (Con)]

My Lords, I wish to address the Committee on Amendments 60 to 62 in the name of my noble friend Lord Sharpe; I thank him for his amendments on enforcement regulations in this Bill.

As has already been pointed out, the Bill fails to provide clarity about who will be the relevant authority, how that authority will be appointed and what criteria will be used to determine this. In setting out these points, I merely echo concerns already raised by your Lordships’ Committee. The concern is that a dangerous precedent is created, particularly where such broad powers are granted for enforcing product regulations—including sanctions—and for carrying out investigations.

To illustrate the risks of these broad and as yet undefined powers, we need look only to the Horizon scandal. In that case, as the Committee and indeed the whole House is aware, sub-postmasters were wrongly prosecuted based on flawed evidence and poor decision-making by the responsible authorities—a private prosecutor in England and Wales. The lack of proper scrutiny and oversight in that situation resulted in innocent people facing wrongful charges. Lives were ruined; indeed, lives were lost. The situation was greeted with mounting horror across our House, as it was across the country at large, as details began to emerge.

The Horizon case highlighted the dangers of unchecked power or power in the hands of those lacking the professional cultures to exercise such power responsibly. Our concern is that this could easily be replicated under the Bill if we do not ensure that the powers of the relevant authority are defined carefully and according to strict standards of accountability. We submit that the Government must provide clear criteria for the appointment of a relevant authority and establish rigorous oversight in order to ensure that the powers given under the Bill are used fairly and transparently. The Bill should ensure that those granted authority are highly qualified, possess relevant experience and are subject to ongoing monitoring in order to prevent misuse of power.

These clauses are considered skeleton legislation by the Delegated Powers and Regulatory Reform Committee. The House has collectively expressed its concern as to the dangers of skeleton legislation in other contexts, where vague provisions allow the Executive to bypass parliamentary scrutiny; indeed, the dangers and undesirability of such skeleton legislation were touched on yesterday in a take-note debate on the rule of law. Bypassing Parliament on such a critical matter—especially with the ability to bring solemn criminal charges on indictment, not just at summary level—creates risk and sets a dangerous precedent. We are by no means claiming that the Government are consciously seeking to set up a situation and a system of abuse of power, and we recognise the importance of effective regulation for consumer protection; our concern is that a lack of clarity in the Bill threatens to create an environment ripe for the misuse of power, at a time when our consciousness, and of the country at large, of those risks has never been sharper.

[Lord Sharpe of Epsom (Con)]

My Lords, I will speak to Amendments 60, 61, 62, 66, 67, 83, 84, 86, 88 and 89 standing in my name.

Before I get on to that, I thank all noble Lords who have spoken. I have not heard very much that I have disagreed with, and in particular I welcome the specialised and clearly considerable expertise of the noble Baroness, Lady Crawley, and my noble friend Lord Lindsay in this area. I also thank my noble and learned friend Lord Stewart of Dirleton, who brought a valuable legal perspective to my Amendments 60, 61 and 62. If I may say so, the Committee should also thank him, because that has relieved me of the duty of mentioning the delegated powers in the Bill.

To probe, starting with my Amendment 60, what is a relevant authority? My amendments as a group seek clarity. There is far too little of it, and I will explain why. There may be a case for a degree of generalisation on product safety laws, which we have discussed in previous Committee days, but when it comes to the enforcement of the law, as my noble and learned friend has just outlined, the Government should not be this vague. The clause that this amendment seeks to remove grants wide discretion in designating one or more persons as the relevant authority, without defining criteria or scope. Businesses need to know who they are engaging with when it comes to compliance and enforcement. The uncertainty in the Bill creates a challenging situation for businesses, in particular small and medium-sized enterprises, which may lack the resources to navigate unclear or fragmented enforcement mechanisms.

Without clearly defined enforcement roles, companies face potential delays and additional costs due to duplicative enforcement efforts, all of which could hamper innovation, productivity and growth. This clause effectively hands unchecked power to Ministers, allowing them to designate any person or organisation as a relevant authority without sufficient parliamentary scrutiny. But it fails to address critical questions, such as what qualifications or expertise the designated authority will require. How will conflicts of interest be avoided? Will there be oversight mechanisms to ensure that these authorities are held accountable for their enforcement activities?

The Government have repeatedly claimed that one of the goals of the Bill is innovation, and that they wish to be a leader on trade, yet unclear enforcement mechanisms may send the wrong message to trading partners and investors. Inconsistent enforcement practices could harm the perceived reliability of the UK’s regulatory regime, potentially complicating cross-border trade agreements and deterring foreign investment.

The Government’s Explanatory Notes suggest that the relevant authority could include the Secretary of State or

“other bodies exercising public functions”.

But nowhere in the Bill or the Explanatory Notes is there any mention of specialised bodies—including those represented by the noble Baroness, Lady Crawley, and my noble friend Lord Lindsay—which have clear expertise in product enforcement, safety and standards. We think this omission is striking. Will product safety specialists such as trading standards and accredited safety bodies be considered? Will enforcement fall to entities with deep technical knowledge and understanding of the complexities of product regulation?

The Bill uses the phrase

“other bodies exercising public functions”,

a catch-all term that could encompass almost anyone who engages in some form of public work. In practice, this could mean highly skilled and knowledgeable experts, but it could also mean organisations or individuals with no background in product safety. Could a local administrative body or other government-adjacent organisation whose primary function is entirely unrelated end up being designated as a relevant authority? Despite the Government’s claims of promoting clarity and higher standards, the wording here does the exact opposite.

This is not a trivial matter. The enforcement authority will determine how the rules are applied and the standards by which businesses are judged. Without explicit safeguards, this clause risks allowing enforcement to be carried out by ill-equipped individuals or bodies, potentially damaging the entire framework of product safety. I appreciate that I have ranged far and wide here, but unfortunately, the way the Bill is drafted invites all these questions, so I look forward to the Minister’s responses.

Turning to Amendment 61, also in my name, we of course recognise the importance of ensuring compliance with product regulations, but the manner in which these powers are drafted raises serious concerns about vagueness, overreach and potential misuse. This subsection includes functions such as monitoring compliance, investigating suspected non-compliance and even mitigating the effects of non-compliance. While monitoring compliance and addressing breaches are legitimate, the concept of suspected non-compliance is especially problematic. What constitutes suspicion? Will it be based on clearly defined criteria, or could it arise from arbitrary interpretations by an as yet to be defined relevant authority?