Product Regulation and Metrology Bill [HL]

Baroness Crawley Excerpts

2nd reading
Tuesday 8th October 2024 Lords Chamber

[Baroness Crawley (Lab)]

My Lords, it is an absolute delight to follow the maiden speech of my noble friend Lady Winterton of Doncaster, who has just demonstrated what an astute, feisty, gifted and yet totally grounded parliamentarian she is. I have known my noble friend Rosie for many years, for more years than she and I would wish to recall. She has always stood out as a true champion of the people, an authentic voice in British politics.

My noble friend has held many senior offices in government, and she referred to some of them. It is a long list so brace yourselves, my Lords: from the Lord Chancellor’s Department through Minister of State for Health Services, Minister of State for Transport, Minister for Yorkshire and the Humber, Minister of State for Pensions through to Business and Local Government. She was rightly made a dame in the New Year Honours List in 2016, and we all know that there is nothing like a dame. My noble friend Lady Winterton also spent many years as Labour’s Chief Whip in the Commons. She has indeed been there, done that, got the T-shirt. She was a wonderful Deputy Speaker in the Commons, combining being a stickler for the rules with being the epitome of calm and persuasion, especially with the awkward squad—a talent in anybody’s language—and all this while wearing the highest heels on the planet.

My noble friend chose this Second Reading to make her maiden speech because it is about the everyday concerns and safety of people and businesses up and down the country. That is, and always has been, her politics. I look forward to hearing much more from her in this Chamber, as I am sure we all do.

I welcome this landmark framework Bill, as does the Chartered Trading Standards Institute in coalition with the British Toy & Hobby Association, Electrical Safety First and Which?. As Which? has said, this Government are prioritising legislation that addresses a growing gap in consumer protections. The coalition also has concerns about the Bill, which the noble Lord, Lord Foster of Bath, has referred to, and which will no doubt be addressed in the passage of the Bill.

The online marketplace in particular is not protecting consumers today and leaves them open to illegal, unsafe and, indeed, very harmful products, with few repercussions at present for those perpetrating these violations and finding gaps in the law. It is also so damaging to the very many good businesses that trade online in safe and legal products. There has been no real domestic reform to product safety regulation since our exit from the EU. The previous Government extended recognition of EU requirements, which had been due to fall away at the end of this year, but did not prioritise what comes next, either in general terms or in relation to the specific known issues, such as unsafe batteries in e-bikes and scooters, counterfeit electrical goods on online marketplaces, children’s toys, smoke and carbon monoxide alarms—on and on goes the unsafe products list. Although the powers in this Bill will not solve all these issues, they should allow us to make progress in a number of areas.

Some may see this Bill as EU alignment through the backdoor. I disagree. As I see it, the Bill will allow the UK to align with the EU when it makes sense to do so but also give us flexibility not to if, as a country, we want even stronger safety standards. Given the unique position of Northern Ireland in the post-Brexit trading landscape under the Windsor agreement, perhaps my noble friend the Minister could set out how the Bill’s provisions affect Northern Ireland.

I welcome the provisions on information sharing, which are designed to make it easier for public authorities such as trading standards and the emergency services to alert each other on cases they are working on across the country. The Bill’s enforcement aspects are also welcome but must be looked at in the context of very limited local authority resources—I speak as a vice-president of the Chartered Trading Standards Institute.

We have all been lobbied on concerns over the Bill’s metrology regulations, in that they focus on units of measurement and quantities of goods but are limited in scope. For some, the Bill does not grant sufficient authority to test and verify the equipment used for measurements. Perhaps my noble friend could write to me about this, as accuracy is key here.

The coalition of product safety organisations I referred to earlier wants the Bill to safeguard consumers through clear and enforceable duties on online marketplaces, clearly defined definitions of new terms, putting consumer safety on the face of the Bill, and more effective scrutiny processes.

The Regulatory Policy Committee has scrutinised the impact assessment published alongside the Bill and decided that it provides

“sufficient evidence of the problem under consideration and a strong argument for intervention”.

However, it suggests that the Bill’s impact assessment

“could be improved by including further detail of the impacts expected from the related secondary legislation”.

Will my noble friend the Minister comment on that part of the RPC’s opinion?

As I understand it, the Government want the Bill to tackle modern safety issues for consumers, grasp opportunities to deliver much-needed economic growth and offer a much improved level playing field to businesses. I am sure many of us would support those aims, and I wish the Bill well.

Product Regulation and Metrology Bill [HL]

Baroness Crawley Excerpts

Committee stage
Wednesday 20th November 2024 Grand Committee

[Lord Anderson of Ipswich (CB)]

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

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

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

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

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

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

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

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

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

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

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

[Baroness Crawley (Lab)]

My Lords it is a pleasure to follow the noble Lord, Lord Anderson of Ipswich. I have an amendment in this group, Amendment 126, which I shall speak to. It is in my name and those of the noble Earl, Lord Lindsay, who cannot be in his place today, and the noble Lord, Lord Foster of Bath, reflecting its cross-party support. It requires the Secretary of State to conduct,

“appropriate consultation on draft regulations made under this Act”.

Like other amendments in this group, it is all about more effective scrutiny processes for this Bill. As it stands, this enabling Bill allocates significant powers to the Secretary of State—too many, according to the Delegated Powers and Regulatory Reform Committee and the Constitution Committee.

As this is the first time I am speaking in Committee on the Bill, I say that I support it and the need for it to improve the safety of UK consumers, as do most consumer-facing organisations in this country. However, the Bill, to put it mildly, has received a pounding from the Delegated Powers Committee and the Constitution Committee. I quote paragraph 36 of the Delegated Powers and Regulatory Reform Committee report. It states:

“We consider that … the Government have failed to provide a convincing justification for the inclusion of skeleton clauses in the Bill that give Ministers such wide powers to re-write in regulations the substance of the regulatory regime for products”.

--- Later in debate ---

[Lord Fox (LD)]

I am not a student of parliamentary history, so I do not know if it is an unprecedented letter, but that was a helpful intervention, and I thank the noble Lord for that.

[Baroness Crawley (Lab)]

I believe that the sentence that was just read out was in the report from the Government to the Delegated Powers Committee as well. It is not unprecedented is what I am saying.

[Lord Fox (LD)]

My Lords, I feel that I am standing in the middle of a perfectly good debate between the noble Baroness and the noble Lord. Perhaps we can reconcile it in some other way.

Product Regulation and Metrology Bill [HL]

Baroness Crawley Excerpts

Committee stage
Monday 25th November 2024 Grand Committee

Moved by

[Baroness Crawley]

12: Clause 1, page 2, line 3, leave out “item that results from a method of production” and insert “or intangible item, whether or not interconnected to other items, that results from a method of production, is supplied including in the context of providing a service, or made available on the market, whether in return for payment or free of charge”
Member’s explanatory statement
This amendment would broaden the definition of items subject to the new regulatory framework of product regulation to ensure that all digital as well as non-digital products are within scope.

[Baroness Crawley (Lab)]

My Lords, in moving Amendment 12 in my name and those of the noble Earl, Lord Lindsay, and the noble Lord, Lord Foster of Bath, I also support the amendment from the noble Lord, Lord Fox. I welcome the noble Lord, Lord Sharpe of Epsom, to his new post and thank my noble friend the Minister for his courtesy in organising several meetings for Peers and organisations interested in this Bill; it was remiss of me not to do so earlier.

--- Later in debate ---

[Lord Leong (Lab)]

I can give the noble Lord the assurance that it is “will”.

[Baroness Crawley (Lab)]

My Lords, I thank my noble friend the Minister and the noble Lords, Lord Sharpe and Lord Foster, who have contributed to this short but useful debate.

I will not repeat the valid and important points that have been made, but I ask the Minister to have another look at the Bill’s definition of “product” in the light of our discussion this afternoon. However, I accept his explanation of software regulation going forward: that was an important point he made. For now, I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

--- Later in debate ---

[Baroness Brinton (LD)]

My Lords, Amendment 45 in this group is in my name. I also support my noble friend Lord Foster’s Amendments 117 and 122.

I come back to an issue debated at some length on the first day of Committee. I am particularly pleased to see the noble Lord, Lord Jackson of Peterborough, in his place because my amendment relates directly to his Amendment 33, which questions whether Clause 2(3)(h) should stand part of the Bill; my amendment also looks at paragraph (h). He spoke about it in the context of parliamentary scrutiny and consultation, but my focus is a different one: I am trying to look at how it will work in practice. During our debate last week, my noble friend Lord Fox said that

“the wording of Clause 2(3)(h) is ‘any other person carrying out activities’. All the other items refer to the activity of the sale and marketing of that product. This does not refer to it but any person carrying out activities unspecified”.—[Official Report, 20/11/24; col. GC 40.]

We are moving from products to people in this debate.

At Second Reading, I asked the Minister who is caught by this very wide, catch-all paragraph. In his letter of 17 October, in which he responded to issues that he did not have time to cover at Second Reading—I thank him for it—he said:

“These supply chain roles may be undertaken by individuals as well as by businesses. The Bill will enable the responsibilities of supply chain actors to be rationalised and modernised, including to reflect the development of new business models that were not anticipated by current legislation, such as online marketplaces”.


I read his reply carefully, but it did not answer my question. That is partly because “actors” could mean anybody; it does not necessarily mean somebody mentioned in one of the clause’s previous paragraphs. I remain concerned about that in the context of Clause 2(3), which identifies the

“persons on whom product regulations may impose product requirements”.

It appears that paragraph (h) can include absolutely anyone involved in selling a relevant product, without limitation. This matters because a private individual selling an item with a lithium-ion battery, for example, on eBay or Vinted may be an actor at the very end of a long supply chain, but that does not mean they are a professional in the business. The wording is important.

Where does the responsibility for satisfactory compliance lie? In our Second Reading debate, there was some discussion about online marketplace platforms having responsibility for ensuring compliance but, frankly, eBay and Vinted cannot check the detail of a regulated item—in the case I gave, a lithium-ion battery in a bicycle—or how it meets the regulations. Also, the individual at the end of the supply chain has no obvious way of finding out whether they are responsible for ensuring that the item they wish to sell meets the regulations. Of course, there is a future actor in all of this: the person who buys it.

Which?, in its very helpful briefing prior to Second Reading, pointed out that the Bill needs strengthening in a number of areas, including clearer definitions of key terms, so that existing and future online marketplaces cannot take advantage of gaps to avoid responsibility. Clause 2(3)(h) is one such area. Will the Minister help by making it clear who is covered? Can he also explain exactly how the online marketplaces can manage the extension of liabilities for defective products sold by individuals, which those online marketplaces have not seen themselves? Alternatively, if individuals selling items are covered by Clause 2(3)(h), how do those individuals become aware of their responsibilities under the Bill for ensuring that the goods they sell meet the requirements and are not defective? Frankly, eBay sending them an email saying, “You are entirely responsible” is not good enough for compliance. If this is not clarified, we have a gaping hole in the Bill.

[Baroness Crawley (Lab)]

My Lords, I will speak to Amendments 48, 71, 118, 119, 120, 121, 123 and 124 in this group, on the topic of online marketplaces, which are in my name and those of the noble Lord, Lord Foster of Bath, and the noble Earl, Lord Lindsay.

Turning first to Amendment 48, I recall that, in the King’s Speech, the Government made a commitment to ensure that the responsibilities of those involved in the supply of products, such as online marketplaces, are clear. That commitment is to be welcomed, but the clarity and detail will be in the secondary regulations after the Bill is passed and not in the Bill itself. As set out in the explanatory statement, the proposed new clause in the amendment

“provides a non-exclusive list of duties that must be imposed upon online marketplaces by regulations made by the Secretary of State … to be made to Parliament within 3 months of Royal Assent regarding the exercise of the duties conferred by this section”.

These duties include an explicit provision to place a duty on online marketplaces to take the necessary measures to ensure the safety of products offered on their platforms and a commitment to publish any draft secondary legislation on how this duty and related provisions will work in practice in good time before the measures are due to come into force. Finally, there is a duty to consult with key stakeholders on the design of these regulations.

I make it clear to my noble friend the Minister that the duties in this amendment are about the transparent process by which the Government will ensure a safer online marketplace, rather than a long list of possible actions taken to bring this about. The Office for Product Safety and Standards, in its 2021 research, found that 81% of the products it found online failed safety tests. I am sure that the figure would probably be far higher if they were tested today. Which? tells us that around 23.4 million consumers in the UK make monthly transactions on these marketplaces, yet they are unwittingly putting themselves at risk because, at present, they do not have the same protections as they have come to expect when buying from traditional high-street retailers. This evidence should encourage us to reform online marketplace regulations as urgently as possible.

Amendment 71 allows for regulations to provide liability of online marketplaces for defective and unsafe products and to ensure redress for those harmed by these unsafe and defective products, including civil litigation. It is important that the law on product liability can be updated to take account of the responsibilities of online marketplaces and others in the supply chain, and to provide effective redress for consumers who suffer harm from these dangerous products. We know that online marketplaces have become a mainstream method for people to shop, particularly when they are looking for value for money in these difficult economic times. This amendment seeks to ensure that there is redress for those online shoppers if they buy unsafe or faulty goods.

From the briefing sent to us by the London Fire Brigade we know that e-bikes and e-scooters are one of the capital’s fastest-growing fire risks. On average, there was a fire every two days in 2023. Sadly, deaths and injuries have resulted. Many of these fires are caused by incompatible chargers and faulty products that are purchased online. The London Fire Brigade believes, as many of us do, that product innovation has gone far ahead of proper safety standards and that there is inadequate regulation, especially for conversion kits, batteries and chargers. A strengthened version of the Bill would go a long way to answering these safety gaps online.

Product Regulation and Metrology Bill [HL]

Baroness Crawley Excerpts

Committee stage
Wednesday 27th November 2024 Grand Committee

[Lord Lucas (Con)]

My Lords, the market we have at the moment is such that, if there is, say, an orange teddy bear on the market, it may appear in a hundred or more different guises from ostensibly different sellers. Perhaps it has a different label or name attached, but it is, in essence, the same product. If we insist on trading standards proving that each of these instances is dangerous, we will find ourselves unable to enforce this legislation properly.

Amendment 29 suggests reversing the process so that, when trading standards become aware that, say, an orange teddy bear of a particular description appears to be dangerous, they can stop them being sold and put the onus on the sellers to prove that they are safe. In that way, we can achieve the protection of the public quickly and simply, without overwhelming trading standards. I beg to move.

[Baroness Crawley (Lab)]

My Lords, I will speak to Amendments 31, 85, 97, 98 and 109, all on enforcement issues. Amendment 31 in my name and Amendment 98 in my name and that of the noble Lord, Lord Foster of Bath, deal with the subject of fulfilment houses. Yes, it sounds like a slightly dodgy building, does it not? Anyway, I have been educated.

Amendment 31 addresses Clause 2. At the end of line 14 of page 3, it would insert

“a person who controls fulfilment houses in the United Kingdom”.

This amendment adds to the list of persons in Clause 2 on whom product regulations may impose product requirements. I thank the Chartered Trading Standards Institute for its advice on this issue.

Fulfilment houses or centres store, pack and ship products for other companies, which are third-party sellers, often from overseas. Without clear rules, these products easily skip safety checks, creating risk for consumers. It is important to aim for compliant products only to enter the market, and these fulfilment houses should play a critical role in ensuring that.

There is presently a lack of clarity regarding the specific obligations of fulfilment houses, as their operations may not fall directly under the role of traditional retailers or manufacturers. This amendment makes it clear that fulfilment houses must meet safety standards, just as regular shops must, and are accountable if they are storing and passing on products for delivery that are unsafe or dangerous.

Amendment 98 aims to close a critical gap in the supply chain and protect consumers from non-compliant goods from third-party sellers. The amendment seeks to define “fulfilment houses” because at present the Bill does not. This is needed as these houses are, as I said, a key loophole for unsafe products entering the UK market. The amendment also outlines how fulfilment houses will have to keep records showing that the products they store meet all necessary product safety requirements. These houses are also to work with enforcement officers if that is needed. Although fulfilment houses already register for tax due diligence, this extension to product safety is a necessary logical next step towards ensuring safe consumer products across the board.

Amendment 85 in my name and that of the noble Lord, Lord Foster of Bath, is on enforcement of metrology regulations. This amendment, advised by trading standards officers, makes it the duty of weights and measures authorities in Great Britain and a similar body in Northern Ireland to ensure that products are accurately measured and to add to the list in Clause 6 on page 6, line 30.

Although the Bill currently includes rules about measurement units and product quantities, it does not, according to weights and measurements officers on the ground, fully cover the checking of equipment used to make these measurements. Accurate measuring equipment is essential for ensuring fair trade, so expanding the regulations to include equipment testing, as our amendment suggests, would help authorities to enforce those rules more effectively. There are also concerns that the Bill may allow people other than trading standards officers to carry out enforcement, even though trading standards officers are already trained and authorised to do this work.

This amendment clarifies who is responsible for enforcement, helping build consumer trust in fair measurements, which affects consumers UK-wide. It will also ensure that local authorities will be responsible for regularly checking products to ensure accurate measurements, investigating complaints and taking action if they find issues. This will mean that all sellers follow the same standards so that consumers can trust the quantities they are buying—whether groceries, petrol or other goods—and that they are measured fairly.

I shall now speak to Amendment 97 in my name and those of the noble Earl, Lord Lindsay, and the noble Lord, Lord Foster of Bath. The explanatory statement says:

“This amendment inserts safeguards to ensure non-regression from existing legal protections, as well as providing for the due consideration of the precautionary principle when scientific evidence about a possible risk may not yet be fully available but there is a need to be cautious given the potentially serious consequences for the safety of individuals”.


In current legislation, Regulation 10(5) of the General Product Safety Regulations 2005, for example, includes the duty that

“An enforcement authority … take due account of the precautionary principle”.

That point was relied on by the organisation Which? in its campaign to persuade the Government in 2019 to take action and require Whirlpool to recall dangerous tumble dryers that were responsible for starting hundreds of fires. When the scientific evidence was not fully available, the precautionary principle kicked in. At that point, scientific evidence is not completely collated but, when there are hundreds of fires, something needs to be done.

The Bill provides the Government with the opportunity to introduce new regulations that will upgrade consumer rights, but we believe there needs to be a more encompassing principle to keep consumers safe and underpin all future regulation with key consumer protections. With this amendment, we are seeking to ensure that the primacy of a high level of consumer protection is built into the Bill.