Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019

Baroness Crawley Excerpts

Monday 4th March 2019 Grand Committee

[Lord Henley]

I make no comment.

I assure the Committee that this approach has been designed to increase understanding and reduce the number of similar instruments that would otherwise be needed. Many cross-cutting issues are the same for different products. These have similar definitions, obligations and requirements. As a result they require similar amendments, which it makes sense to group together into one instrument rather than to separate out into many different instruments. Another reason for the size of this instrument is the lengthy technical schedules. These are used widely by industry, and incorporating them here from retained EU law makes it easier for businesses to see and understand the legislation as a whole.

During development of this instrument, we have been mindful of the impact on business of changes to processes as a result of the UK’s exit from the EU. Where possible, we have given businesses time to adjust, including an 18-month transition period for importers for any labelling changes and a 90-day transition period for companies notifying key safety information for cosmetic products already on the market. We have also engaged with businesses on the drafting. Drafts of the schedules were shared with stakeholders and feedback obtained. Stakeholders, including trade associations, industry experts and enforcement agencies, took part and welcomed this approach. As a result we have a better understanding of the main requirements and concerns of stakeholders, including businesses, and have been able to reflect these in the legislation that is before us today. In addition, and given the importance of this area of law, we have completed and published a full impact assessment to ensure complete transparency—despite the impact being below the threshold at which an impact assessment is required.

On the detail of the instrument, it is important to repeat that it will not change the UK’s approach to product safety. It keeps important elements; for example, it retains the requirement for conformity assessment to ensure that products meet the essential requirements set out in the legislation, including the need for assessment by third-party organisations where that is currently required. It retains the use of standards that give rise to presumptions of conformity with the legislative requirements, making it easier for businesses to ensure that their products are safe by following a designated standard.

Taking action to protect consumers from unsafe products remains vital, and this legislation ensures that the UK’s market surveillance system will continue to work to limit the number of unsafe and non-compliant goods available to UK consumers and businesses. It also gives ongoing recognition of existing authorised representatives in the European Economic Area for any appointed before exit, while those after exit will need to be in the UK.

For cosmetic products, due to the risk they pose to human health, responsible persons—who play a key role in ensuring the safety of cosmetic products—will be required to be based in the UK from the point of exit. By addressing these issues we are able to give business certainty and—crucially—we will retain our ability to remove unsafe or non-compliant products from the market.

To conclude, I hope that the Committee will agree that maintaining a functioning product safety framework in the event of no deal is essential both for consumer safety and business confidence. Without this legislation in place, there would be major risks to the safety of consumers—the safety of the toys our children play with, the cosmetics we all use every day, and the electrical items which are found in abundance in our homes. Maintaining these protections is vital to people across the country. I beg to move.

[Baroness Crawley (Lab)]

My Lords, I thank the noble Lord for setting out the Government’s position on this SI. When I first lifted the SI, which I understand weighs 4.5 kilograms, my first thought—

[Lord Henley]

The figure that I have is 2.54 kilograms, but I am quite happy to be corrected.

[Baroness Crawley]

Oh, 2.54. I was told that it was 4.5 kilograms, so the figure has doubled. My first thought was: thank goodness for the Explanatory Memorandum. I tried reading the instrument without the Explanatory Memorandum just to torture myself, but I did not get very far without a stiff drink.

When I read the House of Lords Secondary Legislation Scrutiny Committee’s acknowledgement that the SI had to be corrected and relaid because of legal drafting errors in an earlier version, it did not fill me with great confidence. The scrutiny sub-committee voiced concern at the department’s decision to combine so many different legislative measures in a single statutory instrument, and I certainly agree with that concern. I come to this as a vice-president of the Chartered Trading Standards Institute and as a guardian of hallmarking in the Birmingham Assay Office.

It is virtually impossible to scrutinise this instrument effectively with the crazily reduced time limit of 29 March. The scrutiny sub-committee expressed concern about uncertainty and the impact that leaving the EU’s produce safety regime in a no-deal scenario could have on UK consumers and businesses. In that context, I should like to put some questions to the Minister.

On the category of cosmetics, for instance, paragraph 7.19 of the Explanatory Memorandum states that,

“this instrument will make further amendments to ensure the continued protection of UK consumers after exit. In a ‘no deal’ scenario it is likely that the UK will no longer have access to the EU Cosmetics Products Notification Portal which provides essential information to National Poison Centres to protect public health. Work has already begun on a UK replacement database”.

Can the Minister guarantee that no British consumer of cosmetic products will be put at risk of being poisoned? The Explanatory Memorandum uses the phrase “Work has already begun”. Will that really reassure British women—the principal consumers of cosmetics—that all cosmetics made at home and abroad will be safe? What will a functioning statute book actually look like in the cosmetics sector, and could rogue cosmetics firms set themselves up with the precise purpose of circumnavigating loose consumer protection in this area and making fast bucks from an overly trusting shopping sector, especially online? Is this the kind of no-deal consequence that we are facing in this sector? Also, what is the timescale for the completion of the UK’s replacement cosmetics product portal?

Perhaps I may also ask the Minister a few questions about consultation. Paragraph 10.1 of the Explanatory Memorandum states:

“The Department did not undertake a public consultation”.


At least that has the virtue of honesty and brevity. But further down the page we read, at paragraph 10.3:

“Informal consultation has taken place with a good cross-representation of stakeholders, including trade associations and other industry representative bodies across the product areas covered by this instrument”.


Can the Minister give us his definition of “informal” and “good”, as in,

“good cross-representation of stakeholders”?

How many meetings took place with the stakeholders? Did the cross-representation of stakeholders have the Explanatory Memorandum available when they looked at this SI? If they did not, I admire their superpowers. Did the informal consultation involve, say, trading standards, the Scottish Government or the CBI in all its regional forums, and were the meetings in situ or just a set of emails and phone calls? If we leave the EU without a deal, is this a good time to be “informal” about commercial regulation?

I have a few final questions. On the impact of this SI, paragraph 12.1 of the Explanatory Memorandum states:

“The impact on business has been looked at in an Impact Assessment … for this instrument”,


and has been assessed as de minimis. That is all right, then. However, later in the Explanatory Memorandum there is a reference to how much this whole procedure will cost businesses, and it does not seem like small beer. Paragraph 12.3 informs us that some of the 241,000 businesses that are to be affected will try to familiarise themselves with the new inventory of regulations. The cost estimate is put at £19.6 million, which is a substantial sum in itself, on the assumption that the average business leader will need only three hours to build total operational familiarity with these new rules. That is ludicrously optimistic. To take the example of a managing director of a company in Birmingham—a city I know well—which trades across Europe and indeed the world, she can get to work on a Monday morning and will have absorbed the consequences for her business of a no-deal Brexit by lunchtime that day. Is that the Government’s professional opinion? I would be grateful for the Minister’s response.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Baroness, because we overlapped for at least five years as Members of the European Parliament. The noble Baroness referred to cosmetics; I think we will both remember the fevered exchange we had with constituents on animal testing. I echo her remarks.

I am sure my noble friend will be only too aware of the criticism that has been levelled at his department, and I feel for him most deeply, because this epic package is the surest cure for insomnia that any Minister could wish for. Could he put our minds at rest, and those of the members of the sub-committee? I am mindful of the problems we have already heard: this instrument had to be reissued because there were minor drafting errors in the original script, plus the fact that the impact assessment was published subsequently, which meant that the scrutiny committee was not able to perform its function because it did not have that document in front of it.

I do not detract from the fact that this is a very necessary piece of legislation, but I hope that this will not be the way forward. There will be instances where regulations fall naturally together, but the very number of pages here, and the fact that this has had to be repeated and that the impact assessment could not be packaged together with it, must surely be a cause of concern for the department. I do not want to go down this path again.

I have a number of questions. The sub-committee noted that there is considerable uncertainty, for reasons that have been well rehearsed, about the possible impact on UK consumers and businesses of leaving the EU’s product safety regime. Does the Minister share the concern of the scrutiny committee’s Sub-Committee B about the impact that the loss of access to EU product safety databases could have on UK consumers? Even at this late date, might the department be able to provide that information in writing to the committee before the SI transfers from here to the Chamber? That concerns me, given that it relates to offshore installations, other major industries and explosives as well.

I want to share one anecdote with my noble friend. In a previous ministry—it was the Department of Trade and Industry, under a Conservative Government, I think—it was decreed that second-hand toys could no longer be sold in charity shops because of the danger that the eyes and other pieces might be displaced and be a great safety risk to small children. What I was not prepared for was the amount of correspondence—in those days, they were hard-copy letters; people printed out a standard letter and we received multiples of it because we had thousands of constituents. That was an unintended consequence of the toy safety directive as it was implemented in UK law at that time. One might say that it was gold-plating, so it would be nice to know that nothing is being gold-plated here and that we are just transferring what is already in UK law. If my understanding is correct and we lose access to EU product safety databases, it must surely set alarm bells ringing.

With so many regulations or schedules to regulations bundled together here—and following on from what was itemised by the noble Baroness, Lady Crawley—is my noble friend convinced that we are not missing a matter of public policy here? This is our one opportunity to discuss it before we pass the regulations in the Committee and subsequently in the House.

--- Later in debate ---

We have continued to keep in touch with stakeholders and have updated them via email or in one-to-one meetings. We have attended a number of industry events to discuss the implications of no deal, including an event with the cosmetics association, the British Toy & Hobby Association and the British Retail Consortium, and there will be upcoming events with techUK. Therefore, we have had contact with as many organisations as possible and I hope that that regular contact has been of use to them. Certainly, we have not had any complaints from the various bodies involved.

[Baroness Crawley]

Will the Minister be kind enough to send me the list of organisations, businesses, market surveillance authorisations and consumer organisations involved in the consultation?

[Lord Henley]

I will certainly write to the noble Baroness on that and I hope that we can give further and better particulars, as they say in the law. She will then know exactly whom we have spoken to and I hope that she will feel content that we have gone out largely to the right people.

The impact on business was raised by a number of noble Lords. I explained what was behind the impact assessment, which was published on GOV.UK. We found the impacts as being de minimis; they are largely costs of familiarisation. I dare say that, because we are trying to replicate what already exists, familiarisation should not be too much of a problem. As is always right and proper, the impact assessment was shared with the Regulatory Policy Committee. I hope that the smooth arrangements we have put in place will help businesses in understanding that some of the new administrative requirements will make life easier and ease the impact of exiting the EU.

The noble Baroness, Lady Crawley, asked about the cosmetics database and whether I could guarantee that no consumer would be put at risk. She is right to emphasise the importance of this, because cosmetics can have a detrimental effect if not properly policed and supervised in the right way. The SI includes a requirement that all cosmetic products must be safe for human health. Each cosmetic product has a responsible person to ensure that it is safe before it is placed on the market. I assure her that preparations for the UK database are well advanced and trading standards has the power to take action against unsafe products.