Consumer Rights Act 2015 (Enforcement) (Amendment) Order 2019

Baroness Neville-Rolfe Excerpts

Tuesday 25th June 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)]

My Lords, this order aims to strengthen the ability of the Office for Product Safety & Standards to carry out its role in leading the response to national product safety incidents and to ensure consistency across the product safety system.

The order has a threefold purpose. First, it will enable the Secretary of State, and the Office for Product Safety & Standards on his behalf, to investigate potential safety issues related to consumer products regulated by the General Product Safety Regulations 2005, using the investigatory powers listed in Schedule 5 to the Consumer Rights Act 2015. Secondly, it will enable enforcement authorities in the UK, including local authority trading standards, district councils in Northern Ireland and the Secretary of State, to use those same investigatory powers to investigate claims about gas appliances and personal protective equipment. Thirdly, it makes a minor amendment to the Measuring Instruments Regulations 2016, and to the related reference in paragraph 10 of Schedule 5, to correct a typographical error.

The majority of claims about unsafe consumer products that fall under the General Product Safety Regulations 2005 are investigated by local authority trading standards in Great Britain and by district councils in Northern Ireland. So why give these investigatory powers to the Secretary of State? Part of the remit of the Office for Product Safety & Standards, created last year, is to take the lead in a serious product safety incident that needs managing at a national level. The office published Strengthening National Capacity for Product Safety: 2018-2020 Strategy, setting out its approach to managing this sort of incident. This order continues the process of developing the office’s national incident management capability. It allows the office to investigate claims of unsafe products in the context of a national incident, where a local trading standards authority or other relevant enforcement authority lacks the resources or expertise to do so. It does this by giving the office equivalent investigatory powers to those of local authority trading standards.

The order provides the full range of powers contained in Schedule 5 to the 2015 Act. This schedule includes powers to require the production and potential seizure of documents and to inspect and purchase products, as well as to test equipment and seize and detain goods. These are essential aspects of undertaking effective checks and actions in relation to unsafe goods. It is vital that our new national regulator has these powers across the broad spectrum of consumer products. These will enable it to provide leadership in incidents of national importance. The Secretary of State, and the Office for Product Safety & Standards on his behalf, can already exercise these powers in relation to the enforcement of sector-specific regulations, such as those for electrical equipment and lifts. The Government want to ensure that the Secretary of State can lead across the wide range of consumer products, not just those that fall under sector-specific regulations. The order therefore allows the Secretary of State to investigate any type of product covered solely by the General Product Safety Regulations 2005, should the need arise. The office will thus have the authority to provide the leadership and action needed to deal with national incidents.

The second purpose of the order is to make sure that the Secretary of State, local authority trading standards in Great Britain and district councils in Northern Ireland can investigate safety issues concerning gas appliances and personal protective equipment. New regulations were introduced last year by the negative procedure and this order provides for the amendment of the Consumer Rights Act by affirmative procedure. It now enables enforcement authorities to use the investigatory powers in Schedule 5 in relation to these products covered by the 2018 regulations.

Finally, the intention underpinning the enforcement of the Measuring Instruments Regulations 2016 has always been that the enforcement authorities should have access to the investigatory powers in Schedule 5. This order corrects that typographical error in the relevant provision in both the regulations and Schedule 5.

In conclusion, the order improves the ability of the Secretary of State to investigate claims about unsafe consumer products, protecting consumers and preventing injury and loss of life. It ensures that the Office for Product Safety & Standards can fulfil its regulatory role in the area of product safety by leading and co-ordinating responses to national product safety incidents across the wide range of consumer products within its remit. It enables the Secretary of State, local trading standards and district councils to investigate the safety of gas appliances and personal protective equipment regulated by the 2018 regulations. It contributes to the Government’s aim of promoting and protecting law-abiding businesses by preventing unfair competition through the placing of unsafe products on to the United Kingdom market. I commend the order to the House and beg to move.

[Baroness Neville-Rolfe (Con)]

My Lords, I support this measure, which will improve the enforcement framework for unsafe consumer products—always a concern of mine because of my background in retail and at the business department. I want to raise two issues. The first is the adequacy of resourcing for trading standards in their important work on product safety. I welcome the new Office for Product Safety & Standards in Birmingham and hope that, through the Minister’s good offices, some of us might be able to visit it on some future occasion. Local authorities are squeezed. I fear that trading standards, which do such an excellent job across the country, do not have the funding they need to tackle product safety and product counterfeiting, which is often a cause of safety incidents in some local authority areas.

The second issue is Whirlpool. I would like an update on the recall of Whirlpool tumble dryers. I am not entirely clear on what this SI adds in the case of electrical white goods, which, as the Minister said, are already regulated, but Whirlpool is mentioned on page 3 of the Explanatory Memorandum and the 10 days of BEIS consultation on the recall are nearly up. What are the Government’s plans in respect of this matter and, even more importantly, of future enforcement of product safety more broadly? What are the criteria for recalls and speed of response, which in the case of Whirlpool has sadly been very slow—I think nearly four years, although I must commend current Ministers for moving ahead on that. Can the Minister clarify the numbers involved? I understand from Which? that the recall will involve 300,000 to 500,000 dryers, which is a fall of about 500,000 in the department’s estimate of the number of unmodified dryers since last year. Yet only some 50,000 have been modified since then, so I do not see how the numbers add up. Can the Minister also kindly advise—in writing if need be, because I appreciate that these are detailed questions—on the number of modified dryers that have caught fire, and on why the Government are comfortable, as stated in Parliament on 17 June, that they are low risk. I hope for all our sakes that this judgment is correct. We should give the owners of modified dryers further comfort if that is possible.

[Baroness Burt of Solihull (LD)]

My Lords, I thank the Minister for his explanation of how the investigatory powers of consumer law enforcers will be consolidated and simplified through this statutory instrument. It seems that these measures are needed in the face of mounting consumer concerns over the safety of the products that we buy.

It seems eminently sensible for the Secretary of State, or the Office for Product Safety & Standards on his behalf, to be able to investigate claims about unsafe consumer products falling within the ambit of the General Product Safety Regulations.

--- Later in debate ---

[Lord Henley]

My Lords, I think the noble Baroness is probably right that Whirlpool has absorbed something in the order of 14 different companies, so that what an individual will think of as an X machine is in fact a Whirlpool one. If it is possible to publish that list, I will certainly make it public; I do not think that there is any secret about it. The important thing is that we try to identify as many of those who still have unmodified machines so that they can be identified. My understanding is that Whirlpool—I do not speak for it—has already achieved considerable success in previous recalls in identifying quite a high percentage of potential owners of machines, certainly compared with other recalls that have happened. However, it will probably be better if I write in greater detail to my noble friend, copying it to the noble Baroness, on the names of the individual companies to deal with that point at greater length.

[Baroness Neville-Rolfe]

A letter from my noble friend would be extremely helpful. Regarding food safety, which I also know a lot about from my background, there was a practice whereby unsafe products would be listed in a newspaper or on a website almost as a routine matter. Even if for some reason it is not possible to do that on this occasion, that is one of the criteria that should be looked at for the future so that when there is publicity about a product safety problem, consumers can check easily whether there is an issue with their machine.

[Lord Henley]

Again, my noble friend is absolutely correct. I can remember seeing campaigns of exactly that sort. It is important for the consumer, or rather the original purchaser of a machine, to be able to identify what it is, which is why on occasion there have been such advertisements, as my noble friend points out. As I said, I would prefer to write in further detail to her on that issue.

I will now deal with the whole question of resourcing, not only of the new OPSS but of local authorities. As we have made clear, some £12 million has been made available to the OPSS, and we believe that that figure is an adequate sum. My noble friend asked whether she could visit its office, and I am sure that such a visit can be arranged through my department. If she would like to get in touch, we can send her up to Birmingham as soon as the Whips allow such visits to take place, and if other noble Lords wish to take part, that is obviously a matter for them. That money is for the OPSS; local authorities are funded through the general local authority grant, and there is no ring-fenced budget. However, we believe that, whatever difficulties local authorities might have, by giving the OPSS equivalency of investigatory powers, it can certainly support trading standards at a local level. The support of the OPSS, which employs some 300 staff, can be of extraordinary use to local authorities, providing training, for example.

I turn next to the question of EU exit, raised by the noble Baroness, Lady Hayter. Again, I make it clear that—although this issue is possibly beyond my pay grade—delivering the negotiated deal remains the priority and we continue to make appropriate arrangements in the event of no deal. We have created a new, UK-specific market surveillance database that will allow market surveillance authorities to record product safety and compliance incidents. That database will give the United Kingdom a rapid alert mechanism for dangerous products which will allow for product recall to protect consumers.

I turn now to the impact on small business. The noble Baroness, Lady Burt, was worried about the lack of an impact assessment. There is no impact assessment because the order gives powers to public bodies and does not place a burden on business itself. A full impact assessment was carried out in 2013, which I can make available to her. It concluded that there was a zero cost to business and a net benefit to business of £5.3 million by consolidating and simplifying the process. There is no reason to assume that those underlying assumptions have changed.