Product Regulation and Metrology Bill [HL]

Earl of Lytton Excerpts

Committee stage
Wednesday 20th November 2024 Grand Committee

[Lord Goodman of Wycombe (Con)]

My Lords, I congratulate my noble friend Lord Sharpe on his appointment. I support his Amendment 1 and apologise for not having had the opportunity to be present at Second Reading, but I am a member of the Delegated Powers Committee and thought that I would make a few points that arise from our report.

I join my noble friend Lord Jackson in thanking the Minister warmly for the courtesy that he has shown us and the time that he has spared us over the past few weeks. When the Minister came to the Select Committee, I got the short—or long—straw and was given the questions to ask about European alignment or divergence, so I went back over the Second Reading debate. I have no intention of repeating the arguments there but, essentially, I saw that my noble friends Lord Jackson of Peterborough, Lady Lawlor and Lord Frost all suggested that the Government had a policy of alignment, while it was suggested by some on the Government Benches and Cross Benches that it would be better to have a policy of alignment rather than one of divergence.

I note in passing that UK in a Changing Europe has now produced a report which suggests that the Government are moving towards some form of alignment. If I heard the noble Lord, Lord Livermore, correctly in the Chamber during Oral Questions, that seemed to be the general flavour of his answers. My concern is not to get into the policy issue. It is simply to make the point that the Minister may be correct that the Government have no intention of having a policy of either alignment or divergence, but will simply take each regulatory decision as it comes. Even so, Ministers and policy can change.

What we have run across here is, as my noble friend Lord Jackson said, a gap in scrutiny that has arisen since we left the European Union and now that Bill Cash’s committee in the Commons, which used to examine European legislation, is no longer present. I say this in no spirit of party-political animus. After all, my party has been in government for a period since Brexit and has not corrected the position, but the Government now in office have a chance to correct it.

It might be worth quoting, as I close, what the committee said in conclusion about the powers that the Government propose to take under the Bill. It said boldly:

“In our view, the delegation to Ministers of law-making powers in this Bill involves legislative power shifting to an unacceptable extent from the democratically appointed legislature to the Executive”.


We need some form of being able to scrutinise the decisions that a whole series of regulations may make, as well as to debate and decide whether they represent a policy of alignment or divergence, and to probe the matter. The solutions may lie in the ideas floated by the noble Lord, Lord Anderson, a few moments ago or elsewhere, but there clearly is a gap. The committee has been concerned about similar gaps in legislation ever since it produced its Democracy Denied? report in 2021.

[The Earl of Lytton (CB)]

My Lords, I too was unable to be at Second Reading, so this is my first occasion to make comment. I preface my further remarks by thanking the noble Lord, Lord Leong, for his courtesy and for arranging what I can describe only as a very impressive array of his officials and Bill team members—much better than I think I really deserve.

I have spent nearly 50 years in practice as a chartered surveyor and a lot of that time has been involved in construction. I will not dwell on things that will come up later, on Amendment 46 in my name, but construction is one of the areas where there is an absolute fog of commercial relationships over products, their use and their assembly, which it seems important to raise at this juncture. It is a fog of commercial relationships, collateral warranties, responsibilities, product substitution, legislation and oversight of one sort or another—or a lack of it, as the case may be. Of course, the whole question of building safety has been very much in the news recently.

Turning to the report of the Select Committee on this Bill, I am taken by the comments of the noble Baroness, Lady Crawley, because she gets to the nub of the issue about consumer safety. Who are we doing this for? That must ultimately be the focus. Looking at the mural at the far end of the Room and noting Moses handing down the tablets, I get a sort of 10 commandments moment here, but I am not going to bore the Committee with 10 of them because I have only eight.

First, items should be of merchantable quality. There has to be a duty of care, especially to end users: those whom one can expect to have to use them in real life. Those who put them together may be a stage on the way but they are not the end user. Secondly, they have to be fit for the purpose stated, including their durability. Thirdly, they have to be correctly and comprehensively described, without descriptions that mislead or confuse. Fourthly, they have to be adequately and independently tested, and assessed for their purposes as intended—and where have we seen that fall down?

Fifthly, they have to be installed or assembled as recommended for their intended application, and there needs to be a clear audit trail for how that happens. The more complicated and risk-sensitive the outcome is—I suspect that in the case of buildings and construction, particularly residential buildings, that is a very high risk if you get it wrong—then it has to be assessed accordingly. Sixthly, there has to be adequacy of oversight. That is fundamental. Seventhly, there has to be effective enforcement, with clear responsibilities and duties and a means of making sure that that can be checked and regularly revisited. Finally, there have to be consequences for infractions and culpable non-observance, in the same way as there were some years ago for health and safety at work. A regime of strict liability with consequences at corporate and director level sharpened up everybody’s act no end and produced a substantial improvement in casualty and death rates, particularly in construction.

That is the analysis that should be involved in dealing with this Bill. If you have a paving Bill, you have to make clear rules. We still have the 10 commandments with us. What is it about “Thou shalt not bear false witness” that is not understood? These things have to be durable, they have to survive changes in political tone and international relationships, and they have to survive scrutiny at the level that the noble Lord, Lord Anderson of Ipswich, will be familiar with; that is, of the courts and of people who are experts in examining these things.

At this stage, it is relevant to talk about these many amendments—I broadly support the thrust of what they are doing—and set them in the context of getting the simple arithmetic right because if we drill down too much into the detail, we will try to second-guess what a Secretary of State may try to do somewhere down the line when the circumstances are different. If we can get those core principles right, this will endure and be of genuine benefit and use for future generations.

Product Regulation and Metrology Bill [HL]

Earl of Lytton Excerpts

Committee stage
Wednesday 27th November 2024 Grand Committee

Moved by

[The Earl of Lytton]

46: After Clause 2, insert the following new Clause—
“Construction product safety: regulations and requirements(1) Within twelve months of the passing of this Act, the Secretary of State must, by regulations under section 1, make provision to reduce risks as defined in section 1(4) presented by construction products.(2) For the purposes of this section, construction products include, but are not limited to, any components used in the construction of buildings, such as external cladding.(3) Within twelve months of the passing of this Act, the Secretary of State must also make provision about construction product requirements by regulations under section 2.(4) Regulations under subsection (3) must set out requirements for the production, use, marking, marketing, testing, approval and provision of information (including information about risk) of construction products.”Member's explanatory statement
This amendment intends to probe whether the Secretary of State will use powers under sections 1 and 2 to regulate products used in construction.

[The Earl of Lytton (CB)]

My Lords, members of the Committee will be aware that there are concerns relating to the suitability and safety of construction products, especially in the light of the Grenfell phase 2 report, and will know my professional interest in this area.

First, I pay tribute to the clerks in the Public Bill Office for their help in drafting this amendment, although its objectives and the rationale behind it are entirely my responsibility. I consider that the amendment speaks for itself in probing the Government’s intentions and resolve in bringing construction products specifically within the Bill’s scope, although they are not excluded, either by the Long Title or by the matters listed in the Schedule. My underlying purpose is to clarify this Bill’s specific focus in the objective regulation of a construction-related product’s inherent characteristics rather the nature of its use, particularly in combination with other products. To put it another way, it is concerned with the regulation, testing, certification and marketing of products for their specific stated use and application—namely, the aims of the Bill.

The British Board of Agrément—the BBA—is one of the main industry certifying bodies for construction products. In virtually all the BBA certificates I have looked at, it is made clear that the approval is for the specific use and application as presented. This is logical because behind every approval is an assessment or test of some kind that will be specific as to the proposed use. However, we know from the Grenfell phase 2 report how things can be misrepresented. Of course, none of this prevents misuse of some sort, or abuse, but it starts to clarify responsibility as applying to those who have true agency in the specification and use of products, especially where fire safety is concerned. I hope this gives the Minister an opportunity to confirm that, so far, I have got this right.

At the meeting with the noble Lord, Lord Leong, and officials, for which I thank him, it was suggested that while the provisions of the Bill cover construction products, in all probability any regulations would be made under a different legislative provision, such as the Building Safety Act 2022—so I looked in that Act for the word “regulation”. I got 650 hits, which sounds a bit like Henry VIII on steroids, I am bound to observe. I alighted on paragraph 10(1) of Schedule 11 to that Act which states:

“For the purposes of this Schedule, “safety-critical products” means construction products which are included in a list contained in construction products regulations”.


It is getting a bit circular, I suspect. Sub-paragraph (2) states:

“A construction product may only be included in a list under sub-paragraph (1) if … in the view of the Secretary of State any failure of the product would risk causing death or serious injury to any person”.


I would be grateful if the Minister could confirm that I am right in believing that this is the relevant regulation-making measure that might be used in the Building Safety Act to implement some of the provisions of this Bill, if they are not implemented directly. If so, it has to be noted that the Building Safety Act relates to critical life-safety risks to persons, first and foremost. The Bill does not use that metric, so I consider that the relationship between this Bill and the BSA, for example, needs further clarification.

It has long been my professional assessment that if a building is robust, occupant safety is likely to be assured as well, but focusing on critical fire risk which interests itself only with occupants’ risks consigning them to significant risks of an emotional and financial nature if the building lacks durability and is effectively considered expendable. In terms of human life, that is absolutely the right approach, and I get that, but in terms of mercantile practice and peace of mind, it is a philosophy with gaps, especially if the general Building Safety Act approach is one of proportionality or tolerable risk—although I question by whose objective standards those might be measured, but that is another question.

So if I am correct, even allowing for the point that a building is not “product” as a term of art, why regulate such an important matter as construction products to be used in a residential block via different standards as compared with, say, those for a fridge-freezer or a washing machine? As set out in Clause 1(4)(c), we are concerned with a product that could “reasonably be foreseen” to cause damage to property. How is that, in the case of buildings under the BSA, a proportionate or tolerable risk to life? In the Government’s view, does the latter include the former? If so, I would be delighted to get confirmation of that; it is something that I tried to get hold of right the way through the then Building Safety Bill’s time before us. If not, how does the BSA afford the implementation of product safety in construction products?

Note if you will that the assemblage of products and processes used as someone’s home represents their place of safety. It is often their largest investment; it is also often incomparably more valuable an entity than most consumer products, both to them and in market terms. So standards and regulation matter very much. I invite the Minister to enlighten the Committee on this apparent legislative inconsistency.

Had this amendment been debated earlier in the evening, I might have been tempted at this point to have a little rant about British Standards being set behind a paywall—as well as the invidious nature of that when they are also embedded in regulation; the regulation is open source but the BS is not—but I will leave that matter in part to one side for the moment. I appreciate that some of the points I have mentioned go beyond what I discussed in the meeting with the Minister so, if he is unable to answer them right now, perhaps he could write to me before the next stage of the Bill. I beg to move.

[Lord Fox (LD)]

I will briefly respond to the noble Earl. He is right to raise this issue, which is clearly important; we look forward to seeing how the Government respond to it. There are serious issues that need to be addressed somewhere. As has been observed by the noble Lord, Lord Sharpe, and others, the open nature of this Bill offers an opportunity for things like this to be properly discussed and to be, if not solved in this way, perhaps solved in another way.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is very good to respond to this debate. I am delighted that the noble Lord, Lord Fox, sees that there is some advantage in the way that we have drafted the Bill.

I thank the noble Earl, Lord Lytton, for raising what is a really important matter. We all recognise that there are failings in the system by which construction products are tested, assured and made available for sale. The noble Earl described his amendment as probing whether the Government are prepared to use the powers in Clauses 1 and 2 to regulate products used in construction. The noble Earl has huge professional expertise. He referred to the BBA and the specific approval given but warned of the risk of misuse; I very much take that point.

The straightforward answer is that we think this issue is very important. We intend to bring forward robust regulatory reforms in order to provide confidence in the construction products regime and to ensure that only safe products are used in buildings and infrastructure. To that end, we also intend to ensure that the testing and assessment of products’ conformity must be undertaken by those who are competent, impartial and effectively held to account. We have committed to working with the sector on system-wide reform, including examining the institutions that play a key role in the construction products regime, so that businesses and, in particular, consumers can have confidence in the products and services they purchase. The proposed new clause to be inserted after Clause 2, through the noble Earl’s Amendment 46, would place a duty on the Secretary of State to use the powers and to make provision for construction products regulations within a year of Royal Assent of the Bill.

I turn now to the Building Safety Act 2022, about which the noble Earl made some interesting points. That Act already includes powers to introduce construction product requirements and regulations. We are exploring how best to use those available powers, including their sufficiency—I take his point on that—as part of considering system-wide reform. He will know that since the Grenfell tragedy in 2017 some action has been taken on construction products, but we know that more needs to be done.

In December 2018, regulations came into force that banned the use of combustible materials in and on the external walls of buildings over 18 metres. The national regulator for construction products was established in 2021 and leads on market surveillance and enforcement of construction product regulation across the UK.

The Government extended the period of recognition of CE marking for construction products in September this year to give the industry sufficient certainty to support supply chains and to allow time to address the inadequacies across the wider construction products regime, but we recognise that this action is piecemeal and does not go far enough. We have confirmed that we will respond to the Grenfell inquiry within six months. We are also committed to bringing forward proposals for system-wide reform of the construction products regulatory regime.

I have listened very carefully to the noble Earl’s analysis of the Building Safety Act and his suggestion that it is not sufficient for our purposes. We are considering this and I will write to him in some detail about the points he has raised. But to be fair to him, I have to say that this Bill does not specifically exclude construction products and that there could be an opportunity to use the Bill powers in the future should we discover that the Building Safety Act 2022 may be insufficient.

I hope that he will accept this as a positive response to the issues he has raised.

[The Earl of Lytton (CB)]

My Lords, I am very grateful to the Minister for that reply and I am certainly prepared to accept what he says in relation to the Government’s intentions. I will need to consider very carefully what he has said, particularly if he is writing to me—I am grateful for that offer. I will consider things in the light of that.

Without further ado and given the hour, I simply beg leave to withdraw the amendment.

Amendment 46 withdrawn