Product Regulation and Metrology Bill [HL]

Lord Browne of Ladyton Excerpts

2nd reading
Tuesday 8th October 2024 Lords Chamber

[Lord Browne of Ladyton (Lab)]

My Lords, I am grateful both for the chance to contribute to today’s consideration of this important legislation and for the opportunity to follow so many well-informed and forensic contributions. As we have heard enumerated extremely well already, this Bill is broad in scope and application—as it needs to be to achieve its objectives. Against that background, and conscious that I am the 17th speaker today, I do not intend to detain your Lordships’ House for longer than it will take for me to focus on one or two specific elements of the Bill.

Before I do that, I commend and thank my noble friend the Minister for his excellent introductory speech to legislation that is complex and difficult to understand. He has taken to the Front Bench of your Lordships’ House as a duck does to water, and I commend him for that too. As other noble Lords have, I also commend, thank and congratulate my noble friend Lady Winterton of Doncaster, who made her maiden speech today. She made what I thought was a speech that can be made only by someone who has a flawless political touch.

For half of my noble friend’s 27 years in Parliament, in the House of Commons representing Doncaster, our careers as parliamentary politicians followed a similar path. We were both elected in 1997 and we were both given ministerial responsibilities in 2001, after our first term on the Back Benches. My noble friend went on to have—I think I have got this right—six additional jobs. In my case it was five, and that took us to 2010. At that point, our careers diverged; I retired from the House of Commons and was introduced to your Lordships’ House. My noble friend went on to hold, entirely appropriately for a parliamentary democracy, senior positions in the Government for a period of time and then senior parliamentary positions. I retired because I had this conviction that three terms in the House of Commons was the appropriate time to spend there and one should then move on. She is, in that respect, the living contradiction of my judgment.

In anticipation of having this opportunity to speak about her, I made some inquiries and did some research in the media that covers the Doncaster area, of which there is quite a lot. I can tell you that, whatever she says about why this is the case, it seems very clear that, in Doncaster, she is deeply respected, greatly admired and loved for who she is—there is no question of that. I can say, from the time we were together in the House of Commons, that she was deeply respected, she was universally admired across the House and she was loved. From the reaction of your Lordships to this one speech from my noble friend, it is clear that she is deeply respected and deeply admired—the love will come.

This Bill makes no mention of the UK single market act. In that sense, it is somewhat like “Hamlet” without the Prince. These two pieces of legislation may turn out to sit awkwardly together on the statute book, both purportedly governing UK internal trade. But, to introduce my first point, I draw your Lordships’ attention to the fact that this Bill does seem to be adopting an approach slightly distinct from that of the UK SMA in respect of the devolved Governments. I do not plan to explore that topic in any great depth today as I am sure this will be examined very thoroughly in Committee; if my former colleagues in the Law Society of Scotland have anything to do with it, they will guarantee that is the case. But I have a couple of questions to ask the Minister.

First, I understand from the Explanatory Notes that a legislative consent Motion is being sought from the Scottish Parliament. Given that the Notes further make clear that this process will apply only to Clauses 1 to 4 and 8 to 11 of the Bill, I ask my noble friend whether the Government plan to detail the discussions they have had with the devolved Administrations in respect of the legislative consent process. If they do not have such intentions, I urge them to get them because, from the point of view of our joint politics, it would be much easier to deal with these matters in the Scottish context if that is done.

Secondly, Clauses 1 to 4 and 8 to 11 empower the Secretary of State to make regulations in areas of devolved competence, but there is no requirement for him to consult with, or obtain consent from, Scottish Ministers before such regulations apply to Scotland. To forestall any possibility of this fact becoming yet another matter of unnecessary controversy during the implementation process, can my noble friend outline the circumstances in which regulations would be made without such consent being sought and granted—and, if it is not possible for him to do that today, will he write about it?

On the question of alignment, in the reaction to those elements of the Bill which concern the EU regulations, there are those who seem to believe that they can glimpse what TS Eliot described as

“the skull beneath the skin”—

that, behind what they regard as a designedly prosaic Bill, the Bill seeks to smuggle measures on to the statute book that would all but reverse Brexit, establish us as little more than a satrap of the European Union and condemn us, unthinkingly, to eight new European regulations as they emerge from the infernal bowels of the European Commission.

In that spirit, the Daily Express greeted this Bill with the typically understated headline “The Great Brexit Betrayal”, while another somewhat fevered headline suggested that this measure reduces Britain to nothing more than an “EU district”. Perhaps they are overstating things a little. This Bill offers nothing so apocalyptic, even for those who would regard greater EU alignment as inherently undesirable. Clause 2(7), for instance, would give the Secretary of State the power to declare UK product regulations met where these fulfil the requirements of the relevant EU law—this has already been referred to by others. This is caveated a little by the succeeding Clause 2(8), which makes it clear that this is subject to prior regard being given to the social, environmental and economic impact of EU alignment.

I know that Clause 2(7) has been particularly controversial, but there are a few points to make. First, this is an enabling power. It does not oblige the Secretary of State to accept EU regulations but gives him or her, an elected British Minister accountable to a sovereign Parliament, the ability so to do where it is believed that this would be in the UK’s national interest. Secondly, as the background briefing notes to the King’s Speech make clear, harmonisation is to be pursued only when

“it is in our interests to do so”.

This legislation also gives the Government the power to end recognition of EU product regulations where it is in

“the interests of UK businesses and consumers”

to do so.

The notion that regulation is inherently undesirable is flawed, to say the least. I will take the specific example of the chemical sector, where the enactment of the powers in this Bill could make a substantial beneficial difference. The last Government decided to leave REACH, the EU’s registration, evaluation, authorisation and restriction of chemicals regulation, to set up a parallel body. Since then, we have not adopted a single restriction on a harmful substance, compared with 10 new protections offered by EU regulation, including on harmful micro- plastics deliberately added to products. While REACH has regulated PFAs in the EU, not a single river or water body in England is in good chemical health.

As well as damaging wildlife and water bodies, these PFAs—so-called “forever chemicals”—have been found in high concentration in our drinking water, in pollution hotspots across the UK and even in our blood. Since we left REACH, the EU has initiated 23 risk assessments related to harmful substances while we have initiated just three. It may be that this is a function of a more vibrant, freebooting approach, or that we have superior data or a more effective methodology, but I fear it may just be that our duplicate body has simply proven less effective—which, in turn, imperils the safety of people in this country.

I have lost track of the number of Conservative Ministers I have seen in my 27 years in Parliament announcing their determination to kindle a bonfire of regulations, to take an axe to red tape or some similarly strenuous deregulatory measure. But the powers in this Bill that offer the chance for greater regulatory alignment will make trade with the EU easier across a variety of sectors, without any need for duplicate regulations. Indeed, Make UK, the manufacturers association, describes the Bill as “removing the uncertainty” created by the EU retained law Act, and giving Governments

“the ability to assess and implement EU product regulatory requirements into GB law for specific markets and categories”.

If I properly understood the noble Lord, Lord Redesdale, I agree with him when I say that few things damage trade law more than uncertainty and asymmetry. It is therefore unclear, at least to me, how the British Government being empowered either to adopt or end EU regulations according to a calculus of self-interest represents an irreversible slide into geopolitical irrelevance.

In case your Lordships have not got it, I welcome the legislation before the House today. I look forward to participating in the later stages of its passage and offer the Government my support in ensuring that it reaches the statute book.

Product Regulation and Metrology Bill [HL]

Lord Browne of Ladyton Excerpts

Committee stage
Wednesday 20th November 2024 Grand Committee

[Lord Kirkhope of Harrogate (Con)]

My Lords, I rise with no emotion in my voice—because, as noble Lords will appreciate, to be a Government Whip under Margaret Thatcher and John Major one had to leave emotion aside—to support Amendments 17 and 127, which bear my name. In doing so, I first want to speak to Amendments 6, 9, 15, 36, 37, 39 and 42. Obviously, I am against those amendments because they would fundamentally alter the purpose and practical operation of the Bill. If the aim of these amendments is to damage British businesses and our competitiveness on the world stage, noble Lords promoting them should say so. They should also be open with this Committee. If these amendments are simply a product of opposition to the EU or anything associated with the word “Europe”, they should make that absolutely clear.

This raises a critical question: who benefits from this approach? It is not British businesses. Our industries require clarity, predictability and coherence to thrive in competitive global markets. These amendments risk creating a fragmented system where businesses face the burden of navigating multiple and potentially conflicting regulatory frameworks. The UK has a proud history of robust safety and environmental protections. These amendments focus on what are termed “foreign laws”, without any clear guiding principle, and risk creating uncertainty about the quality and safety of products in the UK market. The outcome would be confusion for manufacturers, exporters and regulators alike. These amendments also prohibit the use of some dynamic alignment, a valuable tool for ensuring that our regulations remain relevant and competitive in an ever-evolving global market.

The European Union remains our largest trading partner. Its product regulations set a widely recognised global benchmark. Dynamic alignment allows us to align with the EU when it is in our interest to do so, ensuring that our businesses can access those markets while reducing additional costs or barriers. Denying this flexibility would leave the UK with an outdated and rigid regulatory framework to the detriment of businesses, workers and consumers alike. This introduces a potential free-for-all of standards with little clarity on how decisions would be made or who would be consulted. It is not the framework we need to build confidence in our regulatory system at home or abroad. These amendments represent a step backwards. They prioritise an abstract notion of flexibility over the real-world needs of businesses, consumers and our economy. They threaten to create a chaotic, fragmented regulatory environment that would disadvantage British industry and weaken our position in global trade.

I support the amendments I referred to that bear my name. I believe they offer a practical and balanced approach to regulating products in the United Kingdom. They would provide clarity for businesses by establishing alignment with EU product standards as the default position while, of course, maintaining the flexibility to diverge where clear benefits can be demonstrated. The EU remains our largest trading partner, as I have said, and its regulatory standards often set the tone for international markets. Aligning with those standards simplifies trade not only within Europe but globally; many third countries recognise those rules, and British businesses benefit from this de facto international benchmark. Diverging from EU standards risks isolating our industries, as I have said, and placing UK businesses at a competitive disadvantage.

The financial case for these amendments is equally clear. Without regulatory alignment, businesses face the double burden of not only having to navigate two distinct sets of standards but it not being bureaucratic. It is expensive: the Government’s impact assessment has shown that duplicating conformity assessments alone could cost businesses up to £1.6 billion over the next decade. There are many small and medium-sized enterprises that we should be particularly concerned about. These costs are insurmountable and may even deter them from exporting altogether. Our amendments would mitigate those risks by creating a framework of consistency and certainty.

I welcome the decision by the previous Government— my Government—to extend the recognition of CE marking indefinitely. This amendment would build on that precedent, turning an ad hoc decision into clear, predictable policy.

It has already been referred to but I draw your Lordships’ attention to the situation in Northern Ireland, where alignment with EU product standards is already a reality under the Windsor Framework. This approach would complement the Windsor Framework, ensuring that businesses operating across Great Britain and Northern Ireland have a consistent regulatory environment; reducing friction and confusion; and avoiding separate rules governing different parts of our country. I am sure noble Lords agree that that is desirable.

Our amendments are pro-business, pro-trade and pro-consumer. They reflect the realities of our interconnected world and would ensure that the UK remains an attractive place to invest, trade and innovate.

[Lord Browne of Ladyton (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Kirkhope. Tempted as I am to follow his lead and comment on some of the other amendments in this group—other than the ones I put my name to, that is—I shall resist that temptation. My intention is to speak to Amendment 17 only and, even then, in a restricted way.

Before I do so, I join others in congratulating the noble Lord, Lord Sharpe, on his new appointment. He and I have debated consistently and for a period a number of issues; I will miss those opportunities because it is unlikely that I will be back in this space, in policy terms, in future.

I do not intend to rehearse in any detail the arguments that have already been made. I just want to emphasise why this amendment is squarely consonant with the aims of this Bill and will increase our agility in providing British businesses with a greater degree of certainty. As my noble friend the Minister outlined at Second Reading, the Bill aims to underpin the UK’s position at the forefront of international trade and enable the recognition of EU product requirements where it is in the UK’s interests to do so. It is precisely in that spirit that I added my name to Amendment 17; in the short time I will detain the Committee for, I shall attempt to explain why I believe that this provision will smooth our path to accomplishing these goals. Perhaps most importantly, the Bill in general—and Amendment 17 in particular—aims to move beyond the wrangling consequent upon Brexit and to provide our businesses and industrial sector with the certainty they need and crave.

I have had occasion in other contexts to make the case that regulatory certainty does not diminish our economic strength but is a prerequisite for those businesses on which our economic strength depends. The certainty that Amendment 17 would provide will not inhibit economic animal spirits but will allow businesses to plan and co-ordinate their commercial activity with the same confidence that their competitors in the EU and elsewhere currently enjoy. It is for that reason that the 50,000 businesses represented by the British Chambers of Commerce, and those businesses belonging to the Engineering and Machinery Alliance, support the policy of dynamic alignment, which would be instituted by the adoption of this amendment. We have tried the inverse of this approach and ought to have learned the lessons.

The brave new world of a UK-only system for the regulation of goods and products was widely disregarded by domestic businesses, who overwhelmingly chose to continue to conform with the CE mark because it allowed them access to an exponentially larger market. Indeed, the previous Government’s own regulatory impact assessment in this area showed that some overseas suppliers stated their intention to limit product supply to GB if CE was no longer recognised. Overall, the then Government’s best estimate was that around 18,500 UK manufacturers were involved in affected industries and that the average annual value of all manufactured goods imported into the UK subject to UKCA or CE requirements was £110 billion, with around half of these imports from the EU. In 2019, products that were subject to UK or CE requirements represented around a quarter of all UK-imported goods. As we have heard, the previous Government’s own impact assessments of duplicative conformity and labour time, to which the noble Lord, Lord Kirkwood, drew our attention, estimated total costs of up to £1.6 billion over the next decade. As your Lordships’ Committee is aware, in May 2024, after repeatedly extending the deadline to transition to the UKCA, the UK Government admitted defeat and indefinitely extended the recognition of CE goods in GB markets.

As I said at Second Reading, I have lost track of the number of Conservative Ministers I have seen in my 27 years in Parliament announcing their determination to kindle a bonfire of regulations, to take an axe to red tape, or some similarly strenuous deregulation measure. If that really is their desire, there are few things better calculated than this amendment to obviate the need for business to undertake rigorous conformity assessments and, consequently, smooth the path for frictionless trade. As such, this amendment preserves the intentions of the Bill to update our regulations according to a calculus of national self-interest, giving our businesses regulatory certainty while still allowing us to diverge from EU regulations when it is to our advantage.

At the risk of repeating an element of my remarks from Second Reading, we have seen a parallel scenario emerge in respect of our chemical regulations. The last Government decided to leave REACH, the EU’s body dictating the registration, evaluation, authorisation and restriction of chemicals regulations, to set up a parallel organisation. Since then, we have not adopted a single registered restriction on a harmful substance, compared with 10 new protections offered by EU regulation, including on harmful microplastics deliberately added to products. While REACH has regulated PFAS in the EU, not a single river or water body in England is in good chemical health. Since we left REACH, the EU has initiated 23 risk assessments related to harmful substances, while we have initiated just three. It may be that this is a function of a more vibrant, freebooting approach, or that we have superior data or a more effective methodology, but I fear it may just be that our duplicate body has simply proven less effective, which in turn imperils the safety of people in this country.

Product Regulation and Metrology Bill [HL]

Lord Browne of Ladyton Excerpts

Committee stage
Monday 25th November 2024 Grand Committee

[Baroness Brinton (LD)]

My Lords, REACH regulations cover the safety of chemicals. We simply ask: how can the Bill regulate cosmetics without considering the safety of the chemicals used to manufacture them? I do not buy the idea that Defra is in charge of chemical regulations—in the same way that the DWP is in charge of the chemicals database, other than via its responsibilities in managing the Health and Safety Executive. I will come back to a regulation that the DWP presented to the Grand Committee last year. So, should the Bill ignore chemicals or not? We need an explicit reference in the Bill to cover it. We have talked a lot about AI but the use of chemicals is equally important, particularly in online marketplaces.

I am sure that the selection of EU REACH rather than British REACH will raise certain hackles. I would grab any REACH in a storm, but the EU one is a system that functions, unlike its British cousin, which has proved expensive to business and is failing to react to new challenges.

Over a year ago, I was substituting for my noble friend Lord Fox when the biocidal products regulations 2022 were being discussed in Grand Committee. I think that none of us, including the then Minister, if she were honest, knew very much of what we were talking about. However, it was the most illuminating regulation that I have ever taken part in. We discovered that this was, in essence, a time extension for the use of the EU chemicals database, because Whitehall had not understood that the day we left the EU, we would lose access to the chemicals database. As a result, the Health and Safety Executive had to take on a very large number of staff. Its chemicals sections had increased by 30% to try to rewrite the chemicals database while also consulting with users, whether they were manufacturers importing, exporting or creating in this country. We know that there are systems out there that work but because of our bizarre structures, we tend to have government departments that are not focused on chemicals.

The cosmetics industry imports many of its ingredients from the EU, and often in very small quantities. These would certainly be covered by EU REACH, because these sales represent such a tiny proportion of total production. If there were a substantive difference between EU REACH and British REACH, it is unlikely that the manufacturer would invest in accrediting its products in the UK, causing the UK cosmetic manufacturer either to stop making its product or to move manufacture to the EU—hence my noble friend Lord Fox’s proposal about REACH in this amendment.

Can the Minister confirm whether, under the terms of the Bill as it stands, if a product contains a chemical that was allowed by EU REACH but blocked by British REACH, and yet it conformed to QC standards, it would be legal in Britain? That is what this amendment seeks to clarify. Given the interconnected nature of the UK and EU chemicals industries, it offers a route for aligning the UK chemical regulation with that of the EU. But perhaps the Minister thinks that the current wording of Clause 1(1) means that it could be used to amend and update UK REACH to align with EU REACH. I beg to move.

[Lord Browne of Ladyton (Lab)]

My Lords, I will speak to both amendments in this group, and I thank the noble Baroness, Lady Brinton, for her introduction of them.

When examining the purport of these amendments and considering whether to include provisions that require us to adopt regulations that correspond with the EU’s REACH provisions, I suggest that the metric by which we should judge that is simple. Would doing so make the people of this country safer? Every other consideration should be secondary to that.

As I said both at Second Reading and in Committee last week—I apologise to those who have heard this before, but it is worth repeating—the past few years have seen a significant divergence between the UK’s approach to chemical regulation and that of the EU. The previous Government decided to leave REACH—the EU’s body responsible for the registration, evaluation, authorisation and restriction of chemicals and their regulations—and to set up a parallel organisation.

Since then, we have not adopted a single registered restriction on a harmful substance, compared with 10 new protections offered by EU regulation, including on harmful microplastics deliberately added to products. While REACH has regulated PFAS in the EU, not a single river or water body in England is in good chemical health. Since we left REACH, the EU has initiated 23 risk assessments related to harmful substances, while we have initiated three.

In considering why that is the case, I point to two contextual factors. This is not a function of the legislative constraints. The Government have the power under the EU withdrawal Act and Schedule 21 to the Environment Act to adopt new restrictions and controls where necessary. However, reviews undertaken by the NAO and the Public Accounts Committee in 2022 pointed to a lack of operational capacity and insufficient data as factors that have hampered the ability of the UK’s chemical regulator properly to do its job. For instance, brominated flame retardants were identified as a risk to health and globally significant exposure rates were identified in this country. Indeed, they were identified as a regulatory priority over two years ago and a review was promised. So far, no review has been published and it is difficult to discern how this apparent priority has been acted upon, if at all.

However, while the EU has added eight flame-retardant chemicals to its list of substances of very high concern, no substances in this category have been added to the parallel UK list. The EU restrictions road map has proposed a ban on brominated flame retardants while no equivalent step has been proposed, let alone planned. This is not because we have data which diverges from that upon which the EU has based its conclusions but because we are working more slowly. I vividly remember the promises of greater regulatory agility and speed which would inevitably result once we were free of the sclerotic influence of the EU. This example is but one of many—including lead in PVC, polycyclic aromatic hydrocarbons in synthetic football pitches and formaldehyde in wood furniture—which suggest that far from being more agile and responsive, our current system of chemical regulation is slower, less efficient and consequently less safe than its predecessor.

In April this year, Hazards magazine published a parallel analysis of the 25 new standards that have been introduced across the EU since our departure in 2020 and the UK’s response. Of the 25 standards, 12 were identical. There were 10 in which the UK’s standard was weaker, sometimes significantly. Only in one case has the UK adopted more protective measures than the European standard. Again, this is suggestive of regulatory incapacity as much as a deliberate exercise of our power independently to regulate.

Fiscal stringency creates significant challenges in remedying this situation, but both these amendments obviate the need for the otherwise necessary significant increase in investment in our chemical regulator. Ensuring that our domestic regulations correspond with those of REACH not only offers greater safety but removes a barrier to trade and promises to ease the burden on our chemical regulator which, as I said earlier, the NAO and Public Accounts Committee suggested has compromised its ability to work with appropriate speed.

At Second Reading, my noble friend the Minister said, in response to a question from the noble Baroness, Lady Brinton, that the Government are currently considering the best approach to chemical regulation in the UK separately to this Bill. In deciding our approach to these amendments, it would be extremely useful if my noble friend who is responding to this debate could at least give us an idea of the direction of travel on this. The noble Lord, Lord Fox, made the point also at Second Reading that the absence of such a Bill from the King’s Speech makes it unlikely that we will see it in this Session. That being so, what plans do the Government have, in the absence of adopting the amendments that are the subject of this discussion, to exercise the powers in Clause 2(7) to ensure that we catch up and keep pace with the EU chemical regulation?

--- Later in debate ---

[Lord Browne of Ladyton (Lab)]

If I have understood my noble friend’s response to this debate, do the Government accept the NAO and Public Accounts Committee’s assessment that UK REACH lacked capacity to do its job? If so, has Defra allocated sufficient funding to bring it up at least to the productivity of EU REACH in the quantity of assessments, recommendations and decisions that it makes? The statistics show that it is not doing anything much in this space.