Product Regulation and Metrology Bill [HL]

Lord Frost Excerpts

2nd reading
Tuesday 8th October 2024 Lords Chamber

[Lord Frost (Con)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Crawley, and a particular pleasure to hear the maiden speech of the noble Baroness, Lady Winterton. She has a distinguished career in government and in the service of her party. I am sure we all look forward to hearing her future contributions to your Lordships’ House.

I read the Product Regulation and Metrology Bill with great interest when it was published earlier this summer, and with not a little surprise because it was not foreshadowed in the manifesto of the party opposite. The Minister sought to present the Bill as a technical one, to downplay concerns and to suggest that there is nothing to see here. I agree, of course, that there are technical elements in the Bill, but the technical in this area is often highly political and there is a long history, I am afraid, from those involved in managing the relationship with the EU of obfuscation and lack of clarity about the obligations that are really being undertaken, so it is right that we look under the surface of what the Bill implies.

My basic concern is that the Bill goes further than a purely technical Bill really needs to. It goes further because part of the motivation behind it is indeed to revive a process of alignment of goods with EU single market laws. That is not just my interpretation; it is said in the quite frank briefing prepared for the King’s Speech before the summer break. I will refer to that from time to time. The core of the case for the Bill is that the Government need to be able to regulate new products and continue to give status to the CE marking in the UK. I agree with that in principle, but I do not think that aim requires this Bill in this form. I want to explain why and what my concerns are.

I accept that the Government need a power to regulate in this area. Of course, the Government always have that power. I think the Minister said that the UK simply did not have the powers. With the greatest respect, that is not correct. This Parliament has the powers to do anything it wishes. Of course, it has to do it by primary legislation if there is no other route, and in some areas it will probably be better so done, especially for genuinely new products breaking genuinely new ground. But let us accept that a regulatory power is needed.

The current power to update regulations and recognise the CE marking is the retained EU law Act, which we debated with such pain about a year ago. In fact, that power has been used very recently in the Product Safety and Metrology (Amendment) Regulations 2024, which came into force just a few days ago. Therefore, my first question to the Minister is: can he explain why it is not possible simply to extend the deadlines that do expire for those powers in the retained EU law Act? Why can they simply not be extended, and we proceed as we have done in the last year or so?

I think I know the answer to that: the Government want to do more than that. Specifically, I suspect they want a new set of provisions enabling dynamic alignment with EU law. As the briefing for the King’s Speech said, it will

“enable us to make the sovereign choice to mirror or diverge from updated EU rules”—

that is, to create a power to make sure that our law can automatically follow changes in EU law. Indeed, that is what we find in Clause 2(7):

“Product regulations may provide that a product requirement is to be treated as met if … a requirement of relevant EU law specified in product regulations is met”.


In other words, this is a power to reimport EU law concepts back into our system. It allows UK product standards to be described not in UK law terms but simply by a cross-reference to EU law. When that EU law changes, so ours will change. So my second question to the Minister is: can he confirm or deny that the intention is indeed to make simple cross-references to EU law in that way? Does he agree that such cross-references amount to dynamic alignment with EU law?

Similarly, Clause 1(2) enables the Secretary of State, by regulations, to make provision

“which corresponds, or is similar, to a provision of relevant EU law for the purpose of reducing or mitigating the environmental impact of products”.

Again, it is not clear exactly why this separate provision is needed, but EU rules on traceability are certainly increasingly complex and intrusive.

[Lord Falconer of Thoroton (Lab)]

Is it the noble Lord’s case that the Government should be prevented in any case from having the same regulations as the EU?

[Lord Frost (Con)]

I will come on to that. I am trying to get clarity about the purpose of this Bill and why it needs to go further than the powers we already have.

My third question is: can the Minister explain the purpose of the separate provision in Clause 1(2) and the situation it is designed to deal with? I will table amendments to this and other clauses.

Why are any of these provisions necessary beyond simple administrative convenience? The answer is that this Bill is entirely in tune with the lack of clarity that so often surrounded the detail of our relationship with the EU. It is simply the beginning of a path on which, without voters noticing—this is my point: we need clarity—we slip back, closer to single market-like trade arrangements.

Obviously, it is already true that, if a British company wants to export to the EU, its products must comply with EU law. What these provisions would do over time is require producers covered by them to produce in the UK, for the UK, to those EU standards, and make those EU standards the only legal standards on the British market, even when they are not good standards, or are complex or costly. This set-up is a core element of the way the single market works.

Simply mirroring those EU laws does not itself improve trade with the EU. There will still be customs and regulatory paperwork in those circumstances. The only way of eliminating that is to satisfy the EU authorities that our laws are in fact the same as theirs, and I suggest that they are very unlikely to be satisfied without the usual panoply of Commission and court enforcement—subordination once again to the EU authorities. After all, what other way is there for the EU to decide whether our laws genuinely mirror its laws, or to settle any disputes arising?

My further question to the Minister is this. Can he explain how he sees these clauses working in practice? What actual trade frictions does he see being removed as a result of using them? Will he give a commitment that, in conformity with Labour’s policy not to rejoin the single market, the Government will not agree to subordination to EU law or EU-style enforcement?

The Bill also constitutes another step—and this is rather unfortunate—in using the Northern Ireland arrangements to keep this whole country in line with EU rules in certain areas, as we had always feared. Once the previous Government had given up trying to dismantle or override the Northern Ireland protocol and instead agreed to support and enshrine it as the Windsor Framework, something like this Bill became extremely probable. The previous Government were at least discreet in discouraging officials from proposing reforms to goods standards for fear of complicating the Windsor Framework arrangements. The new Government are quite open about it. Their own briefing prepared for the King’s Speech says:

“EU changes to product regulation only apply in Northern Ireland, resulting in divergence within the UK internal market as EU laws are updated. This Bill gives the Government specific powers to make changes to GB legislation to manage divergence and take a UK-wide approach”.


The aim is absolutely explicit. So as we always feared, the Windsor Framework is being used as a tool to inhibit reform and change within GB—not that I think this Government plan to do much of that anyway—and to keep this country in the tractor beam pull of EU laws and rules without having any say in them. Does the Minister agree with his own briefing?

[Baroness Ritchie of Downpatrick (Lab)]

Would the noble Lord, Lord Frost, not accept that the Windsor Framework was a necessary instrument to ensure that trade could flow easily on the island of Ireland and to prevent a border being recreated there that would have been an encumbrance to trade, society, the economy and business development?

[Lord Frost (Con)]

The noble Baroness is probably familiar with my view on the subject: I do not agree with that. I think that it would have been much preferable to proceed with the Northern Ireland Protocol Bill that was then proceeded with in 2022, but that is really not to the point now. We have the situation that we have, and the effect of the Windsor Framework, whatever view one takes of it, is to create a massive incentive to push for GB rules to be kept in sync with those of the EU and in Northern Ireland. That is one of the effects that I think this Bill will create.

To finish up, I have a couple of technical questions. The internal market Act has already been raised.

[Lord Falconer of Thoroton (Lab)]

Will the noble Lord give way?

[Lord Frost (Con)]

Nobody else has given way, but go on.

[Lord Falconer of Thoroton (Lab)]

The noble Lord led me to believe by the way he answered my question that he would tell us whether he took the view that the Bill should positively prevent alignment in any area. Is he willing to answer the question now?

[Lord Frost (Con)]

I have not finished my remarks yet. Under the internal market Act, goods that are legally on sale in Northern Ireland—those meeting EU standards—may be sold anywhere in the UK already. That is one of the provisions of that Act. One might wonder about the point of this panoply of rules when we already have the internal market Act. It would seem unnecessary, unless perhaps the Government are concerned that the Windsor Framework might require them to bring in elements of Northern Ireland to Great Britain’s border at some point. Again, I wonder whether the Minister could answer that question.

The Government clearly want to go down this road because, whatever they say now, they want to make eventually rejoining the single market and customs union easier. I know from reactions to what I have been saying that many noble Lords regard this direction of travel as a good thing; they doubt this country’s ability to prosper as an independent country with its own rules and laws. I am afraid there is nothing to be done about those who have that opinion. To others who want this country to be a global trader, but without necessarily having our own rules for every single area, I say there is an alternative. It is one more consistent with our global aspirations and membership of the CPTPP, which the Government want to support.

The alternative is to make this country open to the best standards globally—that is my answer to the question that has been raised a couple of times—and to recognise that any goods produced in high-standard, well-regulated economies, such as the US, Canada, Australia, Japan and the EU, would be safe to put on our market. I accept not just the CE standard but similar conformity and standards from other developed economies, and where necessary we can develop our own. This is not just a fantasy; it is what the MHRA is already doing with its new international recognition procedure for medical products. Can the Minister explain why it is not possible to proceed in this way instead?

My speech has been quite long and I will wind up now, but there are important points about the purpose of this Bill that will shape the statutory instruments that will come before us at some point that need to be properly understood. We will put forward amendments in Committee to test the thinking behind some of these provisions and their purpose, and to perhaps reshape some of the more unsatisfactory elements of this Bill. To conclude, I have deep concern about the direction of travel and the direction in which this will take our regulatory framework. I look forward to hearing the Minister’s answers to my questions.