Product Regulation and Metrology Bill [HL]

Lord Hope of Craighead Excerpts

Report stage
Wednesday 5th March 2025 Lords Chamber

Moved by

[Lord Hope of Craighead]

31: After Clause 4, insert the following new Clause—
“Product regulations: devolved administrations(1) Product regulations under section 1 may not be made unless and until the Secretary of State has consulted the devolved administrations as to their impact and effect on the marketing and use of products in the areas within the United Kingdom over which they have legislative competence. (2) The Secretary of State may by regulations exclude the application of this Act to products to be marketed or used in areas within the United Kingdom over which the devolved administrations have legislative competence to enable effect to be given to an agreement that forms part of a common framework agreement.(3) A “common framework agreement” is a consensus between a Minister of the Crown and one or more devolved administrations as to how devolved or transferred matters previously governed by EU law are to be regulated.”Member’s explanatory statement
This amendment ensures that devolved administrations are consulted before regulations are made under this Part of the Act, and that common framework agreements receive the same protection to enable them to receive effect as they have under section 10 of the United Kingdom Internal Market Act 2020.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to the noble and learned lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Fox, for adding their names to this amendment, which is in my name. The amendment seeks to insert into Part 1 a new clause, which has two objectives. The first is to ensure that, before any regulations are made under this part, the devolved Administrations are consulted on the impact and effect of the marketing and use of products in the areas over which they have legislative competence. The second is to prevent agreements that have been made under the common framework system being nullified by any of these regulations.

As far as the first objective is concerned, this Bill extends to England, Wales, Scotland and Northern Ireland. Product and consumer safety standards are reserved matters in relation to Wales, Scotland and Northern Ireland. That has been acknowledged by the Government, as noted in paragraph 10 of the Explanatory Notes. While the Bill makes provision as to what is to happen in each of the jurisdictions within the United Kingdom, it does not contain any provisions which require the consent of—or at least consultation with—the devolved Administrations before the wide-ranging powers to make regulations under Clauses 1 and 4 are exercised.

The problem which comes up time and again as Bills pass through this House is that the Sewel convention does not extend to delegated legislation, so it cannot be said that UK Ministers are required by convention to seek the consent of the devolved Administrations before exercising these powers. That is why the Constitution Committee, which always keeps a close eye on these matters, has recommended on numerous occasions that engagement with the devolved Administrations should be a formal requirement.

As far as this Bill is concerned, there is at least a risk that, unless something is said about it in the Bill, product regulations made under Clause 1 will engage matters which are not reserved to the UK Ministers in ways that would impinge significantly on devolved competence, without the devolved Administrations being involved at all. That is why, in paragraph 34 of its report on the Bill, the Constitution Committee suggested that clarification is needed from the Government

“as to the processes of consultation and consent it intends to apply”

if the powers in the Bill are used

“to make regulations in areas of devolved competence”.

I suggest that my amendment offers a sensible solution to a point that is of very real concern to the devolved Administrations. It does not require their consent. There is no need to go that far, because “close and timely” consultation—to use the Constitution Committee’s own phrase—would be enough to sort out things in a way that satisfies both sides. Consultation, not consent, is what this proposed new clause would require.

I am very grateful to the Minister and the Bill team for the way in which they engaged with me when we discussed this issue a few days ago. I hope very much that he will feel able to assure me that the Government will take this point seriously, and that they will bring forward an amendment that deals with it in their own words in due course. I look forward to his reply, but I would also welcome any guidance he can give as to the extent of the legislative process with both Wales and Scotland—that would be very helpful.

The second objective relates to the common frameworks. They were created to ensure that a common approach was taken so that some measure of consistency was achieved across policy areas returned from the EU which intersect with devolved competence. Their engagement with devolved competence matters, because one of the features of the way these matters were handled within the EU was that it enabled a devolved Administration to diverge from other parts of the United Kingdom as to how matters that were within its devolved competence should be dealt with. The way the system works is that there is a process of consultation that enables a proposal for divergence to be discussed to enable its effect—if any—on the other parts of the United Kingdom to be identified and assessed. It is only if and when agreement has been reached that it would not disadvantage the other parts of the UK that the proposal can proceed to enactment.

That system was already up and running when what became the United Kingdom Internal Market Act 2020 was introduced. The market access principles which that Act contains are designed to ensure that there is a single market across all parts of the UK. Central to its provisions is the principle that whatever is done by way of marketing or the use of products that is compatible with the legislative framework in one part of the UK can be done everywhere else, irrespective of what the legislative framework elsewhere may provide. A provision which is now Section 10 of the Act was inserted into the Bill to enable the Secretary of State by regulations to exclude the application of those principles to enable effect to be given to a common framework agreement.

Subsections (2) and (3) of my proposed new clause are designed to give a common framework agreement the same protection against what product regulations under this Bill may provide for. Without that protection, agreements of that kind run the risk of being rendered unenforceable. As with Section 10 of the internal market Act, I am proposing that whether or not to exercise the power should be at the discretion of the Secretary of State. It is a very light touch to what could be a very real problem.

I appreciate that the system that this Bill seeks to introduce is not the same as that provided for by the internal market Act. It may also be said that the common frameworks are now so well established that they do not need this protection, but we must remember that this is a system that looks to the future as well as the present, as indeed this Bill does too. So we have to allow for what frameworks may do in the future in a way that we cannot foresee. I hope that the Government will feel able to provide the same protection here as was agreed to in the case of the internal market Act by the previous Government. I beg to move.

--- Later in debate ---

[Lord Leong (Lab)]

My Lords, I thank the noble and learned Lords, Lord Hope and Lord Thomas, and the noble Lord, Lord Fox, for Amendment 31, which concerns consultation with the devolved Governments, and common frameworks. I know I speak for the whole House when I say that the noble and learned Lord, Lord Hope, brings to the fore his knowledge and passion on the subject of devolution and illustrates the very best aspects of the scrutiny function of this House. I certainly valued his insight when we met to discuss his amendment on 30 January.

As mentioned at that meeting, and before I address the substance of Amendment 31, I reiterate that the Government are committed to working collaboratively with devolved Governments. I have met with my ministerial colleagues in all three devolved Governments and my officials are continuing to have discussions at official level with their counterparts. Those discussions have been extremely constructive, and I thank the Ministers and officials from the devolved Governments for the constructive and positive way they have engaged with the Government on this important piece of legislation.

Noble Lords will appreciate that the Bill deals with complex areas of product regulation. Consequently, the Government are not in a position to bring forward devolution amendments at this time, while discussions are ongoing. This is not unprecedented or novel. Indeed, many devolution amendments are brought forward in the second House, and the Government expect that this will be the case with this legislation.

This amendment would ensure that the devolved Governments are consulted on matters in devolved competence under the Bill and that the Secretary of State has the power to exclude the application of this requirement for matters covered by a common framework where a relevant agreement is reached. I reassure the House that the UK Government will continue to ensure that the devolved Governments are properly consulted when discussing product matters that are devolved or that impact within devolved areas. For example, in Committee, we set out some of the ways we engage with devolved Governments already, including the goods regulation group, run by the Department for Business and Trade, which met recently on 9 January, when this Bill was discussed.

Amendment 31 also touches on common frameworks. It is unlikely that products affected by regulations made under the Bill would fall under any extant common framework. That is because of the tight scope of the common frameworks. Therefore, the specific subject matters currently covered by common frameworks are unlikely to intersect with the subject matter of this Bill. However, the UK Government are actively considering their broader approach to common frameworks and will keep this under review. As the noble and learned Lord, Lord Hope, so eloquently set out in Committee, the purpose of common frameworks is to facilitate a joint approach with devolved Governments where policy is GB-wide.

I reassure all noble Lords that working closely with the devolved Governments is a priority and will take place on regulations made under the Bill, whether the products in question fall under a common framework or not. Consequently, while ministerial and official-level discussions are ongoing, I ask that the House does not pre-empt the outcome of those discussions by agreeing this amendment. I remain confident that, through our continued positive engagement with devolved Governments, we can reach a mutually beneficial solution, and I am happy to keep the House abreast of developments. In that light, I respectfully ask the noble and learned Lord to withdraw the amendment.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to all noble Lords who took part in this short debate, and especially to the Minister for his very helpful reply.

On the first part of my amendment, which concerns consultation with the devolved Administrations, I absolutely accept this Government’s commitment to close co-operation. I am sure that those in the devolved Administrations are equally grateful for the way in which this Government are engaging with them, which is a considerable improvement from what it was not so long ago. However, one must remember that Governments change, and undertakings that are genuinely given on behalf of this Government by the Minister may not last for ever. That is why the noble and learned Lord, Lord Thomas, emphasised that putting something into the legislation is so important. I am sure that that matter will require careful consideration in the other House, when the Bill goes there. On that basis, I am happy to accept the assurances the Minister has given me.

On the common frameworks, I was encouraged to learn in our discussion that they are now being overseen by the Cabinet, which was not the case at an earlier stage. The fact they are being overseen there is itself an assurance that the matter is being properly looked after. I hope that the Government will keep an open mind as they more carefully think through this. They must bear in mind the point made by the noble Lord, Lord Fox, that we are looking into the future as well as at the position now; that is an important factor. With grateful thanks to the Minister, I beg leave to withdraw my amendment.

Amendment 31 withdrawn.