Product Regulation and Metrology Bill [HL]

Lord Hunt of Kings Heath Excerpts

Wednesday 20th November 2024 Grand Committee

[Lord Sandhurst (Con)]

My Lords, I will speak to Amendment 10, in the name of my noble friend Lord Sharpe of Epsom, which seeks to delete Clause 1(4). It is worth looking at that subsection. It says:

“For the purposes of this Act, a product presents a risk if, when used for the purpose for which it is intended or under conditions which can reasonably be foreseen, it could … endanger the health or safety of persons”


or of domestic animals—I paraphrase—

“property (including the operability of other products), or … cause, or be susceptible to, electromagnetic disturbance”.

That is a bit beyond my knowledge grade.

I looked at this provision and it really is very broad. Where does it end? We say that the provision must be removed because it provides excessively broad powers to the Secretary of State to address things we simply know nothing about. It comes, of course, under the skeleton legislation; I have already made my points about the problems with that.

The definition of risk here has the potential to be so expansive that nearly any product, except an aircraft or certain other things which my noble friend has just identified, could be construed as presenting a risk under certain circumstances. A motor car can be perfectly safe and wonderfully designed but, if driven too fast or just badly in some other way, it will of course endanger life. That happens every other day. The same applies to a whole raft of mechanical tools and instruments—anything one wants to think about. If misused, they will cause danger.

If we have at some time in the future a Government who feel very strongly about something which, at the moment, none of us object to, they will be able to address that by secondary legislation, which will not be ultra vires—outside the scope of the legislation. It can do almost anything. We can all think of almost anything that we use at home, such as a power drill or a stepladder. If you misuse and fall off that, you break your skull. It could be motor cars or anything. This is absolutely absurd and far too broad.

If the Government want to legislate to say that motor cars must have a speed restriction, or must have brakes which do this or that, they should do that with specific regulation under specific legislation directed at that target, because Parliament has said, “We’ve had far too many accidents of this sort. We’ve got to address it”. That is the normal process we have as society develops, but a clause of this sort is just extraordinary. It really is Brave New World stuff.

Our complaint is simply that the broad scope of this definition could, in future, empower regulators to impose unnecessary restrictions on products where the risks are minimal or purely hypothetical—and certainly not within the scope of the imaginations of those of us in this Room—because somebody comes along, or a Government come along, in five years’ time and decides that they want to deal with it. Rather than having an embarrassing and difficult debate in Parliament, the Minister just has his way. That is not how we proceed in this country. We are a parliamentary democracy under, as we have been told, the rule of law. We would suggest that the Government have already attacked businesses, high-street retailers and farmers. Will these relentless, unidentified attacks on businesses ever stop? This provision, like others, risks creating legal uncertainty and regulatory overreach. We really must put a stop to it.

I say again that Clauses 1 and 2, as they stand, must be significantly revised or removed entirely, or the promise remains that we will move for them to be removed on Report.

[The Minister of State, Department for Energy Security and Net Zero (Lord Hunt of Kings Heath) (Lab)]

My Lords, it is a pleasure to respond to this particularly interesting debate. I, too, welcome the noble Lord, Lord Sharpe, to his new position. I must say, the noble Lords, Lord Sharpe and Lord Sandhurst, seem to have undergone a conversion, certainly since the former’s time in the Department for Business. I have not been able yet to count the number of regulations in primary legislation that the noble Lord took through but, given that he was a Home Office Minister and given the Home Office’s—how shall I put it?—productive record in producing legislation in Parliament, I hasten to suggest that it was quite a few.

Clearly, behind that is an important consideration about the shape of the Bill and why we need a regulation-making power. On the other hand, the Government would say to noble Lords that the intention is to use those regulations proportionately on the back of the policy consultation that has just taken place. We see here, in a sense, a tension between those noble Lords who wish to make sure that the legislation covers areas of concern—we have heard about the areas of concern for the noble Lords, Lord Foster and Lord Fox—and those noble Lords who feel that the regulation, or the power given here to Ministers through regulation, goes too wide. Clearly, a balance needs to be drawn.

[Lord Fox (LD)]

There is no dichotomy. We do think that the powers are too wide but part of what we want to do is channel those powers by making the sort of suggestions to which the Minister just referred.

[Lord Hunt of Kings Heath (Lab)]

I was hoping to assure the noble Lord that the way the Bill is constructed should give him comfort in relation both to the issues he has raised around safety and to the comments of the noble Lord, Lord Foster. Clearly, we think that consumer safety is very important. It is central to the Bill and a key component of our product regulation.

The Bill as drafted seeks to uphold a high standard of consumer protection and guarantees that the risks associated with products are minimised; Clause 118 provides for this. Although some products have risks that may be reduced through improvements to the design or clear warnings, others may be so dangerous that they should never be allowed to be sold in the first place. Baby self-feeding pillows are an example of this. They were recalled by the Office for Product Safety & Standards in 2022 due to the fact that the risks they presented could not be mitigated.

The noble Lord, Lord Fox, referred to Clause 1(1)(a), which refers to “reducing or mitigating risks”. We believe that that wording puts safety at the heart of the Bill while permitting regulations to acknowledge the wider spectrum of risk. This concept of a wider spectrum of risk covers the point that the noble Lord was trying to make.

That really is the same response as the one to Amendment 10, in the name of the noble Lord, Lord Sharpe, to which the noble Lord, Lord Sandhurst, referred—essentially, how the Bill explains the term “risk”. My noble friend Lord Leong explained how the Bill puts product safety, and reducing the risks associated with it, at its heart. That includes risks to the health and safety of persons, and Clause 10 makes it clear that “health” can refer to the physical or mental health of a person.

I understand what the noble Lord, Lord Sandhurst, was saying. He was concerned about the wide scope of the Bill, particularly Clause 1(4). However, in a sense, we have to capture in the Bill a definition wide enough to allow us to deal with some of the circumstances that noble Lords have raised. The aim is to be comprehensive but also proportionate. The noble Lord said that the Minister could just do this willy-nilly, but the fact is that regulations have to go through Parliament. He knows that in your Lordships’ House, one Member, even on a statutory instrument under the negative procedure, can ensure that a debate takes place. To come back to the words he used, at the very least for Ministers that can be a challenging and extensive process. A regulation will not be produced without full consultation as well. I would therefore argue that this is not an overweening power of the Executive; it is a sensible balance whereby we try to set out a broad enough definition to cover the kind of risks that noble Lords are concerned about. However, because it has to go through a parliamentary process and a consultation process before that, there are sufficient safeguards to ensure that any future Government or Ministers are not overriding in the way that the noble Lord suggested.

Clause 1(4) also ensures that damage to property is also included within the meaning of risk, meaning that regulations made under the Bill can be made for the purposes of mitigating risks to property, including the operability of other products. I can say to the noble Lord, Lord Fox, therefore, that the Bill captures the spectrum of risks that products may present to the health and safety of people and their property.

I also emphasise that not every element of our product safety framework is focused entirely on safety in the traditional sense. Our current regulatory framework covers a wide range of topics. This includes the use of radio spectrum, the ergonomics of protective gear and noise emissions from some outdoor machinery, such as concrete breakers and lawn-mowers. A number of our existing regulations, such as those covering fireworks and pressure equipment, also cover risks to domestic animals. By the way, I point out to the noble Lord, Lord Fox, that that is why domestic animals are mentioned in the clause; it is also for this reason that we cover the interoperability of products and their susceptibility to electromagnetic disturbance, along with the risks to domestic animals, as I said.

Amendment 7, in the name of the noble Lord, Lord Foster, would create in the Bill a category of high-risk products where regulations can apply across the board. He worries that the Bill is too discretionary. I understand where he is coming from.

[Lord Foster of Bath (LD)]

Just for absolute clarity, I did not say that the Bill was too discretionary; I said that the current arrangements were too discretionary and I want a change from that situation.

[Lord Hunt of Kings Heath (Lab)]

I am sorry if I misinterpreted what the noble Lord said, but I get his drift. We believe that the operation of our current product regulation framework already recognises the point that he made.

--- Later in debate ---

[Lord Foster of Bath (LD)]

I apologise but I am not quite sure what the Minister’s concern about my amendment therefore is. It specifically suggests that we put into the Bill a power for the Secretary of State to choose to bring forward regulations that will enable the classification of high-risk products in the way that he has just described. They are all included, including the recently developed framework, as possible ways of doing that within the amendment. I genuinely do not understand the Minister’s argument. I am giving an opportunity for clarity—so that in all circumstances there is an opportunity to use that framework.

[Lord Hunt of Kings Heath (Lab)]

We do not think it is necessary.

[Lord Foster of Bath (LD)]

Why?

[Lord Hunt of Kings Heath (Lab)]

If the noble Lord will let me explain, Clauses 1 and 11 grant powers to make regulations relating to product safety for a range of purposes, general or specific. The Government have set out in their response to the product safety review our intention in the months ahead to begin a process of sector reviews. They will consider whether any changes are needed to our existing regulation of higher-risk products to reflect modern challenges, such as those that the noble Lord has pointed out in two speeches this afternoon. We will also consider whether updates to the GPSR are necessary to ensure that cross-cutting and emerging risks are properly addressed, particularly where products fall outside current sector-specific rules.

Furthermore, in December 2022, the Office for Product Safety & Standards developed a product safety risk assessment methodology for GB regulators to use with non-compliant products. The methodology requires consideration of the tolerability of the risk identified. Where a risk is intolerable, a regulator can act robustly in relation to risks that may have a low possibility of occurring, but where, if they did, the outcome would be disastrous. A noteworthy example is the effort made by the Office for Product Safety & Standards to protect young people from the dangers of ingesting small, powerful magnets.

In Amendment 95 the noble Lord, Lord Fox, makes the sensible point that safe disposal can be a key part of protecting consumers and businesses. Clause 1(5) makes clear that regulations can cover safe disposal of products. We will consider whether particular products need specific regulation in this area on a case-by-case basis.

On the disposal of batteries specifically, the Government are committed to cracking down on waste as we move toward a circular economy. We shall have a discussion on the circular economy—I was going to say “in a few minutes”, but that might be a little hopeful. We are reviewing and propose to consult on reforms to UK batteries regulation before setting out our next steps.

Finally, regarding the question from the noble Lord, Lord Jackson, on the Schedule to the Bill, the things mentioned in the exclusions are covered by separate legislation. It is as simple as that.

[Lord Jackson of Peterborough (Con)]

I am grateful for the Minister’s indulgence; I have a straightforward question regarding Amendment 7 in the name of the noble Lord, Lord Foster. The Minister has answered it thoroughly but I still do not understand. What else would the Government be doing, in looking at the efficacy of product safety, that is not already in the amendment? Surely the noble Lord’s amendment merely formalises actions with regard to product safety that the Government themselves would do in analysing what they need to do to protect consumers. I cannot understand the Minister’s resistance to at least being a bit more emollient towards what seems to me quite a sensible amendment.

[Lord Foster of Bath (LD)]

Hear, hear!

[Lord Hunt of Kings Heath (Lab)]

My Lords, I think that is surprising support from the noble Lord, Lord Foster. This is an iterative process in Committee, and we are certainly always prepared to look at suggestions put forward. My response is simply that we think the Bill as it stands, and the reviews that will take place, cover the points he raises. The Attorney-General’s advice also suggests that we should not unnecessarily add to legislation, but we will give it some consideration.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, it has been an interesting mini debate and I am grateful to the noble Baroness, Lady Bennett, and the noble Lord, Lord Fox, for their amendments. I want to remark on the miraculous conversion to regulatory purity of the noble Lord, Lord Sharpe. I can only refer to Luke, chapter 15, which states that

“joy shall be in heaven over one sinner that repenteth, more than over 90 and nine just persons, which need no repentance”.

I am not a crazed zealot but perhaps in my case, with due acknowledgement to St Augustine, “Oh Lord, make me regulatory pure, but not quite yet.”

We have encapsulated a very interesting debate because I think we all accept the really important point raised by the noble Baroness, Lady Bennett, and the noble Lord, Lord Fox. On the other hand, there are issues about the wording of the amendment and the unintended consequences, alongside the fact that we believe that current legislation allows us to do what both the noble Lord and the noble Baroness would require us to do.

Amendments 30, 115 and 125 are intended to reduce waste. They promote recyclability, repair and reuse of products, and seek to mandate that all product regulations made under the Bill would require an environmental impact assessment and provisions related to the right to repair and the circular economy. Amendment 50 of the noble Baroness, Lady Bennett, seeks to achieve similar by making it a requirement that regulations made under the Bill include provisions to promote circular economy principles. The noble Baroness’s amendment then goes a step further, requiring the Secretary of State to issue guidance on such principles within 12 months, and to review and update that guidance at least once every three years.

Under the duty set out in the Environment Act 2021, Ministers and policymakers must already consider the environmental impact of all new government policies. I certainly empathise with the whole concept of the circular economy, on which both the noble Baroness, Lady Bennett, and the noble Lord, Lord Fox, spoke with such eloquence. The Secretary of State for the Environment, Food and Rural Affairs has set the reduction of waste by moving to a circular economy as one of Defra’s top five priorities. In fact, the Secretary of State has convened a small ministerial group on the circular economy and asked his department to work with experts from industry and academia to develop a circular economy strategy. I will feed this debate and noble Lords’ contributions into the ministerial task force.

I understand the importance of the right to repair. The product regulations made under the Bill will cover many types of products, some of which may be inappropriate to repair. That is really part of the point; for instance, cosmetics is one example—the point that the noble Lord, Lord Sharpe, made. The Ecodesign for Energy-Related Products and Energy Information Regulations 2021 introduced measures including requirements for repairability for the first time in Great Britain. Those regulations contribute towards circular economy objectives by increasing the lifespan, maintenance and waste handling of energy-related products. Our aim is to introduce further right to repair measures when regulating individual products under the ecodesign for energy-related products regulations, where appropriate. That is probably the best way in which to approach it, rather than putting a generic requirement in this piece of legislation.

With regard to Amendments 5 and 28, I reassure noble Lords that the provisions in the Bill do not prevent the UK introducing new environmental regulations. Should we wish to set out broader regulations that exceed or differ from EU rules, we already have powers under other legislation to introduce wider environmental protection rules.

I understand the desire of noble Lords to have something in the Bill in relation to these important issues, but there is a problem of imposing requirements where they cannot reasonably be met or duplicate existing policies. I know that is not the intention, but we think that would be the effect of the amendments before us. We clearly want to avoid conflicting or duplicating regulations. In essence, we agree with the principles put forward by the noble Lord and the noble Baroness. We think we are covered by existing legislation and regulations, but I am grateful to them for bringing them forward.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I thank the Minister for his response and noble Lords who have taken part in this time-constrained debate. I take some encouragement from the expressions of at least general support. Like the noble Lord, Lord Fox, I look forward to further discussions with the Minister on this issue. That is part of the reason why I tabled a number of amendments taking different approaches and going into different parts of the Bill because of the different ways of approaching it. We are very open to anything that might put in some kind of guard-rail.

If I may say so, the Minister gave a classic Civil Service response: “But it is covered by other legislation”. I point him to the figures I cited about how little progress has been made on waste reduction towards a target that is only three years away. What we are doing now is clearly not enough, and it is not working.

We are talking about the product regulation Bill, and on the point about right to repair and cosmetics, there are obviously different rules to be applied to different products. That is true of any Bill that covers product regulation.

I wish briefly to pick up the points made the noble Lord, Lord Sharpe, who suggested that these amendments might produce a further burden on consumers. If consumers found that their fridge lasted longer, for the kind of period that fridges used to last, that would be not a burden but a considerable advantage. If they were able to fix their mobile phone instead of having to pay a multinational company a large sum of money for a new one, that would certainly not be a burden on consumers. It would perhaps be a rebalancing of the Government acting in the interests of consumers rather than those of giant multinational producers.

We can see clearly that this is a debate that will continue, but in the meantime, I beg leave to withdraw Amendment 5.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I say at once that I pay due regard to the Civil Service and the advice I receive, but these are the words of Ministers. There is a judgment here that you do not want to add legislation where you already have it. The point the noble Baroness makes is that the legislation is not being used effectively. The whole point of the Secretary of State for the Environment, Food and Rural Affairs’s task force is to look at the progress we are making and to refocus in relation to the circular economy. I hope the noble Baroness will not think that this is a damp squib of an answer because we take what she says very seriously. Of course, we will be happy to meet her and the noble Lord, Lord Fox, to discuss this important matter further.

[Lord Sharpe of Epsom (Con)]

My Lords, I reassure the noble Baroness that my fridge is more than 20 years old, and I have a very good mobile-phone repairer.