Product Regulation and Metrology Bill [HL]

Lord Jackson of Peterborough Excerpts

2nd reading
Tuesday 8th October 2024 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, it is a pleasure to take part in this important debate on the Bill. I welcome the noble Lord, Lord Leong, to his place on the Front Bench and congratulate him on his appointment to the Government. I am sure he will do an excellent job. I also welcome the noble Baroness, Lady Winterton of Doncaster. We were sparring partners in the other place and I am sure she will make a very strong contribution in this House.

The Bill appears beguilingly straightforward, benign and innocuous, but it contains some clauses that cause me a deal of concern and alarm, both for what is written in the Bill and—as my noble friend Lord Trenchard said—what is not written but omitted. I will concentrate my remarks on product regulation.

Naturally, we all support the imperative of responding to new product risks and opportunities, updating the law in respect of new and emerging business models in the supply chain, enhancing powers for market surveillance, working towards better product safety, including for products sold online, and addressing product recalls and traceability. The previous Government were committed to replacing and updating EU-derived regulations that were part of UK law, aiming to create a more coherent and effective product safety regime.

There is a consensus on the Government’s focus on innovation as a driver for the delivery of economic growth. That includes the safe development and supply of new technologies. As we know, a new modernised product safety regulatory framework has been needed for some time, as the Office for Product Safety and Standards pointed out in its 2018 report. New legislation was, of course, inevitable and probably advisable following the OPSS’s product safety review of March 2021, with the focus on updating the General Product Safety Regulations 2005. The previous Government legislated in secondary legislation that came into effect this month.

However, as noble Lords might expect, I have some reservations, particularly on Clauses 1(2) and 2(7), which contain powers to align UK laws with any EU environmental rules and a general power to provide that the EU standards shall apply respectively.

The language in Clause 2(7) is oddly technocratic but, at the same time, vague. It has significant ramifications in terms of a policy shift towards aligning with EU standards over time—dynamic alignment. Other noble Lords, such as my noble friends Lady Lawlor and Lord Frost, mentioned this. The Bill also does not fully elucidate the details of what types of products are covered by its provisions—it references “nearly all manufactured products”—so will the Minister clarify this for the House? Will alignment with the EU regulatory regime include the EU’s 2023 safety regulations, due to come into force in the EU in December 2024, and the revised EU product liability directive, in the next few years? What steps will Ministers take to both consult with business and allow Parliament appropriate scrutiny and oversight of ministerial decisions? If the latter is not the case, will the Minister tell us whether the Government will bring forward primary legislation on product liability in the near future?

As Which? has rightly stated, this is an enabling Bill, a Henry VIII Bill, which allocates vast powers. The devil will of course be in the detail of the secondary legislation. I had a wry smile when I heard the noble Lord, Lord Russell of Liverpool, reproaching my noble friend Lord Sandhurst for referencing the Henry VIII powers in the Bill. We were tripping over legal experts on the Cross Benches during the Retained EU Law (Revocation and Reform) Bill, who pontificated and opined on that Bill’s traducing of parliamentary sovereignty by its Henry VIII powers. But I fear that the noble Lord is alone today and that his Cross-Bench noble friends who share his views are not present. The strange thing is that we now have a Labour Government, which might account for that.

The briefing paper from Which? rightly points out the lack of detail in the Bill on the duties and obligations of those supplying products in online marketplaces, for instance. I therefore invite the Minister seriously to consider the proposals outlined by Which? in the helpful briefing paper: an explicit set of provisions to detail key duties on online marketplaces and a commitment to publish, in good time before the duties come into force, any draft secondary legislation on how these duties will work in practice, and to consult key stakeholders on the design of those regulations.

Which? also made the very important point that a new parliamentary committee should be dedicated to scrutiny and to reviewing any proposed changes to product and metrology regulations, especially where the UK is opting to diverge from existing rules. I do not have a problem with defending the divergence of rules if it is in the long-term interest of UK businesses, looking outwards to global regulatory regimes—if it is defensible, of course.

Which? also proposes a commitment to ensure that, in the future, consumer and industry groups are given consultation rights over any significant rule changes that impact specific products and markets, in good time and before draft secondary legislation is published. I hope the Minister will address that in his speech.

As has been mentioned, in fairness, the Bill also contains provisions that allow the UK to end recognition of EU product regulations. I concede that, but the Minister might explain how such a decision might be triggered, what scrutiny Parliament will be able to exercise on that policy and what evidential basis will be required.

On the specific content of Clause 2(8), can the Minister explain the likely scenarios that would cause him or her to make reference to

“the social, environmental and economic impact”

of the Bill’s provisions and the rationale for this subsection, given that the Bill already complies with human rights provisions and environmental legislation? Dare I say that Clause 2(8) might just invite more litigation and judicial review? On that basis, it is perhaps unwise to place it in the Bill.

The Bill is opaque in many respects. It is a concern that the impact assessment prays in aid the enabling nature of the powers in this primary legislation and is therefore silent on the likely monetary costs of the Bill to business. Page 11 of the impact assessment specifically states:

“Impacts have therefore not been monetised and are discussed qualitatively”.


While the rationale for the Bill appears clear and unambiguous—that, at present, the UK lacks the power to end recognition or to recognise new and updated EU regulations in Great Britain—I am unconvinced of the corollary argument that, ipso facto, the UK will fall behind the EU and other jurisdictions and markets in its innovation, technological advances and competitiveness. I have great respect for the noble Lord, Lord Foster, but I think it is important to take our time with the considered scrutiny of the Bill, because the devil will be in the detail—notwithstanding what he said about specific product issues, which are of course very important.

At the risk of being labelled deranged by the noble Lord, Lord Redesdale, I refer noble Lords back to recent history and the ill-fated Chequers White Paper of 12 July 2018, the most consequential part of which considered the future economic partnership between post-Brexit UK and the European Union. These proposals were thrice rejected in the other place, and indeed by the EU in September 2018. The May Government proposed a common rulebook—I am sure we all remember that—for all goods, including agri-food, and a treaty commitment to harmonisation to provide frictionless trade. In addition, the PM promised binding commitments on state aid and competition, and non-regression clauses on level playing field issues, and the UK was de facto to remain in the customs union, which was then labelled the combined customs territory. Amazingly, senior civil servants briefed the EU that Chequers would give the UK no competitive advantage in business and commerce in the future, which seemed an odd position for the UK Government to take. There was no mandate, electorally or in Parliament, for what was effectively dynamic alignment —without a vote or a voice, as my noble friend Lord Lansley said. I say in passing that I agreed with the vast bulk of my noble friend’s very well-articulated remarks.

Finally, the Bill potentially undermines His Majesty’s Government’s manifesto commitment to remain outside the single market, opens up disputes over the reach of the European Court of Justice in its interpretation of legacy EU law, and traps entrepreneurs and innovators in the UK into a legal and regulatory framework that is inimical to British competitiveness, global ambitions and economic growth and prosperity. Let the Minister be assured that a number of us noble Lords will watch the progress of the Bill hawk-like and will fully hold him and his Government to account.

Product Regulation and Metrology Bill [HL]

Lord Jackson of Peterborough Excerpts

Committee stage
Wednesday 20th November 2024 Grand Committee

It would give similar consultation rights as there are now in the Digital Markets, Competition and Consumers Act 2024, so we would be in the same position as we are with that Act, and it would go a long way to answering at least some of the questions posed on scrutiny by committees of this House. I look forward to the Minister’s response.

[Lord Jackson of Peterborough (Con)]

My Lords, it is a pleasure to have the opportunity to speak in Committee. I begin by apologising on behalf of my noble friend Lady Lawlor, who is detained on a train. I am somewhat at a disadvantage in reading her notes but, naturally, I support the sentiments contained in what would have been her speech. I also begin by putting on record my thanks to the noble Lord, Lord Leong, for being prepared to debate and discuss these issues since Second Reading, his willingness to correspond with noble Lords on key issues, for holding a meeting with his officials, which was much appreciated, and substantially corresponding with my noble friend Lord Frost.

I am going to take the easy part first, which is to speak to my Amendment 33. I think it is apposite to look at the broader context of the Bill, bearing in mind the admonition that we should not repeat Second Reading remarks. All the amendments that I, my noble friend on the Front Bench and other noble Lords are moving today are in the context of the Bill, which is an extremely wide-ranging Bill that gives significant sweeping powers to Ministers. For instance, the UK in a Changing Europe document published just last week, its UK-EU Regulatory Divergence Tracker, makes the very pertinent point that the Bill

“is a very significant legislative change, with the government giving itself a broad power to proactively align with EU regulations … The exact range of regulations in scope is ambiguous, but it is evidently broad, with the bill’s explanatory notes referencing product safety, as well as emerging sectors like online marketplaces”.

With that in mind, and the skeleton nature of the legislation, as deprecated by my noble friend Lord Sharpe, we need to see my amendment in that context. Clause 2(3)(h) is the most egregious example of the potential issue at the heart of the Bill, which is that even existing provision in primary legislation may be replaced by provision in regulations. Many parts of the Bill, particularly in Clauses 1 and 2, are unfettered by any requirement for consultation, for criteria to be met or for meaningful preconditions to be satisfied. Indeed, the Bill clearly cuts across the guidance for departments that the Delegated Powers and Regulatory Reform Committee provided in its report of 15 October. My noble friend referred earlier to skeleton legislation, as well as the excoriating reports of the DPRRC and the Constitution Committee.

I remind noble Lords that this subsection relates to categories of

“persons on whom product regulations may impose product requirements”—

with all the caveats that we must accept that secondary legislation cannot, by convention, be amended. That leads us to a broader problem with the Bill in many clauses, particularly this one, which is that we have a double whammy. In the use of ministerial fiat, there is in effect no proper scrutiny in our Parliament and no proper oversight, because statutory instruments are very unlikely to be amended. Therefore, given that we have no fora in which to look at the details of the regulatory regime and the statutory instruments that will arise from the Bill—we no longer have a European Scrutiny Committee in the other place and we do not have a similar body in this House; we have a European Affairs Committee, which has a much wider remit—not only will we not be able to exercise that proper scrutiny but, having left the European Union, should we decide to shadow or dynamically align with regulations we will have no input on their effect but will effectively be cutting and pasting them into our domestic legislation.

In effect, we will have no mechanisms for scrutiny should we agree these clauses. We do not know the methodology by which a value judgment is made on the efficacy of any of these regulations on alignment. We have no measurement of criteria and no way to monitor or review the regulations at present, because there is no effective consultation process at the front end. For those reasons, I urge the Minister to look carefully at my amendment. It is not far reaching; it would specifically removes paragraph (h).

With that in mind, and for reasons of time, I am not particularly predisposed to go into detail on my noble friend Lady Lawlor’s amendments, other than to say that her Amendment 8 seems extremely sensible. Given the nature of the Bill and the wide-ranging powers that Ministers are seeking to exercise, potentially across vast swathes of our economy, a de facto sunset clause, after a modest period, would test the effects of a government intervention in terms of its environmental and economic impact, and particularly—regarding what I said earlier—its political and constitutional impact. It is an eminently sensible and straightforward amendment, and I would be surprised if such a measure were arbitrarily repudiated by the Minister and the Government.

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[Lord Jackson of Peterborough (Con)]

I thank noble Lords for their forbearance as I was rudely interrupted by democracy.

I was somewhat remiss earlier for not also congratulating my noble friend on his position as Front-Bench spokesman for our party, so I welcome him, and I hope he will forgive me for that.

As I was saying, I believe that the amendment tabled by my noble friend Lady Lawlor should receive the support of all sides of the Committee because it seeks to ensure that there is proper, informed parliamentary scrutiny and approval in respect of Clause 1, which is a very wide-ranging clause; other noble Lords will no doubt wish to enunciate those issues later on. As the clock is against us, I will just finish by observing that I wholly support Amendment 128 in this group, tabled by my noble friend Lord Frost, which I have signed, and Amendments 80 and 81 on metrology and pints, tabled by my noble friend Lord Sharpe.

I will just finish briefly on Amendments 40 and 41 tabled by my noble friend Lady Lawlor. Again, these go to the heart of the necessity to see the Bill, and particularly Clauses 1 and 2, within the broader context of a quite seismic shift of government policy. Indeed, the think tank UK in a Changing Europe, in its press release last week launching the latest quarter 3 regulatory divergence tracker, makes the quite bold claim, which I think is correct, that this Government are seeking a much closer relationship with the European Union by increased convergence and reducing any capacity for divergence, either deliberately or as a sin of omission. Whether you think that is right or not, that issue has to be looked at in detail by the legislature—both the other place and your Lordships’ House. On that basis, I support my noble friend Lady Lawlor’s amendment, which would insert “constitutional” into the Bill, because of the wider governance and constitutional issues arising from a Bill that some have described as Chequers 2.0 in legislative form—I know that some of my noble friends might not agree with that.

Finally, Amendment 41 would enable a review of the impact and effects of Clause 2 and the powers therein to be laid before Parliament, focusing specifically on how the decisions made by Ministers and the regulations laid have impacted business and commerce in this country and trade across the world, particularly with the European Union.

On that basis, I ask the Minister to look kindly on supporting those amendments. None of them is radical and none of them seeks to undermine the integral nature of what the Bill is hoping to achieve, but they are sensible additions that will hopefully improve the Bill in the course of its passage through this House and the other place.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I welcome this landmark Bill, and I welcome my noble friend the Minister and the noble Lord, Lord Sharpe, to their Front-Bench positions. I firmly believe that the Bill protects consumer rights. However, I declare an interest as a member of the Secondary Legislation Scrutiny Committee, which scrutinises statutory instruments. In that respect, I refer to the amendment in the names of my noble friend Lady Crawley, the noble Earl, Lord Lindsay, and the noble Lord, Lord Foster of Bath, which would require the Secretary of State to conduct appropriate consultation on draft regulations under the Act.

It is vital that we set out as we mean to go on. One criticism that our committee had of many of the statutory instruments is the lack of proper consultation, as well as inadequate memorandums and impact assessments. This amendment in the name of my noble friend Lady Crawley is timely, and I urge my noble friends on the Front Bench to accept it. More effective scrutiny processes are required in legislation to ensure that the policy decisions made with the powers set out in the Bill can be effectively scrutinised as products and marketplaces evolve, particularly those that will evolve online. It is important that consumers are totally protected.

The noble Lord, Lord Jackson, referred to relationships with the EU. I hope that the Government are successful in resetting that relationship and that there is a closer relationship with the EU, because it is important not only for trade but for society and economic growth—and it is good for wider relations in this part of our global world.

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Having discussed the report, the Minister failed to provide the DPRRC with convincing justification for the inclusion of the skeletal clauses in the Bill. So, despite the no doubt huge team the Minister had and his persuasive powers, I am afraid that the DPRRC was unable to be convinced of his arguments and, if that committee was not convinced, I suggest that this Committee should not be.

[Lord Jackson of Peterborough (Con)]

Is the noble Lord aware of the letter dated 28 October from the Minister, Justin Madders, of the other place, to the noble Lord, Lord McLoughlin, the chairman of the DPRRC, on these specific issues? It says:

“We recognise the Committee’s concerns that the powers in the Bill to amend or repeal primary legislation may appear as though we are intending to replace existing primary legislation with secondary legislation and accept that we should have given more provenance to the fact that our intentions are limited and specific and the powers in the Bill are limited accordingly”.


Does the noble Lord not think it unprecedented for a Minister to write about a Bill that is before this House?

[Lord Fox (LD)]

I am not a student of parliamentary history, so I do not know if it is an unprecedented letter, but that was a helpful intervention, and I thank the noble Lord for that.

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[Lord Leong (Lab)]

I thank the noble Lord for that. If it helps, I have gone through some of our 150-odd existing product safety regulations—not all of them—and their technical nature includes scientific calculation and all kinds of other technical input. Are we saying that we want this in every instance of primary legislation? I think not. If noble Lords think that we should have every technical aspect in all primary legislation, we need to have a different debate entirely, but for this, for technical reasons, we need delegated legislation to ensure that we update the regulations.

[Lord Jackson of Peterborough (Con)]

I do not want to labour the point, but it is either feast or famine. We are being told by the Government that we cannot legislate everything to the nth degree, so we should just trust them on the secondary legislation—the permissive delegated legislation and statutory instruments. But then, with the paragraph that is the subject of my amendment, we are going to the nth degree of granularity and technical finesse while not actually, as it happens, defining what “activities” mean. Activities could mean looking at a product, by which you would therefore be caught by the regulations.

I gently say to the Minister that the substantive clause is not undermined by the removal of this paragraph, and he should seriously think about that.

[Lord Leong (Lab)]

I thank the noble Lord for that. I shall take it away and speak to officials about this, but the purpose of the Bill is not to be too prescriptive, so that we cover most of the activities that can be described by various stages of production.

I want to conclude, if I may. I hope that I have been able to provide reassurance on all these matters and have assured noble Lords that the Government have carefully considered the importance of parliamentary scrutiny and sought to strike a careful balance. I therefore respectfully ask that the amendment is withdrawn.

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[Lord Jackson of Peterborough (Con)]

My Lords, I support the amendment of the noble Lord, Lord Foster of Bath, and my noble friend’s amendment but I want to press the Minister briefly, because one of the key rationales for Clause 1 is to improve safety dynamically. I think we would all agree with that. Obviously, mention is made of the toy safety regime in the United Kingdom and in the European Union, as well as lithium batteries, artificial intelligence et cetera.

May I press the Minister on a genuine question? I have not found a rationale for why the only Schedule to the Bill excludes so many products not covered by the Bill’s potential regulations. It excludes:

“Plants, fruit and fungi … Feeding stuff”,


food generally and animal by-products, aircraft, military equipment and “Medicines and medical devices”. Maybe the Minister could say a little about which value judgments and what empirical data have been used to exclude those products from consideration in the Bill, perhaps seen through the prism of safety.

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[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!

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It is because I believe Amendment 17 provides that certainty that I support it today, and hope that a version of it finds its way into the Bill and on to the statute book.

[Lord Jackson of Peterborough (Con)]

My Lords, I rise to support the amendment in my name and primarily that of my noble friend Lord Frost, particularly Amendment 4. It would not be fruitful to relitigate the Brexit wars, and certainly, those of us who have tabled these amendments do not wish to do so. We are looking at this Bill and its proposals. It is notable to remember that it is not the Government who are moving Amendment 17 and its consequent later amendment, but other noble Lords.

I shall just specifically talk about the amendment to Clause 1(2). It is actually quite a loose and opaque concept to talk about tabling an amendment to the Bill which talks about mitigating or reducing the “environmental impact of products”, because there is quite a degree of confusion about that specific phrase. There is also a significant question as to why there is a specific carve-out for this in the Bill. My noble friend Lord Frost raised this issue specifically with the Minister, the noble Lord, Lord Leong, in his letter of 16 October, and asked why it was necessary to have a separate provision to deal with this. My concern about this clause is that there is the prospect, if it remains in the Bill, not only that we may replicate very narrowly drawn product safety regulations as regards the environment, but that, due to mission creep, it can develop a lot of other particular areas. That may be music to the ears of the noble Baroness who represents the Greens, but it may extend to a supply chain’s due diligence, or to vehicle standards, artificial intelligence or deforestation. Those are all very wide areas where there would be a significant impact from what looks like a pretty innocuous clause. Therefore, I would like the Minister to address that particular issue, because it is very important.

To go back to the clause that is referenced in the amendment from my noble friend Lord Kirkhope of Harrogate and the noble Lord, Lord Russell, I am not sure that they have been witnessing the same situation with the regulatory regime and this Labour Government since 4 July. We are already seeing de facto alignment. We are seeing alignment on a common charger for electrical devices, the vote to leave the energy charter treaty and rules on organic pet food. We are seeing delayed divergence on Section 6 of the retained EU law Act, which is about paying due regard to European Court of Justice decisions vis-à-vis the UK courts; recognition of CE-marked construction products; the suspension of mandatory recycling labels; changes and delays to the implementation of the Windsor Framework; delays to the border target operating model; regulation on deforestation-free products delayed; and entry and exit schemes delayed.

The idea that this Government are presiding over a mass large-scale divergence is completely not the case. For a speech that was meant to take the political heat out of the debate, I think it was quite a political speech by the noble Lord, partly relitigating the long battles over Brexit we had. I do not think it is an ignoble aim for us, in laying these amendments in Committee, to make a point about the geopolitical changes in the United States with the election of President-elect Trump and the focus on deregulation and fewer and more flexible regulations. There are economic difficulties in the European Union, particularly in Germany, which has had some significant encumbrances in terms of all manner of economic data. To tie our regulatory regime to just one market—the European Union, where we have no control, no say and no voice—in a Bill in which there are huge numbers of Henry VIII and discretionary powers to be exercised by Ministers that are effectively unamendable is a risk. That is the risk, and it is the risk of this amendment.

The fundamental flaw of this amendment is that it is asymmetrical and unbalanced. My noble friend Lord Kirkhope used the word balanced. I do not think it is balanced; it is incongruous because there is an inherent presumption—a requirement in this amendment —for us to accept dynamic alignment. At least the noble Lord, Lord Browne of Ladyton, was honest that it is dynamic alignment. It is Chequers 2.0. In this amendment, we are being asked to support Chequers enunciated in primary legislation. I believe that is wrong.

The reason I think that there is a flaw and that it is incongruous is that if noble Lords look at Amendment 17, in subsection (3) of the proposed new clause there is a requirement to lay a statement before Parliament within 14 days about why a decision not to replicate EU law under proposed new subsection (2) is necessary. Funnily enough, there is not a similar requirement to lay a statement if it is decided to diverge from European Union regulations. I say to my noble friend and the noble Lord, Lord Russell, that the amendment would have been a lot stronger and a lot more robust to criticism by this side and perhaps even Ministers if that had been in the amendment. It is not, and for that reason it is a regrettable amendment. It seeks to tie us to a shrinking market which, by dollar denomination, will be about 14% of world trade within the next 10 or 12 years. That is not something we can put in the Bill. For that reason, I will not support it.

[Lord Russell of Liverpool (CB)]

I shall quickly respond to the noble Lord. One of the reasons why I asked the Minister for some detail about the breadth and depth of the consultation his department has had with business was to find out what business really thinks. I would say, in riposte to the noble Lord, that the key thing that should drive decisions on whether we align with the European Union or any other jurisdiction should primarily be what business is telling the Government. Businesses have a far better idea of the economic state, presently and potentially, of the markets they do business with. In fact, they have a much better idea than either Ministers or civil servants. From my point of view of trying to speak on behalf of business, listening to them on what they think should be the priority would seem the sensible thing to do.

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[Lord Fox (LD)]

As noble Lords can probably imagine, I have been looking forward to this group for ages, and I thank noble Lords for not disappointing. I put my name to Amendments 17 and 127 in the name of the noble Lord, Lord Russell, and tabled my own Amendment 94. I think the valedictory remarks made by the noble Lord, Lord Browne, about leaving this Bill may have been premature because Amendment 16, which is group 9, explicitly deals with the REACH issue, which I know he is so passionate about. I would like him to join me in probing the REACH elements of this, so I hope he can put off his exit from the Bill.

The Prime Minister, the Chancellor and others have stated that they wish to re-engage with our largest market, which is the EU. Their aim, and our aim on these Benches, is to remove friction to make life easier for British business. Thereby costs will be kept to a minimum, markets will be more accessible and growth, which we all agree is vital for our future, can be more easily achieved. I was delighted today when the Treasury spokesperson, the noble Lord, Lord Livermore, endorsed the role of this Bill in helping the Government make those moves to re-engage with the EU. It was reassuring that he sees the importance of this Bill in that process. That is a very good mark to put on what we are doing.

We heard some excellent speeches from the noble Lords, Lord Russell, Lord Browne and Lord Kirkhope, in favour of the amendment tabled by the noble Lord, Lord Russell. The UK Government are introducing legislation to guide the future regulation of standards for thousands of products when they are sold in the UK market. It should go without saying that creating different standards for UK businesses hoping to sell in both the UK and the EU works counter to this. Consistent standards that apply across both markets will give business the ability and certainty to sell in both those markets.

Never mind the dolphins. The noble Lord, Lord Frost, brought up the issue of tethered bottle tops. As far as I am aware, there is no regulation in this country to require tethered bottle tops. The reason we have them is because business knows how costly it would be to have two forms of a drink being sold in one market here and one market there. Business understands, even if some noble Lords do not, the true cost of having two different regulations. When it can do without them, it does, and the one it chooses is that of the biggest market, which is very rarely in the United Kingdom.

This legislation is an opportunity for the Government, if they move in the right direction, to reduce the red tape and the bureaucracy that the current version of Brexit has created for British business. We should be under no illusion that Brexit has made it much harder for businesses to export into the European Union.

The wording of this amendment does not bind the hands of Government. As noble Lords have observed, there is absolutely the opportunity to diverge and move away from the regulations in the European Union, if that is to the advantage of the United Kingdom. This is a common-sense amendment that provides regulatory certainty for UK businesses by requiring a default of alignment with EU regulations and a process for parliamentary scrutiny, if or when Ministers determine that divergence from such regulation would be in the best interests of the UK. That is what business tells us it wants—and I hope that the questions that the noble Lord, Lord Russell, asked will continue with that. It also seems to be what the public wants. A poll published today in the i newspaper says that when people were asked where was more important to Britain economically, 57% opted for Europe, with 34% opting for the US, for example. There are lots of good reasons for the Government to support these amendments, because they provide a foundation for economic growth by ensuring that businesses can plan and invest with confidence about where the regulatory regime is going and what kind of regulations are going to apply in the United Kingdom.

Before I come very briefly to Amendment 94, unlike the noble Lord, Lord Browne, I could not help but be lured into addressing some of the comments made by the noble Lords seated just behind me. The comments of the noble Lord, Lord Jackson, were very interesting. His comments about the environment and how appropriate it is to take into consideration things such as deforestation were interesting, and I shall be interested to see whether the Opposition Front Bench endorse the comments that he made, or whether they will distance themselves from them—because I think that is quite important.

[Lord Jackson of Peterborough (Con)]

For someone who is usually very astute, who listens to my views and is very kind in saying that they are interesting, I think that the noble Lord may have got the proverbial wrong end of the stick. I was not making a value judgment on whether it was appropriate to put environmental standards in this Bill. The substantive kernel of my comments was that it was unclear as to what the definition of environmental standards was—it was not saying that they were good or bad for things such as deforestation.

[Lord Fox (LD)]

I may have misunderstood—I shall certainly look at Hansard afterwards. But it would be useful for the Opposition Front Bench to explain where they sit in that regard.

I always listen to the noble Baroness, Lady Lawlor, carefully, but I was confused on a couple of issues that she used as examples. The first example was a very long discussion of digital regulation in the European Union—but digital regulation is not a part of this Bill. The second example was the CPTPP, which we all know is not designed to have mutually enforced standards—standards are not a part of the CPTPP, so I am not sure how this Bill reflects on that at all. This is probably a conversation that we can have outwith this debate, because I am speaking to the point—the point being that we can have trade deals with all sorts of places, multilateral and bilateral, with or without taking into consideration alignment with the EU. However, we cannot have trade in the EU if we do not have the right regulations. That is the point on which I wanted to end, in that regard.

I turn briefly to Amendment 94, which is simply a probing amendment to understand how the Government will monitor and approach the developing international standards. To some extent we have heard about issues around whether we should adopt those standards, but we should certainly understand them—that is my thing—and we should know what standards are governing the products that are coming into our country and how they relate to our standards. Clearly, we are importing a lot of things from a lot of places that are not in the EU, from around the world, and we really need to understand under what level of governance those international standards are maintaining the sorts of things that we care about within product regulation.

To close, the noble Lord, Lord Russell, has done this Committee a great service in tabling his amendments; I am very pleased to be one of their co-signatories.

Product Regulation and Metrology Bill [HL]

Lord Jackson of Peterborough Excerpts

Committee stage
Monday 25th November 2024 Grand Committee

These amendments aim to reflect and build upon the definition of “online interface” that is already set down in the Digital Markets, Competition and Consumers Act. What we do not want to see is an emerging online marketplace, such as TikTok Shop, avoiding new regulations by arguing that it is simply acting as a third-party link to other services and not providing that service itself. I look forward to the Minister’s response to these and to Amendments 48 and 71.

[Lord Jackson of Peterborough (Con)]

My Lords, I support the probing Amendment 45 from the noble Baroness, Lady Brinton, as she referenced my earlier Amendment 33. She expressed in a more erudite and articulate way what I should have said last week on Amendment 33. However, I think we have both alighted on the fundamental problem in that subsection, which is that despite its opacity and the fact that it is drawn very widely, it does not achieve what we all hope it will achieve—in other words, to point out the obligations on buyers and sellers. The noble Baroness quite rightly pointed out the lacuna inherent in that.

My very brief question to the Minister is whether it might be possible—this is not a criticism but merely an observation in respect of the drafting—for this subsection to be redrafted before Report so that that confusion that we see now, which could potentially give rise to substantial amounts of litigation, is ameliorated and we could have tighter wording to address some of the issues that the noble Baroness and I have pointed out.

[Lord Foster of Bath (LD)]

My Lords, so many of our deliberations in our various sittings have been seeking to put some flesh on to the skeleton nature of the Bill before us; I have done that on a number of occasions, as have many other noble Lords. For instance, in our last-but-one grouping, I proposed that we seek to use the Bill to address concerns about data scraping for the development of new AI products. I gently point out to the Minister that he told me that this would be covered by the Data (Use and Access) Bill. I have double-checked Hansard and can tell him that at the end of the debate on that Bill, when this was raised with the noble Baroness, Lady Jones, the Minister responsible, she replied that this issue was not covered by that Bill and that DCMS and DSIT Ministers are jointly working and looking forward to bringing forward proposals in due course. She ended by saying:

“We will announce more details in due course”.—[Official Report, 19/11/24; col. 197.]


So it is not covered, and this is a good opportunity to do it.

As the noble Baroness, Lady Crawley, and other noble Lords who have spoken have pointed out, this is an area, in terms of online marketplaces, where there is an urgent need to put flesh on the bones and to have a clearer understanding of the definition of an online marketplace and of what regulations should apply to them. I have frequently raised in your Lordships’ House my concerns that consumers have far less protection from faulty products bought online than they have when they purchase them on the high street.

It simply cannot be right, as we have seen from all the evidence that we have all received from various organisations, such as the British Toy & Hobby Association, Which? and Electrical Safety First, as well as others, that so many unsafe products are available for sale online. In an earlier contribution, the noble Baroness referred to the fact that 86% of toys sold online do not comply with UK safety requirements. I have referred to the sad fact that many electrical appliances purchased online do not meet appropriate safety requirements and, sadly, have led to loss of life and damage of a great deal of property.

It certainly cannot be right that products that have been withdrawn by a manufacturer, often because of concerns about safety, can still be purchased online, and it certainly cannot be right that consumers have not only less protection but fewer opportunities for redress when purchasing products online compared to what they have when purchasing them on the high street. I support all the amendments addressing those concerns because collectively they would improve consumer protection by ensuring accountability by imposing a clear and enforceable duty on online marketplaces to ensure the safety of products sold on their platforms, especially those coming from third-party sellers overseas. Incidentally, I shall later propose an amendment that would strengthen the extraterritoriality covered by the Bill.

The amendments that we have before us further protect consumers by removing anonymity so that third-party sellers can no longer hide behind platforms to evade product safety regulations and by making it easier for them to seek any form of redress. It establishes direct liability on platforms for unsafe products sold throughout them, which leads to the opportunity for much greater fairness in terms of redress because, at the moment, consumers dealing with faulty high street products expect and receive a full refund or replacement, but when problems arise with online purchases, particularly from overseas sellers, consumers often seem to have no recourse. Amendments in this group deal with that issue. Finally, the amendments would clarify something that is lacking in the Bill at the moment: the issue of accountability. Who is actually accountable in the multinational marketplace structures that we have to deal with now?

Given that these platforms are evolving at an incredibly rapid rate, with people almost daily finding new ways to market their products, we need amendments that ensure that there is no room for manoeuvre to get around the regulations by online marketplaces now and, crucially, in future. We need a clearer definition of what we mean and what is covered by an online marketplace, and I welcome and support the amendments in the group that do just that.

I add one additional point. In Clause 10, the definition of an online marketplace includes,

“any other platform by means of which information is made available over the internet”.

Clause 10 does not define “the internet”, despite quite a point being made of doing so in other legislation. Indeed, other pieces of legislation prefer the phrase “internet service”, not just “internet”. To avoid further ambiguity, I have proposed in Amendments 117 and 122 that the Bill uses “internet service” instead of “internet” and that the definition of “internet service” is exactly as set out in the Online Safety Act 2023.

Given, for instance, that the Tobacco and Vapes Bill has this definition simply copied and pasted into it, I see no reason why this Bill could not do the same. Failing to do so would unhelpfully leave the definition to common law. We should be aiming to ensure that levels of protection and redress are as powerful online as they are on the high street. Amendments in this group will achieve this and will also ensure that we have a future-proofed definition of “online marketplace” and that clear duties and responsibility towards consumer protection are imposed on all relevant bodies. On these Benches, we certainly support them.

Product Regulation and Metrology Bill [HL]

Lord Jackson of Peterborough Excerpts

Committee stage
Wednesday 11th December 2024 Grand Committee

If only subsection (9) were removed from Clauses 3 and 6, it would still be possible to appeal and to have the terms of triability for an offence and the levels of the fines and imprisonment in place, but with no power for the Minister to create or widen the scope of criminal offences. I may have misunderstood the objective of the noble Lord’s amendments, but I am concerned that they create even more power for a Minister, which I am trying to rationalise, certainly to hold them to account. I hope that, when the noble Lord, Lord Sharpe, responds to the debate after the Minister has spoken, he could perhaps explain this a little more. I also look forward to hearing the Minister’s response to my amendments. I am very grateful for the meetings with the Ministers, but I have seen nothing in writing about this issue with criminal offences.

[Lord Jackson of Peterborough (Con)]

My Lords, it is a pleasure to have the opportunity to contribute to your Lordships’ Committee. I apologise for not having been here throughout all the deliberations on the Bill. I was called away by the excitement of the Football Governance Bill, but I am back to speak to my Amendment 92.

This is pretty straightforward. That the Bill will be unamended is a big assumption, because I sincerely hope that the Government will see fit to bring forward their own amendments or accept opposition amendments on Report—I thank the noble Baroness, Lady Brinton, for her kind words. However, my amendment seeks to fill the gap in appropriate scrutiny and oversight of a very wide-ranging and pervasive Bill, particularly in this respect of potentially creating criminal offences arising from non-compliance.

It is vital that, if new offences are created or if other powers are exercised by Ministers in this clause, it should be subject to some form of rudimentary scrutiny by Parliament. That is why I have tabled this amendment, which says that at least 30 days before making such provisions the Secretary of State must put that rationale into the Library of both Houses in the form of an Explanatory Memorandum.

Let us just remember what this clause on enforcement of product regulations does. It allows, by regulations, the Government to appoint inspectors to

“enter, inspect and search … seize and retain products or evidence of non-compliance … require a person to retain or provide a document or information … dispose of a product or require a person to dispose of a product”.

Those are pretty draconian powers, and they have significant ramifications for civil liberties, the unwarranted interference into the lawful operation of markets, and the potential undermining of due process and norms in the criminal justice system. Most importantly, there is a lack of accountability.

It goes without saying, of course, that I strongly support the amendments from my noble friend Lord Sharpe of Epsom. In fact, I agree with all the amendments in this group, including those from the noble Baroness, Lady Brinton. I do so because—it bears repetition—this is an egregious example of skeleton legislation, as the Delegated Powers and Regulatory Reform Committee found. I also had an opportunity to look at paragraph 12 of the Guidance for Departments on the Role and Requirements of the Committee—the Delegated Powers and Regulatory Reform Committee. I give Ministers half points rather than nil points, because they have actually done half of what the memorandum asks them to do under the heading “Criminal offences”. It says:

“Where a bill creates a criminal offence with provision for the penalty to be set by delegated legislation, the Committee would expect, save in exceptional circumstances, the maximum penalty on conviction to be included on the face of the bill”.


We have seen that, so that is great. But it also says in that same paragraph—and the Government have not met this requirement—that

“where the ingredients of a criminal offence are to be set by delegated legislation, the Committee would expect a compelling justification”.

I am afraid, as with virtually all of the Bill but particularly and specifically on this issue of the creation of criminal offences, that skeleton legislation gives rise to significant risks of the creation of offences, with punishment meted out to businesspeople and others associated with commerce without proper scrutiny and oversight.

For those reasons I strongly support all the amendments in this group, and I look forward to the Minister addressing the particular issue of what are the compelling reasons that necessitate that wording in the Bill and why the Government have chosen to go in that direction. I hope he will think again on Report about perhaps amending the wording in the Bill, as we have argued for today.

[Lord Leong (Lab)]

My Lords, I thank noble Lords for their amendments in this group related to criminal offences. This is an important area, and I am grateful for the knowledgeable and informed contributions in this debate, demonstrating the significant expertise in this House. My response sets out the general principles relating to criminal offences, but I will try to answer many of the various questions that noble Lords asked.

As I mentioned previously, I am very aware of the concerns that noble Lords have raised on delegated powers and the importance of consultation and scrutiny more generally. In particular, I am grateful for the thoughtful and comprehensive reports of the Delegated Powers and Constitution Committees. I have mentioned this before: noble Lords will be aware that we have provided responses to both committees, and my colleague, Minister Madders, and I gave evidence to the DPRRC. I was very grateful for the opportunity to explain the Government’s approach to these issues.

I begin by stating a central point. The severity of the harm caused by breaches of regulations across different product sectors varies. To proportionately reflect harm, offences and penalties must be tailored to individual sectors and duties.

I hope noble Lords would agree that, with regard to criminal offences, the rule of law is best served by precision. Only by having criminal enforcement provisions alongside product requirements can proportionality be ensured. Take, for example, a penalty for failure to properly mark a product: the harm will be very different for a highly sensitive product within a nuclear energy installation versus a lower-risk product.

As well as creating issues of proportionality, codifying criminal offences and penalties in the Bill would likely lead to enforcement gaps later. Offences would not correspond directly to new duties created for existing supply chain actors or responsibilities placed on new actors who enter the supply chain over time.

Lord Bingham’s principles require that the law be accessible and, so far as is possible, intelligible, clear and predictable. Setting out the details of offences and penalties in the Bill would undermine those principles. It would necessitate drafting speculative penalties to fit duties yet to be created. That would leave ambiguity over to whom offences may apply in future and create statutory maximum penalties that would be disproportionate for some actors.

Lord Bingham’s principles go further to support the approach of tailoring clear, proportionate offences and penalties that correspond to supply chain actors’ duties as they arise over time. If we instead place the detail in primary legislation, we risk undermining those crucial principles by locking in terms that become ambiguous over time as business models and products evolve, and with penalties that can cater to only the most serious version of the offence. Setting the maximum penalty in primary legislation means that the penalty can be calibrated to only the most serious version of the offence, leaving a broad discretion to judges to determine the appropriate sentence for less serious cases. Legal certainty and predictability of applicable penalties are better served by specific, tailored provision being set out in secondary legislation.

Noble Lords have highlighted that the DPRRC, in its report on the Bill, recommended that elements of criminal offences are set out within primary legislation. The Government value the work of the DPRRC and the incredibly important role it plays. We have considered its recommendations carefully within the department. However, the approach taken to setting out criminal offences within regulations is not novel. Other Acts that underpin broad regulatory regimes allow for the creation of criminal offences in regulations, including the Building Safety Act 2022, the Retained EU Law (Revocation and Reform) Act 2023 and the European Union (Withdrawal) Act 2018. I also highlight some examples of existing product regulations that set out criminal offences and penalties, such as the Nagoya Protocol (Compliance) Regulations 2015 or the Simple Pressure Vessels (Safety) Regulations 2016.

Noble Lords may also be interested to note that, to ensure proportionality, the maximum criminal penalties that may be implemented by regulations are set out in the Bill and follow existing precedent, as seen in sector-specific regulations such as the Electrical Equipment (Safety) Regulations 2016. This is a key point. Our approach provides this strong safeguard that enables discretion to set lower and more proportionate penalties in secondary legislation, which will also have parliamentary oversight. We submit that secondary legislation ensures parliamentary oversight but also the flexibility required to ensure that we can implement proportionate criminal offences that comply with the vital principles underpinning the rule of law.

--- Later in debate ---

[Lord Leong (Lab)]

My Lords, once again I thank the noble Lord, Lord Sharpe, for his amendment. I begin by reaffirming that this Government take their responsibility to parliamentary scrutiny very seriously. We have listened carefully to the views expressed and we will reflect on them as we move forward. It is always our aim to strike the right balance between thorough oversight and addressing the technical and practical demands of product regulation.

Amendments 72 and 73 seek to ensure that the use of emergency powers is transparent and proportionate. I fully appreciate the intentions behind these amendments, and I reassure the noble Lord, Lord Sharpe, that we believe that the Bill already provides robust mechanisms for oversight.

Clause 4 is intended to be used in rare emergency situations. It is introduced in this Bill following the recent example of the Covid-19 pandemic, when there was a shortage of personal protective equipment. To be clear, this clause is not about quickly implementing regulations on new products; it is about emergency situations where there could be a need to temporarily disapply or modify existing regulations to allow current products to be brought to market much more quickly. Any regulations made under Clause 4 are subject to the draft affirmative legislative procedure, ensuring that both Houses can scrutinise and approve them. We believe this process provides a balanced and proportionate mechanism for oversight and accountability, ensuring thorough scrutiny.

The Government are also committed to developing a clear framework of how the policy will work in practice, and this will be done in consultation with stakeholders. However, we do not believe it will be necessary to formally lay this framework before Parliament, as the oversight arrangements provided by the draft affirmative procedure for any secondary legislation under Clause 4 are believed to be sufficient.

The Office for Product Safety & Standards will take the lead in developing the framework and will publish guidance on the conditions and procedures for using these emergency powers. The guidance will then be made publicly available to Members of this House and relevant committees on the GOV.UK website which, if needed, can be used to supplement any future scrutiny on emergency measures. In addition, Clause 4 is intended to provide a proportionate response to emergencies, and conditions can be applied which will be context specific. Therefore, any disapplication or modification of regulations will be targeted, with safeguards in place to ensure public safety remains paramount.

As the House can appreciate, emergencies can be unpredictable and cannot always be anticipated in advance. Imposing an initial fixed three-month sunset period and review process for extensions risks reducing the Government’s ability to respond effectively to emergencies that may evolve over time. Instead of applying a fixed three-month sunset period to all regulations, we believe that each regulation in response to an emergency should be targeted and tailored to its unique circumstances. This approach ensures that the measures remain both proportionate and effective, addressing the specific challenges of the emergency and the product or situation involved while avoiding unnecessary constraints.

[Lord Jackson of Peterborough (Con)]

The Minister is making a powerful argument, but he raised the issue of Covid. He is aware, of course, that it is quite possibly the case that you can expedite fast-track legislation in extremis. He will no doubt know that between 1989 and 2009, 15 Northern Ireland Bills that were terrorism and security-related were fast-tracked through both Houses. So, in a fundamentally very serious emergency situation, you can expedite fast-track primary legislation. I offer that as a suggestion to the Minister.

[Lord Leong (Lab)]

I thank the noble Lord for that, and I am sure the officials will have taken notice as well.

I must also highlight that, in line with the Government’s commitment to transparency and informed decision-making, proportionate impact analysis will accompany future secondary legislation. This will be prepared in accordance with the Better Regulation Framework, ensuring that Parliament has access to evidence-based assessments that support effective scrutiny.

I hope that I have been able to provide reassurance on all these matters and assure the noble Lord, Lord Sharpe, that the Government have carefully considered the importance of parliamentary scrutiny and sought to strike a careful balance in relation to emergencies. I am happy, as always, to meet the noble Lord or, for that matter, any other noble Lords to discuss with them further our approach in this area. On that basis, I ask for the amendment to be withdrawn and for the other amendments in this group not to be moved.

Product Regulation and Metrology Bill [HL]

Lord Jackson of Peterborough Excerpts

Report stage
Wednesday 26th February 2025 Lords Chamber

[Lord Frost (Con)]

My Lords, I support the amendment from my noble friend Lord Sharpe. We discussed what the point of the Bill is on many occasions in Committee, but I am afraid we are none the wiser and certainly no better informed on that subject as a result. That is why it is necessary to have a clearer purpose clause written into the Bill. The nearest we have is in the Explanatory Notes from a few months back; I will not read the full text, but they say:

“The Bill intends to ensure the UK is better placed to address modern day safety issues”


and high modern standards

“by allowing the UK Parliament the power to update relevant laws”.

Correct me if I am wrong, but the UK Parliament already has the power to update any law that it wishes, so I do not see how that can be the purpose of this Bill; there must be something else to it. Of course, one could speculate about it. Perhaps it is just to relieve the Government of the burden of having to go through the effort of legislating for the full range of manufactured goods that we still produce in this country, to delegate that power to the European Union and to recreate the situation that existed before we left that organisation. Perhaps it is to help with the woeful arrangements of the Windsor Framework and to make it a little easier to move goods across the internal border from Great Britain to Northern Ireland—I do not know.

What the purpose of the Bill cannot be is to reduce trade barriers—or it can be so only on one condition—because aligning with EU law does not reduce trade barriers. The EU itself is very clear about that; the process remains because it is a different legal system. The one condition on which that could be true would be if the UK and the EU reached an agreement that the aligned legislation under this Bill was to be considered as EU law and would be enforced by the Commission and the court—in other words, a Swiss-style arrangement. We have heard chat that that might be what the Government are aiming for in their reset.

In so far as I can see a purpose to the Bill, without the proposed new purpose clause in Amendment 1, it is maybe to prepare the ground for a Swiss-style agreement. Can the Minister, when commenting on this group, confirm or deny whether that is the intention of the Government and the purpose of this legislation? If it is not, it is very hard to see why the Government would not accept the proposed new purpose clause in Amendment 1.

[Lord Jackson of Peterborough (Con)]

My Lords, I support the amendment in the name of my noble friend Lord Sharpe of Epsom. I hope that over the course of my remarks I can illuminate the rationale for the amendment, for the benefit of my noble friend Lord Deben. This amendment is not about relitigating the Brexit battles. It is about holding the Government’s feet to the fire in a Bill that is deeply flawed. It is found to be deeply flawed by your Lordships’ Constitution Committee and delegated legislation committee—more of that later.

The two reasons that Ministers should look benignly on this amendment are that it is not substantially at odds with the Bill’s raison d’être and it is not only a noble aspiration of the Government. The Government were concerned—indeed, the previous Government were also concerned—that they did not have sufficient powers to respond to the EU’s regulatory initiatives efficaciously and that this would have negative trade consequences. It is perfectly proper that the Government seek to address that issue.

The fundamental problem of the Bill is that it does not articulate how far the Government intend to exercise the wide-scale, sweeping enabling powers in favour of alignment with the European Union only, and not other jurisdictions. For that reason this amendment should receive the support of your Lordships’ House. It is a purpose clause and a fundamental issue. I hope your Lordships will forgive me if I stray into the remit of Amendment 2. They are very similar and both look at Clause 1.

Before I go any further, I thank the Minister for how congenial and open he has been in engaging with all sides of the House—including our friends on the Liberal Democrat Benches—in seeking to improve the Bill and have a proper debate. Although there is no specific mention of dynamic alignment in the Bill, my noble friend Lord Frost makes a very astute point on whether the Government are moving towards a Swiss-style agreement—multiple bilateral agreements—which would potentially not be in the best interests of the UK as a much larger and more substantial economy than Switzerland.

The Minister should accept that our amendment seeks clarity, certainty and an explicit purpose, without undermining the concept of improving the regulation of products and metrology. This is not one giant statutory instrument. It is a piece of primary legislation. It is quite sensible to have the purpose of that legislation explicitly set out. It has an impact in terms of protecting the autonomy of the UK as an independent trading nation. As my noble friend Lord Hannan of Kingsclere made clear in Parliamentary Questions earlier, adopting a regulatory regime over which we have no effective influence, input or sanction is not a sensible way to proceed. It would certainly circumscribe our capacity to make new, advantageous trade arrangements with countries—not just those outside the EU but others that will come into the EU as new members subsequently.

The noble Lord, Lord Hunt, chunters that “It would be in our interest” from a sedentary position. That is a value judgment.

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

I said that what we do is totally in our own hands. The Bill gives us the right to adopt if we want to—to change, if we want to. This is about the UK having control. I thought that is what the party opposite wanted.

[Lord Jackson of Peterborough (Con)]

That would be the case if the Bill was not an egregious offence in respect of huge Henry VIII powers and enabling powers.

[Lord Hunt of Kings Heath (Lab)]

I am sorry to intervene on the noble Lord again but I cannot resist it. Surely the whole point about the Bill is to give us flexibility to do what the noble Lord is asking us to do.

[Lord Jackson of Peterborough (Con)]

Then the noble Lord would support a purpose clause, which—one might make the case—is much clearer and more explicit. Incidentally, I agree with every word said by my noble friend Lord Lansley and will be supporting his amendment later.

But, as the noble Lord, Lord Hunt of Kings Heath, rises to the Dispatch Box, I would just like to conclude my remarks with the words of his noble friend the Attorney-General. This has been mentioned before, because it is very important within the context of the Bill. It is not just that this is primary legislation; it is unclear. It gives ministerial fiat—wide-ranging ministerial powers—and there are not explicit protections. Indeed, the Delegated Legislation Committee specifically says there are not proper procedures for even consultation with key stakeholders. But the noble Lord will know that on 14 October, the Attorney-General—who is not as high-profile in this House as he used to be—said in his Bingham lecture on 14 October that

“excessive reliance on delegated powers, Henry VIII clauses, or skeleton legislation, upsets the proper balance between Parliament and the executive. This not only strikes at the rule of law values … but also at the cardinal principles of accessibility and legal certainty. In my view, the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means, in particular, a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards”.

I could not have put it better myself. On that basis, I hope that Ministers may be minded to support my noble friend Lord Sharpe’s amendment.

[Lord Fox (LD)]

My Lords, it is a pleasure to take part in this Report debate and to speak to this amendment.

I am grateful to the noble Lord, Lord Jackson, for reminding us that we are not relitigating the Brexit debate, because sometimes in Committee it was very hard to understand that point, given the speeches that came from his Benches. We are not relitigating the Brexit debate; we are trying to put in place a regulatory regime and the ability to deliver regulation that benefits the people of this country.

I was minded to consider that if I was using an electric lawn-mower and I started either to be electrocuted by it or have my toes removed by it, the last thing I would worry about was whether the regulation for that was autonomous. I would be worrying: why was it not safe? Why was the product not preserving my rights as a consumer not to be electrocuted or amputated? There is a serious point to this. If the noble Lord wanted to put a purpose to the Bill, its purpose is not to deliver some mystical autonomy—if we look at Amendment 8, we see that the Minister, far from delivering autonomy, is going to tie us to a whole bunch of other regulatory regimes. It is about delivering a regime that protects people and the environment, and gives consumers right of recompense if they are sold faulty products—all those sorts of things that we see before us. If we look in the draft code of conduct, that is what is set out in the introduction to it.

Sometimes we use before Clause 1 purpose amendments to make sure that we are the first speaker up. I do not think in this case that was in the mind of the noble Lord, Lord Sharpe. His amendment is designed—

[Lord Jackson of Peterborough (Con)]

Will the noble Lord give way?

[Lord Fox (LD)]

If I can finish my sentence, please. The noble Lord’s amendment is designed to completely change the purpose of the Bill. I think he has admitted that, and that is right. I suggest that in all the discussion we have had, all the amendments that we have talked about through Committee have been about the consumer, safety and the other issues that actually matter. If we want a purpose, I am very happy to sit down with the noble Lord, Lord Sharpe, and the Minister and we can draw up a purpose that encompasses that if it makes people feel happier, but the key issue is not the autonomy, it is the effectiveness of that regulation. I give way.

--- Later in debate ---

[Lord Fox (LD)]

I am grateful to the noble Lord. Our focus will be—

[Lord Jackson of Peterborough (Con)]

Will the noble Lord give way?

[Lord Fox (LD)]

No, as the noble Lord just said—

[Lord Jackson of Peterborough (Con)]

The noble Lord agreed to give way.

[Lord Fox (LD)]

I give way to the Whips to suggest what to do.

--- Later in debate ---

I remind people that we believed, or were told, that we were taking back control. I think we in fact did not take back control at all; we made ourselves less powerful in controlling our futures. But the one thing that we did not say we would do was to give Ministers the unfettered control which some had objected to in the European Union, so it is necessary for the Government to go further. I usually find the noble Lord, Lord Anderson of Ipswich, very persuasive, but I fear that he has given way too early. We ought to ask for further concessions before we can safely pass this Bill.

[Lord Jackson of Peterborough (Con)]

My Lords, I will speak briefly to Amendment 39, tabled in my name, which has ended up in this particular group almost by accident. It relates to a specific issue about the making of regulations as they relate to criminal offences arising from non-compliance in respect of metrology. This amendment is quite important because it requires that, at least 30 days before the making of a provision in respect of regulations as described in Clause 6(9), those regulations be placed in the Libraries of both Houses in the form of an Explanatory Memorandum.

This is important because the creation in secondary legislation of any criminal offence is a serious matter, and one that needs proper scrutiny and oversight. On that basis, it is a reasonable request for the Government to look benignly on this amendment, because they have previously committed to transparency and openness in many respects in the Bill. This would give parliamentarians an opportunity to raise some questions about the likelihood of a criminal offence arising from metrology regulations. For that reason, I may press this amendment.

[Lord Holmes of Richmond (Con)]

My Lords, following the theme of benign attention from government to amendments that have washed up in this group, I shall speak to my Amendment 41. In doing so, I declare my technology interests as set out in the register, not least as it applies to Socially Recruited, an AI business.

There are many things that are not in the Bill, data centres being one of them; yet these are the factories and foundries that are going to fuel our fourth industrial revolution, which is already well under way. We might think back to all that Victorian factories legislation, all quite appropriate and proper, whereas all I am seeking here is not even a whole statute—which we could have on data centres alone—but merely one amendment, which I hope the Government can look benignly upon. It simply asks the Government to undertake a consultation to look at a new standard for the measurement of the power usage of data centres.

We are going to rely increasingly on data centres for almost everything that we do in this country. How we power them, where we site them, the inputs, the outputs, where the technology comes from—all of these are key features currently utterly unconsidered in any legislation or regulations. All that my Amendment 41 seeks to do is suggest that the Government launch a consultation, following the passage of the Bill, to look at the effectiveness of a,

“metrology standard for the power usage of data centres”,

and, not least, to reconsider the current power usage effectiveness—PUE—standard and whether it is up to the job in hand.

--- Later in debate ---

[Lord Browne of Ladyton (Lab)]

My Lords, I rise to speak to Amendment 13, in the name of the noble Lords, Lord Russell of Liverpool, Lord Kirkhope of Harrogate and Lord Fox. It is a pleasure to follow the noble Lord, Lord Deben, whose common sense I often agree with. I am happy to echo his request that we treat and judge these amendments in the world we live in, rather than the world we would like to live in.

My name was attached to a predecessor of this amendment when the Bill came before your Lordships’ Committee. Its absence at this stage does not reflect any diminution of my belief that its provisions would both enhance the effectiveness of this legislation and strengthen Parliament’s scrutinising role. The fact is, I just left it too late to add my name.

The moving spirit behind this amendment is a desire for the greatest possible transparency and, leading from that, the greatest role possible for your Lordships’ House and the other place in examining regulatory decisions and subjecting them to scrutiny. The coverage surrounding this legislation has frequently described it as an enabling Bill, but I see this amendment as one that enables Parliament to have access to the thinking of relevant Ministers when they choose to align with or diverge from EU or other law. These decisions should and will be made according to a calculus of national self-interest, rather than—as I suspect some on the Opposition Benches are determined to believe—a desire unthinkingly to ape EU regulations, whether such alignment is in the interest of British business and industry or not.

In that respect, this amendment is rather more narrowly drawn than its predecessor, to which I put my name. It does not represent dynamic alignment but offers a greater measure of regulatory certainty for business, while ensuring that decisions that prove not to be in our interest are regularly reviewed. As I have said, I am aware of the fears of some on the Opposition Benches, and the suggestion that the Bill encompasses the extinction of British regulatory independence. I do not agree with them but suggest that if this is indeed their belief, the greater transparency and reviewing requirements of this amendment should offer a vehicle for more effective scrutiny.

This amendment has been drafted carefully and is consonant with the aims of the Bill as a whole. It does not suggest or conform to any preconceived determination that alignment with EU standards is inherently desirable. As we have heard, it simply imposes on Ministers a duty to report to Parliament when a decision has been made against or in favour of regulatory alignment. In a further departure from this amendment’s predecessor, the yardstick against which that decision has been taken will be a simple one: whether the decision is to the benefit of British businesses.

Recent weeks have made it abundantly clear that we now live in a more transactional world. Although I might regret that fact, I recognise it and accept that this is the world that we live in, as the noble Lord, Lord Deben, would say. Even judged by that metric, this amendment’s value is clear. Its starting point is what is good for our national economy and businesses; it ensures that Parliament is to be apprised of the basis on which Ministers make their regulatory determinations; and it ensures that if these have proved mistaken, they can be scrutinised and, where necessary, reversed. For those reasons, it should be part of the Bill. Whether through proceedings in your Lordships’ House or the other place—which, I am sure, will have an opportunity to consider it—I hope that this amendment, or something very like it, will make its way on to the statute book.

[Lord Jackson of Peterborough (Con)]

My Lords, I support my noble friend Lord Frost’s amendments in this group, tabled in his and other noble Lords’ names.

I begin by focusing on the amendment tabled by the noble Lord, Lord Russell of Liverpool, and others. It would be churlish and unreasonable not to concede that it is slightly different from the amendment tabled in Committee and that it is slightly better, although I am surprised by the noble Lord’s comments, echoed by my noble friend Lord Lansley, about the basis on which we seek to legislate with primary legislation. We do not do it for businesses; we do it for the good of the greater population of this country and not necessarily a small group, however estimable it is in the case of the British Chambers of Commerce. This is not a bad amendment but it is potentially a Trojan horse amendment, in that it closes out options other than the regulatory and legal regime of the European Union.

That brings me to Amendment 11, tabled by my noble friend Lord Frost. The key issue here is that we are considering a Bill that we hope will improve the productivity and competitiveness of British business and commerce and reduce trade frictions. It is not sensible to close off the possibility of different opportunities for the United Kingdom to prosper outside the European Union. The ideas are not mutually exclusive. Being open and transparent, and putting in legislation the means to improve trade globally, does not necessarily mean that we are resiling from our friends in the European Union and our trade with them. However, by dollar denomination, global trade with the EU has reduced from, I think, 32% 30 years ago; it is likely within the next 10 years to drop to about 14%.

Therefore, we have a duty and a responsibility. It is imperative for us as legislators to put in place legislation that recognises those economic realities—that we will be trading more with Indonesia, Japan, Mexico, South Africa and other countries. Of course, we are not taking the view that Europe cannot prosper. It is in our best interests that the European Union prospers. But to put in the Bill only the legal and regulatory regime of one part of the global trade possibilities closes off options that Ministers would be sensible not to close off.

My final remarks are on my noble friend’s Amendment 25, which affects Clause 2, on page 3 of the Bill, concerning the legal jurisdiction of potential supranational legal entities and the impact they will have on the regulatory regime of the United Kingdom. Again, I press the Minister to answer my noble friend’s question: as a result of this Bill passing, are we going to have a situation in the near future analogous to that of Switzerland—a fractious and difficult relationship as a result of many bilateral agreements with the European Union, and is that in the best interests of the United Kingdom? That is the rationale behind this very sensible amendment. For those reasons, I support my noble friend Lord Frost’s amendment, and I would resist the amendment from the noble Lord, Lord Russell of Liverpool.

Product Regulation and Metrology Bill [HL]

Lord Jackson of Peterborough Excerpts

Report stage
Wednesday 5th March 2025 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, once again I would like to take this opportunity to thank the Government for their response in Committee, and for confirming that the Office for Product Safety and Standards will be publishing a framework outlining the conditions and procedures for using emergency powers under Clause 4.

However, we feel that it is vital that such a framework is discussed in Parliament. The use of emergency powers must be subject to scrutiny, transparency and democratic accountability. Parliament must have the opportunity to assess the scope, necessity and potential consequences of these powers before they are enacted, otherwise we will risk allowing significant regulatory changes to be made without sufficient oversight, which again potentially impacts business, consumers and public confidence in the regulatory system.

Just like the rest of the clauses in this Bill, there is a level of vagueness in Clause 4. Once again, as the Delegated Powers and Regulatory Reform Committee has stated, that represents an unacceptable shift in power to the Executive. Emergency powers should not be granted on broad and undefined terms without proper safeguards and clear limitations.

I am also revisiting Amendment 30, which seeks to limit emergency modifications to an initial period of three months. Not only do we need a clear understanding of what may or could constitute an emergency but, even though we acknowledge that emergencies can be by their very nature unpredictable, there is undeniable value in debating this in Parliament. We saw this during Covid-19, where initial emergency measures had to be quickly defined but, over time, continued justification and scrutiny became essential. Three months is more than enough time to assess an emergency, determine whether modifications are still needed, and, if so, bring forward a proper review process with stakeholder consultation. Furthermore, Clause 4 States:

“The disapplication or modification may be made subject to conditions”.


That raises the question: what conditions?

I urge the Government to accept these amendments to enhance transparency, ensure accountability and reaffirm the role of Parliament in overseeing emergency decision-making. I beg to move.

[Lord Jackson of Peterborough (Con)]

My Lords, I support Amendments 29 and 30, in the name of my noble friend Lord Sharpe of Epsom. I think these amendments are very helpful to the Government.

I put on record that I believe that both Ministers have engaged. Whatever you say about them—we do not necessarily agree all the time—they engage with the argument, and they respond properly and respectfully. That speaks well of them, their Front Bench and their party on this Bill, even though we may disagree.

I support this amendment because it speaks to a need for flexibility. We know that there will be occasions where there are emergencies which we cannot foresee in any reasonable timescale. My noble friend referenced Covid, which is the most obvious example of recent years.

One of the other issues running through this Bill has been business certainty—businesses having the opportunity to understand the legislation and take measures necessary to ameliorate any impact of it on their businesses. These two very sensible amendments would do that, because they would give business a proper framework and reference point for the sort of emergency secondary legislation that may occur as a result of unforeseen circumstances. They address the imperative—this has been a major theme of this Bill, given the reservations of the Delegated Powers and Regulatory Reform Committee—for proper scrutiny and oversight because we have so many enabling powers, and give flexibility.

The amendments are not prescriptive. Seeking a proper outline of conditions and procedures for the use of emergency powers does not directly enforce a fear upon Ministers. It does not direct Ministers, and it does not fetter their discretion in acting appropriately in the national interest in the case of emergencies. It nevertheless is a way for Parliament to have an understanding of the actions the Government are taking. As your Lordships’ House knows, we are looking at rationale and definition in Amendment 29, and clarity and certainty in Amendment 30.

My final point is that this will, no doubt, be litigated in the future, as all legislation is. The more certainty and clarity that we put in the Bill, the less chance there is for vexatious litigation arising from any use or discharge of those regulatory powers in unforeseen emergencies.

For those reasons, and because I know the Government are committed to having a proper debate and discussion on the regulations that they intend to use, particularly in emergency circumstances, Ministers should look favourably on these two amendments. They are seeking to be helpful. I do not think, as I have said before, they fundamentally alter the raison d'être of the Bill. I am pleased to support my noble friend’s Amendments 29 and 30.

[Lord Fox (LD)]

My Lords, as we have heard, the amendments in this group concern the use of emergency powers under the legislation. Amendment 29 would require the Secretary of State to present a framework to Parliament outlining their use, and Amendment 30 would limit the use of emergency modifications to three months and would require a review of any extension to those modifications.

--- Later in debate ---

[Lord Jackson of Peterborough (Con)]

My Lords, I rise to support my noble friend Lord Frost, and I will speak very briefly. I am concerned about the Government’s likely resistance to this amendment being moved, because this goes to the very heart of what the Bill is about: proper parliamentary scrutiny and oversight.

We have had many debates about the Delegated Legislation Committee and its significant reservations about the enabling powers and Henry VIII powers which will potentially be discharged by Ministers. The kernel of the debate is: why should we of necessity default to just one regulatory regime? People like the noble Lord, Lord Fox, will say that it is our closest economic partner and, of course, it is absolutely logical.

I hesitate, because I know I will be accused of relitigating the Brexit battles, from which I have many scars on my back. However, the fact of the matter, is that, rightly or wrongly, we no longer have direct input into the design and execution of those regulations. So to put in primary legislation, with the background of the Delegated Legislation Committee expressing those significant reservations, a sub-clause which defaults to the position that any regulation, because it comes from the EU, is of necessity the right regulation for our country—in the context, as we have previously debated in Committee and on Report, of an expanding global economy where we will be trading with many different countries and different regulatory regimes outside the European Union—seems to me to be a mistake. On that basis, it is eminently reasonable and sensible for Parliament to have the opportunity to look in detail at these regulations via the affirmative procedure.

For that reason—I know the hour is late and there is other pressing business in the House—I ask Ministers to at least look at supporting this very important amendment on Third Reading. On that basis, I am delighted to support the amendment of my noble friend Lord Frost.

[Lord Hunt of Wirral (Con)]

My Lords, to echo what my noble friend Lord Lansley has just said, we are reflecting at the moment on how this country is governed and the extent to which the Executive can be held to account.

In many ways we take pride in our committees. I know from what he has said in the past about government legislation that the noble Lord, Lord Hunt of Kings Heath, has many times criticised what we describe as skeleton Bills. In effect, the Government are saying, “Please allow us to do whatever we eventually decide we would like to do, but give us that power now and we will then do it by secondary legislation”. Speaking as the immediate past Chair of the Secondary Legislation Scrutiny Committee, I always worked very closely with my colleagues in the Delegated Powers and Regulatory Reform Committee. Although my noble friend Lord Lansley said a few moments ago that the Government had introduced a number of amendments, they came back before the Delegated Powers and Regulatory Reform Committee, which said, “That’s not enough”. So, in a way, we are now deciding whether or not the Government are right to ignore the unanimous report of the Delegated Powers and Regulatory Reform Committee.

I turn to Amendments 48, 57 and 58 standing in the name of my noble friend Lord Sharpe. I commend my noble friend Lady Lawlor, and my noble friends Lord Frost, Lord Jackson of Peterborough and Lord Lansley, for all that they have said. But, to summarise, this is our last real opportunity to deal with what is in effect a skeleton Bill that allows an unacceptable transfer of power from an elected legislature to the Executive.

We welcome the amendments the Government have put forward, but let me quote from paragraph 8 of the unanimous report of 20 February from the Delegated Powers and Regulatory Reform Committee, from which I have quoted before. Having considered all the issues, it said,

“these are limited changes that do not address the fundamental concern we have about the skeletal nature of this Bill”.

There is of course provision for consultation, which is warmly to be welcomed, but the committee said,

“consultation is not a substitute for Parliamentary scrutiny”.

Surely, we as a House must agree with that.

It is not enough simply to engage stakeholders behind closed doors while sidelining proper legislative oversight. The Bill in its current form creates a dangerous precedent. This Parliament is asked to cede control over critical regulatory decisions in favour of unchecked Executive power. That is surely not how this democracy should function. If the Government are serious about ensuring transparency, accountability and proper legislative oversight, they must surely go beyond mere consultation and commit to meaningful parliamentary scrutiny at every stage of the regulatory process.

In a moment we will hear from the noble Lord, Lord Leong. Will he allow me to quote him? In Committee on 20 November, he said this:

“Some regulations will relate to very minor technical changes, so it really would be taking up too much parliamentary time for that, whereas other regulations may need a full scrutiny, and we will have avenues for that”.—[Official Report, 20/11/24; col. 39.]


What I ask is—and I hope the Minister will reply in a moment—what are those avenues exactly? The Government are yet to provide any clarity at all on how they will distinguish between so-called minor technical changes and more significant regulatory shifts. They have yet to explain why the negative procedure will apply to all subsequent provisions. If some regulations will require full scrutiny, as the Minister acknowledged, why do his Government, in this Bill, predetermine that every future provision beyond the first use of the power will require the negative procedure?

The Government cannot state for a fact that all future provisions will be technical. Markets change, technology advances and legal interpretations, as all lawyers in this House know only too well, will shift. This is precisely why proper parliamentary scrutiny must remain in place for all product and metrology regulations, as recommended by a committee of this House. If the Government concede that some regulations may need full scrutiny then it follows that the affirmative procedure should apply in all cases. Anything less simply hands Ministers a blank cheque to determine the level of scrutiny after the fact, with Parliament left powerless to insist on proper oversight.

I said that I would refer to the noble Lord, Lord Hunt of Kings Heath, because I remember what he said. I looked it up when I heard he was going to be here. He said about the Medicines and Medical Devices Bill, admittedly in 2021:

“We are increasingly seeing the use of skeleton Bills and Henry VIII clauses. We really must come to a point where we say to the Government”—


I would add any subsequent Governments—

“that we will not put up with this any longer”.—[Official Report, 12/1/21; col. 657.]

As he reflects on his words, I hope he will offer some wise advice to his good colleague.

I urge the Government to reconsider their position and accept the DPRRC’s recommendation that powers should be constrained so that product regulations and metrology regulations are, in all cases, subject to affirmative procedure scrutiny. Surely that is the very least that is required to ensure proper democratic accountability.