Product Regulation and Metrology Bill [HL]

Lord Leong Excerpts

Wednesday 20th November 2024 Grand Committee

[Lord Lucas (Con)]

My Lords, we have been here before. When the Schools Bill was in front of us, I was very happily lined up next to Lord Judge in saying that this would not do, and I find myself in the same position today. We have a job to do in the House of Lords; it is the proper scrutiny of legislation. This Bill seeks to avoid that. Either the Bill needs to wait and rewrite itself in rather more detail when the Government know what they want to do, or we need some such provision as has been suggested by the noble Lord, Lord Anderson and others to allow us a proper view of what will actually happen under this legislation. I very much hope that the Government will rethink, in one direction or the other.

[Lord Leong (Lab)]

My Lords, I join noble Lords in congratulating the noble Lord, Lord Sharpe, on his appointment. I look forward to working with him in the years ahead.

I thank all noble Lords for speaking on this group. Noble Lords across the Committee have raised a number of important issues relating to scrutiny. I reassure them, up front, that this Government take very seriously the importance of scrutiny, in particular facilitating parliamentary consideration of government proposals. However, we believe overall that the Bill strikes the right balance on the need for proper consideration of the important issues and the technical nature of many product regulations.

I start with Amendment 132. The noble Lord, Lord Fox, has proposed the publishing of impact assessments of affirmative regulations laid every six months after the Bill’s implementation. The impact of any new regulations will be fully considered through the development of proportionate impact analysis. The Better Regulation Framework, as most noble Lords know, is the system that the Government use to manage the flow of regulation and understand its impacts. In line with the Better Regulation Framework, for regulations where significant impacts are anticipated —above £10 million per year—full impact assessments will be published. For regulations with lower anticipated impacts, a proportionate de minimis assessment impact analysis will be completed. These assessments will, as a matter of course, consider the impact of regulations on small and medium-sized enterprises. Therefore, the laudable sentiment behind these amendments is already covered.

A number of the amendments relate to the use of the affirmative procedure. There exists a process for scrutinising secondary legislation that will operate under this Bill, including by scrutinising committees. I recognise the Bill’s delegated powers have raised questions, including from the Delegated Powers and Regulatory Reform Committee, which the Parliamentary Under-Secretary of State for Employment Rights, Minister Madders, and I appeared before in October. I remind noble Lords that the DPRRC stated and admitted in that evidence session that it saw the need for powers. The Government take seriously the recommendations of the DPRRC, and I plead mea culpa—we put our hands up that we should have been much clearer and could have done more to explain the reasons for the approach taken in this Bill.

The noble Lord, Lord Sharpe, asked about the Attorney-General’s speech at the Bingham lecture. He is a fine lawyer and is a good friend of mine. I listen to him all the time. But he said in his speech that this Bill does not exceed excessive powers. Product regulation is very technical, and we have ensured the that the Bill allows for appropriate parliamentary scrutiny, enabling this House to play the crucial role of scrutinising legislation. Existing secondary legislation runs to over 2,500 pages and covers everything from consumer products, such as toys and cosmetics to heavy industrial products like pressure equipment. We intend to use the Bill’s delegated powers to make targeted changes, on a case-by-case basis, to update and build on the large and well-established existing framework.

I should like to reassure all noble Lords on the specific point around EU law. The appropriate scrutiny procedure is provided by Clause 11, which applies the draft affirmative procedure to various regulations, including those making provision for a power of entry, creating a criminal offence or amending primary legislation, which will need to be debated and approved by Parliament before being implemented.

I turn to Amendment 133, in the name of the noble Lord, Lord Fox. This proposes a sifting mechanism whereby all regulations are preconsidered by a joint committee of both Houses. While we understand the need for oversight, a bespoke joint committee approach could cause delays. In addition, there is already a parliamentary process for statutory instruments made under specific Acts of constitutional significance where sifting is applied to ensure appropriate scrutiny. We do not consider that such a process is proportionate or necessary under this Bill, where regulations will often relate to routine minor technical changes—for example, a change in chemical content in cosmetics or toys.

I turn to the amendments of the noble Baroness, Lady Lawlor—

[Lord Fox (LD)]

I think the Minister is trying to have it both ways. On the one hand, this committee is so long-winded that important and breathless regulation could not be made and, on the other hand, the regulations will be so small and insignificant that this committee does not need to observe them. It is either one thing or the other—and if there are emergency regulations, I am sure that we can put in place a process to necessarily short circuit and get that before your Lordships’ House quickly. So, the idea that somehow this would hold up vital regulation that that the country is waiting for overnight is something of an overstatement of the process of regulatory development.

[Lord Leong (Lab)]

I said earlier that we will look at this on a case-by-case basis. 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.

On the amendments from the noble Baroness, Lady Lawlor, although parliamentary oversight is crucial, requiring the sunsetting and renewal of regulations under Clause 1 would create legislative gaps and undermine regulatory certainty. This is particularly for essential product regulations that protect consumers or for products where their design, production and installation may take over a year. Ensuring consumer safety is a constant, ongoing concern. We also have to ensure that businesses have certainty. Having a sunset clause will not give certainty to businesses.

As I have explained, these are also highly technical regulations, covering matters as detailed as the formulae for measuring outdoor noise, for example, and I am not sure it would be a good use of parliamentary time to re-examine such specific matters on an annual basis.

Similarly, Amendments 40, 41, and 131 from the noble Baroness, Lady Lawlor, ensure that regulations incorporating EU law will be subject to parliamentary debate, with consideration of constitutional impacts. As Members of the House will be aware, a duty to assess the impacts of any new legislation on trade between Northern Ireland and Great Britain already exists, and the responsible Minister must make a statement considering any impacts on trade between Northern Ireland and the UK internal market. To provide additional assurances, it is considered that the powers set out in Clause 5(2) provide a proportionate and appropriate parliamentary scrutiny process, where the regulations will often be highly technical and routine in nature.

Noble Lords, including those on the DPRRC, have questioned the Government’s intentions as regards consultation on changes made under the Bill’s powers. Amendment 126, tabled by my noble friend Lady Crawley, for example, proposes to establish a duty for the Secretary of State to publish regulations in draft form, and consult such persons as the Secretary of State considers appropriate.

I fully appreciate the importance of consultation and industry engagement. My department and the Department for Business and Trade have excellent relationships with industry and consumer groups and will continue to engage regularly with any stakeholders before changes are introduced. Indeed, we currently have two calls for evidence in circulation seeking stakeholder input, one on the introduction across the UK of a common charger for all our mobile phones and other portable electrical and electronic devices, and the other on measuring noise from outdoor equipment.

We have not included a statutory consultation requirement to allow for proportionate engagement with industry and consumer groups depending on the significance of the changes. This ensures agility in responding to emerging risks or market developments to protect UK consumers, as mentioned by the noble Earl, Lord Lytton. But I give a firm commitment to noble Lords that the Secretary of State will engage and consult with relevant stakeholders before legislating.

Amendment 33, in the name of the noble Lord, Lord Jackson, and mentioned by the noble Lord, Lord Fox, refers to supply chains involved in products and the extent we need to regulate them. This can be complex, and it is important that we get it right.

Clause 2(3) sets out examples of the persons on whom product regulations may be imposed. However, this is not always clear. Depending on the nature of the product or its supply chain, product regulations may need to cover a whole variety of other actors involved in a product journey. For example, our regulations on the safety of lifts need to cover the people involved in their installation as well as their manufacture, and regulations on recreational craft cover private importers in addition to the usual supply chain actors.

We also need to ensure that rapidly changing business models cannot be exploited, allowing bad actors to exploit good business by defining themselves out of regulation. For this reason, Clause 2(3) is an inclusive list, not an exhaustive list, of persons on whom regulations can be imposed. Clause 2(3)(h) further clarifies that regulations can apply to anyone carrying out activities in relation to a product.

[Lord Fox (LD)]

My Lords, I beg your Lordships’ leave, and I apologise to the noble Lord, Lord Jackson, for taking over his amendment here, but the wording of Clause 2(3)(h) is

“any other person carrying out activities”.

All the other items refer to the activity of the sale and marketing of that product. This does not refer to it but any person carrying out activities unspecified. For example, if I were repairing a product, would I be in the scope of the Bill? I could be, but I do not think that that is the purpose of the Bill. There needs to be some modification of that language—I think the noble Lord, Lord Jackson, is shrewd in putting that up—which focuses on the development and marketing of the product. Otherwise, it is any person doing anything to it.

[Lord Leong (Lab)]

I thank the noble Lord for that point. As I see it, it is the whole manufacturing of the product itself. For example, 3D printers are getting cheaper and cheaper on the market, and anyone can make anything from a 3D printer. So we need a regulation that covers someone who sells the printer, someone who supplies the plastic that goes into the printer and whoever makes that. Unless the noble Lord is mistaken, perhaps I and officials could have a private conversation with him and the noble Lord, Lord Jackson.

[Lord Fox (LD)]

I think we better had.

[Lord Leong (Lab)]

To conclude, I hope that I have been able to provide assurances on all these matters and I assure noble Lords that the Government have carefully considered—

[Lord Deben (Con)]

Before the noble Lord sits down, I am very much in favour of most of the Bill, but this bit is very difficult. I have been around a long time, and I have known Minister after Minister explain that things are too technical for us to have proper parliamentary scrutiny, and I heard it again today. The fact is that there is some real concern, even from those of us who are, in general terms, in favour—I hope it gets as near to parity with the rest of Europe, which is our biggest market—as we want to be sure that Parliament has a say, but I am not sure that the Minister has given us a very good answer. Saying that it is very technical is the oldest story that civil servants have given Ministers since we have had civil servants and Ministers.

[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.

[Lord Sharpe of Epsom (Con)]

My Lords, I do not really have very much to say. I am partially reassured by what the Minister has tried to say, but we will have to study the contents of this debate, which has been fascinating and wide-ranging. It was remiss of me not to have thanked the Minister earlier for his engagement and that of his team, and I apologise. We reserve the right to come back to this, but I beg leave to withdraw the amendment.

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[Lord Sandhurst (Con)]

My Lords, I begin by saying that, like others, I am grateful to the Minister for the time he gave to meeting me. However, the fact remains that our concerns about the Bill have not been assuaged. There are fundamental flaws, as others have said. We do not disagree with the aims of the Bill in general terms; the problem is that we just do not know what the specific policies are. We do not know what route will be taken to address the issues that may arise. It is simply too vague. There will be no opportunity for consultation on, or challenge to, the policies or regulations: policies will be produced by the Minister and that will be that. We know that policies should be in the Bill.

I thank the noble Lord, Lord Foster, for his thoughtful amendments and his commitment to addressing the significant issues raised by Clauses 1 and 2. These electronic developments, such as lithium-ion batteries and so on, are serious issues; they certainly need to be addressed. However, these amendments relate to Clauses 1 and 2, which have been identified by the Delegated Powers and Regulatory Reform Committee and the Constitution Committee as fit only for complete removal from the Bill, for the reasons set out in their reports. Those committees have strongly criticised these clauses because they lack substance and give excessive discretion to Ministers; as I said at Second Reading, this is a Henry VIII Bill par excellence.

We must therefore now be told—we are still waiting—in much more detail what direction the Government think we should take on the matters of substance and importance that the Bill addresses. Ministers are to be empowered to legislate by statutory instrument on matters that are really important for businesses on the receiving end and for consumers, also on the receiving end—or not, if nothing is done—such as marketing, product regulation and metrology. Here in Parliament, we have been given no clear framework or policy direction.

The Delegated Powers and Regulatory Reform Committee’s detailed report of 15 October, which of course came after Second Reading and after substantive objections had been raised by me and others, stated that the skeleton clauses, which include but are not limited to Clauses 1 and 2,

“contain almost no substance about the marketing and use of products but instead give Ministers very broad powers which confer considerable discretion to legislate in that area by statutory instrument”.

On 16 October, the same committee held an evidence session at which it discussed these concerns with the noble Lord, Lord Leong; Justin Madders MP, the Minister in the other place; Helen Le Mottee, deputy director legal for products, business and better regulation; and Tony Thomas, deputy director for product safety policy. The committee said:

“In the evidence session, the Ministers and their officials provided helpful additional information about … the existing legislation that could be amended by regulations made under the powers that the Bill confers; and … the need for the Bill to confer regulation-making powers that would allow detailed and technical provision to be tailored for different types of products and would give Ministers the flexibility to respond quickly and effectively to rapid technological changes and product safety concerns … That additional information could helpfully have been included in the Delegated Powers Memorandum provided by the Department for Business and Trade”.


The committee recognised the need for the Bill to delegate some legislative powers—I think we all understand that that is necessary. However, the committee stood by and repeated the essence of its 15 October first report, notwithstanding the improvement of approach. It said that

“skeleton legislation should only be used in the most exceptional circumstances”—

and we are not there; this is not Covid. We are not in another emergency situation—

“and where no other approach would be reasonable to adopt”.

That, it explained—and I make no apology for repeating this—

“signifies an exceptional shift in power from Parliament to the executive and entails the Government, in effect, asking Parliament to pass primary legislation which is so insubstantial that it leaves the real operation of the legislation to be decided by Ministers”.

Frankly, I say, if they do it with this Bill, they will do it with all future legislation. There was enough fuss in the last Parliament about what those on this side were doing, and now we are going straight down that route and extending it into the distance. As the committee said, the Government

“needs to explain why the Bill provides for almost all of the substance of product regulation and metrology to be provided for by Ministers in regulations under the new powers, and little or nothing to be settled under the fuller Parliamentary scrutiny given to Bill provisions”.

Without clear boundaries or principles, these powers could allow Ministers to fundamentally alter product regulation, metrology standards and even consumer protections with little notice or prior consultation. They can just do what they like if a Minister fancies it or a civil servant has a bee in his bonnet—I mean nothing personal about the civil servants sitting there. I think your Lordships all understand what I have in mind. People have idées fixes, their opportunity comes along, off they go and Parliament will be able to do absolutely nothing about it. This risks creating legal uncertainty, regulatory overreach and a chilling effect on business, stakeholders and consumers.

Clauses 1 and 2 as they stand must, we say, be either significantly revised or removed entirely, as recommended by both committees of which we have already heard rather a lot. Failing such improvements, we on this side of the House will move for the offending clauses to be removed on Report. The Government should understand that.

[Lord Leong (Lab)]

My Lords, before I address Amendments 2 and 27 tabled by the noble Lord, Lord Foster, I need to make a clarification. The Attorney-General made a general comment about excessive reliance on delegated legislation; he did not comment on this Bill. We certainly do not believe this Bill contains excessive reliance on delegated legislation.

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[Lord Leong (Lab)]

I thank noble Lords and the noble Baroness for their amendments in this group. Products in the scope of the Bill are used by every person in this country, covering nearly all manufactured products. We estimate that at least 300,000 UK businesses, employing several million employees, with an estimated market turnover of £490 billion, must adhere to product safety legislation.

The product safety review call for evidence in 2020 and 2021 received something like 158 responses; 126 responses were received in response to the product safety review consultation in 2023; 53 engagement events were held, reaching about 400 stakeholders; and, throughout last year, my department undertook 46 round tables with more than 300 stakeholders, both domestically and internationally. I want to set the picture so that all noble Lords know that we undertook reviews before the Bill was brought to Parliament.

Many businesses and consumer organisations support the Bill, seeing it as a common-sense approach to ensuring that the existing body of product regulation is fit for purpose in the face of technological and other changes. I emphasise again that the Government have been very clear that the UK will not rejoin the EU single market, customs union or freedom of movement. It is important to reset our relations with our nearest friends and neighbours, but that does not mean a return to the arrangements of the past.

Let us not forget that the bulk of UK product regulation is derived from EU law. This is precisely the reason the legislation explicitly references that jurisdiction and not others. If the UK makes a sovereign decision to mirror EU provisions, the Bill provides the mechanism and flexibility, on a case-by-case basis, to do so. This would avoid primary legislation each time technical changes are needed and would increase the certainty that businesses are crying out for. I hope noble Lords will support this pragmatic approach.

However, it is not our default position that we will mirror EU requirements. The Government will be guided by the needs of businesses and consumers, which may differ. Nothing in the Bill prevents the UK diverging from EU requirements. The Government’s approach, whether to mirror or diverge, will be driven by evidence, subject to industry engagement, as discussed earlier in group 1, and support our mission to drive economic growth and provide consistency and certainty to businesses.

I turn to the amendment by the noble Lord, Lord Russell. The Bill provides powers that will give the UK greater flexibility in setting and updating its own product-related rules. It also enables the UK to choose to recognise relevant EU product requirements where it is in the interest of our businesses and consumers to do so. The Government have strong relationships with stakeholders, including industry, trade associations and consumer groups, and will continue to engage with them before any regulatory changes are brought to this House.

Amendment 4 proposes removing the powers in the Bill that would allow us to update regulations that address the environmental impact of products where similar provision exists in EU law. Amendment 6 proposes broadening these powers to update UK regulations to mirror any international jurisdiction. The noble Lord, Lord Jackson, talked about environmental impact, and I thank the noble Baroness, Lady Bennett, for her contribution which leaves me with very little to say here, except that many products are required to meet multiple product regulations, including those which may address the environmental impact of products.

As I have noted, most UK product legislation is derived from EU law. The powers in Clause 1(2) are intended to be used in limited circumstances where there is a corresponding or similar provision in EU product regulations for the purpose of reducing or mitigating the environmental impact of products. This ensures that the power could be exercised to create regulatory certainty and manage changes to EU rules we recognise.

This power is limited in this way as we do not wish to create powers to regulate on wider environmental objectives. This already exists, for example, under the Environment Act. Clause 1(2) in no way obliges the UK to recognise or to mirror EU provisions. We have been clear that such decisions will be taken on a case-by-case basis and subject to parliamentary scrutiny.