Product Regulation and Metrology Bill [HL]

Lord Sandhurst Excerpts

2nd reading
Tuesday 8th October 2024 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, this Bill gives the Secretary of State wide powers to make product regulations. The detailed content of these regulations—the what and the how—will affect us all, whether we are manufacturers, importers, retailers or consumers. This Bill provides for yet more criminal offences and gives the power to impose civil sanctions for non-compliance. Yet it contains no detail of how all this will be achieved. What will be the limits on ministerial powers? What oversight will Parliament have in respect to the regulators? These are important questions that are as yet unanswered.

These gaps become more serious when it is appreciated that the previous Government instituted a consultation of all interested parties. That consultation closed a year ago, in October 2023. This Government have yet to publish their response. Why? What is the point of consultation if the Government do not publish a response?

As one who has, on many occasions in the past, answered government consultation papers as an interested party, I know the time and effort that go into responding to such things, often on tight timetables. A year has now passed; the previous Government did not publish a response, but they had not introduced legislation. This Government have now had three months; Ministers have had plenty of time to respond and set out their views before bringing forward this Bill. Sceptic that I am, I none the less believe that the Government would not introduce the Bill if they did not have at least some idea of their direction of travel. Yet we are kept wholly in the dark on important matters: what did the respondents have to say?

The Government have seen fit to introduce this Bill, which lacks particularity on all the issues that really matter to those who will have to live and work with it; that is, business, legislators, consumer groups and environmental groups. We all have different interests in the delivery of this legislation and in its practical impact. We will all have different points of view and things to say, yet we are being asked to legislate completely in the dark as to what the respondents to the consultation said in their submissions, and what it is this Government believe are the right answers to their points—answers have come there none.

This is poor way to begin a new Government’s legislative programme. In discussing this Bill, we should proceed today on the basis that the Government have not yet collated firm conclusions they feel could be put in a published response to that consultation—because, if they had, they would surely have published them. The Government would not be keeping us in the dark on purpose, would they?

So I am afraid that we must proceed, in considering this Bill, on the generous basis that the Government do not yet have their own answers to the responses in the consultation—unless, even worse, which I hope is not the case, they are afraid to let us know what their answers are. Are they proceeding, covertly, to ignore very good points made by respondents in the hope that legislators in Parliament will simply miss the point? Whichever it is, this is a shabby and poor way to proceed on a Bill of great practical importance to industry, consumers and the people of this country. What is the rush? We on these Benches accept the need for reform, but this is ill-informed haste and it is discourteous to us in Parliament.

So my first question is: when will we see the Government’s response to this consultation, which closed 12 months ago? Secondly, does such a response exist, at least in draft? Whatever the basis, why are we being asked to legislate without that information? We need to know what respondents have said and what the Government’s views are. Why is that being kept from us? Is it because they are afraid of the answers? Is it because they have yet to decide their direction of travel: that is, what regulations they propose to introduce and what they will address? Is it because they are afraid that, if they do reveal their plans, everyone will be up in arms? Or is it simply the Government’s view that the man in Whitehall knows best and, we—the consumers, manufacturers and legislators—should not trouble our pretty little heads and just do as we are told?

Have the Government formed a view of the landscape? They say that the regulatory regime needs modernisation: surely they must know where we are headed. This is a Henry VIII Bill par excellence, so now we must be told, in much more detail, what direction the Government think we should be taking on the matters of substance and importance that the Bill addresses.

The lack of a response to the consultation is of particular concern because the Bill grants the Secretary of State such wide-ranging powers without full parliamentary scrutiny. The Opposition would like to seek clarity on a number of areas of the Bill. Where necessary, we will probe these in Committee. I will give some examples. On enforcement, Clauses 3 and 4 grant Ministers the power to designate new relevant authorities to ensure compliance with a new body of regulations and to create new criminal offences by regulation. However, the text of the Bill gives us scant detail on what these new offences will be. Who would bring the prosecutions and gather the evidence? How will these enforcement actions be funded? All these questions are not answered in the Bill.

So, too, Clause 5(3), in the context of metrology—this new word for all of us—includes new requirements for business about units of measure. In practical terms, units of measure and how they are defined will be very important, but there is no clarity on how these rules will be tested and assessed to ensure that they are appropriate, in particular for smaller businesses. It is crucial, as the Government seek to deliver on their stated objective to grow the economy, that regulation does not hinder the growth of small and emerging businesses. Nor, indeed, should we allow a level of regulation that would discourage risk-takers and entrepreneurs from setting businesses up in the first place.

I come back to the issue of consultation. Business and all interested parties, consumers and environmental interest groups must be able to make sensible submissions about regulations before they are laid. Consultation will be critical. So I ask, on this framework Bill, as it has been described—I have described it as a Henry VIII Bill—whether the Government will undertake to publish substantive regulations in draft and consult on them before they are laid. That is really important.

These Benches are also concerned that the lack of clarity in these measures will allow Ministers to align with European Union standards without proper parliamentary scrutiny. It is true that much of our trade is with the EU, but there is a strong case to be made for standards that allow British businesses to trade also around the world. Boosting global trade is vital if we, as the Government intend, are to grow the UK economy. So can the Government confirm that no regulations made under the Bill will prevent or impede United Kingdom businesses from trading globally?

In conclusion, this is a poor way to approach legislation: rushing the Bill without responding to the consultation, without us knowing the Government’s view, is inappropriate and discourteous to the many respondents who have put a great deal of thought into their submissions. This is more worrying in the light of the wide-ranging powers to be granted to Ministers without sufficient clarity on what the Government intend. We need clarity from the Government on their real intentions and I hope that the noble Lord the Minister will engage constructively with these concerns and reassure the House of the Government’s aims as the Bill makes progress.

--- Later in debate ---

[Lord Leong (Lab)]

My Lords, I would first like to thank all noble Lords for their very kind remarks; they are much appreciated. I also thank noble Lords for taking part in today’s debate, and for the contributions from all sides of the House. Today’s debate has been not only informative and wide-ranging but also illustrated the depth of expertise and experience present in your Lordships’ House.

I was particularly pleased to hear the maiden speech of my noble friend Lady Winterton. She brings much experience and wisdom, having served with distinction as Deputy Speaker in the other place and as a Minister in multiple government departments between 2001 and 2010. Freed as she now is from the necessary neutrality of a formal role, we welcome her warmly to the government Benches, where I suspect that, like her former boss, Lord Prescott, she will pull no punches. I look forward to hearing from her many more times in the future.

As we have heard, product safety failures can have devastating consequences. We are determined that our regulatory framework is agile and flexible in its response both to new threats and to complex supply chains. For innovation to flourish and potential for growth to be realised, it is essential that consumers can have confidence in the safety of the products they buy and in the businesses that they buy from.

I will try my very best to address as many of the issues and questions raised today as possible within my timeframe of 20 minutes. If I do not have the time, I will get my office to go through Hansard and provide written answers to noble Lords and have a copy placed in the Library. Finally, let me assure all noble Lords that I want to work constructively and proactively in the passage of this Bill, and I will have many more conversations and share information with noble Lords through Peers drop-in sessions—my office is always open, so feel free to contact me and my private office.

The noble Lords, Lord Frost, Lord Browne and Lord Jackson, and the noble Baroness, Lady Lawlor, raised concerns that this Bill is tantamount to the UK rejoining the EU through the backdoor. Let me be extremely clear: this Bill is not rejoining the EU by the backdoor. This Bill gives us the flexibility to ensure that product regulation, now and in the future, is tailored to the needs of the UK. There will be some instances where we will want to take a similar approach to the EU, and there will be others where it makes sense for the UK to diverge. Those decisions will be based on the best interests of the UK’s businesses and consumers, and any secondary legislation will be subject to the usual parliamentary scrutiny. As I said in my opening speech, we are taking back control, seeking closer, more mature trading partnerships with the EU and forging new trading relationships with the global world out there.

The noble Lords, Lord Foster, Lord Browne of Ladyton, Lord Bourne, Lord Fox and Lord Johnson, and the noble Baroness, Lady Bennett, raised questions about devolution. The vast majority of product safety and metrology legislation is reserved, with some specific exceptions. We expect the overwhelming majority of secondary legislation brought forward under the main powers in Clauses 1 and 5 to be reserved. Given the technical nature of product regulation and metrology, it is possible—as many noble Lords have mentioned—that some elements of secondary legislation may touch on devolved aspects, such as regulating the environmental impact of certain products, as we consider safety impacts alongside.

Following meetings with my counterparts, I welcome their broad support for the policy intentions behind the Bill. However, we recognise that the devolved Governments have raised some concerns about the drafting and breadth of delegated power in the Bill. As outlined in our manifesto, this Government are committed to reset the UK Government’s relationship with the devolved Governments in Scotland, Wales and Northern Ireland. I have had positive meetings with my counterparts in the Welsh Government and Northern Ireland Executive and will be meeting with the Scottish Government this week. My department is engaging with all devolved Governments in an open and collaborative spirit, and we hope that we will gain legislative consent Motions from the devolved legislatures. I will keep the House informed of those discussions.

On the specific case of Northern Ireland, which has been raised by several noble Lords, in order to ensure dual access to both the UK internal market and the EU single market, Northern Ireland applies certain EU product regulations and metrology rules under the Windsor Framework. The Bill provides the Minister with the ability to make a sovereign choice and effectively manage upcoming regulatory divergence between the UK and EU, and therefore to ensure continuity across the UK internal market, where it is in our domestic interest to do so. As such, we expect that the Bill will have a positive impact on trade between Northern Ireland and the rest of the UK.

The noble Lords, Lord Foster, Lord Fox and Lord Johnson, raised the importance of ensuring that the enforcement authorities have adequate resources to fulfil their function. With this Bill we intend to improve enforcement capability, leading to more efficient and effective use of time through a better suite of notices and better data-sharing opportunities. The Office for Product Safety and Standards will continue to provide a range of support to enforcement authorities. This will include support on technical queries, access to product testing and an ongoing programme of training and continuous professional development. The Office for Product Safety and Standards will also produce guidelines for the application of any new powers so that enforcement authorities are equipped to use them efficiently.

The noble Lord, Lord Lansley, and several other noble Lords raised an important issue relating to international standards. The Bill will enable us to continue to amend product regulations as well as allow the designation of international standards for products in scope. In line with WTO obligations, the UK recognises the benefits and supports the use of international standards, as well as regional standards, to break down trade barriers with our trading partners. The British Standards Institution regularly reviews UK standards, replacing domestic standards with appropriate international ones. This is also something that the UK pursues in its international agreements.

The noble Lords, Lord Sandhurst, Lord Foster, Lord Lucas, Lord Jackson and Lord Fox, and the noble Viscount, Lord Trenchard, asked whether any draft regulations under the Bill would be produced. The Government are working through policy positions on a range of issues following the election, including addressing the sale of unsafe products via online marketplaces. Additionally, we are reviewing changes the EU is proposing to its registration regulations and considering the applications. Throughout, our response will depend on the outcome of our call for evidence and policy discussions with stakeholders.

The noble Lord, Lord Sandhurst, asked about the poor way we are approaching legislation. The review he referred to was issued by the previous Government. It was clear then that to make fundamental changes to product regulation requires primary legislation because the powers were not available to us, hence bidding for this Bill to ensure that we secure the powers to act in good time to address emerging risks.

The noble Lords, Lord Foster and Lord Sandhurst, asked about online marketplaces. It was right for us to bring forward this Bill to give us the powers we need to address sales of unsafe products by online marketplaces —an area on which the product safety review consulted. Consumer groups such as Which? have also been calling for us to take action. This Bill will allow us to take action now.

The noble Lords, Lord Sandhurst, Lord Foster and Lord Johnson, asked why we have not published a response to the product review consultation. We have bid for the necessary powers to make changes to our regulations and have introduced this Bill, which will deliver enabling powers to allow us to implement a lot of the policy proposals emanating from the product safety review to which the noble Lord, Lord Sandhurst, referred. That review received 126 responses covering regulatory changes. Action on online marketplace enforcement was supported by all respondents. The powers in the Bill are available powers and we have continued conversations with a wide range of stakeholders on the detail.

[Lord Sandhurst (Con)]

I appreciate that, but we have not actually got any detail at all, or even a summary, of what the responses are. We really do require that; it is normal.

[Lord Leong (Lab)]

I thank the noble Lord, Lord Sandhurst. I will ask my officials and come back to the noble Lord on that request.

The noble Lord, Lord Foster, asked about lithium-ion batteries. I am pleased to advise that, while we have been in this debate, Minister Madders, my colleague in the other place, is in Paris at the OECD global awareness campaign, which this year focuses on lithium-ion batteries. The UK and the Office for Product Safety and Standards have been leading on this campaign. The noble Lords, Lord Redesdale and Lord Fox, raised additional points about disposal. Ministers are referring proposals to consult on reforms to UK battery regulations before setting out next steps.

The noble Lord, Lord Russell of Liverpool, asked why the UK wished to be able to continue recognising the CE marking. This Bill will allow the Government to choose to recognise updates to EU product regulation to provide continued regulatory stability and avoid extra costs for business where this is in our interests. It will also allow us to end recognition of EU requirements where it is in the interest of business and consumers. We presently recognise current EU regulations for a range of products. Legislation passed in May 2024 to continue CE recognition for 21 product regulations is estimated to save UK businesses £640 million over a 10-year period, largely from avoiding duplicate compliance and labelling costs. Provisions in the Bill allowing us to continue or end recognition of EU requirements will enable us to provide the certainty that businesses need to plan for the future and innovate, supporting economic growth. The UK and EU share information on trade, including changes to the trade and co-operation agreement.

The noble Lord, Lord Foster, and several other noble Lords asked about the disposal of lithium-ion batteries. The Government are committed to cracking down on waste as we move towards a circular economy, where we keep the resources we use for longer and reduce waste. The existing product responsibility scheme for batteries and waste electronics makes producers responsible for the cost of end-of-life treatment. Under existing UK legislation it is already mandatory for all batteries placed on the market in the UK to be clearly marked with the crossed-out wheelie bin.

The noble Baroness, Lady Crawley, asked why there have been no changes to legislation on product safety since our exit from the EU. I can reaffirm that this is real, hence bringing forward powers in this Bill to allow us to make changes before divergence happens and we fall further behind.

The noble Lord, Lord Frost, asked why we cannot use existing powers. The new Bill powers are required to enable the Government to modernise and future-proof product regulation, ensuring that it is tailored to the needs of the UK. The powers in the retained EU law Act 2023 are limited, in that they can be used only to revoke and replace assimilated law and have other inbuilt restrictions—for example, secondary legislation that is made under REUL must be deregulatory. This means that we would not be able to use the powers to increase safety requirements to respond to new and emerging threats through further amendments and legislation which was not assimilated law before.

The noble Lord, Lord Frost, also asked whether the Bill will make the UK a rule-taker or a rule-maker. We are definitely not a rule-taker. We are a rule-maker, and the Bill will provide powers to give the UK greater flexibility in setting and updating its own product-related rules, as well as enabling the UK to choose whether to recognise relevant EU products requirements. Any further changes made using these powers will be subject to appropriate parliamentary scrutiny. The noble Lord asked whether the Bill protects internal markets. The Bill will give us flexibility to ensure product regulation and metrology now and in the future. It is tailored to the needs of the UK as a whole. It will enable us to make changes to product regulation and metrology legislation that will benefit businesses and consumers.

The noble Lord, Lord Frost, also asked about the Windsor Framework. In updating its regulation, the EU will be seeking to deal with many of the same challenges that the Bill will address: for example, online marketplaces and batteries. The Bill will enable a choice to be made as to whether it is in the interests of UK businesses and consumers for UK regulations to take the same or a similar approach, or indeed a different one.

The noble Baroness, Lady Brinton, asked whether the Government will commit to a policy of alignment with EU chemical protections. This Government are committed to protecting human health and the environment from the risks posed by chemicals. We are currently considering the best approach to chemicals regulation in the UK separately to this Bill and will set out our priorities and next steps in due course. The noble Baroness also asked how the Bill will help the Government respond to emergencies.

Product Regulation and Metrology Bill [HL]

Lord Sandhurst Excerpts

Committee stage
Wednesday 20th November 2024 Grand Committee

[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.

--- Later in debate ---

[Lord Sandhurst (Con)]

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

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


or of domestic animals—I paraphrase—

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

That is a bit beyond my knowledge grade.

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

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

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

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

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

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

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

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

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