Product Regulation and Metrology Bill [HL]

Debate between Lord Sharpe of Epsom and Baroness Brinton

Committee stage
Wednesday 11th December 2024 Grand Committee

[Baroness Brinton (LD)]

My Lords, I thank the noble Baroness, Lady Bennett, for tabling these three amendments. I have a question about Amendment 59.

Paragraph 9 of the Schedule says that:

“Medicines and medical devices as defined in the Medicines and Medical Devices Act 2021, other than devices designed for weighing or measuring for medical purposes”


are excluded from the Bill. I say that because the guidance on what is and is not covered by that Act is somewhat contradictory. It says that sanitary towels and tampons are

“not normally considered to be medical devices”,

yet incontinence pads, which are not internalised in the body, are. In America, tampons are deemed medical devices because they are used inside the body.

I appreciate that I am putting the Minister on the spot. I do not expect an answer, but I wonder whether the very good speech by the noble Baroness, Lady Bennett, might point to a problem with the Government’s guidance under that Act that needs to be amended.

[Lord Sharpe of Epsom (Con)]

My Lords, I was not planning to say very much about this, but I thank the noble Baroness, Lady Bennett. I do not feel remotely battered; I feel significantly better informed, and I am grateful for that.

It struck me that Amendment 57 is somewhat pertinent to the discussion we have just had about supply chains. I wonder, for example, whether the habitual buyers of fast fashion would be quite so enthusiastic if they understood how it was made and the environmental despoilation it entails. Of course, a lot of fast fashion is single use.

I am also intrigued to know—I have just been thinking about this—what makes a non-iron shirt non-iron. I imagine it is some sort of chemical. As a fan of said shirts, I would rather like to know, not least because the noble Baroness’s description of the destination for microplastics made me wince slightly, to be honest.

Of course, a lot of single-use plastic ends up in the ocean. Frankly, as a keen scuba-diver who has found single-use plastics below depths of 30 metres, I think that societies across the world need to address that.

I do not have much to say apart from that, but I will be very interested in the Government’s answers. I would also be keen to pursue these issues later.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I will speak to Amendments 68 and 90, which are in my name. These amendments address the serious concerns raised by the provisions in Clause 3 and Clause 6, which give the Government sweeping powers to create or widen criminal offences and impose civil sanctions.

I have to revisit some old ground here but, given the gravity of this issue, I feel we have no choice. As was pointed out by the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, these clauses are skeletal legislation, meaning that they lack detail, leaving critical decisions about enforcement and prosecution to be made at a later stage via secondary legislation. We feel that the approach of using skeletal legislation for such crucial issues is problematic. These clauses give broad powers to create and enforce criminal offences without providing clear primary legislative guidance on who will have the authority to impose sanctions. This is particularly concerning because it leaves us very little clarity on which bodies will hold the responsibility to prosecute criminal offences.

The DPRRC and the Constitution Committee have highlighted these concerns, noting the lack of detail in the Bill and its potential to bypass parliamentary oversight. The Government’s decision to leave critical decisions about enforcement powers to be determined later by regulation, rather than in the Bill, undermines the transparency that businesses and consumers need. The Bill as written provides no information about the exact scope of the criminal offences that could be created or widened. This is not just a technical issue. It raises serious questions about the accountability of the bodies that will enforce these sanctions. The Minister may not be happy that these issues continue to be addressed but, until we receive clarity, we have a duty to bring these issues up, as I hope the Committee would agree.

The most concerning aspect of the clause is the provision allowing the creation or widening of criminal offences by regulation. The powers given to the Secretary of State or any other body of a public nature in this regard are overly broad, with little or no clear guidance or justification on what these offences will be. The Bill should, at the very minimum, provide some specification of the type of offences that may be created, rather than leaving this to broad, undefined powers that will most likely lead to overreach. The question has to be asked: why is it necessary to give the Government the power to create new criminal offences by regulation in the first place? Given the gravity of criminal sanctions, the Bill should be more transparent and specific about what offences will be created and who will be responsible for enforcing them—a point that the noble Lord, Lord Fox, made in his reference to the CPTPP, incidentally.

Criminal sanctions carry serious consequences and it is fundamental that Parliament has a say in the creation of such offences, rather than allowing the Government to define them through secondary legislation. We understand that the Government have argued for flexibility in enforcement and that the regulatory framework must be adaptable, but that flexibility should not come at the cost of clarity or proper oversight.

We have heard serious concerns from businesses and industry stakeholders about the skeleton clauses in this Bill. Specifically, there is real uncertainty about which public bodies the Government intend to designate as having the authority to impose criminal sanctions. Again, the question has to be asked: what additional public bodies are the Government planning to empower to prosecute businesses for currently barely defined criminal offences under the Bill?

As my noble friend Lord Lansley pointed out on the previous Committee day, currently enforcement responsibilities for consumer protection laws are set out clearly in Schedule 5 to the Consumer Rights Act 2015, which names very specific enforcement authorities, but the Bill removes that clarity and instead gives the Government the power to designate by secondary legislation which public bodies can impose criminal sanctions. This creates a situation where businesses may have to deal with a wide array of bodies, many of which may not have the expertise or experience needed to understand the complexities of product and metrology regulations.

This broad power to assign enforcement duties to any body that is deemed appropriate opens the door to a wide range of unknown authorities, so the question here is: why are the Government attempting to create this uncertainty? Why not retain the existing list of enforcement bodies in the Consumer Rights Act 2015 and allow changes to be made to that list through normal, well-defined procedures, rather than using secondary legislation to grant powers to an unknown set of authorities? Businesses deserve to know exactly who will be responsible for enforcing the regulations and imposing sanctions. The Bill’s current drafting creates a legal vacuum where there is no certainty about the powers of various public authorities, which could have serious consequences for businesses’ legal security.

The ambiguity surrounding criminal sanctions is deeply troubling for business, especially when these powers can be used by a range of authorities that may not be clearly identified at this stage. It raises serious concerns about due process and the fairness of enforcement actions. If a business is unsure whether it is complying with regulations and there is uncertainty about which body will be enforcing them, the risk of facing criminal sanctions obviously becomes much higher and that creates an environment of fear and uncertainty for business, which is already facing difficult economic conditions.

This situation is further complicated by the fact that secondary legislation will define the details of how these sanctions are imposed, potentially without proper scrutiny by Parliament. Criminal penalties should never be determined by regulation alone; they must be clearly laid out in primary legislation with full parliamentary oversight.

The balance of probabilities standard in civil cases can create significant challenges for businesses as well, especially in the context of the provisions outlined in the Bill regarding enforcement and sanctions. The balance of probabilities standard makes businesses more vulnerable to claims from enforcement authorities or competitors. In the absence of clear regulations and objective criteria, businesses may find it difficult to mount a defence as the mere likelihood of non-compliance could be enough to trigger sanctions. This could result in a climate of fear and uncertainty whereby businesses are hesitant to innovate or engage in new activities, due to the potential for legal action based on speculative or incomplete evidence.

The Government have claimed that this Bill will support economic growth and innovation, yet its skeletal nature and the conversations that we have had with leading industry experts suggest that they are concerned. Moreover, the Bill already includes an emergency clause—we will come on to this in our debate on the next group, I think, and we will address it later—that allows for swift regulatory action if necessary. So there is no reason why criminal sanctions cannot be made clear at the outset. There is simply no need to leave the scope of criminal offences and enforcement powers so broad and undefined.

To clarify, we absolutely recognise the importance of product safety and the need both to protect consumers and for necessary regulations. We oppose the various skeletal clauses in the Bill, as we have made clear over the course of these Committee sessions, because of the lack of clarity and the potentially authoritarian powers given to unnamed, undefined public bodies in some of these regulations. I hope that the Minister will address the many concerns the amendments in this group address and will commit to clarity for business. I beg to move.

[Baroness Brinton (LD)]

My Lords, my amendments in this group—Amendments 69, 91 and 107—cover a somewhat wider area than those in the name of the noble Lord, Lord Sharpe of Epsom. I shall return to his amendments and the speech he has just made later, to comment on them—but I start by saying that Amendment 92 in the name of the noble Lord, Lord Jackson of Peterborough, is helpful. One of my concerns at Second Reading was how Parliament can be made fully aware by more than just the laying of regulations, when a Minister or another body decides to create or widen the scope of criminal offences, that they must lay an Explanatory Memorandum in the Libraries of both Houses. I look forward to hearing the noble Lord speak later; his amendment is part of a possible solution.

At Second Reading, the Minister said:

“We have minimised the use of the powers in the Bill as much as possible and we have worked closely with the Attorney-General—who, quite rightly, is a stickler for these kinds of things—to find the best approach. So we look forward to the report of the Delegated Powers and Regulatory Reform Committee, which we will carefully consider”.—[Official Report, 8/10/24; cols. 1940-41.]


In my speech later on in that debate, I raised my concerns about a Minister who was not based in the Justice Department being able to create or extend criminal offences by regulation, with no ability to amend and much less detailed debate in both Houses of Parliament.

At Second Reading, we had not seen the second report of the Delegated Powers Committee, because that was published on 15 October—a week afterwards. Its summary about this part of the Bill is blunt. It says:

“We consider that … the Government have failed to provide a convincing justification for the inclusion of skeleton clauses in the Bill”


and suggests that

“the delegations of power in clauses 1, 2, 3 and 9 are inappropriate and should be removed”.

There is some detail about why it thinks that, in particular, there is a problem with the creation of, or the widening of the scope of, criminal offences. I mention this because I absolutely appreciate everything that the noble Lord, Lord Sharpe, has said about the skeletal nature of the Bill earlier on—indeed, my noble friends have also made those comments—but I want to focus on the impact of having new criminal offences on the criminal justice system. I shall come to that in a minute.

My first two amendments tackle the creation of criminal offences—in the first part of the Bill on product regulation and in the second part on metrology. I have also laid Amendment 107, which seeks to ensure that new criminal offences are not created through the clauses on information-sharing regulations. Clause 7(3)(d) talks about

“sanctions for non-compliance … including … creating, or widening the scope of, criminal offences”.

That is exactly one of the points that the Delegated Powers Committee is making: the Bill is so skeletal in nature, it appears that information sharing is a route by which criminal offences could be made. I would be grateful if the Minister could respond to that.