Market Surveillance (Northern Ireland) Regulations 2021

Lord Stevenson of Balmacara Excerpts

Thursday 8th July 2021 Grand Committee

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I am grateful to the Minister for his usual comprehensive introduction. I know that when the Government speak to any business in your Lordships’ House, they always speak with one voice, and I am sure that we heard only the voice we were meant to hear. However, it was striking that quite a lot of the paragraphs he read out perhaps did not come originally from his pen or that of his department. He does not need to comment on that if he does not want to, but I felt there were messages in what he said that were intended for a wider audience than the rather small one that, perhaps unfortunately, has gathered here today.

I have a couple of questions about the Explanatory Memorandum and a couple of points to make relating to what the Minister said. Paragraph 7.10 states:

“The Government is currently undertaking a wider review of the UK product safety system, including approaches to securing compliance and the role of criminal sanctions in product safety regulation, and the scope for greater use of civil sanctions.”


There is not much detail on that—perhaps the Minister could give a sense of the timescale for that work. Given that, in a sense, it will probably overtake this SI, will it have an immediate or a medium-term effect?

Despite having looked at many SIs in my time as a Front-Bencher, including ones which stem from the original legislation, I was caught out towards the end of paragraph 7.11 by the reference to the fact that

“the SI works on a lex specialis principle”,

in other words,

“where there is a more specific provision in the sectorial legislation, this will take priority.”

That rather shades some of what the Minister was saying about trying to achieve a commonality of approach between GB and Northern Ireland. Without more detail, it is difficult to judge exactly how that will operate. Perhaps when he responds he can give us some examples of how the lex specialis principle might affect the SI. I should also be grateful to know where I might find the original legislation on that. If he does not have the information to hand, I should of course be happy to have a letter from him.

I turn to some more general points that the Minister may like to pick up on, and which I am sure my noble friend Lord Bassam will also refer to. The Minister said that this is effectively a levelling-up SI, in the sense of trying to ensure continuity and minimal change, but there is obviously an issue here about the need to establish an economic operator in Northern Ireland for compliance activities or, as he said, in the EU, if companies want to sell goods into Northern Ireland. We should not gloss over the fact that companies will be affected by that. That is a change that I do not think was anticipated—I have never seen reference to it before—but we have it before us now. It is certainly something to reflect on.

I see no references in the SI or the Explanatory Memorandum to reviewing the impact of this measure. Indeed, because it is a process that flows from the EU withdrawal Act, no review is specifically required. The Minister said that this will not have an impact on British businesses and will not affect businesses that bring products from GB to the EU through Northern Ireland, or just to Northern Ireland itself. Given the current heated situation and the concern about sausages, for example, it would be helpful to have a review. Will the Minister commit to indicating how this is playing out in practice further down the line, even if not to a formal review?

Secondly, what will the situation on the ground be like when the regulations are enforced? The Minister said that the approach is proportionate, risk-based and intelligence-led, which suggests that a fairly extensive set of procedures are in place. Assessing proportionality is not always easy; knowing what the risks are is not always possible; and “intelligence-led” suggests that this will be a joint activity involving the security services and others.

What does that mean in practice? I travel regularly between the UK and Ireland, and I have observed substantial changes in procedures and practices at the Irish ports I travel through. Of course, this is ad hominem and I am not trying to make a general point, but it is clear to me that the amount of paperwork and interrogation that takes place now compared to a few months’ ago is significant. Again, this is not going to be subject to any review, but perhaps the Minister will commit to giving us further information on how this is actually playing out in practice. I think that, following the recent Act, there will be more activity and disruption than he suggested.

On a related point, the language used in the SI and in the discussion led by the Minister has largely been about physical goods, but presumably, this also applies to electronic trade—trade through the internet—and other services delivered online. Has any particular aspect of that been brought into this? My recollection of the previous legislation is that, although it was very much about goods and not very much about services, it also impacted on electronic trade. This might be worthy of further consideration, and I would like to hear the Minister’s thoughts when he responds.

Finally, the application of the market surveillance regulation in Northern Ireland was, as the Minister said, a critical commitment and the Government support it. But of course, we are not unaware of the fact that the protocol itself is a matter of contention, and indeed, further discussions are continuing even as we speak. Is the Minister able to opine on whether he thinks this a relatively settled operation that does not require further debate or opening up in relation to the Northern Ireland protocol? If so, can he explain the thinking behind that? Clearly, it deals with the sort of goods and services that the Government said would not be interrupted because of the special status of Northern Ireland in both the UK and the EU customs area. It would be useful to know whether that is a serious issue of concern to the Government that is likely be raised again, or whether it is now settled.