Product Regulation and Metrology Bill [HL]

Commons Amendments

Motion on Amendment 1

That this House do agree with the Commons in their Amendment 1.

1: After Clause 9, insert the following clause— “Regulations making provision within devolved competence (1) The Secretary of State may only make regulations under section 1 which contain provision within Scottish devolved competence with the consent of the Scottish Ministers, unless the provision is merely incidental to, or consequential on, provision outside Scottish devolved competence. (2) The Secretary of State may only make regulations under section 1 which contain provision within Welsh devolved competence with the consent of the Welsh Ministers, unless the provision is merely incidental to, or consequential on, provision outside Welsh devolved competence. (3) The Secretary of State may only make regulations under section 1 or 5(2) which contain provision within Northern Ireland devolved competence with the consent of the relevant Northern Ireland department, unless the provision is merely incidental to, or consequential on, provision outside Northern Ireland devolved competence. (4) In subsection (3), the “relevant Northern Ireland department” is such Northern Ireland department as the Secretary of State considers appropriate having regard to the provision which is to be contained in the regulations concerned. (5) For the purposes of this section, provision is— (a) within Scottish devolved competence if it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament; (b) within Welsh devolved competence if it would be within the legislative competence of Senedd Cymru if it were contained in an Act of the Senedd (including any provision that could be made only with the consent of a Minister of the Crown); (c) within Northern Ireland devolved competence if the provision— (i) would be within the legislative competence of the Northern Ireland Assembly if it were contained in an Act of that Assembly, and (ii) would not, if it were contained in a Bill for an Act of the Northern Ireland Assembly, result in the Bill requiring the consent of the Secretary of State under section 8 of the Northern Ireland Act 1998. (6) In Schedule 7B to the Government of Wales Act 2006 (general restrictions on legislative competence of Senedd Cymru), in paragraph 9(8)(b) (exceptions to restrictions relating to reserved authorities)— (a) omit the “or” at the end of paragraph (viii); (b) at the end of paragraph (ix) insert “; or (x) the Product Regulation and Metrology Act 2025.” (7) In this section “Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975.”

My Lords, I beg to move that this House do agree with the Commons on Amendment 1. With the leave of the House, I will also speak to Amendments 2 and 3.

On Amendment 1, the Government have been clear in their intention to maintain strong, co-operative relations with the devolved Governments and to ensure that the devolution settlements are respected in both principle and practice. This amendment, which the Government introduced in the other place, inserts a new clause that would place a statutory requirement on the Secretary of State to obtain the consent of the devolved Governments where regulations contain provisions within their devolved competencies. This amendment goes further than the amendments tabled during the passage of the Bill through this House, which provided only a consult mechanism. This amendment provides for a consent mechanism, with a decisive role for devolved Ministers. It will also underpin continued collaboration to develop product regulation to best support businesses and consumers in all parts of the United Kingdom.

I thank the noble and learned Lord, Lord Hope, whose knowledge in this area I have found extremely beneficial and helpful. He is not able to speak today, but I met him on 17 June and he is happy for me to say that he is pleased with the Government’s approach to devolution in this Bill. I thank him for his engagement and contributions during the passage of this legislation. I also thank the noble Lords, Lord Sharpe and Lord Wigley, the noble and learned Lord, Lord Thomas, and the noble Baroness, Lady Brinton, with whom I have engaged on this amendment. With this specific context in mind, I am pleased to inform the House that the devolved legislatures have all granted legislative consent Motions to the Bill. I thank ministerial colleagues and officials in the devolved Governments for their engagement and collaborative approach to the Bill.

Amendments 2 and 3 are technical amendments. The first deals with a technical correction to the drafting of the Bill, and I will briefly outline the need for it. The amendment makes a drafting change to Clause 12(4). This clause lists the regulation-making clauses in the Bill that are subject to the affirmative statutory instrument procedure. The previous drafting includes Clause 9 in the list, which was an unintended consequence of the previous amendment inserting Clause 9 into the Bill. Unlike the other types of provision specified in Clause 12(4), Clause 9 does not confer a power to make a particular type of substantive provision. Rather, it specifies that regulations can amend existing provisions distinct from making fresh regulations. This technical amendment removes this unintended impact by removing the reference to Clause 9.

My Lords, briefly, I welcome Commons Amendment 1. It is very pleasing to see this Government, in contrast to the last Government, acknowledging that we have nations on these islands which have devolved powers that need to be respected. Indeed, when we are talking about the standards here, hopefully there is an understanding that devolution can also mean divergence in terms of democratic choices. Within the sometimes unfortunate limits of the internal market Act, Scotland, Wales and Northern Ireland should be able to lift to higher standards if that is what they want, and I hope this will help to facilitate that.

Since I am on my feet, I will make just a couple of short remarks, having been heavily involved in the Bill. I want to again thank the Minister and his team for the time that they gave for discussions with me about the Bill. I reiterate what I said then and stress to the Government that I hope they will keep three points in mind as this becomes law and it starts to be implemented, because most of this will not have any impact until we have the regulations.

First, where we are now is way behind the best global standards. This is an area where we should be talking about being world-leading for the health of our nation and of our environment. Secondly, I would like the Government to acknowledge that we are already on a poisoned planet and in an environment where our water, soil, air and indeed our food and our homes are saturated with far too many chemicals and other substances that are damaging to our health and, again, to environmental health. Thirdly, we have to start to consider the cocktail effect. With most of the testing of products, when companies go to put this product or that chemical into the environment, they say, “Look, what’s the safe limit for this product?” But all of our bodies, our young people and our environment are being exposed to rising levels of microplastics, pesticides and PFASs—all those chemicals and products—and when we consider what is allowed for the future, we have to remember that it is going out into that already poisoned environment.

My Lords, I will say a few words about Commons Amendment 2—I am grateful to the noble Lord for introducing all the amendments and referring to the purpose of that amendment. As he clarified, Commons Amendment 2 takes Clause 9 out of the list of those parts of the Bill which will in due course be subject to an affirmative resolution procedure. From my point of view, that is a substantive change as compared to what we saw previously in the Bill.

As the Minister explained, Clause 9 relates to existing product requirements, but it provides for a power to make regulations relating to existing product requirements as if they were product regulations for product requirements under this new legislation. Clause 9 allows for provisions described in Clauses 2(4), (6) or (7)—I am concerned with Clause 2(7)—that are able to be applied to existing product requirements.

What does Clause 2(7) tell us? It tells us that product regulations may be made by reference to relevant EU law. From my point of view—I will not rehearse all the debates we have had, but they are particularly important debates—this is a provision the use of which is significant. The occasions on which we choose to set our regulations and our product requirements by reference to EU law are important questions. As it happens, my view is that any use of Clause 2(7) should be subject to the affirmative procedure, but the Minister will no doubt remind me that that is not, nor intended to be, the case. I think it ought to be. The purpose of this is, in that sense, in my view, not technical but substantive. It means that existing product requirements can be amended in future by regulations which relate to relevant EU law and apply new product requirements or change product requirements by reference to EU law. I think that is significant, and my simple submission is that this is a significant change. I reiterate the point I made previously in debates: that the affirmative resolution should have been used in relation to any application of EU law in making our own product requirements.

My Lords, on behalf of my noble friend Lord Fox, who is improving and I hope will be back with us very soon, and these Liberal Democrat Benches, I thank the Government for the very positive passage of this Bill, and particularly the Minister for the meeting that we had after the Bill’s passage through the Commons and for the other discussions that we have had.

From these Benches, we welcome the first government amendment ensuring better consultation with devolved Governments on relevant regulations. This was an issue that we raised at the Lords stages of the Bill, and it is good to see that progress has been made.

In the Commons, my honourable friend Clive Jones, the MP for Wokingham, had an amendment on a Buy British scheme. I am very sorry that it did not make it past that stage in the Commons, because it included things such as voluntary labelling, consulting with providers, retailers and manufacturers, and how we should have a promotional campaign. Accepting that the detail of that has gone, I am sorry that the Government have chosen not to do it, but I hope that they will take the principle seriously, because what we really need to do now is to help consumers make informed choices about supporting domestic products.

I hear the points that the noble Lord, Lord Lansley, made, and we had a long debate earlier on in the passage of this Bill about this balance. I will not go into the detail at all, but I am just reminded that we discovered that, when we left the EU, we also left a series of other bits of the EU that provided such serious consequences that the last Government had to make emergency regulations to continue the old regulation rules, so I think it is good that there is some provision that means that if there is carryover, or if it is very similar, that should be done. However, I absolutely hear the point that the noble Lord, Lord Lansley, makes, and I am sure the Government have heard during the passage of this Bill that Parliament would want to be consulted on it.

My Lords, I am grateful to the noble Baroness, Lady Bennett of Manor Castle, for reminding us of some of the background with which we deal when we are presented with this Bill. I also thank my noble friend Lord Lansley. His reference to relevant EU law takes us back to pause and reflect on this Bill. As the Minister will know, it was greeted from these Benches in the other place as a bad Bill—a Trojan horse Bill. As my noble friend explained, the Bill does a lot more behind the scenes than appears on the surface and does so through secondary legislation.

I thought it might be helpful to remind ourselves, as indeed the House of Commons reminded itself, that the highly prestigious Delegated Powers and Regulatory Reform Committee of this House took a view on the Bill. The Minister will remember that he had a special meeting with the committee to try to convince it that it was wrong. I repeat its view, because it is particularly relevant to the point raised by my noble friend and referred to by the noble Baroness, Lady Brinton. After the meeting with the Minister, the committee said:

“We remain of the view that … the delegation to Ministers of law-making powers in this Bill involves legislative power shifting to an unacceptable extent from the legislature to the Executive”.

It continued that

“the Government have failed to provide a convincing justification for the inclusion of skeleton clauses in this Bill that give Ministers such wide powers to re-write in regulations the substance of the regulatory regimes for products and metrology”.

From these Benches, we see the Bill as a terrible step back and a Trojan horse because it will tie us to EU red tape over which we will have no say. Through the Bill, the Government will be able to restrict Britain’s innovators with overburdensome regulations which are not in the Bill at the present time but will appear at a later stage.

I wonder if I might gently intervene. The noble Lord was not present, but my noble friend Lord Fox and others from our Benches reminded the noble Lord, Lord Epsom, and others from those Benches that this Bill was drafted by the previous Government with the Henry VIII powers as they appear in the Bill today. While I understand that times have moved on and seats have changed, much of the Bill that we see now is the one that had been drafted for the previous Government and was delayed because of the general election.

I am happy to respond to the noble Baroness, Lady Brinton, who referred to Lord Epsom rather than to my noble friend Lord Sharpe of Epsom.

I am sorry: the noble Lord, Lord Sharpe.

She is also under a misunderstanding. I was very proud to chair the Secondary Legislation Scrutiny Committee. If she had done her homework, she would have seen that I led the opposition to the previous Government’s attempt to try to pass secondary legislation powers that would not be subject to proper scrutiny in this House. I do not want to engage in party politics, unlike the noble Baroness, but I think that it is wrong for Governments to do this. I just wish that we still had some of our previous Members, particularly Lord Judge, who taught me that whatever the complexion of the Government, Governments should not overreach themselves by abolishing legislation through secondary legislation.

The noble Lord is absolutely right. I very carefully talked about his predecessor on this Bill. I think that the work that he and his Secondary Legislation Scrutiny Committee did was admirable and I quoted from it frequently.

Thank you.

My Lords, I am grateful to all the noble Lords who have contributed this afternoon to this short debate. I do not want to open the whole debate that we have gone through in Committee and on Report. Some of the points that the noble Lord brought up on delegated powers and so on were debated at length. On the noble Lord’s point about the DPRRC and, to an extent, the point raised by the noble Lord, Lord Lansley, we understand the concerns raised by the DPRRC and noble Lords regarding the need for adequate scrutiny of the powers in the Bill. We would genuinely like to thank them for their engagement on this issue.

As introduced, the Bill provided for new regulations in a range of areas to be subject to the affirmative procedure. The noble Lord, Lord Hunt, asked about the timeframe. I have been told by the officials that, the minute the Bill gets Royal Assent, a number of regulations will have to be placed before the House, to do with noise and various other aspects of regulation. My officials also tell me that, in any one year, there will not be more than six to 10 regulations, so we will not get an avalanche of regulation. This includes emergency powers and widening the scope of any existing criminal offences. We have heard the concerns raised and have now gone further to provide additional parliamentary scrutiny in those areas.

As I mentioned in my opening speech, we have brought forward an amendment to correct a drafting error, and we heard in the contributions of the noble Baronesses, Lady Bennett and Lady Brinton, about the whole principle. The Bill is not the end; it is the start of many things. As I mentioned in Committee and on Report, there will be regulations, and noble Lords will be able to debate this through the affirmative procedure. It is a continuation, with more regulations to come, taking into account some of those that we have to update.

During the debates on this legislation in this House, scrutiny of the regulations was an important issue and one that the Government not only recognised but sought to address. I place on record my thanks for the work of all noble Lords to improve the scrutiny arrangements within the Bill. That has improved the Bill, and it is a testament to the role of this House in the scrutiny of legislation. Noble Lords have undoubtedly made this a better Bill.

Motion on Amendments 2 and 3