16
Examination of witnesses
Justin Madders, Lord Leong, Helen Le Mottee and Tony Thomas.
Q1 The Chair: Minister, first and foremost, thank you very much for responding so quickly to the committee’s request for you to come along. We appreciate it. It was within a week, and we are very grateful for that. We followed our normal practice of publishing the report following our meeting, but certain things came up at the committee that we wanted to discuss with you and the department directly, hence today’s meeting.
It is fairly unprecedented for this committee to have witnesses and to meet in this manner. I have never been one to worry about setting parliamentary precedents, because that is useful for future reference. I think this is one of the first Bills we have had from the department that goes so wide that we had the concerns that we have about it. I was wondering last night whether Downing Street should be called “the road to Damascus”, because anybody who goes down that road becomes in favour of framework legislation, and anybody who comes from the other side of it passes over to becoming very much against framework legislation and all the concerns there are about it. That is the difference between opposition and government, I think. That is one of the points that we have learned.
You said that you would like to make an opening statement. First, I have to remind people that there will be a transcript, but the witnesses and the department will have the chance to see it before it is published. This session is being broadcast live and will subsequently be made available to view via the parliamentary website. Do any members of the committee have any particular interest that they wish to declare? No. Thank you. Minister, your opening statement please.
Justin Madders: Thank you for inviting us here today. It is an opportunity to set out our views on why the Bill is presented in this way. I note the comments about the road to Damascus. I would not say I have been completely converted. The road goes in both directions, it seems, but I hope you will be able to have a better understanding of what we are trying to achieve with this Bill after today’s session. We welcome the challenge to make sure that the legislation is in the best shape.
I have looked at the report you published. It might have been better timing-wise for us to have had this session before the report was published, but I understand why things cannot always work the way we would like. The Lords had the Second Reading of the Bill last week, and I read the contributions from Peers with interest. At the heart of the Bill there was, I think, agreement about what we are trying to achieve, which is making sure that products that we all use every day are safe, effective and accurate. We are happy to work with Peers across the House, and indeed in the other place, to ensure that the legislation achieves that aim.
The Bill seeks to allow us to keep our product regulation and metrology legislation updated. The broad framework of our existing product regulation has protected people for decades, and businesses have been clear with us about the need for continuity. We currently lack the powers to keep this very important but very technical area of law satisfactorily updated, and we need to be nimble in order to be able to respond to emerging safety threats and global regulatory developments. Product regulation and metrology are important issues and span a huge variety of products that consumers and businesses rely on every day.
I know the committee has concerns that we have not been specific enough about the body of law this Bill would be used to update. We can get into discussing the specifics when we answer questions, but for now I would like to reiterate that this is partly due to the size and complexity of this area of regulation. We have something like 150 pieces of assimilated legislation spanning a range of areas that routinely need technical updates. There are issues like the specifications for toys or cosmetics, the procedures for the installation and servicing of lifts and the rules on products that generate noise outdoors.
For the purposes of today, I have asked the officials to produce a list of typical regulations that would be covered by this, and I will give you a flavour of the sort of technical detail that it is intended to cover—for example, the Treatment of Conformity Assessment Bodies (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Regulations 2024, the Cosmetic Products (Restriction of Chemical Substances) Regulations 2024, the Equipment and Protective Systems Intended for Use in Potentially Explosive Atmospheres Regulations 2016, the Equipment and Protective Systems Intended for Use in Potentially Explosive Atmospheres Regulations (Northern Ireland) 2017, the Toys and Cosmetic Products (Restriction of Chemical Substances) Regulations 2022, and so on. You can see from that the level of technical detail that this Bill is intended to cover.
As you will appreciate, keeping those kinds of very technical regulations updated is vital. We also need to be able to respond to new risks and changing consumer buying habits. For example, we have to have clear responsibilities for online marketplaces and where they fit into this. We also need the ability to tackle new product risks and technologies as they emerge, and we know that we absolutely need to keep on top of the use of AI and computer software in physical products.
As Lord Leong outlined during the Bill’s Second Reading, the Government recognise the importance of getting the right balance when it comes to delegated powers and using them as sparingly as possible. So although we understand the concerns raised, we think that the Bill strikes a balanced approach. It allows us to avoid overusing parliamentary time for each body of law that needs updating. Critically, it also future-proofs our ability to respond quickly and flexibly to new technology and evolving innovation, and we know that the world of consumer products and regulation is evolving rapidly almost every day.
Those are some opening comments, and we are happy to take specific questions now from the committee.
Q2 The Chair: Thank you, Minister. Nobody underestimates the importance of the Bill and what the Government are trying to do. The issue that concerns us is the future of how Ministers are accountable to Parliament. In a way, this is a very technical Bill. One of the pieces of legislation you did not mention, Minister, was the Gun Barrel Proof Act 1868, which seemed to appear in some earlier briefings. How was parliamentary counsel instructed on this? Was the Bill already in preparation before the new Government came into being, and what instruction did the department give parliamentary counsel as to its context and what it should try to embrace?
Justin Madders: I will have to defer to my officials, because I cannot answer for what happened before we came into office.
Tony Thomas: Shall I start with the policy background, and then I will hand over to Helen Le Mottee to cover off the instruction? I am deputy director for product safety policy at the Department for Business and Trade.
The department launched a product safety review back in 2019 off the back of leaving the EU. Obviously, we had been using EU powers. Much of the body of law is EU-derived, and we wanted to consider how we could update that for the UK. There was a call for evidence in 2021, followed by a consultation last year, which fed into the policy development and the evidence base that we have been using for Ministers. A government response to the call for evidence in November 2021 set out the clear need for additional powers to be able to make some of these changes, whether it be for online marketplaces, as the Minister mentioned, or for some of the technical changes that we need to legislation. I do not know whether you want to explain further, Helen?
Helen Le Mottee: Yes. I am one of the lawyers for the Department for Business and Trade. I advise the Office for Product Safety and Standards and the policy teams relating to trade in goods in DBT. Both those teams had an interest in powers to keep product regulation updated.
A statutory instrument that extended CE recognition just before the election was called maintained the status quo indefinitely, which was that European regulation is recognised as sufficient for demonstrating conformity with domestic product regulation until there was a good reason for that recognition to end. An SI was passed and came into force in July.[1]
It was always known that that recognition was based on law that was frozen in time and that we would need new powers to deal with the passive divergence that might arise if we were not able to keep that recognition up to date, but also to update the hazards and risks that Tony’s team deals with. The case was made on the basis of necessity that without powers there was simply no way to maintain the status quo or to keep pace with hazards and risks, and passive divergence would be the default.
The powers that were used to update previously were inadequate for the purpose and could not be used on an ongoing basis. The EU Withdrawal Act had already expired, and the REUL Act powers could be used only once, and in any event will also expire in 2027. So it was an urgent need that officials had known about since before the election. It just needed to be brought forward.
Q3 The Chair: In the past, we have spoken to parliamentary counsel and talked to them about the committee’s Democracy Denied? report on skeleton legislation. I notice you tend to refer to it as framework legislation as opposed to skeleton legislation, which is how we have referred to it. I think the words mean the same thing.
What was the policy direction from Ministers about how much power should be given to Ministers as opposed to giving Parliament the opportunity to debate these matters?
Tony Thomas: The general basis of the argument is that, from a product safety policy perspective, there are around 2,500 pages of legislation already on the statute books for governing product safety, from everything from the paper cup on my table to the laptop in our home. Much of that is still fit for purpose, and we found that out through the call for evidence. It works, but it needs updating from time to time when new technology or new measurements come along. That was one of the arguments for taking the powers rather than putting lots of detail on the face of the Bill.
Take enforcement mechanisms, for instance. The enforcement mechanisms for the toys regulations are very different to the enforcement mechanisms for the outdoor noise regulation that the Minister just mentioned, because you are looking at a host of different technologies and different impacts if something goes wrong. That was the policy justification for taking the powers in this Bill rather than putting the detail on the face of it.
Q4 Lord Rooker: Good morning, and thanks for responding so quickly, as the Chair said.
Going back to the road to Damascus, it is always good to look at the past, because I can tell you from my experience of 12 years in six different departments that the policy under Blair and Brown was, by and large in those departments, to accept the recommendations of the Delegated Powers Committee. I was told in at least three out of the six departments as I joined them that part of the rules were, “We’ve got this peculiar Lords committee that the Commons hasn’t got, and by and large we accept its recommendations”.
You have chosen to instruct parliamentary counsel effectively to snuff out Parliament’s role in this issue. We are not interested in the policy. The policy is important, but we are looking at the powers that have been given. You have identified some of the legislation, but paragraph 18 of the report that we published last week says that existing provision in primary legislation can be replaced by provisioning regulations and the exercise of the powers is unfettered by any requirement for consultation, for criteria to be met or for meaningful preconditions to be satisfied. That is effectively snuffing out the parliamentary role and giving plenipotentiary powers to Ministers. What is the excuse for that? That cannot be right.
Justin Madders: There is a very clear steer in the Bill that many of the powers exercised will be by affirmative statutory instrument, so we are not intending to snuff out Parliament at all. We have had a very clear decision that the level of detail and the rapidly evolving nature of some of these products means that it will not be effective if we have to issue primary legislation every time we want to update one of these regulations. We are certainly planning to consult on all these matters, and officials are having ongoing dialogue with all the relevant consumer groups and bodies that may have an interest in these things.
There are some clear examples of where, if we had gone through primary legislation, by the time that had been passed the products would have evolved to an extent that we would have needed to legislate again. Giving us the power to be able to stay up to speed with developments in the market is putting safety first and something that I am very prepared to defend.
Q5 Lord Rooker: There are loads of other areas where urgency is required, and we have never come across an example of where the powers that Ministers take cannot be used in those circumstances, because they can use super-affirmative powers and then come back to Parliament and get the approval. In other words, they can act on the minute. I am not talking about primary legislation; I am talking about statutory instruments.
Statutory instruments can be issued overnight and the power is there. If required, the Minister can go back to Parliament later. So there is no argument about the issue that, because urgency is required, you have to have no role for Parliament and Ministers can operate as they wish. That is the central issue that we are concerned about. No one wants to stop action being taken when it is required, obviously, but the fact is that the normal rules allow that in a range of policy issues that this committee has dealt with.
Helen Le Mottee: We do understand the concerns about skeleton or framework legislation. I agree that they are similar phrases. As Tony Thomas said, the difference is that here we already have the framework on the statute book. In reality, product regulation has always been in secondary legislation, first, secondary legislation made under the Consumer Protection Act and, more recently, secondary legislation that is made under Section 2(2) of the European Communities Act.
Those were the Acts that gave the powers to allow for the role of Parliament that you just described about the made affirmative or the draft affirmative procedure applying. We no longer have the powers to make secondary legislation subject to that more proportionate level of parliamentary scrutiny. That is what this Bill is aiming to replicate.
There are provisions that replace primary legislation, but they are targeted and specific, and the justification for each of them is quite different. In the case of the Consumer Protection Act and the Consumer Rights Act, the intention is to repeal powers that already exist but are no longer relied upon, because the constraints on those powers mean that they are not quite suitable for the modern day, which is why they were replaced by the use of Section 2(2) when we were a member of the EU. And then it is also the enforcement provisions that are being replaced by secondary legislation. We considered that carefully. You have quite a specific question about why we chose that route for the enforcement provisions, and we can come on to that. The other provisions in those Acts, which are being replaced, are existing powers that are being replaced by this new power.
It is slightly different for the Gun Barrel Proofing Acts. That is a rare example of product regulation that is in primary legislation and is very technical and detailed. As far as I am aware, it has not been updated since 1978, because Parliament has not found the time to do so.
For the Weights and Measures Act, we are probably looking to replace some of those primary provisions with secondary legislation, which is where the committee’s concern is the most relevant, I would say. In the other two Acts, it is the powers that we are looking to repeal, and for the Gun Barrel Proof Act it is very technical provision.
Q6 Baroness Bakewell of Hardington Mandeville: Good morning, Minister. I understand why the Weights and Measures Act and the Consumer Protection Act are going to be repealed or replaced—it is because there is a need to update legislation—but the public might not understand that. The power to make product regulations and metrology regulations, allowing existing primary legislation to be amended and replaced, is very wide. What is the justification for this, apart from urgency?
Lord Leong: I will take this one. I will give you an example of why we need this power. Take the Consumer Protection Act, for example. Part 2 says that it is a one-size-fits-all enforcement regime. It does not really tailor it to current circumstances. It sets out to make safety regulations cover them, but not all of them are in Section 1 itself, so we need these new powers to repeal that so that we can be more focused than that.
The other example is the product regulations under the Gun Barrel Proof Act. As mentioned earlier, it is a very technical Act, and we need new powers to replace it. Schedule 5 in Section 77 of the Consumer Rights Act sets out various provisions that are outdated. We need to repeal that too, so it is basically a tidying up exercise.
Justin Madders: We have been very specific about which pieces of primary legislation we want to deal with, and that has been part of the response to the anticipated concern that we would take too many broad powers. It is very specific. I did not even know there was such a thing as the Gun Barrel Proof Act until I came across it, but it is the sort of thing that we feel we can justify in terms of a targeted, specific approach.
Q7 Baroness Bakewell of Hardington Mandeville: Given that the evidence was called for in 2020—a review was started in 2019, evidence in 2021, consultation in 2023—this has been quite a long, drawn-out process. How quickly do you envisage that the repeal of this urgent legislation is likely to take?
Justin Madders: We want to have this in place by about next April when some important EU regulations come through that we need to be able to respond to. That is the imperative on the timetable. That was the primary concern with the outdoor noise regulations that are being implemented in May 2025 and which we were trying to address, and we want to put regulations in place in relation to e-bikes in particular and the very serious safety concerns that people have about those.
Lord Leong: Added to that, some of the CE markings are due for renewal. As it stands, we do not have the power to renew them under the current legislation, so we need it. If we do not have it, the EU will renew all its CE markings, we will be at standstill and our products may be unsafe. That is why this Bill is needed so quickly.
Q8 Baroness Chakrabarti: Thanks again to all the witnesses. Following what has been said by my colleagues, I do not think anyone on the committee is doubting the need for some secondary legislation in this huge area. Minister, when you talk about balance, I think balance in this constitutional matter would be a balance between flexibility and speed on the one hand and constitutional constraint of executive discretion on the other. That very balance is what we are trying to reach for.
The new Attorney-General, Lord Hermer, as you will know, gave a number of speeches and lectures recently, including even this week, about the rule of law. In doing that, he has very explicitly endorsed the late, great Tom Bingham’s analysis of the rule of law. Some of you, certainly those who are lawyers, will know that there are eight principles encapsulated in Lord Bingham’s version the rule of law.
The first Bingham principle of the rule of law that is relevant to this is that the law must be accessible and, so far as possible, intelligible, clear and predictable. The second one, which again is directly relevant here, is that questions of legal right and liability should ordinarily be resolved by application of the law and not an exercise of discretion.
You will see what I am getting at, which is that it is not that you are attempting to legislate for the possibility of regulation and regulation-making powers in this broad terrain of products. It is that the regulation-making powers seem to be so broad and unconstrained. Minister, can you say whether you think this Bill complies with those first two Bingham principles? I doubt it does.
Secondly, and this is really a follow-up question, this committee, in its seminal report Democracy Denied?, has expressed concerns about framework, or skeleton—whatever you like—legislation, and has said that this legislation is justifiable only in the most exceptional circumstances, when no other approach would be reasonable to adopt. From what I am hearing from you, I cannot hear the exception. I can hear the desire for speed and flexibility, but that could be said by any department in any number of areas of legislation.
I guess my real question is why you cannot constrain some of these powers to be a little bit more specific on the face of the legislation about policy ambition and how these powers would be used, because I think that would help the committee to understand this constitutional balance that we are all trying to strike.
Justin Madders: I think we agree that there is always a balance, and we are debating where that balance actually lies.
On the question of accessibility and predictability, it is important to note that what we are doing here is building on an existing framework. We are not setting out a new set of objectives but building on the many regulations that already exist.
In terms of legal rights and responsibilities, we are dealing with separate areas of consumer and product safety law, so there are different mechanisms that will be used for enforcement. So it is not that straightforward to put things on the face of the Bill that will give us the opportunity to deal with enforcement.
The way we would look at this is that we anticipate there are four or five regulations that we will need to do every year to keep up to speed with things, and the parliamentary process means that we want to be able to adapt these regulations as new evidence emerges. You may think that is not sufficiently serious reason for us to have an exception, but we are talking about product safety in critical matters of importance for people’s health and welfare. We think that is a proportionate basis to proceed. I think Helen Le Mottee wants to add something.
Helen Le Mottee: Yes, thank you, Minister. I want to address the committee’s concerns about the rule of law in particular, because obviously as a government lawyer that is really important to my role, and I am pleased to see the Attorney-General’s statement about the importance of it and the restatement of Lord Bingham’s principles. That is why we think that detailed and broad powers to make secondary legislation here are so important: because it is the regulations that set out the detail and the legal rights and responsibilities of actors in the marketplace here. Without the detail that secondary legislation can provide, a broad discretion is left to the interpretation of the primary legislation, which can set out only the much broader principles, or, in the case of criminal sanctions, applies too bluntly to set out the detail. We considered very carefully how the committee’s concerns about skeleton legislation applied in this particular context but there are other constitutional principles that point in the other direction sometimes, and we felt this was one of those cases.
I hesitate to call it truly exceptional, because there are other precedents like it. Schedule 11 to the Building Safety Act was a clear precedent that we looked at, which is very like these provisions. It is about construction products, which is a sub-category of the products that could be covered by this Bill. It is very similar. It sets out a power to make regulations and to make enforcement provisions that are tailored to the particular requirements that are set out in legislation.
We took that approach rather than having a much broader framework provision—I would call that framework really—because it leaves more discretion to sentencing judges, for example, because we felt that the rule of law was better served by having precise obligations, so that businesses are clear and regulations can be updated as situations change. Businesses that are affected by the legislation, and others—it is largely businesses in this context—can then be very clear about the obligations that apply in the particular circumstance they find themselves in, and as online marketplace business models develop they are not left trying to work out how the outdated legislation might apply to them.
Baroness Chakrabarti: That is a very good point: that having suitably constrained regulation-making powers allows for detailed and clear regulations. Of course, the question ante is whether the regulation-making is itself sufficiently constrained or whether you are just giving Ministers a blank cheque for executive fiat. That is the problem, is it not? Your point about the clarity that you would expect of the secondary legislation is fine. I do not think anybody will worry about that. It is whether you have given the Executive a blank cheque to do all sorts of things, including creating new criminal offences and so on, or whether these powers are sufficiently constrained for us, let alone the public, to have a vague idea of what you might do with them.
Tony Thomas: That is a very good point. On your point earlier about whether we could put more on the face of the Bill, I can give you a specific example, because we did an awful lot of thinking behind some of the clauses here and what we could put in the Bill. Clauses (2)(c) and (2)(e) talk about the markings and the provision of information for particular products. The scope of products within the ambit of this Bill covers everything from toys to heavy machinery to lifts. There is a huge number of different information requirements, depending on the risks and hazards presented by those products. For toys, they talk through the parent or supervisor of the person who will use that toy with the child. On radio equipment they talk about software and relevant radio frequencies, and electromagnetic disturbance in the Electromagnetic Compatibility Regulations. There is lots of different information. We wanted to be as precise as we could be in the Bill to cover all of those, but that was the level at which we fell.
The other good example is Clause 2(2)(g), which looks at assessment verification and certification. There are, I think, 16 different modules for conformity assessment in the UK—for everything from the quality assurance of the design mechanisms that you use through to the actual testing of the product itself. Those can be used in different formats, depending on the product. Some of the legislation for some of the more technical industrial goods has pages and pages on the ways in which those things interact. To be able to reflect that in any more detail in the Bill would have constrained us and not allowed us to do that.
Cutting to your point earlier on the Consumer Protection Act, the definition of goods there is so tight that things like electromagnetic compatibility do not fall into it, so we cannot make the changes. Likewise, some of the enforcement provisions in that Act are very tailored to particular types of products and do not take into account some of those more technical aspects. I hope that is helpful.
Q9 Baroness Finlay of Llandaff: You may feel that you have partly answered this question, but it would be helpful if you clarified a bit more for us why you felt that there was virtually no aspect of product regulation or metrology that was sufficiently important in policy terms to merit inclusion in the Bill. You have already spoken about the profound concerns over lithium batteries, for example, and we had a big debate on that with a Private Member’s Bill previously.
The concern in some ways about this framework or skeleton is how, for people who are innovating—we are trying to promote innovation and new product generation in this country to meet the changing needs in all aspects of society—can this Bill also act as guidance when it is so broad in framework, with very little specified in it?
Lord Leong: Thank you for that question. If your Lordships could indulge me, I will share a personal story more than anything else. Jeff Bezos started his business in his garage as an online bookseller, buying books directly from publishers and selling them to consumers, and 30 years later Amazon is a totally different beast. It sells everything from lipstick to garments to household products and all of that.
I started my publishing business in the mid-1980s in my kitchen—I know many noble Lords are esteemed authors themselves—and in those days the whole supply chain was very different. As a publisher then you dealt with the author and sold to the bookseller. You knew the people you were dealing directly with. When I sold my business some 17 years ago, it was not even a book we were selling; it was slicing and dicing a book, cutting it up, compiling it and selling it to the public.
That has also changed. Now, there are actors out there who are not publishers but who are involved in the business of publishing. I will give you an example. There are algorithms that can search the web and tell you what the best-selling book is today—it could be how Parliament or a Select Committee works—and there is AI software that can compile a book in 40 minutes, or even half an hour, on a particular subject. Anyone can be a publisher these days, so those little aspects of publishing are changing before our very eyes. That impacts on copyright and so on forth, but that is a debate for another day.
We do not want to stifle innovation. I think the UK is the best place for people to start and grow their businesses, and everything else that goes with that. Having said that, the online marketplace is changing. With the support of 3D printers, I can manufacture anything online and put it on the marketplace and sell it. Whether it is safe or not is another matter. There are people out there who are three steps faster than us lawmakers, and by the time we play catch-up it is too late. Take Amazon, eBay, Temu or whatever. There is a platform there. People start their businesses in their bedrooms or whatever, and whether they are starting in Edinburgh and selling to Ealing, Belfast or Birmingham does not matter. We want them to be able to start their businesses, but we need to ensure that whatever they sell is safe for people. This is our challenge. We are constantly trying to play catch-up with how the online marketplace works. I do not think we can, because it is constantly evolving.
I will give you an example. Online has democratised any entrepreneur. You can set up a virtual shop and can compete with the big boys, so it has basically given people a level playing field. Someone can start an online marketplace and say that they want to supply parts for a lift, for example. It is there. Someone places an order. A 3D printer can print and manufacture that particular part and sell it, but whether that particular part meets safety standards is a challenge for all of us. I am trying to say that we can regulate as much as we want, but we are playing catch-up all the time, so we need to be able to address the new changes in the marketplace and not allow unscrupulous players out there.
Baroness Chakrabarti: You put that incredibly well, if I may say so, and I think everybody’s sympathy would be with you about the need to be nimble and to move quickly. From a constitutional perspective, one answer at one end of the scale to the problem that you describe would be just to say that there will be a government official who will have unfettered power, on any occasion with any product and any manufacturer, to say yes or no, with no constraint—to be literally a kind of chamberlain who says, “This product, yes. That product, no. This manufacturer, yes. That manufacturer, no”, with no further constraint. That would be nimble, that would be flexible, but it would not be constitutional. I do not think anybody in this country would support that. I do not think you would support that. The concern is where in between to have regulatory powers that are swift but clear and that protect the public, businesses and so on. It is the balance that we are a bit concerned about at this point.
Q10 Baroness Finlay of Llandaff: Thank you, Baroness Chakrabarti, for clarifying that so beautifully, because it certainly seems to be about the threshold: at what point? It is almost as if you are making an argument for having no primary legislation at all and only regulation-making powers, but there has to be a threshold whereby you determine what is or is not in regulation. It feels as though it is all being left up to regulation and that the skeleton of the framework is not clear enough.
Lord Leong: I am trying to understand your Lordships’ position here. If you are going to put everything in the Bill, and every time there is a new challenge we bring in primary legislation, I do not know how that will work.
Baroness Finlay of Llandaff: No. I think we all accept that that is an incredibly slow process. We want the exact opposite for innovation and safety, so that people are not bringing products to market that are unsafe and we are waiting to play catch-up. We need to be very rapidly responsive, but there is a tension between what Parliament is required to look at versus almost leaving it up to a group of decision-makers who might bring some regulation to Parliament and it is for us to understand how that threshold has been determined.
Justin Madders: We have put provision in the Bill for there to be affirmative procedures when specific requirements are set. To put some context to this, and in terms of product safety, in the last 10 years there have been 51 regulations and one piece of primary legislation, so what is being suggested here is not a radical departure from past practice. There are good reasons for that, as has been articulated today. We absolutely understand the need to get that balance right. We may well have a disagreement on that, but we are coming from a place where this is the most practical way to deliver the outcome that I think we all want.
The Chair: I think the difference that Parliament as a whole has perhaps not yet adapted to is when you say, “In the last 10 years”. For a decent part of that period we were members of the European Union and we had no option. There was a process for legislation to be done. For some people it may have been unsatisfactory, but there was a process. We do not have that backstop now that is bringing new legislation, which is why some of the accountability issues are different from what they were over that particular period.
Q11 Lord Goodman of Wycombe: Talking of EU legislation and all that, I want to ask some questions about divergence and alignment.
In the debate that Lord Blair will be familiar with because he opened and closed it, Lord Russell said that we should have dynamic alignment, Lord Lansley said that we should not, and at least three Back-Benchers said that the Government have some sort of plan to align without telling anyone. I read what Lord Leong said in reply. My point about this is that, as Lord Rooker said earlier, we are not here to debate the policy, but plainly all these Peers quite rightly saw this as a policy matter with big policy decisions. How on earth can it be appropriate to have all this decided by regulation by Ministers, as set out in the Bill?
Justin Madders: I think you are taking us on a ride on the ghost train, if you do not mind me saying, when you say that some secret plot or decision has been taken to align or otherwise. That is not the case.
Lord Goodman of Wycombe: Sorry, Minister, but that was not the question. As I said, I read what Lord Leong said in reply. My point was that these are policy decisions—at least, noble Lords seemed to think they were. Lord Russell wanted dynamic alignment, and other Peers said that we should not have it. Is this not a policy decision, and should this be decided not by regulation but debated fully in Parliament?
Justin Madders: All I can say is that there is no policy decision. The decision is to give us the maximum flexibility to take whatever route we wish to take. That is what the framework in the Bill allows us to do. That is not the same as picking a particular route.
Lord Goodman of Wycombe: On a related matter, who takes the decision about alignment or divergence? I appreciate that Ministers are responsible, but will Ministers take the decision or will civil servants?
Justin Madders: I would hope that Ministers would take the decision. It will be on a case-by-case basis.
Lord Goodman of Wycombe: One would hope, Minister?
Justin Madders: That is my intention, yes. We are not coming at this from a particular ideological standpoint. We will be dealing with each issue as it arises.
Baroness Chakrabarti: It is Ministers, not Parliament, and Parliament is the legislature, so you will be making fundamental decisions about alignment or non-alignment with the EU on crucial issues of product safety and so on, but taken by individual Ministers and not Parliament?
Justin Madders: There will still be the opportunity for parliamentary scrutiny.
Baroness Finlay of Llandaff: We are talking about EU regulations here, but there is also the FDA and the American regulations, and there are certainly some coming through from Australasia and the Pacific region and so on. They do not always interdigitate perfectly; they may be different. There is some decision-making as to which direction the UK will go in now that will determine which products come in from outside and how product development happens in this country, because the innovators need to know which group of regulations they might be aligning with, and to align with all of them can be quite challenging. In some areas, that is already happening, but there are real and significant differences between the EU and the USA.
Justin Madders: That is why the Bill has been framed in that way: because we recognise that there will be competing challenges and discussions as issues arise.
Q12 Baroness Humphreys: My question relates to the creation of criminal offences. Our guidance for departments states thta, “Where the ingredients of a criminal offence are to be set by delegated legislation, the Committee would expect a compelling justification”. Clauses 3(9)(a) and 6(9)(a) give Ministers powers to set the ingredients of criminal offences in product regulations and metrology regulations. What is the justification for this?
Lord Leong: The Act itself—or rather, the regulation—will cover a wide range of products and all that. I will give you an example. Say someone markets a fake lipstick, puts some chemicals in it and it causes a rash. The penalty for that will be very different from that for someone who is trying to flog spare parts for some industrial equipment and someone gets killed. It is difficult to say in the Bill, “The penalty will raise from this to this”, and that is more of a sentencing guideline. The regulation will define what the penalty is for a particular breach of that product. Am I making sense?
Helen Le Mottee: This is probably the quintessential example of what I was saying to Baroness Chakrabarti earlier. In this particular case, we think that the rule of law is best served by precision and not leaving a broad discretion to sentencing guidelines and judges. It is a bit like Schedule 11 to the Building Safety Act, which took the same approach. Although we gave significant thought to whether penalties and criminal offence provisions could be in the Bill, as was the case in the Consumer Protection Act, that has not worked in practice. It operates too bluntly. You do not have the precision to deal with the wide variety of circumstances under product regulation, as Lord Leong said. The penalty that might apply to an act in the case of a nuclear installation product would be quite different from that for a low-risk consumer product.
Only by having the criminal enforcement provisions alongside the actual requirements themselves can you be precise about who is responsible for what in the particular circumstances. This is why we decided that there is no real way to put anything meaningful in the Bill in the case of product regulation. Every element of product regulation varies. You have the requirements that must be met, who is responsible for meeting them, how they demonstrate that, how that is recorded, how they are enforced and what the appropriate penalty is. It is all just so circumstance specific that it just has not made sense in the past. What has happened is that it has been layered on top with extra complication made under secondary legislation under Section 2(2).
That is how product regulation has evolved in the past and it is why the Building Safety Act took the same approach as we do. The rule of law seems to be best served in this particular case of a highly technical area, where every element needs to be precise. We think that secondary legislation provides the appropriate balance that you were all talking about, where you have parliamentary oversight but also flexibility. So instead we looked at the procedural safeguards that could be applied while making criminal penalties, and we have made sure that affirmative procedure will apply when regulation broadens the scope of a criminal offence or sets a new penalty. We thought that that was the best way to strike the balance that the committee has asked for.
Q13 Baroness Humphreys: I am concerned that we are talking about creating new criminal offences, which this committee has a sort of presumption against, in a way, and creating the penalties for them. I understand your commitment to the secondary legislation procedure, but from our perspective that secondary legislation procedure is not amendable at all. Parliament itself would have no power over the creation of a criminal offence or the penalties that went alongside it.
Baroness Chakrabarti: It would be take it or leave it, would it not? You could come along and say, “This dangerous new product needs to be regulated, so we’ll create an offence. It’s very urgent and it’ll come with three months in prison”, and we would not even have the opportunity as parliamentarians to say, “Hang on a minute. We think you’ve got a point, but three months in prison is too much”. It would be a take it or leave it. The rule of law is not the rule of the Ministers. That, I think, is the point we are making. Even though you must be right that you want detailed specific regulations, this is really about the constraint on making those regulations.
Helen Le Mottee: All I can say is that we do not view Parliament’s role in legislation as take it or leave it. We are very alive to the fact that an SI has to be debated and will become law only if it is approved by Parliament.
Baroness Chakrabarti: But it cannot be amended, can it?
Helen Le Mottee: It cannot be amended, but it could be refused, and we would have to bring back a different amendment, meeting the concerns that were expressed in the debate.
The Chair: But if it was something of an urgent nature like that and it cannot be amended, Parliament has no choice. This is the whole point about skeleton legislation. In the last few minutes of the committee, we have come to the crux of what concerns us. It is not an attack on the Bill or on the department, but an attack on the mechanism that the department is seeking to use to make a fundamental change, as we see it, without that parliamentary scrutiny.
Lord Rooker: I thought your explanation to start with was first class, Helen. It is a lesson to take back to the department, because paragraphs 34 and 35 of the report that we published last week make it clear that we would expect a compelling justification where the ingredients of a criminal offence are created. Paragraph 35 goes on to say that, “The Memorandum”—that is, from your department—“explains why it considers the power ... to be sufficiently significant ... but it fails to provide a justification for taking the power in the first place”.
In paragraph 54 of the delegated powers memorandum that your department provided to the committee, there is no justification whatsoever. You have given a verbal one this morning, and I think the department needs to learn the lesson from that, because if what you have said this morning had been in the report, the chances are that we might have taken a different view on the concerns about it. The delegated powers memorandum is there for a reason; it is to guide us. We are not the experts. We not looking at the policy, but you have to justify taking the power in the first place, and the memorandum made no effort whatever to do that, which is one of the reasons why we are sitting here this morning.
Justin Madders: I think that shows the value of this evidence session. We are almost entering a debate about whether we should have amendable statutory instruments, which may be for a higher pay grade.
The Chair: There is that road to Damascus again and what Oppositions might think and what Governments think. Minister and colleagues, thank you very much indeed. I am grateful. It has been a useful exploration of some of our concerns. I hope it has been useful to you, Minister. I have certainly found, and I think Lord Rooker would also acknowledge, that when you start off with a piece of legislation, by the time it has gone through all its parliamentary processes you think, “Gosh, I wish I could go back to the beginning again, because I now fully understand it a lot better than I did at the start of that process”. This is part of that process.
We appreciate you coming in. We also appreciate that you responded very quickly to the report. We will reflect on this morning’s evidence session and may wish to issue something separately as a result, or we may just let it take its natural course through both Houses, but thank you very much indeed for this morning.
