Lord Sharpe of Epsom:

Moved by Lord Sharpe of Epsom

1: Before Clause 1, insert the following new Clause—“Purpose(1) The purpose of this Act is to improve the regulation of products and metrology.(2) The Secretary of State must, in taking any actions under this Act, advance that purpose while prioritising the maintenance of the United Kingdom’s regulatory autonomy.(3) Accordingly, and so far as it is possible to do so, provision made by virtue of this Act must be read and given effect so as to achieve the purpose mentioned in subsection (1) to the extent that it is consistent with the maintenance of the United Kingdom’s regulatory autonomy.(4) When taking action to improve regulation under this Act, the Secretary of State must have regard to maintaining the highest quality regulatory framework.”

My Lords, this Bill has a troubled history. It should not have been introduced to either House in its current form. It has now fallen foul of the Delegated Powers and Regulatory Reform Committee on three occasions and of the Constitution Committee on two occasions. We acknowledge the Government’s efforts to assuage the DPRRC’s concerns, and we thank the Minister for engaging so fulsomely and openly and driving through a number of government concessions. Those concessions are welcome, and we will support them, but, regrettably, they do not go far enough, in our view.

I speak today about the critical importance of having a purpose Clause in the Bill, and its implications for the United Kingdom’s regulatory autonomy. In its current form, the Bill contains no explicit mention of respecting the UK’s regulatory autonomy, which is the foundation of a prosperous, independent economy. This absence is exactly why we need this purpose clause: to fill that gap and provide clear direction for the actions of the Secretary of State under the provisions of the Bill. After all, the reason we left the European Union was to regain the ability to make our own decisions, free from external control. Yet without this purpose clause, the Bill does not sufficiently safeguard the autonomy we have worked so hard to reclaim. This is precisely why we need this purpose clause. It explicitly addresses the need to protect and prioritise the UK’s regulatory autonomy in any actions taken under the Bill. It would establish a guiding principle that the Government must always act in a way that protects the UK’s sovereignty in regulating products and metrology, free from undue influence by foreign Laws or regulations.

By explicitly requiring the Secretary of State to ensure that regulations are of the highest quality, this proposed new clause would push the Government to focus on creating a regulatory environment that stimulates rather than stifles business, and extend a clear message that the UK’s regulatory framework should encourage technological development, support start-ups, protect consumers and ultimately contribute to economic growth. We live in a highly competitive global market, where businesses need certainty and the freedom to operate according to clear and fair rules. A regulatory framework that ties the UK’s hands by aligning with foreign laws could create significant barriers to growth and innovation.

I appreciate that this preamble is lengthy in the context of an Amendment on Report, but the proposed addition of this purpose clause makes sense only with some of that historical context. These arguments will inform many of our other amendments, so noble Lords will be relieved that they will not need to listen to them again too often.

If the Government are determined to force through this unfinished skeletal legislation in the teeth of perfectly reasonable objections from the committees of this House, and, indeed, from their own Attorney-General, the least we can do is give the Bill an overarching purpose: to improve the regulation of products and metrology, while prioritising the United Kingdom’s regulatory autonomy. If the Government are serious in their stated growth intentions—earlier today, the noble Baroness, Lady Anderson of Stoke-on-Trent, said, “We will always act in the national interest to secure what is best for Britain, British businesses and citizens”—surely they will find nothing to object to in either of those aims and will therefore accept this amendment. I beg to move.

I apologise to the House for not being able to be present at many of the earlier debates, but I have come specifically to hear the explanation of this Amendment, and I have to say that I am not convinced. The purpose of regulation is, of its nature, to do the best for growth and for business, and if it is best for growth and business to have a regulation that aligns us with somebody else then that must be sensible. There is no reason to say that the priority is not to be aligned. Indeed, I rather think the opposite: the priority is probably, in most cases, to be aligned.

To tie the arms of a future Government on the basis that somehow or other we are living not in the world that we now live in but in some mysterious world that people would like to live in seems wholly unacceptable, and I must say that I am sad that the Government have been opposed on this basis. It runs through all these out-of-date amendments, all of which seek to reassess and restate the disastrous policy of leaving the European Union, which we all know to be a huge success—everyone, throughout the country, knows how very good it has been, so let us make it even better by making it even more difficult to try to come to terms with the world in which we now live. I very much hope that the House will not agree to this amendment.

My Lords, I did not intend to support my noble friend on the front bench, but I am moved to do so by the speech from my other noble friend. I say to my noble friend Lord Deben that there is a later Amendment, which we may or may not pursue, the purpose of which is to make it clear that, when making regulations, Ministers should have regard to the likelihood of the United Kingdom being an attractive place in which to manufacture or supply products. I am sure he agrees that is right.

My noble friend Lord Sharpe’s amendment serves two important purposes. First, it illustrates that the Government have not, even in this framework Bill, taken the trouble of telling Parliament the purpose of this legislation, other than that it is to make regulations at Ministers’ discretion. It does not really do much more than that, and that discretion is extremely wide.

The second benefit of the amendment is that it says—and I rather like this idea—that we should have a high-quality regulatory framework and a priority to maintain our regulatory autonomy. That does not mean we do not align with other jurisdictions; it means that we retain control of the extent to which we are aligned with other jurisdictions. In so far as that is encapsulated in a purpose Clause at the outset, it would illustrate what use this legislation should be put to. We will come on to discuss the deficiencies of the Bill and whether the framework is sufficiently clear, but the more one is clear in statute what the purpose of a framework Bill is, the easier it is subsequently to scrutinise the many statutory instruments that will come forward in reference to it.

My Lords, I support the Amendment from my noble friend Lord Sharpe. We discussed what the point of the Bill is on many occasions in Committee, but I am afraid we are none the wiser and certainly no better informed on that subject as a result. That is why it is necessary to have a clearer purpose Clause written into the Bill. The nearest we have is in the Explanatory Notes from a few months back; I will not read the full text, but they say:

“The Bill intends to ensure the UK is better placed to address modern day safety issues” and high modern standards

“by allowing the UK Parliament the power to update relevant Laws”.

Correct me if I am wrong, but the UK Parliament already has the power to update any law that it wishes, so I do not see how that can be the purpose of this Bill; there must be something else to it. Of course, one could speculate about it. Perhaps it is just to relieve the Government of the burden of having to go through the effort of legislating for the full range of manufactured goods that we still produce in this country, to delegate that power to the European Union and to recreate the situation that existed before we left that organisation. Perhaps it is to help with the woeful arrangements of the Windsor Framework and to make it a little easier to move goods across the internal border from Great Britain to Northern Ireland—I do not know.

What the purpose of the Bill cannot be is to reduce trade barriers—or it can be so only on one condition—because aligning with EU law does not reduce trade barriers. The EU itself is very clear about that; the process remains because it is a different legal system. The one condition on which that could be true would be if the UK and the EU reached an agreement that the aligned legislation under this Bill was to be considered as EU law and would be enforced by the Commission and the court—in other words, a Swiss-style arrangement. We have heard chat that that might be what the Government are aiming for in their reset.

In so far as I can see a purpose to the Bill, without the proposed new purpose clause in Amendment 1, it is maybe to prepare the ground for a Swiss-style agreement. Can the Minister, when commenting on this group, confirm or deny whether that is the intention of the Government and the purpose of this legislation? If it is not, it is very hard to see why the Government would not accept the proposed new purpose clause in Amendment 1.

My Lords, I support the Amendment in the name of my noble friend Lord Sharpe of Epsom. I hope that over the course of my remarks I can illuminate the rationale for the amendment, for the benefit of my noble friend Lord Deben. This amendment is not about relitigating the Brexit battles. It is about holding the Government’s feet to the fire in a Bill that is deeply flawed. It is found to be deeply flawed by your Lordships’ Constitution Committee and Delegated legislation committee—more of that later.

The two reasons that Ministers should look benignly on this amendment are that it is not substantially at odds with the Bill’s raison d’être and it is not only a noble aspiration of the Government. The Government were concerned—indeed, the previous Government were also concerned—that they did not have sufficient powers to respond to the EU’s regulatory initiatives efficaciously and that this would have negative trade consequences. It is perfectly proper that the Government seek to address that issue.

The fundamental problem of the Bill is that it does not articulate how far the Government intend to exercise the wide-scale, sweeping enabling powers in favour of alignment with the European Union only, and not other jurisdictions. For that reason this amendment should receive the support of your Lordships’ House. It is a purpose Clause and a fundamental issue. I hope your Lordships will forgive me if I stray into the remit of Amendment 2. They are very similar and both look at Clause 1.

Before I go any further, I thank the Minister for how congenial and open he has been in engaging with all sides of the House—including our friends on the Liberal Democrat Benches—in seeking to improve the Bill and have a proper debate. Although there is no specific mention of dynamic alignment in the Bill, my noble friend Lord Frost makes a very astute point on whether the Government are moving towards a Swiss-style agreement—multiple bilateral agreements—which would potentially not be in the best interests of the UK as a much larger and more substantial economy than Switzerland.

The Minister should accept that our amendment seeks clarity, certainty and an explicit purpose, without undermining the concept of improving the regulation of products and metrology. This is not one giant statutory instrument. It is a piece of primary legislation. It is quite sensible to have the purpose of that legislation explicitly set out. It has an impact in terms of protecting the autonomy of the UK as an independent trading nation. As my noble friend Lord Hannan of Kingsclere made clear in Parliamentary Questions earlier, adopting a regulatory regime over which we have no effective influence, input or sanction is not a sensible way to proceed. It would certainly circumscribe our capacity to make new, advantageous trade arrangements with countries—not just those outside the EU but others that will come into the EU as new members subsequently.

The noble Lord, Lord Hunt, chunters that “It would be in our interest” from a sedentary position. That is a value judgment.

I said that what we do is totally in our own hands. The Bill gives us the right to adopt if we want to—to change, if we want to. This is about the UK having control. I thought that is what the party opposite wanted.

That would be the case if the Bill was not an egregious offence in respect of huge Henry VIII powers and enabling powers.

I am sorry to intervene on the noble Lord again but I cannot resist it. Surely the whole point about the Bill is to give us flexibility to do what the noble Lord is asking us to do.

Then the noble Lord would support a purpose Clause, which—one might make the case—is much clearer and more explicit. Incidentally, I agree with every word said by my noble friend Lord Lansley and will be supporting his Amendment later.

But, as the noble Lord, Lord Hunt of Kings Heath, rises to the Dispatch Box, I would just like to conclude my remarks with the words of his noble friend the Attorney-General. This has been mentioned before, because it is very important within the context of the Bill. It is not just that this is primary legislation; it is unclear. It gives ministerial fiat—wide-ranging ministerial powers—and there are not explicit protections. Indeed, the Delegated legislation Committee specifically says there are not proper procedures for even consultation with key stakeholders. But the noble Lord will know that on 14 October, the Attorney-General—who is not as high-profile in this House as he used to be—said in his Bingham lecture on 14 October that

“excessive reliance on delegated powers, Henry VIII clauses, or skeleton legislation, upsets the proper balance between Parliament and the executive. This not only strikes at the rule of law values … but also at the cardinal principles of accessibility and legal certainty. In my view, the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means, in particular, a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards”.

I could not have put it better myself. On that basis, I hope that Ministers may be minded to support my noble friend Lord Sharpe’s amendment.

My Lords, it is a pleasure to take part in this Report debate and to speak to this Amendment.

I am grateful to the noble Lord, Lord Jackson, for reminding us that we are not relitigating the Brexit debate, because sometimes in Committee it was very hard to understand that point, given the speeches that came from his Benches. We are not relitigating the Brexit debate; we are trying to put in place a regulatory regime and the ability to deliver regulation that benefits the people of this country.

I was minded to consider that if I was using an electric lawn-mower and I started either to be electrocuted by it or have my toes removed by it, the last thing I would worry about was whether the regulation for that was autonomous. I would be worrying: why was it not safe? Why was the product not preserving my rights as a consumer not to be electrocuted or amputated? There is a serious point to this. If the noble Lord wanted to put a purpose to the Bill, its purpose is not to deliver some mystical autonomy—if we look at Amendment 8, we see that the Minister, far from delivering autonomy, is going to tie us to a whole bunch of other regulatory regimes. It is about delivering a regime that protects people and the environment, and gives consumers right of recompense if they are sold faulty products—all those sorts of things that we see before us. If we look in the draft code of conduct, that is what is set out in the introduction to it.

Sometimes we use before Clause 1 purpose amendments to make sure that we are the first Speaker up. I do not think in this case that was in the mind of the noble Lord, Lord Sharpe. His amendment is designed—

Will the noble Lord give way?

If I can finish my sentence, please. The noble Lord’s Amendment is designed to completely change the purpose of the Bill. I think he has admitted that, and that is right. I suggest that in all the discussion we have had, all the amendments that we have talked about through Committee have been about the consumer, safety and the other issues that actually matter. If we want a purpose, I am very happy to sit down with the noble Lord, Lord Sharpe, and the Minister and we can draw up a purpose that encompasses that if it makes people feel happier, but the key issue is not the autonomy, it is the effectiveness of that regulation. I give way.

I remind noble Lords that we are on Report, we are not in Committee. It is very clear in the Standing Orders that you can speak only once on Report unless you are the mover of the group, in which case you can respond to the Minister. It is not within the rules to have this sort of debate. That is for Committee, not for Report.

I am grateful to the noble Lord. Our focus will be—

Will the noble Lord give way?

No, as the noble Lord just said—

The noble Lord agreed to give way.

I give way to the Whips to suggest what to do.

My Lords, I realise that I should apologise to the House, because I should not really have intervened on the noble Lord. In apologising to the House, I suggest that we allow the noble Lord, Lord Fox, to finish his speech.

Thank you. There is not much more, your Lordships will be pleased to know. We will be focusing on the key issues. When we come to further groups, your Lordships will see that the work we on these Benches have done has been to try to prioritise proper scrutiny of the issues that I have talked about—safety, the environmental impact and the consumer, as well as legal issues—and to make sure that that can be done and this Bill changed in a way that survives contact with a huge government Majority in the House of Commons. That is what we will be doing, and that is why we will not be supporting the noble Lord, Lord Sharpe, on his Amendment.

I am awfully sorry: I was not quick enough on my feet before the noble Lord, Lord Fox, spoke. I should like to speak for a few minutes in support of my noble friend Lord Sharpe—if that is all right with the noble Lord, Lord Hunt.

I support my noble friend’s Amendment because I think it sets out the framework and purpose clearly, and that is very important when we are making Laws by statutory instrument. Besides, I think it is important to retain regulatory autonomy, and I will discuss that point with the noble Lord, Lord Fox, in a later group, but I do not think this is the time to have that discussion. It is regulatory autonomy that allows us to do all kinds of things to protect our consumers and ensure that we make the right sorts of laws for our products and our economy. That regulatory autonomy also allows us to align with any laws we like from any jurisdiction and, of course, the Government have a point in that.

My concern about not having an explicit regulatory autonomy aim in the purpose Clause is that it would make us out of step with our existing arrangements with other trading partners, where we have agreed outcomes, conformity assessment procedures and other arrangements to recognise. We should not militate against that, which we may be in danger of doing if our purpose does not state these things explicitly.

My Lords, I thank all noble Lords who have given up so many hours to meet me and my officials to go through this Bill. I really appreciate those meetings. I thank the noble Lord, Lord Sharpe, for his Amendment seeking to introduce a new Clause about the purpose of the Bill. Likewise, I thank all noble Lords who have spoken this afternoon.

We have had many hours of debate on the Bill and I think that we all support the intent of this amendment—the importance of improving product regulation. On that, I hope that there is consensus. As the Secretary of State for Business and Trade pointed out when giving evidence to the Lords International Agreements Committee, the powers that the Bill would provide give the UK regulatory autonomy. If the previous Government had continued in office, they would have needed the same Bill.

We require this Bill, as powers in other legislation are inadequate for updating our extensive product metrology and regulatory regime and responding to new risks and threats. I refer to the point made by the noble Lord, Lord Jackson, about secondary legislation. This is about 2,000 pages of highly technical regulations. It is not a good use of parliamentary time to use primary legislation every time these are updated. There are, however, differences in how we go about improving regulation. That often requires a balance to be struck, such as where obligations sit, or regarding requirements that businesses must meet. That nuanced debate, which we heard during the Bill’s passage, may not be best served by introducing a broad “purpose to improve” in the Bill.

The Bill is about strengthening the UK’s regulatory autonomy. It will make sure that there are appropriate powers to regulate products to suit the UK’s needs and interests. Parliament will have ultimate control, with oversight of the regulations made under the Bill. The Bill is about providing powers to enable the UK to change regulation to suit the UK’s needs and interests, ensuring consumer safety and certainty for businesses. The Bill is necessary because we do not currently have those powers as a nation state. As I said earlier, all changes will be subject to parliamentary scrutiny.

I hope that I have been able to outline why this amendment is not necessary and ask that it be withdrawn.

My Lords, I thank all noble Lords who have spoken in this debate, particularly my noble friends Lord Lansley, Lord Frost, Lord Jackson and Lady Lawlor for their support of this Amendment. I also thank my noble friend Lord Deben for his Intervention, which gives me an opportunity to agree with my noble friend Lord Jackson that this is absolutely not about relitigating Brexit. Regulatory autonomy guarantees the freedom to pursue the best-quality regulation, as is made clear in the amendment. Subsection (1) of the proposed new Clause states:

“The purpose of this Act is to improve the regulation of products and metrology”.

There is no disagreement about that, and it more than takes care of the lawnmower that the noble Lord, Lord Fox, referred to. Precisely as my noble friend Lord Lansley said, it allows the Government to retain control.

The Minister asserts that the previous Government would have delivered this Bill in its current form. They would not have done so; it would not have come in this form. As my noble friend Lord Jackson pointed out, this amendment is straightforward. There does not seem to be much disagreement about the purpose of the Bill. Therefore, I am at a bit of a loss as to why the Government will not just accept the amendment. As my noble friend Lord Jackson pointed out, it provides clarity, certainty and explicit purpose. I am afraid that I am not satisfied with the Minister’s response and would like to test the opinion of the House.

Ayes 177, Noes 228.

Amendment 1 disagreed.

Clause 1: Product regulations