My Lords it is a pleasure to follow the noble Lord, Lord Anderson of Ipswich. I have an amendment in this group, Amendment 126, which I shall speak to. It is in my name and those of the noble Earl, Lord Lindsay, who cannot be in his place today, and the noble Lord, Lord Foster of Bath, reflecting its cross-party support. It requires the Secretary of State to conduct,
“appropriate consultation on draft regulations made under this Act”.
Like other amendments in this group, it is all about more effective scrutiny processes for this Bill. As it stands, this enabling Bill allocates significant powers to the Secretary of State—too many, according to the Delegated Powers and Regulatory Reform Committee and the Constitution Committee.
As this is the first time I am speaking in Committee on the Bill, I say that I support it and the need for it to improve the safety of UK consumers, as do most consumer-facing organisations in this country. However, the Bill, to put it mildly, has received a pounding from the Delegated Powers Committee and the Constitution Committee. I quote paragraph 36 of the Delegated Powers and Regulatory Reform Committee report. It states:
“We consider that … the Government have failed to provide a convincing justification for the inclusion of skeleton clauses in the Bill that give Ministers such wide powers to re-write in regulations the substance of the regulatory regime for products”.
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I quote paragraph 29 of the Constitution Committee’s report on the Bill:
“We reiterate our conclusion that Henry VIII clauses—including that provided for in clause 9—are a departure from constitutional principle and that the Government should provide a full and clear explanation and justification for their inclusion”,
and so on.
To be fair, the Government’s response to the Delegated Powers Committee accepts, among other things, that they should have given more prominence to the fact that their intentions are limited and very specific and that the powers to repeal primary legislation in the Bill are very limited indeed. They go on to say on page 4 of their response what those limited powers will be.
However, suffice to say that it was hoped, all around the House, I think, that these skeleton/enabling/overarching Bills would be a thing of the past, even the most recent past, the past 14 years, in which we saw very many. The question is whether they provide the most effective form of legislation.
Expert consumer organisations, including Which?, which I thank for their advice on this amendment, are concerned that there remain areas of weakness in the Bill’s drafting which, if not addressed, could see future secondary legislation failing to maintain the necessary and high level of consumer protection that the Bill is attempting to achieve. They obviously come at it from a consumer protection point of view rather than a constitutional one. Which? acknowledges that,
“the Bill provides the government an opportunity to introduce new regulations that will upgrade consumer rights”
and are very necessary, but that,
“there needs to be a more encompassing principle to keep consumers safe and underpin all future regulation with key consumer protections”.
The lack of detail on this featured heavily in the Delegated Powers and Regulatory Reform Committee’s report, as well as the report of the Constitution Committee, which concluded that the inclusion of almost exclusively skeleton clauses in the Bill gives current and future Ministers too much power to rewrite regulations or even change primary legislation.
Consumer bodies believe that it is imperative that future legislation be made with regard to keeping consumers safe and upholding key consumer protections. Therefore, provisions in the form of the amendment that I am putting forward should be added to the Bill to improve the transparency and scrutiny processes over future decision-making by Ministers.
My amendment would ensure that:
“Before making regulations under this Act, the Secretary of State must publish such regulations in draft form and consult such persons as the Secretary of State considers appropriate on the draft regulations, including organisations representing the interests of consumers and other relevant organisations”.
It would give similar consultation rights as there are now in the Digital Markets, Competition and Consumers Act 2024, so we would be in the same position as we are with that Act, and it would go a long way to answering at least some of the questions posed on scrutiny by committees of this House. I look forward to the Minister’s response.