My Lords, I will speak to Amendments 60, 61, 62, 66, 67, 83, 84, 86, 88 and 89 standing in my name.
Before I get on to that, I thank all noble Lords who have spoken. I have not heard very much that I have disagreed with, and in particular I welcome the specialised and clearly considerable expertise of the noble Baroness, Lady Crawley, and my noble friend Lord Lindsay in this area. I also thank my noble and learned friend Lord Stewart of Dirleton, who brought a valuable legal perspective to my Amendments 60, 61 and 62. If I may say so, the Committee should also thank him, because that has relieved me of the duty of mentioning the delegated powers in the Bill.
To probe, starting with my Amendment 60, what is a relevant authority? My amendments as a group seek clarity. There is far too little of it, and I will explain why. There may be a case for a degree of generalisation on product safety laws, which we have discussed in previous Committee days, but when it comes to the enforcement of the law, as my noble and learned friend has just outlined, the Government should not be this vague. The clause that this amendment seeks to remove grants wide discretion in designating one or more persons as the relevant authority, without defining criteria or scope. Businesses need to know who they are engaging with when it comes to compliance and enforcement. The uncertainty in the Bill creates a challenging situation for businesses, in particular small and medium-sized enterprises, which may lack the resources to navigate unclear or fragmented enforcement mechanisms.
Without clearly defined enforcement roles, companies face potential delays and additional costs due to duplicative enforcement efforts, all of which could hamper innovation, productivity and growth. This clause effectively hands unchecked power to Ministers, allowing them to designate any person or organisation as a relevant authority without sufficient parliamentary scrutiny. But it fails to address critical questions, such as what qualifications or expertise the designated authority will require. How will conflicts of interest be avoided? Will there be oversight mechanisms to ensure that these authorities are held accountable for their enforcement activities?
The Government have repeatedly claimed that one of the goals of the Bill is innovation, and that they wish to be a leader on trade, yet unclear enforcement mechanisms may send the wrong message to trading partners and investors. Inconsistent enforcement practices could harm the perceived reliability of the UK’s regulatory regime, potentially complicating cross-border trade agreements and deterring foreign investment.
The Government’s Explanatory Notes suggest that the relevant authority could include the Secretary of State or
“other bodies exercising public functions”.
But nowhere in the Bill or the Explanatory Notes is there any mention of specialised bodies—including those represented by the noble Baroness, Lady Crawley, and my noble friend Lord Lindsay—which have clear expertise in product enforcement, safety and standards. We think this omission is striking. Will product safety specialists such as trading standards and accredited safety bodies be considered? Will enforcement fall to entities with deep technical knowledge and understanding of the complexities of product regulation?
The Bill uses the phrase
“other bodies exercising public functions”,
a catch-all term that could encompass almost anyone who engages in some form of public work. In practice, this could mean highly skilled and knowledgeable experts, but it could also mean organisations or individuals with no background in product safety. Could a local administrative body or other government-adjacent organisation whose primary function is entirely unrelated end up being designated as a relevant authority? Despite the Government’s claims of promoting clarity and higher standards, the wording here does the exact opposite.
This is not a trivial matter. The enforcement authority will determine how the rules are applied and the standards by which businesses are judged. Without explicit safeguards, this clause risks allowing enforcement to be carried out by ill-equipped individuals or bodies, potentially damaging the entire framework of product safety. I appreciate that I have ranged far and wide here, but unfortunately, the way the Bill is drafted invites all these questions, so I look forward to the Minister’s responses.
Turning to Amendment 61, also in my name, we of course recognise the importance of ensuring compliance with product regulations, but the manner in which these powers are drafted raises serious concerns about vagueness, overreach and potential misuse. This subsection includes functions such as monitoring compliance, investigating suspected non-compliance and even mitigating the effects of non-compliance. While monitoring compliance and addressing breaches are legitimate, the concept of suspected non-compliance is especially problematic. What constitutes suspicion? Will it be based on clearly defined criteria, or could it arise from arbitrary interpretations by an as yet to be defined relevant authority?
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The Bill provides no clear mechanism for how suspicion needs to be determined. That opens the door, again, to potential misuse or discretionary investigations without adequate justification. The investigatory powers later outlined in the Bill allow for searches, seizures and potentially intrusive measures that could be triggered by these undefined suspicions. Are we seriously suggesting that businesses can face such disruptions on the basis of such a vague suspicion? Such actions risk being disproportionate and harmful to legitimate business.
That ambiguity places businesses in a permanent state of uncertainty. Will they be investigated merely for innovating or attempting something new? Are these powers being designed to encourage entrepreneurship, or to suppress it? Such vague investigatory thresholds justify such questions and create an environment where innocent businesses could face intrusive actions, as I have already outlined. If businesses are constantly worried about triggering investigations, how can we expect them to innovate? Innovation often involves taking risks, pushing boundaries and experimenting with new ideas. However, under these new powers, every new product, creative design and experimental prototype could be viewed as a potential compliance risk. The powers outlined in subsection (3) do not serve the interests of innovation or growth. Instead, they undermine the very foundations of a thriving economy by targeting production, stifling innovation
and punishing enterprise. I urge the Government to reconsider this provision before it inflicts lasting damage on our business landscape.
Turning to Amendment 62, the powers listed in subsection (4) include the ability to inspect premises, seize products, demand documentation and dispose of products. While the intention of these powers may be to protect consumers and ensure compliance with product regulations, I have to express serious concerns about the scope and potential abuse of such powers. The kind of powers envisaged in Clause 4 could open the door to overbearing government intervention in business activities. The powers to seize goods, inspect premises and demand documents without clear safeguards are not dissimilar to the regulatory regimes seen in some of the most authoritarian Governments in history. The provisions in this subsection represent a dangerous expansion of government powers that, while potentially well-meaning, could easily be misused. The wide-ranging powers proposed are open-ended, with vague criteria about how they can be applied.
Critical areas of concern include the power to enter, inspect and search premises. The ability for inspectors to enter and inspect business premises could lead to the unjustified disruption of private enterprise. Businesses could face unannounced visits, and the grounds for such inspections are not clearly defined. With inspectors being granted such broad powers, businesses are left with little recourse but to defend themselves from arbitrary actions.
These provisions raise important questions about the lack of checks and balances. If they are not amended, we risk unqualified officials, or indeed rogue Ministers, wielding immense power over the activities of business. The Bill does not clearly define the criteria for suspicion or provide procedural safeguards for businesses that may be unjustly targeted.
These broad and overreaching powers will create an environment of uncertainty, and the business climate will be negatively affected as companies may be reluctant to innovate or expand their operations if they fear arbitrary inspections and product seizures. As businesses divert resources from innovation and growth to compliance and legal defence, the economy will suffer. We believe that investors will be more hesitant to invest in markets where the regulatory environment is unclear and businesses are at risk of having their products arbitrarily seized or destroyed. The result will be a decline in competition, a stagnation in product development and, ultimately, higher costs for consumers as market dynamics are stifled.
I could go on, but I shall turn to Amendment 66. The issue with the provision to which the amendment relates lies in the lack of clarity regarding the term “others”. This vague wording creates the possibility for the law to impose unnecessary and broad obligations on businesses or individuals, with no clear definition of who constitutes “others”. Who are they?
It is vital that the Government establish the precise scope of this requirement in order to ensure that businesses are not overburdened or faced with unreasonable demands that may lead to unintended consequences. This subsection could lead to unnecessary warnings to a number of stakeholders, some relevant and some not. After a
careful reading of this clause, the Government’s claim regarding clarity for business is more of a soundbite, as opposed to anything grounded in truth. Does “others” refer to consumers, other businesses, specific industry groups or even the general public? This wording could result in misunderstanding by both business and enforcement authorities, again leading to unnecessary warnings being issued. A company could be required to post warnings on all platforms, inform all stakeholders or even issue blanket public alerts, when the risk may be relevant to only a specific group or sector.
Turning to Amendment 67, the primary issue with subsection (7) is the lack of clarity about exactly what will be considered non-compliance under the regulations. The Secretary of State, a relevant authority or potentially any other person or body could be given the power to decide what constitutes non-compliance, without businesses knowing who is making this determination or on what grounds. For businesses to operate effectively, they need clear guidelines, as we have discussed many times, on what constitutes compliance and non-compliance. This is not just an issue of understanding the law; it is critical for businesses to be able to plan, operate and ensure safety. The vagueness of non-compliance opens the door to unpredictable and arbitrary enforcement. One critical question the Government must address is the distinction between suspected non-compliance and non-compliance. Again, what is the threshold for suspicion? The fact that the Government are introducing regulations for both these situations suggests that they believe there is a distinction, but they have not provided the clarity we seek.
The Bill also allows for sanctions based on failure to co-operate with the relevant authority or inspector, but what does this mean in practice? Does it mean a minor delay in documentation or a misunderstanding over procedures, or does it require full co-operation under any and all circumstances? Again, without clear definitions and procedures, businesses could be penalised for circumstances outside their control or in situations where they made a good-faith effort to comply. The lack of clarity on what constitutes co-operation again leaves businesses vulnerable to arbitrary enforcement.
Just like Clauses 1 and 2, Clause 3 should either be removed from the Bill, as recommended by the DPRRC, or heavily rewritten.
I thank the noble Lord, Lord Foster, for his Amendment 70, which would allow consumers to bring a claim against an online marketplace for products that have caused harm. I suggest that this amendment was tabled because of the lack of clarity in Clause 3, which I have just outlined at some length. If there are going to be regulations in place for products, there should also be regulations to ensure protection for consumers who are victims of an online marketplace failing to adhere to product safety. I recognise that the Government’s intentions are good. We all wish to protect consumers, but the Bill includes little or no information about how consumers are compensated. That shows a lack of preparation for the Bill. We urge the Government to have regard for consumers, and we look forward to debating this in future days in Committee.
Noble Lords will be pleased to know that I am going to keep it briefer on metrology. The provision made in Clause 6 is basically identical in all material respects to that made in Clause 3 with respect to the enforcement of product regulations. As again highlighted by the DPRRC, Clause 6 is an example of skeleton legislation. The DPRRC states that this clause contains
“almost no substance about units of measurement and the quantities in which goods must or may be marketed”.
This is simply unacceptable. There is no requirement for consultation. How can the Government justify that? The Government’s response in their letter of 30 October is not comprehensive enough. They claim that these broad powers are necessary as a result of existing legislation being inadequate and there being barriers to enforcement, but they must explain why there should be little to no parliamentary scrutiny and no requirement for consultation on the units or on goods and services.
Turning to my Amendments 83, 84, 86, 88 and 89, we find that Clause 6 contains the same fundamental flaws I have already addressed. I intend to highlight only Amendment 88, because it relates to subsection (6), which states:
“Provision described in subsection (3)(c) or (d) may include provision conferring power on a relevant authority by notice to require a person to do or cease to do something”.
As I read that “something” repeatedly, looking for a glimmer of hope, it dawned on me that that phrase sums up the objections of the DPRRC, the Constitution Committee and these Benches. That might be the worst piece of legislative drafting I have ever seen—and having been at the Home Office, I have seen a bit. If your Lordships think about the possible nasty consequences of this, I think we deserve a definition of all the phrases I have outlined. They are too vague and too broad. What does “something” mean? I appreciate that it relates to subsections (3)(c) and (d), but it is very unclear.
I urge the Government to take the amendments on enforcement very seriously. We realise that the Government’s intentions are good, but unless the clauses are heavily rewritten, we will return to them on Report.