My Lords, I thank all noble Lords for their detailed consideration of the Bill, and especially the noble Lord, Lord Sharpe, for his thorough
exposition of his amendments, based on his experience at the Home Office and previously as an enforcement officer. He obviously knows a lot about the various amendments he has tabled.
I hope to clarify the Government’s position and explain the reasons behind the approach we have taken. First, I will address the use of delegated powers in the Bill, noting the concerns of the Committee.
Product regulation must legislate for innumerable kinds of products, ranging from heavy machinery to children’s toys. This is best done through regulation, due to the amount of very technical and scientific detail required. In some cases, sectors can be covered by general requirements. However, often they require specific tailored regulations that recognise their individual requirements. For example, a penalty for failure to properly mark a product “harm suffered” is likely be different when comparing a highly sensitive product in a nuclear energy installation versus a lower-risk product.
To proportionately reflect the dangers of a sector, requirements, enforcement powers, offences and penalties must be tailored. This is how the regulators operate at the moment, with over 2,500 pages of technical product safety regulation on the statute book. Alongside reviewing this existing legislation, we will need to consider on an ongoing basis whether there are emerging products or hazards that would benefit from specific rules.
Product regulation is a regulatory area that we have seen go through significant disruptive change with the growth of e-commerce, and this looks set to continue with AI and 3D printing. The activities conducted by different kinds of businesses have changed as well. The spine of the existing system was codified in primary legislation based on bricks-and-mortar businesses, and that led to uncertainties and gaps in duties, penalties and enforcement powers.
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I hope that goes some small way towards clarifying that, while I have the utmost respect for noble Lords’ concerns about the rule of law and the principle of legal certainty, we have constructed powers that support and are led by the rule of law’s need for precision and proportionality both now and in future. Through secondary regulations, we can make crystal clear responsibilities and proportionate penalties, and we can keep regulations up to date as products and business models evolve. However, I recognise the concerns raised by all noble Lords about delegated powers, and I assure them that we listen carefully to their points and will continue to engage constructively on these matters.
I turn to Amendments 64 and 65 and the concerns they reflect regarding enforcement authorities’ resources. As we recognised at Second Reading, enforcement authorities, particularly local authority trading standards, do crucial work with sometimes limited resources. Existing complex legislation can drain trading standards’ resources. The Government intend to consolidate and simplify where possible, giving enforcement authorities more time for enforcement. The provision of civil monetary penalties will also give trading standards more efficient penalties for certain offences, as well as
easing pressure on the courts. Furthermore, Clause 8 enables the implementation of cost recovery powers for enforcement authorities.
In addition, the Office for Product Safety and Standards will continue to support trading standards. This support includes training, access to experts, direct support on some cases, and ring-fenced funding for specific projects. The OPSS also undertakes enforcement on nationally significant cases. In 2022, after conducting safety testing, it issued a product safety alert on a highly dangerous product: self-feeding baby pillows. Enforcement teams ensured the removal of 469 pillows from the market. However, local authority budgets are allocated by the Ministry of Housing, Communities and Local Government, and local authorities rightly have discretion over the use of that budget. These amendments potentially conflict with those arrangements.
On Amendment 65, enforcement authorities will not be left without powers. They will use existing powers until new enforcement regulations are implemented. When new regulations are implemented, enforcement authorities, including trading standards, will be named following existing responsibilities. Requiring that trading standards offices be named as relevant authorities within six months would serve only to place a limit on the amount of time available to develop regulations and ensure that they are robust.
I have been asked many times who the relevant authority will be under this regulation. Currently, the Bill provides that the relevant authority must exercise a public function. Under the current system, enforcement authorities include the Secretary of State, the Health and Safety Executive, local authorities and the Office for Nuclear Regulation.
Amendments 66, 67 and 89 seek further clarification of the Bill’s terminology. The term “others” in Clause 3(6)(a) should be taken to mean anyone whom a relevant authority believes should be warned, such as affected consumers. Non-compliance should be taken to occur when any product or metrology regulation is contravened. These terms are commonly used across many pieces of both general and product safety legislation and will be elucidated in regulations where necessary. Consequently, I ask that these amendments be withdrawn.
Amendment 70 seeks to introduce a legal framework for a consumer to bring a claim against an online marketplace for products that have caused harm. The primary route to seek damages for harm caused by defective products is through the Consumer Protection Act 1987. Depending upon the specific facts, an online marketplace may have responsibility under this legislation. My department is currently reviewing this legislation and we will consider the UK’s product liability regime holistically, including the question of how it should apply to online marketplaces. This is not a change that we would seek to make without considering all the evidence, which is why we cannot accept this amendment.
On Amendment 85, I reassure the Committee that we understand the importance of ensuring accurate measurement standards for consumer protection and confidence in commercial transactions. The Bill includes the necessary provisions to enable enforcement of metrology regulations. Clause 6 is drafted sufficiently broadly to empower relevant authorities to inspect, test,
investigate and act. Weighing and measuring instruments are products in their own right and are covered by Clauses 1 and 3.
I move on to Amendment 97 and reassure noble Lords that there is no plan to dilute the current protections that consumers enjoy under the existing product safety framework. The Bill will support changes to technical regulations based on scientific evidence and robust risk profiles. The inclusion of this amendment may in fact undermine the ability to strengthen our technical regulations in the future.
I turn to Amendment 109. The purpose of Clause 8 is to enable relevant authorities to recover the costs of their enforcement activities. The fees collected through cost-recovery powers are intended to meet the costs already incurred in the process of enforcement activity. It follows that enforcement authorities will be able to take other and more action if recouping costs means that their activities become more financially sustainable. The precise circumstances where the use of those powers will be available, as well as the handling and redistribution of those funds between authorities, will be laid out in regulations that contain cost-recovery powers.
Amendments 29, 63 and 87 seek to ensure that enforcement regulations can include a power for relevant authorities to require a person to attend an interview and a power to withdraw products from the market. The powers set out under Clauses 3 and 6 cover the tabled amendments. The
“power to require a person to … provide … information”
does not specify whether information is to be provided orally or through paperwork. Powers under Clause 3(6)(d) explicitly mention the ability to withdraw products from the market. Further specification would only restrict the necessary flexibility of these powers.
The Bill also contains powers within Clause 3 that enable the introduction of the function described by the noble Lord, Lord Lucas. Suspension notices are already used by trading standards to remove products from the market while safety checks are being made. That function will continue.
I thank my noble friend Lady Crawley for her Amendments 31 and 98 on fulfilment houses. The intent of the Bill is to enable requirements to be introduced, tailored and updated appropriately to reflect the range of relevant supply chain actors and their activities—now and in the future. Clause 2(3) is therefore sufficiently broad to enable requirements to be introduced via the Bill’s powers on persons
“carrying out activities in relation to a product”,
including fulfilment houses, which are captured by Clause 2(3)(h). I therefore assure my noble friend that Amendments 31 and 98 are not necessary to achieve her aim.
Amendments 60 to 62, 83, 84, 86 and 88 seek to further clarify the role and function of relevant authorities and the powers that can be afforded to inspectors through product and metrology regulations. Those that may be designated as relevant authorities are restricted by Clauses 3(2) and 6(2) to only those authorities fulfilling a public function, such as local authorities and regulators, as my noble friend Lord Hunt mentioned earlier.
Any further specification would limit our ability to ensure that enforcement authorities can be equipped with necessary powers to enforce their areas of responsibility. Relevant authority and inspectors’ functions are outlined within Clause 3(3), 6(3), 3(4) and 6(4).