There is a reliable rule in Whitehall that if you do not want people to pay attention to something, you should make it sound as boring as possible. A case in point: today the House of Commons will consider for the first time the Product Regulation and Metrology Bill, a compact, 15-clause proposal which originated in the House of Lords.
It sounds dry and technical, the sort of measure time-poor MPs can safely ignore, but that is misleading. This modest-seeming Bill is a sweeping power-grab by ministers which would give the Government the ability to alter standards, regulations and trade significantly, with minimal oversight by Parliament.
The Bill allows the Government to make new regulations relating to the marketing and use of products sold in the UK and the way they are measured. It also allows for new criminal offences and civil sanctions for breaching such new regulations. The policy objective behind this is to allow the Government to align more closely with EU standards, given that our existing regulatory framework is largely EU-derived after 47 years of membership, and to maintain that closeness, what is called ‘dynamic alignment’.
Crucially, these new regulations will be introduced as secondary legislation, subject to far less parliamentary scrutiny than primary legislation. The initiative will come from the Business and Trade Secretary, advised by the Office for Product Safety and Standards, presumably not one of the ‘regulatory weeds’ or ‘blockers’ the Prime Minister has railed against.
The difference between primary and secondary legislation is not a minor or technical one. Primary legislation – bills – go through a multi-stage process of examination in each House with several days dedicated to their scrutiny. Regulations, which are secondary legislation, receive very different treatment: some simply come into force if no-one registers an objection, while others will be considered by a committee which can only approve or reject rather than amend them. Usually there is up to 90 minutes for this, though the shortest such committee I ever clerked in the House of Commons lasted for three minutes.
Last October, the House of Lords Delegated Powers and Regulatory Reform Committee expressed considerable reservations about the extent of the powers it would give ministers. It concluded that the Government had not explained why these broad powers were needed, and was especially critical of the inclusion of so-called ‘Henry VIII powers’, which allow ministers to amend primary legislation by using secondary legislation.
To its credit, the Government has made some concessions on the Bill so far. It has added a statutory requirement to consult on changes to regulations; it has cut down the Henry VIII powers; and it has made more of its provisions subject to affirmative procedure, which at least guarantees a committee debate, rather than negative procedure which is engaged only in the case of a formal objection.
However, despite these minor concessions, the central objections to the Bill remain valid. It has very broad purposes which are worded so blandly that they might apply to almost any situation, and it excludes only a few sectors like food, military equipment and medicines. Within this extensive area, the Government can make policy with virtually no formal checks or accountability. It remains in essence a skeleton bill, the Government expecting us to trust that it will fill in the details in due course and good faith.
Even if ministers did seek to use these powers for dynamic alignment with European regulation, it would be a partial, measly victory. The UK could voluntarily copy and paste Brussels standards into our own rulebook, and the EU would still not waive regulatory checks at the border of the Single Market. It is like volunteering to jump, asking how high and obliging, then being told that your jump was not officially registered.
This is not a uniquely bad Bill, but it perpetuates a growing trend to move effective decision-making from the legislature to the executive. An eminent lawyer expressed it recently like this:
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 I have already outlined, but also at the cardinal principles of accessibility and legal certainty.
That eminent lawyer was Lord Hermer, the Attorney General and the Government’s own legal adviser. And he was right.
The Product Regulation and Metrology Bill creates the possibility of greater regulation imposed almost unilaterally to achieve ends which have not been clearly explained. It is bad for Parliament, bad for business and bad for transparency and accountability. It is the absolute embodiment of a technocratic elite telling us not to worry because everything is under control and will be for our own eventual good.
That is no longer good enough. Ministers have no good will left with the public and will not be given the benefit of the doubt. The Prime Minister professes a belief in the virtues of deregulation, yet he still wants what he calls an ‘active’ state. It is an ideologically garbled stance, but if Starmer seeks to resolve its contradictions, he cannot do so behind closed doors. Stop this secretive mess of a Bill and start again.
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