Lord Lansley (Con)

My Lords, having supported Amendment 2—unsuccessfully—I now have the opportunity to move Amendment 3. The noble Lord, Lord Fox, and I both slightly anticipated some of the arguments in the previous group, but we very much look forward to him speaking to his amendments in this group. I will speak to two sets of amendments: Amendments 3 and 12, which are linked, and then Amendment 28, which is to a separate and different purpose. Amendment 3 would insert into the regulation-making power a requirement that the regulation should have the purpose of “securing that products to which this section applies are safe”. Where does this come from? As noble Lords may recall from the previous group, the amendment seeks to reinsert into this legislation the same provision that is in Section 11 of the Consumer Protection Act 1987. As we discovered from the Minister in the previous group, the Government are going to remove Part II of the Consumer Protection Act 1987; they will not simply have a consequential power to amend it but, under this Bill, will remove it. I am not an expert on product safety legislation, but for nearly 40 years this provision has been in place and has been the basis for much of our product safety legislation until, broadly speaking, it was augmented or replaced by the general product safety regulations coming out of the European Union. Those regulations, through the assimilated legislation, are the basis on which much of our subordinate legislation has been created for product safety. Why do I want to do this? I freely admit why I am moving my amendment and have already told the Minister so. Partly, I am trying to find out why the Government believe that the language of the Bill—which, as noble Lords will recall, is that it should have the purpose of “reducing or mitigating risks presented by products”— is a better construction than the proposition that products should be safe; it is certainly different. The noble Lord, Lord Fox, in the debate on the previous group, helpfully used a very straightforward analogy: when he uses his lawn-mower, he wants it to be safe. I do not think, if I may paraphrase him, that he wants to stand there, with the lawn-mower going across his toe, and think, “I do wish that the Government had introduced regulations that mitigated the risk of this happening”; he wants it to be safe. I have included Amendment 12 because, of course, there is no point in putting the word “safe” back into the legislation unless one defines it. The Consumer Protection Act 1987 defines “safe”; for these purposes, I have amended that definition by taking out “goods” and inserting “products”, because that is consistent with the structure of this Bill, which relates to products. There has been case law that has found difficulty in the limitations of the interpretation of “goods”. Amendment 3 is there to ask Ministers whether it would not have been better—and it is not too late, in either this House or another place—to consider whether it might be straightforward to maintain the intention that products should be safe, and define “safe”, alongside the reduction and mitigation of risk? There is arguably—only arguably—a difference between the two. I know that when you use different language in legislation you are generally thought to be intending to secure a different objective. Since we are, in this Bill, removing the requirement for products to be safe, and inserting a requirement for products to have their risks reduced or mitigated, I suppose there is a difference that is more than semantic between these two constructions. If the Minister can assure us that they will, in effect and in reality, mean the same thing, then I will not press my amendment. I turn to Amendment 28, which proposes a new clause. Its purpose is to build on what is in the Bill about the regulation of online marketplaces. There is some rather helpful material in Clause 2(3)(d) which brings online marketplaces within the scope of the product regulation and product requirements. Amendment 49 to Clause 10, which we have not yet reached, also helpfully clarifies the definition of online marketplaces. That is all good news. However, none of that would change the fact that limitations remain in relation to the determination of liability for unsafe or defective products that are sold through intermediary online marketplaces. I do not need to tell the House of the increasing use of online marketplaces, or that many of them are not necessarily domiciled in the United Kingdom. In Committee, the Minister, in response to a helpful amendment from the noble Lord, Lord Foster of Bath, said: “The primary route to seek damages for harm caused by defective products is through the Consumer Protection Act 1987”— I should point out this is a different part of the Consumer Protection Act 1987 from those parts which are to be deleted by this Bill. The Minister went on to say: “My department is currently reviewing this legislation and we will consider the UK’s product liability regime holistically”.—[Official Report, 27/11/24; col. GC 232.] However, we have here a situation which is very similar to that in relation to product regulation generally, but in relation to product liability: the European Union has moved and we have not moved with it. I am not making an argument for dynamic alignment—the Minister laughs as he knows I have never been one for dynamic alignment in these debates—but I can see the merit in our ability to align where it is in our interests to do so. There is clearly a problem. Under the existing legislation, the liability applies to the producer of the product, somebody who holds themselves to be the producer —for example, through trademark—or the importer. That does not necessarily apply to online marketplaces, which often do not fit within any of those definitions.