On 4 September 2024, the Product Regulation and Metrology Bill (the Bill) was introduced in the House of Lords. The Bill’s explanatory notes indicate that the Bill contains measures that relate to the UK product safety, regulation and metrology framework. Metrology relates to the system of weights and measures.
The Bill engages the Sewel Convention on legislative consent. As such, the Scottish Government lodged a legislative consent memorandum (LCM) on 24 September 2024.
This blog focuses on how the Bill interacts with the devolution framework and considers how the Bill may sit with the UK Internal Market Act 2020. A previous SPICe blog considers the Bill and EU alignment.
Does the Bill raise any challenges for devolution?
Although the Bill appears largely technical, the powers created for UK Ministers may be significant for devolved policy making. This is because clause 1 of the Bill delegates powers to UK Ministers which allow them to legislate (i.e. make law) in devolved policy areas without the need to seek the consent of, nor consult, the Scottish Parliament or Scottish Ministers. The clause 1 power is supplemented by clauses 2,3,4,7,8,9 and 11.
The Scotland Act 1998 (schedule 5, section C8) provides that technical standards, safety, labelling and product liability are reserved with some exceptions (food including in relation to food safety materials which come into contact with food, agriculture and horticultural production, fish and fish products and seeds, animal feeding stuffs, fertilisers and pesticides).
Although the schedule of the Bill excludes UK Ministers from making regulations on certain matters (food, feeding stuff and fertiliser, plants, fruit and fungi, animal by-products, products of animal origin, aircraft, military equipment, and medicines and medical devices) those excluded matters do not match the Scotland Act exclusions exactly. As such, the Bill gives the Secretary of State as a UK Minister, a power to act in devolved areas.
The Bill also appears to enable UK Ministers to make provision about more than ‘technical standards’ as it enables them to make regulations (a form of secondary legislation) for the purpose of ensuring product effectiveness and efficiency.
Weights and measures (metrology) are reserved by schedule 5 of the Scotland Act 1998.
The Constitution, Europe, External Affairs and Culture Committee (CEEAC Committee) stated in its report ‘How devolution is changing post EU’ (October 2023) that:
“The Committee has previously noted that there has been a significant step change in the approach to the use of delegated powers during the preparations for EU-exit and after EU-exit. Our view is that “the extent of UK Ministers’ new delegated powers in devolved areas amounts to a significant constitutional change. We have considerable concerns that this has happened and is continuing to happen on an ad hoc and iterative basis without any overarching consideration of the impact on how devolution works.”
“the increasing conferral of powers for UK Ministers to act in devolved areas is an important constitutional development which requires careful consideration, particularly to ensure that the responsibilities of the Scottish Parliament are properly respected.”
The lack of any consent requirement in the Bill as introduced is therefore a continuation of the trend identified by the CEEAC Committee towards UK Ministers taking powers to act in devolved areas without the need for consent.
The Scottish Government’s LCM states that:
“The Bill does not currently contain any consent mechanism which would prevent the Secretary of State from using the powers in devolved areas without the consent of Scottish Ministers even though this could lead to divergence from EU law on devolved matters and/or repeal Scottish legislation…
The Scottish Government does not therefore believe that the Bill in its current form incorporates mechanisms to recognise properly devolved responsibility for these matters. The Scottish Government is engaging with the UK Government on possible amendments to the bill to address these issues. For the moment the Scottish Government cannot recommend the Parliament consents to the bill, as reflected in our motion on legislative consent below, but the Scottish Government plans to lodge a supplementary legislative consent memorandum to inform Parliament of the outcomes of discussions with the UK Government.”
Scope of the powers given to UK Ministers
The Bill is largely an enabling Bill, meaning that it gives UK Ministers powers to change the law by secondary legislation. As the Delegated Powers Memorandum explains:
“The Bill gives new powers to the Secretary of State to create regulations for the marketing and supply of certain products in the United Kingdom to ensure the current product legislative framework is up to date and remains fit for purpose.”
As Professor Thomas Horsley of the University of Liverpool has, however, noted in a blog for the Constitutional Law Association (published 17 September 2024):
“despite its title, the PRMB covers more than just product safety standards and metrology. On the face of the Bill, the PRMB reaches into areas of devolved policymaking, notably environmental regulation. Clause 1, for example, proposes granting the UK Secretary of State the power to enact regulations on the marketing and use of products that correspond, or are similar, to EU laws ‘for the purpose of reducing or mitigating the environmental impact of products’ – a policy matter that is not reserved.”
Links to the UK Internal Market Act 2020
The Bill does not mention the UK Internal Market Act 2020 (UKIMA), but the Bill is concerned with the regulation of goods and, as such, it is linked to trade across the UK.
Given the lack of reference to the UKIMA in the Bill and its accompanying documents, it is unclear exactly how the two statutes (if the Bill is passed) will work together. The Scottish Government has, however, indicated its view that the Bill may mitigate some of the effects of UKIMA on devolved statutes. The legislative consent memorandum states that:
“The UK Government has been largely silent on the question of the Bill’s potential interaction with the Internal Market Act 2020, despite both instruments having a role in regulating domestic UK trade. In the Scottish Government’s view, powers under the Bill could, potentially, see some negative effects of the IMA on devolved law be mitigated, specifically on matters where the Scottish and UK Governments had a shared ambition to align with EU law.”
Sarah McKay, SPICe Research