United Kingdom Internal Market Bill
Monday 14th September 2020
(4 years, 8 months ago)
Commons ChamberUnited Kingdom Internal Market Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Notices of Amendments as at 11 September 2020 - (14 Sep 2020)
22:00 - The House divided: - Ayes: 213 / Noes: 349 - Question accordingly negatived.
22:15 - The House divided: - Ayes: 340 / Noes: 263 - Question accordingly agreed to.
22:30 - The House divided: - Ayes: 343 / Noes: 49 - Question accordingly agreed to.
Mr Speaker
I inform the House that the amendment in the name of Keir Starmer has been selected.
The Prime Minister (Boris Johnson)
I beg to move, That the Bill be now read a Second time—and that this House act to preserve one of the crucial achievements of the past three centuries, namely our British ability to trade freely across the whole of these islands.
The creation of our United Kingdom by the Acts of Union of 1707 and 1801 was not simply a political event, but an act of conscious economic integration that laid the foundations for the world’s first industrial revolution and the prosperity we enjoy today. When other countries in Europe stayed divided, we joined our fortunes together and allowed the invisible hand of the market to move Cornish pasties to Scotland, Scottish beef to Wales, Welsh beef to England, and Devonshire clotted cream to Northern Ireland or wherever else it might be enjoyed.
When we chose to join the EU back in 1973, we also thereby decided that the EU treaties should serve as the legal guarantor of these freedoms. Now that we have left the EU and the transition period is about to elapse, we need the armature of our law once again to preserve the arrangements on which so many jobs and livelihoods depend. That is the fundamental purpose of this Bill, which should be welcomed by everyone who cares about the sovereignty and integrity of our United Kingdom.
We shall provide the legal certainty relied upon by every business in our country, including, of course, in Northern Ireland. The manifesto on which this Government were elected last year promised business in Northern Ireland
“unfettered access to the rest of the UK”.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I am listening carefully to what the Prime Minister is saying, but why did one of his own distinguished Members describe his policy this week as “Nixonian Madman Theory”? Is the Prime Minister not deeply worried that his policies and approach are being compared to those of the disgraced former US President Richard Nixon, rather than someone like Winston Churchill?
The Prime Minister
Actually, I think that this Bill is essential for guaranteeing the economic and political integrity of the United Kingdom and simply sets out to achieve what the people of this country voted for when they supported our election manifesto: not only unfettered access from NI to GB and from GB to NI, but also—I quote from the manifesto—to
“maintain and strengthen the integrity and smooth operation of our internal market.”
The Prime Minister
I will not.
The Bill is designed to honour that pledge and maintain those freedoms. When we renegotiated our withdrawal agreement from the EU, we struck a careful balance to reflect Northern Ireland’s integral place in our United Kingdom, while preserving an open border with Ireland, with the express and paramount aim of protecting the Belfast/Good Friday agreement and the peace process. In good faith, we accepted certain obligations in the Northern Ireland protocol in order to give our European friends the assurances they sought on the integrity of their single market, while avoiding any change to the border on the island of Ireland. We agreed to conduct some light-touch processes on goods passing between Great Britain and Northern Ireland, in case they were transferred to the EU.
The Prime Minister
I give way to the hon. Gentleman, who knows a great deal about the subject.
Jim Shannon
This is a very important debate, as the Prime Minister and I know and as everyone in the House knows. Does he accept that the EU’s determination to use Northern Ireland as a stick to beat the UK with as punishment for daring to leave an institution that had no respect or concern for our people has been underlined by the behaviour of MEPs, and indeed of some in this House, as they seek again, against the will of the majority of people, to stop Brexit instead of doing the honourable thing: respecting the vote and the recent general election validation, taking care of the UK and putting our people first, as the Prime Minister has said he will do? This legislation is a way of doing that.
The Prime Minister
The intention of the Bill is clearly to stop any such use of the stick against this country, and that is what it does. It is a protection, it is a safety net, it is an insurance policy, and it is a very sensible measure.
In a spirit of reasonableness, we are conducting these checks in accordance with our obligations. We are creating the sanitary and phytosanitary processes required under the protocol and spending hundreds of millions of pounds on helping traders. Under this finely balanced arrangement, our EU friends agreed that Northern Ireland—this is a crucial point—would remain part of the customs territory of the United Kingdom, able to benefit from free trade deals with other countries, which we are now beginning to strike. It ensures that the majority of goods not at risk of travelling to the EU—and that is the majority of goods going from GB to Northern Ireland—do not have to pay tariffs.
But the details of this intricate deal and the obvious tensions between some of its provisions can only be resolved with a basic minimum of common sense and good will from all sides. I regret to have to tell the House that in recent months the EU has suggested that it is willing to go to extreme and unreasonable lengths, using the Northern Ireland protocol in a way that goes well beyond common sense simply to exert leverage against the UK in our negotiations for a free trade agreement. To take the most glaring example, the EU has said that if we fail to reach an agreement to its satisfaction, it might very well refuse to list the UK’s food and agricultural products for sale anywhere in the EU. It gets even worse, because under this protocol, that decision would create an instant and automatic prohibition on the transfer of our animal products from Great Britain to Northern Ireland. Our interlocutors on the other side are holding out the possibility of blockading food and agricultural transports within our own country.
Andrea Jenkyns (Morley and Outwood) (Con)
Does the Prime Minister agree that there is no greater obligation for MPs than to our voters, that the British people were told that no deal is better than a bad deal and we would prosper without a deal, and that given that the EU refuses to negotiate in good faith, we have no alternative but to legislate to protect our internal market?
The Prime Minister
My hon. Friend is entirely right. Absurd and self-defeating as that action would be, even as we debate this matter, the EU has not taken that particular revolver off the table. I hope that it will do so and that we can reach a Canada-style free trade agreement as well.
It is such an extraordinary threat, and it seems so incredible that the EU could do this, that we are not taking powers in this Bill to neutralise that threat, but we obviously reserve the right to do so if these threats persist, because I am afraid that they reveal the spirit in which some of our friends are currently minded to conduct these negotiations. It goes to what m’learned friends would call the intention of some of those involved in the talks. I think the mens rea—
Sir Robert Neill (Bromley and Chislehurst) (Con)
Will the Prime Minister give way?
Sir Robert Neill
I never object to another promotion.
I have listened carefully to what the Prime Minister says, but does he accept that were our interlocutors in the EU to behave in such an egregious fashion, which would clearly be objectionable and unacceptable to us, there is already provision under the withdrawal agreement for an arbitrary arrangement to be put in place? Were we to take reserve powers, does he accept that those reserve powers should be brought into force only as a final backstop if we have, in good faith, tried to act under the withdrawal agreement and are then frustrated? The timing under which they come into force is very important for our reputation as upholders of the rule of law.
The Prime Minister
My hon. Friend is absolutely right in what he says. He knows a great deal about this matter, and it is of great importance that we go through the legal procedures, as we will. As things stand, however, in addition to the potential blockade on agricultural goods, there are other avenues that the EU could explore if it is determined to interpret the protocol in absurd ways, and if it fails to negotiate in good faith. We must now take a package of protective powers in the Bill, and subsequently.
For example, there is the question of tariffs in the Irish sea. When we signed the protocol, we accepted that goods “at risk” of going from Great Britain into the EU via Northern Ireland should pay the EU tariff as they crossed the Irish sea—we accepted that—but that any goods staying within Northern Ireland would not do so. The protocol created a joint committee to identify, with the EU, which goods were at risk of going into Ireland. That sensible process was one achievement of our agreement, and our view is that that forum remains the best way of solving that question.
I am afraid that some in the EU are now relying on legal defaults to argue that every good is “at risk”, and therefore liable for tariffs. That would mean tariffs that could get as high as 90% by value on Scottish beef going to Northern Ireland, and moving not from Stranraer to Dublin but from Stranraer to Belfast within our United Kingdom. There would be tariffs of potentially more than 61% on Welsh lamb heading from Anglesey to Antrim, and of potentially more than 100% on clotted cream moving from Torridge—to pick a Devonshire town at random—to Larne. That is unreasonable and plainly against the spirit of that protocol.
The EU is threatening to carve tariff borders across our own country, to divide our land, to change the basic facts about the economic geography of the United Kingdom and, egregiously, to ride roughshod over its own commitment under article 4 of the protocol, whereby
“Northern Ireland is part of the customs territory of the United Kingdom.”
We cannot have a situation where the boundaries of our country could be dictated by a foreign power or international organisation. No British Prime Minister, no Government, and no Parliament could ever accept such an imposition.
Miss Sarah Dines (Derbyshire Dales) (Con)
How will my right hon. Friend ensure that Derbyshire Dales lamb, grown in our country, can be enjoyed by our fellow citizens in Northern Ireland, which is part of our country?
The Prime Minister
I thank my hon. Friend very much. The best way for us all to be sure that such lamb can be sold throughout the whole United Kingdom is to vote for this Bill, and to protect the economic integrity of the UK. [Interruption.] To answer the questions that are being shouted at me from a sedentary position, last year we signed the withdrawal agreement in the belief, which I still hold, that the EU would be reasonable. After everything that has recently happened, we must consider the alternative. We asked for reasonableness, common sense, and balance, and we still hope to achieve that through the joint committee process, in which we will always persevere, no matter what the provocation.
Jeremy Wright (Kenilworth and Southam) (Con)
I am grateful to my right hon. Friend for giving way, and I want to ask him, if I may, about the ministerial code. When I was the Attorney General in the previous Government, I was happy to confirm that the ministerial code obliged Ministers to comply with international as well as domestic law. This Bill will give Ministers overt authority to break international law. Has the position on the ministerial code changed?
The Prime Minister
No, not in the least. My right hon. and learned Friend can consult the Attorney General’s position on that. After all, what this Bill is simply seeking to do is insure and protect this country against the EU’s proven willingness—that is the crucial point—to use this delicately balanced protocol in ways for which it was never intended.
The Bill includes our first step to protect our country against such a contingency by creating a legal safety net taking powers in reserve, whereby Ministers can guarantee the integrity of our United Kingdom. I understand how some people will feel unease over the use of these powers, and I share that sentiment. I say to my right hon. and learned Friend that I have absolutely no desire to use these measures. They are an insurance policy, and if we reach agreement with our European friends, which I still believe is possible, they will never be invoked. Of course, it is the case that the passing of this Bill does not constitute the exercising of these powers.
The Prime Minister
If the powers were ever needed, Ministers would return to this House with a statutory instrument on which a vote—perhaps this is the question to which the hon. Gentleman is awaiting an answer—would be held. We would simultaneously pursue every possible redress—to get back to the point I was making to my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill)—under international law, as provided for in the protocol.
In addition to our steps in domestic law, if we had to make clear that we believed the EU was engaged in a material breach of its duties of good faith, as required and provided for under the withdrawal agreement and the Vienna convention on the law of treaties, we would seek an arbitration panel and consider safeguards under article 16 of the protocol.
It is a question not of if we meet our obligations, but of how we fulfil them. We must do so in a way that satisfies the fundamental purpose of the protocol, the Belfast Good Friday agreement and the constitutional position of Northern Ireland. We will work with the EU on all of these issues. Even if we have to use these powers, we will continue to engage with the joint committee so that any dispute is resolved as quickly and as amicably as possible, reconciling the integrity of the EU single market with Northern Ireland’s place in the UK’s customs territory.
What we cannot do now is tolerate a situation where our EU counterparts seriously believe that they have the power to break up our country. If that is what hon. Members on the Opposition Benches want them to have, then I am afraid that they are grievously mistaken. That illusion must be decently dispatched, and that is why these reserve powers are enshrined in the Bill.
In addition, the Bill will help deliver the single biggest transfer of powers to the devolved Administrations since their creation, covering a total of 160 different policy areas. Each devolved Administration will also be fully and equally involved in the oversight of the UK’s internal market through a new independent body, the Office for the Internal Market. The Bill will maintain our common cause of high standards, where we already go beyond the EU in areas ranging from health and safety to consumer and environmental protections.
Chris Bryant
May I take the Prime Minister back to the question asked by the former Attorney General, the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright)? It seems to me quintessential to the way we do our business that Ministers abide by the law. Indeed, the Justice Secretary is required by law to swear that he will uphold the rule of law. How, therefore, can the Prime Minister seriously advance a piece of legislation that says:
“regulations…are not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law”.
That is just gobbledegook, isn’t it? It is complete and utter nonsense.
The Prime Minister
I do not know whether the hon. Gentleman was listening, but I made it very clear that we do not relish the prospect of having to use these powers at all. We hope very much, as I said, that the EU will be reasonable, but any democratically elected Government of this country—indeed, I would say any MP representing the people of this country—must be obliged to do whatever he or she can to uphold the territorial integrity of this country. That is what we are doing. Furthermore, instead of UK taxpayers’ money being disbursed by the EU, this Bill, which is an excellent Bill, will allow the Government to invest billions of pounds across the whole of the UK to level up.
A year ago, this Parliament was deadlocked, exasperating the British people by its failure to fulfil their democratic wishes and, worst of all, by undermining our negotiators, as the right hon. Member for Leeds Central (Hilary Benn) will recall. Effectively, Parliament told the EU that if it played hardball, this House would oblige it by weakening our country’s hand and legally forbid our representatives from walking away from the negotiating table. I hope that this House will never make that mistake again. Instead, let us seize the opportunity presented by this Bill and send a message of unity and resolve. Let us say together to our European friends that we want a great future relationship and a fantastic free trade deal.
Steve Brine (Winchester) (Con)
The Prime Minister will remember that we have some history in this regard. I did not want us to leave with no agreement last year, and we fell out over that. But he was true to his word and we had an agreement.
We said in our manifesto:
“We will ensure that Northern Ireland’s businesses and producers enjoy unfettered access to the rest of the UK”.
Is it not the truth of the matter that the way to do that is either through this Bill or by agreeing the free trade agreement—the Canada-style deal—that the EU said was on the table and of which the Prime Minister said when he came into office, “Okay, they now seem to have stepped back from that”?
I thank the Prime Minister for saying that tonight is difficult for some of us, but this is an important piece of legislation. Will he assure me that it is still his policy and the policy of his Government to secure that FTA with the EU that it said it wanted and that we know we want?
The Prime Minister
I thank my hon. Friend for the spirit in which he asked his question and made that important point. He is absolutely right to focus on where we are now in our talks on the free trade agreement. It is by passing the Bill tonight and in subsequent days that we will make the possibility of that great free trade agreement more real and get it done sooner.
Therefore, with this Bill we will expedite a free trade agreement not only with our European friends and partners, but with friends and partners around the world; we will support jobs and growth throughout the whole United Kingdom; we will back our negotiators in Brussels; and, above all, we will protect the territorial integrity of the UK and the peace process in Northern Ireland. I urge the House to support the Bill and, as my hon. Friend the Member for Winchester (Steve Brine) rightly said, to get back to the business of securing a free trade agreement with our closest neighbours that we would all wish to see. I commend the Bill to the House.
Edward Miliband (Doncaster North) (Lab)
I beg to move an amendment, to leave out from “That” to the end of the Question and add:
“this House notes that the UK has left the EU; calls on the Government to get on with negotiating a trade deal with the EU; recognises that legislation is required to ensure the smooth, effective working of the internal market across the UK; but declines to give a Second Reading to the Internal Market Bill because this Bill undermines the Withdrawal Agreement already agreed by Parliament, re-opens discussion about the Northern Ireland Protocol that has already been settled, breaches international law, undermines the devolution settlements and would tarnish the UK’s global reputation as a law-abiding nation and the UK’s ability to enforce other international trade deals and protect jobs and the economy.”
There are two questions at the heart of the Bill and of why we will oppose it tonight. First, how do we get an internal market after 1 January within the UK while upholding the devolution settlements, which have been a vital part of our constitution for two decades and are essential to our Union? Secondly, will our country abide by the rule of law—a rules-based international order, for which we are famous around the world and have always stood up?
Those are not small questions. They go to the heart of who we are as a country and the character of this Government. Let me start with the first question. An internal market is vital for trade and jobs at home, but also for our ability to strike trade deals. It is the responsibility of the UK Government at Westminster to safeguard that market and legislate. On that, we agree with the Government. But that must be done while understanding that the governance of our country has changed in the last two decades. Two decades of devolution settlements reflect a decision that we would share power across our four nations, including devolving key powers over issues such as animal welfare, food safety and aspects of environmental legislation. We should legislate for an internal market, but in a way that respects the role and voice of devolved Governments in setting those standards. That is to respect the devolution settlement. From across the UK, we have heard that the Government are not doing that; that they want to legislate with a blunderbuss approach that does not do that and simply says that the lowest standard in one Parliament must become the standard for all, with no proper voice for devolved Governments. If the Westminster Government decided to lower standards, there would be no voice for the devolved nations, even in a discussion about those standards because the Government have decided not to legislate for common frameworks.
Ian Blackford (Ross, Skye and Lochaber) (SNP)
The right hon. Gentleman is getting to the nub of the matter. We have Joint Ministerial Committees, and huge progress had been made in the last few months on agreeing frameworks that would allow us to do exactly what the right hon. Gentleman asked for. Is not the right way to proceed through frameworks in agreement with the devolved Administrations, not the race to the bottom that we get with the Bill?
Edward Miliband
The right hon. Gentleman and I come from different positions. I want to respect the devolution settlements that uphold the Union and he has a different point of view, but on this matter we should be legislating for common frameworks. That would be the way to respect devolution. I do not know whether the Prime Minister even understands the legislation—I know he has many things on his plate—but I am sorry to say that on this issue, the Government’s approach has been cavalier. Since 2017, common frameworks have developed and the Government could have legislated for that. We will seek to do that during the Bill’s passage.
The issues were prefigured in the White Paper. Since then, we have an even bigger question to confront. Let me say at the outset that we want the smoothest trade across our United Kingdom, including Northern Ireland. There is a way to resolve those issues in the Joint Committee set up for that purpose. I have to say that, from a man who said he wanted to get Brexit done and won an election on it, the Bill gets Brexit undone by overturning key aspects of the protocol that were agreed.
I have been part of many issues of contention across the Dispatch Box, but I never thought that respecting international law would be a matter of disagreement in my lifetime. As Leader of the Opposition, I stood opposite the Prime Minister’s predecessor David Cameron for five years. I do not know why the Prime Minister is rolling his eyes. I disagreed with David Cameron profoundly on many issues, but I could never have imagined him coming along and saying, “We are going to legislate to break international law” on an agreement that we had signed as a country less than a year earlier. Yet that is what the Bill does, in the Government’s own words.
I want to address three questions at the heart of the matter. Is it right to threaten to break the law in the way the Government propose? Is it necessary to do so? Will it help our country? The answer to each question is no. Let us remember the context and the principle. If there is one thing that we are known for around the world, it is the rule of law. This is the country of Magna Carta; the country that is known for being the mother of all Parliaments; and the country that, out of the darkness of the second world war, helped found the United Nations. Our global reputation for rule making, not rule breaking, is one of the reasons that we are so respected around the world. When people think of Britain, they think of the rule of law. Despite what the Prime Minister said in his speech, let us be clear that this is not an argument about remain versus leave. It is an argument about right versus wrong.
The Brexiteer and former Chancellor of the Exchequer, Lord Lamont, says that the Bill is impossible to defend. The Brexiteer and former Attorney General who helped to negotiate and sign off this deal as Attorney General says that the Bill is “unconscionable”. And the Brexiteer Lord Howard—the Prime Minister’s former boss—said this:
“I never thought it was a thing I’d hear a British minister, far less a Conservative minister, say, which is that the government was going to invite parliament to act in breach of international law…We have a reputation for probity, for upholding the rule of law, and it’s a reputation that is very precious and ought to be safeguarded, and I am afraid it was severely damaged…by the bill”.
Sir Bernard Jenkin (Harwich and North Essex) (Con)
Does the right hon. Gentleman think that the EU has been negotiating in good faith?
Edward Miliband
It is very interesting that the hon. Gentleman should say that because a report came out today from the Northern Ireland Affairs Committee, which is chaired by a Conservative Member. This is what the report says and this is my answer to him:
“These talks began in March and continued throughout the summer in a spirit of good faith and mutual respect for the delicate arrangements in Northern Ireland.”
That is what the Conservative-controlled Select Committee says about this issue.
The Prime Minister has said many times that he wants to bring unity to the country during his premiership. I therefore congratulate him on having, in just one short year, united his five predecessors. Unfortunately, their point of agreement is that he is trashing the reputation of this country and trashing the reputation of his office. Why are these five former Prime Ministers so united on this point? It is because they know that our moral authority in the world comes from our commitment to the rule of law and keeping our word. We rightly condemn China when it rides roughshod over the treaties dictating the future of Hong Kong. We say it signed them in good faith, that it is going back on its word and that it cannot be trusted. And his defence? “Don’t worry; I can’t be trusted either.” What will China say to us from now on? What will it throw back at us—that we, too, do not keep to international law?
Edward Miliband
Actually, yes we do, and I will tell the hon. Lady why. We respect the fact that the Conservative party, under this Prime Minister, won the election. He got his mandate to deliver his Brexit deal: the thing that he said was—I am sure she recalls this because it was probably on her leaflets—“oven ready”. It is not me who is coming along and saying it is half-baked; it is him. He is saying, “The deal that I signed and agreed is actually—what’s the word? Ambiguous. Problematic.” I will get to this later in my speech, but I wonder whether he actually read the deal in the first place.
Ms Angela Eagle (Wallasey) (Lab)
My right hon. Friend is making an extremely good speech. Would he perhaps tell the House who on earth might have signed this terrible deal with so many ambiguities less than nine months ago?
Edward Miliband
My hon. Friend makes an important point; I do believe it was the Prime Minister who signed the deal.
In fairness to the Prime Minister, I want to deal with each of the arguments that the Government have made in the last few days for this action. It is quite hard to keep count of the different arguments—you know you are losing the argument when you keep making lots of different arguments—but I want to give the House the top five. First, let us deal with the argument about blockades, which made its first outing in The Telegraph on Saturday through the Prime Minister, and obviously it made a big appearance today.
I have to say, I did not like the ramping up of the rhetoric from the European Union on Thursday, following the Prime Minister’s publication of this Bill, but even by the standards of the Prime Minister, this is as ridiculous an argument as I have ever heard. Let me let me explain to him why—the point was very well made by the former Attorney General this morning. This is what article 16 of the protocol says:
“If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures.”
In other words, let us just say that this threat somehow materialised—and by the way, I believe that Department for Environment, Food and Rural Affairs officials would have to implement it, making it even more absurd that it would happen. If the threat materialised, it is not overturning the protocol that is the right thing to do; it is upholding the protocol, as article 16 says. But do not take my word for it, Madam Deputy Speaker; take the word of the former Attorney General—who definitely read the protocol—who wrote this morning:
“There are clear and lawful responses available to Her Majesty’s government”.
As if that was not enough, there is also an irony here—the Prime Minister tried to slip this in; I do not know whether the House noticed—which is that this Bill does precisely nothing to address the issue of the transport of food from Great Britain to Northern Ireland. It is about two issues where the Government are going to override international law: exit declarations, Northern Ireland to GB, and the definition of state aid relating to Northern Ireland. If the Prime Minister wants to tell us that there is another part of the Bill that I have not noticed that will deal with this supposed threat of blockade, I will very happily give way to him. I am sure he has read it; I am sure he knows it in detail, because he is a details man. Come on, tell us: what clause protects against the threat, which he says he is worried about, to GB-to-Northern Ireland exports? I give way to him. [Interruption.]
Madam Deputy Speaker (Dame Eleanor Laing)
Order. The right hon. Gentleman cannot give way unless he is asked to.
Edward Miliband
There you have it: he didn’t read the protocol, he hasn’t read the Bill, he doesn’t know his stuff.
Let us deal with the second bogus argument. The Prime Minister claimed on Wednesday that it was necessary to protect the Good Friday agreement. The first outing for that argument was on Wednesday, at Prime Minister’s questions. I have to say to him, I would rather trust the authors of the Good Friday agreement than the Prime Minister, who has prominent members of the Government who opposed the agreement at the time. However, this is what John Major and Tony Blair wrote—[Interruption.] They don’t like John Major. They said that the Bill
“puts the Good Friday agreement at risk”—
[Interruption]—this is very serious—
“because it negates the predictability, political stability and legal clarity that are integral to the delicate balance between the north and south of Ireland that is at the core of the peace process.”
These are very important words from two former Prime Ministers, both of whom helped to win us peace in Northern Ireland. The Prime Minister may not want to believe them, but he will, I hope, believe himself—[Laughter]—maybe not—because this is what he said about the Northern Ireland protocol:
“there are particular circumstances in Northern Ireland at the border that deserve particular respect and sensitivity, and that is what they have received in the deal.”
It is
“a great deal for Northern Ireland.”—[Official Report, 19 October 2019; Vol. 666, c. 578-579.]
I do not understand this. He signed the deal. It is his deal. It is the deal that he said would protect the people of Northern Ireland. I have to say to him, this is not just legislative hooliganism on any issue; it is on one of the most sensitive issues of all. I think we should take the word of two former Prime Ministers of this country who helped to secure peace in Northern Ireland.
Sammy Wilson (East Antrim) (DUP)
Before the shadow spokesman lectures the Prime Minister about reading documentation or starts lecturing us about the Good Friday agreement, does he not recognise, first of all, that the Good Friday agreement talks about the principle of consent to change the constitutional position of Northern Ireland, which is what this protocol does? The Good Friday agreement has within it a mechanism to safeguard the minorities in Northern Ireland through a cross-community vote, which again the protocol removed. So before he starts talking about the threats to the Good Friday agreement, does he not recognise that the protocol was a threat to it in the first place?
Edward Miliband
The right hon. Gentleman did not like the protocol at all. He would rather have not had the protocol. He and I just have a disagreement on this issue. I believe it was necessary to make special arrangements for Northern Ireland, or for the UK to be in the EU customs union to avoid a hard border in Ireland. That is why the Prime Minister came along and said the protocol was the right thing to do.
Let me deal with the third excuse we heard. This is the “It was all a bit of a rush” excuse. As the Prime Minister said in his article, times were “torrid” and there were “serious misunderstandings”. He tries to pretend that this is some new issue, but they have been warned for months about the way the protocol would work. The Chancellor of the Duchy of Lancaster, who is sitting in his place, was warned at the Select Committee in March and was asked about these issues. The Business Secretary was written to by the House of Lords Committee in April.
Let us just get this straight for a minute, because I think it is important to take a step back. The Prime Minister is coming to the House to tell us today that his flagship achievement—the deal he told us was a triumph, the deal he said was oven-ready, the deal on which he fought and won the general election—is now contradictory and ambiguous. What incompetence. What failure of governance. How dare he try to blame everyone else? I say to the Prime Minister that this time he cannot blame the right hon. Member for Maidenhead (Mrs May), he cannot blame John Major, he cannot blame the judges, he cannot blame the civil servants, he cannot sack the Cabinet Secretary again. There is only one person responsible for it and that is him. This is his deal. It is his mess. It is his failure. For the first time in his life, it is time to take responsibility. It is time to ’fess up: either he was not straight with the country about the deal in the first place, or he did not understand it.
A competent Government would never have entered into a binding agreement with provisions they could not live with. If such a Government somehow missed the point but woke up later, they would do what any competent business would do after it realised it could not live with the terms of a contract: they would negotiate a way out in good faith. That is why this is all so unnecessary. There is a mechanism designed for exactly this purpose in the agreement: the Joint Committee on the Northern Ireland protocol. What did the Chancellor of the Duchy of Lancaster say on 11 March at the Committee on the Future Relationship with the European Union? He will recall that he was asked about state aid. He said:
“the effective working of the protocol is a matter for the Joint Committee to resolve.”
The remaining issues to which the Bill speaks are not insignificant, but nor are they insurmountable, and that is the right way to pursue them, not an attempt at illegality.
Let me come back to the excuses. Fourthly, on Sunday, there was the Justice Secretary’s “the fire alarm” defence: “We don’t want to have to do this, but we might have to.” I want to be clear with the House about something very, very important about a decision to pass the Bill. I have great respect for the hon. Member for Bromley and Chislehurst (Sir Robert Neill), but I want to make this point. The very act of passing the Bill is itself a breach of international law. It would be wrong for hon. and right hon. Members on either side of the House to be under any illusions about that as they decide which Lobby to go into tonight. If we pass the Bill, even if there is a nod and a wink from the Prime Minister to the hon. Member for Bromley and Chislehurst, we equip the Government with the power to break the law. That in itself is a breach of the Northern Ireland protocol and therefore a breach of international law.
Sir Robert Neill
I have listened carefully to the right hon. Member’s formulation and I understand much of what he says. However, an Act passed by this House only becomes law when it comes into force. He will be right, I submit, to say that as soon as any of these provisions came into force we would potentially breach international law. That is not quite the same thing, as I think he would fairly concede.
Edward Miliband
That is not a risk we are going to take.
So the fire alarm defence simply does not work. The last defence was floated as a trial balloon, one might say, by the Northern Ireland Secretary last Tuesday, I believe. He said it was a breach of the law in a “specific and limited way.” That really is a new way of thinking about legal questions. It now turns out that breaking the law specifically and in a limited way is a reasonable defence for this Government. We have all heard of self-defence, the alibi defence, the innocence defence; now we have the Johnson defence: you can break the law, but in a specific and limited way.
Think about the grave context we face. The Home Secretary is in today’s newspapers warning everyone, “You must abide by the law.” On this, she is absolutely right. She says,
“I know that, as part of our national effort, the law-abiding majority will stick to these new rules. But there will be a small minority who do not”.
You couldn’t make it up. What she does not say in the article, but what we now know about this Government, is that the Johnson defence means something very specific: there is one rule for the British public and another rule for this Government. Pioneered by Cummings, implemented by Johnson—that is the Johnson rule.
This is the wrong thing to do. It is not necessary and it is deeply damaging to this country. Let us think about the impact on our country in the negotiations. The Government’s hope is that it will make a deal more likely, but that relies on the notion that reneging on a deal we made less than a year ago with the party we are negotiating with now will make that party more likely to trust us, not less. Think about our everyday lives: suppose we made an agreement with someone a year ago and we were seeking to have another negotiation with them; if we had unilaterally reneged on the first deal we made, would it make them more likely to trust us, or less likely? Obviously, it would make them less likely to trust us.
We know the risks. I very much hope the Prime Minister gets a deal. As a country, we absolutely need a deal. We know the risks of no deal if this strategy goes wrong. The Prime Minister said last week that no deal is somehow “a good outcome”. He is wrong. I hear all the time from businesses—I am sure the Business Secretary, who is in his place, does too—that are deeply worried about the danger of no deal. I know what the Prime Minister thinks about the views of business, thanks to his four-letter rant, but this is what businesses have to say. Nissan says there could be no guarantee about its Sunderland plant if there were tariffs on UK to EU trade. Ford says that no deal would be disastrous. The NFU says it would be catastrophic for British farming—indeed, the Chancellor of the Duchy of Lancaster, when he was Secretary of State for Environment, Food and Rural Affairs, said the same thing. We are in the biggest economic crisis for 300 years, the biggest public health crisis for 100 years. No deal is not some game; it is about the livelihoods of millions of people across our country.
What about the prized trade deal with the United States? I know the Prime Minister thinks he has a friend in President Trump, but even he must recognise the necessity of being able to deal with both sides. The Speaker of the House of Representatives, Nancy Pelosi, said:
“The UK must respect the Northern Ireland Protocol as signed with the EU… If the UK violates that international treaty and Brexit undermines the Good Friday accord, there will be absolutely no chance of a US-UK trade agreement passing the Congress.”
This is the signal that we—the country known for the rule of law, the country that abides by the law, the country that founded international law—are sending to our friends and allies around the world. That is why we cannot support the Bill.
The Government must go back, remove the provisions breaking international law and ensure that the Bill works in a way that respects the devolution settlements. That is what a responsible, competent and law-abiding Government would do. This is a pivotal moment to determine the future of our country—who we are and how we operate. In shaping that future, we have to stand up for the traditions that matter: our commitment to the rule of law. The Bill speaks of a Government and a Prime Minister who are casual, not to say cavalier and reckless, about the gravity of the issues confronting them. The Prime Minister should be focusing on securing a Brexit deal, not breaking international law and risking no deal. He is cavalier on international law and cavalier on our traditions. This is not the serious leadership we need, and it is why we will oppose the Bill tonight.
Several hon. Members rose—
Madam Deputy Speaker (Dame Eleanor Laing)
Before I call the Chairman of the European Scrutiny Committee, I should draw to the attention of the House that 100 Members are hoping to catch my eye from the Back Benches. It will not be possible to call everyone, but in order to allow as many people as possible to participate in such an important debate, we will have a time limit of four minutes with immediate effect. I call Sir William Cash.
Sir William Cash (Stone) (Con)
It would be unconscionable for us to have left the EU lawfully, which the EU has accepted, and then allow it to threaten us and strangle our jobs and businesses by imposing unfair state aid rules that go much wider than traditional subsidies, and then for it to seek unwarranted legal action when we are properly defending our national, economic and political sovereignty. If so, we would become a neutered, trivial Lilliput—an enslaved economic satellite of the EU. No UK Parliament could allow itself to be so prostrated. We won the referendum and the general election across the country because voters wanted to leave the EU and free ourselves from undemocratic rule from Brussels and from majority voting, and to regain our right to govern ourselves and our economic freedom. This Bill guarantees that promise to them and maintains the Union.
International law comes in all shapes and sizes. There are many instances of express override in UK statute law. The EU itself sometimes breaks international law, including refusing certain compliance with World Trade Organisation rules. EU retaliation by a blockade would be utterly unlawful. Even the Belfast agreement contains “notwithstanding” provisions, as does USA statute law. The express powers in the Bill, which constitute the taking of powers rather than actual implementation, are justified precautions against the risk of an expansionist interpretation of article 10 of the protocol, which would lead to great uncertainty, litigation risk and a serious threat to the territorial integrity of the United Kingdom into the indefinite future.
There has never been a level playing field in the EU. Its cardinal objective in these negotiations from the outset has included preventing us from being able to compete fairly. That is not good faith. Under the protocol, the EU would even control our legal tax freedom to create freeports and enterprise zones. All of this would massively undermine our businesses and jobs and therefore our voters.
Let us consider the wide legal sphere of EU state aid regulation. It is concerned with not only subsidies but tax reliefs; taxation favouring particular sectors or undertakings; remission of national insurance contributions; bank bail-outs such as those of RBS and Lloyds, where contrived, draconian EU legal conditions were imposed; and a raft of other measures too numerous to list, including gas tariffs for horticulture, airport landing fees, private health insurance, carbon trading emission certificates for free, failing to follow public procurement procedures and so on. By contrast, more recently, the German Government have procured approval for vast amounts of aid, notably for Lufthansa, and this is a pattern that has continued for decades across many commercial sectors. I recommend that people read Ambrose Evans-Pritchard’s article today in The Daily Telegraph.
Mr Šefčovič has outrageously dared to threaten the UK Parliament itself if we do not remove the clauses, and he misrepresents our position on the Good Friday agreement. This contradicts our sovereignty and autonomy, which the EU accepted. The EU seeks to subject us to a foreign regulator, taking essentially political decisions and armed with undemocratic prohibition powers and authorisations. It would be unconscionable and utterly naive for us to allow that to happen. It would be contrary to our national interests at this time of economic instability generated by coronavirus.
I remind the House that section 38 of the 2020 Act was passed without a single person in either House formally objecting, either on Second Reading or in Committee. The Bill is needed as an insurance policy and as a guarantee of our national sovereignty within the meaning of the Vienna convention, and our national security.
Ian Blackford (Ross, Skye and Lochaber) (SNP)
Over the past few years, we have all witnessed this Tory Government plunging this Parliament and our broader politics into ever deeper chaos and disgrace. In that time, Scotland has been dragged out of the European Union against our will. It is almost a year to the day on which this Parliament was illegally prorogued, and in recent months a raft of senior civil servants has been forced out the door. That instability is this UK Parliament’s new normal; it is now part and parcel of a broken Westminster system.
Here we are again: having dragged us deeper and deeper into their dangerous agenda for the past four years, today this right-wing Brexit cabal has reached rock bottom. The United Kingdom Internal Market Bill is the greatest threat to devolution that Scotland has faced since our Parliament was reconvened with the overwhelming support of the Scottish people in 1999. We are discussing the principles of a Bill that this Tory Government casually and brazenly admit violates international and domestic law—a Bill that cynically uses the precious peace at the heart of the Good Friday agreement as nothing more than a Brexit bargaining chip.
The Bill runs to 50 pages, but people across these islands have a right to know exactly what it proposes to do. It does two fundamentally dangerous and undemocratic things: it breaks international law and it breaks devolution. Those two facts explain why there has been such a widespread chorus of opposition to the Bill. That opposition comes from every profession, sector and corner of these islands, and it is why this legislation should and must be resisted by anyone who claims to respect the rule of law and anyone who claims to respect the current devolution settlement.
As we know, there is opposition on the Conservative Benches. In the other place, the former Tory leader, Lord Howard, told the Government that the legislation would result in the UK is showing itself as having “scant regard” for its treaty obligations. When the Government are getting verbally slaughtered by a Brexiteer who has—how shall I say it?—“something of the night” about him, it is as clear as day that the Tories have gone way beyond the pale.
The Law Society of Scotland has commented on the Bill, stating:
“The bill should, as a matter of principle, comply with public international law and the rule of international law, pacta sunt servanda…should be honoured. Adherence to the rule of law underpins our democracy and our society. We believe that to knowingly break with the UK’s reputation for following public international law could have far-reaching economic, legal and political consequences and should not be taken lightly.”
I repeat: to knowingly break international law. I ask each Member to think on that tonight.
Every Member has a choice. We know that the Bill breaks international law—so many learned individuals, including the previous Attorney General, have told us so. Tonight, this House can tell the Government that it is not on and that this House is not going to be complicit in a breach of international law. I venture that that is the responsibility that each Member has. Every Member—every Member, Madam Deputy Speaker—should examine their conscience. This is about a Bill that breaches the terms of a treaty, the ink of which is barely dry and on the delivery of which the governing party fought an election.
Ms Angela Eagle
The right hon. Gentleman is making points that go to the heart of the Bill, and I share his worries about them. Does he share my worries that the Bill also attempts to curtail judicial review, or prevent it entirely, once that law has been broken?
Ian Blackford
The hon. Lady is correct about that, because we know that the Government have got into trouble with the judiciary over their actions in the past, and I will come on to talk about that.
The right hon. Member for Doncaster North (Edward Miliband), who spoke for the Opposition, was correct when he said that the Prime Minister cannot pretend that he did not know the terms of the treaty or its obligations when he signed it—that simply beggars belief. This is a test for the House this evening; do not wait for the Committee stage, as legally, morally and ethically the right thing to do is to vote down this Bill tonight. This House must be accountable. Do not follow the Prime Minister in acquiescing in breaking the law—if you vote to give the Bill its Second Reading tonight, that is exactly what you are all doing. So this is a test, and I understand the challenge the Conservative Members face. Do not support the Prime Minister by breaking the law this evening—it is as simple as that.
Of course, the Prime Minister has form: a year ago he went to the Queen to prorogue Parliament, an illegal act that the courts forced him to reverse. Here he is again—although in this case he is not, because he has run off—woefully breaking international law this time, seeking to ask the Queen to enact legislation that breaks international law. We have the power individually and collectively to stop the Prime Minister in this act of madness this evening. This is a matter of principle; it is about this House saying that we should not breach our legal obligations—I implore the House to say exactly that.
We were expecting the Secretary of State for Business, Energy and Industrial Strategy to have drawn the short straw in having to come here to argue for this dreadful piece of legislation, but he was stood down. We all know who the parcel of rogues are behind this legislation; this Bill has the fingerprints of the Prime Minister, the Minister for the Cabinet Office and, of course, Dominic Cummings. We have just heard the bluff and bluster of the Prime Minister in seeking to defend the indefensible. He can try all he likes to dress this up as a business Bill, but no amount of dressing up will hide the fact that this is a naked power grab. The Tories are fooling no one, least of all businesses in Scotland. If this UK Government were actually serious about delivering an ounce of business confidence, they would not be threatening to blow apart any hope of a future trade deal with the European Union.
Bill Esterson (Sefton Central) (Lab)
We can see from the right hon. Gentleman’s speech so far that he clearly shares many of the concerns of the Labour Front-Bench team. On that basis, will he confirm that he will be supporting the reasoned amendment standing in the name of the Leader of the Opposition?
Ian Blackford
I am grateful for the question. We will be voting against this Bill this evening but we will not be supporting the reasoned amendment, because of some of the other conditions attached to it, not least that there should be a single market Act that does not enshrine the rights of the devolved nations to be able to protect their own interests—that is the fundamental difference we have this evening. I ask the House to oppose the Bill and vote it down on Second Reading.
The provisions of this legislation recklessly and deliberately risk a bad deal or, increasingly, the economic devastation of a no deal. You cannot claim to support business while pursuing a bad Brexit. You cannot claim to support business by burdening it with yet more economic uncertainty, in the face of a global pandemic, one where we know the challenges we face. Yet, in the midst of this, the Prime Minister brings this Bill. The Government cannot claim to support the Scottish economy by taking more economic powers away from Scotland’s democratically elected Parliament.
I will turn now to some of the contents of the Bill, and specifically the numerous aspects that will undermine the powers and authority of Scotland’s Parliament. Clauses 2 to 9 contain sweeping powers that could act to compel Scotland to accept lower standards set elsewhere in the UK. That means standards on animal welfare, food safety and environmental protection to name but a few. We all know the risk and the threat that that will bring, especially for Scotland’s farmers and consumers. This law is a Tory invitation for chlorinated chicken and hormone-injected beef in our supermarkets. [Interruption.] We can hear the guffawing from the Conservative Benches, but yesterday morning on “Politics Scotland” a Treasury Minister more or less admitted that they could not stop chlorinated chicken coming into the United Kingdom. [Interruption.] Go and check the tapes; it is there.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I am sure that the right hon. Gentleman shares my dismay that the non-discrimination clause would mean that popular policies already made by the Welsh Government and our Senedd to do with the smoking ban, the ban on plastic bags, and organ donation could have been called in and not been valid under this legislation.
Ian Blackford
The right hon. Member makes a very good point. There are policies that we are very proud of introducing in Scotland, such as minimum alcohol pricing, which was so critical in dealing with misuse of alcohol in Scotland, but there is no guarantee that we would be able to bring in such initiatives in the future. We would have to go cap in hand to Westminster for authority. The days of us being “too wee, too poor, too stupid” are well and truly over.
The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office (Michael Gove)
Don’t be so hard on yourself.
Ian Blackford
The sneering contempt that we get from the Minister for the Cabinet Office—he really ought to be ashamed of himself.
In part four, provision is made for the establishment of a new unelected monitoring body called the Office for the Internal Market. The Bill proposes to hand that unelected body—we often hear about unelected bureaucrats, but here we are—the power to pass judgment on devolved laws, directly over the heads of the Scottish people’s chosen Government. It will also lead to an open invitation for businesses with deep pockets to challenge the democratic decisions of our Scottish Parliament.
Clause 48 reserves state aid: one of the most blatant power grabs in the Bill, and that is a very high bar. We know that the state aid provisions will merely mirror those of the World Trade Organisation. That will inevitably make a deal with the EU even more difficult and provide little or no scrutiny. Finally, there is clause 46: the ultimate insult and the ultimate attack on devolution. If this legislation is forced through, powers will be given to UK Government Ministers to design and impose replacements for EU spending programmes in devolved areas: infrastructure, economic development, culture and sport, education and training—all of it.
The Government’s agenda is clear. The Transport Minister would have input and decision-making powers over road building in Scotland, over the heads of the Scottish Parliament. We won a referendum in 1997, when 75% of the people of Scotland voted to have a Parliament. We have elections every five years. Manifestos are put in front of the Scottish people. It is the settled will of the people that that Parliament has control over health, education, housing and transport. How dare this Tory Government feel that they can come in and impose their will on those areas of democratic accountability in Scotland? What an insult to our Parliament in Edinburgh and our Parliament in Wales. I say to this Government, “We will stand up against this attack on our Parliament, and on those that enshrined that Scottish Parliament.”
The agenda of the Conservatives is clear. The Tories will seek to bypass democratically elected MPs and Ministers in Scotland. Union Jack-badged projects will be paid for and prioritised ahead of the priorities of our Parliament. Bitter experience is a good teacher. Tory Governments cannot be trusted to spend money in Scotland.
We remember what happens when the Tories control state aid spending. In 1992, John Major’s Government diverted cash from the highlands to try to boost dwindling Tory support in south-east England. And we have not forgotten that this legislation comes from a Prime Minister who bragged that a pound spent in Croydon has far more value to the country than a pound spent in Strathclyde. That is the way that the Conservatives look upon Scotland. The Tories will look after their own interests. They will never—not ever—support Scotland’s interests. This Bill would allow them free rein to serve their own narrow needs.
At its heart, this Bill confirms the centralising obsession of this UK Government. Those in No. 10 who not so long ago made a lucrative living scribbling endless newspaper articles about a supposed centralised Brussels elite are now attempting to centralise and grab every devolved power that they can get their hands on. Apparently, the Tories are not only determined to preside over the death of devolution; they are clearly determined to oversee the death of irony, too.
The real reason behind this Government’s hunger to pursue this power grab is what should concern us most, though. Paragraph 26 of the explanatory notes makes it clear that the Business Secretary will be given the power to change exemptions from the Bill at any time. In effect, this is a Trojan horse allowing Tory Ministers to encroach even further on devolution, and we know where that will inevitably lead. In order to deliver bad trade deals—the only deals they can now realistically get—the Tories want private health companies to have a guaranteed right to trade unhindered in Scotland and across the UK. With no protections for our Parliament, this would fundamentally weaken and undermine our national health service in Scotland. The same is true for private water companies, with the same threat of undermining standards and raising prices in Scotland. The Tories’ real agenda is about imposing the creeping privatisation and rampant deregulation that they are already implementing in England.
I am heartened by one thing: the scale of the threat of this legislation is equalled by the scale of the opposition with which it has been met across Scottish society. Those on the Government Benches, especially the Scottish Tories—mind you, there is only one of them in here—would do well to listen to this. The National Farmers Union Scotland confirmed that
“the proposals pose a significant threat to the development of Common Frameworks and to devolution.”
The chair of the Scottish Crofting Federation, Yvonne White, expressed fear that
“the proposed legislation will lead to a race to the bottom, threatening our high standards in food, environment and animal welfare, thus damaging the image of Scottish produce.”
She concluded:
“These standards are best safeguarded by the Scottish Parliament.”
[Interruption.] I hear someone shouting from a sedentary position, “Don’t let the facts get in the way.” That is a statement from the chair of the Scottish Crofting Federation. It might not suit those on the Tory Benches, but that is the reality.
The Scottish Council for Development and Industry believes that
“mutually agreed common frameworks should be the foundation of the UK internal market, rather than the imposition of a single approach across the UK in devolved policy areas.”
The SCDI is absolutely right. Why is the Joint Ministerial Committee not finishing the work it was engaged on in delivering those frameworks on a consensual basis? But of course that does not suit the Tory Government, who want to attack our democratic institutions.
The General Teaching Council for Scotland said that supporting the Bill
“would undermine the four UK nations’ devolved education functions.”
Ian Blackford
I hear the Cabinet Office Minister shout, “How?” Perhaps he should go and talk to the General Teaching Council, and it will give him its views directly. [Interruption.] Really? We have the Business Secretary, who is supposed to be taking this Bill through, sitting laughing—laughing at the legitimate comments made by stakeholders in Scotland. It is little wonder that the Tories are rejected in the way they are at the polls in Scotland.
On its impact on devolution, Professor Nicola McEwen, co-director of the Centre on Constitutional Change, found that the internal market Bill
“limits policy divergences and risks stifling innovation”.
The Scottish Trades Union Congress stated that the Prime Minister
“is uniting political parties, trade unions and wider civil society in Scotland against a power grab which would see UK Government interference in previously devolved matters and a rolling back of the”
devolution
“settlement we voted for in 1997”.
What is happening is that the Tories are uniting civic Scotland against this attack on our Parliament and its powers—farmers, crofters, teachers, industry, academics and trade unions: a coalition of opposition to this Bill and this Tory agenda. Civic Scotland has made its voices and views crystal clear. Anyone supporting this Bill will be ignoring their interests.
We all have a responsibility to listen to these voices. The new Scottish Tory leadership have been running around half the summer, telling anyone who would listen just how keen they were to stand up to the Prime Minister when they think he is wrong. Well, you have that chance tonight. Listen to the coalition of opposition in Scotland rather than your masters in Downing Street. If the Scottish Tories follow their colleagues into the Lobby in support of this power grab, they will expose themselves as being weaker than ever, as failing to stand up for Scotland’s interest against a London power grab. The very first test of the new Scottish Tory leadership will have turned out to be their biggest, and they will have failed. They will simply have shown themselves to be the Prime Minister’s poodles, turning their back on Scotland’s interests. They will have failed once again to stand up for Scottish democracy.
There is also a special responsibility that falls on the Labour party. Much of the devolution project is a legacy of its Government in 1997. This Bill is a direct attack on that legacy. We must collectively oppose the Bill. I am urging the Labour party at every parliamentary stage to take full responsibility and work collectively with us to hold the Government to account. The Welsh Labour Government are advising the same. They have said that
“the UK Government plans to sacrifice the future of the union by stealing powers from devolved administrations”,
and that it is
“an attack on democracy and an affront to the people of Wales, Scotland and Northern Ireland, who have voted in favour of devolution on numerous occasions.”
That statement and its analysis comes to the very core of the argument. Over the course of the last 21 years of devolution, Scotland’s people have benefited from the progressive and divergent priorities that our own governance has given us the freedom to pursue. They have seen it, experienced it and come to fiercely value it. Even with limited powers, Scotland’s Parliament and our Government have always sought to mitigate or reject the Conservative policy paths set out at Westminster. We have forged our own path. If this legislation had been in force previously, it would have prevented many progressive policies and divergent choices.
Over recent months, that conviction and belief in our Parliament has grown. People have seen the exceptional leadership of our First Minister throughout the course of this terrible pandemic. It has reaffirmed their faith and confidence in our institutions, our governance and our nation. Our people have come to a simple but powerful conclusion: decisions about Scotland are best made in Scotland. Right now, poll after poll—the latest one only last Friday—shows that a growing majority have come to the conclusion that all decisions and all powers should now be fully entrusted to the people of Scotland.
The Tories have never been able to reconcile themselves to that truth. As usual, when they are confronted with change, they are in the depths of denial. Instead of accepting the right of Scottish people to choose their own future, they are trying to grab the powers back that were returned to Scotland 21 years ago. That is exactly what this law is designed to do. It is a full-frontal attack on Scotland’s Parliament and on Scotland’s democracy.
It has been stated that power devolved is power retained. This implies that this Tory Government can do anything they like with the powers of our Parliament. That is what this Bill is about. It gives them direct spending in Scotland in devolved areas: in health, education, housing and transport. Just dwell on this. We send parliamentarians to Holyrood so that they can enact the people’s priorities, but Westminster is about to ride roughshod over that. If the Bill passes, this Government in London can interfere directly in all those devolved areas, over the heads of the Scottish Parliament and our people. There is only one way to stop them—only one answer, and only one option.
The only way to defend Scotland’s Parliament and its powers is by becoming independent. Our Parliament will consider a new referendum Bill before the end of 2021. The chance to choose an independent future is now coming. No amount of Tory denial and disruption can stand in the way of Scotland’s people’s democratic right to choose a different and better future, and once it comes, people will have their democratic say. I am more confident than ever that they will choose to be part of a new Scotland back at the heart of Europe. We can choose to leave behind the chaos and instability of Westminster. We can get on by becoming an independent, international, law-abiding nation.
Sir Robert Neill (Bromley and Chislehurst) (Con)
I will endeavour to prove that the best advocacy can be the most concise.
There is a great deal in the Bill that I support and that is necessary, sensible and desirable. However, there is one important part of the Bill that creates very real difficulty for me and many others, and I want to go straight to the rub of that point. Part 5 of the Bill, as it stands, gives me real concern as to its leading the United Kingdom into a breach of our international obligations and the law that stems from them. That is, as many others have observed, not something that any country should do, save in the most extreme and pressing circumstances.
The difficulty arises in relation particularly to clauses 42, 43 and 45. They are different from the rest of the Bill, because they give very wide-ranging powers indeed to Ministers to disapply elements of the withdrawal agreement and the protocol, which have the force of international law, by regulation. These are measures of a very sweeping kind, involving any kind of legislation and any part of the agreement, not just those related to the protocol, and appearing to oust the jurisdiction of the courts in any respect. I question whether their being so wide can be justified.
My other concern is that the way the clauses are phrased at the moment runs the risk of bringing us into breach of our legal obligations before it is necessary. I heard what the Prime Minister said about an insurance policy, and I heard what the Lord Chancellor has said about a “break the glass in emergency” provision. That is fine, but it seems clear from the protocol that there are steps that must be gone through first and exhausted before that can properly be done. The most important part to bear in mind is that if article 45 is brought into force immediately after Royal Assent, we would at that point have disapplied the concept of the direct effect of European law, which is part of the agreement we signed up to and which this House passed less than a year ago. So bringing it into force on Royal Assent is needlessly provocative to our negotiations and needlessly undermines our reputation for sticking to the rule of law.
There are also provisions that bind us to act to resolve disputes only through the arbitration process, which is set out in the withdrawal agreement. Article 168, which we have signed up to, states that
“the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.”
There are detailed procedures and timelines for that.
It seems to me that we should be very careful about moving forward with bringing these clauses into force until every opportunity to resolve any dispute has been carried out through the arbitral mechanisms. Only then, and if it is necessary because the EU has not responded to a result of the arbitral mechanism—
Jeremy Wright
Does my hon. Friend agree that one thing that should give us some optimism about the use of the mechanisms that he is describing is the specific references to the defence of the Good Friday agreement and of Northern Ireland’s status as part of the United Kingdom in the protocol and the withdrawal agreement themselves?
Sir Robert Neill
My right hon. and learned Friend is absolutely right. That is, I think, the best approach for us to take. We should stick to the letter of those provisions, as that gives proper defence of our strategic interests. For example, there is the safeguard provision in article 16, which would enable us to act if, in extremis, the stability of the situation in Northern Ireland and the Union was threatened, but we could do that while maintaining the moral high ground and our intellectual reputation. I see that the Chancellor of the Duchy of Lancaster is listening. I hope that he will be able to go further than the Prime Minister, either tonight or in the course of debates on the Bill, and assure us that those provisions will not be brought into effect unless and until every one of the legal mechanisms open to us has been exhausted and unless and until there has been a specific vote of this House—not by a statutory instrument, which does not give enough scrutiny for such a constitutionally significant issue, but by a specific resolution. That is why my amendment seeks to give the Government an opportunity to have that “break the glass in emergency” provision, but without our triggering a breach of the international legal obligations before it is absolutely necessary.
Steve Brine
Further to that, does my hon. Friend not agree that, while there will be some who are still on the, shall we say, Blair end of the argument, notwithstanding what he says, that position would be seen by the majority of people as being a reasonable one for us to take in this Act before we enact the nuclear button that is so often talked about? Would that not be reasonable?
Sir Robert Neill
I agree entirely with my hon. Friend, and I do hope that the Government will listen carefully to that. I want to be able to support the Bill. I cannot support it with these clauses in it as they are at the moment. I hope that we will take the opportunity to change and improve these clauses and the way in which they might operate so that we do not fall into a means of damaging our reputation. That is why I cannot support the Bill tonight. I hope that we will see amendments to change what I believe are the egregious, needless and potentially damaging elements of part 5 of the Bill. Unless there are those changes, I will have further difficulty in supporting the Bill. None the less, having listened to what the Prime Minister has said, I want to give the Government that chance in a constructive spirit, and I know that the Chancellor of the Duchy of Lancaster is listening carefully to that.
I do hope that the Government recognise that to act in a way that unilaterally breaches our international obligations is wholly against the spirit of what this country stands for. It is against the spirit, I think, of the party that he and I have always adhered to as a party of the rule of law, and we need to find a constructive means of making sure that we meet our obligations to the Union, but without undermining our obligations to the rule of law. I do not believe that is impossible with good will.
Hilary Benn (Leeds Central) (Lab)
I have to say, from listening to the Prime Minister and watching the growing dissent on the Government Benches and in the Conservative party, that there is a moral here. The first moral is: read stuff before you sign it. The second moral is: do not go around telling the world that the United Kingdom cannot be trusted to keep its word.
On exit summary declarations—the Prime Minister said there were three issues—I have to say that I have some sympathy with the Government’s argument: exit summary declarations should not be required for goods moving from Northern Ireland to GB. When Wrightbus sells one of its wonderful buses to a transport operator in the UK, why is the form needed and what is the EU going to do with the form? But is it really worth ruining our international reputation, running the risk of no trade deal with the European Union, and running the risk of no trade deal with the United States of America for the sake of an electronic form? On goods at risk, surely it is possible to reach a pragmatic solution, because a lorry load of goods destined for a supermarket in Belfast can hardly be described as being at risk of entering the European Union. I would say to the Chancellor of the Duchy of Lancaster that it would be helpful for everybody if he was not quite so secretive—and I use that phrase—about what goes on in the Joint Committee. Every time I have asked in the Committee on the Future Relationship with the European Union, he has said, “Well, that’s a matter for the Joint Committee.” Well, I know it is a matter for the Joint Committee, but we would like to know, as the House of Commons, how things are going.
On the question of east-west trade, the Government knew from the start that there would be checks and controls, and that tariffs might be paid in certain circumstances. The Prime Minister then cranked up the blockade threat, even though, as the House will be aware, the Irish Foreign Minister has described that threat as “totally bogus”. By the way, I think it would help if the EU just said now, “Of course we’re going to give third-country listing to the United Kingdom.”
If the Prime Minister actually believes the threat of blockade, why did he then say that there is nothing in the Bill to do anything about it? Can the Chancellor of the Duchy of Lancaster, in responding to the debate, give us an assurance that the Government do not intend to bring in another bit of legislation breaching international law? If the Government are looking for a remedy, a safeguard or an insurance policy, they should look to the protocol they have already negotiated, and in his brilliant speech, my right hon. Friend the Member for Doncaster North (Edward Miliband) drew attention to article 16. I say to Ministers, use the process to resolve these questions, and do not break international law.
The final point I want to make is that this is a terrible diversion from the task at hand. We have less than four months to go, and the livelihoods of many businesses in this country depend on getting a deal with the European Union. For a long time I thought the Government would get one, but in the last few days I have begun to doubt whether they actually want one, because they seem to be acting in a way that undermines the prospect of an agreement.
I say to the Minister that it would be utterly irresponsible to head towards a lack of agreement that would damage sectors of the British economy. The Prime Minister read out the tariffs that he says would be charged on goods moving from GB to Northern Ireland. Those are exactly the same tariffs that would be charged to businesses in Great Britain if we do not get an agreement with the European Union. It is no good everybody on the Conservative Benches saying, “Isn’t that shocking?” if we end up with no agreement at all, and it would be utterly irresponsible to add to the pain caused by covid. For the Prime Minister to describe tariffs as a good outcome, frankly, leaves me perplexed.
Frankly, both sides should stop posturing, both sides should get back to their job and both sides should now negotiate through all of these questions, compromising as they need to, to get an agreement that, ultimately, would benefit the people of the UK and the EU.
Alun Cairns (Vale of Glamorgan) (Con)
In the limited time that, unfortunately, is available to us, I want to focus on the protection of the UK market and on the enhanced powers that this Bill will give to UK Ministers to act in UK nations. Without this Bill, the way in which businesses trade and interact could be at risk. There is a realistic potential that the marketplace could become chaotic. We all recognise—
Alun Cairns
If the hon. Member gives me a moment, I will continue the argument and he can make an intervention later if he wishes.
We all recognise the status of the EU single market, which is something many of us will have championed and questioned in equal measure over the years. Rarely have we commented, however, on the UK market, yet the single UK market is more important and directly relevant to the businesses in each and every constituency across the country. It gives us the right to trade freely and seamlessly in all parts of the UK. It sets minimum standards for products and services—a common rulebook for tradespeople to work from. It allows for the mobility and flexibility of labour, protects against unfair subsidies and enables the recognition of qualifications, confirming free and fair competition and opportunity wherever people are based in the United Kingdom. It is so important to our prosperity and so obvious that until now many people will have taken it for granted, which is why we need to act in this Bill.
Over the last six months, we have seen that the agendas of each Administration around the UK are not always in line, and therefore the potential to create chaos in the marketplace exists. Protecting the interests of businesses and consumers in all parts of the country must be our priority, and that is exactly what the Bill does. It does so in a way that also respects and supports devolution by enhancing the devolved Administrations by extending their powers still further.
I am particularly encouraged and grateful that my right hon. Friend the Secretary of State for Business, Energy and Industrial Strategy has included clause 46 in part 6. It is particularly welcome: it enhances the powers of UK Ministers to act and to be relevant in UK nations. That is essential for the future of the Union, and to my mind it is the start of the Union fightback. It shows that Whitehall now understands the changing nature of our make-up as a United Kingdom.
Since devolution, UK Ministers have been prevented from acting directly in support of businesses, charities or authorities in UK nations. UK-scale investment projects have always been difficult to achieve since devolution. Every Secretary of State has been frustrated by that, partly because of the devolved settlement and the limitations that it has put in place. After all, for someone who is unemployed and living in one of the poorest communities, which may have substandard education and limited training opportunities, in a run-down town or village, at this point the UK Government’s answer to calls for help would have to be, “You need to contact your Assembly Member or the Welsh Government Minister.”
Chris Bryant
I am sorry, but I have been asking for money to make good the problems that we have had with flooding in the Rhondda all this year; I have not had a single penny out of the Westminster Government for it. I have been calling for the work that needs to be done in the Rhondda to take away the 60,000 tonnes of material that has fallen into the river from tips, which are a responsibility of the UK Government, to be funded by the UK Government; I have not seen a penny. I am not going to listen to all this nonsense of pretending that they are going to send us money—it is a whole load of tosh.
Alun Cairns
The hon. Member has made my point. He recognises that the areas of policy that he is talking about are devolved: the capacity of the UK Government to act in those spaces does not exist, as it stands. He recognises that the devolved settlement already gives Wales, or the Welsh Government, £120 for every £100 spent in England, so the answer that I might suggest is: I am sorry, but the hon. Member will have to contact the Welsh Government Minister to act in his constituency.
When people live in the circumstances that I have described, they do not care where the help comes from; they just want the Government to give hope and opportunity, and to play a part in bringing about change. The Bill allows for exactly that. I have long argued that the future of any nation would come under pressure if a wide wealth gap continued to persist between nations and regions. The Prime Minister’s levelling up agenda recognises that, and this Bill empowers that levelling up agenda in Scotland, in Northern Ireland and in Wales.
Sammy Wilson (East Antrim) (DUP)
The warnings that my party gave about the withdrawal agreement when it was discussed at the end of last year are now coming home to the Government. They are beginning to realise the impact that it had; indeed, they are beginning to admit what their own assessment said: that the withdrawal agreement would reduce trade and business investment in Northern Ireland, affect consumer spending and have a disproportionate impact on small businesses. If the Bill is an attempt to undo some of the damage done by the withdrawal agreement and respond to the points that Arlene Foster and other Ministers have pressed the Government to address, we welcome it. However, I have to say that it does not go the whole way or address all the issues that need to be addressed. Indeed, those who are criticising the Government about the non-implementation of the withdrawal agreement ought to know that only on Friday the Secretary of State for Environment, Food and Rural Affairs overrode the Northern Ireland Agriculture, Environment and Rural Affairs Minister and instructed civil servants in Northern Ireland to put up border posts and put in a proposal for border posts, even though all the information about what would be necessary had not been accepted.
Two arguments have been made against the Bill. The first is that it goes against the Good Friday agreement. For the life of me, I cannot understand why a Bill that prevents businesses in Northern Ireland from being able to sell goods freely in the rest of the UK is going to bring about violence in Northern Ireland. For the life of me, I do not understand why a decision that will enable businesses in Northern Ireland to bring goods from GB without paying unnecessary taxes, which they then have to claim back at some future time, is going to affect peace in Northern Ireland. The argument about the Good Friday agreement and violence in Northern Ireland is always rolled out when the arguments are weak against what the Government are doing.
The second argument is that the Government are reneging on their international obligations. The obligations in the withdrawal agreement are two-sided. There is a requirement for both the EU and the UK Government to act in good faith and with best endeavours to ensure that there is unfettered access and unfettered markets within the UK between Northern Ireland and GB, and to ensure that the Government of the United Kingdom have the ability to rule their own country and to make laws that affect their own country. Even a casual observer would see that the tactics of the EU and the comments that have been made by the negotiators make it quite clear that there has been no good faith and no best endeavours from the EU in these negotiations. In those circumstances, the withdrawal agreement allows the UK Government to act unilaterally.
The hon. Member for Bromley and Chislehurst (Sir Robert Neill) said that we have obligations to the rule of law and obligations to the EU. What about the obligations to the people of the United Kingdom to ensure the provisions of the Act of Union? The economic basis of the Act of Union makes it quite clear that there shall be no barriers on trade between different parts of the United Kingdom. I believe that the Government are fulfilling, in part, their obligations to the people of Northern Ireland in this Bill, and that is why we will support it tonight.
Sir Christopher Chope (Christchurch) (Con)
It is a pleasure to follow the right hon. Member for East Antrim (Sammy Wilson), who served with me on the Brexit Committee in the previous Parliament and had great insight and passion for this cause. He is absolutely right in saying that the Government were warned about the dangers involved in the Irish protocol. Indeed, many members of the Committee pointed that out, but he was foremost among them.
Having listened to the Prime Minister’s cogent analysis of where we are, I can see why we have this Bill before us, because what he really said is that the EU is not complying with its duty under EU law of sincere co-operation, which it still has until the end of December. By not sincerely co-operating, it is forcing the Government to anticipate what ghastly things might happen. They are very wise so to do, because of course the European Union has form in all this. As Charles Moore said in a recent article in The Daily Telegraph:
“The breaking of international law is a sport at which the EU itself often excels.”
I want to remind the House of an episode not referred to in Charles Moore’s article but based on my experience when I was chairman of the Legal Affairs and Human Rights Committee of the Parliamentary Assembly of the Council of Europe. Members will recall that the European Union agreed under article 6(2) of the treaty of Lisbon that it would accede to the European convention on human rights. Has it done so? No, it has not. It is in breach of international law. It is showing that it does not respect the rule of law. What is its defence? Its defence is its own interpretation of an obscure protocol attached to the Lisbon treaty—protocol No. 8. The European Union’s interpretation is not the interpretation that normal people would put on those words, but it got the support of the European Court of Justice—its own tame Court of Justice—to say that it would be incompatible with the European treaties for the European Union to accede to the European convention on human rights, which it had already decided to do during a prolonged negotiation in the preparation for the treaty.
Where are we now? We are in a situation where the Council of Europe’s parliamentary committee, the Council of Europe itself, and the European Parliament are trying to negotiate a way round this issue. In so doing, they are trying to exercise common sense and good will, because they recognise that the EU argument is essentially one of sovereignty. The EU is saying, “We do not want to subordinate our sovereignty to the European convention on human rights.” The argument in the Bill is that if the EU carries out all its threats, it will destroy the territorial integrity of the United Kingdom and deprive us of the opportunity to administer for the whole United Kingdom with internal trade arrangements. If one is sympathetic to the idea that we should negotiate things with common sense and good will, that applies to the EU accession to the European convention on human rights, as well as to where we go from here to ensure that we get the full Brexit for which the people voted.
Darren Jones (Bristol North West) (Lab)
The focus of today’s debate ought to have been on the functioning of the internal market, and the legitimate role that the devolved Administrations play in our Union. That is what business needs from us today. Instead, we are having to call out this ludicrous suggestion from the Government that the only way to secure a Brexit deal, which we were told was oven-ready, is to breach international law and damage Britain’s standing in the world. We are told that that is okay because it is merely an insurance policy, but we all know that if the current Bill is passed, we will already have breached our legal obligations and caused damage to our standing and reputation in the world, irrespective of whether or not those powers are used.
When summing up the debate, perhaps the Minister can tell the House why, if those protections are so important, they were not negotiated in the first place and included in the withdrawal agreement, before the Prime Minister signed it. This behaviour does us no favours in our negotiations with the European Union, or with any other country around the world, and such facts mean that we must instead conclude that the Government are merely playing politics with British jobs and British business.
Just as in negotiations to update the North American Free Trade Agreement, where President Trump threatened to walk away without a deal unless he got what he wanted, it seems the Prime Minister has adopted a similar strategy. In playing such a reckless game in these negotiations, we risk failing to secure a trade agreement not only with the EU but with the US, where as we have heard, the Speaker, Nancy Pelosi, has said that Congress would not pass any trade agreement that undermines the Good Friday Agreement, and rightly so.
I am at a loss to understand what the Government are seeking to achieve by acting so irresponsibly. Today we are left merely with the opportunity to appeal to the consciences of Members of the House about the constitutional importance that Parliament plays in such a situation. It is this Parliament that is sovereign, not the Government, and that places a personal obligation on each and every one of us, which we sign up to when we take our parliamentary oath. We are the check and balance on an irresponsible Executive.
Such disregard for the rule of law by the Government is perhaps not surprising in context of their disregard for the institutions of our country, from the courts to the civil service, and indeed this Parliament. This is but an obvious extension to this Prime Minister’s approach to governing, and as a member of the Opposition, I gently say, with the greatest of respect, that such reckless disregard for our institutions, for what it means to be British, for how we expect Britain to be governed, and for our aspirations for Britain’s role in the world, is also not very Conservative.
We have already heard the verdict of three Conservative Prime Ministers. Can Members imagine for one second what Mrs Thatcher would say from that Dispatch Box in these circumstances? [Interruption.] I assure hon. Members that Mrs Thatcher would not have agreed to breaching international obligations and the rule of law, because of the way that it weakens our standing in the world and our negotiations with the European Union. Conservative Members may wish to look to the Republican party to see where that goes if we fail to stand up to it.
On the substance of the Bill, on the constitutional obligations on us all, which we should take seriously and not with humour, in the national interest and—dare I say it—in the interests of Conservative Members regarding their own party’s standing, I hope that they will join Opposition Members in voting down the Bill this evening.
Andrea Jenkyns (Morley and Outwood) (Con)
I welcome the Bill as a reasonable and essential step for our Government to take in the light of the EU’s unreasonable position. It has become crystal clear, ever since our country voted to leave, that the EU would not act in a constructive spirit and would not treat the UK as an independent country with equal basis in the negotiations, as it has with other countries such as Canada. Despite this country’s decision to say no to the project of ever closer integration, which was reinforced by last year’s general election result, Brussels has continually attempted to trap us in its orbit. The British people will never accept the status of a vassal state, despite the arrogant efforts of Mr Barnier—just look at his Twitter feed as evidence.
The Bill is a reasonable step for any Government to take to maintain their sovereignty. It upholds the principle of article 4 of the Northern Ireland protocol and without it, trade across the Union of nations would be severely limited. In the light of the EU’s continued resistance to a mutually beneficial free trade agreement, no deal will be our only available option. The Bill makes provision for that. Otherwise, Northern Ireland would remain subject to the EU’s customs laws and large portions of its internal market laws, all enforced by the EU’s Court of Justice.
Ian Paisley (North Antrim) (DUP)
The hon. Lady has put her finger right on the issue that affects Northern Ireland: under the protocol, Northern Ireland goods will be subject to import declarations, entry summary declarations, safety and security certificates, export health certificates, phytosanitary certificates and certificates of origin. The Bill, thankfully at last, clears up that we will have a Union without paperwork.
Andrea Jenkyns
I thank the hon. Gentleman—a true patriot, putting our country’s interest above the EU’s.
EU rules on state aid would allow the EU to impose its state aid regime on any UK domestic policy. That is not reasonable. We chose to say no to further integration in 2016. Four years on, our friends in Brussels have not understood that. While we are happy to trade freely with them, we do not want to be ruled by the ECJ, we want our fishermen to have full access to our waters, and we do not want our future to still be determined by unelected EU bureaucrats.
The Bill is reasonable in solving those problems and it is essential in upholding the international obligation of the Good Friday agreement. It is essential that great effort is made to prevent a hard border between Northern Ireland and the mainland of Britain. We have seen time and again the naked political considerations—most of the EU’s desire is to see our country fail. That is hardly an example of negotiating in good faith, and it is that that has determined and dictated the EU’s negotiating position. The Government had no option but to introduce this Bill.
Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)
In a “specific and limited way” is how the Prime Minister uses the words integrity and good faith. When the Bill was launched, an establishment newspaper in Scotland called it a day of national shame and infamy. It was right. With malice aforethought, the UK Government are breaking international law and breaking devolution. We reject the Bill and will never support legislation that breaks international law.
The Bill clearly threatens food and environmental standards, and opens up a race to the bottom in all aspects of life in Scotland, from the water we drink to education and health. It leaves our businesses uncertain and wary. It is no wonder that in Scotland, poll after poll shows that it is now the majority view that independence is not only the way to ensure the needs of the people of Scotland are delivered, but the only way to protect the Scottish Parliament. The Bill is emblematic of a Government with no regard for, or will to work with, devolution. It is a bare-faced power grab. The Scottish Tory leader has boasted that he will vote for the Bill tonight. In his other job, he runs the line; in this job, he crosses the line.
Clause 46 completely undermines the devolution settlement by stripping spending powers away undemocratically from the Scottish Parliament, jeopardising the current Barnett funding levels. We know only too well, as was mentioned by my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), the consequences of allowing Tory Governments control of our spending, from when the highlands lost out to shore up votes in the south of England.
Alan Brown (Kilmarnock and Loudoun) (SNP)
Is it not a fact that over a 10-year period the Scottish block grant has been cut by the Conservative Government, and these measures give free rein for the UK Government to make further cuts to the Scottish block grant and to impose their spending in Scotland, such as through this stupid Boris Brexit that nobody wants?
Drew Hendry
I could not agree more with my hon. Friend. The people of Scotland are wise to these tricks and can see the utter contempt that this Tory Government have for their needs. Their Parliament will once again be ignored, in spite of that Parliament voting 92 to 31 against the White Paper for this Bill. The response of this Tory Government is as self-defeating as it is petty and harmful. Do not take my word for it. As the House has heard, the National Farmers Union, the General Teaching Council for Scotland, the Scottish Council for Development and Industry, the STUC, the Welsh Government and even the Chair of the Public Administration and Constitutional Affairs Committee have all agreed that this is a power grab.
The threat to environmental standards is palpable. Clauses 2 to 9 contain sweeping powers to compel Scotland to accept lower standards set elsewhere in the UK on animal welfare, food safety protections and a host of other elements with a direct impact on people’s lives. When directly challenged only yesterday, a UK Government Minister refused to rule out that we will have to accept chlorinated chicken in our shops. Imported hormone-injected beef can and will undercut our farmers and their quality production. Building control standards will be affected. Private companies will be able to trade unhindered to weaken and undermine our NHS and publicly owned water company—lowering standards, raising prices and undermining health.
This Tory Government are determined to break international law. This is proof to all looking on that they will break any boundary, concerned only with their own dogma. They do not want to work with others; they are not interested. Any real co-operation and consultation is anathema to them. They are a Government petulantly demanding compliance. Any deal, understanding, commitment, promise or even legally binding treaty is disposable. The common good is of no concern, especially when it gets in the way. Trust, honour and obligation are now words to trade on and be sneered at. What other inconvenient laws are next? Where does this stop?
Finally, what is the Government’s answer to the concerns of the Scottish people, businesses and communities to the poll after poll after poll showing that independence is now the majority view—not more powers or any attempt at understanding, but a pre-meditated move to put devolution to the sword? Madam Deputy Speaker, you bet we will be voting against this affront to Scotland and democracy tonight.
Sir Oliver Heald (North East Hertfordshire) (Con)
I cannot go all the way with the hon. Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry), I am afraid, and I do think his remarks were well over the top.
It is important that we have measures in place to run the UK internal market so I support that aspect of the Bill. However, I do have concerns about part 5, because for our country to break its word and breach international law is just not something that we do. I will speak a bit further about that if I have time, but let me just say that I was surprised to see the Secretary of State for Northern Ireland justify this with the alleged precedent of the general anti-abuse rule set out in the Finance Act 2013. I was a Law Officer at the time and Dominic Grieve was Attorney General, and one thing I can say about Dominic Grieve is that he was very correct and extremely painstaking, and he made sure that Government legislation did not offend the rule of law. That Act did not breach Britain’s treaty obligations. That was made clear by Ministers at the time and I cannot recall anyone arguing that it did. It had the support of the OECD and the countries with which Britain had tax treaties. It was written after a review led by our leading tax QC Graham Aaronson to ensure that it was focused properly and was in line with our tax treaties. There was full consultation. Since it was passed, it has not been attacked as being in breach of treaty obligations, and the wording of that Act simply confirms the agreed legal situation. In fact, if it is an example of anything, it is an example of reaching agreement and doing things properly.
Britain stands as a rule of law country that is respected across the world for its stance. It is right that all three Prime Ministers I served under have come out with grave concerns about this Bill and the point I am concerned about. Margaret Thatcher herself—she was a barrister—made clear how important the point is, often saying that democracy is not enough without a love of liberty and respect for the rule of law. I am therefore hoping that the discussions going on at the moment can be successful. I am pressing the Government and the EU, as much as I can, saying, “Come on, let’s get an agreement”, because breaking international law would be the last thing we want to do.
I support the amendment tabled by the Chairman of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), which says that if we come to the point where the negotiations have failed, all is lost and this country really must contemplate breaking international law, then so be it, but that day is not today and we should give the negotiations more time.
I have known my hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin) for many years. He laughed a little when I was talking about international law. I can remember him telling me once that we should leave the EU without any agreement at all. I do not know if he remembers that. He said we should ignore having any agreement, just repudiate everything and off we go. Personally, that is not my approach.
Wayne David (Caerphilly) (Lab)
I have been a Member of this House for a good many years, but this is the worst piece of draft legislation that I have ever seen brought before us. It is a shabby and dishonourable piece of legislation, and I say that for two fundamental reasons.
My first objection to the Bill is that, if enacted, Ministers would have the ability to break international law, and the law would prevent there being a legal challenge to the use of those powers. Much of the debate so far has rightly focused on Northern Ireland, and I take seriously the potential threat to the Good Friday agreement but, importantly, the Bill also has far-reaching implications for all international obligations in this context. Those are not my words or those of the Opposition but the considered, objective and carefully expressed view of the House of Commons Library.
My second concern is that the Bill significantly undermines the devolution settlement for Scotland, Wales and Northern Ireland in two important respects. First, the Bill states that the devolved nations will have to allow the sale of imported goods in Wales, Scotland and Northern Ireland, as agreed by the UK Government when they act solely for England, even if those imported goods did not meet quality standards, consumer protection levels or appropriate labelling agreed by the Scottish Parliament, the Welsh Parliament or the Northern Ireland Assembly. Of course, there should be agreement whenever possible—that should apply right across the UK—but there is a very real danger of standards falling as the UK Government cobble together trade deals. The Bill facilitates that.
My second devolution objection relates to funding and state aid. When Britain was in the European Union, less well-off areas, such as south Wales, benefited substantially from EU structural funds, the European regional development fund and the social fund in particular. My constituency, like many others, benefited enormously. The Government have proposed a shared prosperity fund to replace the structural funds. The Bill gives a legal base for that fund, but significantly, the Bill gives exclusive power to the UK Parliament and the UK Government to decide where and how that money is spent. Previously, the devolved institutions had a real say in how European money was spent in their areas. What I think will happen is that resources will not go to poor areas—the areas of need—but will be allocated according to Tory central Government priorities. That is structurally and morally wrong.
Alun Cairns
Is the hon. Gentleman fully aware of the frustration among communities in Wales that so much money has been wasted over so many years of the highest level of European funds? That could be the funicular in Blaenau Gwent, which broke down within weeks of being completed and was never used again, or so many other projects elsewhere that I could highlight.
Wayne David
What I am aware of is that many communities across Wales are fed up of Tory cuts. Despite the difficulties that many areas have experienced because of central Government policy, they have seen the European Union offer some help, and the concern is that that help will now not be coming from a Tory Government. The help will go to areas that are already well off, which is morally and economically wrong.
That is why I conclude that this Bill is one of the worst pieces of draft legislation ever to be put before the House. It enshrines the possibility of illegality. It objects to international law as it is widely applicable. It rides roughshod over the devolution settlements. It opens the door for resources to be given to well-off areas, rather than being allocated on the basis of demonstrable need. It also undermines the international standing of this country in the eyes of the world.
Mr Laurence Robertson (Tewkesbury) (Con)
All through the Brexit debates and the referendum campaign, we were constantly reminded that we should do nothing at all to damage Northern Ireland, and particularly the economy in Northern Ireland. I entirely agree with that advice, but as soon as the Government try to do something to protect Northern Ireland and the economy of Northern Ireland, we are told that we are wrong.
It has been interesting to listen to the speeches tonight. Members have quite rightly warned that we should not implement the Bill’s provisions before it is absolutely necessary. The logic of that argument is that they accept that it might, under certain circumstances, be necessary. Indeed, if one reads beyond the headlines of what was said by David Cameron, who has been quoted tonight, he goes on to say that these provisions should only be used as a last resort, therefore accepting that they may have to be used. I entirely agree with that—they should only be used as a last resort, and the Prime Minister was clear that that would be the case.
Ian Paisley
I thank my right hon. Friend for giving way. He was a wonderful Chairman of the Northern Ireland Affairs Committee, and he actually gets the situation in Northern Ireland. Does he agree that what really perturbs us about the opposition to the Bill tonight is people saying that it will somehow attack peace when what it does is remove the impediments to economic progress? It is through economic progress that we have created more jobs in Northern Ireland and helped to create peace in Northern Ireland.
Mr Robertson
My hon. Friend is wrong—or perhaps premature; I am not quite sure—to elevate me to the Privy Council, but he makes a very good point and leads me on to my next point.
Although north-south trade is extremely important to Northern Ireland and, indeed, to the Republic, east-west trade is far more important for both Northern Ireland and the Republic. That is not to say that the other is not important, of course. We should therefore do nothing to damage that trade.
The right hon. Member for East Antrim (Sammy Wilson) referred to the Act of Union. He did not have time to go into detail, but article sixth of the Act of Union 1800—the very Act that created this United Kingdom—states that
“in all treaties”
made by “his Majesty” as it was then, his heirs and successors,
“with foreign powers the subjects of Ireland shall have the same privileges as British subjects.”
It goes on to refer to manufacturing, trade and navigation. That Act should not be breached. It may or may not have the legal status—whatever that is—of a treaty, but surely it is an international Act of Parliament, which brought two sovereign nations together. That should be respected.
Article 184 of the 2019 withdrawal agreement should be respected when it talks about the need for both sides to operate
“in good faith and in full respect of their respective legal orders”.
In other words, the United Kingdom’s legal order should be respected. Clause 38 of the European Union (Withdrawal Agreement) Act 2020 asserts that
“the Parliament of the United Kingdom is sovereign.”
It is wrong for people to say that Ministers will run off with powers and act illegally—they would be given the powers by this Parliament if we pass the Bill. Ministers are therefore not running off and acting illegally at all. It is important that we deliver the Brexit that people voted for. I do not want a spat with the European Union and I have no reason to believe that it will behave so unreasonably as to deny all EU manufacturers and businesses—the people who send more than £90 billion of exports to this country, which is more than we send to them—trading opportunities.
I want a free trade agreement with the European Union because that would benefit businesses and people on the continent and in this country. It would also remove all the arguments that we are having tonight about the withdrawal agreement and the Northern Ireland protocol, so I really do hope that we can make progress. That is the way forward. If there is bad faith, and if we are put to the test of deciding whether we support the United Kingdom or the European Union, then I remember the oaths that I have given on seven separate occasions in this House, and my loyalty will be to the United Kingdom.
Colum Eastwood (Foyle) (SDLP)
“I believe that these arrangements are in the interests of Northern Ireland and the UK as a whole. It is a great deal for our whole country.”—[Official Report, 20 December 2019; Vol. 669, c. 149.]
Not my words, but those of the Prime Minister. How can anybody trust the word of the Prime Minister when he does a deal not even a year ago and he comments on it in those terms, but now he is ripping up that agreement only a few months after he made it? How can any of us believe a word that comes out of his mouth? Last month, we lost Ireland’s greatest son, John Hume, the pathfinder for our peace, the creator of the Good Friday agreement. He understood what that agreement was about. We have been told by Ministers in this House and on the airwaves that we need this Bill to protect the Good Friday agreement. Two key principles of that agreement are that there will be no hard border in Ireland and that local people will make local decisions for local communities. This Bill rips up both those principles.
This is not just about trade. It is much more fundamental than that. We are not going backwards, despite what the Government or anybody else in this House will try to drag us back. We are refusing to go back to a place that caused so much hurt and so much pain, despite what anybody says. This Government knows nothing about the Good Friday agreement. Some prominent Members in this House opposed that very agreement. They have risked nothing for peace. They have not had to live with the violence, intimidation and division. John Hume spilled his sweat so that nobody else would have to spill their blood. This Government know nothing of that.
Of course, the DUP tonight are talking about the Good Friday agreement and interpreting it for us. They were standing outside the gates of Stormont when it was being negotiated, shouting and holding placards. How did that all work out?
The protocol is there to protect us from a hard border. That is why it is there. Without that protocol, the only thing we are being offered to protect us is the word of a man whose word can clearly not be trusted. Openly admitting that he is going to break international law by being prepared to break a deal that he just did with the European Union has consequences. People in this House need to remember that Ireland has very good friends in the United States. I want to thank former Vice-President Joe Biden, Speaker Nancy Pelosi, Congressman Richie Neal and Congressman Brendan Boyle for all that they have done to support our peace process and for all that they have said this week. They have been very clear: there will be no trade deal with the United States if this Government do violence to the Good Friday agreement or this protocol—no trade deal at all. It is not me saying that; it is the Chairman of the House Ways and Means Committee, the Speaker of the House of Congress and, potentially, the next President of the United States. That is the reality that we are risking with this Bill.
This may all turn out to be a dead cat, but let me tell the Government very clearly that every single day more and more people—people we would not even expect—are saying to me that this Union is very close to becoming a dead duck.
Sir Desmond Swayne (New Forest West) (Con)
The Prime Minister has warned us that a threat has been made to interpret the agreement in such a way as to exclude the possibility of the people of Northern Ireland having access to goods from the rest of the United Kingdom—a threat that clearly shows that those who have made it have abandoned any notion of their binding obligation to negotiate in good faith and make best endeavours to secure an agreement. The Government would be utterly negligent if they were not to take precautions to prevent that from arising; it would be outrageous.
The Chairman of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), has said that the powers that the Government envisage arming themselves with should be used in only the most extreme circumstances. I put it to you, Madam Deputy Speaker, that breaking up the economic integrity of the United Kingdom is just such a circumstance. This Bill is a precaution. It is a deterrent. The best way to prevent ourselves from being in the position of needing these powers is to arm ourselves with them.
There is a principle in international law, which is that no country can be bound by an obligation that it made when that obligation is interpreted in such a way as to undermine the very integrity of that country. That is a principle of international law, and there is only one court that can arbitrate in those circumstances. That is the court of international opinion, and the world can see exactly what is going on. The world has had its own dealings with the European Union and its negotiations. It has seen its infractions of the World Trade Organisation. It has seen what it has done over the European convention on human rights, and it knows what is going on.
There are those who have said that there is somehow a comparison to be made between the powers that we envisage in this Bill and what China is doing in Hong Kong. That is such a grotesque comparison as to undermine any argument that they might have.
Ms Angela Eagle (Wallasey) (Lab)
I never thought I would ever see a piece of legislation this objectionable put before the House. It is a gigantic act of self-harm masquerading as a negotiating strategy in the EU-UK trade talks, as the flounder and the end of the transition period looms. It unilaterally repudiates the devyolution settlements and centralises power to the UK Government.
As currently drafted, this Bill will give Ministers the powers to disapply or unilaterally reinterpret parts of the Northern Ireland protocol and ignore their legal obligations in both domestic and international law to enact the protocol as it was negotiated. It asserts that these powers will be legally effective even though they break international law, thereby unilaterally repudiating the foundations of the withdrawal agreement, which was only enacted by the House earlier this year. The Bill orders the domestic courts to prioritise this new law over any existing international law we have signed up to and it attempts to preclude any prospect of judicial review.
It has already been admitted on the Floor of the House by a Cabinet Minister that the Bill breaks international law in a very “specific and limited way”. The reality is that this is a shocking repudiation of everything the UK holds dear. It threatens to destroy our hard-won reputation as an upholder of international law and as a country that can be trusted to keep its word. Once lost, that reputation will not be easy to regain. This is not only morally wrong—it is self-defeating and undermines the prospect of reaching a deal at all. It is a sign of just how dangerous the Government’s actions now are that all five living ex-Prime Ministers, both Labour and Conservative, have made public their opposition to this reckless course of action, as have the Brexiteer ex-leaders of the Conservative party, Lords Hague and Howard.
This morning, the Prime Minister’s first Lord Chancellor called the Bill “unconscionable” and revealed that he will not vote for it. Many legal experts argue that both the current Lord Chancellor and the Attorney General are in breach of their oaths of office and should resign. Last week, the head of the Government legal service did resign over the Bill because it breaks international law. Given that we have an unwritten constitution which relies on ministerial restraint and responsibility, the Bill is even more dangerous than it first appears. It unilaterally tears up treaty obligations made just months ago and makes it less likely that any of our future undertakings will be believed or trusted, just as we must renegotiate all our existing trading agreements with the rest of the world.
What are we to make of a Prime Minister who presides over this moral vacuum and this reckless gamble with our international reputation; the man who resigned over his predecessor’s deal, which had no Irish border, pronouncing it a betrayal and using it as his path to power in the Conservative party; the man who, nine short months ago, negotiated and signed the withdrawal agreement, declaring it “fantastic”, and expelled from the Conservative party and Parliament all his own MPs who did not back it; the man who went to the country with this “oven-ready” Brexit deal and won a huge majority; the man who now believes it was rushed and flawed, and must be unilaterally written by him and him alone, the world king acting like a two-year-old having a tantrum because he did not get all he wanted; a Prime Minister who is completely careless of the consequences of his own actions; and the leader of a Government who think they can do what they want, purge who they want and act how they want, a Government who think there is one law for them and another for everyone else, repudiating treaties they have just signed and ignoring the lockdown rules they impose on everyone else?
This will not end well. The Government must step back from the brink, withdraw the lawbreaking clauses in the Bill, and think again.
Sir Bernard Jenkin (Harwich and North Essex) (Con)
Rarely can a few words uttered from the Government Dispatch Box have overshadowed a debate like this to such an extent or indeed caused so much instant fury and indignation, but I do not think the House should be in any doubt that the author of those words will have been delighted by the reaction they caused, and that the real purpose and significance of those words will probably prove to be much less than that. The law of this land and international law are both of great importance. I will leave that to the lawyers. The underlying question for the House to address is about where this nation now finds itself.
I support the Bill, because it will be necessary to address at least the worst aspects of the withdrawal agreement and protocol. We cannot be bound by it indefinitely or continue to accept laws imposed on our country by the EU court. At least there was a means of leaving the EU, but there is no obvious means of leaving this withdrawal agreement.
Much has been said about the potential to lose the respect of the international community, but what will other nations think if this great and sovereign nation cannot bring itself to accept that we made a mistake ratifying this agreement? [Interruption.] Some of us warned about it at the time. But the key points are these: the UK will gain respect if we extricate ourselves from the worst aspects of this agreement, which have the capacity to impose laws on our country with even less democratic legitimacy than under our previous membership of the EU.
Alan Brown
Is that now the measure of how we are going to go forward with international treaties: when countries change their minds, they say, “Oops, I made a mistake. We’ll forget about it.”?
Sir Bernard Jenkin
I do not think it is a matter to be done casually and without very great care, but, as many right hon. and hon. Members, even those objecting to this Bill, are now saying, if the worst comes to the worst, we may have to avail ourselves of these powers, because it is the obligation of this House, first and foremost, to stick up for our national interests.
The EU says it will act against the UK through the European Court, but there is something absurd about the EU attempting to impose its laws on a member state after it has left the bloc—when did the voters endorse that? There is something ironic, even bizarre, about MPs in this Parliament demanding that the EU should continue to impose its laws instead of themselves wanting to make the laws for their constituents—they still do not accept Brexit. One wonders whether the Government recognise better than many here how most voters will react to this. Most of those shouting the loudest now showed how little they understood the voters in the 2016 referendum. Voters will support a Government who are determined to resist the unreasonable enforcement of the withdrawal agreement by the EU. Today, the Government have a strong mandate and a secure Commons majority for taking back control of our laws—voters will expect no less than that and they will give little quarter to this Parliament if they are let down again.
We are in a process of constitutional transition, from being subordinated by the EU legal order towards the restoration of full independence. While we are in this penumbra period of mixed constitutional supremacies, it is unsurprising that this kind of controversy should arise. Our other allies and trading partners will have far more respect for the UK if we stand up for our interests in this way than they will if they watch us accepting that we are to remain indefinitely a non-member subsidiary of the EU. The Government must ensure that there will be a clear end to the jurisdiction of the EU Court; that is the test of whether we are taking back control of our own laws, and our democracy demands it.
Brendan O’Hara (Argyll and Bute) (SNP)
What a self-made mess this Government find themselves in, and it was beautifully articulated by the hon. Member for Harwich and North Essex (Sir Bernard Jenkin). For three long years this Government struggled to get their withdrawal agreement through this place. So much time was spent on it that I doubt that there was a dot or comma of that agreement that was not known to the Government. In January, they signed a legally binding international treaty. The Prime Minister signed it and described it then as a “negotiating triumph”. Not only was it a negotiating triumph, but, as he told the electorate in December, it was “oven-ready” and good to go. He told the electorate, “Vote for me and I will get Brexit done”, and for reasons that I will never fathom, the people of England did. So in December, flushed with a huge majority, he led every single Tory MP through the Lobby to support his deal. However, the Government now want unilaterally to move the goalposts and renege on what they signed up to at the start of the year. In so doing, they are wilfully prepared to break international law, take the UK’s already diminished reputation further into the gutter and take a wrecking ball to the devolution settlement. Even for this Government that is quite an achievement.
Are Ministers asking us to believe that, despite three years of intense negotiation, they did not actually understand what they were voting for, and that they did not understand what their confidence and supply partners from the Democratic Unionist party were saying about differential arrangements between Northern Ireland and the rest of the UK? Are we to believe that they were unable to grasp the implications of their own Northern Ireland protocol—the one they designed with the EU to prevent a hard border on the island of Ireland? It is not credible because it is not true.
Alan Brown
My hon. Friend makes a fine point: it is not credible and there has been bluff after bluff. Is it not the case that when the warnings were pointed out, Ministers stood at that Dispatch Box and said, “Don’t worry, we have a magic solution There won’t be any cameras or infrastructure at the border; technology will solve it all.”? We have technology that can control the movement of people and goods and deal with different customs arrangements”? Yet another bluff from an incompetent Government.
Brendan O’Hara
My hon. Friend hits the nail squarely on the head. That is absolutely true. They knew exactly what they were signing up to and exactly what they were voting on—a fact acknowledged by the Chancellor of the Duchy of Lancaster himself, who said in April that the deal ensures that we can leave the EU, and it is “entirely consistent” with the Belfast agreement and all our other domestic and international obligations.
So, how did we get from the agreement being a negotiating triumph in January, and being entirely consistent with domestic and international obligations in April, to today, with a Government boasting that they will knowingly breach international law if they do not get their own way? I believe that, in short, it is because those at the heart of this Government have decided, in true Trumpian fashion, that the UK will no longer play by the rules. They have cynically done their sums and reckon they have the numbers to push this legislation through. It is the behaviour of a Government who have lost their moral compass—a Government who have been reduced to using the Good Friday agreement as a bargaining chip.
It is little wonder that the United Kingdom is fast becoming regarded as a bad-faith actor among the international community, where adherence to international law and the obligations that come with it are what sets us apart from rogue states and dictatorships. The irony of all this is that it emerged against the backdrop of the faux outrage about the last night of the proms and whether it was appropriate to play “Rule, Britannia! Britannia, rule the waves!”; we know it is a case of Britannia waives the rules. It is not just now; it was ever thus. Ask the Irish and the people of India. Go to large swaths of Africa. Go anywhere that is still recovering from the wreckage of British colonialism and the people there will give chapter and verse about Britannia bending, breaking, inventing and waiving the rules all day long to suit its own ends. The world had hoped and probably half expected that those days were gone; sadly, they clearly are not.
For Scotland, it does not have to be this way: we have an escape route available to us—an escape route with independence that will take us back to the family of nations of the European Union, as a law-abiding European country on an equal footing with every other independent country. It is little wonder that opinion poll after opinion poll has shown a majority for independence. I confidently predict that tonight’s shenanigans will bring that independence closer and Scotland will become an equal member of the European Union, because that is the fast-approaching settled will of the Scottish people.
Imran Ahmad Khan (Wakefield) (Con)
Just like the overwhelming majority of Members, I was returned to this House on the promise of getting Brexit done. I am an ardent supporter of Brexit and look forward eagerly to the opportunity to bolster the United Kingdom’s position by becoming an independent, self-governing nation, possessed of the confidence that flows from our vision and principled values.
Although I stand four-square behind the Government’s policies and objectives, including those advanced by the Bill, I cannot vote for legislation that a Cabinet Minister stated from the Dispatch Box will break international law. Before I was returned to this House, I spent many years in distant, sometimes dangerous places on behalf of our country, our closest friend, the United States, NATO and the UN, where I was committed to upholding the international rules-based system, which is the only shield we have against the law of the jungle. The rules-based system is, of course, one that the United Kingdom was proud to play a central role in building.
I have every sympathy with Her Majesty’s Government and place the responsibility for the impending denouement firmly with the EU, as it haughtily refuses to deal with the UK as a sovereign equal, like our sibling Canada. The Northern Ireland protocol was agreed on the assumption that Brussels would provide an off-the-shelf trade deal with no bells and whistles, as Monsieur Barnier himself offered. That would have involved no more than a light-touch border between Britain and Ulster. The EU has moved the goalposts. The prospect of a no-deal rupture and intra-UK trade tariffs has constitutional implications for the United Kingdom, creating a much harder trade border in the Irish sea than Unionists supposed. It therefore intrudes ineluctably on the Belfast agreement.
Ian Paisley
I appreciate the points that the hon. Gentleman is making; they are important to the debate. Is he appalled by the suggestion that was made tonight from the Opposition Benches that we would invoke America to stop doing a trade deal with the United Kingdom just because of this? Is he appalled that someone in this Parliament would invoke America to do that? Is he appalled that someone would do it just to save little bits of paper between Northern Ireland and GB when doing trade? Is he not appalled by that? Because I am.
Imran Ahmad Khan
I am mildly surprised. I worked for some time for the Pentagon and the State Department, and I know the Americans very well. Like the United Kingdom, it is a nation built upon laws and it has representatives. The Americans know their national interest exceptionally well, and of course it is in the American national interest to have an expansive and ambitious free trade agreement with the United Kingdom, given our size and wealth.
It is not only certain Members of this House who make peculiar statements. I have no sympathy with the hysterical, hypocritical and hyperbolic statements from the EU, declaring that the UK uniquely will be in breach of its international commitments. Half the countries of the EU are in breach of their various treaty obligations. Germany and France both choose to deliberately breach their EU treaty commitments relating to budget deficit limits, and others are famous for being selective in deciding which rules to follow. However, the UK has always held itself to a higher standard. Our principles of fair play and freedom, underpinned by the rule of law, are who we are. They are part of our DNA, and must be protected. Our position of global leadership and permanent membership of the Security Council is derived not from being a victorious power but from our moral authority. Moral authority is hard earned and easily lost. Once damaged, it is difficult to repair.
Having consulted highly respected experts in international law, some of us have concluded that if the EU, in breach of its obligations to act in good faith and with best endeavours, were to employ the withdrawal agreement as a Trojan horse, this Bill, if enacted and employed, would not necessarily constitute a breach of our commitments, under either UK or international law. Rather, the Bill would then serve as a protection against the abuse of our good nature and a reminder to the Commission of its obligations.
Jim Shannon
There have also been other legal opinions sought, one of which was from Martin Howe QC. He refers to the alteration of the “constitutional status” of Northern Ireland that across-the-board tariffs on GB-to-Northern Ireland exports would entail, saying that this would be a breach of the core principle of the Good Friday agreement. He goes on to say:
“International law does not justify a later treaty to which these community representatives are not parties being used to over-ride the rights they enjoy under the earlier treaty”.
That is another legal opinion, and it might be very different from those sought by the hon. Gentleman.
Imran Ahmad Khan
My great problem with the Government’s position is the predicament in which they have placed people who share my view—I think the hon. Gentleman probably shares it too—because that view has been undermined, I am sad to say, by the assertion of a Government Minister that the Bill would represent a specific and limited breach of international law.
Alexander Stafford (Rother Valley) (Con)
Does my hon. Friend agree that the Government have been put in this situation only because the EU has not been playing with a straight bat? If the European Union played this straight and treated us as equals, we would not been in this situation. In fact, the fault for all this lies with the European Union for not treating us fairly.
Imran Ahmad Khan
I entirely agree with my hon. Friend in as much as the EU has not been playing with a straight bat, but I find it difficult to understand the statement, the motivation behind it or, indeed, the credibility of the comment, because I simply reject the notion that we would be in breach of our international obligations.
We have been placed in a predicament because of that statement that the Bill would represent a “specific and limited” breach of international law. Only if my right hon. Friend the Chancellor of the Duchy of Lancaster, in his response to the debate, can provide assurances to the House that Her Majesty’s Government share my interpretation—our interpretation—that such powers, if enacted and employed, would not automatically constitute a breach of our legal obligations will I support the Bill.
Lilian Greenwood (Nottingham South) (Lab)
If any of my constituents are watching this afternoon, I think they will be wondering what on earth is going on. “Why,” they will ask, “are MPs banging on about Brexit again? Isn’t that what the general election last December was meant to end? Didn’t we leave the EU in January? Wasn’t there meant to be an oven-ready deal?” They will ask, “Is this really what you should be focused on today?”
Right now, some of those constituents will be sitting at home feeling ill, anxious that they might have coronavirus but unable to get a test. Or they will be trying to work from home while looking after their son or daughter, who cannot go to school because they have a cold—or maybe it is coronavirus, but they do not now because they cannot get a test. Or perhaps they are on furlough because the business they work for has not yet fully reopened, or has not got everyone back yet, and they are anxious about whether they will have a job when the coronavirus job retention scheme ends next month.
People who work for one of our east midlands manufacturing businesses will be especially worried about the Prime Minister’s bluff and bluster earlier today; they, more than anybody else, require us to secure a deal, because their jobs depend on it. All those people will be asking why we are arguing about Brexit again when the top priority should be tackling the pandemic that threatens lives and tackling the resulting economic crisis that threatens their livelihoods.
Agreeing a trade deal with the EU is vital, but the Government need to get on with it rather than making it more difficult with the sort of posturing that we have heard today. The protocol contains a mechanism for dealing with disputes. The Chancellor of the Duchy of Lancaster himself said that
“the effective working of the protocol is a matter for the Joint Committee to resolve.”
Surely they need to get back round the negotiating table, stop posturing and reach an agreement on how the protocol should operate.
Tom Hunt (Ipswich) (Con)
I am sorry that it is really politically inconvenient for Brexit to come back to this Chamber because it reminds people that it was the Labour party that turned its back on the verdict of the British people three or four years ago, but surely it is not surprising: when the transition period is about to come to an end, these debates will come back to the House. Does the hon. Lady not agree with me that it is good that we finally have a Prime Minister who is fighting for British interests?
Lilian Greenwood
I think my constituents will expect a little bit better than that. They will expect the Government to get on with the job that they promised to do. The Government said they were going to deliver a Brexit deal, they said they had it ready, and my constituents do not expect them now to say that they made a mistake—that somehow it was not what they expected.
Matt Rodda (Reading East) (Lab)
At the heart of it, is not the issue that this whole thing comes across as a giant piece of bluff and bluster by a failing Prime Minister? As my hon. Friend rightly hints at, this is a means to distract the public from other immediate pressures. To make matters worse, it damages our reputation in the eyes of the world at a time, as Members have correctly pointed out, when we need to seek a trade agreement not only with the EU but with a number of other countries.
Lilian Greenwood
My hon. Friend makes an important point. The timing is very interesting. We are at a point when many people are looking at the Government and are extremely worried about their incompetence and the way they are dealing with the current health crisis. With today’s debate and the Prime Minister’s position, well, people will wonder what is going on.
People will be baffled because every time they have listened to the news, watched politics on TV or opened a paper in recent days, they will have seen a senior Conservative MP, or a former Tory Attorney General, Prime Minister or Chancellor of the Exchequer, expressing grave concerns about the content of this Bill. Those concerns are not just from those who might be called “the usual suspects”—those who were remainers—because this is not about whether we leave the European Union. We have left. That argument is over. Their concern is that the Bill deliberately breaks international law, will prevent us from completing a deal with the EU in the very short time available to do so, and will have much wider ramifications for the future of our country. They are risking the UK’s reputation across the globe.
Many hon. Members have already asked how other countries, with whom we want and need to make trade deals, will trust a Prime Minister who, just a few short months after he negotiated and signed an agreement, now says that he intends to break its terms. We do not have to guess what they will think; we can see for ourselves the reaction from our friends and allies, including, as has already been said, from the Speaker of the US House of Representatives. If the Prime Minister really considers that this deal contains serious problems that could break up our country, why did he sign it? Why did he claim it was a great success? Had he not read it, or did he not understand it?
Of course, the dangers of the Bill are not just about the UK’s ability to negotiate trade deals; they are about the UK’s reputation and its moral authority. How can our Government seek to uphold the rule of law if we break it ourselves? How can we hold other nations to account on their treaty obligations on international standards when we disregard our own?
Lilian Greenwood
I will not, because we are very short of time. Speaking to the House earlier, the Prime Minister claimed that the provisions of the Bill will be used only as a last resort, and sought to play down the problems that it poses but, as the House of Commons Library briefing states,
“the existence of the power to override a number of the UK’s international obligations may itself constitute a violation of international law.”
The very fact that it has been tabled is already undermining the reputation of this country, and damaging our relationships with those we need to reach deals with.
There are other concerns about this Bill: that it runs contrary to the devolution settlement; that it will enable a race to the bottom on standards; and that it undermines the rights of the devolved nations to set their own spending priorities. The Government should ensure free trade access across the UK. We need a strong internal market, but this Bill is not the way to do it. Unless it is amended, I cannot, and this Parliament should not, support it.
Jeremy Wright (Kenilworth and Southam) (Con)
The majority of the Bill is sensible and necessary for an effective United Kingdom single market when we are no longer subject to EU rules. My issue, as for others, is clauses 42, 43 and 45, which take what was agreed less than a year ago about the primacy of the withdrawal agreement over domestic law and reverse it. They are not a clarification but a contradiction of that agreement, and the Government are very clear about this: doing that would be breaking international law.
I agree that it is possible to break international law without automatically breaking domestic law. It is also true that Parliament is sovereign, and it can choose to break international law if it wants to, but the fact that an international law breach is not a domestic law breach and is not unconstitutional does not make it a good idea. The blatant and unilateral breach of a treaty commitment could be justified only in the most extreme and persuasive circumstances. The Government say that such circumstances are those in which no ongoing trade arrangement is made with the EU and where the Joint Committee established under the withdrawal agreement to resolve problems of interpretation is unable to do so, leaving the UK in an impossible position.
Sir John Hayes (South Holland and The Deepings) (Con)
That is the nub of the argument, is it not? These are exceptional circumstances. We are about to negotiate by far the most important agreement that this country has reached for the last 40 years. In those highly dynamic circumstances it is right that this Parliament should give the Government sufficient flexibility to get the best possible deal for Britain. That is what this is about, and that is why we should support the Bill.
Jeremy Wright
If my right hon. Friend will allow me, I will address exactly that point and what the Government could be doing instead of what they are proposing to do. Let me say first that the possibility of reaching no trade agreement and of deadlock in the Joint Committee was foreseeable yet when the withdrawal agreement was signed, and again when it was legislated for, the Government did not say that the risk of the outcomes they rely upon now undermined the deal on offer; they said then and they say now that this was a good deal. So what has changed?
That leads to the argument to which my right hon. Friend refers: that, unexpectedly, the European Union is now adopting an interpretation of the Northern Ireland protocol so outrageous and so far from a rational reading of that protocol that we could not have seen it coming and we could not possibly accept it, leaving no option but to abrogate ourselves the relevant parts of the protocol. But the withdrawal agreement sets out a mechanism for resolving disputes about interpretation, involving binding independent arbitration and penalties including the suspension of obligations under the agreement. If the EU’s new approach is so far from what the agreement intended, why would the Government not succeed in using that mechanism?
Sir Bernard Jenkin
The answer is that any question in European law, under article 174 of the withdrawal agreement, has to be referred to the European Court of Justice, and the Court is acting not on behalf of the 28 as before, but on behalf of the 27. We know it is a political court.
Jeremy Wright
My right hon. Friend might be right to be sceptical about the Court of Justice of the European Union, but the issue likely to arise here is not a question of European Union law; it is a question whether there is compliance with the withdrawal agreement signed by both sides. That does not necessarily raise a question of European law; nor, in my view, is it likely to. It raises a question of treaty law and whether or not this is being abided by in good faith.
I accept that the Government have a problem, but I cannot accept that the proposed solution is either necessary or right. International law matters. The rules that bind nations underpin what the United Kingdom says on the world stage on a variety of subjects, from the Skripal poisonings to the treatment of the Uyghur people to the detention of Nazanin Zaghari-Ratcliffe. We speak often, and rightly so, of the rules-based international order as the foundation of freedom and justice in the world and of our security. The rules referred to are, of course, rules of international law. If we break them ourselves, we weaken our authority to make the arguments that the world’s most vulnerable need us to make. Nor is it in our long-term diplomatic or commercial interests to erode the reputation we have earned for the strength of our word and our respect for the rule of law—a reputation that, ironically, we will rely on more than ever when the Brexit process is complete.
I do not believe that my right hon. Friend the Prime Minister or his Ministers wish to undermine that reputation, but I do believe that if Parliament were to give Ministers the powers they are asking for, and if they were to be exercised, we would all come to regret it. That is why I cannot vote for the clauses as they stand, or for a Bill that contains them.
Pete Wishart (Perth and North Perthshire) (SNP)
Sometimes a piece of legislation comes along that is just so audacious, pernicious and chaotic that it is difficult to comprehend the scale of the carnage it will deliver in its wake. This single market Bill is a prime example of that type of legislation. It is almost unbelievable. It is a Bill that only this Government, with their weird assortment of Brexiteer oddballs, would consider going anywhere near. In fact, it is almost perfect for them, given their penchant for governance by chaos and disorder.
Breaking international law? For this Govt, that is a trifling detail. They just do not care. For them, being a rogue state is as natural as leaving the EU without a deal, or illegally proroguing Parliament. They are even starting to tell us now that being a pariah state somehow enhances the UK’s international standing. We can imagine, in a few years’ time, the Foreign Secretary of rogue state UK turning up to the United Nations during an international crisis that threatens the world order involving, say, Iran or North Korea, or an international convention or treaty. What authority and credibility would rogue state UK have in that situation? Kim Jong-un would turn around and say, “I’m firing these missiles, but only in a limited and specific way.”
I want to confine my remarks to what this rotten Bill will do to my nation. If the Government want their rogue state, that is up to them. If they want their no-deal Brexit, go ahead, have it, we will wish you all the best, but do not bring down our beautiful nation in the process. Never before has there been such a sustained attack on our Parliament or our democracy. The invention and development of the idea of a UK single market has been one of the most spectacular and dishonest pieces of political chicanery we have witnessed in recent times. The barefaced nonsense of this being a power surge is contradicted by practically every detail of the Bill.
There are two areas I particularly want to touch on. One is what is included in clause 46—the one that allows the UK Government to legislate directly in devolved responsibilities. This mechanism is designed to bypass the Scottish Government. The Scottish Tories know that they will never come anywhere near governing Scotland, so what they will do is just get around the process. Even under the new leadership of the ever charming ray of sunshine that is the hon. Member for Moray (Douglas Ross), they are still going down in the polls, so what they need to do is circumvent Scottish democracy and ensure that they get direct control and access to specific interests when it comes to Scotland. That is what they are doing with this particular Bill.
The other thing is the Competition and Markets Authority. I remember listening to all those Brexiteer colleagues over there, when they used to rage against all the unelected bureaucrats—remember these mythical creatures of yore? Well, I found them—they are not sitting in an office in Brussels; they are sitting in the Cabinet Office. They are not called the European Commission; they are called the Competition and Markets Authority, and it is them that will arbitrate on everything to do with devolution and what the Scottish Government can and cannot do.
Ian Paisley
Did the hon. Member not oppose the Northern Ireland protocol because it discriminated against the needs of the people of Scotland? Now for some reason he seems to be taking to his hind feet, wanting to support the protocol and oppose the Bill that removes those pernicious aspects of the protocol. Why has he changed?
Pete Wishart
I think the hon. Gentleman may be confusing me with somebody else. I say ever so candidly to him that I did not oppose just parts of the Government’s EU Brexit—I opposed it in its totality, as did the people of Scotland. We opposed overwhelmingly the idea that we have to be taken out against our will.
This is what it is coming down to. In the next few months, the Scottish people have a critical decision to make about the type of future they want for their country. They could decide to remain part of rogue-state UK, with the Government’s no-deal Brexit and all the other things that they want to do, or they could simply decide that they want to become an independent country of their own, making their own decisions and their own way in the world, deciding things in good faith, negotiating as a nation, and coming together with other nations in the world to ensure that we get the best possible future for us and our allies.
We have only a few short months when it comes to this, and I think we are beginning to see just where we are going. Independence now sits at 55%—the highest it has ever secured. There is sustained majority support for independence in Scotland. My nation is making up its mind about the type of future that it wants, and it is not this future as a pariah state, taking us out of the EU against our national collective will. We have only six months to get this debate properly focused and determined. I am pretty sure, when I am looking at opinion polls and seeing where independence is, that Scotland is making up its mind. Scotland is deciding that it is going to be a nation of its own.
Several hon. Members rose—
Madam Deputy Speaker (Dame Eleanor Laing)
After the next speaker, we will reduce the time limit to three minutes. I am sorry about that, but it enables more people to be able to contribute to this lively debate.
Douglas Ross (Moray) (Con)
Following the speech of the hon. Member for Perth and North Perthshire (Pete Wishart), I simply say that Scotland is my nation as well. The SNP does not speak for Scotland. The SNP is not Scotland. I am proud to be Scottish and British, and when the SNP stands up and claims that it speaks for the whole of Scotland, it does not. The hon. Gentleman would be advised to stop making out as if it does.
I want to make the point that this Bill at its heart, at its core, at its centre, is about jobs and businesses. Is it not telling that in all the SNP speeches that I have listened to tonight, jobs and businesses have not been mentioned once? The SNP was opposed to this internal market Bill long before the events of the past few days, because it is opposed to what it means for Scotland and to what the UK Government can do for Scotland and for the 545,000 jobs that the Fraser of Allander Institute says rely on the internal market of the United Kingdom. In 2018, that internal market ensured £51.5 billion of trade between Scotland and the rest of the United Kingdom—three times more than the trade that Scotland does with the whole European Union put together.
This Bill’s protecting and enshrining our internal market in the United Kingdom is about protecting those jobs and those businesses. It is about ensuring that businesses in Forres and Fort William can do the same trade across all four nations of the United Kingdom as those in Felixstowe and Farnborough. That is what is important about this legislation. That is why we have to ensure that it is there, and that it is capable of delivering for individuals, for businesses, for their jobs and for the communities that they serve. That is why I believe that at the heart of this legislation we should be speaking about what it means for our communities, our businesses and our jobs the length and breadth of the country.
I want to focus on remarks by the hon. Member for Perth and North Perthshire (Pete Wishart), and by the SNP the whole time, about how this is somehow a power grab. It cannot be a power grab when more than 100 extra powers are going to Holyrood, to the Scottish Parliament and to the Scottish Government, and not one is being taken away. That cannot be explained as a power grab.
Douglas Ross
I apologise to the hon. Gentleman; I like debating with him and he has tried to get in plenty of times, but I must say to Members on both sides that debating time is about to be constrained by a further minute for each speaker and there are more than 100 Members on today’s call list, so I will not take interventions.
There is no power grab; 100 extra powers are going to the Scottish Parliament, and not a single one is being taken away. For some reason, SNP Members are now against the UK Government investing in Scotland. This is the same SNP and Scottish Government who are saying, “We don’t want your money in Scotland.” Well, I do. In my nation of Scotland, I want to see our two Governments working together as they do on city and growth deals the length and breadth of the country. Every part of Scotland is now covered by a city and growth deal, which shows our two Governments working together and investing together. That is what people want: not a rehash of the division of the past, which the SNP continually wants to drag us to, but looking to the future of Scotland—looking to the future of what we can achieve together as a United Kingdom, with our UK internal market delivering for jobs, communities, the economy and businesses. That is what we want to focus on.
I understand the concerns of Members across the House, but by voting for this legislation at stage 2—Second Reading—tonight, we will allow it to go into Committee and allow the democratically elected Parliament of the United Kingdom to scrutinise, debate and, potentially, amend it. That is what we should be doing.
Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)
It has been a pleasure to hear the erudite legal arguments tonight from Members including the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright) and the hon. Member for Bromley and Chislehurst (Sir Robert Neill). I am not an erudite international lawyer, so I see it as it is, and perhaps I will put it in simpler terms. It is an utter shambles. It is chaotic.
We have a history of cheap slogans that are now coming home to roost. When people boil down major international issues into three-word slogans and believe that they are true, this is what happens. We had “Take back control”, when we already decided the vast majority of our laws. We had “Get Brexit done”, when it is not as simple as that at all, as we can see from our being here today discussing it. Then we had the “oven-ready deal”—the deal that was then delivered by the current Prime Minister but is now being undermined by his very own Bill. It threw up squarely and clearly the problems between Brexit and the hard-fought Good Friday agreement, and it is now being ripped up and is causing huge problems, playing fast and loose with devolution.
The impact on the independent decision making of the Welsh Government, the Scottish Government and the Northern Ireland Executive is frankly shocking, especially for a party that describes itself as the Conservative and Unionist party, but that is not entirely surprising. This is a Government who think that the law can be applied differentially. We saw it with the shutting down of Parliament illegally before the last general election. We have seen it with the breaking of lockdown rules for some favoured few. Shockingly, we see it now with the breaking of international law. The hon. Member for Harwich and North Essex (Sir Bernard Jenkin) says that, if we break international law, it should not be done casually. Well, this seems rushed and casual to me. Less than a week ago, none of us knew that this was coming—perhaps not even the Prime Minister—but it has huge long-term impacts.
This afternoon, I chaired the Public Accounts Committee. We were looking seriously at the Government’s proposals around export strategy; the Government have a target to boost exports, which we would all expect. We were challenging the Department about how it was going to achieve that. There is a real will to deliver it, but what country will trust us now if we pass this Bill, which says that we will legislate our way out of any international deal?
In short, this Government are not competent. They have been cavalier, they are undermining the Union and they are damaging the UK’s international reputation irrevocably.
Andrea Leadsom (South Northamptonshire) (Con)
It is always a great pleasure to follow the hon. Member for Hackney South and Shoreditch (Meg Hillier). I have a lot of respect for her opinions, but I fundamentally disagree with her on this.
I look around the Chamber at so many dear colleagues with whom I have debated at quite some length over the past four years—nearly four and a half years. This has been so frustrating. Leaving the EU has been the most divisive subject since June 2016. We now have to get to the end of the transition period. We really want a free trade deal as an independent sovereign nation with our EU friends and neighbours that works in the interests of every part of our United Kingdom, and also works in the interests of our EU friends and neighbours and protects their single market. On that, surely, we can agree—apart from perhaps a few of those who still wish we were having a second referendum, but let us not go there.
We negotiated the withdrawal agreement in good faith, as, I think, did the EU member states. The problem is that the Joint Committee, which was set up by that withdrawal agreement, was designed to provide the definitions. It was designed to give us clarity around what “goods at risk” meant, how the Northern Irish protocol would work, and all the details that, as yet, have not been ironed out. What we have discovered—
I can say this, having been part of Cabinet Sub-Committee meetings that discussed some of the EU’s proposals—is that the EU has not acted in good faith. I am very sorry to say that, because EU leaders do, as a rule, want to have good relationships with the United Kingdom, but the Commission has sought to reach into our sovereign United Kingdom and force us, as a member state that has left the EU, to abide by its rules on an ongoing basis, and that is utterly unacceptable.
I will be supporting the Bill today. The reason for that is that we, as the United Kingdom Government, must always be able to hold our heads up high to say that we have acted with integrity in the interests of our United Kingdom, that we are protecting the Belfast Good Friday agreement, and that we are giving the essential clarity and certainty to businesses that they desperately need. I urge all colleagues to please support the Bill tonight.
Alyn Smith (Stirling) (SNP)
I am appalled by this Bill, and I have been trying to think why. The conclusion that I have reached is that we have two genuinely opposing world views conflicting tonight. From the perspective of the SNP, on behalf of Scotland’s interests, we have a fundamentally different view from the Members on the Government Benches—not illegitimate but different. We are two nations going in two different directions with different ambitions, and this Bill cuts across deep visceral principles of my party. We believe in the rule of law. We are a constitutional party. We believe in a multilateral, rules-based order. We have a clear vision of how we want Scotland to fit into that organised, binding international solidarity. We believe that agreements should be honoured. I would not have thought that that was a controversial statement, but it is in the face of this Bill, and it shames this House that we are even considering it.
We believe that the people best placed to make decisions for Scotland are the people who live in Scotland. In 1997, by 74%, the people of Scotland endorsed that principle, and endorsed the model of devolution that said that, unless specifically reserved to this place, decisions should be made in Scotland by our democratic authority. It is that principle that this Bill undermines.
Members should be in no doubt: the operation of this Bill is a wholesale, calculated, deliberate reversal of the devolution principle. There is no amount of bluster that will distract from that—not that we have heard much of it; they have all gone quiet. It is there in the Bill for all to see. In clause 46, there is an explicit assumption of budgets in Scotland, without Scotland’s consent. In clause 48, a power of subsidy is explicitly assumed, again without Scotland’s consent. In part 1, on the mutual recognition rules, it is clear that the operation of the UK internal market will undermine out of existence the competence and capacity of the Scottish authorities to make different decisions.
The most egregious part for me is part 4, on the role of the Competition and Markets Authority. For people who talked about unelected bureaucrats, here are unelected bureaucrats on steroids: people who will sit above each and every public organisation and authority in Scotland and gainsay every budget and every decision going forward—a politically appointed death panel that will sit above every democratic decision of every organisation in Scotland. We reject it. It is not in Scotland’s name.
This is a bad Bill. It undermines devolution. It actually strengthens the case for independence, if Conservative Members really want to have some pause. This House should reject this appalling piece of legislation.
Mr David Jones (Clwyd West) (Con)
The withdrawal agreement is a profoundly self-contradictory document, and never more so than in respect of Northern Ireland. It declares ringingly, for example, that Northern Ireland is part of the customs territory of the United Kingdom, whereas the substance of it is that it is part of the customs territory of the European Union. Similarly, it provides that Northern Ireland should have unfettered access to the mainland British market, but at the same time it sets up arrangements to frustrate that. These provisions can potentially have the most serious adverse consequences on the integrity of the UK market.
The position is that unless provisions to the contrary are agreed in the joint committee or in the future relationship negotiations, trade between Northern Ireland and the rest of the UK will be severely impeded. Checks will apply to goods passing between Northern Ireland and Great Britain, and the EU customs code will apply to Northern Ireland, potentially meaning tariffs applied on goods passing between Great Britain and Northern Ireland. Part 5 of the Bill amounts to a safeguard against the potential consequences of this state of affairs. Of course, if a free trade agreement can be concluded, there will very probably be nothing to worry about. An acceptable free trade agreement could subsume the withdrawal agreement and thus the problem, and put relations between the UK and the EU on a more regular footing.
The EU is crying foul at the publication of this Bill, but the fact is that the EU’s own conduct in the negotiations has simply not adhered to the provisions of the withdrawal agreement. As the right hon. Member for East Antrim (Sammy Wilson) pointed out, these obligations move in both directions. The agreement provides that both parties should attempt to negotiate a free trade agreement acting in good faith and using best endeavours. The political declaration provides that the negotiations should respect UK sovereignty and the integrity of the United Kingdom market. However, the EU’s conduct has not reflected the obligations it has under the withdrawal agreement. It has refused to discuss anything apart from its own red lines of fisheries and the so-called level playing field. It is therefore essential that we should put in place measures that will protect us and our internal market in the event that the negotiations do not result in the sort of free trade agreement we are seeking.
It would be contrary to the national interest of this country if this Bill were not passed. The consequences for our constituencies and the livelihoods of their residents would be very serious if the Bill were not enacted, and it therefore has my full support.
Chris Bryant (Rhondda) (Lab)
This law is a scoundrel’s charter. I was taught as a child that it was the quintessence of Britishness and the quintessence of honour that my word was my bond—that what I had signed up to I was pledged to and I would stand by. We, the United Kingdom, Her Majesty’s Ministers on behalf of the whole nation, and this Parliament—the newly elected Parliament—signed this into law. We signed on the dotted line. The Prime Minister called it a “fantastic moment”. He said it was a great, great deal. The Tory manifesto was absolutely clear that it was a wonderful ready-made deal for the United Kingdom. Now the Government intend to trail our honour through the mud, and I will do everything I possibly can to prevent that.
If this goes through in the way that it is drafted at the moment, we will become the scoundrels of international law. The Government have even put their bad faith into the Bill. With the single word, “notwithstanding”, they have made Government Ministers do contortions. Who ever thought that we would hear a Government Minister say that the Bill breaks international law in a “specific and limited way” as if that is fine—some kind of Cummings get-out clause? Even worse, the Justice Secretary said, “I’ll quit if the rule of law is broken in an unacceptable way.” So now, according to the Justice Secretary, there is an acceptable way for somebody to break the law—again, the Cummings rule.
Clause 45 actually uses the word “notwithstanding”. I thought I might hear Vladimir Putin say, “notwithstanding the Budapest accord, which guarantees the territorial integrity of Ukraine”, or President Xi say, “notwithstanding the Sino-British joint declaration”. I never thought that I would see in a British Bill signed off by British Government Ministers, who are meant to respect the rule of law, a line that says:
“notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent”.
The hon. Member for Harwich and North Essex (Sir Bernard Jenkin) said, “It’s just a mistake; we should say it’s a mistake.” Well, why did everybody vote for it? What honour can you possibly have if you think that this is just a mistake?
There is another fib at the heart of the Bill, which is that it purports to say that there is going to be lots of extra money for constituents like mine in the devolved areas of the country. I do not think we will get a single extra penny, because we have been waiting for the shared prosperity fund for weeks and months and years, and not a single word has yet been published about it.
The truth is that we need the rule of law in this country; we rely on international treaties. It guarantees contracts. It makes us honest and protects us from overbearing government. I say to the Government: if you try to sack members of your own party because they have a conscience, you are on the route to dictatorship.
Mr Andrew Mitchell (Sutton Coldfield) (Con)
It is always a pleasure to follow the hon. Member for Rhondda (Chris Bryant).
This is of course an essential Bill for the good order of the internal market. It is essential for our economic success, wellbeing, jobs and employment, and I support it. I am very surprised at the EU’s negotiating strategy and purpose, particularly in offering my right hon. Friend the Member for Maidenhead (Mrs May), in effect, the Canada deal, and then declining, to date, to offer the same terms to the Prime Minister. I therefore have no hesitation in supporting the Bill’s Second Reading, and I give the Government my strong support for reaching a deal.
But I am not going to vote to breach international law, and I want to explain why. As International Development Secretary in the coalition Government, I consistently spoke up for the rule of law. Britain has been a beacon, in some very difficult places in the world, for support for the rule of law. Our support is relied on in that respect, and it matters, whether we are dealing with the rights of gay people in Uganda or ensuring the last vestiges of law in Zimbabwe, never quite snuffed out by dint of Britain’s strong support for the rule of law. Many in this House have rightly spoken up for the rights of Hong Kong citizens when China has sought to resile from international agreements it had signed. We are one of the five permanent members of the United Nations Security Council. We have a duty to uphold international law. The rule of law is incredibly important for our basic liberties and human rights, and failing to do so will do incalculable damage to our reputation all around the world.
I have two further points to make. The first is that Members of the House should read with the greatest care what John Major and Tony Blair have said about the dangers of all this for the Good Friday agreement and peace across Northern Ireland. I have been here long enough to remember the awful statements about violence in Northern Ireland, with innocent civilians maimed and worse. Secondly, we have one of the largest national debts of any country in the world, and confidence in our debt depends on an absolute understanding that Britain will always stand by its word.
In the past, I have voted in this House in ways that I have regretted. I voted for section 28, I voted for the poll tax and I voted with the then Prime Minister on Iraq. But I do not believe I have ever gone into a Lobby to vote in a way that I knew was wrong, and I will not be doing it on this occasion either.
Sir Edward Davey (Kingston and Surbiton) (LD)
I agree with the right hon. Member for Sutton Coldfield (Mr Mitchell): this Bill breaks the rule of law. It is against the national interests, and my party will oppose it. That might not surprise people. We have argued for Britain to work with our European partners at the heart of Europe, but in our opposition to the Bill, I am determined that we represent the views of leave voters as well as remain voters.
From the Prime Minister’s promise that he had an oven-ready deal to his promise that he wanted a global Britain, this Bill breaks those promises made to leave voters. If the Government were to carry out their threat and breach the international treaty that the Prime Minister himself signed, it is clear that there would be no deal. The oven would not even be opened. If the Government deliberately and intentionally break international law, global Britain’s ability to exercise influence in the world would be weaker than at any time since the first half of the 18th century.
As the arch Brexiteer and former Conservative party leader Michael Howard said, what message does this send to China, Russia or Iran? What credibility will Britain have in urging other countries to uphold international law if our great Parliament votes for this Bill? What about the future trade deals that Britain so desperately needs as we leave the world’s largest single market while trying to recover from covid and this deep recession?
Our Prime Minister likes to portray himself as a modern-day Churchill, but Churchill said that the rule of law is part of the “title deeds of freedom”. Churchill will turn in his grave if this Bill passes tonight. Let us remember what we teach our children in every school across this country. We teach them about British values of democracy, individual liberty and the rule of law. This Bill is against the very values that we teach our children about the importance of obeying the law.
For a Government to send this law-breaking signal would be appalling at any time, but we are in the middle of a pandemic, and if we are to beat this dreadful virus, people need to obey the law, even when the emergency covid laws were among the most draconian that the British people have faced for centuries. The rule of law has never been more precious to the health of our nation, and yet the Prime Minister has chosen this moment to trash the rule of law. This House must stop him tonight.
John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)
In the short time available to me, I want to focus on the aspects most relevant to Scotland. This Bill is about protecting those who work or do business across the four nations of our United Kingdom. That single internal UK market has served us well for centuries, creating a barrier-free internal market that was one of the core purposes of the Acts of Union. Until we joined the European Communities in 1973, that internal market was regulated by this Parliament. From the point that we joined the European Economic Community, the crucial aspect of market control passed to the European level. Europe took those powers for pragmatic reasons, because they were simply needed to operate its single market. That is the spirit behind this Bill too.
We have heard a lot about devolution in the context of the Bill, including from a number of Members during the debate. The devolution settlements were made in the late 1990s, when there was virtually no thought that the UK would leave the EU. EU law was binding on the devolved Assemblies, and the UK Government, acting on behalf of the whole UK, represented all four nations at the Council of Ministers, including in devolved areas.
Stuart Anderson (Wolverhampton South West) (Con)
Does my hon. Friend agree that the Bill strengthens the Union rather than weakens it as Opposition Members are saying?
John Lamont
I am grateful for that point and completely agree with my hon. Friend. The Bill not only protects jobs but strengthens the bonds of the Union that ties the United Kingdom together. As well as remembering the history, we must understand what devolution is in the United Kingdom. It is a means of giving people in Scotland, Wales and Northern Ireland the freedom to craft policies and take decisions on matters that affect them, while continuing to derive all the benefits of membership of a unitary United Kingdom. Right from the very beginning, it has been a central assumption of devolution that matters essential to the operation of the United Kingdom would be decided at UK level.
This Parliament is the democratic embodiment of the United Kingdom, and it contains Members who have been elected on an equal basis and who represent every square inch of the United Kingdom. It is here that decisions affecting the UK as a whole should be taken, just as those that affect the whole of the European Union are taken in Brussels—a fact with which very few Opposition Members had any problems at the time. That inconsistency speaks volumes, especially when the net effect of Brexit will be a massive increase in devolved powers, including those on air quality, energy efficiency and elements of employment law. It is a further irony that SNP policy is to hand those new powers straight back to Brussels at the first available opportunity.
Sir John Hayes
As my hon. Friend knows, this Parliament is the guarantor of people’s freedoms. That is not about international arrangements or foreign Governments; this sovereign Parliament guarantees people’s freedoms in this country, and guarantees that the will of the people is expressed here and honoured. That seems to be lost on many critics of the Bill, and I hope that, like me, my hon. Friend will support it with enthusiasm.
John Lamont
I absolutely will support the Bill with enthusiasm. It protects the 500,000 jobs in Scotland that my hon. Friend the Member for Moray (Douglas Ross) mentioned earlier. This is about protecting the Union, and we should not forget that this Parliament is sovereign and a protector of the rule of law.
The Bill is about making the UK work as a fully integrated, seamless internal market. It is in the interests of every business trading across the United Kingdom, and of everyone who wants to make devolution work. It should be of no surprise that it is so hated by those whose sole political purpose is to destroy devolution by ripping Scotland out of this most important single United Kingdom market.
Sir Jeffrey M. Donaldson (Lagan Valley) (DUP)
It is a pleasure to follow my fellow Unionist from Scotland, and I agree with him. The first question I ask myself about the Bill is this: will it strengthen the Union? In as far as it goes, I believe it will. We would like more to be done, but let me briefly mention the points raised about the Good Friday agreement. I grew up in a Northern Ireland that was deeply troubled. I lost members of my family, who were murdered during those troubles. I do not want to go back to those dark days.
Who is it that threatens the peace process in Northern Ireland? It is not Her Majesty’s Government who threaten that peace process; it is these men and women in the shadows. Who is playing fast and loose with the peace process? Who is using it as a political football in this situation? I do not believe the UK Government are using the Northern Ireland peace process as some kind of political football or a negotiating point.
Jim Shannon
Clause 47 ensures that as a sovereign nation, the UK will set the rules on state aid for Northern Ireland. Does my right hon. Friend agree that that is a vital means of fending off predatory behaviour from our nearest competitor, and EU threats regarding the supply of food without an agreement and without this Bill? The Bill is necessary to ensure that Northern Ireland has basic food importation from the rest of the UK, if those threats are carried through by the EU in the event of a no deal.
Sir Jeffrey M. Donaldson
I simply pose the question: how does it threaten the Good Friday agreement to ensure that people in my constituency can go to their local Tesco, Asda or Sainsbury’s and buy the same food that people can buy in any other constituency in the rest of the United Kingdom? How does that threaten the peace process? How does it threaten the peace process to ensure that businesses in my constituency do not have the burden of added paperwork, or the cost of export declarations?
Neil Parish (Tiverton and Honiton) (Con)
I very much agree with the right hon. Gentleman and shall be supporting the Bill tonight, because we must keep the United Kingdom together and we must not have a barrier down the Irish sea. Is it not the case that the European Union wants to keep us in the same rules, so that it can integrate the food systems on the island of Ireland? It needs to be much more practical and to come up with a solution whereby we can trade across the border but do not have to comply exactly with its rules.
Sir Jeffrey M. Donaldson
At the heart of the Belfast/Good Friday agreement is the principle that every signatory to that agreement accepts that Northern Ireland remains an integral part of this United Kingdom. Sadly, what the EU proposes breaches that core principle of the agreement. It is that breach that threatens the stability of Northern Ireland, because peace and prosperity go hand in hand. What kind of peace is it in Northern Ireland if we do not have prosperity—if our businesses are failing because of the added burden that the EU wants to impose? How does that bring prosperity, stability and peace to Northern Ireland?
The Bill is fundamental to delivering what we need, but we need even more than this. That is why we will seek to amend the Bill, specifically to address the point my hon. Friend the Member for Strangford (Jim Shannon) made about state aid. It is not enough just to address the state aid issue in the context of Great Britain; it must also be addressed in respect of Northern Ireland. The UK must set the rules on state aid in Northern Ireland, not the European Union. Such a tool is vital to help Northern Ireland businesses fend off predatory behaviour from our nearest competitors, and in Northern Ireland our nearest competitors are in the European Union.
I welcome the progress that is marked by this Bill in dealing with export declarations on goods moving from Northern Ireland to Great Britain, but 65% of the goods that Northern Ireland purchases come from Great Britain. Therefore, we need the Government to go further and guarantee that we will not have export declarations on goods moving from one part of the United Kingdom to another part of the United Kingdom, be that from Great Britain to Northern Ireland or from Northern Ireland to Great Britain. That is what unfettered access actually means, and the European Union signed up to unfettered access and to the United Kingdom Government having the power to ensure that Northern Ireland has unfettered access. The Bill before us will deliver that, subject of course to some amendments that we would like to make.
In conclusion, as someone who represents a Northern Ireland constituency, I do not accept the contention that the Bill threatens the Belfast or Good Friday agreement. I do not accept the contention that the Bill threatens the peace process. Prosperity is essential to building peace in Northern Ireland. The arrangements proposed by the EU threaten the prosperity of Northern Ireland, and in threatening the prosperity of Northern Ireland they threaten the peace.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
I inform the House that the wind-ups will begin at 9.40.
Stephen Hammond (Wimbledon) (Con)
As ever, it is a pleasure to follow the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson).
Like my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell), I think there is much in the Bill to admire. The general aims of the Bill and much of its content are absolutely necessary to ensure that the competences that return to the UK from the EU are put into UK law. However, like many people across the House, I have serious concerns about part 5 and the effect of those provisions on our international reputation, the rule of law and Northern Ireland.
Many people seem to be justifying part 5 as necessary to avoid an impact on GB-to-Northern Ireland trade. It is one thing to reject a draft treaty on those grounds; it is an entirely different premise to consider breaching existing treaty obligations, freely entered into by the Government. Some level of bureaucracy for trade between Northern Ireland and Great Britain was and is the foreseeable and obvious consequence of the withdrawal agreement that we signed. That point was highlighted at the time, but it was justified as a way to move on to the next phase. Moreover, many of us were reassured at the time that technology would ensure that those checks would be simple and quick.
The withdrawal agreement and the Northern Ireland protocol, and the consequent effects on trade, were negotiated by this Government and were part of our election manifesto. If the Government believe that the EU is acting in bad faith, making threats to food supplies or critically affecting the integrity of the UK, there are already agreed mechanisms in the withdrawal agreement to deal with that. For example, if the Government believed that we could not import food into Northern Ireland, article 16 of the protocol specifically allows the UK to act at that point to remedy the problem however it wants to.
The UK has a proud reputation of upholding the rule of law, as many hon. Members have said, and has been a trusted international partner. This country cannot and does not break international law just because it does not like the compromise that it has signed up to. I was interested in my right hon. Friend the Prime Minister’s remarks about regulations being made under these powers and the possibility of the House having a further vote. I would be interested to hear later from the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, my right hon. Friend the Member for Surrey Heath (Michael Gove), whether the Government intend to table an amendment to that effect, because I think that doing so would reassure many people. Nevertheless, clause 45(2)(b), if passed, at the moment of Royal Assent would lead to a breach of international law and the withdrawal agreement. I say to my right hon. Friends on the Front Bench that there is still plenty of time for those of us who have concerns about part 5 to be reassured, and I look to my right hon. Friend the Chancellor of the Duchy of Lancaster to give us those reassurances later this evening.
Craig Mackinlay (South Thanet) (Con)
It seems to me that some arguments we are hearing this evening are broadly about international law and those sorts of obligations, despite France and Germany being in the premier league of infractions of their EU obligations, and many other instances raised by hon. and right hon. Members about other global infractions by various nations. Let us be clear: the provisions of this Bill are fully allowed for within the Northern Ireland protocol. The right hon. Member for Doncaster North (Edward Miliband), who opened for the Opposition, made reference to the exact appropriate article—paragraph 1 of article 16—which says:
“If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures.”
Karin Smyth (Bristol South) (Lab)
If these provisions are entirely within the protocol, why are the Government saying that they are breaking the law?
Craig Mackinlay
That is a matter for the Government to answer; I do not believe that we are breaking international law in any way.
What we are proposing in the Bill is also allowed for under section 38 of the European Union (Withdrawal Agreement) Act 2020, which was passed by this House in quick time and by broad measure. There are no surprises in this Bill. Surely any Member could appreciate that these provisions stand to reason, with negotiations going nowhere; best endeavours, as required in the withdrawal agreement, seemingly ignored by the other side; demands that we become the only independent coastal state on this planet that would have its fisheries resource controlled by a foreign power, and that state aid and level playing field rules continue, leaving us as a supplicant nation; and, the latest we hear, a threat to the food supply and supply of goods from GB to NI.
I am going to talk about fists. We all have them and they are potential weapons for illegal acts if we use them wantonly or recklessly, but we do not so they are not. The law gives us the absolute right of self-defence using those physical assets to protect ourselves and/or our family. Northern Ireland is part of our family of this Union of nations. The provisions in this Bill are for self-defence only—defence of our Union, and particularly in defence of the businesses and people of Northern Ireland.
We are elected to this House to stand up to bullies, and I will do everything that is necessary and within my power to deliver Brexit properly and cleanly. If the EU will not discuss future arrangements fairly and with best endeavours, we must take any measure that is necessary to ensure the continuance of normality and trade across our Union. I will be supporting the Bill wholeheartedly this evening.
Margaret Ferrier (Rutherglen and Hamilton West) (SNP)
For over 20 years now, the people of Scotland have had a Parliament to call their own. Since the Scottish Parliament was reconvened in 1999, it has become an established part of Scotland’s political life, delivering on the priorities of the people of Scotland. More importantly, it has demonstrated what a modern Parliament, close to the people it serves, can look like, in contrast to the remote and often stuffy atmosphere in this place.
With the United Kingdom Internal Market Bill, the mask has well and truly slipped. The Tories have revealed their anti-devolution instincts. This Bill is nothing less than a brazen attack on established norms and institutions, setting dangerous precedents for the rule of law and Scotland’s Parliament. A Government Minister admitting that this Bill has been drafted with the intention of breaking international law is a clear sign of just how far the Tory party has been captured by this Dominic Cummings Government.
Since breaching solemn agreements is now a cornerstone of Tory party policy, I will remind Government Members of the agreement they entered into with voters in 2014. They said that the people of Scotland would get the “best of both worlds”—that the Scottish Parliament would be strengthened within the Union. The promises of 2014 could not be further from the reality of what this Bill will do to undermine the devolution settlement. It sticks in the mind when someone breaks an agreement, engendering feelings of anger and betrayal. It is perhaps no surprise that there is a genuine shift towards majority support now for independence for Scotland, as we are seeing the multitude of broken promises made by the Better Together parties mount up throughout the Brexit process.
This Bill is the worst of all worlds. It kicks off a race to the bottom between the four UK nations on food and environmental standards. It re-reserves subsidies in areas previously covered by EU state aid, even if those subsidies relate to devolved areas such as agriculture, infrastructure and culture. To top off this shameless power grab, the Bill will, if it completes its passage unaltered through this place, become a protected enactment under the Scotland Act 1998. As a result, the Scottish Parliament will not be allowed to legislate in a way that is incompatible with the rules laid down in the Bill, even if the proposed legislation falls within the devolved powers of the Scottish Parliament. That is a clear breach of the principle of the Scotland Act 1998 that power devolved is power retained. That is why I and my colleagues on the SNP Benches this evening will be defending devolution by voting against the Bill tonight.
Sir Charles Walker (Broxbourne) (Con)
I hope I will not be too foul tempered tonight, Mr Deputy Speaker; it is not a disposition I warm to.
There is a worrying trend—a worrying narrative—emerging, and this debate is a good opportunity to get a lot of things on the record, as I build an argument in the next 2 minutes and 45 seconds. First, I am extremely concerned that we are placing severe restrictions on people’s liberties without any recourse to Parliament. I would actually vote, in certain circumstances, to take people’s liberties away if I thought it was in the national interest, but I would like to have the chance to debate it on the Floor of the House and represent the concerns of my constituents.
I am also concerned that we go around arresting old men in Trafalgar Square for having a peaceful protest and fining them £10,000. I never thought I would ever be defending Mr Corbyn in the Chamber, but I am—I am defending a Corbyn. We have to be allowed to protest without fear of arrest and being fined, and today we hear that the public will be urged to inform on their friends and neighbours, because granny has followed grandad into a family home of five. This is a profoundly un-conservative thing.
All these things are un-conservative, and I do think that we are being asked here to put this country—this House, Members of this House, our constituents—on the wrong side of the law before we have exhausted all other options. I am no fan of the EU—I was in every single Division Lobby for Brexit and I think the EU is a pain in the neck—but surely we have to exhaust all other options before we press the nuclear button.
I will not be voting for the Bill’s Second Reading, because if you keep whacking a dog, you shouldn’t be surprised when it bites you back. We are all Members of Parliament and we deserve to be taken seriously. I accept that there is a pandemic and a national crisis, but surely that is the time when our voices should be heard on behalf of our constituents. It is the most important time, so I hope—I see the Chancellor of the Duchy of Lancaster in his place—the Government go away tonight and the Prime Minister reflects on what is going on, listens to the concerns of this House and comes back with a solution that allows me to skip through the Lobby on Third Reading and support him on this important Bill. I do believe, colleagues, that the Conservative party is the greatest political party ever, and we have to have the courage to live up to that greatness.
Wes Streeting (Ilford North) (Lab)
The Prime Minister said that the Northern Ireland protocol was a very, very ingenuous scheme—sorry, a “very, very ingenious scheme”. I will say it one more time, because it is worthy of repetition. He said it is
“a very, very ingenious scheme”.—[Official Report, 19 October 2019; Vol. 666, c. 594.]
It is almost Trump-esque in its rhetoric, and as we find so often with populists around the world, it is very easy to make far-fetched promises, but it is much harder to deliver them in practice. Reality is biting the Prime Minister and it is biting him hard.
As we have seen this afternoon, things have not exactly gone to script. The Prime Minister has been turning up at Prime Minister’s questions in recent weeks wishing he was facing a former leader of the Labour party. This afternoon, he got one and my right hon. Friend the Member for Doncaster North (Edward Miliband) wiped the floor with the Prime Minister, so much so that he had to scurry away back to his office, so badly battered and bruised was he. He was not even able to defend the Bill. He probably had not read it, because it is certainly clear from what he has said in recent days that he had not read the withdrawal agreement or the Northern Ireland protocol. Even this afternoon, he still did not understand the content that he has signed up to.
Contrary to there being a remainer plot, the script simply does not work. We have left the European Union. We are no longer members of the European Union. We are not going back. The only question now is whether we have a trade deal with the European Union that puts to bed so many of the difficult, thorny, challenging, but not insurmountable issues that many of us warned and argued over recent years would arise. The Prime Minister can hardly be surprised.
What I am surprised by is the scale of their misjudgments and their incompetence, even by this Government’s standards. With one decision, they have shaken the foundations of the Good Friday agreement, threatened the prospects of a trade deal with the European Union, and risked the prospects of a trade deal with the United States of America. With that, they have jeopardised future prosperity, jobs and the economy when we are facing the worst recession in hundreds of years. They have given further cause for grievance to the nationalists and threatened the Union. The irony is that a Bill that is supposed to strengthen the Union actually threatens its future. Perhaps worst of all, it threatens the standing and reputation of our country around the world, not only in the eyes of our allies, but in the eyes of our enemies, too.
I ask Members on the Government Benches: what has happened to the Conservative and Unionist party of Disraeli, Churchill, Macmillan and Thatcher? I cannot think of a single former Conservative Prime Minister who would behave in this way. I just say to them that, from experience, it is hard standing up to your own side when they are doing something wrong, but you will be doing the right thing by opposing this Bill and will sleep more soundly for it.
Mrs Maria Miller (Basingstoke) (Con)
We need to come back to some reality about what this Bill is actually about. This Bill is about safeguarding the future of the United Kingdom, because it is about safeguarding the ability of nations to be able to trade with each other. I am sure many of our constituents would be flabbergasted that we even have to pass a Bill to do that. They would think that would come as a matter of course. In doing so, we will be giving businesses the certainty they need during this very difficult period. So many of the details that should have been ironed out by now are still left hanging, so we should be unsurprised that we are discussing this Bill tonight.
When the withdrawal agreement was put to the House of Commons and we voted on it, we did so based on the notion that it would be dealt with in negotiations in good faith and using best endeavours, because that is the way negotiations proceed, but all of us who remember the way that our country has been treated throughout this process perhaps should not be surprised that we find ourselves here today and that the Government feel that this Bill is an essential safety net that needs to be put in place.
Mrs Miller
I will not give way, as a lot of people need to speak today. This is a safety net to stop the EU being able to determine UK trade policy, not overseas, but within our own countries. Despite a referendum result, votes in this Parliament and the clear will of the British people at the last general election, we still find ourselves in this period of uncertainty with the EU. So I believe the debate tonight is as much about British sovereignty as it is about the rule of law, and Members need to reflect on that.
The Government are in an invidious position. They are negotiating with an organisation that is renowned for and thrives on its love of last-minute agreements and all-night negotiations. The truth is that the EU still wants to make this country’s exit from its trading bloc as difficult as possible, and its behaviour, in delay upon delay, has to come to an end. If this Bill is part of that process, it gets my full support. The British people can see the tactics being deployed by the EU for what they are. Many Opposition Members know this and sit uneasy when listening to their Front Benchers’ rationale for not supporting the Bill tonight, because they know that their electorate are as fed up as everybody else that we are here today again, with the EU attempting to stifle the will of the British people. I speak as somebody who voted to remain in the EU but who has been appalled by the way we have been treated ever since, with the EU using its treatment of the UK as a strong message to other member states. I listened carefully to what was said by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), and I hope that the Minister will deal directly with the issues he raised.
Stephen Kinnock (Aberavon) (Lab)
The Prime Minister won the last election based on the promise to “get Brexit done”. That was his mandate, given to him by the British people—to move on. He said there would be
“no more dither and delay”.
He said, “Let’s get our oven-ready deal through.” He won an 80-seat majority based on that withdrawal agreement, and this Parliament ratified it. We are calling on him to deliver the deal he promised, one that would work for Britain in terms of protecting jobs and the Union, and then we can get on with tackling the coronavirus crisis. So why is he dithering and delaying? Why is he introducing legislation designed to reopen old Brexit wounds? He called the withdrawal agreement a “fantastic” deal for the country, but now he says it never made sense. Was he deliberately misleading the British people then, or is he doing so now?
Not only has the Prime Minister undermined trust here at home, but he is trashing his Government’s reputation as a trustworthy and reliable member of the international community, because it is absolutely clear that this legislation breaks international law. The Brexiteer who signed off this deal as Attorney General described the Bill as “unconscionable” and all five living former Prime Ministers are united in agreement.
Our greatness as a country is built upon our values and the fact that we have long stood up for the rule of law. This Prime Minister wants to throw all that away. The UK needs to be standing up to the Chinese communist party’s breaches of international law and Russia’s foul play, but how can we do that with credibility if we are advocating breaking international law? With one stroke of his pen, this Prime Minister has torpedoed the painstaking work that our diplomats do every day.
This is not just a question of trust or morality; it is also about our commercial and economic interests. We are going out into the world to negotiate new trade deals post Brexit, but how can any other country trust us to keep to those agreements? If this Bill passes into statute, the Prime Minister will be sending his trade negotiators naked into the conference chambers. This Bill is not only dismantling the manifesto pledge and our international reputation, but it is creating a constitutional crisis, trashing the common frameworks that are the basis for our devolved constitutional settlement and creating the conditions for a race to the bottom on standards, opening the door to chlorinated chicken and hormone-injected beef becoming the norm. Trade negotiations are never a walk in the park. Both sides will always defend their interests, and that is fair enough, but the rules are the rules. A commitment is a commitment. Our word is our bond. I therefore urge hon. Members to behave with honour and to join us in the No Lobby this evening.
Dr Jamie Wallis (Bridgend) (Con)
I refer Members to my entry in the Register of Members’ Financial Interests. This is an important debate for me, considering that I represent Bridgend, a constituency in Wales, which stands to benefit greatly from ensuring that our internal market within the UK remains intact, as it has for hundreds of years. I am proud to say that if the pollsters are to be believed, Wales is now the most Unionist part of the UK, and my constituents voted leave in 2016 and, of course, backed the “get Brexit done” party at the last election. On those bases, and as a staunch Unionist myself, I will support the passage of the Bill through this place.
On the issue of one single internal market, I just cannot imagine a scenario where a Bridgend-based business is unable to export its goods or services, or faces difficulty in exporting its goods or services, to England, Scotland or Northern Ireland. The internal market is vital to the whole of the Welsh economy, and illustrative figures from the White Paper show that any contraction to the GDP of Wales will be five times greater than that of the UK average. I pledged to my constituents to help to make a success of Brexit, and allowing economic barriers between any parts of the UK clearly runs contrary to that.
The people of Bridgend have two Governments: the Welsh Government and the UK Government, and I am particularly pleased that the Bill will facilitate the latter to invest in businesses and communities across Wales as we recover from covid-19, and I look forward to meeting Ministers to talk about my ideas on how that could be done. To those who argue that somehow the Bill undermines devolution, I remind them that many of the powers ceded to the EU, many of which were ceded before devolution existed, will be transferred to the devolved Administration. Around 60 to 70 new policy areas will now be decided in Cardiff Bay, making the Welsh Government more powerful than it has ever been. For those reasons, I will support the Government tonight, and do so wholeheartedly.
Bell Ribeiro-Addy (Streatham) (Lab)
The Bill is a very grave mistake, and there are numerous reasons to oppose it. Any one of them by itself would be enough, but taken together they make this quite possibly the worst piece of legislation brought before this House by this Government, and that is saying something. The legal consequences of passing the Bill are largely negative. It drives a coach and horses through the withdrawal agreement. Ministers should not need reminding that the withdrawal agreement is part of a solemn and binding international treaty, and that breaching a treaty breaches international law.
The passage of this Bill has wider international legal consequences. It undermines the basis of the Good Friday agreement, another solemn, agreed international treaty, which has laid the basis for peace in Ireland. It is absolutely not the case that the withdrawal agreement undermines the Good Friday agreement, as some Ministers now wish to claim. None of the main political parties in Ireland agrees with Ministers on that point.
While I am on the theme of undermining different parts of these isles, I point out that this legislation risks the integrity of our Union by undermining the devolution settlement. Any Government who claim to be truly Unionist would not develop legislation without the co-operation, collaboration and, above all, consent of the devolved Administrations. That is not what this legislation does.
The Bill also calls into question the good faith of this Government in their entire dealings with international partners. Must they now factor the integrity of Her Majesty’s Government into discussions and agreements? Do the Government really want to make us that country, known for reneging on its agreements because we later find them inconvenient?
I will focus my remaining remarks on the wider impact on this country of what the Government propose. It is now clear that the Government are aiming for an enormously damaging no-deal outcome to the Brexit negotiations. Let me be clear: a no-deal outcome will be disastrous for the living standards of people in this country.
As if the shocking revelations of the Operation Yellowhammer leak were not bad enough, forecasts by the Cabinet Office’s EU transition taskforce go considerably further and combine the potential issue of no deal with a second wave of coronavirus. The forecasts include shortages of fresh food, medicine and fuel, and even of chemicals for water purification, as well as price hikes on everyday items. Worst-case scenario, yes, but would a Government who cared even risk it?
I simply cannot get my head around the fact that the Government are attempting to push through a project that the Treasury’s own analysis says will lower GDP by 6.9% and destroy jobs. That analysis was made even before the effects of the pandemic. It is a far cry from the Conservative party posters we saw that said, “We are taking back control to protect jobs and businesses”. The Bill is an enormous act of self-harm. It damages us legally, reputationally and economically and, as Government Ministers admit, it is literally criminal to pass it.
Claire Coutinho (East Surrey) (Con)
As Conservatives, we believe that this family of nations bound together by the Union forms the bedrock of our prosperity. Central to that prosperity is the freedom to trade unhindered across these islands—an internal market without barriers knitted together over 300 years. For the past 40 of those years, the framework underpinning our single market was EU membership but, now that we have left, it is vital that we set our own framework as we forge our future as an independent nation state.
In 1707, the Act of Union brought England and Scotland together. Of its 25 articles, 15 were economic in nature, including the creation of a customs and monetary union. The reasons that spurred us on 300 years ago still exist today: to unlock our full financial power by pooling and sharing our resources; to defend the security of our nations; to provide access across the four nations to our international trading opportunities; and to create an integrated economic internal market. Those four goals are just as valuable to the British people today as they were then, and the Bill will help to us achieve them. It will ensure that Scottish and Welsh businesses can continue to export their goods and services to their main trade destination—the rest of the UK— unhindered. That destination accounts for a greater proportion of their trade than the rest of the world combined.
The Bill also allows the UK Government’s spending powers to benefit all UK citizens—to join up and level-up infrastructure spending with UK-wide strategies to create a stronger economy for Scotland, Wales, England and Northern Ireland—and it protects Northern Ireland’s position in our Union by ensuring that the Good Friday agreement is protected and that east-west economic relations are maintained.
I sincerely hope that the negotiations with the EU will, as intended, find a way to de-dramatise checks between Great Britain and Northern Ireland, either through the protocol or through a new free trade agreement. I was glad to hear the Prime Minister say earlier that we will continue to use the mechanisms—such as the Joint Committee—set out in the withdrawal agreement to resolve disputes. However, given the EU’s reluctance to uphold the withdrawal agreement’s clear and stated aim of ensuring that Northern Ireland businesses can have unfettered access to Great British markets, I support our holding the new powers in reserve.
Despite what those on the Opposition Benches might say, the Bill will give more control, which will flow to Cardiff, Belfast and Edinburgh. From fishing to farming to the environment, the devolved Parliaments will gain 74 powers across the different policy areas in the Bill. In fact, the Bill will be the greatest power-up of the devolved Parliaments since their formation.
Steve McCabe (Birmingham, Selly Oak) (Lab)
The Bill started out as quite a sensible measure to protect the internal market, but it has become a monster that threatens devolution and our standing in the world. I listened carefully to the Prime Minister, but all I heard were the same old distortions, prevarications and half-truths. It is not good enough. I will vote for the reasoned amendment, and if that fails, I will vote against the Bill, because I am clear that lawmakers cannot be lawbreakers.
Conservative Members won their seats by telling the electorate that they had secured a deal. The Prime Minister toured the country and TV studios telling us that it was a great deal; now he claims that it is full of flaws and holes. What is becoming all too clear is that it is our Prime Minister who is full of flaws and holes. Did he not know what he was signing when he toured those studios? Was he simply talking tosh?
We are being asked to risk our country’s reputation and our ability to negotiate or seek to enforce any future treaty or trade deal. International treaties are either binding or not; we cannot have limited non-compliance. A lifetime ago, I worked with young offenders. I came across plenty who had broken the law in a specific and limited way; it did not make any difference. No one present should countenance the idea that what we are being asked to agree is anything other than lawbreaking.
People who remember the troubles know that we cannot take chances with Northern Ireland. We should not risk the security provided by the Good Friday agreement. The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, the right hon. Member for Surrey Heath (Michael Gove) told us that the protocol was about ensuring continued peace and preserving the agreement. Surely we have enough on our plate trying to combat the pandemic. Maybe the Prime Minister should apply himself a bit more thoroughly to that task. We risk a return to mass unemployment, with all the suffering and societal tensions that will bring. He should apply himself to that. We do not need juvenile brinkmanship; we need mature leadership and responsible behaviour. We need the Government to knuckle down and fulfil their obligations under the agreement they signed and get us the deal they promised. Anything else is a betrayal of the British people.
Christian Wakeford (Bury South) (Con)
I rise to support the Bill. Our internal market of the United Kingdom, which has been established and has flourished for hundreds of years despite what Opposition Members claim, supports millions of jobs and livelihoods across all four nations of the United Kingdom. It is right that we act to preserve the status quo of the internal market. It is what businesses are crying out for and is what the Bill sets out. The Bill ensures that goods can move freely throughout these isles to benefit our numerous sectors, from Scotch whisky and Welsh farming to manufacturing in the north-west of England. In 2016, and again last December, the UK voted to take back control. We must do just that and the Bill intends to do just that.
The Scottish National party claims that the Bill takes powers away from Scotland. That could not be further away from reality. Scotland sells more to the UK than to the rest of the world combined and we on the Government Benches wish for that to continue. Those on the SNP Benches wanted to revoke article 50. If they had succeeded, they would have received no new powers whatsoever. The Bill sees one of the biggest transfers of power to the devolved nations in the history of devolution, but, alas, that transfer of power does not fit with their narrative.
Like most Members, I have received a full mailbox about this Bill, with correspondence from both sides of the argument. It has been mainly from those with hashtags such as #FBPE and #rejoin on Twitter, or from those urging me to back my promise to the British people by getting Brexit done and delivering on the withdrawal agreement. Having signed up to the “Stand up 4 Brexit” pledge, I intend to do just that and back my promise to the British people.
For a successful negotiation, we need both parties to act in good faith. Hearing from my right hon. Friend the Prime Minister and reading what the UK’s chief negotiator has said, it is clear that that is no longer the case. The Bill addresses the lack of good faith from the European Union and maintains tariff-free, border-free trade within the internal market. Government Members want the internal market to prosper as a truly global Britain, as my right hon. Friend the International Trade Secretary highlighted today with the Great Britain-Japan trade deal.
I am happy to see that the Opposition have finally come out of hiding with regard to anything Brexit related for the first time in months. However, Opposition Members seek to hold back our opportunities, as they have over the past four years, in a bid to reduce the great ship Britannia to nothing more than a sluggish canal barge.
Stephen Farry (North Down) (Alliance)
We now have a different range of voices from Northern Ireland in this Parliament and I want to make a few things clear at the outset. The majority of people in Northern Ireland voted to remain. They also supported the wrongly maligned backstop and they now pragmatically recognise the need for the protocol, despite its challenges. To be very clear, the majority of people and businesses in Northern Ireland do not want the Government to break international law on their behalf.
Northern Ireland only works on the basis of sharing and interdependence. The problem with any form of hard Brexit is that it requires some form of interface between the UK and the single market and customs union. The protocol is the inevitable consequence of a hard Brexit, in order to address the particular circumstances of Northern Ireland and to protect the Good Friday agreement. We are working off decisions taken here in the UK, not something that the European Union has foisted upon us.
Indeed, I am deeply concerned that the Prime Minister and the Government are twisting and distorting the meaning of the Good Friday agreement for their own political ends. The principle of consent is certainly one major component of the Good Friday agreement, and it is entrenched in the withdrawal agreement, so the Union is not up for grabs in this situation. That is a matter for the people of Northern Ireland to determine in due course. The Good Friday agreement is, in fact, a broad range of relationships across our islands.
The protocol is, in effect, the bare minimum to avoid a hard border on the island of Ireland. If we default on that, we risk a return of some form of border in that context. The European Union is entitled to protect the integrity of the single market and customs union, and that will create a fresh form of tension.
It is pragmatically easier to manage an interface down the Irish sea than across the land border. We are talking about seven air and sea crossings versus 270 land crossings, and the number of daily movements on the island far outweighs the number across the Irish sea. However, we must do all we can to reduce that interface to a minimum—to make it a dotted line. The way to achieve that is through building trust and good faith with the European Union and by working through the mechanisms of the withdrawal agreement—the Joint Committee and, if necessary, the arbitration mechanism—rather than circumventing it. We need to define what flexibilities and modalities we can.
Through their action, the Government are risking having no future relationship with the European Union. That brings huge consequences for the UK economy and makes the impact of the Northern Ireland protocol down the Irish sea even more stark. I support a trade deal with the United States, which is the dream of many Brexiteers who are forgoing the relationship with the European Union. I am not sure that they are picking up that that is a complete dead end if the Good Friday agreement is compromised by this Parliament.
Danny Kruger (Devizes) (Con)
This evening there has been much criticism of the Prime Minister, and I think he was at fault. He was at fault for believing the EU when it said that it would negotiate in good faith. He was at fault for believing it when it said it would respect the integrity of the UK and of our internal market. But he is not at fault for trying to remedy the situation with this legislation.
I think it is quite simple: if we do not get a deal that we like, we really have three options. First, we can accept the EU’s idea of a deal by accepting a rule-taking role in relation to Europe. That would breach our manifesto and would fail to deliver Brexit in a form that the people would recognise. That is option one. Option two is to get no free trade agreement but to accept a border within the UK. That would breach the Act of Union and threaten the Belfast/Good Friday agreement. Option three is to make a reasonable and legal change to the withdrawal agreement, on terms that were understood and acceptable when that agreement was first framed, in order to safeguard the Union and deliver Brexit. I suggest that those changes would be legal, on the simple grounds that when laws conflict, as they do at this sort of transition phase, domestic law takes precedence.
I pay tribute—I wish he were in his place—to my hon. Friend the Member for Stone (Sir William Cash), who has done more than any Member of this House, past or present, to deliver the sovereignty of this nation. In the negotiations this time last year, he stood up more than anybody for the sovereignty of the UK, and it is because of him that we have enshrined in the European Union (Withdrawal Agreement) Act 2020 the commitment to UK sovereignty that we rely on now.
There is a fourth option, of course. There are those three unpalatable options—the third, which I hope we are legislating into force now, is an unpalatable one—but there is a fourth option. It is to get a deal that we can all accept—a deal that the EU itself accepted in principle in the negotiations last year and said at the outset of our trade negotiations would be possible: an agreement based on the deal that it has with Canada. That is the deal that would be acceptable, and it would mean that we did not have to do any of the unpalatable options I mentioned. The way to do that is to pass this Bill to give the Government the negotiating hand they need.
Ruth Jones (Newport West) (Lab)
It is clear from the Bill and from many of the contributions from Government Members, bar some notable exceptions, that there appears to be little or no respect for democracy, devolution or international diplomacy on the Government Benches. I have heard from many people in Newport West in the past few days and, like them, I believe that the Bill represents the starting gun of a crude and unacceptable race to the bottom. If approved, it will ultimately lead to the undermining of our high food standards, our animal welfare rights and the environmental standards that have helped to save lives and clean our air.
The principle of mutual recognition in the Bill will mean that if, say, the Welsh Government legislate to ban the sale of chlorinated chicken, a company based in England could add chemicals to its poultry, sell it across the border and face no penalties. In fact, if any attempt were made to prevent the sale of its produce, the company could sue for loss of profits. To quote my colleague the Welsh Counsel General, Jeremy Miles, the UK Government plan to
“sacrifice the future of the union by stealing powers from the devolved administrations”.
The Bill is an attack on democracy and an affront to the people of Wales, Scotland and Northern Ireland, who have all voted in favour of devolution on numerous occasions. This is nothing but a shameless power grab, and it must be stopped.
The First Minister of Wales, my right honourable friend Mark Drakeford, has said that he is willing to negotiate in good faith with the UK Government on the content, scope and structure of the frameworks that regulate the internal market, but he wishes to do so on a genuine national approach. I want to see the Welsh Government, the Scottish Government, the Northern Ireland Executive and the Westminster Government working together to agree common frameworks. Anything forced on Wales, Scotland and Northern Ireland by Westminster is simply unacceptable.
Our Prime Minister, who has developed a taste for breaking international law, now claims that the Bill is necessary because the withdrawal agreement was rushed through. I have not been here as long as some Members, but I have never heard such claptrap. The withdrawal agreement was negotiated by this Prime Minister, agreed by his Cabinet and taken to the country in a general election. I say to Members on the Treasury Bench: “Don’t try to take the people of Newport West or any other part of our country for fools, because you won’t get away with it.”
We have heard from two former Conservative Prime Ministers, including the right hon. Member for Maidenhead (Mrs May); we have heard from former Conservative party leaders; we have heard from many senior Tory Back Benchers in this House and in the other place. They all raised caution, all recognised the importance of our international leadership, and all made it clear that we can never sanction law-breaking. I urge Ministers to heed their calls. Sir John Major said:
“If we lose our reputation for honouring the promises we make, we will have lost something beyond price that may never be regained.”
It is 2020, and my constituents in Newport West and millions across the country have a Government who seek to undermine treaty obligations, who openly admit to breaking international law, and who have failed miserably at giving the country the leadership that it needs. Britain deserves better than this.
Joanna Cherry (Edinburgh South West) (SNP)
Great consternation is felt in Scotland about the way in which part 5 of the Bill seeks to flout international law by breaking a treaty into which the Prime Minister entered freely barely a year ago. There is a long tradition in Scotland, going back to the declaration of Arbroath, that neither the monarch nor the Government are above the law. The Prime Minister should really remember that, because it was Scotland’s Supreme Court that led the way last year in ruling his Prorogation of Parliament unlawful, but it seems that he has learned nothing from that debacle.
Nor has the Prime Minister learned anything from the revulsion that was felt when he allowed his adviser Cummings to flout the lockdown restrictions that the rest of us had to obey. Over the past few days, we have watched a succession of Tory Government lawyers make mealy-mouthed excuses for what the Bill seeks to do. The Lord Chancellor says that he will resign only if the Government break the rule of law in a way that is “unacceptable”. What—pray tell, Lord Chancellor—is an acceptable way to break the law? I am sure that the thousands of ordinary men and women who have been fined for breaking lockdown restrictions will be very interested to know the answer to that question.
The Attorney General tells us that the English doctrine of parliamentary sovereignty means that she is happy to support the Bill; she cites the case of Miller I. Seemingly, she is in ignorance of the fact that at paragraph 55 of its judgment on that case, the UK Supreme Court affirmed that
“treaties between sovereign states have effect in international law and are not governed by…domestic law”.
If she were capable of applying the most rudimentary legal analysis, she would realise that that means that, so far as international law is concerned, the English doctrine of parliamentary sovereignty cannot supersede the UK’s freely given agreement and obligations in the withdrawal agreement.
I am ashamed to say, as a member of the Scottish Bar, that my fellow Scottish advocate, the Tories’ man in Scotland, the Advocate General, also seems to think it is okay to defend the Bill. I can only assume he is happy to ignore the fact that, in seeking to oust the jurisdiction of the Court of Session in respect of judicial review, clause 45 breaches another treaty—the treaty of Union, of which we have heard much this evening, article 19 of which protects the supervisory jurisdiction of the Court of Session.
The Prime Minister and others have described the Bill as a necessary safety net to protect the Union, but if he looks at the opinion polls in Scotland, including the one commissioned by his own Government, or reads the newspapers over the weekend, he will realise that far from protecting the Union, the Bill will put a final nail in the Union’s coffin.
Gareth Bacon (Orpington) (Con)
The Bill is necessary to secure free trade and prosperity throughout the United Kingdom, but the focus of much of the debate has not been on that; rather, it has been on the legality or otherwise of the Bill and the proposals before us. In response, it must be noted that Parliament is sovereign. Parliament is supreme. Parliamentary sovereignty is one of the cornerstones of our constitution and always has been. Legislation and the content of legislation, whether to pass it or otherwise, is for Parliament and Parliament alone.
The withdrawal agreement signed by the EU and the UK acknowledged that there might be difficulties with the Northern Ireland protocol. That was acknowledged earlier by the right hon. Member for Doncaster North (Edward Miliband). The agreement states that if the application of the protocol leads to
“serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”,
the European Union or the United Kingdom may unilaterally take appropriate safeguard measures. Provision was made for exactly this contingency in the European Union (Withdrawal) Act 2020, section 38 of which states:
“It is recognised that the Parliament of the United Kingdom is sovereign… Accordingly, nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.”
That was done because of the ambiguities of the withdrawal agreement relating to Northern Ireland. The agreement holds simultaneously that there will be unfettered access between Northern Ireland and the rest of Britain after the transition period and that the EU’s customs code will have direct effect in the territory of Northern Ireland. At best, and at the very least, that is ambiguous; at worst, it is a direct contradiction, because it means that access would be fettered to one place but not to another. This was always going to have to be dealt with in subsequent negotiations.
The main clauses in contention this evening—clauses 42, 43 and 45—will come into effect only if the Joint Committee cannot reach agreement. We know that the Joint Committee negotiations have been going badly, particularly in relation to third country listings. It has become apparent that the EU is taking a direction that we cannot possibly support. We also know that the EU is fearful. Why would it not be? A strong, independent Britain prospering on its doorstep is not something the EU would necessarily welcome.
In saying that, I am sure that both sides in the negotiation want to secure a free trade deal, and I wholeheartedly support that outcome. A free trade agreement would be a win-win for both sides, but it must not be at the expense either of our independent sovereignty or of the Union of the United Kingdom of Great Britain and Northern Ireland. We must be honest: the EU is negotiating with its members’ best interests at heart, not Britain’s. It has always sought to use Northern Ireland as a weapon to gain leverage in free trade talks. We must give the Government the tools to push the EU in the direction of agreeing a strong free trade agreement. The Bill seeks to do just that, and I will support it unamended.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I am a Unionist. I believe that we are stronger together and I want a functioning UK internal market, but it must be one that is based on respect, on partnership and on consent—the very principles that underpinned the devolution settlement that I and my party have proudly supported for the past few decades. That settlement respects our different histories, cultures, languages and perspectives, but couples those with the pooled benefits of working together. To undermine and disrespect that settlement, which is underpinned by multiple referendums and the Good Friday agreement, is both a breach of trust and deeply dangerous.
On Northern Ireland specifically, let us not forget that it was this Prime Minister who personally negotiated with the Taoiseach on the Wirral and gave his word to the Taoiseach and all the communities of Northern Ireland, so to renege on those commitments now is both dangerous and devoid of moral principle, quite apart from the fact that it also imperils the Government’s stated wider goals for so-called global Britain such as a US trade deal. As Nancy Pelosi said, “What were they thinking?” All the chumminess of the Prime Minister and the Chancellor of the Duchy of Lancaster with President Trump will not circumvent the United States Congress.
The other fundamental issue at stake is international law and the rule of law. I commend what the former Attorney General, the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright), said. Clauses 42, 43 and 45 are, in his words, not a clarification, but a contradiction, not only of our commitment to international law, but of the very principle of the rule of law, for which Britain has stood as a beacon for many centuries. That saw us being instrumental in the founding of the United Nations, which has its 75th anniversary this year. The first General Assembly took place across the square from here. We stood for the rule of law in the establishment of the global human rights regime, the International Criminal Court and a rules-based financial and trading system, let alone the defence of our own interests from the Falklands to Gibraltar. We ask Iran to abide by its nuclear commitments, the Communist party of China to adhere to the Sino-British joint declaration and Russia to respect the territorial integrity of Ukraine or take responsibility for poisoning its citizens or using chemical weapons on the soil of this country, or when we rightly support the prosecution of those who committed genocide in Bosnia, Rwanda and now in the case of the Rohingya or the Uyghurs.
This goes well beyond Brexit. We all have our views on Brexit and the Prime Minister’s failure to produce an oven-ready deal. It is about Britain and the type of country we want to be: whether we want to be one that upholds the rule of law and standards, and stands as a beacon for democracy and rule of law in the world, or whether we want to become a pariah. I know that there are many Conservative women and men of courage who say things in the corridors of this place. The question is whether they will stand by their consciences in the vote tonight.
Brendan Clarke-Smith (Bassetlaw) (Con)
We should not be here today debating the Bill, not because it is wrong but because it should not be necessary. We entered into an agreement with the European Union in good faith and it is a shame that that has not been reciprocated. Using third country listings, which should be a formality, as leverage on state aid and fisheries policy is not negotiating in good faith. Does the EU believe that its own rules and standards are not good enough now? Those are the rules and standards that we currently operate under. The EU knows them well, although it should be said that it is not always the best at following them.
We must now be explicit: Northern Ireland is not on the table, nor are the people who live there. They never have been. We will not accept the blockading of agriculture within our own country. The Bill is about making the choice very clear: Canada or Australia. The EU told us that the Canada deal was on the table, so what has suddenly changed?
The Bill gives us the option of protecting our internal markets and the status of Northern Ireland as an equal partner in this United Kingdom, not as a bargaining chip or an afterthought. I hope we never have to use it, but we owe it to the people of this country to make the provisions. We must stand in solidarity with the people of Northern Ireland and our hon. Friends in the Chamber from Northern Ireland to protect the status of the Union and the Belfast agreement. We will not allow the EU to divide us.
If the Opposition want us chained to EU rules and to make concessions on fisheries and state aid, they should say that. There is an old saying that starts with the phrase, “Give a man a fish”. Unfortunately, some would give a man as many fish as he wants. We should not run the risk of a blockade on agriculture between Great Britain and Northern Ireland. Perhaps the EU wants to cut off its nose to spite its face, whatever the cost to itself and its economies at this difficult time. Perhaps it wants huge tariffs on our lamb, our pork and our beef, though I doubt it. It knows the risks and that, if my hon. Friends will excuse the term, the “steaks” are too high. That is why the Bill is so vital.
The European Union needs to learn that Northern Ireland and our precious Union are off the table. Our Opposition now need to come off the fence. I wholeheartedly support the Bill and urge others in the Chamber to do the same.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Diolch yn fawr, Mr Dirprwy Lefarydd. It is difficult to know where to start with the Bill, so numerous are the egregious assumptions, the pitfalls and the Trojan horses lurking within it, so I will be brief and specific.
For Wales, the Bill is damaging without precedent, emerging fully fledged as the single biggest sustained assault yet to threaten devolution and our powers. It scorns two referenda and seeks to overturn the reiterated will of the Welsh people, not only weakening the powers of the Senedd, but explicitly reserving new powers to this place.
This Bill would render Wales powerless to stop low-quality produce, such as chlorinated chicken, flooding our supermarkets and undercutting Welsh farmers by being cheaper. This Bill would permit a 21st-century Tryweryn by giving Westminster more spending powers directly over water infrastructure. It would invalidate “buy local” policies in Wales by making it illegal to place goods from another part of the UK at a disadvantage compared with local goods in Wales.
The Conservative party would hold the whip hand over our Senedd’s attempts to protect our NHS against privatisation through damaging trade deals. The Bill holds up the spectre of no trade deal with the UK due to the Prime Minister breaking international law, which would wreak havoc on businesses already suffering the effects of covid-19. It could force Wales to accept abuses of animal welfare and food production, with the Senedd powerless to block such produce from entering our markets if they were to be tolerated in other parts of the UK, and who is even speaking for the future of the port of Holyhead?
Whatever some Conservative Members like to say, devolution is no experiment; it lives and breathes in Wales. Our democracy has been growing in the last two decades and more, in confidence and in power, and our wings will not be clipped. Plaid Cymru will stand up for our powers and our Senedd every step of the way, and we will not be supporting this Bill.
Nicola Richards (West Bromwich East) (Con)
I would like to start by saying that the Government are right to bring this Bill forward. It protects the Union of the United Kingdom, safeguards Northern Ireland and paves the way for the return of many of our laws from Brussels. There has been a lot of talk in the media and from the Opposition about the supposed illegal nature of this Bill if it becomes law, but this Bill does not itself break international law. Many commentators seem to think that passing the Bill means that we are immediately breaching the withdrawal agreement, but the Bill is simply a safeguard in case no trade agreement is reached with the EU. Should Ministers end up using the powers made available to them under this Bill, the withdrawal agreement could indeed be broken, but it is clear that this is very much the last resort.
Let us face it: most EU member states are not squeaky clean on these issues. On Thursday 10 September, the European Court of Auditors reported that 15 EU states had breached EU rules in agreeing bilateral commercial deals with China that it has identified as having both political and economic risks, as well as having violated EU rules by bypassing the European Commission before they completed those trade deals. It is this level of hypocrisy and double standards that I and the people of West Bromwich East recognised prior to casting our votes in 2016, and it is what spurred 68% of my constituents to vote to leave. As has been made obvious throughout these negotiations, it is the EU that is not for turning.
I have spoken before about this level of hypocrisy, both in this Chamber and to Mr Barnier himself when he appeared before the Committee on the Future Relationship with the European Union. On 5 May, the German Federal Constitutional Court ruled that the European Central Bank’s 2015 policy to buy bonds as part of its quantitative easing stimulus package was not covered by its mandate. The German courts ruled that they had the ability to determine when and if Germany is subordinate to EU law. Mr Barnier dismissed my points. He said it was unfortunate, but not relevant to Brexit, but it most certainly is because, for the first time in history, a national court refused to submit to the European Court of Justice as a member state. So why, as an independent state, should the UK be subject to EU law in our future relationship, while Germany seems to believe its domestic courts can supersede ECJ rulings on monetary policy?
The EU does not recognise this hypocrisy, but my constituents do, so if the EU does not like this Bill, there is a very simple solution. It should drop its arbitrary red lines, get around the table in a good spirit and do a trade deal that we can accept. The fact that we have to go to these lengths to protect the Union of the UK further highlights the absurdity of the situation and why we voted to leave. I would urge all Members in this place to put the Union of the United Kingdom above the European Union and pass this Bill tonight.
Claudia Webbe (Leicester East) (Lab)
By rushing through this legislation, this Government are treating the people of Leicester and the entire British public with utter contempt. Perhaps more than any election in recent memory, the 2019 general election was decided by a single issue. The Prime Minister promised to get Brexit done, and his party boasted time and again about an oven-ready deal that would settle the divisive issue of Brexit for good. “Very good”, “great”, “wonderful”, “fantastic” —those were just some of the words that the Prime Minister used during the general election campaign to describe the Brexit deal, which he is now openly willing to break international law in order to rewrite.
This is an agreement that the Prime Minister negotiated and signed himself, yet he now says that it contains grave problems that could break up our country. I do not know of any instance in which a Government have openly admitted to flouting their central election promise less than a year into their Administration. This is an unprecedented failure that raises serious questions about the Government’s entire mandate. Sadly, it comes as no real surprise. This Government are the embodiment of elitist double standards, where it is one rule for them and another for everyone else.
The Prime Minister is apparently not satisfied with misleading the public once by claiming that his half-baked deal was oven-ready. In addition, his Government are now being dishonest about the reasons why the deal must be changed. The issues of state aid and customs declarations are not a revelation but were repeatedly and explicitly spelled out to the Government last year, not least by their confidence and supply partners, the DUP. In this House, we cannot risk the sanctity of the Good Friday agreement or threaten peace on the island of Ireland, yet that is what this legislation proposes to do.
Why? This self-inflicted crisis is either a counterproductive negotiating tactic or a pathetic attempt to distract from this Government’s calamitous record over the last few months. After all, this Government have overseen the worst coronavirus death rate of any European country. Boris Johnson and his Ministers are used to U-turning—[Interruption.] The Prime Minister and his Ministers are used to U-turning, but tearing up their own international—
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am sorry, but we have to move on, and please remember not to refer to other Members by their names.
Lee Anderson (Ashfield) (Con)
I agree with the people of Ashfield who tell me that British Members of Parliament should act in the best interests of the UK and not the EU. Let us face it: the EU has negotiated in bad faith throughout, and we need to protect ourselves by showing strong leadership when dealing with the EU. We have a proud tradition of standing up for ourselves in Europe, and be in no doubt: there are other European countries looking at us right now for leadership.
This time last year, I was just a normal member of the public watching this place on the telly, shouting and screaming at these green Benches because of the deadlock and the daily nonsense we had to put up with. Well, I am here now, and the people of Ashfield will be listened to. On 31 December, we will lose rules that have regulated the home nations for the past 45 years, and this legislation will ensure that we retain internal trade, which hundreds of jobs in Ashfield depend on. Business leaders in Ashfield and Eastwood tell me that they cannot go into next year with unnecessary barriers for business and additional costs for consumers. They need certainty, and this oven-ready Bill provides certainty.
We are at a critical moment in ensuring that we have a prosperous future post Brexit, and we need a system in place that allows a free market in goods and services for all four nations in the UK. This Bill allows that. This Bill will protect jobs and encourage growth across the whole of the United Kingdom, while allowing Northern Ireland unfettered access to the rest of the UK. I cannot understand why anyone would not be in favour of it.
Our Prime Minister is right to put our country first, and he is right to try to secure trade for the UK. I strongly believe that he has our best interests at heart and I back him 100%. We voted to leave and he is making sure that we do so on our terms while putting the whole of the UK first. Once again, it is disappointing to see the Opposition oppose what the British people want. Perhaps they need to speak to some real people, not their mates in the Tea Room reading The Guardian. By real people I mean people like those in Ashfield, which is now a safe Tory seat.
There is nothing illegal about bringing this Bill to Parliament. We voted to leave to take back control and to make our own laws, which is what we are doing right now. Members of this House need to decide where their loyalties lie. Is it with the EU or with the United Kingdom? On behalf of the people of Ashfield and Eastwood, my loyalties are with the UK.
Karin Smyth (Bristol South) (Lab)
I first raised the issue of the Northern Ireland border on the Monday after the referendum—I have skin in the game, with family on both sides of the border. I have watched every twist and turn of events since. I despair at the language, at the deep ignorance, at the disregard for fragile settlements and for the 1.9 million people who live there who, frankly, deserve better.
The Tories got themselves caught up in a toxic triangle of the ERG Brexit, the differential rules across the Union and their obligations under the Belfast Good Friday agreement, and the Prime Minister chose his party. He did so through the protocol and now we need to make it work, because he agreed the differential rules across his precious Union.
I take a lot of interest in the constitutional settlement across these islands. I am vice-chair of the British-Irish Parliamentary Assembly, and I have visited many of those legislatures: in Edinburgh; Cardiff; Belfast; Dublin; Jersey; Guernsey; Sark and the Falklands. Those places reflect their history as part of the United Kingdom family. They take great pride in it and in what we do, and they are watching.
I read the White Paper in July with some dismay. In the past two decades in particular our constitution has changed, but after reading that White Paper it felt as if nothing had changed in 200 years. The Acts of Union that got us to this place did not just happen: they were violent; they were disputed; and they involved an awful lot of money and land passing hands. There are different readings of our history, which has resulted in many years of debate across these islands. It is an evolving dynamic situation and one that is actually very precious and it is something of which we need to be mindful.
I am also a member of the Public Administration and Constitutional Affairs Committee. This summer, we expressed our great reservations about the Bill, particularly with regard to the speed of the consultation and the constitutional aspects. It is primarily an economic Bill, but it is also deeply constitutional. We have asked for an independent monitoring body to report directly to the House of Commons, as we are concerned about the provisions in the Bill and the need to take account of the intergovernmental relations that are coming.
Last week, the Chancellor of the Duchy of Lancaster appeared before the Committee and we were told that the Dunlop review would be published before the Bill hits the statute book at the end of this year. It is a case of putting the cart before the horse. It would have been much better to have these discussions and a respect for the common frameworks before bringing this Bill forward. The Government need to dial down the rhetoric. They need to get back to the negotiating table, and they need to treat this Parliament and the devolved legislatures with much greater respect.
Saqib Bhatti (Meriden) (Con)
I will not spend what precious minutes I have talking about what the people voted for in December, because, frankly, the mandate given to us by the British people should already be reverberating around the Chamber. The mandate was clear: we were expected to leave the European Union. Certainly, as a member of the Conservative and Unionist party, I have an obligation to do everything that I can to protect the integrity of the Union.
I do not think that we can ignore the context of this Bill. We are in the midst of a negotiation. In fact, we are quite near the end of it; we are almost there. It is a negotiation that both parties entered into in good faith and it was a reciprocal obligation. Clearly, the European Union is not acting in good faith, and, naturally, it will do everything in its own interests. Why would it not? It will want to do everything that it can to make it harder for us to do a deal, but threatening the integrity of our Union is not negotiation in good faith and it goes just too far.
Too often, I hear that the EU is some noble entity—as is so often argued not only in many parts of the Chamber, but across the country—but it is one that has no objection to overturning the mandate of the people when it does not get what it wants. It has a track record that is anything but noble, but that is not us. This Bill protects the Union and also says that Northern Ireland is part of our Union and is not a negotiating football. Our job is to strengthen the hands of our negotiating team. This Bill is a plan B, but it is a plan B that says we will not be bullied. It is a plan B that says that this is one mandate that the European Union cannot ignore.
Bill Esterson (Sefton Central) (Lab)
The Labour party stands for the rule of law. We stand for the international rules-based system. We stand for peace in Northern Ireland and the settlement that has lasted for 22 years, and we stand for keeping promises to the British people, which then go on to be enshrined in British law. That prompts the question: what do Conservative MPs stand for anymore if they are prepared to break promises on all three of those areas? Why is what they are promising different now from what they promised in a general election—an oven-ready deal, a deal that was the easiest in human history? What changed? What went so wrong? Why are they shouting for more time and saying that they did not have enough time then when they were telling us then that that was all the time they needed and that they did not need to spend any longer scrutinising the legislation, which suddenly they find to have flaws?
There is a serious lack of trust and credibility, as we can see around the world and across these islands, as a result of the behaviour of this Government, supported by far too many of their Back Benchers so far this evening. We heard a Cabinet Minister say at the Dispatch Box last week, in a breathtaking, brazen way, that it was okay to break international law in a “specific and limited way”. It is breaking the law, whether it is in a specific and limited way or not, and that is the reality.
The withdrawal agreement, of which the Northern Ireland protocol is part, is part of the answer to guaranteeing the peace that has been so sacrosanct for the last 22 years. The Government are in denial. They are pretending that it is the opposite. They are pretending that what they said last year was the way of defending the peace is no longer true, and it simply does not stack up.
What of state aid? Today we hear of a deal being done with Japan—that is good news—but with a completely different state aid regime from the one that the Government say they want with the EU. They cannot operate two different state aid regimes. It will not work. When is the penny going to drop for them?
As for standards, the Bill undermines farmers. It undermines our animal welfare standards. It undermines the devolution settlement and it lacks the scrutiny, just as the Trade Bill did before and continues to do—so, too, with this Bill. Ministers will be able to act as they want. This is a bunch of incompetents and chancers at their worst, and they need to think again.
Nick Fletcher (Don Valley) (Con)
It is my understanding that the Government have done nothing illegal in putting this Bill before Parliament. After all, debating and amending Bills is the purpose of this place. For the Government to bring this Bill before Parliament for it to be scrutinised, amended and put through only reaffirms the sovereignty of Parliament. As the withdrawal Act reasserts the sovereignty of Parliament, it would be flawed to conclude that the laying of this Bill breaks any law.
Furthermore, right hon. and hon. Members should remind themselves that the reasoning behind the Bill is to protect the greatest Union of nations that has ever existed. In 2016, it was the people of that Union who voted to leave the European Union in a referendum. They did not vote to be broken up. My constituents in Don Valley voted overwhelmingly for our country to leave and re-establish our place in the world as a sovereign, independent state once again. The European Union needs to accept that. After all, it was only yesterday that the Leader of the Opposition wrote in The Sunday Telegraph that “both sides” should
“hunker down in good faith and break the logjam.”
Unfortunately, after recent reports from our own negotiating team, the EU does not appear to be conducting negotiations in any form of good faith. It is due to this lack of good faith from the EU that the Government, and rightly so, have formulated this Bill to protect the Union. While I understand the reasons why some hon. and right hon. Members have reservations about the Bill, it is the best way for the Government to send a clear message to the European Union that we are serious about protecting the internal market.
Before I became a Member of Parliament, I watched this House debate our withdrawal from the EU and tear itself apart in front of the eyes of the country, the European Union and the world. It was this chaos that strengthened the European Union’s position and led it to pressure the then Government to sign up to a withdrawal agreement that was rejected three times by this House. We must not let this happen again. Most Members, including me, still want to deal with the European Union, yet only by uniting behind this Bill can we sufficiently strengthen our negotiating team’s position. I fear that if the European Union yet again sees this place divided, it will carry on acting in bad faith and continue to act unreasonably. I therefore urge hon. and right hon. Members to support the Bill so that this Parliament can show unity, protect the Union, and uphold the will of the British people.
Anna McMorrin (Cardiff North) (Lab)
This is a deeply shameful moment for our country—showing how far this toxic Government are willing to threaten peace, erode co-operation and trust, and strip devolved Governments of their decision-making powers. How easy they find it to dangle the safety and security of our fragile and covid-hit economies, businesses and livelihoods. How unashamed this Government appear when faced with risking Britain’s reputation and breaking international law. I stand here speaking for my constituents in Cardiff North, who are aghast at this Government’s behaviour.
This Bill should actually be about how the internal market works, but it is instead a full attack on democracy—on the people of Wales, Scotland and Northern Ireland who have voted for devolution several times over. We need an efficient, functioning internal market, but this Bill does not just threaten more than two decades of devolution: it rips right through the devolution settlements without consent. It is a power-grab preventing Wales from imposing its own standards on goods and services, leading inevitably to a race to the bottom, undermining the people of Wales and their democratic rights and overriding the Welsh Government in acting in their best interests. This issue should be determined by the Welsh people and those they elect to the Senedd. The Government are preventing a common framework and stealing powers from Wales, riding roughshod over the Welsh Government’s right to set food standards and to create laws on single-use plastics, animal welfare standards and the environment, to name but a few. It is simply an assault on the people of Wales.
I will continue to fight for my constituents in Cardiff North against this blatant power-grab, against the dilution of rights and standards, and against a Bill that breaks international law. It does not just steal powers: it robs the Welsh people of a way of life and values that we have come to expect. The people of Wales and the people of Cardiff North deserve better, and that is why I will be voting against this Bill tonight.
Alexander Stafford (Rother Valley) (Con)
We have heard time and again tonight that the people are watching and our reputation is on the line. I could not agree more: the people of the world are watching and our reputation is on the line. But the people who are watching are asking whether we are a sovereign independent nation. Do we have a reputation for upholding the will of the people, or do we want to be shackled to the European Union—a body that our public have, time and again, voted in one way or another to make us leave? Are we willing to be subservient? Are we willing to backslide against our own voters? Are we so ashamed of our own country that we cannot stand on our own two feet?
That is what the Bill is about: standing on our own two feet. It is about our internal market and, yes, it about the Union. It is about the most successful Union ever in the world: the United Kingdom—that Union of four great nations. It is not about the failed ideology of the European Union—a failed organisation that is willing not to play with a straight bat, that is going against its word and that is willing to break up our Union for the sake of itself. That is not playing things straight.
The European Union reminds me of a spoilt child in the playground that we do not want to play with anymore. Instead of allowing us to borrow their ball, they will happily break our ball. They will happily break up our United Kingdom. All Members of the House have to realise who we are dealing with. We are not dealing with people who are treating us equally. These are people—an organisation—who are willing to sacrifice our country, our very essence, for their own project.
The European Union is perfectly entitled to do that, because it is fighting for its own members’ rights, but I am here to fight for the people of Rother Valley. I am here to fight for the rights of the people of England. I am here to fight for the rights of the United Kingdom of our four countries. I am not here to represent the European Union. I am not the hon. Member for Brussels East or for Warsaw West. I am here to represent the people of Rother Valley, because they want a United Kingdom and they want to leave the European Union.
This opposition and this disunity is no more than people once again saying, “You don’t know what you voted for. You are too stupid to negotiate. You can’t dothis.” And I say no. We voted again and again for our country, and again and again the Opposition—the Labour party, in hock with the SNP, who of course want to break up our country—are willing to destroy everything.
Alexander Stafford
It is our country. We had the Acts of Union and a referendum to have it our country. We are one family. Just like when we fall out with our nephews or nieces, we are still family. We have disagreements. I will tell hon. Members who is not a part of the family: the European Union. We have had the divorce Bill—we have divorced it and we are going our own free way. We need to be united together against the European Union and its backsliding, and say, “We are one country. We are a proud nation, and together we will go forward as one United Kingdom.”
Kate Osborne (Jarrow) (Lab)
I have been contacted by a number of constituents about the Bill. It is of concern to many in the Jarrow constituency. Whether the constituents of Jarrow voted to leave or remain, the majority of them want the Government to get on with securing the best possible deal with the EU. They want a deal that governs future trade and relations, and one that protects and promotes jobs, employment rights and peace in Northern Ireland. I share that view.
I am disappointed that the Government are stalling over their Brexit deal. It is extremely frustrating, when we were told that the UK and the EU were so close to agreeing an oven-ready Brexit deal and that progress was being made on the outstanding issues. The Prime Minister is willing to tear up the withdrawal agreement in preparation for a no-deal end to the transition period. That would be an absolute disaster. The Government are no strangers to U-turns, but tearing up an international agreement that they negotiated has to be a new low.
We do not have time for this. We are in the middle of a public health emergency and an economic crisis. The Government need to stop frustrating their deal so that we can all focus our efforts on tackling the coronavirus crisis. A competent Government would never have entered into a binding agreement with provisions they intended to go back on. Or did the Government just not read the small print? For the Government to openly flout international law tells me that we are in dangerous territory. Just as the Prime Minister is no stranger to a U-turn, he is no stranger to breaking the law, as we saw last year with the unlawful shutting down of Parliament.
We may need a strong internal market, but this should have been a straightforward piece of legislation. Instead, it has caused chaos in the party of Government, it risks our international reputation and it advocates breaking international law. For those reasons, among others, I cannot support it and will vote against it.
Dr Ben Spencer (Runnymede and Weybridge) (Con)
Our Union benefits us all, and I support those measures in the Bill that strengthen our Union, support our businesses, and create more opportunities for those living and working in the UK. However, several clauses in part 5 cause me great concern, and I wish to lay out my thoughts and concerns to the House.
Parliament is sovereign. The critical question is not whether Parliament “can” do this, but whether it “should”. Parliament can, if it wills, create, amend, or rescind any domestic legislation or, as we are discussing today, break an international treaty enshrined in domestic legislation. It is not unimaginable that there may be situations where that is necessary, such as in response to a national crisis or a dire emergency. However, such a decision must never be taken lightly, and we must do everything reasonably possible to avoid that, so important is the rule of law and our commitment to international obligations. The consequences of breaching an international treaty are grave, and if we do that, or even propose to do it, not only must our justification be clear, but it must also be the last thing we do after we have exhausted all arbitration and legal recourse. Such action must be taken in extremis, not pre-emptively.
We trade and benefit from our international reputation. The United Kingdom has an old and proud democracy. My constituency, Runnymede and Weybridge, is the birth place of the Magna Carta and the rule of law. As we go out into the world as global Britain, seeking to make new trade deals, we will depend on our reputation more than ever. That means respecting the rule of law. If we damage our reputation, we will hamstring global Britain and our ability to seize the opportunities that Brexit presents.
I know that my neighbour, the Chancellor of the Duchy of Lancaster, and the Government, are mindful of the issues I have raised about our international reputation and obligations, the difficulty we will have in calling out Russia and China when they breach their commitments, and the importance of squaring that with protecting our Union. I ask them to think again about a resolution to the issues we face. I hope they see the constructive nature and spirit of my words, and hear the concerns of many fellow Members across the House.
More than anything we need a Canada-style free trade deal with the EU, which the Government are pushing hard to get. With or without a free trade agreement with the EU, the UK needs this Bill. There is a lot of good in it, and I want to support it, but for the reasons I have laid out, I regret I cannot support it unamended.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
This Bill is an outrage. We are thumbing our nose at international law, our Irish friends and EU allies, even while still in negotiations with them. It would be farcically funny, were it not so deadly serious. The Prime Minister has been double dealing not only with our international partners but with ordinary people, because the oven-ready deal he sold has been shown to be nothing more than a pig in a poke. That the Bill has been introduced, never mind that it will almost certainly be passed by the Chamber, is extraordinary. It is hugely damaging to the reputation of the UK, and it speaks starkly to the drastic weaknesses and feeble checks and balances at the heart of the UK constitution.
The Bill lays bare the Government’s attitudes to devolution and democratic accountability—in short, they do not care for it one jot. The Government pretend they are merely adopting an EU-style approach to creating a single market, but they are doing nothing of the sort. Where we should have had consent and co-operation, we have imposition; instead of subsidiarity, we have centralisation; instead of minimum standards, we have the starting gun for a race to the bottom; instead of protecting devolved powers, devolved powers are being reserved or utterly undermined.
The Bill speaks more broadly to the direction of travel that we face in the United Kingdom. Instead of a partnership of equals, it is “Westminster knows best.” Yet again, one Parliament—this Parliament—is unilaterally altering the competencies of another, and giving Ministers the power to do so again and again at the stroke of a pen. That does not happen in other western democracies where there would be double majorities, super majorities, and referendums before one Parliament or Government could take powers from another. Perhaps the one positive from the Bill is that it makes plain like never before that the constitution of the British state is not fit for purpose, and it flags up the real dangers that lie ahead if Scotland remains part of it.
Rachel Reeves (Leeds West) (Lab)
The UK has left the European Union, and we all agree on the need for clear terms for the UK’s single market to operate effectively. Many, although not all, of us believe in a United Kingdom, but we should all value devolution and its contribution to the rich tapestry of our country. The Good Friday agreement, whose groundwork was begun under a Conservative Government and fulfilled under a Labour one, has rightly been a source of admiration around the world, as has our adherence to the rule of law. I want to read out a few lines that have really resonated with me.
“The rule of law is the most precious asset of any civilised society…which makes sure that when those who hold power abuse it, they can be checked”.
Those words are from the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, the right hon. Member for Surrey Heath (Michael Gove), and in a few moments’ time he is going to urge hon. and right hon. Members to vote for a piece of legislation that he and the Government accept seeks to break international law. How on earth did the Government get in this place? That is a question that many hon. and right hon. Members have asked in the Chamber throughout the debate.
We have heard some incredibly powerful contributions today, and it would probably be unwise to single out any of them, but let me mention just a few. The hon. Member for Foyle (Colum Eastwood) invoked John Hume as having been a pathfinder for peace in Northern Ireland. The right hon. and learned Member for North East Hertfordshire (Sir Oliver Heald) said that breaking the law was something that this country just did not do. My hon. Friend the Member for Wallasey (Ms Eagle) spoke about the gigantic act of self-harm that we are embarking on, masquerading as a negotiating strategy. The hon. Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry) spoke about the danger of watering down our standards. And of course, the hon. Member for Bromley and Chislehurst (Sir Robert Neill) made a powerful speech. He and I have history: he roundly defeated me in the Bromley and Chislehurst by-election in 2006, but I did not hold that against him. He is held in high esteem on both sides of this House. He is motivated by trying to get the Government to move, and I hope that they do.
However, whatever the Bill lays down about when the provisions come into force, the very act of Parliament passing this legislation is in itself a breach of international law. That is because it breaches article 5 of the Government’s withdrawal agreement—an international treaty—by going against the Government’s commitment to refrain from measures that jeopardise the attainment of the objectives of the withdrawal agreement. It is important to understand this, because this is merely the starter for the law-breaking that this Government envisage. As we know from the Prime Minister’s speech today, the main course on GB-NI trade is still to come, presumably in the Finance Bill. So hon. and right hon. Members should be under no illusions. If they vote for this Bill tonight, they will find themselves on a slippery slope, being asked to vote for yet another law-breaking Bill. We say that it is time to draw a line and stand up for the rule of law.
There is a certain degree of irony in all this. Today we are asking the public to adhere to much stricter guidelines about who they can meet and where. Breaking those laws can result in police action. Indeed, this morning in a radio interview, the Minister for Crime and Policing, the hon. Member for North West Hampshire (Kit Malthouse), said that if people were concerned about others breaking the law, they should consider phoning the non-emergency police number. Madam Deputy Speaker, I wonder whether you could give some guidance to the House. If the British public observe this Government breaking the law, who should they telephone? A party that once treasured institutions, traditions, conventions and the rule of law now trashes them in plain sight with the whole world looking on in despair. This was once the party that claimed to be the party of law and order, but Sir Robert Peel would not recognise the modern Conservative party promoting the Bill this evening.
The Government say that they have no choice, so let me directly address the latest claims that the Government make. The Prime Minister’s project fear speaks of food blockades and that the Northern Ireland protocol could enable “a foreign power” to break up our country. The question has to be asked: how could any responsible Prime Minister sign up to such an agreement, campaign on it throughout a general election and ratify it as an international treaty if that were the case? Is the message to the House and the country that the Prime Minister was too incompetent to notice the contradictions? Or that he noticed them and simply did not care? And if that really was the case, why then does this legislation only address trade from Northern Ireland to Great Britain? The Bill even fails under the terms of the Prime Minister’s own arguments. He has not thought this through.
Or is the real justification for all this to serve other political purposes? Is this some unorthodox negotiating strategy, trashing our good name in the process? Reputations are hard won but they are easily lost, and that is what the Government are embarking upon this evening. In doing so, they are using Northern Ireland as a political football. That is wrong—so wrong. Not one of the explanations to justify the Bill this evening speaks well of the Prime Minister’s integrity, and it does not speak well of his judgment either.
I urge the Government to take a step back. It is not too late. Ministers will have heard this afternoon and this evening from hon. and right hon. Members in all parts of the House urging them to take a step back, think again and not go down this route. It is not too late. I urge both sides, the United Kingdom and the European Union, to drop the rhetoric, stop the posturing, as my right hon. Friend the Member for Leeds, Central has argued this afternoon, start negotiating properly and take this seriously. That message is for both sides in these negotiations.
Let me end by saying this. I have spoken in many debates in this House in the 10 years that I have been a Member of Parliament, but few have had the gravity or the implications of today’s debate on the Bill that we are voting on this evening. Every living Prime Minister—five of them in total, three of them Conservatives—tells us that this Bill does serious damage to our standing in the world. The two former Prime Ministers who were the architects of the Good Friday agreement, so vital for our United Kingdom and peace within the United Kingdom, warn us of the dangers of what the Government are doing. Every Member of this House should heed those warnings and listen to those words. No one knows more than those former Prime Ministers the risks that we are taking and the risks of the slippery slope that we are embarking on. Around the world, people are looking at us and asking who we really are. What kind of country do we want to be on 1 January next year, outside the orbit of the European Union? Let us stand up for our proudest traditions. Let us stand up for the Britain that I know and love—a Britain that stands proud on the world stage and stands there with moral authority; a country that cares about the rule of law, here and abroad, and stands up for it. I urge Members in all parts of the House to support our reasoned amendment this evening and vote against this squalid Bill.
The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office (Michael Gove)
It is always a pleasure to follow the hon. Member for Leeds West (Rachel Reeves), who always makes her case with clarity, with force and from principle. I know that everyone who listened to her speech will have recognised the powerful case that she was making. I did not agree with everything that she said, but I am sure everyone in the House recognises that she is a strong and effective advocate for her party and her principles.
I thank all those who spoke in this debate. We had more than 60 speeches, all of them I think contributing to the reputation of this House. We had very thoughtful speeches of course from a variety of Select Committee Chairs and also some very passionate speeches, including, as the hon. Lady mentioned, from the hon. Member for Foyle (Colum Eastwood) and the right hon. Member for East Antrim (Sammy Wilson). Those two representatives of Northern Ireland constituencies took passionately different views on the merits of this legislation. It is that very passion and, indeed, the importance of democracy, not just to Northern Ireland but to the whole United Kingdom, that means we should all try to look calmly at the Bill before voting tonight and before looking at the various amendments that may be tabled in Committee.
It is important that I remind the House of what the Bill does and what it does not do, as well has how, together, we can address the legitimate concerns that have been raised in good faith by hon. Members. The Bill protects, enhances and strengthens our Union and the prosperity of all our people. It is all the more crucial that we take these steps as we recover from the dreadful covid-19 pandemic. We need to work together as one United Kingdom, displaying solidarity and resolve, to ensure that the prosperity that we generate is shared for all the people we represent. It is a fact that each of the parts of the United Kingdom trade more with each other than with anyone else. It is a fact that each of the peoples of the United Kingdom rely more on each other than anyone else. All the peoples of the United Kingdom are stronger when we work together, act together and stick together.
No one summed up the essence of the Bill better than my hon. Friend the Member for Moray (Douglas Ross). He said it is a Bill about jobs and businesses. As he reminded us, some 545,000 jobs in Scotland rely on the integrity of our internal market. He reminded us that, coincident with this Bill, there is a power surge for all the devolved Administrations, with hundreds of powers going to the devolved Assemblies to strengthen devolution. He also stressed that the importance of devolution was that all our citizens could see our Governments working together—the United Kingdom Government working with the Northern Ireland Executive, the Senedd in Wales and, of course, the Scottish Government.
Michael Gove
Not at this stage.
The Bill does not walk away from negotiations with the European Union. Those negotiations go on with David Frost and Michel Barnier and with myself and my friend Maroš Šefčovič in the Joint Committee. We are committed to making a success of the negotiations. The Bill is not about abandoning the withdrawal agreement. The withdrawal agreement is there. We are safeguarding the rights of 3 million EU citizens in the UK, just as EU nations are safeguarding the rights of 1 million UK citizens in the EU.
The Bill is certainly not about declining to implement the Northern Ireland protocol. As the right hon. Member for East Antrim reminded us, with some regret on his part, we are erecting border-inspection posts for sanitary and phytosanitary checks in Northern Ireland, even now. We are investing hundreds of millions of pounds in helping Northern Ireland businesses to be ready for the new processes that come with the protocol. If we were not serious about implementing the protocol, we would not be incurring the inevitable resistance, from some, as we see those border-inspection posts erected and traders being prepared for the implementation of the protocol. The idea that we are abandoning it is simply for the birds.
The Bill is also not a threat to devolution. I must turn to my old friend, the right hon. Member for Ross, Skye and Lochaber (Ian Blackford). He gave the longest speech in this debate and, like all his speeches, it was true to the John Lewis guarantee: no argument was knowingly undersold. In his gusto to make his arguments and the lyricism with which he made his case, I fear he obscured one or two details. He talked about the threat to water in Scotland, but the Bill and the schedule are clear that water is excluded from the provisions of the Bill. He talked about the threat to the NHS, a UK institution, but if we look at the schedule to the Bill, we see that healthcare services are excluded.
I am perfectly happy to spend more time with the right hon. Gentleman, because it is always a pleasure to take him through the Bill, to calm him and to point out the ways in which it not only strengthens the Union but respects devolution. And devolution is what, indeed, it does respect—
Alison Thewliss (Glasgow Central) (SNP)
Will the right hon. Gentleman give way?
Michael Gove
No.
The other thing about the right hon. Member for Ross, Skye and Lochaber is that sometimes in his speeches he employs the Humpty Dumpty principle: a word means what he wants it to mean, whatever else the rest of us understand by it. He talked about defending devolution; well, what is devolution? It is two Governments working together—the Scottish Government and the UK Government; the Welsh Government and the UK Government. He says he wants to protect devolution, but how does he want to do that? By going for independence, smashing the devolution settlement, separating this family of nations and undermining the prosperity of the people who he and I love in Scotland. Even though he spoke at length, and lyrically, when he was challenged he could not give one single example of any power that the Scottish Government or the Scottish Parliament currently has that is not being retained. Indeed, powers are increasing.
Let me turn briefly to the speech given by the shadow Secretary of State for Business, Energy and Industrial Strategy, the right hon. Member for Doncaster North (Edward Miliband). I think we can all agree that it was an excellent speech. He raised a number of legitimate concerns and fair questions, which I hope to address. He talked about the importance of common frameworks, and we agree on that, which is why progress has been made on them. Indeed, one of those common frameworks specifically covers food standards and provides reassurance that the fears that he and others have about a race to the bottom will not be realised. It is also the case, as is acknowledged widely, including in his speech, that common frameworks are important but they are not enough. Progress on common frameworks is a good thing, but we also need legislation to underpin the internal market overall. I also noted his passionate commitment in his speech to getting Brexit done, and I am pleased to welcome him to the ranks of born-again Brexiteers.
One thing the right hon. Gentleman will know—indeed, the Chairman of the Select Committee on the future relationship with the European Union, the right hon. Member for Leeds Central (Hilary Benn), repeated the point—is that the EU has not always been the constructive partner that all of us might have hoped. In excellent speeches, my hon. Friend the Member for South Thanet (Craig Mackinlay), my right hon. Friend the Member for Basingstoke (Mrs Miller) and my hon. Friend the Member for Bassetlaw (Brendan Clarke-Smith) pointed out that the EU has not always done what we might have hoped it would do. The EU is bound by a system of what are called autonomous processes to ensure that we have equivalence on data and financial services, and that we are listed as a third country for the export of food and other products of animal origin. There has been no progress on any of those. We were told that we would get a Canada deal, but that is not on the table. The Prime Minister has reminded us that the threat on third country listing could mean an embargo on the transport of goods from Great Britain to Northern Ireland. The EU has also insisted on an interpretation of an end to the common fisheries policy that would mean that they could carry on fishing in our waters just as before, even though we had pledged to take back control. I am not a diplomat but let me try to put it in diplomatic language: some people might think that the EU had not been negotiating absolutely 100% in line with what all of us might have hoped. Given that, it is important that we redouble our efforts to seek agreement but that we are also prepared for any eventuality.
Importantly, it is not just me who acknowledges that the EU might not have been doing everything it should to secure agreement. As I say, the Chairman of the Select Committee made the point that there is no need for exit declarations for goods coming from Northern Ireland to Great Britain. He made the point that it is a shame that we have not got third country listing, and I agree with him—and I agree with the hon. Member for Leeds West that the EU must up its game.
It is also crucial that we recognise what this Bill seeks to do in order to ensure that we can get an appropriate resolution, and here I turn to the remarks made by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). He is an old friend of mine and he is on to something here. He made the point that we need to show that we are operating in a constructive spirit, and I agree. That is why we want to secure agreement through the Joint Committee, which is why we met last week. It is why Maroš Šefčovič and I have been working, setting aside our differences, in order to achieve agreement. It is also why our first recourse will be to the arbitral panel if we do have problems. We recognise, as my hon. Friend pointed out, that if we cannot secure agreement, under section 16 there are steps we can take in extremis, as a safety net, to ensure that our interests are protected. It is the case in international law that we can take those steps, if required, in order to achieve the goals we wish.
Tom Tugendhat (Tonbridge and Malling) (Con)
My right hon. Friend is making some clear points. Will he make it absolutely clear that any breach of the withdrawal agreement will come only at the very end of a long process, at which point the only resolution in respect of keeping food flowing between GB and Northern Ireland is this Bill?
Michael Gove
My hon. Friend, the Chairman of the Foreign Affairs Committee, makes an important point. It is the case that patient negotiation is the way forward. [Interruption.] No, I entirely agree with him. This time last year, we and the EU were at loggerheads. There were obstacles and roadblocks, but we negotiated with rigour, with determination and not without some bumps in the road in order to achieve progress. If we apply the same determination now as we did then, I believe that we can make progress in these negotiations, but just as last year, when we were ready to support our Prime Minister in showing steely resolve to get the best possible deal and to make sure that our negotiators had everything that they needed, so now we must back our Prime Minister and our negotiators and recognise that this safety net is a critical part of making sure that we can achieve everything that we wish. We should support the Bill this evening.
Question put, That the amendment be made.
TABLE | ||
|---|---|---|
Day | Proceedings | Time for conclusion of proceedings |
First day | Clauses 28 to 39; new Clauses and new Schedules relating to Part 4; other new Clauses and new Schedules relating generally to the internal market for goods and services in the United Kingdom | Six hours from the commencement of the proceedings on the Bill on the first day |
Second day | Clauses 46 and 47; new Clauses and new Schedules relating to Part 6 | Six hours from the commencement of the proceedings on the Bill on the second day |
Third day | Clause 11; Clauses 40 to 45; Clause 50; new Clauses and new Schedules relating to Part 5 | Six hours from the commencement of the proceedings on the Bill on the third day |
Fourth day | Clauses 1 to 10; Schedule 1; Clauses 12 to 16; Schedule 2; Clauses 17 to 27; new Clauses and new Schedules relating to Parts 1 to 3; Clauses 48 and 49; Clauses 51 to 54; remaining new Clauses; remaining new Schedules; remaining proceedings in Committee on the Bill | Six hours from the commencement of the proceedings on the Bill on the fourth day |
United Kingdom Internal Market Bill (Programme) (No. 2)
Tuesday 29th September 2020
(4 years, 7 months ago)
Commons ChamberUnited Kingdom Internal Market Act 2020 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 29 September 2020 - (29 Sep 2020)
Mr Deputy Speaker (Mr Nigel Evans)
I inform the House that I have not selected the amendment to the programme motion.
Ordered,
That the Order of 14 September 2020 (United Kingdom Internal Market Bill (Programme)) be varied as follows:
(1) Paragraphs (4) to (6) of the Order shall be omitted.
(2) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion four hours after the commencement of proceedings on the Motion for this Order.
(3) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion six hours after the commencement of proceedings on the Motion for this Order.—(Paul Scully.)
United Kingdom Internal Market Bill
Tuesday 29th September 2020
(4 years, 7 months ago)
Commons ChamberUnited Kingdom Internal Market Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 29 September 2020 - (29 Sep 2020)
18:05 - The House divided: - Ayes: 256 / Noes: 350 - Question accordingly negatived.
00:00 - The House divided: - Ayes: 258 / Noes: 351 - Question accordingly negatived.
18:35 - The House divided: - Ayes: 264 / Noes: 342 - Question accordingly negatived.
18:51 - The House divided: - Ayes: 256 / Noes: 354 - Question accordingly negatived.
20:05 - The House divided: - Ayes: 256 / Noes: 348 - Question accordingly negatived.
20:21 - The House divided: - Ayes: 340 / Noes: 256 - Question accordingly agreed to.
Mr Deputy Speaker (Mr Nigel Evans)
I have not selected the recommittal motion in the name of Ian Blackford.
New Clause 4
Objectives and general functions
‘(1) In carrying out its functions under this Part the CMA must have regard to the objective in subsection (2).
(2) The objective is to support, through the application of economic and other technical expertise, the effective operation of the internal market in the United Kingdom (with particular reference to the purposes of Parts 1, 2 and 3).
(3) The following do not apply in relation to the carrying out of the CMA’s functions under this Part—
(a) section 25(3) of the Enterprise and Regulatory Reform Act 2013 (duty to seek to promote competition), and
(b) sections 6(1)(b) (function of giving information or advice to the public) and 7 (provision of information and advice to Ministers etc) of the Enterprise Act 2002.
(4) The CMA may give information or advice to the Secretary of State on matters relating to any of its functions under this Part.’—(Paul Scully.)
This new clause makes provision about the objective to which the Competition and Markets Authority must have regard in carrying out its functions under Part 4, and the application of certain general functions of the CMA in relation to its functions under Part 4. The clause would be inserted after Clause 28.
Brought up, and read the First time.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)
I beg to move, That the clause be read a Second time.
Mr Deputy Speaker
With this it will be convenient to consider the following:
Government new clause 5—Office for the Internal Market panel and task groups.
New clause 1—Withdrawal Agreement and rule of law duty—
‘(1) An appropriate authority exercising any function to which this Part (Northern Ireland Protocol) applies must—
(a) respect the rule of law;
(b) allow for the possibility of judicial review of an enactment, decision, act or omission by the appropriate authority;
(c) use the provisions of Article 16 of the Protocol to protect the interests of the United Kingdom.
(2) An appropriate authority exercising any function to which this Part applies must comply with the obligations of the United Kingdom under international law.
(3) An appropriate authority exercising any function to which this Part applies must comply with—
(a) the requirement under Article 5 (Good faith) of the Withdrawal Agreement for the EU and the United Kingdom to assist each other in full mutual respect and good faith to carry out the tasks which flow from the Agreement;
(b) the requirement under Article 167 (Consultations and communications within the Joint Committee) for the EU and the United Kingdom to endeavour to resolve any dispute regarding the interpretation and application of the provisions of the Agreement by entering into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution;
(c) the requirement under Article 184 (Negotiations on the future relationship) of the Withdrawal Agreement for the EU and the United Kingdom to use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration of 17 October 2019 and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period;
(d) the requirements of the Good Friday or Belfast Agreement of 10 April 1998 between the Government of the United Kingdom and the Government of Ireland and the other participants in the multi-party negotiations, which is annexed to the British-Irish Agreement of the same date.
(4) An appropriate authority exercising any function to which this Part applies must comply with the Human Rights Act 1998.’
This new clause is intended to replace Clauses 42, 43 and 45 of the Bill, to require Ministers to respect the rule of law and uphold the independence of the courts and the practice of judicial review, and to require UK Ministers to implement the Withdrawal Agreement.
New clause 2—Internal market common framework—
‘(1) The Secretary of State must seek to reach agreement with the Scottish Government, the Welsh Government and the Northern Ireland Executive on a common framework on the United Kingdom internal market.
(2) A common framework under subsection (1) may cover—
(a) the functioning of the United Kingdom internal market;
(b) the effectiveness of market access principles; and
(c) drawing up a shared prosperity fund to balance economic development across the whole of the United Kingdom.
(3) The Secretary of State must take into account the common framework on the United Kingdom internal market in exercising any powers under Part 6 (Financial assistance powers) of this Act.’
This new clause would put the Common Framework process on a statutory footing.
New clause 3—Duty to consult, monitor, report and review—
‘(1) Within three months of the date on which this Act is passed, the Secretary of State must lay a report before each House of Parliament on the dates on which each section—
(a) was commenced; or
(b) is planned to commence.
(2) The Secretary of State must arrange for a review to be carried out within three months of the date on which this Act is passed, and thereafter at least once in each calendar year on the operation of this Act.
(3) The Secretary of State must invite the Scottish Government, the Welsh Government and the Northern Ireland Executive to contribute to the reviews in subsection (1).
(4) The reviews under subsection (1) must make an assessment of—
(a) the functioning of the United Kingdom internal market;
(b) the effectiveness of market access principles;
(c) progress towards agreeing common frameworks with the devolved administrations;
(d) progress towards drawing up a shared prosperity fund framework; and
(e) progress in resolving issues through the Joint Committee machinery in the Withdrawal Agreement.
(5) The Prime Minister must arrange for a report of any review under this section to be laid before each House of Parliament as soon as practicable after its completion.’
This new clause would ensure Ministers have a duty to report back to Parliament on the progress of the functioning of the internal market; market access; progress towards agreeing common frameworks; progress towards drawing up a shared prosperity fund; and progress in resolving issues through the Joint Committee machinery in the Withdrawal Agreement.
New clause 6—Economic development: climate and nature emergency impact statement—
‘(1) Any financial assistance provided under Part 6 of this Act for the purpose of economic development must take into account the overarching need for a sustainable strategy aimed at long- term national well-being.
(2) Every proposal for financial assistance under this Act must be accompanied by a climate and nature emergency impact statement.
(3) Responsibility for the production of the climate and nature emergency impact statement required in subsection (2) resides with the applicant for financial assistance.
(4) Responsiblity for assessment of the climate and nature emergency impact statement required in subsection (2) resides with Ministers, who are required to publish this assessment for any successful proposal.
(5) The climate and nature emergency impact statement produced should take account of any carbon budget, climate, nature and environmental goals approved by the relevant Parliament.
(6) In subsection (5), the “relevant Parliament” means—
(a) where the proposed financial assistance relates to a person in England, the House of Commons and the House of Lords;
(b) where the proposed financial assistance relates to a person in Scotland, the Scottish Parliament;
(c) where the proposed financial assistance relates to a person in Wales, Senedd Cymru;
(d) where the proposed financial assistance relates to a person in Northern Ireland, the Northern Ireland Assembly.’
The intention of this new clause is to ensure that those seeking financial assistance for economic development, etc under this Act are obliged to undertake a climate and nature emergency impact statement to ensure public money is only granted to development consistent with climate, nature and environmental goals and targets.
New clause 7—Northern Ireland’s place in the UK internal market—
‘(1) As part of its obligation under Article 6.2 of the Protocol on Ireland/Northern Ireland to use its best endeavours to facilitate trade between Northern Ireland and other parts of the UK, the UK Government must—
(a) publish an assessment at least every 12 months of any impact on businesses and consumers arising from the Protocol on trade between Great Britain and Northern Ireland and vice versa; and
(b) develop mitigations to safeguard the place of Northern Ireland businesses and consumers in the UK internal market.
(2) The assessment published under paragraph (1)(a) must include assessment of the impact of any actual or proposed regulatory or trade policy divergence on Northern Ireland’s place in the UK Internal Market.
(3) Any official or administrative costs arising from the duties under subsections (1) and (2) may not be recouped from the private sector.’
New clause 8—Interpretation of the Northern Ireland Protocol in accordance with International Law—
‘(1) In the event that the European Union fails to act in accordance with the principles of public international law in its implementation of the Northern Ireland Protocol, by
(a) failing to undertake acts that are required by the provisions of the Northern Ireland Protocol;
(b) committing acts that are not in accordance with the provisions of the Northern Ireland Protocol;
(c) failing to undertake acts that are necessary for the effective implementation of the Northern Ireland Protocol;
(d) asserting positions in the Joint Committee that are not in accord with the provisions of the Northern Ireland Protocol; or
(e) refusing to discuss in the Joint Committee proposals on implementation of the Northern Ireland Protocol tabled by the United Kingdom;
(2) For the purposes of subsection (1), the principles of public international law that may be invoked include—
(a) the provisions of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986, including, in particular,
(i) the need to act in “good faith” and
(ii) the need to avoid results that are “manifestly absurd or unreasonable”;
(b) established international practices, having the status of customary international law; and
(c) the commitments made in the preambular paragraphs of the Northern Ireland Protocol.
(4) A unilateral interpretative declaration issued under subsection (1) may not be submitted unless—
(a) a Minister of the Crown has laid before each House of Parliament
(i) a copy of the proposed declaration,
(ii) a statement on the nature of the dispute with the European Union,
(iii) a statement of the intended effect of the proposed declaration; and
(b) the declaration has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown; and
(c) a motion for the House of Lords to take note of the declaration has been tabled in the House of Lords by a Minister of the Crown and—
(i) the House of Lords has debated the motion, or
(ii) the House of Lords has not concluded a debate on the motion before the end of the period of five Lords sitting days beginning with the first Lords sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (b).
(5) When a response to the submission of any unilateral interpretative declaration is received from the European Union, a Minister of the Crown shall lay before each House of Parliament the response received from the European Union, and—
(a) in the case of the approval of the declaration by the European Union, the Minister shall issue a written statement confirming that the declaration has obtained the status of an authentic interpretation of the Northern Ireland Protocol;
(b) in the case of opposition to the declaration by the European Union, the Minister shall issue a written statement, assessing any alternative interpretation formulated by the European Union and indicating the government’s intended response; or
(c) in the case of the recharacterisation of the declaration by which the European Union purports to treat the declaration as an illegal reservation, the Minister shall issue a written statement of what action it intends to take to resolve the dispute.
(6) In this section—
“approval”, “opposition” or “recharacterization” of a declaration shall have the meaning given in Guideline 2.9 of the Guide to Practice on Reservations to Treaties, contained in the report of the International Law Commission on its Sixty-Third Session in 2011;
“Joint Committee” means the Joint Committee established under Article 164 of the EU Withdrawal Agreement;
“Lords sitting day” means a day on which the House of Lords is sitting (and a day is only a day on which the House of Lords is sitting if the House begins to sit on that day);
“submit” means to make a submission to the depositary of the EU Withdrawal Agreement, as specified in Article 183 of the EU Withdrawal Agreement; and
“unilateral interpretative declaration” means an interpretative declaration as defined by Guideline 1.2 of the Guide to Practice on Reservations to Treaties, contained in the report of the International Law Commission on its Sixty-Third Session in 2011.’
Government amendments 31 and 32, 19, 33 to 38, 20 to 26, and 1 to 11.
Amendment 16, page 37, line 10, leave out Clause 45.
Government amendments 12, 13, 15 and 14.
Amendment 18, page 38, line 36, leave out Clause 46.
Amendment 29, page 39, line 27, leave out Clause 47.
Government new schedule 1—Constitution etc of Office for the Internal Market panel and task groups.
Amendment 17, in schedule 1, page 48, line 14, at end insert—
‘(8A) In the case that there is one REACH authorisation process for Great Britain, an authorisation that is lawful for the Northern Ireland market will be valid for the Great Britain market.’
The intention of this amendment is to apply the non-discrimination principle to the REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) regime.
Government amendments 27 and 28.
Amendment 30, in title, line 7, leave out from “aid” to “to” in line 10.
Amendments 18 and 29 would remove both clauses in Part 6 (Financial assistance powers). This consequential Amendment removes from the long Title “to authorise the provision of financial assistance by Ministers of the Crown in connection with economic development, infrastructure, culture, sport and educational or training activities and exchanges”.
Paul Scully
It is a pleasure to serve under your chairmanship, Mr Deputy Speaker. I want to begin by thanking all Members for their engagement throughout the passage of the Bill and the Public Bill Office for its excellent work in supporting Members and officials.
Before I turn to the specific amendments that we are debating, I want to briefly remind Members why it is crucial that we pass this Bill. Around 60% of Scottish and Welsh exports are to the rest of the UK, which is around three times as much as exports to the rest of the EU. About 50% of Northern Ireland’s sales are to Great Britain. In some local authorities in Wales, over a quarter of workers commute across the border. When we leave the transition period at the end of this year, laws made in Europe can be made in the UK.
Pete Wishart (Perth and North Perthshire) (SNP)
The Minister will have noticed yesterday that the Scottish Government declared their intention not to give this Bill a legislative consent motion. Does he intend to ignore that or dismiss it, and does he hold Scottish democracy in contempt?
Paul Scully
I very much do not hold the devolution settlement in contempt. It is right that we work together. I believe that the UK is stronger together. It is important that we give Scottish businesses—just as much as Welsh, Northern Irish and English businesses—the certainty that they want to be able to trade, so we will continue to engage with the Scottish Parliament and officials and politicians up there to achieve legislative consent.
Hundreds of powers will flow from the EU to the devolved nations and the UK Government in an unprecedented transfer. As we recover from covid, we must ensure that our economy is stronger than ever. That is why the Government have introduced this Bill and why it is essential that we pass it. We want to guarantee the continued functioning of our internal market, to ensure that trade remains unhindered in the UK.
I will begin by speaking to the amendments tabled by my right hon. Friend the Secretary of State for Business, Energy and Industrial Strategy, starting with those that strengthen the Bill’s measures relating to the governance and functioning of the Office for the Internal Market. The office will sit within the Competition and Markets Authority to monitor and report on the internal market on an equal basis for all Administrations. The Competition and Markets Authority has a strong reputation for independence and impartiality. The Government have strived to preserve that reputation in setting out the functions to be carried out by the Office for the Internal Market. By providing non-binding, expert reporting and technical monitoring on regulations and proposals, it will provide robust evidence on the actual or potential impact of regulatory measures.
New clause 4 gives the Competition and Markets Authority the objective of supporting the effective operation of the UK internal market through the provision of economic and technical advice and expertise. That will exist in parallel to the existing objective of the Competition and Markets Authority to promote competition for the benefit of consumers.
New clause 5 enables Competition and Markets Authority functions under part 4 of the Bill to be carried out by an Office for the Internal Market task group and introduces a new schedule setting out the Government’s arrangements for the Office for the Internal Market panel and task groups. That mirrors the existing arrangements for the establishment of panels and groups that it has in place.
New schedule 1 establishes a panel of experts to lead the work of the Office for the Internal Market. The Secretary of State will appoint a chair and further members, following consultation with Ministers from all three devolved Administrations.
Sir William Cash (Stone) (Con)
Will the Minister confirm that the arrangements under the Bill regarding the CMA guarantee that we will not have any jurisdiction by the European Union or the European Court over the CMA and, furthermore, that one of the cardinal principles on which the European Union and the Commission are taking their stand is that they insist that we should not benefit competitively from leaving the European Union and we should not be able to compete with them on reasonable terms?
Paul Scully
I am grateful for that typically wise intervention. I am happy to provide that confirmation.
Amendment 1 provides absolute privilege against defamation for the Competition and Markets Authority when carrying out its functions under part 4. That will ensure that it can report and provide advice independently without needing to expend resources on preparing to defend litigation, and that businesses with deep pockets cannot sue or threaten to sue the CMA to obstruct it from carrying out its functions.
I shall set out briefly for the House the amendments that will improve the Bill’s drafting. Through amendments 31 to 34, we are taking the opportunity to put it beyond any possible doubt that alcohol minimum unit pricing-type regulation and any other sales requirements are not in the scope of the mutual recognition principle, unless they amount in practice to a total ban on a good being sold. That came up in Committee. We want to make sure that rather than politicking, we can return to a business continuity approach.
Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)
The Minister just told us about an amendment to take into account concerns about the minimum unit pricing aspect, but UK Government Ministers have been telling us for weeks that the Bill does not affect that. Clearly, that was a concern until now and we were right. Is it not also true that the non-discriminatory aspects of the amendment make it completely useless anyway?
Paul Scully
I thank the hon. Gentleman for his intervention, but the answer is no. To ensure we take that political football totally off the table and return the Bill to what is was always designed to be about—giving businesses in Scotland and all parts of the UK the business continuity and certainty they need without such distractions—the technical amendment dots the i’s and crosses the t’s.
Jim Shannon (Strangford) (DUP)
For Northern Ireland to be a successful part of the United Kingdom, may I gently suggest that the Minister should work with us on new clause 7, which my party has tabled? It is an imperative tool to ensure that Northern Ireland is not left behind in Brexit in terms of being an integrated member of the United Kingdom of Great Britain and Northern Ireland—in other words, that we are treated equally.
Paul Scully
I will turn to new clause 7 in a second, but clearly we will treat Northern Ireland equally.
Amendments 2 to 11, 24, 27, 28 and 35 to 38 are technical changes to remove sources of potential confusion in the drafting. Amendments 19 and 21 provide fuller clarification that a wide range of agricultural processes are considered to be in scope when we refer to the production of goods. Amendment 20 ensures that the UK Government and devolved Administrations can continue to respond to specific biosecurity threats arising from the movement of animals and high-risk plants and that they are excluded from the mutual recognition and non-discrimination principles of the Bill.
Amendments 22 and 23 clarify the meaning of clause 16 that a change to the conditions attached to an authorisation requirement would bring it in scope of part 2 of the Bill. Amendment 26 ensures that the exemption in clause 23 covers the replication of non-statutory rules as well as a re-enactment of legislation. Amendments 12 to 15 ensure that the higher courts in England and Wales, Scotland and Northern Ireland may make declarations of incompatibility in respect of the regulations under clauses 42 and 43, but may not quash them. That will ensure that, in the unlikely event of a violation of convention rights, there is a remedy available through the courts.
Joanna Cherry (Edinburgh South West) (SNP)
Notwithstanding the terms of amendments 12 and 13, can the Minister tell us whether the Secretary of State continues to be confident that the statement he has made in terms of section 19(1)(a) of the Human Rights Act 1998 is accurate?
Paul Scully
We have been quite clear in the approach that we have taken in terms of the human rights impact, so I am confident that the Secretary of State has talked about that.
Sir Robert Neill (Bromley and Chislehurst) (Con)
May I press the Minister a little further in relation to amendment 13 and so on? I accept “preserving a remedy”, but it is a remedy by way of a declaration of incompatibility, as opposed to removing any offensive regulation in domestic law. It is a much harder burden or obstacle for a litigant—for every person—to go through to get a declaration of incompatibility. What is the compelling reason for adopting this unusual approach?
Paul Scully
This achieves the right balance in terms of a remedy, in the unlikely event of a breach of convention rights, for the reason that I have covered in terms of our impact assessment on human rights. I hope that right hon. and hon. Members will feel able to support these important but mainly technical amendments.
I will move on to the Opposition amendments, because it is important that we give them due care and attention, but I first want to remind hon. Members of the core purpose of the Bill. The Bill puts into law a market access commitment by enshrining the principles of mutual recognition and non-discrimination in the law. That means that goods and services from one part of the UK will be recognised across the country, and it will ensure that there is equal opportunity for all UK-based companies trading in the UK.
New clause 2 would place an obligation on UK Ministers to seek to agree a framework covering the UK internal market, which would need to be taken into account in the exercise of financial assistance payments. The new clause would fundamentally alter the basis on which common frameworks are developed and would not be in line with the design of common frameworks that was agreed by the UK Government and devolved Administrations. The principles agreed made it clear that the common frameworks are based on consensus rather than legislation, as we discussed in Committee. The principles also set out that the common frameworks are limited in their scoped powers returning from the EU, which have a devolved intercept.
An overarching framework would not materially contribute to effective joint working between the United Kingdom Government and devolved Administrations. Through the common frameworks programme, we are agreeing mechanisms for effective intergovernmental working. Those will cover many areas engaged by provisions in the Bill for the internal market.
We are also developing proposals for an enhanced intergovernmental system, which will support work to maintain policy coherence across the United Kingdom. This collaborative model is likely to be more effective and provide greater clarity than the process set out in the new clause, which does not clearly define when the duty in subsection (1) and the due regard duty in subsection (3) would be met.
Common frameworks are designed to allow for collaborative and flexible working between the United Kingdom Government and the devolved Administrations. Creating a framework such as this, which is underpinned by obligations in law, could undermine that effective joint work.
New clause 3 seeks to require the Secretary of State to provide Parliament with regular reviews on the functioning of the internal market, the effectiveness of provisions in the United Kingdom Internal Market Act and progress towards delivering provisions not in the Act, such as common frameworks. While I commend the intention behind the amendment, the review provisions it seeks to deliver are already provided for. They exist either in the Bill, through the Office for the Internal Market, or in previous legislation.
As part 4 of the Bill sets out, the Office for the Internal Market will have a number of reporting and monitoring responsibilities. Clause 29 sets out how the office will need to compile yearly “health of the market” reports on the functioning of the internal market, and five-yearly system reviews on the operation of parts 1 to 3. Those reports will be laid before the UK Parliament and the devolved legislatures for consideration, ensuring parliamentary transparency and accountability. I consider, therefore, that the new clause risks being highly duplicative.
It is essential that both those reports are compiled at arm’s length from both the UK Government and the devolved Administrations. That will enable the office to deliver a credible, impartial and expert analysis that delivers difficult messages to the Administrations, if necessary. However, when conducting those reports, the Office for the Internal Market will be able to consider the views of all relevant interested parties, including the devolved Administrations, in order to present evidence on how well the internal market itself and the Government’s proposals are serving stakeholders across the UK. Moreover, regarding the specific areas listed in the amendment, the Government already publish quarterly reports entitled, “The European Union (Withdrawal) Act and Common Frameworks”, which set out joint progress on common frameworks.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
The Minister is putting a brave face on things, as always. It is all very well talking about reviews and reports, but does he accept that, for an internal market to function, there actually needs to be communication between the Prime Minister and the leaders of the devolved Administrations? Why has the Prime Minister failed to communicate regularly with the First Minister of Wales, instead speaking to him only once every few months? Especially at a time of national crisis, why has the Prime Minister been so poor in his communication?
Paul Scully
The Prime Minister, the Secretary of State and Ministers work with all the devolved Administrations. My colleague in the Business Department has meetings—especially at this particular time—with businesses across the devolved Administrations, including in Wales.
As I say, for this particular area, we already publish the report I referred to. However, we consider it right that any reporting on the Joint Committee machinery or the UK shared prosperity fund should be undertaken separately from that on internal market provisions. For that reason, I am not able to accept the amendment.
John Redwood (Wokingham) (Con)
Will the Minister confirm that Brexit is a huge opportunity to increase the powers both of this House—over our own internal market and economic prosperity—and of the devolved Administrations, which will gain power? Should everybody not cheer up and welcome the fact that both the devolved Administrations and the Union Parliament can take back control?
Paul Scully
I thank my right hon. Friend for the opportunity to absolutely agree with him that this gives us a great opportunity to come together as the United Kingdom, to give that sense of certainty to businesses and, just as importantly, to grab hold of the opportunities provided by leaving the European Union.
Before I address the amendments to the Bill’s Northern Ireland protocol measures, I remind hon. Members of the points made by the Minister of State, Northern Ireland Office, my hon. Friend the Member for Worcester (Mr Walker), in Committee last week. He made it clear that
“the Northern Ireland protocol…is designed to recognise and protect the needs and unique circumstances of Northern Ireland. Central to that is ensuring that the Belfast/Good Friday agreement, its successor agreements, and the gains of the peace process are protected.”
He stressed that it was crucial to
“ensure that the delicate balance between all communities in Northern Ireland is maintained and that the UK Government pursue policies for sustained growth and stability in Northern Ireland…Through this Bill, we are acting to uphold those priorities and deliver the commitments we made in our election manifesto that we would provide unfettered access between Northern Ireland and Great Britain and ‘maintain and strengthen the integrity and smooth operation of the internal market’.”—[Official Report, 21 September 2020; Vol. 680, c. 647.]
I will now speak to new clause 1, which seeks to replace clauses 42, 43 and 45, as well as amendment 16, which intends to remove clause 45. The Government have already been clear that these clauses are required to provide a safety net of powers in reserve, which Ministers may need to use to guarantee the integrity of our United Kingdom and to ensure that we are always able to deliver on our commitments to the people of Northern Ireland, in line with the three-strand approach of the Belfast agreement.
Stephen Farry (North Down) (Alliance)
The Minister talks about giving a safety net to the people of Northern Ireland. Does he recognise that the majority of people in Northern Ireland regard the Bill as taking away their safety net by undermining the Good Friday agreement? That is the view in Northern Ireland, and it is important that the Government listen to it, not act contrary to it.
Paul Scully
I have spoken to businesses in Northern Ireland, and a number of them are very supportive of this. I suggest that anybody in Northern Ireland or elsewhere in the UK who believes that the Bill actually takes away from the Belfast agreement is listening to the wilful misrepresentation of the Bill by certain people politicking. Actually, the Belfast agreement has a three-strand approach, and the Bill will be a safety net only in the event that we cannot reach agreement with the EU through the Joint Committee.
Several hon. Members rose—
Paul Scully
I will make progress, because these are important points. New clause 1 and amendment 18 would remove that safety net, which we just cannot agree with. These clauses were supported by clear majorities of the whole House at Committee stage.
I can reassure hon. Members that many of the proposals in new clause 1 are already addressed in the Bill. First, the Government have been clear that regulations made under clauses 42 or 43 would be subject to judicial review on general public law grounds, while ensuring that any claims must be brought within three months. This ensures any challenge to the regulations will be subject to timely resolution before the courts. This is essential to ensure that Northern Ireland businesses and investors in Northern Ireland have the certainty that they need. Amendments to this effect have already been agreed to in Committee, and I thank my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who helped make that happen.
Secondly, on article 16 of the protocol, which new clause 1 mentions, in the event that regulations were made under clauses 42 or 43, we have been clear that we would activate appropriate dispute settlement mechanisms to find a solution in parallel to domestic legislation. Thirdly, the UK Government will continue, as we have always done, to negotiate with our friends and partners in the EU in good faith.
For the avoidance of any doubt, let me confirm again that we are of course committed to implementing the withdrawal agreement and the Northern Ireland protocol, and have already taken many practical steps to do this. However, as a responsible Government, we cannot allow the gains of the peace process or the economic integrity of the UK’s internal market—
John Redwood
Would the Minister confirm that the Government are not intending to break the law—and I do not think anything they have suggested is breaking the law—and will he confirm that those who say otherwise are deliberately undermining our negotiations with the EU?
Paul Scully
I thank my right hon. Friend for that. Indeed, our intention, as I say, is to work on implementing the withdrawal agreement and the Northern Ireland protocol. I have talked about the fact that we have taken many practical steps to do this. We continue to negotiate in good faith.
Several hon. Members rose—
Paul Scully
I am going to make progress because I still have a number of amendments to cover.
We cannot accept any amendments that will undermine provisions in the Bill by rendering them no kind of safety net at all. New clause 1 does that, I am afraid.
I now turn to new clause 8. I appreciate entirely the spirit in which this has been put forward. While all of us hoped that the EU would negotiate and discharge its obligations under the withdrawal agreement and protocol in good faith, this amendment seeks to frame in statute a number of steps that Ministers could take under international law were that not to happen. However, this amendment is not necessary, as it would already be open to Ministers to take the steps my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) proposes.
As I have mentioned, the Government have been working with the European Union to reach agreement through the Joint Committee process, and through this Bill we are preparing for a scenario where that does not happen. On 17 September, the Government issued a statement setting out the circumstances in which we would use the powers provided for under clauses 42 and 43: the Government would
“ask Parliament to support the use of the provisions in Clauses 42, 43 and 45 of the UKIM Bill, and any similar subsequent provisions, only in the case of, in our view, the EU being engaged in a material breach of its duties of good faith or other obligations, and thereby undermining the fundamental purpose of the Northern Ireland Protocol.”
Mr Shailesh Vara (North West Cambridgeshire) (Con)
Does the Minister agree that those who object to the clauses he has just mentioned should bear in mind the language that has been used by the EU in recent weeks in terms of what it interprets the Northern Ireland protocol to mean? It has denied the existence, as it is written on the face of the Northern Ireland protocol, of matters such as the internal market, unfettered trade and so on. So these provisions are necessary as a safety net—nothing more than a safety net. I say to the critics, “Just look at the language of the EU” and if they look at the language of the EU, they will see that these measures are perfectly reasonable.
Paul Scully
I am grateful for that, and my hon. Friend is absolutely right. These are reasonable steps to act as a safety net.
In the statement I referred to, the Government also make it clear that
“in parallel with the use of these provisions it would always activate appropriate formal dispute settlement mechanisms with the aim of finding a solution through this route.”
Several hon. Members rose—
Paul Scully
I will happily give way to the mover of that amendment. [Interruption.]
Sir Edward Leigh
Actually, to be fair, the Minister has just been dealing with new clause 8, which I have moved. I am very grateful for what he has said. He seemed to suggest that the new clause was not in itself wrong, but was not necessary. But will he accept that, certainly when this Bill goes to the House of Lords, it might be helpful for the Government to produce an idea like this as another arrow in the armoury to reassure those who want to use international law in the right way, if the EU acts unreasonably? The advantage of a unilateral interpretive declaration under the Vienna convention, is that we can do it in this way, so I am grateful to the Minister.
Paul Scully
I thank my right hon. Friend. It is right that he gets to speak as it is about his amendment. He is trying to be helpful in this regard, and I know that Ministers in the other place will take heed of his comments as they engage with colleagues there.
Gavin Robinson
I am grateful to the Minister for allowing me to come in at this point. There is no need to consider what steps would be taken in that scenario, given this new clause. It is open to the Government to accept the new clause and thus give clarity and comfort to businesses in Northern Ireland who do not know, but suspect, that there may be divergence, difference and associated costs. Nothing that he has said thus far would be injurious to his position or frustrate his hon. Friends in supporting the new clause this evening.
Paul Scully
I heard cries from the Opposition Benches, but I think it is fair that I give way to Members who have tabled amendments.
We will obviously consider how we reduce the burden further, but we do not think it necessary at this stage to make such reporting a statutory requirement or, notwithstanding what the hon. Gentleman said, to frame it in the very broad terms set out in the new clause.
Amendment 17 deals within the mutual recognition of authorisations granted under the EU’s REACH—registration, evaluation, authorisation and restriction of chemicals—regulation. It would automatically allow substances authorised to be placed on the market in Northern Ireland under REACH to be placed on the market in Great Britain. The acceptance of mutual recognition that we have introduced for chemicals in schedule 1 is there to allow the relevant authorities to respond to local factors. Authorisations granted by the EU after the end of the transition period will not take into consideration local conditions such as lower river flows or exposure levels where those chemicals are used in Great Britain. I would like to emphasise that authorisations relate to the use of substances of very high concern, such as chemicals that can cause cancer. It is important that the Government and devolved Administrations can take local factors into account in order to prevent avoidable harm to human health or the environment from the significant risks posed by such chemicals.
Gavin Robinson
That response is in precisely the same terms as the one we received last week in Committee, but we are not touching on, or interested in, what the local considerations may be. The fact is that this Bill, even though we are talking about non-discrimination and the implications that there could be for business, envisages businesses having to adhere to and satisfy two separate regulatory regimes. We cannot square the circle between discrimination and non-discrimination in two separate and distinct legal regimes, whether there are local factors or not; we should have to adhere to only one. From a business perspective and an animal welfare perspective, it would be useful to have clarity. We can have one or the other, but definitely not both.
Paul Scully
I understand the hon. Gentleman’s concerns, and obviously we are moving towards that one regime, when we can, but we are also already committed to working on a common framework for chemicals and pesticides policy. That common framework is being co-created by the Government and the devolved Administrations, and will allow us to co-ordinate policy making on matters such as REACH authorisations. Through this framework, the UK Government and the devolved Administrations will be required to set out the strategic direction for the UK regulatory regime, ensuring that existing environmental, human health and workplace standards are maintained, or exceeded where possible.
Finally, I want to discuss the amendments that address the power to provide financial assistance. By creating a new power for the Government to provide financial assistance in the areas of infrastructure, economic development, culture and sports, and education and training activities, the Government will deliver on the commitments upon which they were elected: levelling up, delivering prosperity for all our citizens and strengthening the ties that bind our Union together.
Wera Hobhouse (Bath) (LD)
The Minister did not seem to mention amendment 16 when he went over that area. The amendment would remove clause 45, because legal experts fear that if the clause stands as it is, it will set up the Government against the courts. Will he explain why he thinks that is not the case?
Paul Scully
I think I have covered why those clauses should remain, although I did not specifically talk about the amendment.
I want to turn to amendments 18, 29 and 13, which together seek to remove the power to provide financial assistance. The Government are determined to deliver on those commitments, as I was saying. It is important that we strengthen the ties that bind our Union together, that we level up and that we deliver prosperity for all our citizens.
Paul Scully
I will not give way at the moment.
Part 6 of the Bill, which includes clauses 46 and 47, helps us to achieve that. This part of the Bill confers a power to ensure that the UK Government can invest UK taxpayers’ money nationwide on UK priorities. In terms of immediate relevance, it would allow the Government to support people and businesses across the country to recover from covid-19. The Government have a responsibility to people, businesses and communities across the whole of the UK.
Paul Scully
I want to make some progress.
This part of the Bill will allow the UK Government to complement and strengthen the support given to citizens in Scotland, Northern Ireland and Wales without taking away responsibilities from the devolved Administrations. New clause 6 will require by law all financial assistance given under part 6 to take into account the applicable climate, nature and environmental goals and targets. It will require that any financial assistance be accompanied by the Minister’s assessment of the project’s climate and nature emergency impact statement.
The Government are committed to ambitious climate targets, and next year we will lead the world in discussions at COP26. It is also crucial that the UK meets its domestic obligations under the Climate Change Act 2008 and its international obligations under the Paris agreement. The Climate Change Act requires Governments to set five-year carbon budgets towards meeting our target of net zero greenhouse gas emissions by 2050, covering the whole of the UK.
Paul Scully
Not for the moment.
Any net emissions increase from a particular policy or project is therefore managed within the Government’s overall strategy for meeting carbon budgets and the net zero target for 2050, as part of an economy-wide transition. Moreover, through the Environment Bill that was introduced into this House in January, the UK Government will have a power to set long-term, legally binding environmental targets across the breadth of the natural environment.
Caroline Lucas (Brighton, Pavilion) (Green)
That whole section of the Minister’s speech was a perfect example of why he should not be objecting to this amendment. It is a helpful amendment that would simply ensure that the financial contributions would actually support all those lovely climate and nature objectives he has just talked about. EU structural funds have a requirement to align with sustainability. His Government keep telling us how Brexit gives us the opportunity to go further than EU environmental policy, so in that case, why does he not accept the amendment? Why is he flunking his first test?
Paul Scully
I have had non-viability and flunking today—I am doing well! I will come to this in a moment. We are framing this in a number of pieces of legislation. I have talked about the Environment Bill, which was introduced in January. It will require the Government to set at least one target for each of four priority areas: air quality, biodiversity, water and waste reduction, and resource efficiency. It will also protect the environment from future damage by—
Paul Scully
The hon. Gentleman keeps wanting to intervene. At least he has had the decency to put his name down on the speakers list this time, so maybe he will have a chance to make his points when he speaks later.
The Environment Bill will protect the environment from future damage by embedding environmental principles at the heart of policy development across Government, with clear and pragmatic guidance on their implementation. The environmental principles will be used by Ministers and policy makers to ensure that policy and legal frameworks help minimise the ill effects of human activity on the environment. Given the Government’s strong commitment already to meeting their ambitious climate targets, and the frameworks established under the Climate Change Act and proposed under the Environment Bill, I do not think that it is necessary to put such a legislative requirement in this Bill.
Paul Scully
I know that a number of people want to speak. I hope that I have set out the rationale for the Government’s amendments to the Bill, and that hon. Members will support them. I trust that I have addressed in sufficient detail the Government’s objections to the amendments put forward by other hon. Members, and that they will therefore feel able to withdraw them. I look forward to engaging in the debate on this crucial Bill.
Lucy Powell (Manchester Central) (Lab/Co-op)
I rise to speak to the new clauses in my name and those of my hon. and right hon. Friends.
Here we are again—day five in the new House of Commons series, “The Internal Market Bill Debates”. While the coronavirus crisis rages on, here we are again, watching Ministers justify a Bill that breaches an international agreement signed only months ago and that threatens to break up our United Kingdom. It is a shame that we will not hear from the Prime Minister again today on Third Reading, as my right hon. Friend the Member for Doncaster North (Edward Miliband) was hoping for a sequel. He will have to make do with the Prime Minister’s understudy, the Business Secretary—what fun.
If Government Members have not been tuning in to the previous episodes, let me repeat our position on this Bill. We support a strong, successful internal market that underpins a vibrant, prosperous Union, with the UK Parliament as the ultimate arbiter of that market. We do not want a Brexit rerun; we want to get on to the next series—you know, the one where the Prime Minister delivers on his oven-ready deal and gets a good trade deal with the EU? That one. That is what the trailers promised us, anyway, and it is what the Prime Minister promised us, too.
Lucy Powell
That is what we are calling for: getting Brexit done. Get the oven-ready deal done. The hon. Gentleman says that is what this Bill is about. The Government have had months to prepare it, and here we are adding amendment to amendment at this late stage.
We have been clear that the Bill, as drafted, is a bad Bill that is not in the national interest. Today, we will once again work to try to improve it. It is a Bill that breaks the law and could break up the UK. We have heard some noble and notable interventions during the debates. We saw that many distinguished Government Members felt unable to support the Bill on Second Reading and on some of the key clauses in Committee. As usual, though, they were met with a tin ear from the Government.
Stephen Doughty
I wonder whether my hon. Friend is aware that this disquiet seems to stretch across Government. The Foreign, Commonwealth and Development Office this weekend launched a campaign called “This is democracy”. It features a picture of a judge standing in their robes, and it says:
“Independent judges free to uphold the law. This is democracy. #BeHeard”.
Does she think that perhaps the FCDO is trying to send a message to the rest of the Government and the Prime Minister?
Lucy Powell
My hon. Friend makes a good point. Like him, I had a wry laugh when I saw that advert.
Lucy Powell
I will just make some progress, if the hon. Gentleman does not mind.
Those noble contributions aside, we really have heard it all from those on the Government Benches during these debates. In trying to justify their latest cack-handed approach to public relations ahead of crunch trade talks with the EU, they have come up with a whole menu of reasons to support the Bill as drafted. Here is the highlights package. Do the Government break an international agreement—an agreement that the Prime Minister signed a few months ago? Do they break the law? Apparently, this Bill only breaks the law in a “limited and specific way”. Others on the Government’s own Benches, as we have already heard today, disagree. Some Members said that the Bill does not break the law in any way, but the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) said that it was okay because other people break the law, too. So which is it?
Lucy Powell
Perhaps the hon. Gentleman might be able to answer that question. Which is it?
Sir William Cash
I would just like the hon. Lady to answer a simple question. Is she aware that, when in power, the Labour party frequently overrode treaties and has, therefore, in her own terms, broken international law. Is she aware of the number of times that that has happened and how egregious it was? The same applies to many of the matter to which she has just referred.
Lucy Powell
The hon. Gentleman has failed to give me an example, so I am not sure what he is referring to. He has spent his whole political career campaigning for us to leave the EU treaties, and the withdrawal agreement, which he supported and which his Government signed, did exactly that, and he is still not happy with it, so I do not know which it is.
The former Prime Minister said in a powerful speech last week that this Bill will tarnish and do “untold damage” to our reputation and weaken the UK in the eyes of the world.
Rushanara Ali (Bethnal Green and Bow) (Lab)
Does my hon. Friend agree that this breaking of the law not only affects our relationships with the European Union, but jeopardises our chances of securing a deal with the United States?
Lucy Powell
My hon. Friend is absolutely right on that. We heard that from the presidential candidate and others after the Foreign Secretary’s visit there the other week.
As I was saying, the former Prime Minister made a very powerful speech. Others agree with her. One said:
“The rule of law is the most precious asset of any civilised society.”
Another said that the UK is renowned
“for promoting the rule of law, and for doing business with integrity.”
In another notable quote, we heard that
“the rules-based international order, which we uphold in global Britain, is an overwhelming benefit for the world as a whole.”
It was not Members on the Opposition Benches who said those words—oh, no—but the Chancellor of the Duchy of Lancaster, the Foreign Secretary and the Prime Minister himself. We have had some debate about when the withdrawal agreement would actually break the law. Is it now as we pass the Bill, or upon the powers being used? The truth is that, even with the additional vote conceded from my friend the hon. Member for Bromley and Chislehurst (Sir Robert Neill), it does not change the fundamentals that this Bill itself breaks the agreement and breaks international law.
Lucy Powell
I will give way one more time, and then I will make some progress.
Alex Sobel
My hon. Friend is making an excellent speech. We also heard another former leader of the Conservative party, Lord Howard, say that, even with the concessions, even with the amendments that the Minister is bringing forward, the Government are still asking Parliament to pass legislation that will break international law.
Lucy Powell
My hon. Friend is absolutely right. For the first time probably in my political career, I agree with Lord Howard on that point as well. Our new clause 1 would require Ministers to respect the rule of law while implementing their own withdrawal agreement. This is the crucial amendment today for those who want to stand by those values espoused by members of the Cabinet.
The Government have also told us that this is merely a tidying-up exercise or an insurance policy, as we have heard today—it is okay because there were “deep flaws” in the withdrawal agreement, and it was not any good anyway. It just beggars belief. In October last year, the Prime Minister tweeted that he had a “great” new Brexit deal. He told the House that this deal was a good arrangement for Northern Ireland, so which is it? No, okay, we do not have any answers to that. As the former Prime Minister also said in her speech last week:
“The United Kingdom Government signed the withdrawal agreement with the Northern Ireland protocol. This Parliament voted that withdrawal agreement into UK legislation. The Government are now changing the operation of that agreement. Given that, how can the Government…be trusted to abide by the legal obligations in the agreements it signs?”—[Official Report, 8 September 2020; Vol. 679, c. 499.]
Ministers had no answer for her then and I wonder whether they do today—no, no answer on that one.
Caroline Lucas
The hon. Member is making a powerful case in favour of new clause 1, which I absolutely support. Does she agree that Government amendment 13 makes the illegal power grab that she is describing even worse, because not only are Ministers seeking to take powers to legislate in breach of international law, but they are trying to close down every possible way in which Parliament could hold the Government to account?
Lucy Powell
I strongly agree; I will come to that point shortly.
The Government’s next justification was that it was necessary to rip up the withdrawal agreement because the European Union is ripping it up itself, but we have heard differing accounts of this: the Northern Ireland Secretary said throughout the summer:
“The Government is extremely confident that the EU is working in good faith”.
Which is it? We are still not clear about that.
Perhaps the most dangerous of all the contortions relates to Northern Ireland. The shifting justifications of the Government over the last three weeks have added to the sense that they are using Northern Ireland as a pawn in a wider negotiating strategy. Remember, this is a deal that the Prime Minister told the House was
“in perfect conformity with the Good Friday agreement”—[Official Report, 19 October 2019; Vol. 666, c. 583.]
Callous or careless? Untrustworthy or incompetent? The Government are playing a dangerous game, and it is the people and businesses of Northern Ireland who risk paying the price.
Jim Shannon
I thank the shadow Minister for the constructive way in which she is putting forward her point of view. Does she agree that new clause 7, which was tabled by my colleagues, among others, and has some supporters in the House, is essential to ensure the viability of businesses in my constituency and across the whole of Northern Ireland whose biggest trading partner is the UK? Does she further agree that Northern Ireland cannot be left at the whim of Europe and that we must have security when these measures go before the House?
Lucy Powell
Yes, I do agree. I will mention that point in a moment.
For the people of Northern Ireland, this is not the latest episode in a Brexit drama; it is a profoundly worrying moment. Little wonder that the Lord Chief Justice of Northern Ireland himself, Sir Declan Morgan—a widely respected voice—said that the Government’s actions “undermine trust”. Let us remember that this issue could scarcely be more sensitive. In order to ensure the continuity of the Good Friday agreement in all its dimensions—recognising the unique circumstances of Northern Ireland sharing a land border with the Republic, and therefore the special responsibility and role that the UK and the Republic of Ireland have as co-guarantors of the Good Friday agreement—any change in the constitutional status of Northern Ireland rests on the consent of the people of Northern Ireland in their plurality. That is why it is essential that the protocol upholds Northern Ireland’s place in the internal market and that this delicate compromise builds the confidence of all communities. That is the principle behind new clause 7, which we have co-sponsored with the DUP and Alliance.
But instead of proceeding with due caution and going the extra mile to seek consensus, the Government resort to legislative vandalism. They also stoop pretty low—into “straight bananas” land—with scare stories about what the Bill is needed to prevent, some of which we have heard again today. The Prime Minister warned that the Bill was necessary because the EU wants to enforce an embargo on the transport of goods from Great Britain to Northern Ireland and are
“holding out the possibility of blockading food and agricultural transports within our own country.”—[Official Report, 14 September 2020; Vol. 680, c. 43.]
Yet nowhere in the Bill do the Government safeguard against this. Despite the many amendments at every stage, there is nothing at all in the Bill regarding the movement of goods from GB to NI.
Lucy Powell
The hon. Gentleman is failing to answer my point, which is that there is nothing in the Bill to protect against the very thing that the Prime Minister told us we needed an insurance policy to guard against.
When the Prime Minister was challenged—or, should I say, humiliated—by my right hon. Friend the Member for Doncaster North on this point, the Prime Minister shrank into his seat. They then said that they would bring forward changes in the Finance Bill to protect against these imaginary blockades by EU warships in the Irish sea, but there is no Finance Bill now, is there? So what is their plan for dealing with this? Maybe the Minister could tell us.
In their final flourish to push the Bill through, the Government say it gives back powers to the nations, but the devolved Administrations strongly disagree. The Labour Welsh Counsel General has called the Bill
“an attack on democracy and an affront to the people of Wales, Scotland and Northern Ireland.”
A Conservative Senedd Member, the former shadow Counsel General, resigned because he shared those concerns. As we have argued, if the Westminster Government decided to lower standards, there could be no voice for the devolved nations, because the Government have decided not to legislate for common frameworks, but are legislating for their own veto.
The Government must respect the devolution settlement and work collaboratively in good faith with the devolved Administrations to build a strong and thriving internal market. Our new clause 2 would facilitate just that. Not doing so would threaten our precious Union by putting rocket boosters under the campaign for independence in Scotland and elsewhere.
The Government have also said that this Bill will ensure more money for the nations and regions, as we heard again today, yet we still have no detail on how the shared prosperity fund will operate. They say they want to level up and invest in the regions and nations. “Trust us,” they say on this point, “because we have the right motives.” Yet last week, the mask slipped, didn’t it, with the breath-taking admission from the Chancellor of the Duchy of Lancaster that his Government were going to funnel this cash into the new Conservative seats—pork barrel politics at its worst.
Our new clause 3 would ensure that Ministers had a duty to report to Parliament and ensure oversight of the progress of this and other measures in the Bill.
Karin Smyth (Bristol South) (Lab)
My hon. Friend makes an excellent point, particularly about the English regions. I am from the south-west as she well knows, and the south-west has consistently returned Conservative MPs and received a great deal of money from Europe, and is frankly getting little in return. Could not the Government elucidate on how they are going to meet their promises across the regions in England and across the various nations in the United Kingdom, and on how they will make sure that places such as Cornwall do not lose out further?
Lucy Powell
My hon. Friend makes a good point, but I am afraid that, as we heard last week, her constituency is unlikely to get more money because it is not one of the new Conservative seats that we heard were going to be prioritised for this reallocation of money.
The truth is that the Government have been making it up as they go along. The UK’s reputation and territorial integrity are collateral damage to a No. 10 fixated on public relations and posturing more than on making sure that its policy works and is in the national interest. We have had an unprecedented number of amendments from Ministers to their own Bill during its passage. We have further new clauses today, which, as we have heard, further undermine the rule of law. They are making it up as they go along—change after change underlying the haphazard incompetence of this Government.
We want a successful internal market. This Bill does not deliver that. We want a strong Union built on mutual respect. This Bill could fatally undermine it. We want the UK to play a global role for good. This Bill actively damages that. The Prime Minister says that measures in the Bill are just an “insurance policy”, but you cannot get insurance for a house you have already torched.
I hope Conservative Members who still have reservations about the Bill will support our new clauses and join us in the Lobby.
Sir Robert Neill
One of the most salutary but, in retrospect, useful put-downs I ever had when I was a young barrister came when I perhaps overindulged in hyperbole in advancing arguments to the Court of Appeal and Lord Justice Cumming-Bruce said to me, “There’s no jury here, Mr Neill, you can cut out the hyperbole and stick to the arguments.” He was right and perhaps it is not a bad thing to try to do in the Committee on the Bill, as there has been a deal of hyperbole surrounding its passage, coming from those in all parts of the House. We might be better off cutting it out a little and getting back to the nuts and bolts of what we are discussing, because a lot of the Bill is perfectly reasonable and necessary. It is not a necessity I particularly like, because I wish we were not leaving some of the arrangements we currently share, but it has to happen as we exit the transition period. The real difficulty comes from the issues in part 5, which we have discussed on a number of occasions, so let me just return to them.
I listened with care to the Minister, and I do not doubt his sincerity and good intentions in this regard. He must have thought it a pretty rum do when, as a trade Minister, he found himself in the middle of a lawyers’ argument, but that has never stopped the lawyers making that case. I recognise that the Government have endeavoured to shift to try to make clear some of their intentions in relation to the difficult and sensitive matters that part 5 threw up. I will not pretend that we should have started from here; it might have been better to have contemplated the idea of some emergency legislation should we be confronted by what, I am glad to say, the Minister says is an unlikely eventuality, as this is what we all want to avoid if at all possible. I can see arguments the other way as well, so I welcome the constructive approach the Government have adopted towards myself and a number of my hon. Friends who had significant reservations with the Bill, as tabled, to try to make it clear that it is not the Government’s intention to act in a way that would undermine our reputation as a nation and jurisdiction that supports and upholds our obligations in international as well as domestic law.
Sir William Cash
I am glad my hon. Friend is referring to a constructive role. I gather from what he said the other day that he was talking very much in terms of last resort, and I want to be constructive, too. As he knows, I have already made the point that the Labour party has been passing Acts of Parliament that clearly and unequivocally override international law and that this has also happened in relation to other legislation in the UK, as I pointed out to my right hon. Friend the Member for Maidenhead (Mrs May). So will my hon. Friend bear that in mind when he is considering the question of last resort, the threshold he referred to the other day and the fact that this is more common and happens more frequently than he may appreciate and that sovereignty, above all else, is the keystone upon which the whole of Brexit depends?
Sir Robert Neill
I am not sure whether or not that is an argument for Brexit; on that basis, the Don Pacifico affair was a great statement of national sovereignty, but I do not think it was a great triumph of intellect, integrity or national interest. Leaving that to one side, I accept that there will be a number of occasions when Governments may have departed from their international obligations, but that does not make any of them desirable and it does not mean that we should not seek to limit the circumstances in which that might occur to the barest necessities. So I think we have some common ground there, or at least I hope that we have. That is why I welcome the statements the Government have made to flesh out their intentions on the way in which part 5 would be used.
I say to Opposition Members that I accept that there are certain circumstances in which we might find ourselves in difficulty because of the attitude of our counterparties in the EU. I hope that that will not come to pass and that we are seeing just a matter of the rhetoric of negotiation. There is, however, a respectable legal argument, which has not been ventilated before, although it is held by a number of senior lawyers I have spoken to, to say that, as we all know, the withdrawal agreement is binding on the UK as a matter of international law—that must be right—but that that is based upon the true construction of the withdrawal agreement.
The withdrawal agreement is clearly subject to the provisions that stipulate that Northern Ireland is part of the United Kingdom. There is an obligation on the parties in good faith to negotiate a free trade arrangement between the UK and the EU such as would render the need for checks on goods passing between the UK and Northern Ireland largely, if not completely, unnecessary. Provided that is done, I do not think any of us get into any difficulties. I accept that in negotiations there has been some language—I hope it is no more than the language of negotiation at this stage, a posture—that might suggest that the EU could argue for a substantial array of checks that might go beyond that which is compatible with the true construction of the agreement in so far as it must respect the role of Northern Ireland within the United Kingdom.
Sir Robert Neill
Can I just finish my point, and I will happily give way to the hon. and learned Lady?
Were it to get to the stage that the level of checks being insisted on were to threaten the integrity of the UK, it would, arguably—perfectly respectably arguably—be threatening the integrity of the agreement itself upon its true construction. That, I think, would be an arguable point for saying in international law that the UK would have a case for saying it was entitled to take measures to protect the underlying purpose of the agreement.
Joanna Cherry
I am very grateful to the hon. Gentleman for giving way. I think that he is describing a situation in which the European Union might be in bad faith, but last week when Professor Catherine Barnard, the very well-respected professor of European law at Cambridge University, gave evidence to the Committee on the Future Relationship with the European Union, she said that there is no evidence whatever at present that the EU is negotiating in bad faith but that there is a strong argument that the existence of the Bill and clause 45 breaches the United Kingdom’s duty of good faith in article 5 of the withdrawal agreement. As Chair of the Justice Committee, the hon. Gentleman will be aware that that is a widely held view by lawyers. Does he recognise, as she said, that there is a strong argument that, merely by bringing the Bill to the Floor of the House, the United Kingdom is already in breach of its article 5 duty of good faith under the withdrawal agreement?
Sir Robert Neill
With respect to my hon. Friend, I do not regard it as total tosh. I happen not to agree with it in totality, but I do not think that we should ever dismiss serious legal argument from serious practitioners on either side of the question as being out of consideration. It is a matter that we ought to weigh carefully. I do think that there is an answer. Part of that answer is the one I have just been formulating, which suggests to me that there can be certain circumstances in which the breach of the true meaning of the agreement is such that the UK itself will be entitled to use its international law right.
Sir William Cash
I just wonder whether my hon. Friend would consider that bringing in a Bill was a matter of privilege for the House.
Sir Robert Neill
I am sure that it is a matter of privilege for the House, but I just come back to the point: I do not think that that engages with the issue we are concerned with here. Of course, it is perfectly within the rights of the House to bring forward any legislation it likes. I know my hon. Friend played a role in having section 38 inserted into the European Union (Withdrawal Agreement) Act 2020, but, with respect, that simply restates that which we already knew and probably picked up in the first week of the law course; that, essentially, Parliament is sovereign and of course it can legislate in the way that it wishes. It can legislate in a way that is incompatible with international law. That does not make it a desirable course to go down. I think that is the point that needs to be said. Of course, it may be possible and I do not think privilege is engaged. The point I am seeking to make is that the UK should be very wary about doing anything that breaches its international obligations. I do not think it has yet and there are reasons why we may be able to avoid that, but that is why I think we need to keep the debate a little more calm in terms of what the rights are.
Joanna Cherry
Is not the problem that some Government Back Benchers are falling into the distinction between domestic law and international law? It is true as a matter of domestic law that this House can pass any Bill it likes, but as a matter of international law, as stated by the Supreme Court in paragraph 55 of its judgment in Miller 1, it does not impinge on international law. If we sign treaties, we are bound in the eyes of international law. There is a distinction here between domestic law, which means that this House can do what it wants—God forbid—and international law, which means that sometimes when this House does what it wants, it could be in breach of international law.
Sir Robert Neill
I think that is clearly established law. It is perfectly possible to act within one’s domestic law and still breach one’s international obligations; however, I do not think that that means that the Bill itself, at this stage, is a breach of our international obligations, particularly now that it has been reinforced by comments made by Ministers on the Floor of the House, which I am sure the Government therefore regard as binding as a matter of good faith in itself, that the provisions would be used only in circumstances where the EU had behaved in such a way that it had breached its duty of good faith under the agreement.
The Government have also importantly committed not to use the provisions of part 5 to undermine the pre-existing provisions in relation to both article 16— the safeguarding arrangements of the protocol—and articles 167 onwards, on the arbitral arrangements. Given those circumstances, I reach a different conclusion from that of the hon. and learned Lady and the professor. I do not dismiss the arguments, but I make the case for why I think, as a matter of law and fact, it is possible to distinguish them.
John Redwood
Does my hon. Friend agree that we have these complications with this agreement because it was only half an agreement? The original idea was that nothing was agreed until everything was agreed, which would include the future relationship. A lot of that had to be shunted into the political declaration. The danger of what was signed up to is that part of the agreement on so-called withdrawal matters could pre-empt the future agreement in a disobliging way to the United Kingdom. That is why we are in this difficulty and why I think that there is nothing illegal at all in the UK seeking to sort this out in the negotiations and not be at a disadvantage in them. Does he agree with that?
Sir Robert Neill
I think that we are in agreement to the extent that I do not believe that the UK has yet trespassed over its international legal obligations, and I agree that we want to get this sorted out in the negotiations. I do not think that I can go further than that at this stage, but I understand that we all want this to be dealt with in the negotiations if possible. I voted for the withdrawal agreement, and I voted for the previous Prime Minister’s withdrawal agreement. It might have saved us a lot of trouble if Members on both sides had voted for that withdrawal agreement in retrospect, but we are making the best of the situation that we have inherited, if I might respectfully say so.
Stephen Doughty
The hon. Member is being generous in giving way. Does he accept that damage has already been done to the UK’s international reputation? He rightly wants to deal in facts and the reality of what is going on. I know from conversations that I have had with, for example, officials in UN institutions in Geneva, that the UK has been publicly questioned by other countries, in elections to bodies and negotiations on other matters beyond this matter, because of the very statements that the Government have made and the very clauses in the Bill. That, potentially, seriously undermines our abilities on the international stage on a series of issues: security, trade, climate change and well beyond.
Sir Robert Neill
It is certainly fair to say that it would have been better to have had the caveats that the Government have now put into the Bill to begin with, and I am grateful to Ministers for having worked in the way in which they have to achieve that. It would be absurd to pretend that there has not been real concern expressed by people whom we respect and ought to be able to deal with as allies and counterparties going forward. There is a way to ensure that that concern is alleviated and lasting harm is not done, and I am sure that the Government are committed to trying to do that.
Superficially, new clause 1 is attractive, but I am inclined to give the Government the benefit of the doubt that it is not necessary for the reasons that they have set out. I was going to press the Minister, but he has anticipated much of what I have to say. I am sure that he will confirm again, in winding up, that we are committed to ensuring that part 5 is not used to undermine the legally binding commitments and until such time as it is necessary to act to protect a significant national interest of the UK in relation to the integrity of the Union, as a result of bad faith by the EU counterparty —which, please God, I hope never arises—and that we will do so without seeking to oust the legal obligations that we entered into in relation to the safeguarding provisions and the arbitral arrangements under article 167.
Given that, we can make a good case for saying that new clause 1 is not necessary and that the Government’s own intention will deal with that, but I urge the Government, as a friend, to ensure that they reinforce those points very strongly as we go forward, because to persuade the Upper House will be an important task. Continuing evidence of good faith and a willingness perhaps to look at some of the wording would be helpful to the Government.
I have sympathy for new clause 8. My right hon. Friend the Member for Gainsborough (Sir Edward Leigh) and I were reminiscing that we were the two youngest members of the Conservative group of the Greater London Council. We were actually abolished by Mrs Thatcher, by Act of Parliament, but that does not seem to have entirely destroyed our careers or done us lasting harm. I very much take on board my right hon. Friend’s points about the value of the Vienna convention. He and I served on the Council of Europe together, and that convention—again, the UK contributed significantly to it over the years—may benefit us a good deal going forward. Even if it is not necessary to take the wording of new clause 8 into the Bill, the sentiment behind it is useful, and I hope the Government will bear in mind the arguments my right hon. Friend will advance later in the debate, because they may well be useful elsewhere.
Several hon. Members rose—
Madam Deputy Speaker (Dame Rosie Winterton)
Order. Colleagues will see that many Members want to speak in the debate. We simply will not be able to get through everyone unless speeches are brief. My advice would be for Members to limit their remarks to five or six minutes, but if they do not, I will have to impose a time limit. I would rather not do that, but I am keen that we get as many people in as possible. I call Drew Hendry.
Drew Hendry
Thank you, Madam Deputy Speaker. Although I will try to be as quick as I can, this Bill fundamentally affects Scotland, and therefore I have a lot to say about it. It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who chairs the Justice Committee. It is always a pleasure to listen to him, to the hon. Member for Manchester Central (Lucy Powell) and to the Minister, who is an affable and normally very helpful chap. I have great sympathy for him as he tries bravely but barely conceals his embarrassment at having to drag this shabby Bill through the House.
Before I get to my party’s amendments and our reasoned amendment, let me report on the Bill so far. This Bill sets out to break international law. It sets out to break devolution. It sets in train the biggest power-grab since the Scottish Parliament was reconvened and a race to the bottom on health protections and environmental standards. The flood of amendments simply proves that the Bill lacks credibility. It is reckless, and it is absolutely typical of this Tory Government and their entire process.
Drew Hendry
I will make some progress.
In setting out to break international law, the Government are undermining trust, respect and shared values in a very specific but very unlimited way. The Bill sneers at the words “trust”, “honour” and “obligation”. Because of this Bill, any deal, understanding, commitment, promise or even legally binding treaty is now utterly dispensable—think of that! The questions now must be: what is the next inconvenient law for this Government? What happens to society as the Government embrace lawbreaking? How will international players treat their agreements with the UK? Make no mistake: this is going rogue.
Both the former Prime Minister—the right hon. Member for Maidenhead (Mrs May) still sits in the House and is likely to vote against the Bill—and the former Northern Ireland Secretary have spoken out against this action. The Law Society of Scotland has confirmed that clauses 40 to 45
“would empower Ministers to make regulations that are contrary to the Withdrawal Agreement… and preclude challenge in the UK courts through clause 45”,
and that the Bill, if enacted,
“would breach Article 5 of the Withdrawal Agreement.”
Part 5 of the Bill has triggered international condemnation. As we have heard, presidential candidate Joe Biden warned that
“Any trade deal between the U.S. and U.K. must be contingent upon respect for the Agreement”—
the Good Friday agreement—
“and preventing the return of a hard border.”
There are already meetings in Washington amid American interest in Brexit’s implications for Northern Ireland. The Government’s amendments to part 5 of the Bill create more problems and unanswered questions. As Professor Mark Elliott, in consultation with Graeme Cowie of the House of Commons Library, points out:
“clause 45(1) provides that regulations made under clauses 42 and 43 ‘have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent’. How is this to be reconciled with the fact that clause 45 as amended now contemplates the possibility of judicial review?”
He goes on to note that Government amendments 12 to 15 would produce an “extremely odd outcome”, and that amendment 13 appears to attempt to “cancel out” the effect of amendment 14. He concludes:
“It leaves us with a Bill that clearly authorises Ministers to break international law”.
Joanna Cherry
Does my hon. Friend share my concern that Government amendments 12 and 13 may render incorrect the statement by the Secretary of State that the Bill is compatible with convention rights under section 19(1)(a) of the Human Rights Act 1998? Is he aware of any plans the Government have to revisit that statement? I asked the Minister about that, but he did not seem to understand the point I was making.
Drew Hendry
My hon. and learned Friend makes a telling point. No, of course the Government have not brought anything forward on that, because this is a Cummings-directed Prime Minister and a complicit Tory Government who have sought to justify a law-breaking, democracy-reducing, shabbily produced, lazy and dangerous Bill with a breathtaking factionalism bordering on pseudologica fantastica.
Mr Vara
As we go through the process of leaving the European Union, this Parliament will take no powers away from the Scottish Parliament. In some 70 policy areas currently managed by the EU, powers will be handed over to the Scottish Parliament. Can the hon. Gentleman not bring himself just once to be a statesman and appreciate that this will actually be for the benefit of the Scottish Parliament? Just once, be a statesman!
Drew Hendry
If this were not so deadly serious, it would be a comedy, such is the hypocrisy from Tory Members. There is good reason why people in Scotland are now looking at independence as the settled view and the majority view in Scotland. It is because of the reckless disregard that the hon. Member has for the facts. He has not even looked at the fact that the Secretary of State for Business, Energy and Industrial Strategy will have, contained in the Bill, the power to overrule anything that the Scottish Parliament decides. I will come back to that point later.
Put simply, this is a bad Bill. It does bad things and no matter how much the Government scramble to justify it, they cannot get away from that point. Let us face it, the Tories have always hated devolution, but even by their standards, the Bill reaches a new level of contempt for the Scottish Parliament and for those of the other devolved nations. Clause 48 is a blatant power-grab, with the UK Government reserving the devolved policy of state aid. In clause 46, powers are given to UK Government Ministers to design and impose replacements for EU spending in devolved areas such as infrastructure, economic development, culture and sport, education and training, and much more, centralising power at Westminster—exactly what the people of Scotland rejected when they voted in 1997 to re-establish the Scottish Parliament. We see in poll after poll that people in Scotland reject it now. That has led, as I said earlier, to the fact that independence is now the majority view in Scotland.
This power-grab not just the view of the SNP, and it is not just the view of those in Scotland. The Welsh First Minister Mark Drakeford highlighted the issue, when he said that there are
“some voices in the Conservative government who having found out that devolution exists after 20 years, find they don’t much like it, and think it would be better if we returned 20 years and all the decisions were made in Whitehall and would rather not be spending their time talking to us very much.”
Does not that just capture it correctly?
Gary Sambrook (Birmingham, Northfield) (Con)
Will the hon. Gentleman give way?
Drew Hendry
I want to make some progress.
Organisations across Scotland are also deeply concerned about the proposals. NFU Scotland has confirmed the attack on devolution. It said that
“it is the clear view of NFU Scotland, and the other faming unions of the UK, that the proposals pose a significant threat to the development of Common Frameworks and to devolution.”
The General Teaching Council for Scotland said that the proposals
“would undermine the four UK nations’ devolved education functions.”
The STUC has warned:
“Johnson is uniting political parties, trade unions and wider civil society in Scotland against a power grab which would see UK Government interference in previously devolved matters and a rolling back of the constitutional settlement we voted for in 1997”.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
I have resisted the temptation to ask the hon. Member to give way up to this point, despite the fact that he may be inadvertently misleading the House by pretending that, in some way, this Government are intent on grabbing powers back from Holyrood and taking them to Westminster when nothing could be further from the truth. I will bring him up, however, on his using the National Farmers Union of Scotland and its arguments as a reason not to back this Bill. The NFUS said:
“NFU Scotland’s fundamental priority, in the clear interest of Scottish agriculture…is to ensure the UK Internal Market effectively operates as it does now.”
That is what the Bill delivers. Nothing of what he has said up to this point is any way relevant to the Bill today.
Drew Hendry
Of course, the hon. Member is entirely wrong with his selective quoting. This absolutely underlines why the Tories have not won an election in Scotland since 1959. You have to be about 90 years old to remember voting in an election that the Tories won. Why? Because they do not listen to the people of Scotland and they do not have their interests at heart. Using this Bill, they are able to lower standards by holding a veto over Scottish Parliament decisions. The mutual recognition mechanism in the Bill starts a race to the bottom on standards, with the UK Government imposing their will.
As we heard, clauses 2 to 9 contain sweeping powers on animal welfare, food safety, environmental protections —every single aspect of Scottish life: the water we drink, the food on our table, the buildings we construct, and even our NHS. We know that chlorinated chicken is on the table and that it will be bloating our tables as a result—[Interruption.] They groan, but Donald Trump said that
“everything is on the table”—
and that means products from the States, including that and hormone-injected beef. What else will be presented to us while the UK Government desperately scratch around for a trade deal, leaving no stone unturned regardless of who or what is underneath it?
The Bill hamstrings the Scottish Parliament from protecting the highest standards of food safety, from protecting Scottish farmers’ livelihoods, and from protecting the highest standards in our environment and our building control. It hampers the Scottish Government’s ability to keep public companies in public hands, including preventing attacks on the NHS. Worse still, as I said earlier, it puts the power to overrule Scotland’s Parliament in the hands of one Tory Minister. The Secretary of State for Business, Energy and Industrial Strategy has the
“power to alter these exclusions”.
Professor Michael Dougan has warned of the impact of the mutual recognition principle and the effect that it will have on Scottish produce:
“The impact in practice of this Bill in many of the proposed exercises of devolved competence in relation to trading goods or services is to effectively penalise domestic producers or traders and not be able to enforce the same standards against imported goods or service providers.”
As I mentioned earlier on the teaching council, Scotland requires secondary teachers to have a relevant degree in the subject that they teach. However, part 2 of the Bill, on professional qualifications, forces Scotland to accept teachers with lower qualifications. The chief executive of the General Teaching Council for Scotland, Ken Muir, said that
“our key concern about the Bill is the extent to which we ourselves, and parents, and users of the education system would feel that”—
it—
“would be watering down the teaching profession in Scotland”.
The Minister mentioned that the Government have tabled a new technical amendment, amendment 32, with the purpose of
“further clarifying the freedoms of all parts of the UK to regulate pricing and manner of sales policies as long as they are non-discriminatory.”
Of course, that is the key line—
“as long as they are non-discriminatory”—
and they say that “we have now acted to provide increased legal certainty around this point”. The Minister conceded earlier that that was in relation to alcohol minimum unit pricing. I remind hon. Members that Ministers had told us that that was not affected by the Bill and did not come into account in it, and now they are admitting that it does and they have put this absolute sham of an amendment in place to cover that. All it does is leave this open to be overridden by the non-competitive clause.
We heard about financial assistance. In case anyone is seduced by the spending promises, I have been calling for clarity on the so-called shared prosperity fund since 2017 along with my SNP colleagues. As the Financial Times reported, an individual close to the discussion said:
“The current plan is an odd combination of reserving state aid [for control from London] but then agreeing to a free-for-all. They just want to be able to bung money at things and do not want UK internal market legislation cutting across that.”
That is odd, or is it just convenient?
The Tories’ Communities Secretary has spent millions of pounds from the towns fund on 61 towns, 60 of which happen to be Tory marginals, including his own seat. In the highlands, we understand that directly, because in 1992, Prime Minister John Major took money from the highlands to shore up flagging support in the south-east of England. We have experienced the altruism of Tory Governments.
The flood of amendments to fundamental aspects of the Bill, including from UK Ministers, shows that it is completely bad and shoddy. Clause 5 transfers the CMA functions to the OIM. Drafting errors abound throughout. Amendment 15 actually attempts to further undermine the rule of law. It says:
“No court or tribunal may entertain any proceedings for questioning the validity or lawfulness of…section 42(1) or 43(1).”
That is dangerous and toxic stuff. That follows an absolutely useless and terrible consultation that failed to include and engage the devolved Governments on aspects of the Bill that see the Government strip powers from Edinburgh, Belfast and Cardiff. The legislation was shared with the devolved Governments only hours before publication.
The recklessness of the Tory Government only creates more uncertainty. When their reasonable worst-case scenario is two-day delays to freight on the channel and 7,000 lorries in Kent, with an estimated 275 million new customs declarations each year post Brexit that will cost about £15 billion, they can add the words “absurdly” and “tragically” to reckless.
Poll after poll now shows that people in Scotland understand that the only way to protect their democratically elected Parliament, to protect standards and to keep their waters and NHS safe is through Scotland becoming a normal independent nation and taking its place in the international community. This Bill insults Scotland. We will not vote for this Bill.
Madam Deputy Speaker (Dame Rosie Winterton)
Order. Just another reminder: I am conscious that many of the initial contributors are speaking to amendments, so it is important that we are flexible, but I say again that if we want to get in the many Members who want to contribute to the debate, it is important that at this stage, Members are as brief as they can be while getting their important points in.
Sir William Cash
There has been a heated and, in many respects, misconceived debate about the question of our compliance with international law. I had something of an exchange with my right hon. Friend the Member for Maidenhead (Mrs May) on Second Reading. I made the point that UK law has, in the past, breached international treaties. That stands, because it is important for us to recognise that that has been the case.
Indeed, it is often forgotten that the EU guidelines of 29 April 2017, which my right hon. Friend’s Government allowed to happen, unilaterally imposed on us requirements contravening article 50 of the Lisbon treaty and insisted that we should obey the basis of the EU’s idea of the conduct of negotiations. As Clausewitz said, diplomacy is war by other means; I believe the gloves are about to have to come off.
The withdrawal agreement and the political declaration recognise the autonomy of the EU and the UK, but whereas the UK is a sovereign state, the EU is merely an international organisation. UK sovereignty is expressly recognised by the EU as of its own kind—sui generis. The EU manifestly contradicted that by insisting on European Court jurisdiction, thus subverting the constitutional status of Northern Ireland itself. It was even reported that that was the price we would have to pay. The EU continually denied our sovereignty during the negotiations with a wanton disregard of our unique, unwritten constitution and sovereignty, which it is bound to understand because we have been in a relationship within the same legal order for the last 40 years.
Sir William Cash
I do not have time, I am afraid.
At the same time, there have been a number of UK precedents, which I have explained already. I do not have the time to go into them; I will attempt, as other Members will have to, not to go into huge detail, but I will give a few examples. In 1945, a Finance Act passed by the Labour party overrode international law. The same applied to the Indian Independence Act 1947 and the Burma Independence Act 1947. In fact, in the case of India, more than 400 treaties were broken.
Sir William Cash
I assure the hon. and learned Lady that I am not giving way. I am very happy to do so normally, but not today.
Furthermore, a Conservative Government, in the Income and Corporation Taxes Act 1988, provided clauses that were notwithstanding anything contrary to the arrangements of the Act. It goes on. It is a substantial list.
I will go further. Those who are interested can look at my previous contributions to other debates, where I extensively describe the myriad occasions when the EU itself has broken international law and, furthermore, when EU member states have egregiously broken international law and admitted it in their own Parliaments. For example, Helmut Schmidt, in the Bundestag, could not have been clearer, going through every single treaty that Germany deliberately broke in defence of its own vital national interest, because that is itself a reason why national law can have a degree of predominance over international law.
National and constitutional law, in certain circumstances —where it affects sovereignty, as in this case in the United Kingdom—can prevail against international law. I am extremely grateful to my good friend, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who I know recognises this. It has taken a bit of time for us all to come to terms with that, because it is a bit complex, but the reality is that it is well established in international law itself. The German federal court confirmed this as recently as 2015. I quoted the court in a previous debate, so it is already on the record that it is well within the framework of international law for a country—a democratic country, I hasten to add—to actually override international law in its own vital national interest, and most specifically, as in this case, on questions of sovereignty.
I will therefore just touch on my exchange with the hon. and learned Member for Edinburgh South West (Joanna Cherry). With regard to Miller 1, the Supreme Court unanimously confirmed that, under the dualist approach, treaty obligations only become binding in the UK system to the extent that they are carried out in domestic legislation, and that whether to enact or repeal legislation, and the content of that legislation, is for Parliament alone.
This principle was approved unanimously by the Supreme Court in Miller 1.
Sir William Cash
My hon. Friend is nodding his head because he knows this is the case.
Gavin Robinson
It is a pleasure to follow the hon. Member for Stone (Sir William Cash). He is right to chide the European Union about seeking to interfere with the integrity of this sovereign nation. However, the end of that sentence should encapsulate the disappointment of some of us at the fact that our own Government would accept a framework that seeks to do just that.
That brings me to our amendments, which are in my name and those of my right hon. and hon. colleagues—both new clause 7 and amendment 17. Last week, Madam Deputy Speaker—it is a pleasure to address you in that way—a very concerned constituent of mine, Mike, chided me engagingly, as he always does, for referring to you in personal terms. I had to outline that that was because we were, for day after day, in Committee, so it is good that we are on Report. I am mindful of the time constraints, so I do not intend to rehearse the many sincere arguments that we advanced in Committee that lie underneath our amendments, but I will touch on them in relation to new clause 7 and amendment 17.
I listened carefully to the Minister, who is now back in his place, when he spoke about amendment 17 in his opening remarks, which, as I mentioned in my intervention, replicate quite closely those of the Minister of State, Northern Ireland Office, the hon. Member for Worcester (Mr Walker):
“I understand Members’ concerns and support mutual recognition and the non-discrimination principle, but the exception to mutual recognition that we have introduced for chemicals is there to allow the relevant authorities to respond to local factors. Authorisations granted by the EU after the end of the transition period will not take local conditions into consideration. I emphasise that the authorisations relate to the use of substances of very high concern. It is important that the Government and devolved Administrations can take local factors into account when they decide how to protect human health or the environment from the significant risks posed by such chemicals.”—[Official Report, 21 September 2020; Vol. 680, c. 658.]
That is a fair enough analysis of why we should be within the UK regime on REACH regulations, but the thrust of this Bill is to ensure that our businesses are not unfairly disadvantaged in the conduct of their activity. I have highlighted in Committee and I highlight again today the fact that it is unnecessary to ask businesses to adhere to two separate and distinct regimes on chemicals and dangerous substances—an EU regime and a UK or GB regime—in the conduct of their business.
I heard the Minister say, in response to my intervention, that the Government were working on a common framework, but in pushing this amendment, we are asking them to accept that this will have real, tangible implications for a small subset of our businesses. It demonstrates acutely the burdens that will be added to our businesses when we have one foot in the GB market and one foot in the European Union single market, with all the rules that come with that, and when we are expected to adhere to the rules of both jurisdictions. That will make our businesses less competitive.
Jim Shannon
To illustrate the “best of both worlds” that my hon. Friend has referred to, does he remember that as recently as last year two Northern Ireland skippers were arrested for fishing in waters within six miles of the Republic of Ireland, after an EU judgment? We never seem to get a good deal in Northern Ireland. Does he agree that that illustrates the importance of our new clause 7, which would guarantee a review of business and trade?
Gavin Robinson
My hon. Friend touches on new clause 7, which I will turn to in a moment. The egregious circumstances to which he refers, in which the skippers were arrested last year, were completely outrageous. However, Judge Coughlan in the south recognised that they were men of deep integrity, that they did not deserve convictions and that Irish fishermen were doing exactly the same in Northern Ireland waters. Had it not been for his clarity of thought, things could have been much worse.
Sammy Wilson
My hon. Friend makes the good point that businesses in Northern Ireland might have to adhere to two sets of regulations. Does he accept that there will be occasions when EU regulations could be totally contrary to the regulations developed for the rest of the UK, and that at that stage, Northern Ireland businesses would have to choose? In fact, they would not have to choose, because they would be obliged to follow the EU regulations and would be unable to comply with UK regulations affecting trade.
Gavin Robinson
My right hon. Friend is absolutely right. That is a conundrum that we keep having to address, and the reason we have to keep raising it in these debates is that it is not filtering through. Despite the “lines to take” that have been distributed to colleagues and friends across the Chamber, those conundrums have yet to be answered, and businesses in Northern Ireland still require clarity, whether on selling into the GB market or buying from the GB market. The Bill attempts to address part of that journey, but only part of it, and it does not give us the clarity that we need.
On the REACH regulations and amendment 17, I want to refer to an email I got yesterday from a constituent called Audrey, who outlines something that had not been part of my thought process. She says, “All new and existing substances made and imported into the EU under the REACH regulations at levels of more than one tonne per year must be registered with the European Chemicals Agency. Registration also involves tests on live animals. Cruelty Free International estimates that already 2.6 million animals have been poisoned and killed in this process and that a full minimum data set for the high production chemicals would be approximately 5,000 animals per year, including rats, mice, rabbits, fish and even birds. Based on the information from the Health and Safety Executive, in two years of the UK’s exit from the European Union, UK-based companies must provide the full data package that supported their original registration with the ECHA, including full test reports for each applicable toxicity concern. Because of access to those data issues, many UK registrants could be left with no choice but to repeat the tests on animals that have already been complied with for EU purposes.” Even if Members do not accept my arguments around the implications for businesses, do they think—if those datasets are not agreed and if a common framework is not reached between the EU and the UK—that all those subsets of tests and all that cruelty is genuinely necessary? I think it is avoidable, and I ask the Government to consider amendment 17 more thoughtfully.
On new clause 7, I thank hon. and right hon. Members from across the Committee who support the endeavour and the aspirations that it brings. I wish to put on record my appreciation for the shadow Secretary of State for Northern Ireland—the hon. Member for Sheffield, Heeley (Louise Haigh)—and the right hon. Member for Doncaster North (Edward Miliband) for their engagement with and understanding of the implications that there are for Northern Ireland. They signed the amendment and I am grateful to them for doing so. I am grateful to the hon. Member for North Down (Stephen Farry), who similarly joined us in this endeavour, and, I have to say, to the hon. Members for Foyle (Colum Eastwood) and for Belfast South (Claire Hanna), who have indicated their positive approach to the new clause and signed it when we tabled it to the European Union (Withdrawal Agreement) Bill back in January.
Nothing that the Minister said—I cannot re-emphasise this point enough—undermined the benefits of accepting new clause 7. He indicated that the Government will rightly carry out an analysis of the implications for business in Northern Ireland, so there is nothing wrong with agreeing to it as part of the Bill. We know that there are distinct differences associated with the operation of the Northern Ireland protocol. The new clause seeks not to undermine the protocol but to ensure that Government carry out these impact assessments. In doing so, it seeks to indemnify businesses in Northern Ireland who are unduly, unfairly and uncompetitively put at a disadvantage to their colleagues and counterparts in GB. That is the very essence of the commitments that have been advanced as part of the Bill; indeed, the “lines to take” that Conservative Members have been given tell them that the Bill is about ensuring the integrity of the UK internal market. If they believe that to be the case, then there is nothing in new clause 7 that undermines their position. I say that very earnestly.
Looking across the Chamber, I see Members—friends—who have an interest in Northern Ireland and, more than that, an unbridled belief in the benefits of the Union, and who believe that we should not only hold but build and enhance what we have. If they are of that view and respect our integral place within the United Kingdom—I know that many have gone through the angst of having to accept compromises as part of the withdrawal agreement to get Brexit for themselves in England, knowing that it will have distinct differences for us in Northern Ireland—I earnestly hope that they will consider new clause 7 in a positive vein. It does not undermine the Government’s position—they have offered no fundamental objection to it—and it does not undermine the process that Members are seeking to achieve on Brexit. It would, however, make an enormous practical difference for businesses in Northern Ireland who are faced with uncertainty and a lack of confidence in the arrangements that will come forward, and, should there be a negative impact or consequence, they would know that Government will stand with them.
Sir Edward Leigh
I rise to speak to new clause 8 in my name. I shall attempt, within your time constraint, Madam Deputy Speaker, to get these complex legal and international law arguments on the record.
The problem is not the possibility of the UK breaking international law, which we do not want to do, obviously; the problem is the UK’s being prepared in case the EU fails in its willingness to interpret the protocol on Northern Ireland in a proper way. We have a legal tool at our disposal that would help clarify the situation in accord with international law: a unilateral interpretative declaration. My new clause 8 describes in some detail how that could be done. It would help our negotiating position in securing an EU trade agreement and, just as importantly, it would help get the Bill through the House of Lords.
Many in the other place will be concerned about the possibility that the UK Government may be opening the door to breaking international law. We pride ourselves on the rule of law and we should maintain our commitment to it. The real problem is whether the EU is willing to implement the protocol in a reasonable and effective manner. We do not need to break international law; we need to prevent the EU from breaking international law by violating its treaty commitments.
The EU has suggested that it would break its commitments in the protocol. It has said that it would consider breaking its commitments to allowing food from England, Wales or Scotland to be sold in Northern Ireland if the UK did not make concessions on the free trade agreement. That is on the record in Michel Barnier’s statement on 10 September. In the light of that, the Government understandably introduced this Bill, so that we can act when the EU threatens the economic integrity of the United Kingdom.
We are committed to implementing the protocol, which we signed up to, but we are only committed to what we actually agreed to—no more and no less. This is the nub of the problem. We are not bound by new interpretations of the protocol that the EU might seek to impose on us. We are not required under international law to accept all the proposals that the EU tables in the negotiations. We cannot accept any bargaining linkage being made between implementing what has been agreed under the protocol in good faith, and what has still to be agreed about our future relationship.
There is a compromise available. We can use international law to ensure that the EU meets the commitments it made in the protocol. We can assert our position, as I have argued, in a unilateral interpretative declaration, if—and only if—the EU behaves unreasonably.
The initial version of the Northern Ireland protocol agreed to in November 2018 could have bound us indefinitely to maintaining full alignment with the EU’s single market regulations and membership of the customs union. In an Adjournment debate in February 2019, I advocated the use of a conditional unilateral interpretative declaration to assert the temporary nature of the backstop. That word “temporary” was then in the protocol.
My right hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who was then the Attorney General, took this up to seek a time limit or a withdraw mechanism from the backstop. That was the basis of documents tabled on 11 March 2019 for the second meaningful vote. Unfortunately, the unilateral declaration issued then was not made strong enough to guarantee an exit from the backstop according to many people in this House. The Government, I believe, should have asserted a stronger interpretation.
Nevertheless, in December last year, we succeeded in getting rid of the backstop. The question is whether the agreed Northern Ireland protocol will be implemented in good faith. The protocol is a good compromise. Rather than abandoning international law, we must use the full provisions of international law to ensure that the protocol is implemented as we agreed.
The general principles of international law applicable to the withdrawal agreement and the protocol are spelled out in the 1986 Vienna convention on the law of treaties. In addition, in 2011, the International Law Commission of the UN codified a guide of practice for handling disagreements about the interpretation of treaties. That allows an individual Government to issue a declaration on their interpretation of the meaning of specific aspects of a treaty. The UK can do that unilaterally, without any agreement from the EU.
To leave the realm of politics and enter the realm of international law, any unilateral interpretative declaration must be sent to the depositary of the treaty. I proposed in an amendment in Committee that the Government should use this declaration to assert their position if the EU were to fail to implement aspects of the protocol. My new clause 8 now spells out in some detail how the declaration could be used. Subsection (1) specifies that the Government should invoke this procedure if the EU fails to carry out the requirements of the protocol. Subsection (2) specifies that the Government should ensure that their interpretation of the protocol is justified by, and in accord with, the provisions of the Vienna convention.
It is important to note that the Vienna convention covers the need to act in “good faith” and the need to avoid results that are “manifestly absurd or unreasonable”. Subsection (3) therefore requires the Government to obtain parliamentary approval before they make a legal challenge, and subsection (4) requires the Government to report back to Parliament on whether the EU has approved the interpretation. If the dispute were to continue, there would be a choice: we could seek negotiations to achieve a compromise in the Joint Committee, or we could invoke the withdrawal agreement’s arbitration procedures. If the dispute could not be resolved and arbitration were required, we would have acted in good faith—that is the point—in international law. We would have established our case and started arbitration on our own terms.
The Government are right to challenge the EU. We can uphold international law. We can challenge the EU with proper legal methods. We do not need to accept its interpretation of the protocol. When we face unreasonable demands, we have a chance to state our interpretation of what we agreed when we signed the protocol. We can challenge the EU with a unilateral interpretative declaration and, hence, defend our position in full accord with international law. I ask the Government to consider positively this compromise, on which we can all agree and which is offered to the Government in good faith.
Caroline Lucas
I rise to speak to new clause 6, which is in my name. Its intention is to ensure that those seeking public money for economic development under this legislation are obliged to undertake a climate and nature emergency impact assessment.
The powers set out in part 6 of the Bill provide assistance in a way that would be subject to very few restrictions. New clause 6 is designed to be a genuinely constructive and practical suggestion to help Ministers see the serious gap in the legislation, and to help them to assess and decide whether the money they are dishing out is trashing the environment or supporting its restoration.
Both the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Sutton and Cheam (Paul Scully), earlier this afternoon, and the Minister of State, Cabinet Office, the hon. Member for Norwich North (Chloe Smith), last week, said that the UK Government have a determination to see climate and environmental goals achieved. Well, I am very glad to hear that, but it makes me even more perplexed that they are not willing to accept what I regard as a helpful and friendly amendment. In fact, both Ministers have also said that it was not necessary to introduce any kind of conditions on the financial assistance powers in the Bill, because apparently there is already an overarching legal and policy framework for achieving those goals. That is not good enough. We need commitments that would make those fine words actually bite when it comes to the wide financial assistance decisions set out in the Bill.
The Bill has conferred astoundingly broad powers on Ministers, but without clarity or direction over the mechanisms that they will use to judge whether they are upholding policy commitments—and vague references to overarching frameworks just will not cut it. The bottom line is that, in order to tackle the nature and climate emergencies that we face, the state must not risk supporting projects, companies or industries that threaten to undermine progress toward meeting climate, nature and environmental goals and targets. To avoid that risk, people need to be asking and proving how their requests measure up to climate, nature and environmental goals and targets, and the Government need to check.
The production of impact statements for any proposal for financial assistance will not only help to ensure that individual projects consider long-term sustainability, including avoiding or mitigating potential negative impacts, and maximising the benefits of delivering a green economy; it will also enable Governments across the UK to better understand the aggregate impacts of such financial assistance, and measure them against the goals and targets to which they have already committed themselves. In other words, impact statements would be not an additional burden, but a necessity to reach stated goals. They would also provide a useful opportunity to demonstrate the positive impact that ambitious and well directed investment can bring. The statements would help Ministers—and, indeed, all of us—by providing the benefits of public accountability and value for money, as well as important integrated policy making to tackle the nature and climate crises.
Let us not forget that we have had so many commitments —at least in fine words—from this Government on keeping high standards post Brexit. The Conservative party manifesto promised
“the most ambitious environmental programme of any country on earth.”
It is extraordinary that a Government who say that balk when it comes to any practical measure that would enable them to implement that commitment.
Just yesterday, the Prime Minister’s comments at the signing ceremony of the Leaders’ Pledge for Nature sounded positive. He said that we need to turn words into action, and I could not agree with him more. He said that we need ambitious goals and binding targets and, in his characteristic language:
“We cannot afford dither and delay because biodiversity loss is happening today.”
Yes, Prime Minister, it is, and this straightforward measure would enable him to deliver on the fine words by supporting a mechanism that is designed to achieve exactly that. Otherwise, words are cheap.
New clause 6 is not just a “nice to have” or a green add on; it is a vital way of ensuring that we implement our existing commitments. In May last year, Parliament passed a motion declaring a climate emergency. Marvellous —I was the first to be pleased about that, but we need a mechanism to ensure that subsequent policy making is in line with that commitment. Otherwise, it is meaningless. We have heard time and again how post Brexit, the UK will be able to have higher environmental standards than the EU, yet the next round of European structural funds will have tackling climate change and addressing the just transition as a major theme. Surely at the very least we should aspire to do the same.
Evidence that we must act responsibly and urgently is mounting every day. As I have already said, the UK Government are failing to meet as many as 17 of the 20 biodiversity targets that we set ourselves 10 years ago. We have plenty of examples of money that is being spent in a way that undermines environmental sustainability, so we know we need to act.
Just this morning, Professor Simon Lewis of University College London reminded us that the biodiversity crisis is not a problem in someone else’s backyard; it is happening in the UK. We live in one of the most nature depleted countries on earth. We have lost 55% of our forest birds in 50 years, and 97% of our flower-rich meadows since the second world war. We have just 13% woody cover, compared with an EU average of 38%. Scientists regularly document huge declines in beetles, bees, butterflies, moths and ladybirds.
Those things do not happen by accident. They happen as a direct result of public policy. They happen as a direct result of where money is spent. It is therefore critical that, if and when Ministers choose to exercise the powers in the Bill, they do so in a way that is consistent and compatible with any environmental and climate goals and targets in the relevant part of the UK.
I know time is short, Madam Deputy Speaker, but I want to say how much I support new clause 1, which has been tabled in the name of the shadow Business Secretary, the right hon. Member for Doncaster North (Edward Miliband). His powerful speech to the House on Second Reading left the Prime Minister embarrassed and exposed. Embarrassed because this is frankly all a bit of a game for a Prime Minister who does not like to lose, and exposed because the Prime Minister is at least supposed to uphold international law. In this case he is asking Parliament to give his Government authorisation to break a treaty that he negotiated and signed last year, and on which his whole general election campaign was based. You almost couldn’t make it up, but that comes after the Prorogation scandal, and a string of attacks on civil servants and the operations of our democracy, delivered by a Prime Minister who thinks little of shutting down Parliament when it gets in his way.
Under any Government of principle, new clause 1 would not be contentious, but sadly it is needed tonight because the Government’s amendment still leaves us with a Bill that clearly authorises Ministers to break international law. This is not a matter of left or right, or of leaving or remaining in Europe; this is about our democracy. To vote for the “treaty undercut” clauses in this group is not to provide a safety net, as the Chancellor of the Duchy of Lancaster desperately suggested yesterday. Instead, it is to fire a cannon ball through the safety net of democratic principle. By contrast, new clause 1 gives MPs the opportunity to demonstrate the immovable principle that it is outrageous for any Prime Minister, any Attorney General, any Justice Secretary—indeed, it should be out of the question for any MP—to be part of legislation that authorises Ministers to break the rule of law. So I hope that every Member of the House will vote for new clause 1, and against the indefensible precedent that the Government seek to set.
Government amendment 13 is yet another attempt by the Government to avoid scrutiny of their actions, this time by the courts. It is basic to our way of life and to our history that no one is above the law, but clause 45 is a crude attempt to put Ministers above the law. Not only are Ministers seeking the power to legislate in breach of international law, but Parliament is being asked to pass a law whose aim is obviously to prevent any effective constraint on Ministers. This should be out of the question for any Government with any respect for the rule of law. Again, none of the Law Officers, no Minister and no MP should be prepared to vote for such an attack on the basic principles of our constitution.
John Redwood (Wokingham) (Con)
I support the Government’s amendments to the legislation for the reasons outlined admirably by the Minister—it did need a little strengthening and this is a welcome clarification—but I rise mainly to oppose new clause 1.
I am disappointed with the official Opposition, because I was delighted after the clear decision of the people in the last general election that the Opposition said that they now fully accepted the result of the referendum, although it took place years ago—the previous Parliament blocked its timely implementation. We had a rerun in the general election and the Opposition fully accepted the verdict of that general election, yet here we are again today, with new clause 1 deliberately trying to undermine the British Government’s sensible negotiating position in the European Union.
Whenever there is a disagreement in interpretation of that original withdrawal agreement between the United Kingdom and the European Union, the Opposition and most of the other opposition parties rush to accept the EU’s—very political—interpretation of the situation and rush to say that anything the UK Government wish to assert in this Parliament, or in a court of law if it came to that, is clearly illegal.
It is preposterous that we have so many MPs who so dislike the people of this country that they are still trying to thwart the very clear wish to have a Brexit that makes sense.
John Redwood
I must not take up too much time. I wish to develop my argument quickly.
We have to recognise what we are dealing with here. The EU withdrawal agreement was pretty unsatisfactory and one-sided because the previous Parliament stopped the Government putting a strong British case and getting the support of this Parliament in the way the British people wanted. The Prime Minister wisely went to Europe and did his best to amend the withdrawal agreement but it was quite clear from the agreed text that a lot was outstanding and rested to be resolved in the negotiations to be designed around the future relationship, because we used to say that nothing is agreed until everything is agreed and that the withdrawal terms had to run alongside the future relationship.
The EU won that one thanks to the dreadful last Parliament undermining our position all the time. This Prime Minister is trying to remedy that and the only reason I was able to vote for the European Union (Withdrawal) Act 2018—much of it was an agreement that I knew had lots of problems with it—was that we put in clause 38, a clear assertion of British sovereignty against the possibility that the EU did not mean what it said in its promises to my right hon. Friend the Prime Minister and did not offer that free trade agreement, which was going to be at the core of the new relationship. We therefore needed that protection, so I am pleased that the Government put it in.
That made me able to vote for the measure to progress it to the next stage, but I was always clear that the EU then needed to get rid of all its posturing and accept what it had said and signed up to—that the core of our new relationship was going to be a free trade agreement. We were going to be a third country, we were not going to be under its laws and we were not going to be in its single market and customs union, but it has systematically blocked that free trade agreement. The UK has tabled a perfectly good one based on the agreements the EU has offered to other countries that it did not have such a close relationship with, but it has not been prepared to accept it. Well, why does it not table its own? Why does it not show us what it meant when it signed up to having a free trade agreement at the core of our relationship? If it will not, we will leave without a deal and that will be a perfectly good result for the British people, as I said before the referendum and have always said subsequently.
Of course, it would be better if we could resolve those matters through that free trade agreement. As colleagues will know, many of the problems with the Northern Ireland protocol fall away if we have that free trade agreement, and we are only in this position because the EU is blocking it.
Why is the EU blocking the agreement? It says that it wants to grab our fish. I have news for it: they are not on offer. They are going to be returned to the British people, I trust. I am always being told by Ministers that they are strong on that. The EU wishes to control our law making and decide what state aid is in the United Kingdom. No, it will not. We voted to decide that within the framework of the World Trade Organisation and the international rules that govern state aid—rules, incidentally, that the EU regularly breaks. It has often been found guilty of breaking international state aid rules and has been fined quite substantially as a result.
I support the Government’s amendments, and I support this piece of legislation. We need every bit of pressure we can to try to get the free trade agreement and the third-country relationship with the EU that we were promised by it and by the Government in the general election. We can then take the massive opportunities of Brexit. It is crucial that new clause 1 is not agreed to, because it would send a clear message to the European Union that this Parliament still wants to give in.
Madam Deputy Speaker (Dame Rosie Winterton)
Order. We have not done too badly, all things considered. However, after the next speaker, I will introduce a four-minute time limit, so that we can get in as many people as possible. I call Stephen Farry.
Stephen Farry
Thank you, Madam Deputy Speaker. Regardless of that, I will try to honour what you just said about the length of speeches. I primarily want to speak to amendment 16, in my name and those of others, regarding the removal of the most offensive and dangerous clause in the Bill—clause 45—and I will touch on some other amendments.
At the outset, I want to be extremely clear: the vast majority of people in Northern Ireland and most businesses in Northern Ireland do not want to see this Government breaking or threatening to break international law, period, and they certainly do not want to see it happening on their behalf. Let us get that straight. The Government are not doing this for the good of the people of Northern Ireland.
The breaking of international law undermines the Good Friday agreement, which is lodged with the UN and is part of international law. In particular, breaking the withdrawal agreement and undermining the protocol does not help our businesses one bit. Instead, it places them in a much more uncertain legal situation for doing business. That is not in their interests, because businesses need to operate in a long-term, sustainable legal framework, especially if they are trading internationally. It risks Northern Ireland being turned into some sort of rogue state.
Whatever happens today, it is important that this House ensures that nothing goes forward in the Bill that either threatens or breaches international law, because it is a very dangerous route to go down. The opportunity exists this evening in new clause 1 and my amendment 16. Any efforts to soften that or put hurdles in place to make the prospect of breaking the law more difficult or push it further down the line defeats the purpose, because the threat is still on the table. That is no way for this country to do business internationally, and it sends a worrying message around the world.
Some of the spin in relation to the Bill is extremely disingenuous. In another debate, we heard references to George Orwell’s “Nineteen Eighty-Four” and doublethink, but the Government are taking that to a new level with some of the arguments used today and previously. In particular, we are told that this is about a safety net for Northern Ireland. I have already made the point that this is anything but that. This is about removing the safety net for Northern Ireland by undermining the Good Friday agreement.
The Minister talked about the businesses of Northern Ireland being supportive of the Bill. That is news to me, and I would certainly be keen to hear who those businesses are. He talked about people who are opposing the Bill wilfully misrepresenting the Good Friday agreement. I was there as part of the negotiations on the Good Friday agreement. I saw John Major, Bertie Ahern and others negotiating the agreement. I saw the role of the United States and the European Union. They understand what is at stake here and what the Government are potentially doing. It is extremely arrogant to suggest that people are wilfully misrepresenting the agreement when we are trying to defend it.
The principle of consent is embedded within the withdrawal agreement. The European Union is very clear and keen that that is the case. We can talk about other consent issues all we want, and if we are doing so, we go back to the very first principle: that Brexit itself was imposed upon the people of Northern Ireland against their will. That is when the issue of consent and pulling away from a carefully balanced set of arrangements began.
Some of the amendments tabled today seek to disapply the Human Rights Act in relation to clause 45. I remind the Government that the Good Friday agreement contains reference to the importance of the European convention on human rights, and the Human Rights Act puts that into domestic effect. The Government are talking about protecting the Good Friday agreement, in their terms, while at the self-same time putting in a clause that undermines it clearly and unambiguously. Indeed, the Northern Ireland Human Rights Commission and the Equality Commission, two institutions named in the Good Friday agreement, have expressed deep concern at the amendments that have been tabled by the Government.
Breaching international law will be a dead end for the Government, and I am not sure what they are seeking to achieve by it. The right hon. Member for Wokingham (John Redwood) talked about those on the Opposition Benches undermining the negotiations. The Government are doing that all by themselves at present. This is not a tenable or sustainable direction of travel. Until the Government withdraw the threat of breaking international law, they are not going to get a proper future relationship agreement, or a free trade deal with the United States. It is no longer just an issue of the Democrats and such people as Speaker Pelosi or Vice-President Biden. We now have Mick Mulvaney, President Trump’s special envoy, echoing those self-same comments. This is now a bipartisan issue in the United States. Whenever the Government have been out-Trumped, that is a very clear message of the danger of the route that they are going down.
In relation to us in Northern Ireland, we have to get the best route possible in terms of the protocol. The protocol is the direct outworking of the UK Government’s decisions around Brexit, so the protocol arises from what the UK has decided to do. It is imposing, essentially, binary choices on a society in Northern Ireland that works only through sharing and interdependence. We do not want any borders, but we have to try to work to mitigate the impact of the protocol. The way we do that is through building the trust and confidence of the European Union, so that we can ask for waivers and other forms of mitigations, not through unilaterally seeking to breach the terms of the protocol.
A very clear example is around the issue of export declarations and other export procedures. As part of the withdrawal agreement, the Government have already recognised that that is the prerogative of the European Union under its customs code; however, waiving that would not really threaten the integrity of the EU’s single market or customs union, unlike some other potential aspects. That may well be a fairly easy thing for the EU to give, but we are not going to achieve that if the Government cannot establish that confidence to work in good faith with the European Union and their partners going forward.
I will make two more points. The first is on new clause 7 from my DUP colleagues in Northern Ireland. As Members may have noticed, the Alliance party does not always follow the DUP on Brexit—indeed, we take radically different positions, including on this Bill—but there is common ground in a number of areas, in terms of trying to ensure that we have unfettered access from Northern Ireland into Great Britain. I recommend that the House approve that amendment if it goes to a vote. I do not think that it does any damage to the protocol or the withdrawal agreement, but it tests on a periodic basis the commitments that the Government are making and that are reflected in the withdrawal agreement itself. I have probably gone on for slightly too long, so I will end on that point.
Simon Baynes (Clwyd South) (Con)
I approach the Report stage of the Bill as a Welsh MP for a border constituency where protecting and enhancing the relationship between England and Wales, and the whole Union of the United Kingdom, is not a conceptual political argument but a vital matter of day-to-day practicality. Thousands of my constituents in Clwyd South go across the border each day to work, attend school or college, visit family and friends, or go shopping, so I am strong supporter of the Bill, which will ensure that businesses in all parts of the UK can continue to trade seamlessly across the UK as they do now—protecting jobs and supporting the economy by avoiding unnecessary burdens and costs being placed on businesses or consumers.
The rest of the UK is Wales’s biggest trading partner by some way, accounting for 61% of Wales’s exports, worth £30.1 billion, and 64% of Wales’s imports, worth £34.3 billion.
Much of those are found in small businesses close to the border with England, such as those in Clwyd South. This Bill will protect the UK’s centuries-old internal market, by ensuring that goods and services in one part of the UK are recognised in the others, and ensure a fair playing field for all companies. As has been mentioned, the Bill will enshrine the principle of mutual recognition, so that goods and services in one part of the UK will be recognised across the country, and the principle of non-discrimination, so that there is equal opportunity for companies trading within the UK, regardless of where they are based. The Bill will also ensure that high standards are protected across the whole UK by promoting co-operation between the UK Parliament and the devolved legislatures. There will be no reduction in our food hygiene or animal welfare standards.
Wera Hobhouse
Let me add my voice to those of the many Members of Parliament, professional organisations and members of the public who have grave concerns about clauses 41 to 45, and their implications for the UK’s commitment to international law. The Law Society and the Bar Council have described them as representing a “direct challenge” to the rule of law without precedent. We are a country with a proud history of protecting and promoting the principle that nations should be ruled by a set of agreed rules laid out in law rather than the whims of politicians. That is the foundation of a free and fair society, and it is true about national law, as it is about international law. That this House is even contemplating going against that proud principle is a travesty and a sad moment for this Parliament, which is often called the mother of Parliaments.
It is through international co-operation that we can address the challenges facing our global community, from climate change to human rights to security. The UK has always stood up for international law on the world stage. It is the very foundation on which we deal with other countries. The Prime Minister said it was “fantastic moment” when he signed the withdrawal agreement, but less than a year later this Government are proposing a Bill that would enable Ministers to go away from the UK’s obligation under that treaty. What does that say about our credibility as a trading partner?
I have said before that the withdrawal agreement left the Government with two options. The first is to abide by that agreement and negotiate a deal in good faith with the EU that avoids the need for a significant internal border between Northern Ireland and the rest of the UK, but it is disappointing that the Government have chosen the second option—to renege on the treaty they signed and break international law. Even a “specific and limited” breach of international law would do immeasurable damage to the UK’s reputation, not only as a trading partner but as a centre of international legal practice and dispute resolution.
All of this comes at a time when we are desperately seeking new arrangements with other countries across the globe. Our application to accede to the Lugano convention is a case in point. That agreement enables civil judicial co-operation with our closest neighbours and it is clearly in our interests to remain a party to it. Our application requires signatures from other countries. Would it not significantly undermine our efforts if we show willingness to negate our international obligations now?
Let me come to amendment 16, which the Liberal Democrats support. Clause 45 has significant implications for judicial review. It is not just about compliance with international law: it has implications for domestic law too. The clause runs the risk that domestic challenges to a potential breach of the international commitments of the UK will end up being litigated at the international level because they can no longer be conducted via judicial review at home. There is not even a precedent for the provision, and the greatest danger is that it will pit our courts against our Government. I urge all Members to support amendment 16 to avoid that damaging consequence.
Ms Nusrat Ghani (Wealden) (Con)
I rise to speak to clause 45 and the amendments tabled by the Secretary of State. I seek further clarification from the Minister about the circumstances in which the clause will be needed, and I seek reassurance on the motivation behind the amendments. I want to ensure that we are on the same page and to assist the smooth passage of the Bill.
Clarity of language and intent are key here. Our country’s reputation as rule makers, not rule breakers, is at stake, however unintended that may be. The Minister will know that I backed what my constituents call the Neill amendment—before I break any protocol, let me say it is the amendment tabled by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill)—in part to help the Government to undo the damage that was done when five short words were delivered at the Dispatch Box:
“this does break international law”.—[Official Report, 8 September 2020; Vol. 679, c. 509.]
I know that the amendment we tabled was not perfect, but nor were the circumstances and we did get a huge concession, with the Government accepting a parliamentary lock on the powers they sought to give themselves in circumstances when all else had failed. I welcome the changes the Government have made, but making the law and breaking the law should never be taken lightly. In the last few weeks, yesterday and potentially tomorrow, it feels as though we are dragging Ministers by their tails—not that all Ministers require that—to get them to let us to have a say on legislation. That has not been edifying for any of us.
I support the vast majority of the Bill. It is a Bill that allows us to truly take back control from the European Union and establish, protect and enshrine the internal market of the United Kingdom, the most important market for all four of our nations, and provide us with much needed certainty for businesses across our constituencies. That brings me back to my major concern: we all have a duty across the House to leave a legacy that enhances our country’s reputation and, as Conservatives, to progress our cause with respect for the law and institutions—not leave a reputation that dishonours or diminishes our standing on the world stage. As MPs, we are just bit players in the history of our Parliament, but we can leave unintended consequences in the way we legislate that remain on the statute books long after we have gone.
The United Kingdom has a glowing reputation for democracy and the rule of law, which attracted my parents to migrate here. Reputation takes years to form but seconds to destroy. I support the Government in their quest to get the best possible deal from the European Union, which is why I want to give the Prime Minister the best possible negotiating hand, but when British Ministers give their word on the world stage, they are not only giving the word of the Government but that of the Crown. If the Government propose to break international law in extremis at a future date—I accept that it would only take place if the EU acted in extreme bad faith and undermined the integrity of the Union—that power must only be exercised by our sovereign Parliament, but of course I would prefer for us not to be in that situation at all. I would caution the Government against adopting a machismo, scorched-earth policy, and to remember that, as we emerge next year and continue to challenge countries such as Iran, Russia and China as they flout international law, we will need our international friends to stand tall with us. I look forward to hearing from the Minister his assurances on the amendments tabled to clause 45.
Grahame Morris (Easington) (Lab)
It is a pleasure to follow the hon. Member for Wealden (Ms Ghani). I wish to speak about progress towards drawing up a shared prosperity fund, because the English regions, and particularly communities such as mine, are in urgent need of investment. I want to focus my remarks on clauses 46 and 47 and on new clause 3, which relates to the replacement of EU structural funds with the UK shared prosperity fund.
The shared prosperity fund is a mechanism by which the Government can deliver their levelling up and building back better agenda. With all due respect to right hon. and hon. Members from Northern Ireland, Scotland and Wales, this is not an issue just for the devolved nations and regions, but a huge one for many of us in left-behind former industrial areas, and it is somewhat disappointing that, with three months until the end of the transition period, details of the scheme are still scarce.
Structural funds to promote economic growth and deliver infrastructure have never been more important. The divisions and inequalities that have been highlighted during the covid-19 pandemic are deeper and wider today, but they existed previously. As we have learned from previous crises, such as the global financial crash in 2008, it is the weaker regional economies that are hit first and hardest by any economic shock. We therefore need devolution for not only the nations of the United Kingdom but for the English regions that are, to a large degree, disadvantaged by central Government, and the ideal place to start is the shared prosperity fund.
If the fund is to work properly, effectively and in a timely fashion, it needs to be in the hands of town halls rather than Whitehall. In the little time I have, I want to give a practical example to illustrate the point, and that is housing in Horden, in my constituency. In 2015, the housing association Accent Housing abandoned its responsibilities. With the consent of Ministers and the former Homes and Communities Agency, the properties in Horden were auctioned off in a fire sale, with some going for as little as £10,000. That led to an influx of private absentee landlords, who have blighted the village and many others.
Five years later, the numbered streets in Horden have the highest concentration of crime in County Durham, as well as some of the worst housing conditions in the north-east. Durham County Council has consulted extensively and produced a plan, which has been presented to the Government time and time again. However, there are practical difficulties in discussing regeneration at a national level when the issues encompass several Departments—the Treasury, the Ministry of Housing, Communities and Local Government, the Department for Business, Energy and Industrial Strategy, and the Home Office. I raised the issue again this morning, but it is vital that we have cross-departmental working on these issues. I am confident that, if the resources were made available through the shared prosperity fund, regeneration plans such as the one we have developed for Horden, would be given the green light.
Brexit must mean something different for the left-behind areas of the United Kingdom. It cannot be a continuation of bad policy; otherwise, the slogan “take back control”, used frequently by the Prime Minister, will be nothing more than empty rhetoric and a broken promise, with lost opportunities for communities such as the ones I represent.
Virginia Crosbie (Ynys Môn) (Con)
The Bill is a necessary step to secure the future of our United Kingdom outside the EU. By creating the powers to continue the seamless functioning of the UK’s internal market, we will protect countless businesses across the UK, including many in my constituency, such as Menai Oysters & Mussels, Halen Môn, which produces our famous Anglesey sea salt, and countless producers of beef, lamb and seafood, many of which rely on trade between our home nations for the survival of their businesses.
It is not only a matter of continuity. The new shared prosperity fund, which replaces the EU structural fund, will focus on tackling inequalities within communities by raising productivity. In its written evidence to the Welsh Affairs Committee in May, the Isle of Anglesey County Council asked that the shared prosperity fund be less complex, more regionally focused and with faster response times than the EU structural funds. The UK Government are responding directly to those demands through the Bill.
Colum Eastwood
I fully agree with the hon. Member for Ynys Môn (Virginia Crosbie) that it is time to speak on behalf of our constituents. That is why I absolutely and totally reject the Bill.
The Bill is an assault on international law; it is an attack on devolution; and it is a pretty stupid way to negotiate. There are some very valiant attempts to amend the Bill— in particular, new clauses 1 and 6 and amendment 16. They are designed to protect the withdrawal agreement and our human rights obligations and to rail against the blatant desire to break international law. We will play the parliamentary game and support those amendments, but it is my firm view that the responsibility rests with the Government: it is not too late to withdraw the Bill and stop playing such silly games on this critical issue.
Some people in this House think we have just arrived in this Chamber. They need to understand that we have been coming here for centuries. We have seen it all. When we hear hon. Members aghast that the British Government intend to break the law, well, we know better. We are not surprised. From the Peel laws to partition, from Cromwell to collusion, famine and internment, and two Bloody Sundays, we know all about Britain’s adherence to the rule of law. We also know about other outrages. We remember Birmingham and Brighton, Guildford and Warrington, Mullaghmore and Enniskillen, and we are shamed by it all. The reason I mention those events is not that I want to live in the past but that I do not want to go back to it.
It took 20 years to negotiate, but in 1998 our people decided to come together, to look to the future, to decide and vow that never again would we live with violence and destruction. That peace was hard-won, and we are not about to lose it. It has to be minded, protected and nurtured. Brexit itself is an attack on our civility, on our progress. A hard Brexit would be disastrous for us. Of course, that was all recognised and understood by the Prime Minister only a few months ago. That is why he negotiated, signed and lauded the protocol all around the world. Then the Prime Minister sends a man into the television studios to tell us that
“these clauses are a safety net”.
Well, the Chancellor of the Duchy of wherever he is from also said some years ago that the Good Friday agreement was a “moral stain” and a “humiliation”. That gives us some confidence.
How can the European side negotiate with a Government who are pushing through Parliament a Bill that undermines the last deal it did with them? We on these Benches will always be suspicious, but if the Government want to give the people of Northern Ireland any comfort at all that they will be protected, they should withdraw the Bill now and begin negotiating like adults.
If the Bill is not withdrawn, I am absolutely confident that no deal that is done between the Government and the European Commission will pass the European Parliament or even the European Council. That is what our friends across Europe are telling us, so I ask the Government to please stop playing games with something that is far too precious to be messed with.
Dr Kieran Mullan (Crewe and Nantwich) (Con)
I rise to speak in opposition to new clause 1, which as with some of the previous amendments tabled by Labour, shows how little Opposition Members have learnt from the election last year and the tortuous events leading up to it. Yet again, they are failing to put the UK first.
In the past few weeks, I have occasionally felt like I must have stepped through a time machine. Again, this country is at a crucial stage of negotiations with the EU. Although I am sure that the people of the EU and their national Governments do not wish us any ill will, parts of the EU bureaucracy inevitably want to be sure that the UK visibly struggles as we stand on our own two feet. Heaven forbid that we should be seen to make a success of Brexit and give other people ideas. Our negotiating team are doing everything they can to secure the best deal for the country—the entire country— and again, they need the full weight of the Government, Parliament and the country behind them. We need to have their back.
That is where we see, once more, what I can only describe as a warped approach by some who take everything the EU briefs out at face value. Barnier says, “Jump,” and the Opposition ask, “How high?” Conversely, everything our team says must be a half truth, a ruse and not to be trusted. We cannot rely on many things in politics, but the EU can always rely on one thing: in this place, there will always be people who give the EU team the benefit of the doubt and find a smoking gun in everything that the Government say and that David Frost and his team are putting forward.
Not once in her remarks did the hon. Member for Manchester Central (Lucy Powell) do anything other than fall in wholesale behind the line emanating from Brussels. No wonder the British people decided well and truly to plant their feet on this side of the House last year. I am glad that David Frost was able to come to the Government, explain the unreasonable negotiating tactics being used by the EU and see the Government act quickly and decisively to support him and his negotiating team. The Bill will ensure that we protect the interests of the UK, and by doing that, importantly, it will increase the chance that we can secure a deal in the interests of the UK and the EU.
When we are negotiating, the biggest risk comes from the other side thinking that we do not mean business. To suggest that we might not have third-country status was clearly a hardball negotiating tactic—a misplaced and ill-judged one—but with the readiness of Opposition MPs to jump in behind the EU line, is it any surprise that the EU thought it might work? The Bill makes it clear that it will not. Sadly, by tabling new clause 1, the Opposition are buying into that negotiation tactic, grabbing it with both hands and, yet again, making it harder for the country to secure a good deal.
The arguments about international law have been extensive. I welcome the consensus that we have reached with hon. and learned Friends that the powers in the Bill will be used if, and only if, the EU breaches its legal obligations to act in good faith. New clause 1 is completely unnecessary. The rest of the world will be able to see for itself whether this country remains one with which it can do business. I welcome the remarks of the Australian high commissioner to the UK, George Brandis, who insisted that the UK remains a trusted partner.
As we have done already, for the rest of the negotiations we should listen and compromise. We have left the EU, but we have not left Europe. Fundamentally, the Bill seeks to ensure that businesses across the UK can be supported, can thrive and can help the UK to make a success of Brexit. We are putting the UK first. All hon. Members should welcome that, reject amendments that undermine our negotiating team and, for once, pull together on behalf of the British people in the face of EU intransigence.
Mhairi Black (Paisley and Renfrewshire South) (SNP)
Devolution has allowed us in Scotland to carve out a path that is different to that of the rest of the UK wherever necessary for the past 20 years. To understand exactly how this Bill attacks devolution, we need to read only clause 46, which states:
“A Minister of the Crown may…provide financial assistance to any person for…infrastructure”.
Subsection (2) goes on to say that infrastructure includes: health, education, transport, court and prison facilities, housing, water, electricity and the provision of heat. The Bill will allow UK Ministers to dictate and spend money wherever they like and in whatever devolved area they want, as long as it can be justified as they deem it to “directly or indirectly” benefit any area of the UK. We already know that the reality of that is Tory Governments funnelling millions into marginal Tory seats, as opposed to the areas that need it. I wondered why they had specifically included things such as heat and electricity and water, and then I remembered that the only reason why we are able to have publicly owned fresh water in Scotland is that the Scottish Parliament has made it so.
The Bill will explicitly give any Minister of the Crown permission to run riot with the very assets of Scotland that our Scottish Parliament has protected, and nowhere in the Bill—nowhere—does it state that permission must be obtained from the devolved Governments to do so. I have watched this Parliament hand over £40 million for ferries to a company that did not own any ferries. Are we really supposed to expect and rely on this Government to spend money on our behalf? Let us be clear: this would not be some benevolent donation to Scotland from Westminster, because clause 47 says that financial assistance may be subject to conditions, including repayment. We will be expected to pay back money that we never even spent. That is like being asked to take out a car loan even though you cannae drive.
To those who say that we are represented here and that we can change things, I say this: we have tried and we are outvoted at every turn. This gets to the crux of why independence is the only option left for Scotland. Let me give some context: Scotland has 59 MPs and the city of London 73 MPs. This is a Union that England dominates. The only reason why there is not an English Parliament is that the people in Westminster view this place as the English Parliament. We cannot afford to be naive. The only way to protect our Parliament is to become independent.
We regularly hear the Tories brag about how we have the most powerful devolved Parliament in the world, but I have a new thing for them to brag about: the UK is in the Guinness book of records as the country from which most countries have gained independence. Since 1939, 62 countries have gained independence from Westminster and not a single one has asked to come back. Only one country decided to stay and look where we are. In 2014, the idea of Boris Johnson as Prime Minister was a warning. Now, it is a reality.
The Bill provides a framework to allow Westminster to bypass the Scottish Parliament in the hope that we do not notice it, but we are noticing it. It took us 300 years to get our Scottish Parliament and 20 years for this place to put a bulldozer right through it—
Peter Gibson (Darlington) (Con)
I rise to oppose new clause 1. The Bill seeks to preserve and protect the internal market of our precious United Kingdom, having taken back control from the EU. Our membership of the EU predates much of the devolution journey on which our Union has been, and as we break free from Europe, we must put in place the protection that is essential to preserving the marketplace in our own internal market and, in turn, protect our Union.
This Parliament was elected to deliver on the will of the British people. The people of Darlington want to see Brexit done. I know, too, that they want us to have a great free trade deal with our European neighbours. They know that trade benefits us all.
The Bill serves to protect our internal trade, and also makes provision for a situation in which the withdrawal agreement’s provisions prevent our internal trade. I welcome the Government’s intention to seek parliamentary approval for the “notwithstanding” clauses. It is right that our European neighbours should negotiate with us in good faith as we seek to protect our internal market, and it is right that Parliament has the opportunity to debate and vote on such measures. It is my hope and wish that negotiations progress and a deal is secured, such that we do not have to invoke these measures. I regret the coverage that these provisions have attracted generating the unfortunate view that the House is intent on breaking the law.
Sammy Wilson
First of all, I make it quite clear that, so far as Democratic Unionist Members are concerned, despite what has been said by the hon. Members for North Down (Stephen Farry) and for Foyle (Colum Eastwood), the Bill is essential to protect businesses in Northern Ireland. Our worry is that it does not go far enough, because its only reference to keeping Northern Ireland as part of the internal market regards preventing the withdrawal agreement’s requirement that businesses in Northern Ireland make export declarations when exporting to our biggest market, GB. That is the only reference in the Bill. In fact, the Bill also specifically excludes Northern Ireland from protections against EU interference in state aid and support for UK businesses. We are the only part left out of that.
New clause 7 seeks to address some of those things. First of all, it refers to the Government using their “best endeavours” to ensure that trade from GB to Northern Ireland, and from Northern Ireland to GB, is protected within the internal market. Secondly, it would require the Government to monitor the impact of the withdrawal agreement and the Northern Ireland protocol, because we cannot defend businesses in Northern Ireland if we do not know what impact those are having. It stands to reason that, whether defending Northern Ireland through giving support to businesses and helping them to reduce their costs if unfair impositions are placed on them, whether protecting Northern Ireland through mitigation measures or whether supporting Northern Ireland through taking up these issues at the Joint Committee, we must know the impact of the withdrawal agreement. New clause 7 would require the Government to monitor those impacts so that they have the information to make a defence, as Ministers have said from the Dispatch Box that they want to do for businesses in Northern Ireland.
Thirdly, the new clause would require the Government to look at not only the impact of regulations that will be imposed on Northern Ireland by the European Union as part of the protocol, but the impact of any likely regulations, so that they can be anticipated and, again, so that businesses in Northern Ireland do not find that they are affected in a way that I have outlined in this place so many times. In my constituency, at this very moment, a planning application has gone in for a 45,000 square feet, £15 million border post. If we go by what Mr Barnier said yesterday, every lorryload of goods that comes through may have to be stopped, searched and investigated, with the resultant delays, costs and everything else.
It is important that the Government monitor the impact of such impositions. We are trying to ensure that this situation never happens in the first place, but unfortunately the Government already conceded that in the withdrawal agreement and the Northern Ireland protocol. I hope that the negotiations are successful in pushing the EU away from that draconian interpretation of the protocol. If not, there are some provisions in the Bill that will help to ameliorate the situation, and new clause 7 would push that even further. If Ministers mean what they say about protecting business in Northern Ireland and keeping it as part of the internal market, I hope that they will accept our new clause.
Gary Sambrook
This is one of the most important Bills that we will vote on in this Parliament, because it will create the foundation and fabric for our United Kingdom to prosper for many years to come—hopefully for at least another 300 years, to pick a random number. It is so important for all four of our nations to benefit from the Bill and prosper together.
The provisions in the Bill, especially on subsidy controls, are exactly what the spirit of Brexit was all about. It was about people knowing that they were sending billions of pounds to the EU, and feeling left behind here in the UK. I was shocked and appalled earlier to hear the shadow Minister talk about the Chancellor of the Duchy of Lancaster saying that money should be taken to the places it needs to be. The seats she was talking about used to be held by the Labour party, but are now held by Conservatives across the country, and it is because Labour forgot about those seats that so many of us Conservative Members are here today.
One such example, in my own seat, is the demise of MG Rover, which many people will remember. The factory closed down 15 years ago, but there is still 150 acres of land going completely unused. It is a daily reminder to the people who drive past it of that feeling of being left behind—of the billions of pounds going to the European Union, and the lost opportunities for jobs and skills across the constituency of Birmingham, Northfield. Through the subsidy controls provided in the Bill, we will be able to use Brexit to deliver on those jobs and opportunities. I very much look forward to this legislation being used for a bright, positive future across Northfield and Longbridge, when the empty space at MG Rover is used once again.
The clauses and compromises on parliamentary sovereignty are absolutely right and sound. A couple of Members on the Opposition Benches spoke about the nature of negotiations. Most Opposition Members are a second-hand car salesman’s dream. Half of them would leave the showroom without any windows, doors or tyres left on their car because every time someone said no to them, they would just roll over and accept it. If the European Union says, “No, sorry, we can’t do that”, Opposition Members think we should just say, “That’s alright; we’ll do whatever you like.”
We have heard about devolution, especially from Scottish National party Members. I am not too sure what definition of devolution they are working to. We talk about taking powers from Brussels to the UK and giving them to the devolved Administrations—but, no, their definition of devolution is to send them right back over to Brussels and have no control over them whatever. That is because the European Union is supposedly some kind of beacon and fount of progressive politics against a domineering United Kingdom. Well, they should tell that to the political independence campaigners in Catalonia, many of whom are political prisoners now, and one of whom was barred from public office yesterday, at the will of the European Union.
I have 10 seconds left, so I will finish by saying that I wholeheartedly support the Bill and its provisions to deliver our levelling-up agenda for constituencies across the country.
Karin Smyth
The last time I bought a second-hand car, the first thing I did was make sure it was roadworthy, legal and in line with the legislative provisions of this country.
I have followed this debate very closely, speaking both on Second Reading and in Committee, and I say yet again that we have had more heat than light. We started off—let us not forget that it was the Secretary of State for Northern Ireland, and nobody else, who started off—by saying that the Bill would breach international law. It was not the Labour party that said we would accept everything the EU says; it was from the Dispatch Box that he said the sentence that in fact has put this entire Bill under a cloud.
The Government have got themselves in a terrible mess on devolution. A key pillar of devolution is setting priorities in key areas, but, as the explanatory notes to the Bill say, clauses 46 and 47, which aim to provide financial assistance, fall
“within wholly or partly devolved areas”.
That is clearly an area of disagreement.
In parallel with the Bill, we are waiting for Lord Dunlop to report on the UK Government’s Union capability. At the Public Administration and Constitutional Affairs Committee a few weeks ago, the Chancellor of the Duchy of Lancaster said that that would come before this Bill hits the statute book. It is clearly, again, putting the cart before the horse.
We have to admit and understand the asymmetry across the Union given the size of England. It is not hard for us to try to do that. I am somebody who thinks that, despite our Union being forged in conflict, with a very difficult history, it is actually precious. It is an exemplar of what is good about politics, democracy, how we can come together with the hard graft of compromise and the ability of us as politicians to evolve our positions and reflect change over time. However, that has to be based on respect.
It is clear that the heavy-handed way in which the Government have introduced this Bill—and, I have to say, many of the speeches given to Conservative Members to read—has not appreciated such respect or the fragility of the Union. We could have had minimum standards included in this Bill, and we could have had the frameworks put on a statutory footing. It could have been done very differently, and that is a source of great regret.
This is not just an economic Bill, as we were sold it in the first place; it is a deadly serious constitutional Bill, and it is deeply problematic. I would like to speak more about Northern Ireland, but I cannot given the time. Again, it was deeply irresponsible of the Secretary of State for Northern Ireland to herald the Bill in the way he did. We know the situation is fragile and we know that Brexit creates difficult problems on the island of Ireland, and it behoves all of us to dial down the rhetoric and recognise that we are now in for a very long haul on the processes to make this work.
Whether in the Joint Committee, the specialised committee, the joint working group, strands 2 and 3 of the Good Friday/Belfast agreement, the British-Irish Council or the British-Irish Parliamentary Assembly, of which I am proud to be a vice-chair, we are not able to meet at the moment as parliamentarians. That is a real problem because we are not able to talk with people with whom we disagree fervently, but with whom we need to make peace across these islands.
With our demise in the EU, the fact that the 25-odd meetings a day we had as British and Irish parliamentarians —we do have many more common interests than with the rest of the EU—are lost and that those relationships are about to fall away is something the Government need to take much more seriously. In 1990, we started forging these agreements as parliamentarians across these islands, and that was when we started to develop the peace that came some eight years later.
The Government must treat not only the regions and parts of the United Kingdom with much more respect, but they must now take much more seriously the implementation of strands 2 and 3 and the relationship with the Irish Government. We know that there are more things to come with tariffs, and so on, and the Government need to take much more heed of that.
Andrew Bowie
It is a pleasure to speak in this debate on this vital Bill, as it was when I spoke on Second Reading and in Committee.
Contrary to popular belief, I have a lot of respect for my colleagues on the Scottish National party Benches. Their view about the future of Scotland is very different from mine, but I respect their view. I respect the fact that they come down here to improve the lives of Scots in their particular way, as I hope they respect the fact that, from my perspective, I believe I am doing the same, although with a Conservative bent. That is especially the case with the spokesperson for the SNP today, the hon. Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry), which is maybe why I was so disappointed by the tone he struck in his speech. He did not take very much instruction from my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) about the overuse of hyperbole.
Maybe that is also why I am a little perturbed by SNP Members’ opposition to what is a very good Bill—a Bill that is pro-business, pro-consumer and ultimately pro-Scotland. I know they will not take my word for that—I understand that—but maybe they will take the word of the CBI, which said that protecting the UK internal market is “essential”, and that:
“Preserving the integrity of the internal single market—the economic glue binding our four nations—is essential to guard against any additional costs or barriers to doing business between different parts of the UK.”
Or maybe they will take the words of the Scottish Retail Consortium, which said:
“Scottish consumers and our economy as a whole benefit enormously from the UK’s largely unfettered internal single market.”
And I have already quoted Andrew McCornick, the president of the National Farmers Union Scotland, who said:
“NFU Scotland’s fundamental priority, in the clear interest of Scottish agriculture as well as the food and drinks sector it underpins, is to ensure the UK Internal Market effectively operates as it does now.”
That is what this Bill does: it underpins and cements in statute the existence of our most important market—the internal market of our United Kingdom.
Alan Brown
It is a kind of pleasure to follow the hon. Member for West Aberdeenshire and Kincardine (Andrew Bowie). He strikes a conciliatory tone and he sounds reasonable, but the bottom line is that he talks complete tosh. Nobody in the SNP is arguing against preserving the UK internal market, but this Bill does not preserve the internal market; it actually undermines Scotland’s position, because it means we can be forced to accept conditions imposed on us by Westminster. It undermines devolution for the very same reason.
The hon. Gentleman says that the Bill allows the UK Government to spend more money in Scotland. That is bypassing the devolution settlement. There is nothing to stop the UK Government working with the Scottish Government at the moment to give the Scottish Government more money to spend on infrastructure and to discuss with them our needs in Scotland.
The hon. Gentleman supports a Prime Minister who in the past has said:
“A pound spent in Croydon is of far more value to the country than a pound spent in Strathclyde.”
A Prime Minister who wanted the Barnett formula scrapped. A Prime Minister who said:
“I do think it is pretty monstrous that you have free care for the elderly in Scotland and no tuition fees…when you still get considerable subsidies from the rest of the UK”.
Where is the respect for devolution and for the Scottish Government making their own policy decisions in Scotland? It is non-existent.
As we have heard, clause 46 is the biggest power grab ever, allowing the UK Government to impose spending decisions on Scotland, bypassing the elected Government of Scotland. We have heard that it will be additional money, but where is the proof? This allows the Tory Government to cut the Scottish block grant and then spend that money for its own political gain, pretending that it is top-up money when it is not. It is a con trick.
The first sentence of clause 46 includes the provision:
“A Minister of the Crown may….provide financial assistance to any person”.
Given the Tory track record—as we have heard, they have awarded a ferry contract to a company with no ferries, awarded PPE contracts to their cronies and outsourced the track and trace scheme, for example—how can we trust their spending judgments and their integrity to spend money in Scotland, supposedly for our benefit?
Scotland previously relied on EU structural funds to help to plug shortfalls from Westminster, and now we are supposed to trust the UK prosperity fund, which sits in the Department of English communities and local government, managed by a Secretary of State who ploughed the English towns fund money into Tory marginal seats and who made an unlawful planning decision to save a Tory donor millions of pounds. There is no way we can trust him to look after the needs of Scotland. We cannot trust the Tory Government with clause 46 and, to rub salt in the wounds, clause 47 allows returns and punitive interest to be applied to any spending that comes through clause 46.
Clause 48 allows Westminster to decide what is and is not allowed with state aid. Let us look at farming, for example. The Scottish Government may wish to pay headage figures for lamb and beef production, but the UK Government could overrule that if they do not support English farmers in the same way. If we get to the stage where the free marketeers have their way and UK Government state subsidy is eliminated for certain sectors, by default, the Scottish sectors will also have their rug pulled from under them because of state aid rules. How does that respect devolution? When it comes to farming, the UK Government have form, previously having stolen the common agricultural policy convergence uplift money from the EU.
We know the risk of imports of chlorinated chicken and hormone-injected beef. However, Argentinian beef could come in and undercut the market. Genetically modified crops could be imposed in Scotland. We have more robust climate change targets that could now be overruled by Westminster. The Government might impose this Bill on the Scottish Parliament against its will, but they are going to lose the independence argument.
Marco Longhi (Dudley North) (Con)
I rise to speak in support of the Government’s Bill and their amendments. This Bill exposes an inherent weakness in the withdrawal agreement—namely, that while the EU and UK Government must use best endeavours and act in good faith to reach an agreement, it does not spell out a clear course of action if either or both of those criteria are not met. We all know that the EU has become accustomed to a United Kingdom that repeatedly comes back to the table asking for an extension, and maybe this is why the EU’s format of negotiation is a sequencing one, meaning that it agrees to move forward only once an agreement has been reached on a previous matter. This has the effect of incurring huge delays, and the EU’s unwillingness to multitask must have a purpose—namely, continuous delays desirable to the EU and damaging to the UK’s prospects of a good deal.
Is the sequencing approach to negotiating a demonstration of using best endeavours or negotiating in good faith? I submit that it is not. It is now clear to most objective observers that the EU’s current interpretation of the Northern Ireland protocol is to use it as a lever in the negotiations. How is that a demonstration of negotiating in good faith? This Bill will ensure that Northern Ireland remains part of the UK’s customs territory and that Northern Ireland businesses retain unfettered access to GB markets. I must, however, place on record that more needs to be done in relation to Northern Ireland, having heard very powerful and compelling speeches from Unionist colleagues today and previously.
We know that the withdrawal agreement provided for the Joint Committee to set out heads of terms of a future deal, but the prospect of there being a timely and full agreement now appears unlikely. Why does the EU fail to agree at the Joint Committee on a single exemption from controls and tariffs for any goods flowing between GB and Northern Ireland? Is that behaviour consistent with best endeavours and good faith? Again, I submit that it is not. Why is it failing to agree exemptions at the Joint Committee on food checks for food moving between GB and Northern Ireland when we have been a member of the EU for 40 years and set standards ourselves? However, more fundamentally, what country and what Government in their right mind would devolve such fundamental sovereign powers to a foreign entity so that it would have the right to decide whether we can move our own food around our own Union of nations, as we have done for centuries? If we do not deliver this Bill, the EU will also have jurisdiction over how state aid decisions are made, for example on bail-outs related to covid or any future crisis.
For all those reasons, the Bill is about the delivery of Brexit and about sovereignty. It puts into law the ability for the Government to take action if a deal is not agreed. It delivers on an instruction that the good people of Dudley, and across our Union, gave this place not only in the 2016 referendum but at the last general election. We should, and must, press on with this.
Tracy Brabin (Batley and Spen) (Lab/Co-op)
The debates have been robust and challenging, and I have learned so much about Scottish politics. It has been a pleasure to listen to the sibling rivalry across the House. I have learned a great deal—thank you.
This evening we will be asked to vote on a Bill that moves us towards a situation in which the Government will break their own international treaty obligations. That will make negotiating future deals even harder, at a time when the Government should be focusing on tackling covid rather than reopening Brexit battles. However, I am encouraged by the number of amendments and new clauses in the names of my right hon. Friend the Member for Doncaster North (Edward Miliband) and my hon. Friends the Members for Manchester Central (Lucy Powell) and for Sheffield Central (Paul Blomfield), and all those who have worked tirelessly to try to improve the Bill.
New clause 3 would place on the Government a duty to consult, monitor, report on and review parts of the Bill, including the shared prosperity fund. That is incredibly important to my constituency, which is in desperate need of levelling-up opportunities. My constituents have grown weary of glitzy marketing campaigns such as the northern powerhouse or social mobility, which have failed to deliver meaningful and widespread opportunities for them and their families. New clause 3 would militate against the shared prosperity fund going the same way, because Ministers would have to return to the House to update hon. Members. That report would allow us to examine whether the internal market will deliver desperately needed opportunities across our country. Let us not forget that the Centre for Cities called the UK
“the most geographically unequal developed economy in the world”.
The new clause would also require oversight of any cynical attempt to use the shared prosperity fund as a reward for Conservative MPs in red wall seats.
There is an urgent need to bring new jobs and development out of the south-east and into communities that have talent, people, and enthusiasm but are in need of opportunities. If we are to spread growth around the country in a consistent way, the power to do that must be in the hands of local leaders. By the time the Government report back, we should not still be debating whether the Bill strips devolved authorities of power and undermines the Union. Instead, we should be talking about how it places opportunity in the hands of local representatives—the very people who work in those communities, and know them far better than centralised Whitehall Departments ever could.
The shared prosperity fund replaces the EU structural fund, which many parts of our country benefited from. In Yorkshire and Humber, that fund was about €796 million. Currently, when drawing down resources from that fund, priorities for support funding need to be set locally and delivered by those engaged in the projects locally. The Government should deliver the fund by building on that principle of engagement, and by empowering our devolved Administrations, local authorities and elected mayors. The Government must trust our regional leaders to do what is right for their communities.
The Bill is about Britain’s reputation and position in the world. It is also about how we serve our communities better and ensure that our prosperity is shared properly across our country, on the basis of what would have been received had the referendum result been different.
A number of new clauses and amendments would improve the Bill, and I will be supporting them fully today.
Mary Kelly Foy (City of Durham) (Lab)
As a member of the Northern Ireland Affairs Committee, and someone with family roots in Ireland, I have taken a key interest in the Government’s manoeuvrings over the Northern Ireland protocol and the United Kingdom Internal Market Bill. I am concerned, not especially for the reputation of Her Majesty’s Government, but for people on both sides of the Irish border, many of whom are very worried about the potential return of a hard border, the erosion of the principles of the Good Friday agreement, and all that that might mean.
Jerome Mayhew (Broadland) (Con)
Clause 46 has been the subject of much heated debate in this Chamber, yet when I read it, it seems innocuous enough. It provides power for a Minister of the Crown to provide financial assistance to promote lots of good things—economic development, infrastructure, cultural activities and sport—yet this has caused such seeming offence to the nationalists in Scotland that they have tabled amendment 18 to do away with the power in its entirety.
The SNP talks of a power grab, and yet it is an incontrovertible fact that not a single power held in Edinburgh, Cardiff or Belfast is being removed. In fact, the opposite is taking place—more than 70 powers currently held in Brussels are being devolved, which the SNP would like to give back to the EU. It is true that not every power currently held in Brussels is passing to the devolved Administrations. The reason is that the Government are properly applying the constitutional devolution settlement between the four nations, and quite right too.
I have heard the Scottish nationalists assert that clause 46 goes against the principles of devolution, but the opposite is true. Devolution in Scotland was devised by the late right hon. Member for Glasgow Anniesland. As the father of devolution, Donald Dewar set out his vision in the 1997 White Paper “Scotland’s Parliament”, which said:
“Westminster will continue to be responsible for those areas of policy best run on a United Kingdom basis.”
It goes on:
“By preserving the integrity of the United Kingdom, the Union secures for its people participation in an economic unit, which benefits business, provides access to wider markets and investment and increases prosperity to all.”
That is the vision that Scots backed in 1997, and it is exactly the approach that the Government are following in clause 46.
To be clear, this is not money repatriated from the EU, nor is it money taken from the devolved Assemblies. This is money granted by the Parliament of the United Kingdom to be spent across the United Kingdom. This is money that is needed throughout our country. The response to covid-19 is the most recent example of why we all benefit from this power residing at UK level and as the devolution settlements require.
To cushion the profound economic shock of the virus, the UK Government put in place a truly monumental system of business and employment support, in addition to their spending allocations to the four nations. In Scotland alone, nearly 800,000 jobs—almost a third of the entire workforce—were protected by the furlough scheme and the self-employment income support schemes. In addition, a minimum £12.7 billion has been provided, including £6.5 billion to Scotland, on top of the spring Budget—a 25% increase on pre-virus spending levels.
How do we have access to that money? It does not come from our financial reserves as a nation. Sadly, it comes from the UK Government’s ability to raise debt at very low interest rates because the markets have faith in the financial strength of this United Kingdom. It is the strength created by a unity of 68 million people with the financial firepower of the City of London and Charlotte Square combined. To pretend otherwise would be to perpetrate a fraud on the people of Scotland, Wales and Northern Ireland.
There are arguments for independence, but to remove the powers of the UK Government to provide ongoing financial assistance to every part of the United Kingdom would be a huge disservice to the people of Scotland. And for what reason? To promote a nationalist agenda, even at the cost of support for the people of Scotland.
Bill Esterson (Sefton Central) (Lab)
The Chancellor of the Duchy of Lancaster described the breaching of international law as a “safety net”. That breaching of international law is set out clearly as being such in article 5 of the withdrawal agreement that this Government signed up to, put to the British people and passed in legislation. There is no shadow of a doubt that even bringing this legislation to the House means breaching international law, with all the consequences that flow from that.
To call this a safety net is entirely wrong. It is anything but that. There is nothing safe in the breach of international law whatsoever, as the Minister well knows. The breach of international law invites retaliation under the terms of the World Trade Organisation. It invites us being regarded as a pariah. It invites others to say that we are in no position to criticise those who routinely break international law. It undermines this country’s fine reputation, as set out by Margaret Thatcher—revered by all Conservative Members—who said that Britain is nothing if not a country that sets an example to other countries. It undermines the promised negotiations for deals around the world, including the fundamental negotiation right now with the European Union. We were promised by this Government—by their Prime Minister—that 80% of our trade would be covered by international trade agreements after Brexit had been concluded. What is the figure now? It is 8%—that is all they have managed, not the 80% they promised. The safety net has a great big hole in it; it is nothing of the kind. What of the Prime Minister, who described it as a safety net as well—as a means of preventing this fanciful blockade of Great Britain to Northern Ireland trade? If that were true, why is there nothing in the Bill that deals with this alleged shortcoming?
No safety net is needed, either, because the dispute resolution mechanisms set out in the withdrawal agreement and in the Northern Ireland protocol provide everything that we could possibly need. If those protections are followed step by step, we stay within international law, so why are the Government so keen to go beyond that? The right hon. and learned Member for Torridge and West Devon (Mr Cox) set out what is already provided—I remember; I was here—when he stood at the Dispatch Box and described the process as providing a clear and lawful set of responses, and he was right to do so.
We should not be going down this road. The agreement was signed, it was promised to the British people, and the Prime Minister told us that it was in perfect conformity with the Northern Ireland protocol. This Bill is not needed in its current form. The Government should take out the illegal actions that they are proposing and they should be honest with the British people.
James Sunderland (Bracknell) (Con)
The first duty of any Government is to protect their people from existential threats: it is called defence of the realm. Given that this overrides all other considerations, we need to see this Bill against the backdrop of our negotiations with the EU. It is not only a necessary piece of legislation in its own right but provides an insurance policy against the EU seeking to divide the Union or subjugate our right to exist as a sovereign trading nation.
The central premise of the Bill is to provide clarity over the internal market, to shed regulation, and to apportion powers to the home nations. This is about not just life after Brussels but supporting countless jobs and livelihoods across our whole country. Given that seamless trade between the devolved nations is proven and sacrosanct, there is no question but that we are better off together within the Union and that those who seek to divide us are not working in our nation’s best interests.
I subscribe to the Government’s insistence that the new powers in the Bill seek to protect peace in Northern Ireland, the integrity of the Good Friday agreement, the viability of the internal market, and the importance of the Union. I am also clear that there must not be a hard border between Northern Ireland and the Republic, and that pragmatic measures are needed to reinforce the sanctity of what has been achieved by politicians on all sides. To be frank, the EU does not have a trump card in this regard, and it is for the UK alone to decide what is best for the UK.
New clauses 4 and 5 are pragmatic; clarifying the role and scope of the Competition and Markets Authority within the wider protocols is necessary. Given that, for example, Northern Ireland exports 1.6 times more to the UK than to the EU and imports 2.5 times more from the UK than from the EU, we must maintain Northern Ireland’s integral place in the UK internal market and within its customs territory in the same way that we need to maintain a similar level of integrity for England, Scotland and Wales.
On new clauses 1, 2 and 3, the Bill already contains the safeguards that are needed to uphold the independence of the courts, uphold the rule of law and implement the withdrawal agreement—which, of course, the UK will do. I do not believe it is necessary to impose the environmental safeguards required by new clause 6 for the simple reason that the UK is already at the cutting edge of the green agenda, and that financial assistance to any part of our Union should not be dependent on a climate and nature emergency statement. That will prohibit, rather than enable.
Mr Deputy Speaker (Mr Nigel Evans)
Order. I wish to inform the House that I shall call the Minister at 6 pm to respond to this lengthy debate in five minutes, and then the questions will be put.
Kirsten Oswald (East Renfrewshire) (SNP)
This Bill is shameful and the Conservative party is shameless. The Bill is misconceived, ill-advised and designed to wholly override any notion of devolution. The Welsh Government have described it as
“an affront to the people of Wales, Scotland and Northern Ireland, who have voted in favour of devolution on numerous occasions.”
The Bill seeks to break international law and to break devolution.
One of the many vexing things about this brazen, law-breaking, power-grab Bill is when the UK Government try to suggest it is not so or that there is nothing to be concerned about, as if we should just disregard clear, undisputable facts. Just look at clause 46: it is a mucky muckle power grab. Plainly, the UK Government either know perfectly well what they are doing and they are intent on breaking international law, undermining the Northern Ireland protocol and stripping powers away from the devolved Administrations, or they are utterly and shamefully incompetent. It has to be one of those two things, or perhaps both. What it cannot be, and what is frankly an insult to the intelligence of people watching this charade in Scotland, is the nonsense that some Conservative Members engage in when they suggest that, despite all the evidence to the contrary, their UK Government is somehow exceptionally above international law. That is the dangerous exceptionalism that sits at the heart of the Bill and that is what lies behind their plans to break international law and ride roughshod over the devolved Governments.
We will all suffer for it if the UK Government have their way, because—look at clause 48—these plans open the door to their race to the bottom, to bargain-basement Britain. That is regardless of the many voices calling for them to change tack—the Scottish Government, the Welsh Synod, the Northern Irish Assembly, the General Teaching Council for Scotland, the NFUS, the STUC, former Prime Ministers and the Chair of the Public Administration and Constitutional Affairs Committee. I could go on all night. In the eyes of the UK Government, they are all wrong. I am afraid that is not credible. This Trumpian truth-twisting is all part of their plan to ride roughshod over the law, the Sewel convention and Scotland’s ability to make the decisions that are right for the people of Scotland. Of course, that holds for Wales and it holds for Northern Ireland, as we heard last week when we were discussing part 5.
I have not agreed with the right hon. Member for Maidenhead (Mrs May) on many occasions, but she hit the nail on the head last week when she called the UK Government out on their disregard for law and good faith. This UK Government cannot be trusted. They cannot be trusted on Scotland, on devolution, on standards and on upholding international law. In fact, the Bill shows they cannot be trusted at all. It is no wonder that the Scottish Government are unable to recommend legislative consent.
We were told that we should lead, not leave, that we are a partnership of equals. Actions speak louder than words, and the actions of this reckless UK Government speak loudly and clearly of the pressing need for Scotland to steer another course as far away from the direction of the UK Government as possible.
Aaron Bell (Newcastle-under-Lyme) (Con)
It is a pleasure to follow the hon. Member for East Renfrewshire (Kirsten Oswald), although I fear there is very little common cause between her speech and mine. The internal market is a shared asset, and we all want it to work effectively. As we recover from covid, we must ensure that our economy becomes stronger than ever. That is why the Government have introduced this legislation: to guarantee the continued functioning of that internal market, to ensure that trade remains unhindered in the UK. That is why I support the Government amendments and the Bill as a whole, and I urge the House to reject the Opposition amendments.
It is apparent that we need a clear state aid policy that resides in Westminster, because, as much as the SNP likes to pretend this is the English Parliament, all parts of the UK are represented here, and this place is the only place with the legal and moral authority to act on behalf of the whole of the United Kingdom. Also, our ability to develop trade relations with other countries depends on our having a co-ordinated approach to state aid across our own country, the United Kingdom.
I do not believe that the Bill, or any of the specific provisions in question, undermine our commitment to the Good Friday agreement. Rest assured that those of us on this side of the House remain fully committed to the provisions of that agreement. We will not allow it to be undermined by any possible failure of negotiations, nor by any bad faith interpretations of clauses in the Northern Ireland protocol, and I pay tribute to the speeches from my hon. Friends earlier in the debate.
I will touch on the controversy over the key clauses in part 5: clauses 42, 43 and 45. I am no lawyer, and there are many Members in this House more learned than I am, but it seems to me that international law is breached all the time. The recent actions of the French navy in the channel breached the UN convention on the law of the sea. Where was the pearl clutching from the Opposition Benches then? The German Constitutional Court ruling in May set aside a ruling of the European Court of Justice and brought that international law into question. The European Union itself was only too happy to set aside its own treaties when the stability of its own union was put at risk during the financial crisis.
It seems, as my constituency neighbour, my hon. Friend the Member for Stone (Sir William Cash), put it earlier, international law is, in fact, a mixture of law and politics; I think he said it was 40% the former and 60% the latter. That does not mean that we should not be mindful of our international reputation, but our friends and allies around the world would not expect us to accept bad faith interpretations of the Northern Ireland protocol. They would not expect us to impose unreasonable restrictions on our own internal sovereignty.
That is why the clauses are in the Bill. They are, as my right hon. Friend the Minister for the Cabinet Office said, a safety net in the event of a failure of negotiations. I believe, too, that they strengthen our hand in those negotiations. The people of Newcastle-Under-Lyme expect their representative to stand up for them, but they also expect him to stand up for Britain, and that is what I am doing by backing the Bill.
I do not believe, therefore, that Government amendment 66, which is now incorporated in clause 54, was strictly speaking necessary, though I pay tribute to my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), whose amendment inspired it. However, I believe that incorporating that amendment was wise, because by leaving the final decision about these matters in the hands of this Parliament we are making it clear where sovereignty in these matters, and in this country, truly resides.
Stephen Kinnock (Aberavon) (Lab)
Every once in a while, a piece of legislation comes that goes to the very heart of our character as a country. The internal market Bill is one such piece of legislation. It goes to the very heart of our economy, our national identity and our constitution. There is no doubt that the legislation is necessary. We need a strong internal market so that businesses can trade freely across the UK’s four nations, which will be vital for our shared prosperity, and we want the Government to get on and deliver what they promised: an oven-ready Brexit deal in place for 1 January, so that we can get on with tackling the coronavirus crisis.
However, whether seen through the prism of the economy, of our national reputation or of our constitution, the Bill is fundamentally flawed. On the economy, it creates the conditions for a race to the bottom. Mutual recognition of standards without common frameworks in place simply opens the back door to hormone-injected beef and chlorinated chicken becoming the norm.
Internationally, the Bill will severely damage Britain’s standing in the world. The Government have freely and openly confirmed that the Bill will breach international law by overriding elements of the withdrawal agreement signed only nine months ago by the Prime Minister himself. As the Foreign Secretary himself stated in January:
“global Britain is…about continuing to uphold…our heartfelt commitment to the international rule of law…for which we are respected the world over.”—[Official Report, 13 January 2020; Vol. 669, c. 768.]
Our country’s reputation is on the line. Surely, we want to be seen as a trustworthy nation with which other countries can do business in good faith. Surely, we want to strike good trade deals across the world. Surely, we want to be able to stand up to the world’s authoritarian regimes with credibility. I know many Government Members are extremely concerned about the damage the Government are doing to Britain’s standing in the world. I hope that that concern will be reflected in the Division Lobby this evening.
As a Welsh MP who believes passionately in a strong Wales within a strong United Kingdom, I am profoundly concerned that the Bill risks the integrity of our Union. Devolution is based on the principle of informed consent, but the UK Government are hellbent on cutting the devolved Administrations out of the conversation. Surely, one of the lessons of the covid crisis is that the overcentralised control freakery of this Government is simply not working. The days of being able to sit behind a desk in Whitehall, pull a lever and expect it to deliver the desired outcomes in places such as Aberavon are over. Modern Government should be built on consultation and co-operation, not top-down diktat. As chair of the all-party group on post-Brexit funding, I am profoundly concerned that this approach will be applied to the shared prosperity fund. There is a risk that the UK will undertake both a money grab and a power grab from the devolved nations with regard to how that development funding will be spent. Further still, we hear that the Government plan to funnel money directly into Conservative seats in what can only be described as the worst sort of pork-barrel politics.
The Prime Minister loves to present himself as a Churchillian patriot, but is it patriotic to divide our country? Is it patriotic to tarnish our country’s reputation overseas? Is it patriotic to undermine our economy and the standards we hold so dear? Absolutely not. The key elements of the Bill are holding our country back. We need competence and consensus, not bluster and bullying. We need to deliver on this deal and move forward.
Taiwo Owatemi (Coventry North West) (Lab)
I am pleased to be able to contribute to the debate.
This House and all our constituents were promised an oven-ready deal. Now, it seems as though the Government are not only failing on that promise, but increasingly showing that there was nothing in the oven at all. Britain’s greatness is built on our values and the fact that we have long stood up for the rule of law. However, the Bill represents the disregard of an international treaty the Prime Minister himself personally negotiated and signed up to. If the UK Government can break international laws with their former friends and allies, what will they do to others? Is that the basis and dreadful reputation on which we are seeking to negotiate and agree trade deals with others?
The Government promised to get Brexit done and indeed they should: not by any means necessary, but with the strongest protections in place for my constituents in Coventry North West and for constituents across the UK; and not through a no-deal Brexit, which would decimate jobs and businesses across the country, causing untold harm to our own communities. We need a Brexit deal that will protect jobs and safeguard our health and social care sector. Research from the University of Sussex estimates that the failure to secure a Brexit deal would reduce exports in the manufacturing industry by up to 20% and reduce jobs. The Prime Minister promised to protect our manufacturing industries, which are crucial to our economy and any recovery we hope to see in Coventry. Even a former member of his own Government, Margot James, appealed to the Government to support manufacturers in Coventry, which are already strained by the coronavirus pandemic. How can the Prime Minister safeguard jobs and commit to job creation in manufacturing in my constituency if he is committed to selling the UK short on delivering a Brexit that my constituents are proud of?
Coventry North West and the west midlands in general stand to lose the most from the Government playing fast and loose with both UK and international law. A University of Oxford study found that car production could halve by the middle of the next decade if the UK crashes out of the EU with no deal. We are already losing manufacturing jobs in Rolls-Royce Annesley, so what is next? We have so many thriving small businesses in Coventry North West, but the Bill does not serve them and makes a catastrophic no-deal Brexit more likely. Nor does it serve our health and social care sector, and my caseload attests to the fact that the Government do not have their eye on the ball. Breaking international law will severely impact the UK’s ability to negotiate trade agreements with countries that set a higher bar, as well as to protect the health sector and public health in the UK and to enhance health globally.
Despite what the Government would like people to think, Labour wants a Brexit deal negotiated so that we can press ahead with tackling issues such as the coronavirus, securing important trade deals—
Mr Deputy Speaker (Mr Nigel Evans)
I am terribly sorry, Taiwo. We have to move on.
Paul Scully
I thank everybody who has spoken in the debate, and I once again thank all right hon. and hon. Members who have engaged with the Bill during its stages. This is likely to be my last contribution on this particular Bill—[Hon. Members: “More!”] I know, but I only have five minutes, and I want to pay tribute to my colleagues, the Minister of State, Cabinet Office, my hon. Friend the Member for Norwich North (Chloe Smith), and the Minister of State, Northern Ireland Office, my hon. Friend the Member for Worcester (Mr Walker), who have played an amazing role and worked so hard. I also pay tribute to my Bill team—Jon Robinson, Jeff Yen, Satchi Mahendran, Dom Entwistle, Henry Hutton, Phoebe Gould, Dominic Bull, James Frisby and, in my private office, Ollie Benbow-Wyke.
Those of us on the Government Benches have heard and participated in the passionate debates on the Bill during the past two weeks, and I pay tribute to all their considered contributions. My right hon. and hon. Friends have made some impassioned speeches about the need for business certainty and about why the Union is so much better together than apart.
The debates have obviously been passionate, because of the importance of the Bill, but some of the other speeches in this Chamber today, and on some of the Committee days, have been somewhat circular. We have heard that there will apparently not be a US trade deal, but that we will get chlorinated chicken. We have heard that we love devolved spending, but that we would rather it be done from Brussels. We have heard people celebrating 62 countries having left the UK at various points in their recent history. Not one of those has the UK pound or wanted to join a bigger political union such as—oh, I don’t know—the EU, for example.
None the less, we want to make sure that we can get on with the Bill, because it is so important to continuing to provide certainty for businesses as we seek to recover from covid-19, prepare for the opportunities after the transition period and protect jobs. The Bill will ensure UK businesses can trade across our four home nations in a way that helps them invest and create jobs, just as they have for hundreds of years. We will do that in a way that supports and enables one of the largest transfers of power in the history of devolution, while maintaining that certainty for businesses. That will be done in a way that preserves our high standards, whether environmental, food or animal welfare, and in any number of other areas. It is therefore crucial that we pass this Bill, and I commend it to the House.
Mr Deputy Speaker (Mr Nigel Evans)
Before I put the question, there are likely to be Divisions, so, please, will only Front Benchers go out through the door in front of me? All Back Benchers must leave behind me, go down to Westminster Hall and join the queue. I am going to ask the Doorkeepers and the Whips to enforce that strictly, because we have to have social distancing.
I apologise to the seven MPs who were unable to get in. If anybody wishes to withdraw from Third Reading, please come and see me during the Division.
Question put and agreed to.
New clause 4 accordingly read a Second time, and added to the Bill.
New Clause 5
Office for the Internal Market panel and task groups
“(1) The CMA may authorise an Office for the Internal Market task group constituted under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 to do anything required or authorised to be done by the CMA under this Part (and such an authorisation may include authorisation to exercise the power conferred on the CMA by this subsection).
(2) Schedule (Constitution etc of Office for the Internal Market panel and task groups) contains provision about the Office for the Internal Market panel and Office for the Internal Market task groups.” —(Paul Scully.)
This new clause enables functions of the Competition and Markets Authority under Part 4 to be carried out on the authority’s behalf by Office for the Internal Market task groups constituted under Schedule 4 to the Enterprise and Regulatory Reform Act 2013: see NS1. This new clause would be inserted after Clause 28.
Brought up, read the First and Second time, and added to the Bill.
New Clause 1
Withdrawal Agreement and Rule of Law Duty
‘(1) An appropriate authority exercising any function to which this Part (Northern Ireland Protocol) applies must—
(a) respect the rule of law;
(b) allow for the possibility of judicial review of an enactment, decision, act or omission by the appropriate authority;
(c) use the provisions of Article 16 of the Protocol to protect the interests of the United Kingdom.
(2) An appropriate authority exercising any function to which this Part applies must comply with the obligations of the United Kingdom under international law.
(3) An appropriate authority exercising any function to which this Part applies must comply with—
(a) the requirement under Article 5 (Good faith) of the Withdrawal Agreement for the EU and the United Kingdom to assist each other in full mutual respect and good faith to carry out the tasks which flow from the Agreement;
(b) the requirement under Article 167 (Consultations and communications within the Joint Committee) for the EU and the United Kingdom to endeavour to resolve any dispute regarding the interpretation and application of the provisions of the Agreement by entering into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution;
(c) the requirement under Article 184 (Negotiations on the future relationship) of the Withdrawal Agreement for the EU and the United Kingdom to use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration of 17 October 2019 and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period;
(d) the requirements of the Good Friday or Belfast Agreement of 10 April 1998 between the Government of the United Kingdom and the Government of Ireland and the other participants in the multi-party negotiations, which is annexed to the British-Irish Agreement of the same date.
(4) An appropriate authority exercising any function to which this Part applies must comply with the Human Rights Act 1998.’ —(Lucy Powell.)
This new clause is intended to replace Clauses 42, 43 and 45 of the Bill, to require Ministers to respect the rule of law and uphold the independence of the courts and the practice of judicial review, and to require UK Ministers to implement the Withdrawal Agreement.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Mr Deputy Speaker (Mr Nigel Evans)
Before we come to new clause 6, I remind Back Benchers to leave behind me and Front Benchers in front.
New Clause 6
Economic development: climate and nature emergency impact statement
“(1) Any financial assistance provided under Part 6 of this Act for the purpose of economic development must take into account the overarching need for a sustainable strategy aimed at long- term national well-being.
(2) Every proposal for financial assistance under this Act must be accompanied by a climate and nature emergency impact statement.
(3) Responsibility for the production of the climate and nature emergency impact statement required in subsection (2) resides with the applicant for financial assistance.
(4) Responsibility for assessment of the climate and nature emergency impact statement required in subsection (2) resides with Ministers, who are required to publish this assessment for any successful proposal.
(5) The climate and nature emergency impact statement produced should take account of any carbon budget, climate, nature and environmental goals approved by the relevant Parliament.
(6) In subsection (5), the ‘relevant Parliament’ means—
(a) where the proposed financial assistance relates to a person in England, the House of Commons and the House of Lords;
(b) where the proposed financial assistance relates to a person in Scotland, the Scottish Parliament;
(c) where the proposed financial assistance relates to a person in Wales, Senedd Cymru;
(d) where the proposed financial assistance relates to a person in Northern Ireland, the Northern Ireland Assembly.” —(Caroline Lucas.)
The intention of this new clause is to ensure that those seeking financial assistance for economic development, etc under this Act are obliged to undertake a climate and nature emergency impact statement to ensure public money is only granted to development consistent with climate, nature and environmental goals and targets.
Brought up.
Question put, That the clause be added to the Bill.
Madam Deputy Speaker (Dame Eleanor Laing)
I inform the House that Mr Speaker has selected the reasoned amendment in the name of Ian Blackford.
The Secretary of State for Business, Energy and Industrial Strategy (Alok Sharma)
I beg to move, That the Bill be now read the Third time.
More than 150 right hon. and hon. Members have spoken during the passage of the Bill so far. We have had around 30 hours of often passionate debate, and I pay tribute to Members across the House for their contributions. The Public Bill Office has been unstinting in its support to all Members and officials across Government, and I am incredibly grateful for all its work. I particularly wish to thank the Minister for Small Business, Consumers and Labour Markets, my hon. Friend the Member for Sutton and Cheam (Paul Scully), the Minister for the Constitution and Devolution, my hon. Friend the Member for Norwich North (Chloe Smith), and the Minister of State, Northern Ireland Office, my hon. Friend the Member for Worcester (Mr Walker) who have ably steered the Bill through Committee and Report.
The UK internal market is the bedrock of our shared economic and social prosperity as a country. Since the Acts of Union, it has been the source of unhindered and open trade, which has supported growth and safeguarded livelihoods and businesses. It demonstrates that, as a Union, our country is greater than the sum of its parts.
Since 1973, EU law has acted as the cohering force for the UK internal market. In 2016, the British people voted to leave the European Union, which the Government delivered in January, and as we leave the transition period at the end of this year, the Government will leave the European Union’s legal jurisdiction once and for all. We need to replace this law to continue the smooth functioning of our centuries-old internal market, while of course also ensuring that the devolved Administrations benefit from a power surge from Brussels.
Mr Vara
The fact is that there is nothing in this Bill that in any way compromises the Belfast/Good Friday agreement. Does my right hon. Friend agree that it is deeply regrettable that some people, for political purposes, seek to unnecessarily scaremonger, and that they should desist from doing so?
Alok Sharma
My hon. Friend makes an important point, and I will come on to it. As I was saying, we need to replace the law to continue the smooth functioning of our centuries-old internal market, while also ensuring that devolved Administrations benefit from that power surge from Brussels. The Bill will do precisely that.
Our approach will give businesses the regulatory clarity and certainty they want. It will ensure that the cost of doing business in the UK stays as low as possible, and it will do so without damaging and costly regulatory barriers emerging between the different parts of the United Kingdom. I cannot overstate the importance of this economic continuity Bill, especially as we seek to recover from covid-19. It is ultimately designed to safeguard jobs and livelihoods, protect businesses, give choice to consumers and continue to showcase the United Kingdom as a beacon for inward investment. That is why this legislation is so vital.
My Department and I, along with colleagues across Government, have spoken to a large number of businesses and business representative organisations across the whole of the United Kingdom about our proposals to safeguard our internal market. Businesses have overwhelmingly backed our approach. The British Chambers of Commerce has stressed that
“A fragmented system would create additional costs, bureaucracy and supply chain challenges that could disrupt operations for firms across the UK.”
NFU Scotland has emphasised the importance of protecting the UK internal market, stating:
“NFU Scotland’s fundamental priority, in the clear interest of Scottish agriculture as well as the food and drinks sector it underpins, is to ensure the UK Internal Market effectively operates as it does now.”
I could go on. Make UK has noted that it is particularly important to manufacturers that they can trade simply and effectively across all parts of the United Kingdom. The business community is clear: we must continue to safeguard the sanctity of the seamless UK internal market.
The Bill also respects and upholds the devolution settlements—[Interruption.] The right hon. Member for Ross, Skye and Lochaber (Ian Blackford) says it does not. He will get a large number of powers—an unprecedented level of powers—back after the transition period. If he does not want them, he ought to stand up and say that, but the reality is that he is against this Bill because he wants to be shackled to the European Union forever. That is the reason he is against this—
Alok Sharma
The right hon. Gentleman says from a sedentary position that I am talking nonsense. He just needs to re-read his Second Reading speech and he will see that it is full of inaccuracies. We have engaged in good faith with the devolved Administrations throughout the passage of the Bill. It was very unfortunate that the Scottish Government decided to walk away from the discussions on the internal market last year and, as I said, we want to continue to work constructively.
Let me turn briefly to the Northern Ireland element of this business Bill, which has attracted a disproportionate amount of interest and commentary. I and every Member on the Government Benches stood on a manifesto commitment to ensure that Northern Ireland businesses and producers enjoy unfettered access to the rest of United Kingdom, and that in the implementation of our Brexit deal we would maintain and strengthen the integrity and smooth operation of our internal market. The Bill delivers on those commitments. We have also been clear that we must protect the gains of the peace process and maintain the Belfast/Good Friday agreement.
Sammy Wilson
The Secretary of State is absolutely right that the Bill has no impact at all on the Good Friday agreement, and, indeed, is only helpful to the economy in Northern Ireland—but only helpful in a limited way. He talked about access to the UK internal market for Northern Ireland goods going into GB, but will he say something about the opposite direction? Northern Ireland depends so highly on imports from GB, and yet there is no mention of safeguards to stop trade being blocked in that direction.
Alok Sharma
The right hon. Gentleman knows that discussions continue. He and I have had those discussions as well. But he makes the point that this is a business Bill, and I hope that every Member, like him, will support it on Third Reading.
We have taken these powers to ensure that, in the event that we do not reach an agreement with our EU friends on how to implement the protocol, we are able to deliver on promises in our manifesto and in the Command Paper. This is a legal safety net that clarifies our position on the Northern Ireland protocol, protecting our Union, businesses and jobs.
Fleur Anderson (Putney) (Lab)
The Irish Foreign Minister said recently that this Bill undermines the EU withdrawal legislation, has damaged trust between the Irish and UK negotiating teams, and is damaging Britain’s reputation globally. Does that give the Secretary of State any cause for concern?
Alok Sharma
This has been debated over the long passage of the Bill in this House. As the hon. Lady and other Members will know, we introduced an amendment in Committee that provides a break-glass mechanism that ensures that the safety net will come into force only if a motion in this House is passed with a requirement for a take-note debate in the other place. I hope that will allow her to vote for the Bill on Third Reading.
Alok Sharma
I will not; I am now winding up.
This Bill provides the certainty that businesses want and need to invest and create jobs. It helps to maintain high standards and choice for consumers while keeping prices down. It reaffirms our commitment to devolution, supporting one of the biggest transfers of power to the devolved Administrations. It allows the Government to invest further in communities across the United Kingdom. This is about levelling up across the whole of the UK and strengthening our precious Union, which some would want to put at risk. I am a Unionist, as is the right hon. Member for Doncaster North (Edward Miliband); neither of us are separatists. Above all, the Bill continues to preserve the UK internal market that has been an engine of growth and prosperity for centuries. In voting for this Bill, we protect our constituents’ jobs, businesses and livelihoods. I commend it to the House.
Edward Miliband (Doncaster North) (Lab)
I join the Business Secretary in paying tribute to the Public Bill Office for the work that it has done. I also profoundly thank my hon. Friends the Members for Manchester Central (Lucy Powell) and for Sheffield Central (Paul Blomfield) for the incredible hard work they did during the Bill’s Committee and Report stages. I am pleased to see the Business Secretary back in his place for the Third Reading of the Bill. I am afraid to have to report that the person deputising for him on Second Reading did not do a great job. Next time the Prime Minister asks to fill in for him, I suggest that he tells him to go elsewhere and he will do a very fine job, thank you.
Let me go to the heart of the debates around this Bill. We support the principle of the internal market, but there are two profound flaws at the heart of the Bill, and that is why we will vote against it tonight. On devolution, Labour Members believe deeply in our Union, but the strength of our Union lies in sharing power, not centralising it, and this Bill does not learn that lesson. It makes a choice to impose the rule that the lowest regulatory standard in one Parliament must be the standard for all without a proper voice for the devolved Administrations. I have read carefully the debate in Committee and on Report, and there has been no proper answer forthcoming from the Government about why they did not seek to legislate for the common frameworks, as they could easily have done. Nor can they explain why they are taking such broad powers over public spending in specific devolved areas of competence.
Joanna Cherry
The right hon. Gentleman is making a powerful speech. Does he agree that the great scheme of devolution of the illustrious former leader of the Labour party in Scotland and Scotland’s first First Minister under devolution, Donald Dewar, was that every power would be devolved unless specifically reserved? What is wrong with the Bill is that it gives the British Government the power to override devolved powers. That is the heart of the matter.
Edward Miliband
There is an important point here. To take the example of animal welfare or food safety, those powers remain devolved, but they are devolved in name only, because by imposing the minimum standard as the lowest standard for all legislatures, those powers are seriously undermined. I have to say to the Business Secretary that I fear that the Bill will only strengthen the hand of those who want to break up the UK.
On international law, nobody should be in any doubt about the damage already done by the Bill. I do not blame the Business Secretary, but this law-breaking Bill has been noticed around the world by not just the Irish Government, not just our EU negotiating partners, and not just Joe Biden and Nancy Pelosi, who the Government can dismiss. Even President Trump’s Northern Ireland envoy Mick Mulvaney visited the Republic of Ireland yesterday and said:
“I think anyone who looks at the situation”—
with the United Kingdom Internal Market Bill—
“understands there could be a series of events that could put the Good Friday Agreement at risk.”
When the Trump Administration start expressing concern about your adherence to international agreements and the rule of law, you know you are in trouble. That is how bad this Bill is.
Edward Miliband
I am going to carry on.
It is important to hear the words of the right hon. Member for Maidenhead (Mrs May) in her coruscating and brilliant speech in Committee. Government Members are rolling their eyes about the former Prime Minister. She said that,
“the Government are acting recklessly and irresponsibly, with no thought to the long-term impact on the United Kingdom’s standing in the world.”—[Official Report, 21 September 2020; Vol. 680, c. 668.]
That is what a former Prime Minister—the previous Prime Minister—of this country said.
Sir William Cash
Does the right hon. Gentleman accept that in fact, in the past, there have been substantial breaches of international law by Labour Governments as well as by other ones? Furthermore, does he believe that the Iraq war was lawful?
Edward Miliband
This is unprecedented in the following sense: the Government are coming along and breaking an international agreement they signed less than a year ago. I have heard the hon. Gentleman, and I have read the debates on the issue, and he certainly has not produced an example in any way remotely similar to what is happening in the Bill.
I want to develop my argument, because an important point has been understated in the debate since Second Reading. The clauses are not simply wrong, as so many hon. Members on both sides of the House recognise; they are not simply unnecessary, because the protocol has mechanisms to deal with the issues at hand; but there has been a notable event since Second Reading that has exposed the Government’s strategy even further, which is the cancellation of the Budget.
Let us recall the Government’s fig leaf designed to hide their embarrassment. The issue was at-risk goods travelling from Great Britain to Northern Ireland. The whole case made by the Prime Minister was that the Bill was necessary to prevent the blockade of goods from GB into NI. The threat was described as “extraordinary” and the very reason to break international law, but the measures, as we now know, to break the law in this Bill, do not, as he had to admit at Second Reading, deal with the issue of GB to NI trade.
The excuse was that GB to NI issues would be dealt with in the Finance Bill, as was explicit in the statement put out on 17 September by the Government, which said:
“Further measures will be set out in the Finance Bill, relating to tariffs on GB-NI movements, including the same Parliamentary process that the Government has committed to for the UKIM Bill.”
In case it escaped the House’s attention, the Budget has been cancelled and so has the Finance Bill. So where now is the mechanism to deal with the extraordinary threat that we face as a country? Can anyone on the Government side tell me where it is? The country faces an extraordinary threat that has to be dealt with, but the legislation we are considering does not cover it, nor does any legislation even in view.
I will give way to the Business Secretary if he would like to tell me how this will be dealt with. There is no answer—he would prefer not to. I do not blame the Business Secretary, because let us be clear what has happened here: the legislative hooligans in Downing Street who dreamed this up have moved on to something else, but the Bill is still with us, and so we are going through all this pain, all this grief, all this damage to our international reputation, and the central argument on which it is based is not even covered by any legislation.
What are we to conclude? Was this all a charade—a “dead cat” strategy, as I think it is known—to distract attention? Was it a trap designed to pretend that we were rerunning remain versus leave? Was it perhaps a Government strategy to pretend to their Back Benchers that the Government are willing to break the law in order to soften them up on accepting concessions in the endgame of the negotiations with the EU. Whatever the excuse, all of them reflect so badly on the Government.
We are at a grave national moment—our gravest for a generation, because of coronavirus. We are trying to conclude a Brexit deal, which is vital for our country. We need new trade deals, in which our word is our bond. Yet the Government play these appalling games, thinking so little of their Back Benchers that they think they can pull the wool over their eyes; willing to resile from a treaty that they signed, for a day’s headlines; playing fast and loose with the law for short-term gain.
The Bill will get its majority and go to the other place, but their lordships should know that, across this House, there is deep concern about it. That has been shown again and again by good people on both sides of the House in the last few weeks. I urge the other place to bring the Bill into compliance with the rule of law and salvage our reputation. But we in the House of Commons have a chance tonight to show our concern again. It is an indefensible Bill. It damages our country. It is wrong and self-defeating. I urge Members on all sides to oppose it tonight.
Sir Robert Neill (Bromley and Chislehurst) (Con)
The right hon. Gentleman spoke, as always, with great energy and passion. I sometimes regret that his successor as leader of the Labour party, the right hon. Member for Islington North (Jeremy Corbyn), did not show half as much energy and passion in making the case during the referendum; if he had, we would not need to be debating this Bill at all, but there it is.
The reality is that we must make sure that, as we leave the transition period, we have a working internal market, and I therefore support the Bill in principle. I am delighted to see the Business Secretary. I hope he takes on board a point that I know his junior Minister, my hon. Friend the Member for Sutton and Cheam (Paul Scully) has noted: as we build a working internal market, I hope we can find ways in which to expand it to other close parts of the British family that are aligned with and have great synergy with us. For example, the Crown dependencies—the Isle of Man and the Channel Islands—which are linked closely already to financial services and many other parts of our economy.
In particular—I declare an interest as chair of the all-party parliamentary group on Gibraltar—we should make sure that the overseas territory of Gibraltar has clear, free and unfettered access to the UK internal market. They stood with Britain, despite the fact that, like me, they did not want to be in this situation. We owe it to them to make sure that they are not allowed to become collateral damage, economically or in other respects, as a result of the decision that we took. I hope the Business Secretary is actively engaged with the Government of Gibraltar to find ways in which we can make sure that they are able to participate fully in that market and benefit from it.
It is well enough known that the provisions relating to Northern Ireland cause me and many others great concern in their original form. I am grateful for the approach that the Government have adopted, and for the clarifications of their approach and on the changes that they have been willing to make. I will not pretend that we have solved every problem there. I will not rerun the discussion we had on Report, but I gently say this: sovereignty power and reserved powers are generally best used sparingly, lightly and with great deliberation. I hope that, having taken certain powers, we will make sure through our negotiations: first, that we never have need to use them, because the damage would be real were we to do so; and, secondly, that we exercise them with restraint. Like it or not, and whether necessary or not, even accepting the Secretary of State’s proposition that we need a “break glass in emergency” provision, we do have to reflect that this legislation has, for whatever reason, created concern among many of our closest allies and neighbours—people with whom we need to engage.
I want to be in a position where we can, for example, advance the excellent Judge Joanna Korner’s candidature for the International Criminal Court with a clear hand, and say that we are genuinely committed to the rule of international law. I want us genuinely to be able to say in the Parliamentary Assembly of the Council of Europe and other places that we remain committed to the rule of law internationally.
Sir Robert Neill
I normally try to give way, but time is short; I hope that the hon. Gentleman will forgive me.
I hope that we will be able to say, as a number of hon. Friends of mine have been able to do in the Council of Europe, that we are—despite, for example, the difference over prisoner voting rights—committed to the rule of law. We must make sure that we do not allow anything to undermine that, because reputations take time to build. Ours is an excellent one in international legal circles, and we do not want that to be lost.
The Secretary of State made a fair point about the desire for business continuity and for the UK to remain a beacon for inward investment. As well as benign tax and regulatory regimes, the other—perhaps the most important—reason that people invest here is the fact that we are regarded as a safe jurisdiction in legal terms and a safe polity in which to invest, because we do not behave in an arbitrary manner. I therefore hope that we will be very clear that we will stick rigidly to the clarifications and caveats that we gave in relation to the use of any emergency powers, and that such powers will be used carefully, proportionately and without ousting the other obligations that we entered into through the withdrawal agreement and the protocol.
Let me turn to the other matter relating to business continuity. It is important that we rebuild and strengthen our international links for the practical reason that was mentioned by an Opposition Member on Report, and that is the need to go forward. Once we have left the provisions of the EU arrangements at the end of the transition period, businesses will need and want to have a ready, efficient and swift means of enforcing contracts and judgments upon contracts across the EU and with our neighbours. To do that, at the very least we have to join, as a matter of urgency, the Lugano convention. To achieve membership of the Lugano convention, we must have the consent of the European Union members of that convention. At the moment, the Commission is recommending withholding that consent. The European Free Trade Association members have consented.
It would be profoundly dangerous and damaging for British business were we not able to access Lugano, because of all the difficulties for any international contract that I have pointed out. It would be a huge disadvantage and would affect individuals: the woman seeking to get maintenance payments from the absent father, who is now in an EU country; or the person seeking to pursue a personal injury claim, where the driver of the vehicle that went into them is in a different jurisdiction. Rebuilding the bridges to ensure that we can get back into Lugano may sound prosaic, but it is actually profoundly important for the good operation of our legal system once we have left. Sometimes a little less of the poetry—and a bit more of the prosaic—is required in government. I hope that we can now move forward into that stage.
Ian Blackford (Ross, Skye and Lochaber) (SNP)
I beg to move,
That this House declines to give a Third Reading to the United Kingdom Internal Market Bill because it contains provisions which allow the Government to break commitments it has made under international law, and because it does not have the agreed consent to legislate within the competencies of the devolved legislatures which is contrary to the established devolution settlement.
May I thank the Public Bill Office for the consideration that it has given to the SNP as we have sought to table amendments to the Bill? I also thank my hon. Friend the Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry) for the work that he has done in Committee.
This legislation has been rushed through by the UK Government over the course of the last two weeks, after a rushed consultation and a total failure to engage with the devolved Governments. The United Kingdom shows no respect for the devolved institutions in this Bill, and it does not have their consent. We are told that this legislation seeks to secure the Union, so it is telling that it has failed to gain the consent of even a single part of that Union.
With limited time in this House, parliamentarians have spent hours debating and dissecting this Bill. We have attempted to scrutinise every clause and every schedule to it. Members from all parts of the House have made significant speeches and a raft of Opposition amendments have been brought forward, yet here we are tonight and nothing has changed. This Bill still does exactly what it set out to do two weeks ago. It still breaks international law and it still breaks devolution. For the absence of doubt, let me make it clear: it breaks devolution.
It is the same auld with this Tory Government. They have not listened, they have not taken the chance to change course and they have not seen the need to compromise. This Government have typically and arrogantly ploughed on. Throughout the passage of the Bill, they have voted down and ignored anyone and everyone who has sought to defend devolution and uphold international law. The character of this Government is crystal clear: they are consistent in their contempt.
As always, we accept and respect decisions with regard to the selection of motions and amendments, but if Members refer to today’s Order Paper, they will see that the Government had options available to them that would have perhaps demonstrated they did have some remaining respect for the devolution settlement and the national legislatures of these islands. They could have held over Third Reading until each of the devolved institutions had considered legislative consent motions. That would have been respectful to the devolved institutions. They could have referred the Bill for further scrutiny to the Scottish Affairs Committee, the Welsh Affairs Committee and the Northern Ireland Affairs Committee. Instead, they insist on using their majority to force the Bill through without even pretending they care what the devolved nations think.
Patrick Grady (Glasgow North) (SNP)
I thank—[Interruption.] Conservative Members are getting very agitated about some of this, but is this not the point—the real power grab here and the real undermining of the devolution settlement is the callous disregard for the Sewel convention, which this Government put on a statutory footing and are now completely ignoring? That is one of the fundamental acts that has undermined devolution across these islands.
Ian Blackford
My hon. Friend is correct. You know, we were told after the referendum in Scotland in 2014 that Scotland’s place would be respected and that we were to lead the United Kingdom, and here we find not just our Parliament in Edinburgh but the Administrations in Cardiff and in Northern Ireland being ignored. We can refuse to give consent, as we are doing, to this Bill, but the Government carry on regardless. Where is that respect for devolution? Where is the respect for the people of Scotland? In a referendum in 1997, 75% of the people of Scotland voted for a Parliament. It is not the SNP’s Parliament. it is not the Scottish Government’s Parliament; it is the Parliament of the people of Scotland—the Parliament of the people of Scotland when the Scotland Act 1998 was passed that gave powers over devolved matters. What those on the Government Benches refuse to see—what the rest of us can see—is that this Parliament is giving itself the power to override the Scottish Parliament in health, in education, in transport and in housing.
Ian Blackford
I can hear the Secretary of State shouting, but it is his Bill and I suggest he reads it, because clauses 46 and 47 are very clear: powers over infrastructure, including
“water, electricity, gas, telecommunications, sewerage or other services… railway facilities (including rolling stock), roads or other transport facilities… health, educational, cultural or sports facilities”.
The Secretary of State can sit and tell us that it does not override devolution. Well, the facts are in the Bill. What the Government have done is overridden devolution and, quite frankly, I can tell you, Madam Deputy Speaker, we in Scotland will be having absolutely none of it.
So tonight, just as—[Interruption.] You can chunter and shout all you like, but at the end of the day, the people in Scotland have been watching what has been going on over the past few months, with Scotland being disregarded. The fact is that we won the election in Scotland last December on the right of Scotland to choose its own future. We had no desire to be taken out of the European Union against our will. In England, you can choose to do what you want as far as Brexit is concerned, but we do not—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. I am sure the right hon. Gentleman meant that hon. Members can choose, because when he says “you”, he means me, and he knows that I have no such choice.
Ian Blackford
I am making it clear, Madam Deputy Speaker, that the people in England can choose what they like in this regard, but that we do not consent to Scotland being taken out of the European Union. We have a mandate from the people of Scotland that says we have the right to determine our future, yet we have the callous disregard of this Government, who have so far refused to grant a section 30 licence so that we can have a choice over our own future. Not only are they frustrating the will of the Scottish people to have that referendum on our future, but we now find that they are seeking to take powers back from our Parliament—[Interruption.] I can hear a Conservative Member saying that we have had our referendum, but the point is that when we had our referendum in 2014, we were promised that we would stay as members of the European Union, that we would be respected within this Union and that we were going to get a powerhouse Parliament that would be the strongest Parliament in the world. The opposite has happened, however, and when the facts change, people in Scotland have the right to change their mind.
What the Government do not seem to recognise is that support for the SNP and for independence is gathering momentum in Scotland—[Interruption.] Conservative Members can chortle, but the reality is that many people who did not support Scottish independence in 2014 have rightly changed their minds. They have the choice of a future with Scotland being a member of the European Union and a law-abiding, independent country that accepts its responsibilities in a global world. They have a choice of creating a fairer society and of coming out of the covid crisis and building our economy. It is that choice and that clear vision that we offer, against what has been done to Scotland by this Conservative Government. I can tell this Government that what they are doing with this Bill is absolutely determining that the people of Scotland will make that choice and, yes, we will become an independent country, because we want no future with the disrespect that we see day in, day out from the Conservative Government to our Parliament in Edinburgh.
Pete Wishart
The more Conservative Members chortle, the more the support for Scottish independence will rise, and they know that. I heard the Minister say that this Parliament is Scotland’s Parliament too, but, as my right hon. Friend will know, an opinion poll came out today. Does the Minister want to know what is in that opinion poll? Four times as many Scots now support the Scottish Parliament over this Parliament. Does my right hon. Friend agree that this Government’s aggressive Unionism and undermining of our Parliament has failed, and that all it is doing is raising support for independence?
Ian Blackford
My hon. Friend is correct. I am sure that when he goes back to his constituency and speaks to people, he is finding, as I am, that we are being encouraged to get on with it. People have seen enough. They have seen what is happening to Scotland under this Conservative Government and, as I said earlier, we are having none of it.
So tonight, just as there was during Second Reading, there is a fundamental choice for every Member across the House. This is now the last chance to salvage some dignity and respect for democracy in this place. Leaving it to the other place would be a complete dereliction of duty. This is the democratically elected House, and it is our job to oppose this undemocratic piece of law.
Chris Bryant (Rhondda) (Lab)
Of course I agree with the right hon. Gentleman about the Bill. It is a nonsense and a rogues’ charter, as I said in a previous debate, but would he also encourage Members of the House of Lords, who have historically played a role in defending the rule of law, to ensure that they do their best to improve this legislation if that is possible?
Ian Blackford
I understand why the hon. Gentleman makes that call, but we should not be relying on the Members of the House of Lords; they are unelected. The fact is that this place has not done its job to defend the rule of law, or to protect devolution. I feel for Labour Members who were responsible, under Blair’s Government, for bringing devolution in, because everything that was established under that programme has been undermined. There is a real call to everyone in Scotland, regardless of whether they voted for the SNP in the past, to recognise the maxim that power devolved is power retained.
People in the past have said to me, “Could Westminster shut down the Scottish Parliament?” I have argued in the past that that would be fanciful. Nobody could believe that our Parliament could be attacked in such a way, but what is happening with this Bill is that our Parliament, which has had the support of the people of Scotland—
Ian Blackford
It is being usurped. It is not getting more power—read the Bill. Read clauses 46 and 47, and read clause 48, which takes away from Scotland the powers that we have over state aid. When I look at the Government Benches, it really is Trumpesque—twisting the truth beyond reality.
Alison Thewliss (Glasgow Central) (SNP)
Does my right hon. Friend agree that one of the most harmful aspects of the Bill is set out in the explanatory notes? They state:
“The Bill will be a protected enactment under the Scotland Act 1998 and the Government of Wales Act 2006. It will be an entrenched enactment under the Northern Ireland Act 1998. This means that it cannot be modified by the Devolved Legislatures, and so it will not be open to those legislatures to disapply the provisions of the Bill, or modify their effect.”
We are stuck with it, and this Government can continue to make things worse if they choose to do so. It is taking it out of the Scottish Parliament’s hands.
Ian Blackford
My hon. Friend is correct. It is perhaps worth reminding the House, in this context, that we have the joint ministerial committees, which recognise their responsibility to put frameworks in place.
Ian Blackford
I hear the hon. Lady saying that they have done, and she is quite right about that, because the Governments in Edinburgh, Cardiff and Belfast recognised the need to work together, where it was appropriate, in creating the circumstances to ensure that there was continuation of a market across these islands. The commitment that I make, and that my party and my Government make, is that we will work constructively with the Government in London to ensure that that happens, but the rug has been pulled from under that by a UK Government who have introduced this Bill, who legislate for the market that they want to create and who attack the fact that we have provisions in Scotland in areas such as the environment, food standards and building standards, which we can no longer defend.
There will be a race to the bottom in accepting the lowest standards, and there is not a single thing that we can do about it. There is not a single thing that we can do to protect our food standards once this takes place. The Secretary of State is shaking his head, but we already have differences in, for example, pasteurised milk. What will happen post this? We will not have the ability to keep the uniqueness of our regulations. What happens to support for our crofters and farmers, for example?
The responsibility falls tonight on this House to do the right thing. I obviously understand if those on the Government Benches are unwilling to take advice from me and my party, but they would do well to listen to the strength of the arguments emanating from some on their own Benches. During Committee, the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), gave a powerful and insightful analysis of the dangers of this legislation. Her words are worth repeating for those left on the Conservative Benches who are not yet card-carrying members of Cummings and the Prime Minister’s ideological cabal. She concluded her remarks by warning:
“I consider that, in introducing clauses 41 to 45, the Government are acting recklessly and irresponsibly, with no thought to the long-term impact on the United Kingdom’s standing in the world. It will lead to untold damage to the United Kingdom’s reputation and puts its future at risk.”—[Official Report, 21 September 2020; Vol. 680, c. 668.]
Those are stark words from the former Prime Minister on what the Government are doing to trash the reputation of the United Kingdom. The right hon. Member for Maidenhead and I may not agree on much, but few could deny that not only were those words powerful, but they are very likely to be proven prophetic.—[Interruption.] I hear a comment, “Too long. It is not fair on everyone else.” I will tell Labour Front Benchers what is not fair. It is what has been done to Scotland tonight. I have the right, as the leader of the Scottish National party at Westminster, to make sure our voices are heard, and I tell the House that the SNP voices will be heard and will be heard without apology.
Despite the bluff and bluster we have repeatedly heard, none of us are fooled that this is some kind of benign business Bill. We know the real intent of this legislation: after 21 years of devolution, the Tories are stripping powers from our Scottish Parliament. The Tories did not support devolution and now they see the popularity of the Scottish Government and they do not like it. It is little wonder why, because that support for the Scottish Government stands in direct contrast to the unpopularity of Tory Governments from Westminster.
Earlier today, the Scottish social attitudes survey showed that public trust in the Scottish Government to act in Scotland’s best interest was at more than four times the trust shown in the UK Government. The survey, conducted in 2019-20, before lockdown, shows that people were nearly five times more likely to say that the Scottish Government should have more influence on how the country is run than that the UK Government should. Some 61% of people trusted the Scottish Government to work in Scotland’s best interest, which compares with a record low of 15% for the UK Government—and you can bet your boots that after what has happened tonight it will be a lot lower now than the 15% that was recorded.
Gary Sambrook
On a point of order, Madam Deputy Speaker. Is it in order for the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) to filibuster so much in order to prevent other people from being able to input into this debate? Surely it is not fair on so many people who want to contribute.
Madam Deputy Speaker (Dame Eleanor Laing)
That is a reasonable question for the hon. Gentleman to ask, but if the right hon. Gentleman were to filibuster, it would not be in order and I would not allow him to do it. He is not filibustering; he is making a very powerful argument. I do note the hon. Gentleman’s point that the right hon. Gentleman has spoken for twice as long as the other Front Benchers, and he will appreciate that a great many other people would like to make a contribution to this important debate tonight. However, that is not a matter for me. If the right hon. Gentleman has the floor, he can speak for as long as he wishes, but I know that he is both honourable and a gentleman, and that he will bear in mind that while he has the floor other people do not have the opportunity to speak.
Ian Blackford
Thank you, Madam Deputy Speaker. I think we had a demonstration there from the Conservative Benches that Members from Scotland should sit down and shut up, and that we should not be heard in this House. [Interruption.] I say to the hon. Member for Birmingham, Northfield (Gary Sambrook) that there is a very easy fix to that: let’s have the section 30 order, let’s have the referendum on Scottish independence and we can say goodbye to you—thank you and good night.
The Chancellor of the Duchy of Lancaster does not care for the polling numbers I referenced, and he does not care for devolution. After all, he is the architect of this Bill. [Interruption.] “Parliamentary etiquette”—my goodness! Devolution has been butchered and I hear Conservative Members talking about etiquette—what a load of keech. The Chancellor of the Duchy of Lancaster has set out his agenda: Scotland is to be dealt with, the Scottish Parliament is to have its wings clipped, and Westminster is to take back control and wants to give itself spending powers over our devolved matters.
Pete Wishart
I am interested in my right hon. Friend’s view on the subject of keech. Does he agree that if Government Members want us to go, there is a very elegant and convenient solution, and it is right in front of them: Scottish independence? Support for it is on the rise, and then we will be quite happily out of this place.
Ian Blackford
My hon. Friend is right. Those on the Government Benches know that a referendum is coming; we should just get on with it.
This Bill gives Westminster direct spending control in devolved areas in Scotland—in health, education, housing and transport—and the people of Scotland know from long and bitter experience that the Tories cannot be trusted to spend money in Scotland. The Tories will look after their own interests. They will never support Scotland’s interests, as tonight demonstrates. The passing of this Bill gives the Tories free rein to bypass Scotland’s Parliament and the democratic priorities of the Scottish people.
The democratic principle of the right to choose our own form of governance is at the heart of what is at stake if the Tories force this legislation through tonight. They can try to deny it all they like, but it is the Tories themselves who are breaking the constitutional settlements that have been democratically supported across these islands. This legislation rips apart Scotland’s claim of right, which enshrined the sovereign right of the Scottish people to determine the form of government best suited to their needs. That claim of right was debated on an SNP motion in the last Parliament, which was passed without objection.
It is a long-held principle that sovereignty in Scotland rests with the people of Scotland, not with Westminster. That historic right has its roots in the declaration of Arbroath and formed the basis of the determination in the case of MacCormick v. the Crown by Lord Cooper, when, as Lord President of the Court of Session, he gave his opinion that
“the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law”.
The principle of the sovereignty of the people of Scotland is under attack in this Bill.
Sarah Olney (Richmond Park) (LD)
Does the right hon. Gentleman agree that there are plenty of reasons to oppose this legislation that do not necessarily involve the case for Scottish independence?
Ian Blackford
The fact is that, as a consequence of the attack on the powers of Scotland’s Parliament, people in Scotland are making the determination that they wish our country to become independent as soon as possible.
This Bill undermines the settled will of the people of Scotland, who voted in a referendum on the basis of our Parliament having control over spending in devolved matters. It is that fundamental—it is that serious. This is a defining moment. The UK Government are attempting to block the sovereign right of the Scottish people to decide Scotland’s future.
Joanna Cherry
It is great to hear my right hon. Friend remind the House that the principle of the sovereignty of Parliament is a purely English doctrine. Does he agree that, in seeking to interfere with the inherent supervisory jurisdiction of the Court of Session, the Bill also potentially breaches article 19 of the treaty of Union between Scotland and England?
Ian Blackford
That may well be right. My hon. and learned Friend has much experience of these matters. I would simply say that if the House passes this Bill tonight, it really does not seem to care about law and treaties.
Claire Hanna (Belfast South) (SDLP)
I feel like a Pez dispenser of clarification on the Good Friday agreement. In discussing sovereignty, does the right hon. Gentleman agree that it is not an ornament on the shelf? The Good Friday agreement, being endorsed by the people of Ireland north and south, is in fact sovereign as regards Northern Ireland. Does he further agree that this Bill not only does not protect the Good Friday agreement but offends each of its strands and its principles of democratic process, respect for differences and the rule of law?
Ian Blackford
Absolutely—I fundamentally agree with the hon. Lady. We all look on with alarm at what could happen if the Good Friday agreement is disrespected. We give every good wish to our friends on the island of Ireland that the peace is maintained, but there is no question that the Government are playing with fire.
Madam Deputy Speaker, time is short so I must now move on. It is pretty ironic that at the very same moment the Tories are robbing the Scottish people of their sovereign rights, those behind this power grab are using the very same arguments on sovereignty to impose their extreme Brexit agenda. In February, the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, the right hon. Member for Surrey Heath (Michael Gove) lectured us:
“the experience of history tells us that the countries with the maximum amount of control over their own destinies are the best equipped to succeed economically and, indeed, to secure a greater degree of equity for all their citizens.”—[Official Report, 27 February 2020; Vol. 672, c. 478.]
If the Minister holds that to be true, then it ought to be true for Scotland. Yet, through this very Bill, the UK Government are trying to rob those rights and those powers from Scotland’s democratically elected Parliament. The best that can be said for this UK Government is that they at least wear their hypocrisy on their sleeves. When it comes to sovereignty, I have been looking back at what the Chancellor of the Duchy of Lancaster has said over the years. He said on 14 October 2012, when talking about the EU:
“give us back our sovereignty or we will walk out”.
If he thinks this matter is so crucial, why is he leading his Government to attack the Scottish Parliament? Why is he disregarding our sovereignty in Scotland?
Madam Deputy Speaker, we will push our amendment tonight to defend democracy, to defend Scotland’s interests, to defend against this bare-faced attack on our Parliament’s powers. We know that the vast majority of Scotland’s MPs and the Scottish public will be with us. What of the six Scottish Tories, though? Will they stand up for Scotland? Will they stand up for our Parliament? Tonight is their chance to join with us, to reject this power grab, to reject Westminster’s trampling over the devolution settlement, to respect that the Scottish Parliament should determine spending on devolved matters. A failure to join with us will show that the so-called Scottish Tories have reverted to type and reverted to what they have traditionally been: hostile to devolution.
Let me conclude by putting this in context. Over the past number of years, Scotland’s people have watched on as Westminster ignored their views on Brexit, launched power grab after power grab, and undermined our democratic rights. This legislation is the last straw. It leaves us with only one option and only one choice. A growing and consistent majority of our people have now come to the same conclusion. They know that the only way to defend Scotland’s Parliament and powers is through independence.
Madam Deputy Speaker, the words of Charles Stewart Parnell, who used to sit on these Benches just two rows back, still ring true. Tonight, I direct these words to the Chancellor of the Duchy of Lancaster. I will do this with two lines in Gaelic and then give an English translation:
“Chan eil còir aig duine crìochan a chur air adhartas dùthcha. Chan eil còir aig duine innse do dhùthaich, ‘Gheibh sibh cho fada ri seo agus chan fhaigh na b’fhaide.’”
“No man has a right to fix the boundary of the march of a nation; no man has a right to say to his country—thus far shalt thou go and no further.”
Sir William Cash
The right hon. Member for Ross, Skye and Lochaber (Ian Blackford) who has just spoken said he was going to push his amendment. I think he pushed the patience of this House to breaking point.
In the very few seconds I have left I will simply say, with regard to the speech by the right hon. Member for Doncaster North (Edward Miliband), that he completely failed to answer my question. The Labour party has, in fact, on a number of occasions broken international law. He knows it. He could not answer, and did not attempt to answer, whether he thought the Iraq war was lawful.
The bottom line is that the completely irrelevant questions raised in relation to breaches of international law are completely unfounded. The reality is that this country has on occasion in the past, in its own national interest for the sake of preserving its sovereignty and its economic sovereignty, had to occasionally break international obligations. There is no doubt about that, but equally and by the same token this Bill is about the sovereignty of the United Kingdom and preserving the economic sovereignty of the internal market and doing what it can to preserve the Union in all its character and territoriality. The right hon. Member for Doncaster North shakes his head, but the bottom line is that we have now got this Bill through. It has gone through with 100 votes time and again. That proves the point. This is the endorsement of the referendum. This is the endorsement of the manner in which the British people voted in the general election and that is the truth. We have won, and we will continue to pursue the independence of this country and to maintain its sovereignty.
Kate Green (Stretford and Urmston) (Lab)
On a point of order, Madam Deputy Speaker. All Members must be as accurate as possible when they speak in the House, and none more so than Cabinet Ministers. Today, in response to my questions following his statement, the Education Secretary twice made statements that were incorrect. First, he said that
“we have made £100 million available for universities…to ensure that youngsters have digital access”.
That was not accurate. The £100 million funding is for devices for schools and some further education providers, not for universities. The Secretary of State was wrong in what he said. He also said that individual students could seek additional maintenance support from the Student Loans Company, and as far as I can tell that is not right either.
When I asked the Secretary of State about digital access this afternoon, he said that he was sorry I had missed the announcement. Well, I am sorry that he is apparently wrong about the detail of his portfolio. Have you had any indication, Madam Deputy Speaker, that he will return to the House to correct the record on these matters?
Madam Deputy Speaker (Dame Eleanor Laing)
I appreciate the point that the hon. Lady is making, but it is not a point of order for the Chair; it is rather a continuation of the debate that took place this afternoon. But she has taken the opportunity to make the point that she wishes to draw to the attention of the House, and no doubt to Ministers, and she has succeeding in so doing.
United Kingdom Internal Market Bill
Wednesday 30th September 2020
(4 years, 7 months ago)
Lords ChamberUnited Kingdom Internal Market Act 2020 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 29 September 2020 - (29 Sep 2020)
United Kingdom Internal Market Bill
Monday 19th October 2020
(4 years, 7 months ago)
Lords ChamberUnited Kingdom Internal Market Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 29 September 2020 - (29 Sep 2020)
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, I beg to move that the Bill be now read a second time. The United Kingdom’s internal market has been the bedrock of our shared prosperity for centuries. Since the Acts of Union, the UK internal market has been the source of unhindered and open trade across the entire United Kingdom. It has enabled businesses and individuals to thrive and has been the source of unhindered and open trade across our country. It has helped to demonstrate that, as a union, our country is greater than the sum of all our parts.
Around 60% of Scottish and Welsh exports are to the rest of the UK, which is around three times as much as exports to the whole of the rest of the European Union. About 50% of Northern Ireland’s sales are to Great Britain. When we leave the transition period at the end of this year, an unprecedented number of powers will flow from the EU to the devolved nations and the UK Government. As this happens, and as we recover from Covid, we must ensure that our economy is stronger than ever. The Bill will guarantee the continued functioning of our internal market to ensure that trade remains unhindered in the UK and businesses can continue to operate with certainty. Without the Bill a Welsh lamb producer, for whom almost 60% of the market is the rest of the UK, could end up unable to sell their lamb as easily as before. Scotch whisky producers could lose access to supply from English barley farmers, unnecessarily putting at risk Scotland’s own whisky industry.
This package guarantees a continuation of our centuries-old position that there should be no economic barriers to trading within the United Kingdom. To achieve this, the Bill will do the following. First, it will introduce a market access commitment for goods, services and professional qualifications respectively. This will ensure that the UK can continue to operate as a coherent internal market and maintain the deep integration and strong economic ties that bind the UK together. Secondly, it provides a statutory underpinning for a new office for the internal market, within the Competition and Markets Authority. This office will independently monitor the health of the UK internal market and provide technical advice on issues that may impact it, reporting to the devolved legislatures and to this Parliament itself.
Thirdly, it introduces provisions to ensure that there is a safety net in domestic law to prevent new checks and controls on goods going from Northern Ireland to Great Britain, in line with the Government’s commitment to unfettered access for qualifying Northern Ireland goods. Fourthly, it enables strategic investment in all four corners of the United Kingdom, giving the UK Government a power to provide financial assistance for the purposes of economic development, culture, sporting activities and infrastructure, as well as both international and domestic educational and training activities and exchanges.
Finally, it reserves to the UK Parliament the exclusive ability to legislate for a UK subsidy control regime once this country ceases to follow EU state aid rules at the end of the transition period. This is to ensure that subsidies do not unduly distort competition within the UK’s internal market. Let there be no doubt: this Bill is crucial in providing certainty to businesses, and we must give them that certainty.
My department and I, along with colleagues across government, spoke to hundreds of businesses and business representative organisations from across the UK to gather views and feedback on our original White Paper proposals. Over 270 businesses and organisations responded to a public consultation on the proposals, and businesses overwhelmingly supported our approach. I record my thanks for the engagement we have had from all aspects of business on this.
The Bill will put in law a market access commitment by enshrining mutual recognition and non-discrimination: mutual recognition to ensure that goods and services from one part of the UK will be recognised across the country, and non-discrimination to guarantee that there is equal opportunity for companies trading in the UK regardless of where in the country that business is based. The same principles of mutual recognition and non-discrimination will also be applied to services and will introduce a process for the recognition of professional qualifications across the whole UK internal market. This will allow professionals such as doctors and nurses, qualified in one of the UK nations, to work in any other part, as I am sure Members would expect. Furthermore, the Government are inviting views on the regulatory framework for professional qualifications, to ensure that our approach remains world leading. We have, of course, listened to those in the devolved Administrations and business, and have made some exemptions, for example to respect the divergence that exists between the legal professions in England, Wales and Scotland.
The Bill will also ensure that Northern Ireland qualifying goods benefit from the market access commitment and receive mutual recognition in the rest of the UK, guaranteeing a continuation of our centuries-old position that there should be no economic barriers to trading within the United Kingdom.
We consulted on how to ensure an independent monitoring and advice function to uphold the UK internal market. In response, and to oversee the functioning of the internal market, the Bill will set up an office for the internal market within the CMA. This office will monitor and report on the internal market to the UK Government, devolved Administrations, the legislatures, and external stakeholders, ensuring the continued smooth operation of that market that businesses so desperately desire.
Subsidy control has never been devolved. It is crucial to continue to have a UK-wide approach, to protect our internal market and prevent harmful and distortive practices arising. The purpose of the Bill is to ensure that we continue to have fair and open competition across the UK, and so it is right that we have a UK-wide approach to subsidy control. As we take back control of this policy from the EU, the UK will have its own domestic subsidy control regime. From 1 January, the Government will follow the World Trade Organization rules for subsidy control, and any related commitments the Government have agreed in free trade agreements.
We will consult on whether to go further than those existing commitments, including whether legislation is necessary to achieve a system that promotes a competitive and dynamic economy throughout the United Kingdom. We appreciate that our longer-term approach will have implications for business and all public authorities that grant subsidies with taxpayers’ money, including the devolved Administrations. So we will take the time to listen closely to those voices and design a system that promotes a competitive and dynamic economy throughout the whole of the United Kingdom. However, we will not return to the 1970s approach of bailing out unsustainable companies, be they in Scotland, England, Wales or Northern Ireland.
As we leave the EU and take back control of our money, we will require new powers to continue to invest across the United Kingdom. Therefore, this Bill will confer a power to make sure that the UK Government can invest UK taxpayers’ money nationwide, including on the UK Government’s priorities, supporting people and businesses across the UK and delivering on our commitment to level up all parts of our country. Currently, unelected EU bodies spend billions of pounds that we provided as a net contributor, on our behalf. They spend our money, with very little say from elected politicians in the UK. This will, rightly, change as we leave the transition period.
The UK Government intend to take a much more collaborative approach in delivering programmes that replace EU funds. This includes engaging heavily with local authorities as well as wider public and private sector organisations. And, of course, it means working closely with the devolved Administrations to make sure that investments complement their existing—and continuing—powers used to support citizens in Scotland, Wales and Northern Ireland. This power to provide financial assistance will cover infrastructure, economic development, culture and sport. It will also support educational and training activities and exchanges both within the UK and internationally, much of which of course was previously done at EU level.
These powers are not designed to take powers from the devolved Administrations, but to add powers to direct investment in a similar fashion to the EU Commission, while reforming programmes and empowering MPs from Wales, Scotland, Northern Ireland and England to design and scrutinise funds in a way that was never possible within the EU. This will also allow the UK Government to meet their commitments to replicating and matching EU structural funds within the shared prosperity fund. This is in line with the Government’s manifesto commitments to strengthen the union and level up the country. This power to provide financial assistance is one of the mechanisms by which the Government hope to achieve these ambitions.
We will also be introducing limited and reasonable steps to provide a safety net to ensure that peace can always be preserved in Northern Ireland. In the event that we do not reach an agreement with the EU on how to implement the Northern Ireland protocol, we must be able to deliver on promises in our manifesto and in the Command Paper. This is a legal safety net which clarifies our position on the Northern Ireland protocol, protecting our union and ensuring that businesses based in Northern Ireland have true “unfettered access” to the rest of the United Kingdom, without paperwork. The Bill will also provide certainty on state aid, ensuring that there is no legal confusion and that, while Northern Ireland will remain subject to the EU’s state aid regime for the duration of the protocol, Great Britain will not be subject to EU rules in this area.
This Bill, and our wider approach to protecting our internal market, is designed for co-operation between the four parts of the United Kingdom. It will protect our common causes, such as the setting of high standards in our economy, and will work in concert with the common frameworks programme and the IGR, which is due to conclude shortly. After all, the UK has some of the highest standards in the world. It is worth reminding noble Lords that we go beyond EU rules in many areas, including health and safety in the workplace, workers’ rights, food, health and animal welfare, consumer protections, household goods, net zero and the environment. We will maintain that commitment to high standards, including as we negotiate trade agreements that will provide jobs and growth in the UK. We have been driving this forward through our common frameworks programme, to drive collaboration and a coherent approach to policy across the UK now that we have left the European Union. I therefore want to reiterate the Government’s invitation to all devolved Administrations to work together on this Bill, with the common frameworks process and with the internal market as a whole.
This Bill is crucial to ensuring that we continue to work together as one United Kingdom to support jobs and livelihoods across our entire country. As we rebuild and recover from Covid-19 and look ahead to opportunities following the end of the transition period, this Bill will provide the certainty that businesses need to invest and create jobs. It will accompany one of the biggest transfers of powers in the history of devolution, with hundreds of powers flowing from the EU to the devolved Administrations at the end of the transition period. This Bill will do all this and preserve the internal market, which has been an engine of growth and prosperity since the Acts of Union. That is why we need this Bill. I beg to move.
Amendment to the Motion
Lord Judge
“As an amendment to the motion that the bill be now read a second time, at end to insert “but that this House regrets that Part 5 of the bill contains provisions which, if enacted, would undermine the rule of law and damage the reputation of the United Kingdom.”
Lord Judge (CB)
My Lords, I beg to move the amendment in my name on the Order Paper. If I believed in compulsion, and executive compulsion in particular, I would make an order that every member of the Cabinet should read the report from the Constitution Committee and the report from the Delegated Powers and Regulatory Reform Committee and understand what they mean. What I read in those reports we have read time and time again, and, so far, nobody has paid much attention to them. I can sit down now, can I not? Perhaps not.
I do not want to grandstand, but the rule of law is a bulwark against authoritarian incursion, and even the smallest incursion threatens it. When those responsible for making the law—that is, us the Parliament, we the lawmakers, who expect people to obey the laws we make—knowingly grant power to the Executive to break the law, that incursion is not small. The rule of law is not merely undermined, it is subverted. There is one consequence, and the damage is to our standing in the world. We have no real power now, except soft power—the English language and an understanding that we in this country have a traditional belief in the rule of law and we respect it. We hope that, one day, all the countries in the world that do not have respect for the rule of law will have it. Yet here we are, about to tear it into tatters. Our contribution to happier days around the world will be diminished.
I want to make it clear that I passionately believe in the sovereignty of Parliament. I extol it, I discuss it abroad, I explain its advantages over a written constitution, which includes the flexibility that we now have. I also accept that Parliament can make any law it likes; it can criminalise anything it wants to. Let me give you a silly example, which is not that far removed from what has been going on through Covid. I happen to support Leicester City FC. Parliament could make it an offence to be a supporter of Leicester City FC. They could make it an offence for 10 Leicester City FC supporters to gather together to support the club. It obviously will not do that, but in theory it can do exactly what it likes.
The rule of law requires properly enacted laws. I accept that; rule by properly enacted laws is one of the ingredients, but it is not definitive. When the sovereignty of Parliament is tossed against us—fair enough, it is important, it is crucial, it is our constitution—let us remember that every country in the world has a law-making body. Think of one that has not. It will produce the laws by which that country is ruled. Of course, it will. But some constitutionally, properly enacted laws are the antithesis of the rule of law. There are so many examples, but here is one that leaps to mind. Apartheid South Africa, where everything about you as a human being and the way you were treated by the law depended on the accident of birth: the colour of your skin. Depending on the colour of your skin, your rights were more or less; they were certainly different. We tend to forget—we should not—that apartheid South Africa’s abhorrent laws were the result of a perfectly clearly understood constitutional enactment. In law, they were utterly justified in making any law they liked, just as we are. But somebody tell me that apartheid South Africa, with its properly enacted laws, was a place where the rule of law could be found. It was miles away, the furthest constellation in the stars you can imagine.
We need to be careful to distinguish between the rule of law and rule by laws. It is the rule of law that carries us and gives us the protection that we need from the abuse or misuse of the constitutional power that is enjoyed by Parliament. It is our safest shield against authoritarianism. It is a phrase that was conjured up by the Commons for the first time in 1610 to tell an overweening king that he was seeking to exercise overmuch power. It is a phrase we should use to remind an overweening Executive that they are going too far.
I know that I am not alone in finding it offensive that we are asked by a Minister in Parliament to seek Parliament’s authorisation to allow him to break the law deliberately and knowingly. Saying that it will be done only in a very specific and limited way is a total obfuscation. A thief who steals only a tin of tuna is still a thief. Over the years, Parliament has heard many strange words, it has heard some very surprising words, it has heard some inspirational words. It is part of the history of our country. But I have not yet found an occasion—I have tried, and if the Minister can find one no doubt he will tell me—when Parliament was invited to agree that a Minister should be entitled to break the law.
We must look on the impact of Part 5 as a totality. It is not just Clause 47 that is pernicious. Let us go back. We became party to a new agreement with the EU, which provided sensible get-out clauses for both sides and which either side could use, and re-enacted the withdrawal Act this year, just before Covid hit us. The Northern Ireland protocol was integral to it, with its own get-out clauses. I recognise, if I may say so, the distaste and hostility with which some people in Northern Ireland regard what happened then. I suggest to them that this debate is not about the protocol; it is about the rule of law.
The Act gave legal effect to the withdrawal agreement and the protocol, and thus it became domestic legislation implementing an international agreement. Of course I accept that international agreements and treaties occupy a separate star in the firmament, but breaking international law is not different, in principle, from breaking domestic law. The rule of law is no less an ingredient of the legal relationship between nations as it is domestically. Let us get ourselves rid of the myth, the spin, that when the rule of law internationally is damaged, the rule of law domestically is nevertheless quite unscathed. It is absurd. The rule of law is indivisible. And let us disabuse ourselves of a further myth or spin that actions already taken have not diminished virtually to extinction the assertion by the Minister in the other place that we are a beacon around the world for the rule of law and international law. The light given by that beacon is being extinguished.
Finally, we must not be beguiled by the recent argument that the legislation would be used only if necessary, in an emergency. It does not cure the fault, does it? What is not a myth is that not a shred of evidence has been produced that would justify the use of the get-out clauses; hence this proposed legislation. Part 5 provides that a Minister of the Crown shall be vested with the power to use secondary legislation in effect to repeal an Act of Parliament that Parliament has only just enacted, almost before the ink on it is dry. That is not how the sovereign Parliament should be treated by the Executive. We do not have executive sovereignty.
But this is worse than the standard Henry VIII clause. To talk about a standard Henry VIII clause is itself a shameful thing to have to do, but we are faced with them in every piece of legislation, like blossom in spring when the wind blows. And, despite the recent arguments by the Lord Chancellor, Part 5 as a whole was obviously intended to prevent any legal challenge to ministerial decree—and the Lord Chancellor himself accepts that such rights will be reduced.
This is not an attempt to limit the court’s jurisdiction over primary legislation: it is now being extended to secondary legislation. The House has heard me speak before on the subject of the inadequacy of parliamentary control of secondary legislation but, if Parliament will not exercise control, and the courts cannot do it, where then are the controls on the Executive? They are vanishing into the air. So now we are being asked to give a Minister of the Crown, on behalf of the Executive, the lawful authority knowingly and deliberately to repeal recent domestic legislation and to break international treaties, all through secondary legislation over which parliamentary control has crumbled through disuse and the normal scrutiny of which by the courts has been reduced to a whimper.
I am nearly done. The rule of law has served us well. It has not made a perfect society—nor could it. But we all know that without it our society would have been, and would still be, catastrophically worse. We must defend that bulwark, and I hope that I shall be supported, because I intend to take this issue to a Division, so that the House can give its own opinion on this dangerous legislation. I say, “Not in my name.”
Baroness Hayter of Kentish Town (Lab)
My Lords, while thanking the Minister for opening the debate, we concur totally with the regret expressed by the noble and learned Lord, Lord Judge. I will, however, leave it to my noble and learned friend, Lord Falconer, to set out our case on this, having allocated some of my speaking time to him, while my noble friend Lord Stevenson will cover the state aid and competition parts of the Bill, as well as the governance, independence and powers of the OIM.
Today will be a notable one for your Lordships’ House, given the expertise that we will hear, and we look forward to the maiden speeches of my noble friend Lady Hayman of Ullock and the noble Lord, Lord Sarfraz, as well as those of my noble friend Lady Andrews, chair of the Common Frameworks Committee, my noble friend Lady Taylor, chair of our Constitution Committee, and the noble Earl, Lord Kinnoull, chair of the EU Committee, whose reports the noble and learned Lord, Lord Judge, has already referred to.
I also look forward to hearing the speech of the most reverend Primate the Archbishop of Canterbury, who, with church leaders from across the four nations, writes in today’s FT of the grave responsibility of Peers, given that the Bill
“will profoundly affect the future of our countries and the relationships between them”.
It is hard to understand how the Government have got so much wrong in a Bill that was long expected as a result of our exit from the EU. Perhaps it is symptomatic of their genetic inability to work with those whose interests are affected by legislation—hence their undermining of the protocol without a word to Irish politicians, and their willingness to break international law, and renounce a treaty, with nary a word to the judiciary or the co-signatories, which led to the EU taking legal action, via a letter of formal notice, for a breach of the good-faith terms of the withdrawal agreement.
Moreover, despite claims that it would strengthen the integrity of the union while upholding the devolution settlements, the Bill actually,
“risks de-stabilising an integral part of the UK’s constitutional significance”,
in the words of our Constitution Committee.
In a letter to the Lord Speaker, Jeremy Miles, the relevant Welsh Minister, describes the Bill as
“an unprecedented attack on the devolution settlement”,
arguing that it would undermine the Senedd’s right to regulate in devolved areas of competence and would explicitly amend the Government of Wales Act. Unsurprisingly, the Senedd’s legislative consent memorandum concludes that, unless the Bill is substantially amended, the Welsh Government would not be able to recommend consent.
A similar reaction led the Scottish Parliament to vote by 90 to 28 against granting legislative consent, with the Scottish Government stating that they could not recommend consent to a Bill that,
“undermines devolution and breaches international law”—
and it looks as if that response has led to a third of Scottish voters being more likely to back independence.
There has been a real issue to resolve, because when we entered the EU in 1973, there was no devolution. But we thought we had achieved a solution with the common frameworks in the Withdrawal Act. Within the EU, common standards, mutual recognition, labelling, testing, professional recognition—or whatever—were decided by consensus across the 28, with MEPs from our four nations signing off the various measures. Our exit repatriated powers to the UK, but they included powers in some devolved competencies.
So how did the Government react? Did they set up a mechanism akin to EU co-determination, designed with the devolved Administrations? Did they build on the common framework efforts already in play? No, they took to themselves significant repatriated powers, annulling elements of the devolved settlement, to replace a system that had evolved slowly and by careful negotiation over decades by government edict. They published their plans with statements from Messrs Gove, Sharma and Jack, from a Scottish businessman and from the Scottish Retail Consortium, but with no word from the Welsh Secretary of State and no involvement of devolved Governments. They sweep state aid to themselves and give a role to the CMA, which is unrepresentative of the devolved nations.
The Bill grants UK Ministers powers on mutual recognition without any input from the devolved Administrations. So if England, for example, imports chlorine-washed chicken, consumers in Aberdeen and Aberystwyth could find it on their supermarket shelves without any say by their elected Governments. Similarly, the Bill’s lack of a public health exclusion from market access principles makes it difficult for all parts of the UK to implement policies to reduce harms from alcohol and tobacco, for example, or to tackle environmental harms.
Meanwhile, this House’s Delegated Powers Committee describes the Bill as a constitutional power grab, apparently horrified by its “extraordinary, unprecedented powers”, which allow Ministers to amend or repeal parts of this Bill—or indeed any Act of Parliament or statutory instrument.
We do not concur with the Government’s assertion that
“the Bill ... is not constitutional but economic”.
Rather, we agree with the Archbishops that
“the effect on devolved policymaking is of constitutional significance”.
The Delegated Powers Committee calls on us to ensure that major decisions are taken by primary, not secondary legislation, noting that much of the Bill’s reliance on statutory instruments has no relation to any need for urgency.
I turn to the CMA. Its present structure is inadequate, not simply by failing to represent all four nations, but by lacking a clear duty to place consumers at the heart of its work. It is notable that nowhere in the Minister’s letter to your Lordships of 1 October does the word “consumer” even appear. You have to get to Clause 32 before you find a welcome mention of
“impacts on prices, the quality of goods and services or choice for consumers”.
Competition is not an end in itself; it is to serve consumers, prevent rip-offs and promote fair trading and growth. Intervention exists to get a market working for consumers, so that objective must be hard-wired into the CMA’s DNA. The noble Lord, Lord Tyrie, as chair, produced an excellent suite of suggestions to make the CMA consumer-focused and fleet of foot. We will seek to write these into the Bill, as well as to reflect all four nations.
In this Bill, the Prime Minister has managed to anger lawyers, devolved authorities, the EU, the churches, his own Back Benches and the majority of your Lordships. He is really like a bar-room brawler, taking on all comers. Is it possible that they are right and he is wrong? Perhaps it is worth reminding Mr Johnson on the oft-quoted words that Barack Obama left in the Oval Office for President Trump:
“We are just temporary occupants of this office. That makes us guardians of those democratic instructions and traditions—like rule of law ... it’s up to us to leave those instruments of our democracy at least as strong as we found them”.
Something is needed to replace the EU’s competition-based open market, such that consumers do not lose out, so that public health, the environment and food standards are protected and that the union is strengthened, but it is not this Bill. This must be amended to be workable, legal, democratic and respectful of the devolution settlements. For that reason, we share the regret expressed in the amendments of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Cormack, that the Bill undermines the rule of law and reneges on a treaty, reducing our standing on the world stage. That is regrettable indeed, and completely avoidable.
Lord Newby (LD)
My Lords, this Bill is, on a number of grounds, the most dangerous and baffling piece of legislation to come before your Lordships’ House in the 23 years since I became a Member. It is dangerous because, for the first time in that period, a British Government are explicitly legislating to break their word in a treaty recently entered into and in breach of international law. It is baffling because none of its other provisions are necessary at all to meet its ostensible policy goals.
I shall take the dangerous part first—the provisions in Clauses 44, 45 and 47 to allow the Government to override the provisions of the Northern Ireland protocol that could impede unfettered access to Great Britain’s markets for Northern Ireland goods. I pass over the provision in Clause 43(2), which allows a whole raft of new checks, controls and administrative procedures on such trade, which the Government now accept is necessary, and in doing so makes a mockery of the whole concept of unfettered access in the first place. On the offensive provisions themselves, let us be clear on three questions. First, do they indeed break international law? Secondly, in these particular circumstances, is such a breach justified? Thirdly, if not, what should now be done?
On the first question, the answer is clear. The Government have themselves accepted that the provisions
“break international law in a limited and specific way”.—[Official Report, Commons, 8/9/20; col. 509.]
To use a slightly different example from that of the noble and learned Lord, Lord Judge, if I go into a shop and steal a specific and limited number of Rolex watches, I have still committed a theft. Government amendments to the Bill in the Commons would require Parliament to vote before any provisions could be introduced under the offending clauses, but as the Bingham Centre for the Rule of Law puts it, such a vote
“does not alter the fact that Parliament is still being asked by the Government to legislate in deliberate breach of its treaty obligations.”
So, the provisions without doubt break the law, but are they still justified, as the Government contend? They have argued that they are, on a number of grounds. They have produced the lamentable excuse that, because they signed the withdrawal agreement in a rush, they did not realise what it meant. They have resorted to scaremongering, saying that the EU was planning to impose a “blockade”—their word—on agricultural goods moving across the Irish Sea, a suggestion the Irish Foreign Minister has described as “totally bogus”. They have argued that the UK Government have broken international law on numerous occasions in the past to justify doing so again. However, the briefing to your Lordships’ House by the Law Society and the Bar Council knocks that on the head when it states:
“We are unaware of a precedent for such an approach in UK legislation or administrative process.”
The truth is that there is not a shred of justification for breaking international law, as provided for in this Bill. Its effect will simply be to diminish our international reputation as an honest partner and an advocate of the universal application of the rule of law. So, what should your Lordships’ House do? We must ensure that the law-breaking clauses do not enter the statute book. I have considerable sympathy with those who argue that we should vote against the Bill today, at Second Reading, because that is the cleanest way of getting rid of the offending clauses, and because, for reasons I will explain, I do not believe that the remainder of the Bill is necessary at all. However, I understand that this is not the view of others across the House, so we will work with them to excise the specific offending clauses when we get to them. My only plea, though, is that when it comes to ping-pong, the many noble Lords who, over the next few hours, will express their abhorrence of what the Bill contains, will be willing to gird up their loins for the repeated ping-pong which will surely be necessary if our common views are eventually to prevail.
If the Northern Ireland protocol clauses are dangerous, the remainder of the Bill succeeds in being completely unnecessary, while at the same time undermining some of the basic principles of the devolution settlement. Veterans of the EU withdrawal Bill will remember grappling with how to manage the repatriation of measures that underpin the single market: which should be retained at UK level, which should be devolved and which should be jointly determined? With the help of the noble and learned Lord, Lord Mackay of Clashfern, we arrived at a system of common frameworks that would, between them, deal with all aspects of the single market. There are some 40 of them, and they have either been fully negotiated or are in the process of being negotiated. When finalised, they will render the ostensible purpose of the Bill—to ensure the smooth operation of the UK’s internal market—completely unnecessary.
However, the Bill does not simply provide overarching UK-wide market access provisions; it takes away power from the devolved Administrations and reserves it to London at the same time. There are several ways in which it does so. It undermines the devolved institutions’ right to regulate in devolved areas of competence. It gives wholly new powers to UK Ministers to spend public money on devolved issues in Scotland, Wales and Northern Ireland, without necessarily involving them in deciding on priorities. And it seeks to amend the state aid legislation, so that the UK Government could impose a new state aid regime without the agreement of the devolved Administrations. Over the course of the debate, my noble friends and other noble Lords will set out in detail why this legislation is so very damaging to the devolution settlement.
To seek to undermine devolution in these ways, under the innocuous cloak of maintaining market access for goods and services across the UK, is not simply disingenuous; it is dangerous, because it can only give succour to those who want to break up the United Kingdom. Amendments will be laid on a cross-party basis at Committee stage, supported by the Welsh and Scottish Governments, which will seek to reverse the worst aspects of what the Government are proposing in respect of the devolution settlement. I hope they will be supported across the House.
As we face the ravages of Covid-19 and the impending costs and disruptions of Brexit, to have to spend weeks of legislative time, as we now are, trying to stop the Government breaking international law and undermining the devolution settlement is both depressing and infuriating. But if this House of Lords has any purpose, it is to protect the rule of law and the constitution, and it is up to us now to rise to that challenge.
The Archbishop of Canterbury
My Lords, I look forward to hearing, here and online, the contributions to come, especially the maiden speeches of the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz.
I also concur totally with the powerful and remarkable speech by the noble and learned Lord, Lord Judge. What we are called to do above all in this country, deeply embedded in our Christian culture and history, is to act justly and honestly. We cannot do so if we openly speak of breaking a treaty under international law, reached properly, on which peace in part of the UK relies. My distinguished former colleague Sentamu, who paid with beatings for his defence of law and justice in Uganda would have spoken trenchantly. I regret his absence.
There are some who claim that I and my colleagues who wrote in the FT this morning are misinformed. But the letter—and this intervention—followed the lead of those who have spent their lives seeking peace in Ireland. Peace is surely something of which religious leaders should speak. We also listened to the Select Committee on the Constitution, to all five living former Prime Ministers, two former Conservative leaders, and distinguished judges, including former Presidents of the Supreme Court and the former Lord Chief Justice of England and Wales, to name but a few.
This country has different characteristics and needs in its regions and nations. They must be reflected in all our relationships if the union is to survive. There is no watertight door in relationships between economics and constitutional issues. They overflow from one into the other. The timing of anything that the UK Parliament or Government do in Northern Ireland is always especially significant to relationships. It is particularly so at present. The revived Assembly is scarcely a year old; 2021 is the centenary of the establishment of Stormont and the creation of the border. Much progress has been made since the 1990s in building confidence and peace, yet it is clear from many visits in the last few years, and clear to anyone who listens, that the tensions continue. Peace and reconciliation need continual reinforcement and continual progress. I will therefore be seeking to work with others for amendments which ensure that the process of peace and reconciliation is pursued and that powers exercised under this Bill, when it becomes law, involve consultation amidst the immense complexities of Northern Ireland. I hope we may act on a cross-party basis.
Politics, if it is to draw out the best of us, must be more than just the exercise of binaries, of raw majority power unleashed; it exists to seek truth, to bring diverse peoples together in healthy relationships. Our reputation as a nation, our profoundly good and powerful influence and example, which I know from experience around the world, will suffer great harm if law-breaking is pursued—greater harm than this Bill seeks to prevent. In the Church of England, we are all too clearly aware of the shame that comes with failing morally. Let us not make the same mistake at national level. This House exists to amend and improve legislation, not to derail it, and that must be our urgent aim now.
The Earl of Kinnoull (Non-Afl)
My Lords, it is a great pleasure to follow the most reverend Primate, and I congratulate him and his most reverend colleagues on their very welcome letter today, with which I, too, wholeheartedly agree.
The European Union Committee published our report on the internal market Bill last Friday. It was the 74th Brexit-related report that we have made since the referendum in 2016. It was unanimous, as all the previous reports have been. Once again, I pay tribute to the outstanding committee staff, working all hours as they do, to such a very high standard over such a long period. The report is short. It deals only with Part 5 of the Bill and its interaction with the Government’s implementation of the withdrawal agreement. It was designed to fit together with the excellent report of the Constitution Committee and its wider analysis of the rule of law issues.
I have said before in this Chamber that there is an inherent tension at the heart of the Ireland/Northern Ireland protocol, essentially in marrying up the aspirations of the recitals with the hard legal texts of the articles that follow. The committee reported in June that there was not enough urgency among the parties in the negotiations, who in a pragmatic way need to seek the compromises to sort this out, protecting, first and most importantly, the Belfast/Good Friday agreement and, secondly, the two mighty single markets involved—those of the EU and the UK. That report also dwelt on the multilayered dispute resolution mechanisms contained within the withdrawal agreement. The Bill before us supplants those mechanisms without their ever having been tried out. We have heard already of the Secretary of State’s clear and repeated statement that, in doing so, the Bill breaches international law. The result, as we report, strikes at the heart of the withdrawal agreement and hence poses a threat to the maintenance of the Belfast/Good Friday agreement itself. It is corrosive, too, to the future relationship discussions, as trust has become a casualty of the arrival of Part 5 of the Bill.
We wrote to the Chancellor of the Duchy of Lancaster on 18 September, with nine questions on the situation. To date, we have had no response to that letter and the letter is set out as Appendix 2 of our report. I very much hope that the Minister will carefully cover these nine questions in his response tomorrow. In the absence of convincing answers to these nine questions, the committee recommends removing Part 5 of the Bill.
In closing, I note that the amendment proposed by the noble and learned Lord, Lord Judge, is entirely in keeping with our report. I therefore strongly support it, and for once, and after advice, can follow him into the virtual voting Lobby when he divides the House.
Lord Howard of Lympne (Con)
My Lords, it is a pleasure to follow the noble Earl, Lord Kinnoull, and I congratulate him on his committee’s report. Like the noble and learned Lord, Lord Judge, with whose every word I agree, I entirely accept that the sovereign Parliament of the United Kingdom has the power to legislate in breach of international law. That is not the issue that this Bill presents. The question is not whether we can so legislate; the question is whether we should so legislate. I do not often quote the President of the European Commission, but then the President of the European Commission does not often quote Margaret Thatcher. What Mrs Thatcher said was this:
“Britain does not break Treaties. It would be bad for Britain, bad for our relations with the rest of the world and bad for any future treaty on trade”.
That says it all.
I was surprised, nay astonished, that my noble friend the Minister did not deal with nor even mention—unless my hearing has totally failed me—that Part 5 is in breach of international law. The admission by the Secretary of State for Northern Ireland in another place that it is in breach was not, as was suggested by one of my noble friends in the recent debate in Grand Committee, merely a “clumsy” form of words: those words were read from a brief; they were prepared; they were premeditated; they were deliberate; they represented the Government’s clear intention, and, as far as I am aware, the Government have not sought to resile from them.
It was suggested that the dispute resolution provisions in the withdrawal agreement would be activated in parallel with the activation of the provisions in the Bill, but I draw your Lordships’ attention to Article 168 of the withdrawal agreement. It is short, so I shall read it in full:
“For any dispute between the Union and the United Kingdom arising under this Agreement, the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.”
The Government may have second thoughts about that article; they may regret that they have signed up to it, but it is too late: they did sign up to it. They are bound by it and they should honour it.
Together with the majority of those who voted in the 2016 referendum, I voted for Brexit. I do not for one moment regret or resile from that vote; I want the United Kingdom to be an independent sovereign state. However, I want it to be an independent sovereign state that holds its head up high in the world, that keeps its word, that upholds the rule of law and that honours its treaty obligations. I want it to be an independent sovereign state that is a beacon unto the nations. I do not want it to be an independent sovereign state that chooses as one of the first assertions of that sovereignty to break its word, to break the law and to renege on a treaty that it signed barely a year ago. I shall vote for the amendment in the name of the noble and learned Lord, Lord Judge, and, if it is put to a vote, that in the name of my noble friend Lord Cormack. I shall vote against the clauses in Part 5 which are in breach of international law, and I urge your Lordships to do likewise.
Lord Falconer of Thoroton (Lab)
It is a real pleasure to follow the noble Lord, Lord Howard of Lympne, and to have heard the speech of the noble and learned Lord, Lord Judge. They were two incredibly powerful speeches, and I agree with every single word of them—except the bit where the noble Lord, Lord Howard, said that he had voted for Brexit, because I did not.
I very much look forward to hearing the maiden speeches of the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz, which I know will be incredibly good. My noble friend Lady Hayter has given me five minutes of her speech, and it has been agreed with usual channels that I may exceed the advisory limit a bit because I am speaking from the Front Bench.
The Northern Ireland protocol ensures an open border in Ireland to preserve the Good Friday agreement. It does this by creating a regime, legally binding on the United Kingdom as a matter both of domestic law and of international law, whereby goods in or entering Northern Ireland will be compliant with single market rules. On that basis, the border remains open and the integrity of the single market is protected. The protocol also provides that Northern Ireland remains within the customs territory of the United Kingdom and there is unfettered access for goods between Great Britain and Northern Ireland. On 8 September this Bill, including Part 5, was published, giving the United Kingdom Government the express power to break the terms of the protocol. The key foundation of an open border—namely, the legally binding commitment freely entered into by the United Kingdom Government—was fundamentally undermined when the UK explicitly stated that it no longer regarded itself as bound by all the protocol. Law is not a protection when those to whom it applies can choose which particular laws to accept.
Closing the border is ultimately the only way to protect the single market’s integrity if the United Kingdom will not accept its legal obligations, destroying our reputation as a country that abides by the law and depriving the European Union of confidence that the border can remain open. Why? The Prime Minister says that the European Union is negotiating in bad faith. He produces no evidence of bad faith. He says that it is to protect the union and to ensure unfettered access for goods between Great Britain and Northern Ireland. The powers being taken in Part 5 give the lie to that defence. It creates a power to break the protocol only in two specific respects, the first being the requirement which the UK signed up to in the protocol that exit declarations be submitted to the UK Government for goods leaving Northern Ireland. I am in favour of reducing unnecessary paperwork, but to suggest that a requirement for a short summary of goods leaving Northern Ireland is breaking up the union is beyond reason. Secondly, the Bill gives the Government the power to break the protocol by giving the United Kingdom power to identify which state aids apply to Northern Irish-Great British trade, in breach of the protocol. This, I was told by Northern Ireland Office officials, is for clarity. I asked for one actual example of where there was a problem; I was not given one. Those are the only areas where the Government can break the terms of the protocol under Part 5.
There is a third issue, not covered by the Bill, arising out of the protocol, which is what goods are to be regarded as at risk of moving from Great Britain to Northern Ireland and then on to the south. It is about trying to avoid some people paying the tariff and then getting a rebate because in fact the goods did not go into the single market. It is an operational issue. I am in favour of as few people as possible paying a tariff when not due and having to get a rebate, but is it the stuff of law-breaking and threatening the union? Absolutely not. The power to break the protocol in respect of the “at risk” issue is not even included in Part 5. There was a reference in a government statement of 17 September to bringing in further law-breaking measures in the Finance Bill. There will be no Finance Bill this year, so that is no longer in play.
There we have it. Our Government have signalled their willingness to break the law and walk away from the legally binding agreement that guaranteed an open border and peace, to reduce some red tape and resolve two issues that half-decent diplomats could resolve in an hour. It makes no rational sense. When they say that they are not walking away, ignore it. Which party will trust their counterparty who says, “I will pick the terms of the legally binding agreement that I am bound by”?
I have no doubt that this comes from No. 10. It is the product of a Prime Minister clueless about detail, so lacking in grip that he cannot or will not see beyond looking tough toward the European Union, who is flailing around trying to deliver on the false promises he made to Northern Ireland businesses that there would be no additional checks between Northern Ireland and Great Britain and to the hard-line Brexiteers that he would do something about the Northern Ireland protocol. He is a Prime Minister with advisers out of control, looking for political stunts to reinforce the insurgent nature of Brexit, happy to sacrifice the rule of law in the hope of a good culture wars row with remainers and some screeching headlines, and oblivious to the consequences to the standing of the UK, its long-term relationship with the EU countries and the security and safety of those who live in Ireland. The defenders of the rule of law in Government have been forced out, or are too desperate to hold on to the offices into which they have been over-promoted to speak out as they should.
I congratulate Keith Stewart QC on his appointment as Advocate-General, and on the peerage which accompanied it. His predecessor, the noble and learned Lord, Lord Keen, resigned on the basis that he could not square his obligation to protect the rule of law with the policy of this Bill. The Bill has got no better since his resignation. This is not about Brexit—that must happen; it is about destroying one of the foundational values of our country. Without a Government committed to obeying the law, everything is at risk. The law is the ultimate protector. We will invite this House, at the appropriate time, to remove Part 5 of the Bill neck and crop. I hope thereafter that this House will do everything it legitimately can to ensure that it does not return.
Lord Wallace of Tankerness (LD) [V]
My Lords, I follow on from the noble and learned Lord, Lord Falconer of Thoroton, by paying tribute to my successor as Advocate-General for Scotland, the noble and learned Lord, Lord Keen of Elie. I have known the noble and learned Lord for over 40 years, and he is undoubtedly one of the best advocates of our generation. When a lawyer of his calibre and experience says that he found it difficult to reconcile what he considered to be his obligations as a law officer with the Prime Minister’s policy intentions with respect to this Bill, noble Lords should sit up and take note. In an age when resignation on a matter of principle seems to have gone out of fashion, surely we must commend the personal and professional integrity shown by the noble and learned Lord.
As someone who has seen devolution work in practice from within both the Scottish and United Kingdom Governments, I express real concern about the potential for this Bill to do untold damage to the delicately crafted architecture of the devolution settlements. I seriously question whether this Bill is necessary. As the White Paper itself acknowledges, the UK internal market is already strong, with overwhelmingly frictionless trade. By contrast, the evidential base for needing legislative requirements for mutual recognition or non-discrimination between the different political units of the UK is wholly underwhelming.
Divergences already exist. More than 30 years before devolution, different building standards were adopted in Scotland, but now the White Paper flags up differential building standards as a threat to the internal market. I certainly believe that the United Kingdom Governments of the 1960s had a better understanding than the authors of this Bill and the White Paper that differences in climate and the built environment between the Home Counties and Orkney merit different standards. Even within the EU regulatory framework, devolution has led to some divergences to reflect local needs and political priorities. That surely is the essence of devolution. Indeed, the United Kingdom Government supported the Scottish Government in the European Court of Justice when the Scottish Government sought to bring in minimum unit alcohol pricing in Scotland. But this Bill does not replicate the limited grounds set out as legitimate aims, which are provided for under Article 36 of the TFEU, where a legislature seeks to diverge from internal market principles. Nor, indeed, is there any reference in this Bill to the principles of subsidiarity and proportionality, which also underpin the current EU framework. As a result, the scope of devolution is restricted, unprecedentedly without the consent of the devolved legislatures. In replying, can the Minister explain why these differences are allowed to arise?
One further compelling reason to put this Bill aside, as referred to by the noble Baroness, Lady Hayter, is its curious silence in its provisions on common frameworks, heralded as a way forward three years ago. In spite of difficulties, efforts to achieve common frameworks have enjoyed buy-in from all the devolved administrations. On 15 September in another place, Cabinet Office Minister Chloe Smith said that the five frameworks would be delivered by the end of this year. In seeking to commend to the House the whole of the 17th report of the Constitution Committee, on which I had the privilege of serving, I particularly refer to our comments on common frameworks, and our conclusion at paragraph 57:
“We consider that adhering to the principles agreed for formulating common frameworks would improve the likelihood of reaching agreement on how to progress the Bill. We are not convinced that opportunities for managing the UK internal market through the common frameworks process have been exhausted. This contributes to our doubts about the necessity for the Bill.”
I do not underestimate the challenges, but surely if there is a way forward which promotes and facilitates co-operation over the conflict and mistrust which this Bill has come to symbolise, it is in the best interests of all parts of our United Kingdom that we vigorously pursue it.
Lord Clarke of Nottingham (Con)
My Lords, I find it difficult to express how strongly I am amazed and deeply dismayed that any British Government of any complexion should produce before Parliament a Bill which contains the provisions of Part 5 of this Bill. I never expected in my parliamentary career, which has not been a short one, to find myself reading a Bill of this kind presented for parliamentary approval. It has already been said, and will be said many times in this debate, that it appears to give the Government unfettered power to break, in any way they find necessary, particular provisions of a treaty upon which the ink is barely dry. I will not attempt—I do not have the time—to compete with the undoubted eloquence of the noble and learned Lord, Lord Judge, and my noble friend Lord Howard, who have expressed the shock which everybody who has any regard for the rule of law in this country undoubtedly feels.
I move on to my more familiar field, though I am a long practiced and experienced lawyer, and shall talk about the politics which underlines this, which I also find quite bizarre and completely inept. The origins of the need for this Bill are quite extraordinary. It all arises from the decision taken shortly after the referendum that Brexit would involve leaving the single market and the customs union. I strongly disagreed with that, and think that we could have left the European Union and remained. I actually moved a Motion in the House of Commons and got within six votes of a majority for staying in the customs union, which, unfortunately, is nearer than the then Prime Minister, Theresa May, got to achieving anything. But that is not the issue today. I accept that we are committed to leaving the single market and the customs union, and I accept the judgment of Parliament and the population, but it does give rise to all the problems that the Government do not know how to solve.
Once you leave the customs union and the single market, you need a customs frontier between your own internal market and the rest. That is wholly in accordance with all the ordinary practices of international trade in modern times, WTO rules and all. Everybody knows that at Dover this could create a very considerable problem, and we are preparing to recruit the people, get the lorry parks, handle the traffic, and get people to prepare for the paperwork that is involved. The problem of course arose in Ireland, which no one seemed to have thought about very clearly, until they realised that to do the same in Ireland would totally undermine that extremely important agreement for the security of the United Kingdom and the Republic, the Anglo-Irish agreement. The solution was determined that Ulster should stay in the customs union and single market, and Great Britain should leave, which means that we have a customs frontier down the Irish Sea.
This was not a sudden or ill-considered thought; it was argued about vigorously. The Democratic Unionist Party, otherwise firm Brexiteers, opposed the whole agreement on that basis but the fact remains that we have committed ourselves to having a frontier. The proper thing to do now is not to go back on our word with no solution—it is quite unclear what the Government really propose by way of essential customs controls that are still compatible with the agreement—but to minimise the necessary delays, as I hope we are doing in the negotiations with the EU. If we insist on changing standards, we should have equivalence of standards and arbitration procedures to settle disputes, and we should make sure that there are as few disruptions to trade, delays to the border and costs as possible. As I said, it is not quite clear what would happen if you just left a hole in the controls between Ireland and GB.
Baroness Scott of Bybrook (Con)
My noble friend has reached his time limit.
Lord Clarke of Nottingham (Con)
I realise that I have only four minutes to talk on this matter. That is one of the bizarre arrangements in this Chamber that I am getting used to. No other parliament in the world would think that people could do justice to the contents of this Bill with people having four minutes to speak in the way that we are doing. However, I have added my voice and will oppose Part 5, in particular, in every way in which my membership of this House permits.
Lord Pannick (CB) [V]
My Lords, what an extraordinary series of speeches so far. The Minister’s speech was itself extraordinary because he ignored the elephant in the Chamber—that is, the elephant which is trampling through Part 5 on the rule of law.
The noble and learned lord, Lord Judge, in his powerful speech, referred to the report of your Lordships’ Constitution Committee. I am a member of that committee. We unanimously concluded that for this Bill to set out to break international law is without precedent. We described Part 5 as “constitutionally dangerous” . We said that the Bill is
“fundamentally at odds with the rule of law.”
We reached those conclusions not just because Ministers want to give themselves this unprecedented power to breach international law—as the noble Lord, Lord Howard, said in his eloquent remarks, this country is looked at by other nations as a beacon of legality and it is therefore extraordinary that Ministers should want such a power—but because Ministers are seeking to immunise the regulations that they make from challenge in the courts on any ground “whatsoever”, the word used in Clause 47(8).
The Constitution Committee is not a group of “lefty lawyers”—the Prime Minister’s term of abuse in his recent speech to the Conservative Party conference. Nobody, I think, has ever described my esteemed colleague, the noble Baroness, Lady Fookes, in that way. There are some lawyers on the Constitution Committee, but most of the members are politicians and political observers from across the House with decades of political experience. The Government should be ashamed to be responsible for producing and pursuing a Bill that attracts such condemnation from such a committee of your Lordships’ House.
Like those unfortunate people who do not feel pain, and who are therefore at grave risk of injuring themselves and those around them, this Government do not feel shame. It is therefore the responsibility of this House to shout out a warning to the Government that Part 5 of the Bill will, if enacted, endanger the rule of law. I am grateful to the noble and learned Lord, Lord Judge, because his amendment gives us the means by which that warning can, tomorrow, be communicated loudly and clearly.
Lord Cormack (Con)
My Lords, I cannot forbear from saying to my noble friend the Whip on the Front Bench that time limits at Second Readings are advisory. I was sorry that she felt it necessary to interrupt my noble and learned friend Lord Clarke of Nottingham.
This is a particularly sad day for me because, like my noble and learned friend Lord Clarke of Nottingham—we entered Parliament on the same day, although he has had a much more illustrious career than me—I never thought that I would see the day when any British Government produced legislation that would take out a significant part of a treaty that was entered into by this Government following a manifesto commitment and commended to, and endorsed by, both Houses of Parliament less than a year ago. For anyone who aspires to be a parliamentarian, this is shameful; there is no other word for it. I am deeply ashamed that a Conservative Government should have embarked on this course. I like to think that it is the result of Barnard Castle but, at the end of the day, the buck stops where the buck stops and it is the Government who have done this.
I have an amendment expressing regret on the Order Paper. It is similar in intent to, although differently phrased from, that of my noble and learned friend—I call him that deliberately—Lord Judge. I do not intend to exhaust your Lordships electronically tomorrow. As long as he presses his amendment—I cannot think that he would ever change his mind on a subject like this—I will certainly not move mine. However, I tabled my amendment because I was so saddened and disturbed. My feelings have been entirely reinforced by the three reports that have been referred to in your Lordships’ House this afternoon: that of the committee chaired by the noble Earl, Lord Kinnoull, and those of our Constitution Committee and the Regulatory Reform Committee. I have never seen three reports so uniformly damning as those. We in this House have a duty to ensure that the Bill does not go on the statute book in anything like the form it is in at the moment.
Part 5 has to be removed. Some people might talk about the Salisbury/Addison convention, but we would be upholding it by taking that course of action. That convention came about when the Labour Party had a tiny number of people in your Lordships’ House and the Conservatives had an overwhelming majority, but it was agreed that any legislation based on a manifesto commitment would not be prevented from having a Second Reading or getting on to the statute book. As I said earlier, this was part of a manifesto commitment, so we would be upholding and not contradicting that convention.
As we sit in this Chamber, we look up and see the barons of Runnymede—of Magna Carta, from which the rule of law developed over 800 years ago. We in this House have a great duty to ensure that the rule of law is maintained. As my noble and learned friend Lord Judge spoke—he made a marvellous speech—I thought of Tom Bingham, whom I was privileged to count as a friend. He wrote the most wonderful little book called The Rule of Law. Every one of your Lordships should buy some copies and distribute them at Christmas time, particularly to Members of the other place.
The Bingham Centre for the Rule of Law has produced a paper, which I think we have all received. It is very well worded and forcefully argued. We cannot allow those chilling words uttered in the other place a few weeks ago—“specific and limited” breaking of the law—to be the final say. How can we lecture China, or exhort our fellow citizens to obey the draconian laws we are currently thrusting upon them if we take this line? We must not and I hope that we will not.
Baroness Hayman of Ullock (Lab) (Maiden Speech)
My Lords, it is a great pleasure and honour to make my maiden speech today, and to follow the noble Lord, Lord Cormack. I first thank the staff for their support and hard work. Black Rod and her team, the Clerk of the Parliaments, the doorkeepers, attendants and police officers have been helpful, patient and truly welcoming. I am also indebted to my supporters—my noble friends Lady Jones of Whitchurch and Lady Smith of Basildon—for introducing me to the House, and to my mentor, my noble friend Lady Lister, for her advice and guidance.
I was delighted to be able to take the geographic title of Baroness Hayman of Ullock, a village in west Cumbria, where I live on a smallholding beside the River Marron, with my husband and a collection of animals. It is a beautiful place, nestled between the majestic fells of the Lake District National Park and the mountains of Scotland across the Solway Firth. I am passionate about nature, and we manage the land to enhance the environment and to encourage biodiversity. So I was very proud when I was elected to the other place as Member of Parliament for Workington—Cumbria’s first woman MP—and then given the responsibility of Shadow Secretary of State for Environment, Food and Rural Affairs, a role I carried out for nearly three years. To be able to develop policy not just on environment, food, farming and rural issues but on another of my passions, animal welfare, was a huge privilege—and it really is a privilege to have joined your Lordships’ House.
I am aware of the many differences between here and the other place, so I ask noble Lords to please be patient with me if I fall into old habits. I am looking forward to getting stuck in, and also to getting back to singing with the Parliament choir. It was a great honour to be chair of the choir until last year and I made many friends, a number of whom sit in this House.
Having listened to the speeches today, it is clear that there is a huge amount of knowledge and expertise in your Lordships’ House—although, as a long-standing Leicester City supporter, I was somewhat taken aback by the earlier suggestion from the noble and learned Lord, Lord Judge. But I am pleased to be able to participate.
I have already talked of my passion for the environment, but I am also half-Welsh. My mother’s family farmed in the south Wales valleys. The Minister will need to address the concerns that the Bill risks destabilising devolution arrangements and hampering environmental legislation. I have no problem with the objective of ensuring that the UK internal market can work smoothly after the Brexit transition, but it must protect high environmental standards and encourage improvement, and these matters generally fall under devolved responsibility.
The Government have said that our existing high standards for the environment
“will underpin the functioning of the internal market”.
However, the Bill does not give legislative effect to this commitment; on the contrary, in its current form it could make it harder for the devolved nations to achieve their ambitions. So it is vital that our devolved Administrations can introduce and implement their own environmental laws. I ask the Minister to clarify how the Government intend to ensure that current environmental standards are not weakened, and that the Bill will not prevent or deter any part of the UK from introducing or implementing measures that are designed to protect and enhance the environment and mitigate climate change.
Climate change has not stopped because of the global pandemic, yet it seems to have become the forgotten crisis. We should be increasing our ambitions in the fight against climate change, and for every new piece of legislation we should consider the potential negative impact on the environment. I hope the Minister can reassure me that this will be the case with the Bill we are debating today, and that our environment will continue to be both protected and enhanced.
I have chosen to make my maiden speech today because this issue is of such fundamental importance to our future, and I look forward to fully engaging with the work of your Lordships’ House.
Lord Liddle (Lab)
My Lords, it is an inestimable pleasure to congratulate my noble friend Lady Hayman on her maiden speech. We go back a bit of a way. We were both freshers—if that is the right term—in the Cumbria Labour group when it was first elected in May 2013. That is a forum of plain-speaking common sense which I would recommend to some of our national politicians. Together, as we are now in this place, I hope that we will speak up for the north and for Cumbria and its very special concerns—alongside, of course, many other Peers in this place, including my noble friend Lady Hayman’s predecessor-but-one as MP for Workington, my noble friend Lord Campbell-Savours.
My noble friend Lady Hayman—Sue—made a distinctive mark in the Commons. She led the Opposition on environmental and rural affairs, and she thought deeply about the issues. In a Labour Party that was going through a very difficult patch—to put it mildly—she was a voice of quiet calm and reason. It is great—my wife, for one, will be pleased—that she is going to take up again her involvement in the parliamentary choir.
In last December’s general election, so-called Workington Man assumed a mythological status as driving a huge breach in what used to be Labour’s “Red Wall”. I see my noble friend Lady Hayman as a fine and, I believe, more lasting example of Workington Woman, with an instinctive feel for progressive values, a deep concern for the underdog, and a practical passion to secure reform and change. What is more, she is a very decent human being, so I congratulate and welcome her.
I will speed up, I hope, on today’s issue. We are not supposed to be talking about Brexit. People say Brexit is all over. Well, it is, sort of—and of course I accept the result of where we are. But it is because of the Brexit we have chosen, as the noble Lord, Lord Clarke of Nottingham, pointed out, that the Government have got themselves into this very considerable difficulty. Although you can say that the debate about Brexit is over, the consequences of Brexit—not just the economic consequences, which I think are going to be bad; worse than Covid, according to most independent assessments—are going to affect our politics and dominate it, perhaps for years to come.
This Bill is a dramatic blow to Britain's standing in the world. The very act of tabling it has done incalculable damage to our international reputation, and, as the noble and learned Lord, Lord Judge, said, we are now dependent on our soft power for influence. Why has it been done? The proposal for a revised Northern Ireland protocol was put to Brussels by Boris Johnson himself after his walk in the park on Merseyside with Leo Varadkar last autumn. It was the key to having a different withdrawal agreement that he could then get through Parliament. Are we to assume that he never read the provisions of the protocol that he signed or that Michael Gove did not read them on his behalf?
I believe that, by the time we get to Report, these provisions may have been dropped. That is what I very much hope. I think the Government will use the excuse of a skinny trade deal to drop them. However, my fear is that this will not resolve the problem. Trade across the Irish Sea will muddle on for now, but that is only because our rules and standards are presently fully convergent with the EU’s. However, for this Government, the whole point of Brexit is to diverge from EU rules. That will cause great difficulty as time goes on and it has dangerous potential to undermine the Good Friday agreement.
As my noble friend has said, this puts into question the future of the United Kingdom. Furthermore, if I were a Scottish MSP, I would vote to refuse legislative consent to this measure on the grounds that they override the devolution settlement. What we are looking at today is a profoundly dangerous Bill, and this House has constitutional responsibilities to reject the parts of the measure that contradict the manifesto on which the Government were elected and that breach international law. I hope the Lords will neuter it and then stand their ground.
Lord Carlile of Berriew (CB)
My Lords, I, too, congratulate the noble Baroness, Lady Hayman of Ullock, on her excellent maiden speech. As a former Welsh rural Member of another place, I welcome her commitment to the integrity of rural life and rural communities, and I look forward to her many further contributions to your Lordships’ House. She should not be unduly sensitive about the habits of this place. We all get used to being shouted at when we break order by standing up at the wrong moment or in the wrong gangway, but it is never really meant; it is just one of those things.
I suggest that the very fact that so many speakers are expressing their concern about Part 5 of the Bill, combined with their range of expertise and experience, should give Ministers serious pause for thought before this bent-barrelled blunderbuss is fired into the rule of law. This is legislation by offensive weapon rather than logic.
Like many others, I support the amendment to the Motion in the name of my noble and learned friend Lord Judge and moved by him with such clarity. As a former Lord Chief Justice, he speaks with authority, the contradiction of which—on this issue, at least—would amount to brazen and wilful ignorance, in my view. For those who are interested in his support for Leicester City, I remind others who are listening that, at the moment, Leicester City are winning 14:1, as it were. This is a fairly rare experience, and I suspect that it will be a much larger lead by the end of this debate, which is something that Ministers should not overlook.
I urge your Lordships and others outside to beware of thinking that this debate is a lawyers’ wordfest. This is not an issue on which any special knowledge of the law is required at all. Surely, it is a matter of constitutional instinct, international expectation and mutual respect between the United Kingdom and the rest of the world. I remind your Lordships that this Government are the first to resort to the rule of law when it suits them. If you look at the way they have made their submissions in cases concerning foreign terrorism fighters seeking to return to the United Kingdom, however unruly in law those applicants’ other countries of potential citizenship are, they are the first to say, “We rely on the rule of law. We may not like those countries, but they’re entitled to go back there, so there they shall go”. So there is a degree of hypocrisy, on the evidence, in what is happening today.
My parents escaped from the basest of persecutions. After my father, who was a deep-rooted Anglophile, got over my decision not to follow him into the medical profession—a decision about which he expressed deep disappointment, although it was probably to the benefit of my potential patients—taught me politics and history in an international context. He told me of his pride in living in a legal system that would make my qualifications respected throughout the world. I and many others in our current professional lives deal with businesspeople in many countries. One of the beacons that attracts them to making contracts with UK-based entities is their belief that, once a contract and agreement are reached, nothing will be changed in this country arbitrarily, gratuitously or for oblique motives. Some of those dealings are with the British Government.
I am ashamed that the Government are even considering empowering Ministers to derogate from the obligations of the United Kingdom under international law. I am dread-dazed that breaching international law is being contemplated in a way that could undermine the extraordinary achievements of courageous people on all sides in Northern Ireland. I am also appalled by the suggestion that we should be in breach of Article 26 of the Vienna convention, and I hope that the Government will listen to these debates, particularly today’s debate on my noble and learned friend’s amendment to the Motion, and change their mind.
Lord Lilley (Con)
My Lords, I congratulate the noble Baroness on her excellent maiden speech and look forward to hearing both her spoken and her musical words in future. As a non-lawyer, I enter this arena like a Christian facing a pride of angry legal lions. This is made worse by the fact that they have already captured my own archbishop. I am armed only with a simple question: what should a state do if it finds that its obligations under one treaty conflict with those under another treaty or its own constitutional law? The only reply I have received so far is: “You shouldn’t have signed the withdrawal treaty”.
That might work in a student debate, but it fails to address my question, so let me answer it myself, not in my own words but in those of the European Court of Justice. In the Kadi case, the court affirmed that, although the EU seeks to comply with its international legal obligations,
“it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally”.
Likewise, the German constitutional court has ruled that if treaties, even EU treaties, conflict with German constitutional law, the latter prevails. Of course, British Governments have disapplied aspects of international law, the most famous example being the United Nations Convention on the Law of the Sea, 15 days after it came into effect, when the future Lord Diplock ruled that
“the Crown has a sovereign right, which the court cannot question”,
to do so. Moreover, in Section 38 of the withdrawal Act, Parliament explicitly foresaw that it might need to set aside the direct application of the withdrawal treaty, as this Bill permits.
However, no one ever suggested when they disapplied parts of the conflicting laws that the European Court of Justice, the German court or previous UK Governments had broken the law—until Brandon Lewis uttered those fatal words. These have been seized on as a weapon by some, and proved a stumbling block for some of my closest friends, but I believe they should be disavowed. This raises the question: are there potential conflicts between obligations under the withdrawal treaty and our fundamental constitutional laws? There are certainly many internal contradictions within the withdrawal Act, but we ratified it because it contains a mechanism—the joint committee—in which both sides are committed to resolve outstanding issues in good faith and respecting each other’s legal order. So, given good faith and mutual respect, there should be no conflict with our legal order, the pillar of which is the Act of Union between Great Britain and Ireland, which pledges that “all prohibitions and bounties”—that is, tariffs—
“on the export of articles … of either country to the other shall cease.”
This is buttressed by the Belfast agreement, which promises no change in that union without the consent of both communities.
However, the EU has been showing little evidence of good faith, insisting on applying the entire EU customs code, which would mean that no goods could move from Northern Ireland to Great Britain without an EU export declaration—something my noble and learned friend Lord Clarke used to say was one of the disadvantages we would face in all our trade once we left the customs union. That is contrary to both the Act of Union and Article 6 of the protocol, which says:
“Nothing in this protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom’s internal market.”
In the other direction, the withdrawal treaty commits both sides to agree before the end of the transition period the definition of goods which are at risk of crossing into the Republic. The EU has implied that, if it declines to agree, the UK will have to levy EU tariffs on all goods going from Great Britain to Northern Ireland. Both these results would conflict with the Act of Union and the Belfast agreement. Happily, because of this Bill, the EU seems to be pulling back from both these positions. I hope that good faith will prevail and we will not need to implement the clauses in this Bill, but it would be irresponsible to leave this country unprepared by rejecting them.
Baroness Taylor of Bolton (Lab) [V]
My Lords, I welcome my noble friend Lady Hayman and congratulate her on her speech. I am absolutely sure that she will make many positive contributions to the work of this House, and it is good to see her here today.
There is no way that I can do justice within four minutes to the report of the Constitution Committee, which I have the privilege of chairing; I will restrict myself to remarking on some major points. When we first heard about this Bill, we were sceptical about the need for legislation, and particularly concerned about the impact on relations with the devolved institutions. I will come later to the rule of law issue, which is now receiving greater attention, but I emphasise the impact in terms of the unity of the United Kingdom. The Bill remains a major concern in respect of this.
The committee believes that there is no reason why the principles for the successful operation of the UK internal market cannot be arrived at consensually. There is, after all, broad agreement on the need to avoid erecting new barriers to trade. There are existing mechanisms to achieve this, including, of course, the common framework arrangements, which we are sometimes told are working well; the Government have never explained why these mechanisms are inadequate. Moreover, the devolved Administrations are required by law to adhere to international obligations such as trade treaties. If the Government are committed to the union, an internal market is needed that all parts of the union have bought into.
The committee took a great deal of evidence on the rule of law and has said very clearly that it applies to everyone, from government Ministers to the person in the street. We are all bound by and entitled to the benefit of the law; indeed, it is an essential characteristic of a democratic society and a fundamental principle of our constitution. The rule of law also includes compliance with international law—yet this Bill provides the Government with extraordinary delegated powers, which the Government themselves acknowledge are for the purpose of breaking international law. We believe that taking powers in this way to explicitly break international law is without precedent, and that for the Government to put such powers beyond the reach of judicial oversight is a step fundamentally at odds with the rule of law. For these reasons, I will support the amendment in the name of the noble and learned Lord, Lord Judge.
There are other concerns; that is obvious. There are implications for the Ministerial Code, on which we raise the question of the need for clarification of Ministers’ duties to comply with the rule of law; there is also the question of the scope of delegated powers, as addressed by the DPRRC; and, of course, the European Union Committee has outlined issues in relation to the Northern Ireland protocol, about which the noble Earl, Lord Kinnoull, and my noble and learned friend Lord Falconer have spoken. A cynic might say that the rumpus around this Bill aids the Government by drawing attention away from the basic ambiguity in their original approach.
Finally, I reiterate my view about the lack of necessity for this Bill. There is general agreement that we need a thriving internal market. No one has argued against it and existing arrangements can deliver this. On EU relations, I do not know whether the Bill is part of the Government’s brinksmanship but, even if that were its purpose, it would be no justification for legislation to break the rule of law. I do know that this legislation is damaging to the UK’s international position, and that this can be in no one’s interests at all. I regret that the Government have introduced the Bill. I ask them to rethink their approach and, particularly, to accept amendments to Part 5.
Lord Bruce of Bennachie (LD) [V]
My Lords, I join in congratulating the noble Baroness, Lady Hayman of Ullock, on her maiden speech. Like others, I look forward to hearing her contributions, whether about Cumbria or the environment, which I think the House will anticipate.
I deplore that a government Bill should contain Clause 45(2)(a), which trashes the UK’s reputation for upholding its treaties and honouring its obligations and seriously undermines our ability to negotiate effective agreements. I believe it reveals that the Government are under the stranglehold of anarchists and disrupters. Indeed, I have no doubt that it suits the dark forces in the Government that this part of the Bill has diverted attention from the other deeply damaging proposals that cut across the devolution settlements, to which I now turn.
I was closely involved with the Scottish Constitutional Convention, which laid the basis of the Scotland Act and the subsequent further extension of powers. I am a passionate home ruler but deeply inimical to the break-up of the UK, which I believe will cause fundamental and lasting economic—and, indeed, emotional—division and hardship. In typically British fashion, devolution has evolved differently in each devolved Administration and is not written into a basic law, but it has become accepted and it works. One of the reasons for this has been the overarching umbrella of the European Union, now being removed.
Awareness of the implications of this was raised by the Joint Ministerial Committee on EU Negotiations in October 2017, with a joint communique setting out principles behind the common frameworks to which many noble Lords referred. As a member of the newly established Common Frameworks Scrutiny Committee of this House, I am now aware that this work has been progressing slowly but constructively. A dispute mechanism is envisaged but has not yet been required, and it is the view of the devolved Administrations that this process is both fit for purpose and practical.
As the Constitution Committee stated, it appears that this Bill is anticipating problems that may never arise but seeking powers that prejudice the effective and consensual working of devolution. By contrast, the devolved Administrations can identify how the powers in the Bill would allow the UK Government to block or disrupt the working of devolution. This could affect building regulations, where, as has been pointed out, in Scotland we want higher insulation standards or we might want lower carbon specs. It could affect single-use plastics, where Wales and Scotland want tighter restrictions than England. The mutual recognition and non-discrimination rules could nullify such divergence, which is why the devolved Administrations argue that it could be an England-led race to the bottom.
Clauses 46 and 47 give the UK Government powers to initiate spending in devolved Administration areas without requiring the engagement or consent of the respective Governments. The motivation behind this seems blatantly disruptive. No doubt the people of Scotland, Wales and Northern Ireland may welcome extra cash from the Treasury over and above their own sources of revenue—city deals are an example of that—but for such a measure to be pursued without the participation or consent of the parliaments or Governments is the total negation of devolution. What is more, to be pursuing this only months before crucial elections in Scotland and Wales is a monumental misjudgment by a Government who care nothing for devolution and talk unionism while trampling all over the settlements that are essential to holding it together.
The Bill is not just unnecessary; it is downright provocative. It shows utter contempt for the hard-won measures that are essential to holding the United Kingdom together. Ideally the Bill will not proceed. If it does, it must be with the removal of lawbreaking and with the requirement of consent from the devolved Administrations, which currently seems unlikely to be forthcoming or even sought. What is missing from the Government’s approach is any concern, consideration or comprehension of the delicate balance of devolution. This is well summarised in the report published by the Centre on Constitutional Change. When five archbishops are motivated to put their anxieties into print, it is time for the Government to recognise that this hastily concocted and ill thought-out Bill is not fit for purpose, whatever the purpose is meant to be.
Baroness Noakes (Con)
My Lords, I support the Bill because it is an essential element of our preparations to be an independent nation again. Before we joined the EU we did not need special internal market arrangements for trade in goods and services within the UK, but devolution has changed that. We need the Bill to ensure that the different parts of the UK can continue to trade with each other as at present without incurring costs or negotiating regulatory hurdles.
The beating heart of the Bill is about protecting the devolved nations. The Government’s UK Internal Market White Paper of last summer showed that Scotland, Northern Ireland and Wales export more to other parts of the United Kingdom than to outside the UK. There are similar patterns for imports. Keeping the ability to trade within the UK on a barrier-free basis should be at the core of the belief set of each of the devolved nations. I have been surprised that they have not grasped this basic economic fact but have instead been focused on working up grievances about the Bill. The economic imperative is not the same for England, which trades goods and services outside the UK more extensively, but nevertheless, intra-UK trade is important for England too.
The Bill is also strongly pro-business. The plain fact is that most businesses in the UK do not export goods or services outside the UK. Roughly 90% of SMEs trade only within the UK. Keeping that intra-UK trade going without friction is of massive importance for the health of the UK economy and for the devolved nations.
Other sensible provisions in the Bill include ensuring that any subsidy control regime is UK-wide in order to avoid distortions in intra-UK trade. We simply cannot have an efficient and fair UK internal market unless subsidy control is exercised on behalf of the whole of the UK. I also welcome the new role for the Competition and Markets Authority.
I know that most of today’s debate will be taken up with the provisions of Part 5 of the Bill and the power that it creates to modify the European Union (Withdrawal) Act. The Government have been clear that they would use such a power only if it really were necessary to protect the position of Northern Ireland within the UK, that they would use it only as a last resort having exhausted all other routes, and, of course, that they would not put the issue of peace in the island of Ireland at risk. I am also clear that the other place would not let the Government do otherwise.
I hope that it is not necessary to breach international law, but we should remember that such breaches are not without precedent. Sometimes countries, and different Governments in our own country, have concluded that, faced with competing evils, the least harm is done by taking that decision. I hope noble Lords who have concerns about this part of the Bill will see that it has the best interests of the UK at its heart.
Lastly, I regret the highly political intervention today by the most reverend Primate the Archbishop of Canterbury and his fellow Anglican primates. Disestablishment is starting to look rather attractive.
Lord Hannay of Chiswick (CB) [V]
My Lords, I regret that our virtual proceedings mean that one can no longer welcome maiden speeches across the Chamber but has to do so remotely. I do that now, both to the one already made and to those that are coming.
I make no apologies for concentrating my remarks in this Second Reading exclusively on Part 5 of the Bill and its Clauses 44, 45 and 47. Other parts of the Bill certainly require the customary careful scrutiny, and very possibly the amendment, that we normally give to legislation, but this section is unprecedented—indeed, unique—and requires more drastic treatment. Why so? Because never before in Britain’s modern history have a Government brought forward a Bill giving them the authority to unilaterally break international law and override our treaty obligations—in this case, obligations entered into less than a year ago and legitimised by legislation passed by this Parliament following last December’s election. There is no doubt about that, because the Secretary of State for Northern Ireland stood at the Dispatch Box in the other place and told us quite explicitly that it was so.
Does that have implications going far beyond the subject matter covered by this Bill? Indeed it does. This country has prided itself that its word was its deed. In the 20th century, we twice went to war—to world war—in 1914 and 1939, to uphold our treaty obligations, but apparently our word will no longer be our deed if these provisions become law. Moreover, it is the Government’s view—which I happen to share—frequently put forward at our own Dispatch Box, that it is in Britain’s national interest to sustain and strengthen the rules-based international order. That order is currently under severe strain. How much credibility will our advocacy of that order have if we start picking and choosing which bits of it we intend to apply and which ones we intend to ride roughshod over? Very little, I suggest. I can just visualise the justifications that the representatives of Presidents Putin and Xi will put forward next time they wish to break international law and their international obligations; they will be identical to the arguments being used by the Government to defend the measures brought forward to us today.
I insist that this is not a matter of which side of the Brexit argument you are on. That matter was settled last January when this House endorsed the deal that the Prime Minister struck with the EU—the very same deal that we are now being invited to override—and it was settled when we left the EU at the end of January. That is demonstrated by the fact that critics of these measures are drawn from both sides of that Brexit argument. What really is relevant is the risk to the Northern Ireland peace process if the Government persist in the course that they have set out on. The Government’s protests to the contrary ring quite hollow to me. The balance of analyses points to a real, genuine, serious risk to that process.
Those are the reasons why I believe the principled course of action is to remove those parts that I have referred to from the Bill. There is just one word that I can find to describe them: an aberration. That is why I shall vote with the Motion in the name of my noble and learned friend Lord Judge.
The Lord Bishop of Leeds [V]
My Lords, I add my congratulations to the noble Baroness, Lady Hayman of Ullock, and look forward to her future contributions to this House. I fully endorse the arguments set out by the noble and learned Lord, Lord Judge. I concur with the concerns set out in the report cited by other noble Lords earlier. I even welcome the commitments articulated by the Minister, but I question how they can be trusted, given the underlying ethic of the Bill—and it is absolutely right for archbishops to ask questions of such matters.
Relations with potential partners usually depend on integrity. Trade, security, migration and so on all rest on fundamental trust. Trust cannot be one-sided, or it is not trust at all. Respecting one’s interlocutors is essential. This is inevitably evidenced in language. The Bill before us assumes that our interlocutors cannot be trusted and will behave in bad faith, and that we need to be protected from them. If they do not give us what we demand, we are free to do our own thing, including breaking the law and reneging on agreements made less than a year ago that were said at the time to be “oven ready”—a good arrangement that required “no more negotiations”. What the Bill does not ask is why our word should be trusted by others.
Integrity and morality matter at the level of international relations and agreements—unless, of course, we are now agreeing to reduce all our relations and transactions to some sort of utilitarian pragmatism. Morality also applies to how we remember history and establish what will shape the national mythologies that future generations will inherit. What story will be celebrated or commemorated next year, the centenary of partition on the island of Ireland: one that chose to end violence and respect difference, including different perspectives on identity, justice and unity, or one of a conscious abrogation of agreements built from bloodshed and courageous willingness to stem the wounds of grievance? Ireland, both the Province and the Republic, needs some certainty and shape in the future narrative, but what sort of certainty is built on a broken word, the negation of trust or the arrogance of exceptionalism?
Irish church leaders are surely right to be concerned about what the Bill implies for relations between the devolved institutions and with the UK Government. These leaders are not talking into fresh air; they straddle the border in Ireland and their deep concerns about a breach of the Good Friday agreement need to be listened to, not simply dismissed with a wave of boosterish optimism from Westminster.
Others will speak about the implications of closing an illegal route to challenge the Government’s implementation of the protocol, but let us be clear: parliamentary sovereignty does not translate easily into executive sovereignty. A decision to prefer short-term pragmatism over long-term ethics will lead to a future in which a question mark will hang over any statement by those whose word and adherence to the rule of law cannot be trusted. More is at stake here than economics.
Lord Hunt of Wirral (Con)
My Lords, I draw attention to my outside interests as set out in the register. In this important debate, it is vital that we do not lose sight of the bigger picture in two important respects. First, our society and our economy have been and continue to be battered this year by the effects of the global pandemic. All the Government’s deeply held fiscal aspirations have necessarily and rightly been jettisoned, as the Chancellor has done everything in his power to protect jobs, economic activity and the National Health Service. Our society and our economy are one and the same thing.
In 2016, the British people voted to leave the European Union and last December the Government won a clear mandate to see that policy through. In so doing, they are inevitably involved in complex negotiations, both with the European Union and, in practice, with individual member states, each with their own particular interests. Defending our economic interests is, and must always be, the paramount concern for Ministers, and that priority has never been more important.
A satisfactory trade deal with the EU was never going to be easy to achieve, with so many competing interests at play. Of course, there must be give and take on all sides. I have stated on many occasions that I believe a constructive and comprehensive post-Brexit trade deal between the UK and the EU is not only the best outcome but an outcome we must all avidly support. I think we all also agree that any repudiation of a treaty, or any action that might be seen as a breach of international public law, must be avoided if at all possible and used only as a last possible recourse in the most extreme situations. I strongly support the tribute paid by the noble and learned Lord, Lord Wallace of Tankerness, to my noble and learned friend Lord Keen of Elie. We certainly miss him in this debate. However, after the damage inflicted by Covid-19, we surely cannot afford to allow anyone, internally or externally, to jeopardise the integrity or efficiency of our internal market in the United Kingdom. That seems to be the actuating principle behind the Bill. Of course, in a Second Reading debate, it is the principle that we are considering.
There is a second point, which is the role of this House. I never cease to be impressed by the exceptionally erudite and public-spirited contributions we hear, week in, week out, from these Benches, especially today with the brilliant maiden speech of the noble Baroness, Lady Hayman of Ullock. None the less, we must not lose sight of where we stand in the delicate constitutional settlement of this land. It is our obligation fairly to consider propositions sent to us by the House of Commons and, where possible, to improve them. On the assumption that that convention is honoured and the Bill progresses, there will be bountiful opportunities to return to the details of this legislation. For now, however, with Her Majesty’s Ministers engaged in highly technical and demanding negotiations, the outcome of which is of the utmost importance to us all, I hope we will find ways of strengthening the hands of those who represent us, rather than seeking to tie them.
Lord Whitty (Lab) [V]
My Lords, most contributions so far have related to Part 5 and the Government’s somewhat ham-fisted attempt to unilaterally disavow an undertaking made only a few months ago. I agree with those sentiments. and with the reports of the Constitution Committee and the EU Select Committee and the contributions by their chairs, the noble Baroness, Lady Taylor, and the noble Earl, Lord Kinnoull. I will also support the Motion in the name of the noble and learned Lord, Lord Judge, at the end of the debate.
However, this is quite a big Bill, and I want to talk about something else. Before doing so, I welcome my noble friend Lady Hayman to the Chamber. I commend her speech, including the importance that she stressed of environmental standards, which relate to this Bill as much as they do to much of the legislation we will face over the coming months.
I want to talk about state aid, which is in the Bill but is dealt with rather superficially. It needs to be clearer before the Bill finishes its passage through this House. In a sense, the noble Baroness, Lady Noakes, referred to this in her contribution. She and I were members of an EU Select Committee that produced a report on state aid about two years ago. We rarely agreed on anything fully, but we do agree on the importance of this issue.
At its most acute, the issue of state aid could be epitomised by the issue in Northern Ireland. As a result of the agreement and the way the Government are now pursuing the matter, through the Northern Ireland protocol Northern Ireland is to be part of the customs union and, to a large extent, the single market. So if the Stormont Government gave a subsidy or preferential public procurement arrangement to, say, a Northern Ireland textile company, the main exports of which are to the Republic, and if its Irish competitors objected, would EU state aid rules prevail or would the UK internal market rule prevail? It is clear that we need a UK state aid regime and it is fairly clear how that will relate to our international obligations under the WTO and, I hope, to future bilateral free trade agreements. But it is not at all clear how it will operate in relation to the internal market, which is the focus of the Bill. If that same Northern Irish company’s main export were to Scotland, what then would the arrangements be? If it were to England, would it be different again, because there would be an equivalent objection from England-based competitors?
The fact is that industrial, employment and consumer policy—all of which are relevant to state aid considerations —are differentially devolved between the three Administration and centralised in England but not in the UK. Of course, even in England there is the expected intention to devolve more industrial and employment policy to the English regions, so the question could, at some stage in the future, apply to Greater Manchester, which may have a different industrial and employment support system from that in the West Midlands. How does that play out in the new state aid framework?
The central question is whether there is yet a draft framework for all of this in relation to state aid, at least between the UK Government and the Scottish, Welsh and Northern Irish Governments. If not, what do the Government think it should look like and, above all, how should it be enforced? Is the office for the internal market, due to be established within the CMA, wholly a creature of the UK Government or will the devolved Administrations have a say in its governance and decision-making? During the EU regime, the Commission’s state aid arm had authority over member states, with prohibitions and fines at its disposal. That could be the case for the CMA.
Baroness Bloomfield of Hinton Waldrist (Con)
I remind noble Lords of the speaking limit.
Lord Whitty (Lab) [V]
Before the passage of the Bill, we need to clarify these issues.
Baroness Suttie (LD) [V]
I also add my congratulations to the noble Baroness, Lady Hayman, on her excellent maiden speech. I look forward to hearing her speeches in the future.
What is perhaps remarkable about the speeches we have heard is that the overwhelming majority, on all sides of the House, agree that the Bill is both unnecessary and deeply damaging. As has been pointed out, we have only four minutes, and so I will make three points.
The first is simply to recall, as other noble Lords have, that this is a problem of the Government’s own making. The fact is that the Prime Minister insisted that it was possible to do three incompatible things. As the noble and learned Lord, Lord Clarke, so eloquently explained, the Government insisted that the whole of the United Kingdom could leave both the customs union and the single market while simultaneously avoiding a hard border on the island of Ireland, as well as down the Irish Sea. Their solution was the Northern Ireland protocol. Just 10 months ago, the Prime Minister referred to the withdrawal agreement with the protocol attached as “fantastic” and “historic”. The Northern Ireland protocol, which is far from perfect, is none the less a carefully constructed compromise to try to maintain peace and stability on the island of Ireland and to protect the Good Friday/Belfast agreement.
My second point is that the Bill in reality does little to address the actual problem about which Ministers claim to be concerned. It does nothing about checks on goods crossing from Great Britain to Northern Ireland, only theoretically providing a power to avoid checks in the other direction. If the UK Government are concerned to ensure that everything possible is done within the protocol to facilitate GB-NI trade, they have the legal means at their disposal through the joint committee.
My third and final point is this: the people in Northern Ireland, from all communities, have been let down too often already by this Government. It is just less than a year since the Executive in Stormont were restored. The progress made in the last 20 years is not something that can, or should, ever be taken for granted. Repeated polling makes it very clear that a majority of people in Northern Ireland recognise the need for the protocol, despite its challenges. They do not want the Government to break international law on their behalf. Businesses need economic certainty and the people of Northern Ireland deserve much better than being used as a political football in the Brexit talks. The solution is clearly to negotiate a better, closer deal between the EU and the UK, and then to use agreed mechanisms to protect trade between Great Britain and Northern Ireland. If the Bill is intended to strengthen the mechanisms that hold together the United Kingdom, it is clearly not succeeding. If the Bill is a short-term tactic to strengthen the Government’s negotiating hand, it is hard not to conclude that the loss of trust that it has generated will do long-term harm to our international reputation.
Lord Howard of Rising (Con)
My Lords, comments of genuine legal concern criticising Part 5 must be respected, however disproportionate. However, most of the adverse comments are, frankly, sour grapes from remainers. That Britain would lose its reputation by passing the Bill is nonsense. There are endless examples of EU bad behaviour: the French shepherding illegal immigrants into British waters, or the EU wilfully breaking international law as with Airbus, et cetera, et cetera. The EU ignores the law with complete abandon. To quote the EU Advocate-General,
“it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally”.
There is a very strong argument that Part 5 would not be in breach of international law. There is not time to discuss detail, but the EU’s behaviour means that various articles of the Vienna convention give the UK the freedom to implement Part 5, if required. If anyone is in doubt, let me quote the noble Lord, Lord Pannick—one of this country’s most distinguished advocates:
“If, therefore, the UK and the EU were unable to reach an agreement on Northern Ireland/Ireland, despite good faith negotiations and despite the arbitration procedures, and if the UK were therefore to be faced (against its will) with a permanent backstop arrangement, the UK would be entitled to terminate the withdrawal agreement under Article 62 of the Vienna convention on the Law of Treaties.”
Furthermore, Section 38 of the withdrawal agreement Act, passed by your Lordships, fairly and squarely confirms the supremacy of Parliament. The Bill gives the power to act if Parliament so agrees. The Bill itself does not initiate anything, so whatever view you take, the passing of the Bill is not an illegal act.
The withdrawal agreement was signed in expectation of reaching a reasonable agreement. For the EU to threaten to withhold third-country status or use the Northern Ireland protocol to try and gain advantage in discussions is not acting in good faith. Monsieur Barnier saying that not even a pat of butter may go between England and Northern Ireland demonstrates this attitude. It is an example of the view expounded by Verhofstadt’s team that Great Britain will become the EU’s first colony. It is how Britain has been treated throughout negotiations. Last Thursday it’s the EU Council arrogantly restated that the its opening position was its continuing position. This is not negotiation but dictation.
With no clear argument against Part 5, we must put the interests of our country first and foremost. We must do our best to achieve what the people of Great Britain have consistently voted for and rid ourselves of EU control. Including Part 5 will show the EU that we are not a colony and are not prepared to be treated as one.
Baroness Andrews (Lab) [V]
My Lords, it is with great pleasure that I join with others in welcoming my noble friend Lady Hayman to this House and congratulate her on her speech. I am sure we will hear many marvellous speeches from her, and it has been good to hear her in this remarkable debate this afternoon.
In respect of Part 5 of the Bill, I would simply say that the recent amendment in the name of the noble and learned Lord, Lord Judge, speaks entirely for me. The changes that are made in this Bill in another place—which simply make Parliament an accomplice in breaking the rule of law—are totally unacceptable.
I want to focus on the risks in the Bill, and particularly on the way it threatens to restrict the existing powers of the devolved Administrations by imposing overriding constraints on the scope of the common frameworks. I declare my interest as chair of the Common Frameworks Scrutiny Committee. For the past three years, and in the context of the incorporation of European law, the four countries of the UK have worked hard to create new consensual common frameworks specifically in order to secure a well-functioning internal market. Of the 40 or so frameworks in progress, some will carry their own legislative competence, but they will all, as appropriate, have their own dispute mechanisms in place. This has been done on a collaborative basis, by agreeing common standards across agriculture, the environment, health and safety—all balanced by respect for the devolved Administrations, in the future as in the past, to diverge in detail, as they see fit.
This managed divergence has led, and will lead in the future, to welcome innovations: not least, for example, for Scotland to introduce minimum alcohol pricing, or Wales a more rigorous approach to single plastics or to refusing GM products—so far, so good. The genius of the process is that co-operation and flexibility have built a stronger foundation of trust between the four nations, just at a time when intergovernmental arrangements have been at their most challenging. Despite the brake on progress caused by the no-deal preparations and now the pandemic, we expect five frameworks to be agreed in the next few months, and more to follow shortly.
This Bill, according to the chairs of both the Constitution Committee and the European Union Committee, threatens to frustrate and disrupt progress made so far and undermine future co-operation, because it does indeed—despite what the Minister has said—provide the Government with powers to alter the competences of the devolved Administrations. Scotland has already withheld consent; Wales and Northern Ireland are deeply provoked. Specifically, the provisions for mutual recognition and non-discrimination would generally require that goods and services that could be legally sold or provided in one part of the UK would have the same legal right to be put on the market in every other part. Forget chlorinated chicken; Wales could not even require different labelling to show the higher levels of fats in a food product. If England were to allow hormones in beef cattle, Scotland could not prevent the import and sale of such cattle. Unlike the European precedent, the only goal is to remove potential barriers to trade at all expense. All other public policy goals are abandoned.
The restraints on devolution set out in these extraordinary and unprecedented delegated powers came as a shock to the devolved Governments. Far from the powers being designed for co-operation, the devolved Governments were not even consulted. They see this as creating new risks, as well as being an attempt to reduce their powers. So my fundamental question to the Minister, once again, is: why is this Bill necessary? What is there to gain from it that cannot be achieved by the common framework principles and process? Why take these risks? It cannot be because the Bill will provide a dispute mechanism, because each framework already has that to resolve differences.
Today the Government received a unique and stern warning from church leaders across the UK not to risk destroying the trust that binds the four countries. I hope that the Minister will not only listen to what the House is saying but will have the wisdom and grace to change the Government’s mind.
Lord Bridges of Headley (Con)
My Lords, I support almost everything in this Bill, although I do regret that Part 5 is in there. I regret that the Prime Minister told Members of Parliament last October that the treaty is a great deal for the entire country and
“a great success for Northern Ireland”—[Official Report, Commons, 19/10/19; col. 581.]
and that the protocol is
“an ingenious scheme”.—[Official Report, Commons, 19/10/19; col. 594.]
But now he wants to rip it all up. I regret, therefore, that the Government either did not understand the implications of the treaty and the protocol, or that they did understand its consequences but, privately, always intended to breach the treaty.
The issues that the Government see as a pretext for breaking their word at some future date have existed and been debated at length for the past few years. This is precisely why the treaty contains processes to deal with them. Consequently, I regret that the Government have decided to call into question the treaty before exhausting the dispute resolution process that the treaty contains. Yes, Parliament will be given a vote before these powers can be used—but let us not forget that the Government’s original plan was no Parliamentary vote, which I regret says a lot about the Government’s intent. Furthermore, I regret that it appears that the very introduction and enactment of the Bill are in breach of the UK’s international obligations, even before these clauses are brought into force or used to make regulations. I would ask my noble friend Lord True to confirm whether this is so when he winds up.
More broadly, I regret that we are being told by some that, just because other nations may disregard treaties they have entered into, somehow this justifies us breaching a treaty we have entered into in good faith. Two wrongs do not make a right. The Prime Minister once said that
“the rules-based international order which we uphold in global Britain is an overwhelming benefit for the world as a whole.”—[Official Report, Commons, 13/3/17; col. 89.]
I agree. I just regret that Part 5 is now calling this into question. Above all, I regret that Conservatives who want to support the Government but believe in upholding the rule of law, are being asked to choose between party and principle. What is at stake here is not “leave” or “remain”; it is our approach to public life, how we think about our place in the world, whether we think it still matters that Britain’s word is its bond and, of course, underlying all of that, our belief in the rule of law.
My noble friends Lord Callanan and Lord True are men of integrity. I have known my noble friend Lord True for decades and I will always see him as a good friend, but on this we differ. Principle comes before party and so, with regret, I will be voting for the amendment tabled by the noble and learned Lord, Lord Judge.
Lord Campbell of Pittenweem (LD)
My Lords, I, too, congratulate the noble Baroness, Lady Hayman of Ullock, on an outstanding maiden speech. However, there is little time for niceties, because I believe that this is a contemptible Bill, in turn contemptuous of law and contemptuous of Parliament. We must, I suppose, thank the Secretary of State for Northern Ireland for his frankness—it may yet cause him to lose his Cabinet place—in admitting at the outset the illegality inherent in the Bill. The noble Lord, Lord Lilley, suggested that that should now be disavowed. The noble Lord, Lord Callanan, had that opportunity when he opened the debate, but far from disavowing it he chose not to mention in any detail whatever the particular clauses that are the most controversial.
Following the admission of the Secretary of State for Northern Ireland, an amendment was passed in the House of Commons. There are those who argue that that amendment somehow cures illegality, but an illegality, whether authorised by Cabinet or by the Commons, is still an illegality, and it is misleading to claim otherwise. I would go further: it is an abuse of this House to invite us, when we are encouraged at this stage to accept the principles contained in the Bill, to accept the principle of illegality.
Like several noble Lords who have spoken, I have the privilege of holding the commission of Her Majesty as one of her counsel learned in the law. Will those who support the Government please tell me how I can fulfil the obligations and responsibilities of that privilege by endorsing the illegality contained in this Bill? If anyone is still in doubt about the illegality, they should read the analysis of Clauses 42 to 45 produced by the Bingham Centre. They should tell us which parts of that analysis they disagree with. They should go further: they should tell us which conclusions of the Constitution Committee of this House they regard as not being well founded. Generally, they should tell us how we can discharge the obligations and responsibilities of membership of this House by endorsing illegality at the whim of a Government.
We regularly recognise the legacy of John Major and Tony Blair in the production and continued observance of the Good Friday agreement. No one in government, however, paused to reflect on the importance of the Good Friday agreement in the domestic politics of the United States. Noble Lords had better believe the words of Speaker Pelosi: there will be no trade deal for Britain with the USA if there is any adverse impact on that agreement. The fact is that whether or not in the end the Government exercise the power to commit the illegality, the damage is done: our reputation is besmirched and the credibility of the United Kingdom undermined. This is shabby business and we should have none of it.
Lord Empey (UUP)
My Lords, I congratulate the noble Baroness on her maiden speech and I look forward to many more on a variety of subjects.
This Bill illustrates how our constitution has been evolving in such a haphazard way over the last two decades, with ill-thought-through lurches into various forms of devolution without a comprehensive plan to co-ordinate them. We have succeeded in falling out with the devolved Administrations and have the consent of none.
I wish to speak to Clauses 44, 45 and 47, but the reason why they exist at all has its roots back in decisions taken one year ago. On 2 October 2019, Her Majesty’s Government produced a proposal for an amended protocol on Northern Ireland entitled Explanatory Note. This note said that the protocol was based first and foremost on our commitment to finding solutions compatible with the Belfast/Good Friday agreement, but if that was the commitment it has not been met.
The Explanatory Note did the following: it proposed to establish a regulatory border in the Irish Sea requiring checks on goods and produce moving between Great Britain and Northern Ireland; it required the establishment of border inspection posts as required by EU law, and traders moving goods from Great Britain to Northern Ireland to notify the authorities in advance. Her Majesty’s Government proposed the establishment of a regulatory border in the Irish Sea with border control posts and the ongoing involvement of the EU courts in Northern Ireland. How on earth is this compatible with unionism?
For some inexplicable reason, the Explanatory Note of 2 October was endorsed by the Democratic Unionist Party. Arlene Foster issued a statement describing it as
“a serious and sensible way forward.”
This opened the floodgates for Brussels and Dublin, and two weeks later the deal was done. How any unionists can support any kind of border in the Irish Sea escapes me. The establishment of this border and the arrangements contained in the subsequent withdrawal agreement are a clear breach of the Belfast agreement. These proposals change the status of Northern Ireland and have the same negative effect as having a land border, which everybody has sought to avoid. Her Majesty’s Government now see Clauses 44, 45 and 47 as essential to keeping some semblance of cohesion in the United Kingdom, illustrating the shoddy nature of the negotiations conducted last year. I have little doubt that some EU negotiator did threaten to prevent food coming from Great Britain to Northern Ireland. That individual must have very little knowledge of Irish history.
Nevertheless, to plunge ourselves into a legal quagmire and various constitutional contortions is not the answer. There is another way: instead of blathering on about the Belfast agreement, which has been used as a political football by Brussels, we should use it as part of the answer. It never ceases to amaze me that those of us who negotiated the agreement are never consulted about its intentions or how some legislative proposals might affect it, even though there are many of us in your Lordships’ House.
The UK could legislate to prevent our territory being used for the export of non-compliant products into the EU market. We could also indemnify the EU if non-compliant products succeeded in getting through. We could, by treaty, establish another cross-border body for educating businesses and preventing any single market contamination, and join the EU to that treaty if some additional devolution to Stormont was initiated.
How are we in such a mess because of trade flows across the land border that accounts for 1.6% of Ireland’s total imports, or, to put in another way, 0.1% of EU trade flows? If we can break a protocol that we ourselves proposed a year ago, even though I continue to oppose it, all bets are off with regard to Scotland, Gibraltar and the Belfast agreement itself. Precedent, dear boy, precedent.
Baroness Boothroyd (CB)
My Lords, I was elected to Parliament some 47 years ago and have witnessed nine Prime Ministers tread the steps of No. 10 Downing Street. However, never in my parliamentary experience have I witnessed such a collapse of the people’s trust in a Government who promised so much and so quickly and who are now groping for desperate solutions to problems that they said would not arise or, if they did, could easily be resolved.
It has been a privilege to listen to such fine speeches this afternoon. Perhaps I thought they were fine because I agreed with most of them. However, let us not beat about the Euro-bush: the Prime Minister set the course that we are on and shows no remorse for steering us off it. The claim continues to be made that a no-deal end to our membership of the European Union is nothing to worry about and that we have every right to break a clause in an international agreement because we do not trust our European partners, but it was our European partners who joined us in signing that very agreement.
Future historians will not need a test-and-trace operation to find those responsible if we end up in a legal battle in the Supreme Court and an economic crisis that rivals the 1930s depression. I was a young girl in the 1930s and I saw the poverty and misery it caused at close quarters, so of course I was alarmed when I read that the noble Lord, Lord Agnew, a Cabinet Office and Treasury Minister, was reported to have said that British businesses and commerce were not as ready as they should be for the start of our new terms of trade with Europe in January. What terms of trade is he talking about? Those whom I know who are working in business and commerce would certainly love to know.
I ask the Government: can we break future terms, as easily as we appear intent on breaking the Northern Ireland protocol, if we do not like the way they work after January? The low regard shown by the noble Lord, Lord Agnew, for British industry and commerce went even further. He was reported to have said that our traders have their heads in the sand as they approach January’s deadline. I am sorry that he did not heed Denis Healey’s advice:
“When you’re in a hole, stop digging.”
The blame game has evidently begun, and the PM started it. He dictates a strategy and blames others if it does not work.
No sooner had the Prime Minister finished his sunshine forecast on Friday, of the prosperity he claims will surely follow there being no trade agreement with the EU, than a New York analyst made a withering comment that took my breath away. Our credit rating had just fallen dramatically but he did not write us off. He did not spare us either. He said:
“the quality of the UK’s legislative and executive institutions has diminished in recent years.”
Who can deny it? The Prime Minister’s claim that we shall survive no deal because we have
“high hearts and complete confidence”
in the future will be exposed as what it is: a sham.
The latest line from Downing Street is that we shall insist on legal texts in future negotiations. If the Government had paid close attention to Article 10 of the Northern Ireland protocol before signing it, they would not need to override it in this Bill. Trust in this Government, both nationally and internationally, is in short supply but our parliamentary democracy has deep roots and I trust that this House will defend our laws and traditions. Who knows? There is still time for yet another U-turn. One thing I am certain of, we shall not deserve our reputation and regain our self-respect until once again the world knows that our word is our deed and that we are committed to the rule of law.
Lord Forsyth of Drumlean (Con) [V]
My Lords, as president of the Steam Boat Association I know a bit about boilers. They are potential bombs and have the capacity to blow a vessel to smithereens. By law, they must be tested annually and have two safety valves to release steam if the pressure exceeds a safe level. The second valve is there to deal with the unlikely failure of the first. In the words of the noble and learned Lord, Lord Judge, it does not cure the fault but it prevents the destruction of the ship. This Bill provides for that second safety valve in the event that the EU does not respect the disputes procedures under the withdrawal agreement, does not comply with its duties of sincere co-operation and threatens the very integrity of our United Kingdom.
After all, the withdrawal agreement was signed on the basis that a trade deal would be implemented in 2020. The Canada-style free trade deal was offered by Mr Barnier but now we are told is no longer available. It is easy to make a case now that the EU is negotiating in bad faith, a point made by my noble friends Lord Howard and Lord Lilley. I have some experience of this kind of duplicity on the part of the EU, which I share with the noble Lord, Lord Kerr. I go back to John Major’s opt-out from the social chapter. We thought that that meant that employment policies were subject to a veto by us but, hey-ho, the EU decided that working time was a health and safety measure and therefore subject to qualified majority. As I recall, the advice from the noble Lord, Lord Kerr, and others at the time was that there was no point in us going to the court to argue on a point of law because the European court would always advance the acquis and was a political court. Let us not be starry-eyed about how the European Union acts in the interests of the rule of law.
I very much regret that my noble and learned friend Lord Keen is no longer on the Front Bench and that he was forced to resign even though he launched a lifeboat for the Government. He suggested that the Northern Ireland Secretary had answered the wrong question in the Commons when asked if the Bill breached or potentially breached the law. He was making the point that “potentially” was the right answer. As Advocate-General he told the House,
“in my opinion, the present Bill does not of itself constitute a breach of international law or of the rule of law.”—[Official Report, 15/9/20; col. 1129.]
That is good enough for me to support this Bill being given a Second Reading. It is for the Committee stage to consider this further, and I ask my noble friend Lord True to make it crystal clear in his wind-up tomorrow that these provisions in Part 5 would be used only in extreme circumstances and be subject to parliamentary approval.
I have enormous respect for the noble and learned Lord, Lord Judge, although comparing this to the abuses of apartheid seemed a little over the top. My noble friend Lord Cormack is assiduous in his work in this House but I cannot vote for the amendment, which is nothing more than parliamentary graffiti. The Bill was passed by a huge majority in the House of Commons and, despite the amendment before us and more than 100 speeches, it will be given a Second Reading in the House tomorrow. Only the Liberals with their miserable mandate at the general election have contemplated throwing the Bill out. Rightly so, for this Bill protects, enhances and strengthens the union. More than half a million jobs in Scotland depend on the integrity of the internal market, and scores of powers are being returned from a supranational bureaucracy to our elected representatives. The very Act of Union itself was about creating a barrier-free internal market and it has brought about more than 300 years of prosperity.
I cannot tell the House how disappointed I was to see the most reverend Primate the Archbishop of Canterbury putting his name, together with other senior Anglican bishops, to a letter in today’s FT headlined “Internal market bill undermines the strength of our union”. Those who wish to break up Britain will be much encouraged by their efforts.
Lord Haskel (Lab) [V]
My Lords, I too welcome my noble friend Lady Hayman and congratulate her on her maiden speech. I serve on your Lordships’ Delegated Powers and Regulatory Reform Committee. This committee was formed in 1992 to deal with the growing tendency of Governments to seek wide order-making powers which give Ministers unlimited discretion. The Bill is a prime example of why that committee is needed. We draw your Lordships’ attention to 11 delegated powers in the Bill, which include seven Henry VIII powers, to which the noble and learned Lord, Lord Judge, referred. These powers allow Ministers to amend, repeal or modify an Act of Parliament or a statutory instrument. Under Clauses 42, 43 and 45, Ministers are able to disregard any international or domestic law which they consider to be incompatible or inconsistent with the Northern Ireland protocol. That is why in paragraph 2 of our report we say that
“Some of these powers are extraordinary; others are unprecedented.”
As the Minister explained, the stated purpose of the Bill is to allow free trade within the United Kingdom. Clause 3 states that any item permitted to be sold in one part of the United Kingdom under devolved legislation is automatically available for sale in other devolved areas on the principle of mutual recognition of goods. This means that the lowest standard becomes acceptable. What is more, this requirement applies not only to the goods themselves but to their packaging, labelling, assessment, registration and documentation, as my noble friend Lady Andrews explained. This is despite government assurances that our standards will not fall when we leave the EU. Standards become a race to the bottom, as the noble Lord, Lord Bruce, explained.
The committee’s view is that Clause 3 should be deleted. I understand that amendments will be brought forward to do this. There are further clauses in the Bill which override powers granted to the devolved Administrations regarding such things as consumer protection, financial aid and social welfare; indeed, powers are granted to UK Ministers to spend money over the heads of devolved Administrations, even on devolved matters.
Clauses 42 and 43 allow Ministers to disregard provisions of international or domestic law for technical reasons; this is one of the unprecedented powers to which our report refers. When your Lordships reported in September, the Bill was in the other place, and, as we say in our note dated 13 October, the Government did not take the opportunity to address the points which we raised. It seems to me that this disregard for the arguments of your Lordships’ committee is yet another example of this Government seeking to impose their will rather than seeking parliamentary approval. In doing so, they ignore the public interest in matters of law, diplomacy and the nation’s integrity. This undermines the integrity of public life and allows Ministers to break the Ministerial Code. The only justification seems to be that Ministers need these powers to act quickly, especially in an emergency. Well, Parliament can act quickly and in an emergency. Speed is no reason for imposing the will of Ministers on the devolved Administrations in this divisive manner.
Baroness Humphreys (LD) [V]
My Lords, it has been a great privilege to listen to the speeches of noble Lords today, especially those who have voiced the concerns of so many of us about this Bill and the impact its invitation to collude in the breaching of international law has already had on the UK’s standing on the international stage.
Politicians in Wales are equally deeply concerned by the contents of this Bill and the implications it has for Welsh devolution, and none more so than David Melding, the highly respected and long-serving Conservative Senedd Member, who resigned his position as shadow Counsel General last month. He cited the need to be able to speak out against what he considers to be,
“a lack of statecraft at this crucial time for the UK’s very survival as a multi-national state.”
Those three words, “lack of statecraft”, are the most telling; a stinging criticism from one of the Senedd’s most loyal Conservatives, and three words that sum up what is so wrong with this Bill. Statecraft involves diplomacy, co-operation, consultation and consensus, but these are words no longer associated with the delivery of the UK’s internal market, and despite the Minister’s conciliatory words and tone when introducing this debate, the words on the face of this Bill tell another story.
It is clear that the UK Government’s response to dealing with devolved governance issues that arise will be to resort to government by diktat. For example, the principles of mutual recognition and non-discrimination are, according to this Bill, to be applied to all goods and most services, with a highly limited list of exceptions which can be changed by UK Ministers through secondary legislation without consultation with the devolved Administrations. In Wales, this is seen as a fundamental assault on devolution, preventing the Senedd carrying out its duty of protecting the citizens of Wales from substandard goods and services.
The proposal that UK Ministers should take new funding powers to enable them to fund hospitals and schools in Wales without consultation with the Welsh Ministers who have the devolved responsibility for these areas is provocative, as is the threat to build the M4 relief road against the decision of the Welsh Government, a decision endorsed by the Senedd on cost and environmental grounds. This attempt to chip away at the powers of the Senedd is an example of Westminster colonialism at its worst. I understand the Government’s dislike of the EU flags seen on Objective 1 projects in west Wales and the valleys, and their need to see the union flag on new projects, but far better to make an investment in areas which are not devolved and for which the UK Government have actually been responsible for years and neglected.
As many noble Lords have already said, the irony is that this Bill is mostly unnecessary. Continued work on common frameworks with the devolved Administrations would ameliorate its impact. The work already carried out by the devolved Administrations, your Lordships’ committee and the UK Government until now has been an example of statecraft at its best. Most worryingly, the imposition of decision-making by Whitehall in areas of devolved responsibility will do nothing to aid the UK’s survival as a multinational state.
Lord Lamont of Lerwick (Con) [V]
My Lords, I want to concentrate on Part 5 and the amendment in the name of the noble and learned Lord, Lord Judge. I have already publicly criticised the statement by Brandon Lewis that the Bill breaches international law. Since the Government have not withdrawn that statement, I have no choice but to vote for this amendment. However, I confess that I am in a dilemma. What the Government are doing certainly is wrong, but on the other hand, the provisions of the Northern Ireland protocol are potentially disastrous. It is a choice of two evils. How can we break international law, and, on the other hand, how could we ever accept tariffs being levied on goods going from one part of our country to another—a border in the Irish Sea? That is not the trivial matter that the noble and learned Lord, Lord Falconer, suggested; it is a threat to the Good Friday agreement. I am also sensitive to the danger of undermining at this moment the Government’s position in negotiations, if they resume.
Many eminent lawyers have spoken in this debate and their verdict has left nothing for the day of judgment, but is this just a legal matter? The Northern Ireland protocol is not a black and white, unambiguous document. It is full of contradictions and matters to be resolved later. There are plenty of examples internationally of politics trumping law. One thinks of the Maastricht treaty and the ignoring of all its provisions on deficits and debt. The disputes between the German constitutional court and the EU have some parallels with our present stand-off, as my noble friend Lord Lilley suggested. Then there is the case of the United States tearing up the Iran nuclear deal; that was an agreement, like the withdrawal agreement, which was lodged at the UN and then simply torn up because the new President took a different view. One may regret these things, but it is fanciful to suggest that the provisions in this Bill would prevent us criticising human rights in China.
The House must bear in mind one important point when considering this Bill. Even if the Commons votes to commence taking the powers in Part 5, the House of Lords would still be able to overturn the policy by voting against the statutory instruments that would negate the protocol. I ask my noble friend Lord True—who knows a huge amount about procedure, perhaps more than anyone else in the House—to confirm that this interpretation is correct, and that even after enactment there will still be opportunities for the Lords to vote against the Government if they choose to activate the policy?
The Government should never have got into this position. I am not convinced by their protests that the EU is not negotiating in good faith; if you lose a negotiation, it is easy to accuse the other side of acting in bad faith. However, the problem we have has been staring us in the face ever since the protocol was agreed in October 2019. That very month, the then Brexit secretary told the Lords EU Select Committee that there would be no export certificates between Northern Ireland and GB. A few hours later, he withdrew that and admitted that there would, but the PM continued in denial and said—including during the election—that if anyone got such a document, they should tear it up.
Today, the Government are trying at the last minute to strengthen their negotiating position by rescinding what they had previously, foolishly accepted. I believe that they have made a mistake in trying to take these powers. The amendment in the name of the noble and learned Lord, Lord Judge, regrets the Part 5 provisions. If the amendment is agreed, what follows is for us to decide later, but since I certainly regret what the Government have done, I shall vote for the amendment.
Lord Rooker (Lab) [V]
My Lords, I welcome my noble friend’s maiden speech and look forward to hearing others. In its summary of the Bill, the Constitution Committee mentioned, among others, the following words: does not justify; it is regrettable; engagement has been poor, limited and unsatisfactory; consultation is problematic; the Bill does not mention common frameworks; there is no time for adequate reflection; delegated powers are extraordinary and unprecedented; many are constitutionally unacceptable; and the Government should explain whether clause 6 seeks to constrain Parliament’s law-making power. It is, therefore, legitimate to ask about the drafting of the Bill.
When I was a Minister in the other place, 20 years ago, there was an occasion when I had to call a halt to a Standing Committee where I was in charge of a Bill. The details are unimportant, but it was only then that I discovered that policy officials do not talk to parliamentary counsel who draft the Bill. They commission the department’s lawyers, who then brief parliamentary counsel. I presume that this is to lock in the client legal privilege rules. So it is clear that government policy officials have briefed departmental lawyers to request parliamentary counsel to draft a Bill which, among other things, appears to “constrain Parliament’s law-making powers” and constrain the judicial review function so as to put ministerial regulation-making powers above the law in an unprecedented manner. Parliamentary counsel have carried out that instruction—and that I think is worrying.
The role of the House of Lords is to protect the parliamentary process. It should be a red line for this House. This Bill has the seeds of undermining the primacy of the House of Commons. I will repeat that. This Bill has the seeds of undermining the primacy of the House of Commons. Are there any limits to what can be put in legislation, or will parliamentary counsel simply use the Nuremberg defence?
As the Joint Committee on Conventions of the UK Parliament made clear in its report in October 2006, quoting the noble Lord, Lord Wakeham, the Lords should be very careful about challenging the views of the,
“House of Commons on any issue of public policy.”
It is not an issue of public policy to agree legislation that neuters the parliamentary process, and neither the Government nor the Commons can claim it is. As such, this Bill, which is in no way a manifesto Bill, requires substantial amendments and deletions. Afterwards, we should hear from parliamentary counsel as to whether they operate within any boundaries with respect to defending the parliamentary process.
Lord Wigley (PC) [V]
My Lords, I warmly agree with the words of the noble Lord, Lord Rooker. I congratulate the noble Baroness, Lady Hayman, on her fine maiden speech. I particularly welcome her Welsh half and her comments on devolution, rural affairs and the environment.
I oppose the Bill, which goes way beyond the policy proposed by the Government at the general election. This House would be totally justified in refusing to give it a Second Reading, as the Government have no mandate for it. I salute the fine speech by the noble and learned Lord, Lord Judge, and unite with him in saying: “Not in my name either”.
The Bill gives draconian powers to UK Ministers over matters which have been long-standing devolved responsibilities. Those powers, which return from Brussels, should automatically come to the devolved Governments. If there is a need to establish an all-UK position on some such powers, that should be negotiated between the four Governments and implemented when there is consensus. I will not repeat the points made so effectively by the noble Baronesses, Lady Hayman and Lady Andrews. There is a real belief across party divides in Wales, and expressed by Labour, Plaid Cymru and Liberal Democrat Senedd Members—and, yes, even by some Conservatives—that the Bill, in its present form, is just not acceptable.
The Welsh Government have lobbied Members of this House, begging us to reject the Bill as it stands. They make three salient central points, which were highlighted by the noble Lord, Lord Newby. First, the Bill would destroy the hard work undertaken by the Welsh Government, in co-operation with other Governments in these islands, to establish common frameworks. It would emasculate the Welsh Government’s regulatory powers, ranging from the food sold in Wales to the qualifications of teachers in our schools.
Secondly, the spending powers arrogated to themselves by Westminster Ministers would undermine expenditure policies currently pursued by the Welsh Government, such as free school meals or the funding of road schemes such as the M4 relief road. If the UK Government assert that such funds are additional to the Barnett block, let them write that on to the face of the Bill and it might well be considered. Otherwise, it is a case of Westminster telling Wales how money within the devolved Welsh block should be spent—and that is just not on.
Thirdly, the intention to make state aid and subsidy policies reserved matters gives Westminster Ministers control over economic development throughout the UK when their actual powers in that regard are currently applicable only to England. Such steps would demolish the successful “buy local” policy applied by successive Welsh Governments in procuring products and services—a policy which helped bring Welsh unemployment levels down to the UK average. The Bill gives powers to UK Ministers to intervene in Wales over water infrastructure, sending a shiver of dismay that we are about to see another Tryweryn foisted on us.
Our experience of Tory government promises of major capital expenditure schemes in Wales over the past decade has been disastrous. They have promised: to electrify railways; to facilitate electricity generation projects; a new Wylfa in Anglesey; and tidal lagoons around the Welsh coast. They insisted on keeping power in Westminster; they just have not delivered. Every such election pledge has been broken, so why on earth should we trust them now? In terms of breaking solemn commitments, the Bill surely goes way beyond what is acceptable in its unilateral abandonment of international treaty commitments. It establishes beyond doubt that the Government’s word is not worth the paper on which it is written, and the challenge to this House is to insist that we will not pass any such legislation in our name.
Lord Howell of Guildford (Con) [V]
My Lords, I join in congratulating and welcoming the noble Baroness, Lady Hayman. I am sure that most of your Lordships will agree that—after defeating Covid-19—the highest priority for our country, if we are to face the challenges of the next 10 years, is to hold this United Kingdom of ours together. The problem is that devolution has created a whole world of delicate compromises and unfinished constitutional business. Then on to the scene comes the Bill, which I am afraid is a bit like a bull in a china shop.
My question on the devolution side of the Bill is this: I admit that the timing may be unavoidable but, as the chairman of the Constitution Committee, the noble Baroness, Lady Taylor, asked, why on earth could not these issues between the different parts of the kingdom be handled mostly within the common framework procedure or consensually? Why was it decided to try to codify, in law, the thousand and one different complex and ever-shifting connections between all the myriad businesses across the devolved regions, rather than address them as they come along, which they will unceasingly, by ongoing practical co-operation—or maybe just by setting up the new internal market office?
As to the rule of law clauses which have so greatly disturbed your Lordships, and disturbed the legal profession, and indeed many of my good friends, including my noble friend Lord Howard, and now the Archbishops as well, I am a little less worried than some of my colleagues. It is quite correct, as the Constitution Committee’s report pointed, that the late Lord Bingham warned against a Government which “routinely”—and I emphasise that word—disregard their international law obligations, and I would not wish to live for one moment under such an Administration. But the reason I am not so worked up as some are in this instance, is that I believe we may be overlooking the degree to which the whole spirit of the withdrawal treaty and the Northern Ireland protocol was and already being undermined, and is now being undermined, by the other party, namely the Brussels negotiators and their legal advisers.
I believe that this is just what the Lord Chancellor meant when he rightly advised the Constitution Committee to consider the context behind the need for this Bill. Here, too, we are in an area of delicate ambiguity and compromise, as Northern Irish affairs always have been—as the Good Friday agreement was as well, and as I know full well from my years of working there at the height of the time of violence. So my question here, before rushing to judgment, is: why were these tangled problems of treaty interpretation, for that is what they are, not handled in the joint committee for settling disputes, which the withdrawal treaty set up? What happened in that committee? Was there a deadlock? Did the EU side make threats which were, in the Prime Minister’s words, “extreme and unreasonable” and undermined the withdrawal treaty? Were these clauses put into this Bill in fact justified as a response on that account? When it comes to would-be violations of the treaty spirit, are the critics, of which we have heard so many this afternoon, quite sure that they are looking entirely and solely in the right place?
We have asked these questions, but we have got no clear answers so far. Can we please have them now? Can we have a bit of chapter and verse about what actually went on the disputes committee? I know that this will not assuage my distinguished legal friends, nor the Church leaders, but it would at least explain more fully why the clauses got into the Bill and why they were felt to be necessary. Perhaps it would persuade me to oppose the two amendments, even though they have been spoken to by your Lordships at your most eloquent, and by people I most admire.
Lord Butler of Brockwell (CB)
My Lords, I congratulate the noble Baroness, Lady Hayman of Ullock, on her maiden speech, which I heard with great pleasure from the Strangers’ Gallery.
In the limited time available, I will not dwell on the anxiety and shame I feel about Part 5 of this Bill, which others have expressed so eloquently. I hope and believe that your Lordships will assent to the amendment in the name of my noble and learned friend Lord Judge. I also hope that, in the next few weeks, agreements will be reached with the EU which enable the Government to assent to removing these clauses from the Bill. In passing, I agree with the noble Lord, Lord Campbell, and others, that the amendment passed in another place—that these clauses would not be brought into effect without a positive vote in the Commons—is not sufficient to remove the mischief. These clauses contain a threat which should never have been made, and which must have no place in the United Kingdom statute book. I invite the noble Lord, Lord Forsyth, to consider the precedents that they would provide for an unscrupulous Government in the future.
I shall address my remarks to the situation that will arise if the Government seek to maintain the clauses and can get a majority in the House of Commons to that end. Your Lordships will then have to decide whether we maintain our opposition to them in the face of a majority in the elected House. I have argued in the past, and continue to believe, that this House must recognise the constitutional limitations on our power and must ultimately defer to elected House. But the issues on this occasion are of a different order. The Northern Ireland clauses in this Bill go to the root of our constitution. On this occasion, the power is in your Lordships’ hands, and we may not be used to that. The Government need the internal market provisions in this Bill by 31 December. They cannot, therefore, use the Parliament Acts to get the Bill through. If this House is resolute in rejecting the unacceptable Northern Ireland clauses, the Government will have to agree to remove them if they are to get the Bill passed.
The issues here are the rule of law and our constitution, as well as our national reputation. I believe that it is the role and duty of your Lordships’ House to defend these things, even in the face of an overweening Executive with a majority in another place, and I urge your Lordships to be resolute in doing so. We can prevent this disaster.
Lord Mackay of Clashfern (Con) [V]
My Lords, I congratulate the noble Baroness, Lady Hayman, on an excellent maiden speech and I look forward to many others.
I regard a Bill dealing with this subject as highly desirable, as the present law is principally contained in EU retained law not easily accessible to our citizens. During the discussion on the 2018 withdrawal Bill, the question arose of where powers released by the EU went in the level of our constitution. I took the view that the internal market powers went to the UK Parliament, as legislative authority for them had to go beyond the geographical limitations of the authority of the devolved legislatures, but that it was highly desirable that any exercise of them be the subject of discussion, and if possible agreement, between all four Administrations. The Scottish Minister with whom I was very happy to work closely at that time was optimistic that agreement would be reached. The Joint Ministerial Committee on EU Negotiations was already in place, and intensive work on securing common frameworks as the robust foundation for continuing co-operation has gone well. The Scottish Government have taken a constructive role in that work. Although they have formally taken up a distinct position, their support for independence has not prevented them agreeing to these matters and participating fully in them.
I suggest that this Bill would be greatly improved by providing that any issue to be the subject of a statutory instrument should be discussed in such a committee, and implemented only if it is agreed, or otherwise after a full debate in both Houses of Parliament, and that the Competition and Markets Authority should report to this committee as a matter of course.
Baroness Quin (Lab) [V]
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Mackay of Clashfern, and to recognise the work that he did in trying to make sure that we have a good system of common frameworks across the United Kingdom. I also add my warm congratulations on the splendid first contribution to this House by my noble friend Lady Hayman.
The context of today’s debate is of course the ending of the EU transition period, and indeed the ever closer threat of ending that transition without a deal. Last week, the Prime Minister sent to all of us what I thought was an extraordinary letter, which not only repeated the usual misleading claims about the pro-Brexit referendum result but also airily proclaimed that we would prosper mightily, completely ignoring the practical concerns and worries that businesses across the country and our own internal market have about the prospect of no deal. I ask the Minister—as we both come from the north-east of England—given that the head of Nissan has said that Nissan Europe would be “unsustainable” if there is no deal and tariffs are imposed, are the Government prepared to see that outcome? How could such an outcome help their stated policy of levelling up the regions across the UK? It is against this background and the end of the transition period that we have to consider this Bill.
Given that there is almost total support in support in Parliament and outside for ensuring that the UK’s internal market works properly and effectively after the Brexit transition, it is actually incredible that the Government have managed to produce a Bill that has been so roundly and universally condemned, both in Parliament and outside. Inside Parliament and this House, we have had powerful reports—which I hope will get much publicity—from the Constitution Committee, from the EU Select Committee and from the Delegated Powers and Regulatory Reform Committee. Both inside and outside Parliament, we have had concerns expressed by eminent lawyers, by the noble and learned Lord, Lord Neuberger, by the report of the Bingham Centre, and indeed in the letter—with which I strongly agree—that the Archbishops have published in today’s Financial Times.
The worries about the Bill are focused on the fact that it breaks international law, and not just once; it provides for future breaks of the law. In some clauses, it exempts the Government from judicial challenge, which is a dangerous principle. It also seems to break the Ministerial Code—perhaps the Minister can confirm whether that is true or not—it adds a lot of extra Henry VIII powers, and it elicits opposition from the Scottish Parliament, the Welsh Senate and the Northern Ireland Assembly.
Others have made this point, but I would like to reinforce it: I do not understand why the Government did not decide to build on the common framework approach rather than coming forward with the provisions in the Bill. The situation in Northern Ireland is very serious, and became serious the minute the Government agreed to establish an effective border in the Irish Sea. I hope the comments that were made by the noble Lord, Lord Empey, which I am sure will be reinforced by my noble friend Lady Ritchie of Downpatrick, will be taken on board and dealt with properly by the Government.
In conclusion, opposition to this Bill is strong, and it is not a question, as has been alleged, of moaning remainers. It is strong, because there is a strong feeling that the Bill is not in our national domestic interest and does huge damage to our international standing. For that reason, I shall vote for the amendment of the noble Lord, Lord Judge, and I hope, too, that the House of Lords, on this occasion, will be prepared to use the powers that have been given to it in our constitution and stand resolute—in the words the noble Lord, Lord Butler, a few minutes ago.
Lord Purvis of Tweed (LD)
My Lords, having spent six days in Committee on the Trade Bill debating how we make treaties, and listening to the Minister say continuously how we will be a trusted partner around the world, I, too, regret that we are having to debate how the Government have breached one and intend to breach more. Alas, I had hoped to hear from the Minister, in opening, why and when agreed processes in the joint committee with the EU, and in joint ministerial committees with our nations, broke down, and why those agreements could not be reached, necessitating this Bill.
I want to address Parts 1 to 4, and I do so as someone who was born and lived on the border between England and Scotland and represented a border constituency all my life. Therefore, in my personal, professional and political life, I have seen at close hand the daily interaction between laws, systems, standards, approaches, and regulations—everything from licensing, trade and speed limits to Covid-19 regulations, building regulations and others, many of which predate the European Union and that approach.
I have also seen at close hand the work within the framework agreements. I recognise that there are powers that are being repatriated. The 2020 framework analysis by the Government showed that of 154 policy areas where EU law interacts with devolved competences that are being repatriated, 115 require no framework at all, 22 require a non-legislative framework, and just 18 require a legislative framework.
The Minister did not refer to a defence of Part 5, but I was curious that he referenced whisky and the odd situation, which will be news to English barley providers, in which they cannot sell to Scottish distilleries. They have not been barred from doing so since 1933 in the first legislation, and there are no restrictions. It will be news to the distilleries, which buy their malted barley from Simpsons Malt in my hometown in Berwick, in England, that there is somehow some threat to this. I hope the Minister can clarify that point. Under labelling, composition and standards, that will be covered by the common framework. In fact, that framework was published on 9 October, so where is the necessity for these elements in the example the Minister gave?
The joint ministerial council approach on the frameworks was outlined in a joint communiqué with Ministers on 16 October 2017, in which it outlined the definition and principles of enabling
“the functioning of the UK internal market, while acknowledging policy divergence … Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures … based on established conventions and practices.”
Subsequently, last year, in the Cabinet Office update, which the Minister responding to this debate is responsible for, the government frameworks said that a dispute resolution mechanism was progressing:
“The UK Government continues to seek development of a shared approach to the UK Internal Market”
and
“we are considering how to manage … framework areas”
going forward. However, this Bill, as the Constitution Committee reported, gave two days’ notice to the devolved Administrations of the text and has a litany of over 30 areas in which there will be no consultation or limited consultation, which will be overlooked, and in which England will be treated differently from the other nations.
It does not have to be this way. Both Canada and Australia, which the Prime Minister is very keen to quote, introduced internal markets in the 1990s. Canada introduced an agreement on internal trade that came into effect on 1 July 1995. After a premiers’ conference, Australia, which the Prime Minister wishes to quote a lot, reached an agreement on principles for a mutual recognition scheme. An MoU was signed and, very symbolically, has the signatures of all the premiers and the Prime Minister.
The border area is one area where we will be living with the consequences of this, and we have seen nearly a decade of significant division and polarisation. Please, Minister, do not force a Bill against the spirit of what has been developed over the last three years, which is consensus and agreement. Do not herald a bad omen for a decade of danger for our beloved union.
Lord Skidelsky (CB) [V]
My Lords, I join others in congratulating the noble Baroness, Lady Hayman of Ullock, on her excellent maiden speech.
I want to confine my remarks to Part 5 of the Bill. I find myself swayed by two completely opposite accusations of bad faith. The Government accuse EU negotiators of bad faith in seeking to erect unreasonable customs barriers between Northern Ireland and the rest of the UK. Opponents of the Bill say that the bad faith is our own Government’s. The withdrawal agreement set up a joint committee to resolve trade issues. The Government have chosen not to use it. So, as Ed Miliband argued in his powerful philippic in the other place, the Government were proposing to breach international law for bogus reasons.
However, having reflected on all this, I cannot support the amendment to the Motion and would like to explain why. To my mind, international law is not the main issue. Never before, many noble Lords have said, have a British Government sought to break international law, but never before has Britain faced a problem of extricating itself from as complex a political, economic and legal structure as the European Union. Law, as the noble Lord, Lord Howell, explained, has to take account of political context, and as my hero, John Maynard Keynes, once said in answer to legal fundamentalists of his day:
“I want”—
lawyers—
“to devise means by which it will be lawful for me to go on being sensible in unforeseen conditions.”
Noble Lords know very well that not every contingency can be foreseen.
So I ask noble Lords to judge the legislation before the House on three different grounds: sufficient reason, motive, and consequences. On the first, I agree with the argument that sufficient reason has not been established for the override of Part 5 at the Government’s discretion. However, by Amendment 66, the Government have agreed to obtain parliamentary approval before activating Part 5, and I think that is a reasonable compromise between those who think that Part 5 is unnecessary and those who think it is essential.
Secondly, I sympathise with the argument that the Government signed the agreement in bad faith in order to meet the Prime Minister’s political requirements. However, most noble Lords have ignored the argument that it was always going to require some bad faith and legal creativity—to coin a phrase—to make the Brexit decision consistent with the Good Friday agreement. When Ed Miliband said
“A competent Government would never have entered into a binding agreement with provisions they could not live with”,—[Official Report, Commons, 14/9/20; col. 52.]
I am afraid that he set the bar of competence much too high. Contrary to the view of the noble Baroness, Lady Humphreys, deliberate ambiguity has always been the hallmark of statecraft.
Finally, what will the consequences be? The legal fundamentalists say it will damage our ability to get an agreement, because it will damage trust in the Government’s word—a powerful argument. The pragmatists believe it will force the EU negotiators to come up with a workable exit formula. Time will tell whether the Government have calculated the balance of risks properly. My own feeling, contrary to much noble rhetoric, is that we are still largely in the world of posturing. That is the way the EU and many other international negotiations work: public posturing followed by a last-minute outbreak of common sense. I think that is the way it will turn out, and I do not want to do or say anything that will weaken the hands of our own negotiators.
Lord Dunlop (Con) [V]
My Lords, I declare my interests as independent reviewer of the UK Government’s union capability and as a member of your Lordships’ Constitution Committee, whose detailed report on the Bill I commend, like others, to the House.
I doubt there is anyone in this House who does not support the goal of ensuring our UK domestic market continues to work seamlessly at the end of the EU transition period. This market, and the trade it generates, is, as the Minister said, an engine for providing jobs and prosperity in all parts of our country. The UK domestic market is an essential feature and asset of the union, so the Government are right to want to protect frictionless trade within the UK once we leave the EU’s legal orbit. They are right also to want to be able to guarantee to international partners that the terms of new trade agreements will be implemented throughout the UK. Today, the assurance regime is provided by an EU single market framework, and I agree with the Government that, going forward, we need an equivalent UK framework.
There are, however, two questions that need to be asked, and have been asked during the debate. Is this Bill necessary to achieve the Government’s stated aims? If the Bill is necessary, perhaps as a belt and braces insurance policy, is this the right way to legislate?
On the first question, I am doubtful. The European Union (Withdrawal) Act 2018 already provides a mechanism for constraining the ability of the devolved Administrations to diverge, while a common frameworks process is taken forward to agree UK-wide approaches for the powers flowing back from Brussels—a process that has been yielding results. As we have heard, the devolved Administrations are also already required by law to adhere to international obligations, including trade treaties. Moreover, the Government’s own analysis makes clear the considerable economic costs for devolved territories should there be any disintegration of the UK market, so there are strong incentives for all those involved to agree common frameworks.
On the second question, by bringing forward a Bill in this form, the Government have reached for the proverbial sledge-hammer to crack a nut. For example, the UK Government previously agreed with the devolved Administrations a set of principles for common frameworks. One of these is to
“maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules”.
However, the regime created by the Bill is more restrictive, with fewer public policy exclusions, than the EU framework it replaces. Whereas common frameworks are subject to joint decision-making involving the UK Government and the devolved Administrations, the Bill confers on UK Ministers extensive delegated powers to alter devolved competence and in places to exercise them without even the modest requirement to consult the devolved Administrations.
All this strikes me—and the Constitution Committee —as an unnecessarily heavy-handed approach to balancing the demands of free trade within the UK with respect for the roles and responsibilities of devolved institutions. Devolution is now integral to the UK’s constitutional arrangements. At a time of national crisis, when it has never been more important for central and devolved Governments to work together effectively, to risk destabilising those arrangements seems careless, to say the least.
The broader question for the House and for this union Parliament is: do we want our country’s future to be all about endless intergovernmental competition and conflict or about co-operation and confidence? I am in no doubt that a modern, thriving, forward-thinking and inclusive UK union needs to look and feel like a joint endeavour, a union less preoccupied with battling over competences and more concerned with winning over hearts and minds. That is why I hope the Government will demonstrate enlightened and imaginative leadership by working constructively to amend the Bill.
Lord Hain (Lab) [V]
My Lords, I was delighted to listen to my noble friend Lady Hayman, who will add high-quality, youthful value to our Labour Benches.
This Bill will breach the European Union withdrawal treaty, freely entered into by the Prime Minister less than a year ago, and the rule of law, as the noble and learned Lord, Lord Judge, and my noble and learned friend Lord Falconer so eloquently argued, significantly backed, among others, by a very recent Conservative Europe Minister, the noble Lord, Lord Bridges. It has also further damaged British-Irish relations by undermining the Ireland-Northern Ireland protocol, necessary to avoid a hard Irish border. As with the Trade Bill, there is an urgent need to insert clear protections for two international agreements the United Kingdom has entered into and ratified recently: namely, the Belfast/Good Friday agreement and that very protocol.
As the Bill undermines the Good Friday agreement of 1998, US leaders have stated bluntly that it could jeopardise any chance of a UK-US trade deal. Without the unifying framework provided by the EU, responsible for policies including state aid, the environment, agriculture, food manufacturing and animal welfare, the Bill represents a clear power grab by London from the devolved Governments. The Prime Minister has suddenly discovered the benefits of having a single market—the UK internal market of 66 million people, rather than the much larger and richer EU single market we have been a member of, of over 500 million.
Under the Bill, not only is state aid policy to be returned from the EU to Westminster but the UK Government also get new financial powers. Both proposals will further weaken the current intergovernmental arrangements, whose fragility has been exposed by Covid-19. Perhaps we should not be surprised that the Government adopt the posture of a public schoolyard bully when it comes to the devolved nations of these islands, where No. 10 seems to believe it holds all the cards and has nothing to lose—apart from perhaps destroying the United Kingdom.
For more than three years, the Governments of Wales, Scotland and Northern Ireland have sunk their very large political differences with the UK Government over Brexit in order to address its fallout in terms of managing the UK internal market. This led to the common frameworks programme, which was intended to take the areas of the economy where—and I stress this—the UK Government believed there to be a risk to the integrity of the UK’s internal market from the removal of the constraints to regulate in accordance with EU rules. This Bill brushes all those common frameworks arrogantly aside.
Whether or not there is an orderly end to the transition period in December, Brexit will have implications for the totality of the relationships between Westminster and the nations and regions of the UK, and for those on the island of Ireland, with the financial provisions of the Bill tightening Westminster control over economic, industrial and regional development policy throughout the UK. This is likely to fuel calls for indyref2 in Scotland and, eventually, a unification referendum in Northern Ireland. It may be that this Bill serves to hasten the break-up of the UK, which is another strong reason to oppose it.
Lord Browne of Belmont (DUP) [V]
My Lords, when we, as one nation, fully transition out of the EU, we must face the new reality and its challenges together and continue to work to maintain and grow the links and ties between all four corners of this country. That means building on the work to date and improving relations throughout the United Kingdom. For the avoidance of doubt, I emphasise that my party, the Democratic Unionist Party, believes that the progression of the Bill is of the utmost importance.
Vast swathes of the withdrawal agreement were wholly unsatisfactory, as in essence they created an unthinkable scenario for anyone who values the United Kingdom: a virtual border in the Irish Sea. Strands of the withdrawal agreement also made provision for a series of potentially complicated and burdensome checks on food and agricultural products entering Northern Ireland from mainland Britain. As a result, some in Northern Ireland, instead of benefiting from the removal of red tape as we leave the European Union would be required to endure extra layers of it. I welcome the Government’s assurance to the contrary, but we must continue to do all we can to ensure that there are no long-term, damaging barriers between different parts of our nation.
The withdrawal agreement and the political declaration, although in parts unsatisfactory, recognise the autonomy of the EU and the UK. However, a unique difference remains between the two parties: while the United Kingdom is a legally defined and globally recognised sovereign nation-state, the EU is simply an international body. During its history, and at the outset of the withdrawal negotiations, the EU recognised the sovereignty of the United Kingdom. Since then, regrettably, negotiators and some spokespersons appeared to disregard this sovereignty by ignoring the settled status of Northern Ireland, thereby interfering in internal matters and potentially undermining the defined constitutional status of Northern Ireland. Comments from officials in Brussels have been unhelpful and have shown a disregard for Northern Ireland’s unique and deeply troubled past, our shared future and the UK’s legal status as a sovereign nation.
Though I welcome the Bill, it remains true that businesses in Northern Ireland are confused. They may still have to adhere to conflicting regulations. There may still be divergence and associated costs. A scenario is still possible whereby a firm located in Belfast is unable to benefit from financial assistance that is available to one in Birmingham or Swansea, and therefore finds it advantageous to relocate. Can the Minister specify whether the Government plan to include Northern Ireland in the provisions outlined in Clauses 42 and 43?
In the other place, my party sought to allay fears by ensuring, through amendments, that the Government carried out impact assessments. Our purpose was to bring some reassurances to businesses that are potentially unfairly disadvantaged compared to their counterparts in mainland Britain. It is essential that we ensure the long-term prosperity of Britain and the viability of businesses. One part of our nation should not be left behind simply because of the proximity of a land border. I firmly believe that there is widespread support for a sensible free trade agreement with the EU that allows the UK to establish itself as a strong. outward-looking trading nation. A free, independent and United Kingdom can, and should, be a major global force on the world stage once more. I support the Bill.
Lord Cavendish of Furness (Con) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Browne. I have heard it suggested that there is no need for this Bill. Indeed, such doubts are rehearsed by the distinguished Select Committee on the Constitution in its 17th report. This may be technically and legalistically correct. However, I would contend that such a view overlooks a significant historical consideration. Before we joined what was to become the EU, a single unified internal market was for 300 years the constitutional bedrock of Great Britain, extended to Ireland 100 years later. The absence of the taxes, custom duties and other restrictions that were so crippling to much of mainland Europe created the conditions to usher in the industrial revolution. Now, as we prepare to leave the EU, it is imperative that we legislate to restore the conditions of a single UK market, tailored to the 21st century. Yes, the Bill is necessary.
There can be no doubt that the Government find themselves in a bind, one that is to a large extent of their own making. Furthermore, the European Union Select Committee, of which I have the privilege of being a member, has long warned of the problems that have now become so critical. I was also deeply saddened that a Minister of the Crown should speak in the other place as he did. As my noble friend Lord Bridges said, it is no mitigation to say that others, including the EU, breach international law. However, there appears to be no agreement among senior lawyers as to the legitimacy of the proposed measures that have given rise to such controversy. I cannot agree with the Constitution Committee’s witness who said:
“Let us accept that the Bill breaks the law.”
The Bill does not break the law, nor does it threaten to do so. According to Mr Martin Howe QC, no breach of international law could possibly occur until regulations under the clauses in question were actually brought into force; even then, whether or not making such regulations would amount to a breach would depend on the circumstances then prevailing and the reasons for making those regulations.
I have heard it said that the inclusion of the controversial clause is part of a negotiating tactic. There are further suggestions that the tactic has worked, to the extent that the EU withdrew from its indefensible position of threatening to withhold third-country listing. The problems that could arise from the failure to address the nightmare so-called direct effect could have catastrophic consequences, something that has been largely ignored by the media and, sadly, has earned scarcely a mention in contributions today. Scandalously, the Opposition Front Bench was entirely silent on the matter.
I support a Government who uphold and defend the country’s vital interests. I sometimes gain the impression that I am in a minority in your Lordships’ House. I hear it claimed that objections to the Bill are unrelated to Brexit. It is certainly the case that many noble Lords, much to their credit, have buried their pain and sadness occasioned by our leaving the EU and chosen to move on. However, this House is essentially a remainer House and its committees are remainer committees. There is nothing dishonourable in that but it seems to have led your Lordships’ House to move from acting as a revising Chamber to being one of opposition, a position apparently supported by the noble Lord, Lord Butler of Brockwell.
I have been a Member of this House for 30 years and I remember being on the Opposition Benches with a built-in majority. I recall how we acted with considerable restraint, as we certainly should have done. In those far-off days, Cross-Bench Peers tended to vote only on matters of their field of expertise while the Lords Spiritual were reticent in displaying their partisanship. It all seems such a long time ago. I mention this because it occurs to me that if this House is serious about trying to influence the Government, it might alter its tone. I reflect that on the great issues of the time, and many others, this House has put itself at odds with the Government, with the other place and, to judge by the general election, the people of this country. It bodes ill for an institution to persist in saying that it knows better than the people it is supposed to serve.
Lord Howarth of Newport (Lab) [V]
My Lords, I add my warm welcome and congratulations to my noble friend Lady Hayman of Ullock. Despite the case just made by the noble Lord, Lord Cavendish of Furness, it is a puzzle to me that the Government have introduced this Bill, given the commitment agreed in the Joint Ministerial Committee—of Ministers of the UK and the devolved Governments—to develop by consensus common frameworks for the UK internal market. We are told that good progress has been made on that yet, with perfunctory consultation, the Bill has been brought in.
The Bill contains no mention of common frameworks. It takes powers to override devolved legislation by means of regulations passed at Westminster and to spend money in areas of devolved competence. It contains only patchy and vague provisions for future consultation on the exercise of the powers that it creates. It has provoked indignation in Wales, Scotland and Northern Ireland, and legislative consent is highly unlikely to be forthcoming. The Bill is disrespectful to the devolved Administrations. When the union is under great stress from Brexit and Covid, it is also reckless.
The Bill is disrespectful towards this Parliament. It contains egregious Henry VIII clauses, most notably Clause 53(2), which says:
“Any power to make regulations under this Act includes power … to amend, repeal or otherwise modify legislation.”
The Bill is disrespectful towards our treaty partners. It authorises breaches of the Northern Ireland protocol and the withdrawal agreement. The Government offer as justification that the EU may intend to interpret ambiguities in the withdrawal agreement—ambiguities that the Government were happy to write in a year ago—to the detriment of the UK’s internal market and the Good Friday agreement. Ministers may see this as a suitable tactic in the Brexit negotiations. It may also be a reckless reminder to other countries not to trust perfidious Albion.
The brutal declaration in the House of Commons by the Northern Ireland Secretary that the Government are deliberately taking power to break international law sounds a loud alarm. The Bill is disrespectful to the rule of law and the judiciary. In this regard it echoes thinly veiled threats to the judiciary in the Conservative manifesto, the notorious remarks in Conservative Home by Suella Braverman shortly before she was appointed Attorney-General, and attacks on lawyers by the Home Secretary and the Prime Minister at the Conservative Party conference.
The Government make the case in self-exculpation that their defiance of international law is legal under domestic law. They also insist that they are not precluding judicial review, although in Clause 47 they go to extreme lengths to insulate regulations made under the Bill from challenge. The Government cannot justify what they are doing by quibbling. Constitutionality entails acting in a spirit of respect towards the rule of law, including both international law and, in our domestic jurisdiction, the effective ability for persons to have redress in court for the misuse of executive power.
It consists in respecting conventions which, though uncodified, ought to be binding on Ministers and on Parliament. These conventions include respect for the role of other institutions which form part of the constitution, among them the devolved Administrations as well as the judiciary, and therefore acting with restraint towards them. Proper government keeps the convoy moving along together. It shows itself to be trustworthy. The doctrine of the omnicompetence of statute, undoubtedly valid, is gratifying to the vanity of parliamentarians and convenient to Governments, but such ill-judged deployment of statutory power as we see in this Bill risks imposing intolerable stresses on the cohesion of the constitution and of the United Kingdom.
The Bill is an expression of a loutishness that characterises this Government’s political dealings. Where will this debasement of our democracy take us if we collude in it?
Baroness Bloomfield of Hinton Waldrist (Con)
I remind the noble Lord of the advisory speaking time. We cannot go beyond midnight, and if everybody goes over, some Lords will have to wait until tomorrow to speak.
Lord Howarth of Newport (Lab) [V]
In this House we must do all we can to limit the damage that the Bill causes, starting by supporting the amendment of the noble and learned Lord, Lord Judge.
Lord Thomas of Gresford (LD) [V]
My Lords, since I am speaking from Hayman House, my home in Gresford, it would be churlish of me not to welcome the noble Baroness, Lady Hayman, and congratulate her on her excellent maiden speech.
On 2 October 2019 the Brexit Secretary, Stephen Barclay, told the EU Committee of this House that Northern Ireland businesses would have to complete export declarations for goods moving from Northern Ireland to the rest of the UK. Shortly afterwards, on 7 November, the Prime Minister told exporters in Northern Ireland, in answer to a question, that if any business was asked to fill in customs declarations, he would direct them to throw the forms in the bin. That is his typical jocularity. He said:
“There will be no forms, no checks, no barriers of any kind. You will have unfettered access.”
That is what the provisions in Clauses 44 to 47 of this Bill are all about: to save face. The Prime Minister cannot admit that he told off-the-cuff porkies—or more likely that he did not understand the written agreement he had signed.
The Government say that the Bill does not in itself breach the written agreement: only potentially, as the noble Lord, Lord Forsyth of Drumlean, argued earlier. The noble Lord, Lord Cavendish of Furness, went further a moment ago and asserted that there was no breach of the law at all. If I give a knife to a person of unstable temperament with the foresight that he will use it to stab somebody, I break the law. It is no defence to say that I thought that he would only use my knife “potentially”. These clauses are an instrument positively designed to empower Ministers, first, to act illegally and, secondly, to ensure that the powers of the court to stop them by judicial review are removed. It is as though I told the potential murderer, “Look, here’s a knife and I guarantee that you will not be prosecuted if you use it”. The noble Lord, Lord Lamont, said, “Well, all they’re doing is threatening to rescind an agreement they should never have made, to strengthen their negotiating position”. Well, it has not worked, has it? As the noble Lord, Lord Butler, said, it is a threat which should never have been made.
It would have been 1945, with Christmas approaching, when my father decided to make me a toy gun. He carved and varnished a wooden stock and added black piping to look like a barrel. On Boxing Day, I proudly took this toy gun out to play, but it was quite a tough area. It is in my mind’s eye now. I was approached by two youths who were four or five years older than me. They threatened to bash my face in if I did not hand the gun over to them. I did so, and you can see that it rankles after 75 years. A threat is not in the long run a good negotiating tactic. You may succeed for the immediate moment, but the resentment lasts for years; the reputation is damaged beyond repair. Why should the European Union believe any compromise the Prime Minister puts forward this coming week on state aid, fisheries or the like? He has weakened his bargaining position.
The Lord Chancellor justifies taking these powers on the basis that there
“could be a material breach by one of the parties”—
he does not say which party or what breach—of the withdrawal agreement. Do you have a better point, Mr Buckland? Robert Buckland comes from Llanelli. When the noble Lord, Lord Campbell of Pittenweem, referred earlier to the oath of Queen’s Counsel, I remembered that it was another Llanelli boy and Lord Chancellor, Lord Elwyn-Jones, who took my oath of office in the Moses Room some 46 years ago. What, I wonder, would he have thought of such a manifest breach of his oath of office, which commences: “I swear by Almighty God to uphold the rule of law”?
The Duke of Wellington (CB) [V]
My Lords, it is a privilege to speak in this debate, but I notice that only a handful of noble Lords appear to support the Bill as presently drafted. I want to put on record that I very much welcome the intervention of the most reverend Primate and the letter signed today by the Archbishops.
This Bill has a significance for this House considerably greater than almost any other Bill that we have been asked to consider. Having over the weekend read the excellent report by the Select Committee on the Constitution, I am even more concerned as a layman by certain clauses in it, particularly Clauses 44, 45 and, especially, 47. In a single piece of proposed legislation, the Government have managed to antagonise almost everyone, including a multitude of counterparties and international public opinion.
First, many members of the United States House of Representatives are concerned about any move that could undermine the Good Friday agreement, and they have made it clear that this legislation puts at risk the future approval by Congress of a US-UK free trade agreement. Secondly, the Government have antagonised the European Union, which sees the legislation as abrogating parts of the withdrawal agreement signed only 10 months ago. Thirdly, they have antagonised the devolved Administrations, who feel that they have not been properly consulted and that the legislation goes against certain parts of the various devolution settlements. The Government have in fact admitted that in certain respects the Bill breaks international law.
It is therefore difficult to believe that government Ministers and their political advisers have really given sufficient thought to the consequences of this proposed legislation. Clearly, legislation is required to ensure that an internal market can operate in these islands, but it was always inevitable, in Mr Johnson’s withdrawal agreement, that there would have to be some sort of documentary border in the Irish Sea. That was not true of Mrs May’s deal, which unfortunately the other place repeatedly rejected. However, the Northern Ireland arrangements can still be negotiated in the joint committee, and as for the arrangements with the devolved Administrations, these can surely be negotiated within the common framework process. So parts of this Bill would seem unnecessary—a word so liked and used by Ministers when rejecting other Lords amendments to other Bills.
The most effective way in which this House performs its duty is to ask the Government and the other place to think again. Surely there could be no more important Bill than this one on which to perform that duty. Having read the various reports from the committees of this House, we must ask the other place to think again, particularly about Part 5. Should the Bill return to us unamended, it may well be necessary, as the noble Lord, Lord Butler, suggested, to do so a second time. In the meantime, I will vote tomorrow for the amendment in the name of the noble and learned Lord, Lord Judge, when it is put to a vote.
Lord Mancroft (Con)
My Lords, I would not dream of questioning the judgment of the noble and learned Lord, Lord Judge, in matters of the law—of course I would not—but I would say that the rule of law, as a matter of principle, is as important to me as it is to any noble Lord, however learned. However, like many legal matters, it is a question of fact and degree. I am not a lawyer but I have been involved in enough litigation to know that two Silks of equal distinction can produce very different and equally persuasive arguments for or against almost any legal question that any of us could pose.
These things are not, as some would like to have us believe, black and white. Like everything in life, they come in shades of grey. To my father, as a newly qualified barrister in 1938, the invasion of Poland in 1939 was not grey; it was completely black and white. However, having sat through the debates in your Lordships’ House in 2003, to me it was clear that many of the lawyers in this House came to a very different conclusion about the legality of the invasion of Iraq from that reached by the Labour Government. To them, it was not black and white; it was a matter of opinion.
In terms of degree, my belief in the rule of law, which I consider to be probably the most important principle that we espouse, has not stopped me from time to time—I hang my head in shame today—parking on a double yellow line. I do not suppose that I am the only noble Lord to have broken the law at some time or another. It would be hypocritical of us not to admit that we can all be flexible when it suits us.
I share with others regret that my right honourable friend the Secretary of State made the statement in the other place that set this hare running. I do not know whether it has been suggested that the Government felt that that declaration from the Dispatch Box would provide some form of legal cover in the event that some remainer obsessive decided to run another case to the Supreme Court in the hope that that court would be prepared to compromise its reputation by indulging in another political judgment.
It is primarily a political and not a legal matter when a foreign power seeks in negotiating an agreement, supposedly entered into in good faith, to use that negotiation deliberately to interfere with the delicate relationship between the component parts of an independent nation state, such as those of Great Britain and Northern Ireland. It is perfectly obvious that the European Commission very early on worked out that this was our Achilles heel, and has done its level best to exploit this for its own ends. That is not the conduct of a good neighbour and trading partner acting in good faith; that is the behaviour of someone who does not wish us well. It is in effect a trap, deliberately placed where it would do the most harm. But what Government, having spotted this trap, would continue to blunder on, rather than take whatever measures they could to avoid it? It is the Government’s duty to avoid a trap, almost at any cost, which is precisely what the Bill seeks to do.
A final point on the issue of national reputation: who is it, I wonder, who will think so much less of us for having ducked this punch, aimed as it was below our belt? For example, I am not very interested in China’s view of our trade arrangements with Northern Ireland, particularly in comparison with their behaviour towards Hong Kong. Nor will I take any lectures from Mr Putin about the rule of law. President Trump thinks we are mad not to have walked away from the EU years ago, and Mr Biden has already made his views—firmly in line with those of his Irish republican voters—clear, and there is no changing that. The current members of the EU obviously think the worst of us, and they always have done. But who cares?
I do business in South America and Africa, and no one I have ever met in either of those continents has the remotest interest in this squabble, but they would all love to do business with us. Our Commonwealth friends are not fooled by this stuff. Saudi Arabia and our allies in the Gulf share the same view as their new Israeli friends—that business is business, a view shared by our Pacific trading partners. If our reputation is harmed, I am struggling to see with whom.
Lord Morris of Aberavon (Lab) [V]
My Lords, as the Attorney-General, I had a duty to advise Ministers of their legal obligations. This was not always straightforward, and I am particularly aware of how I strove to achieve and advise compliance with the law, particularly in Kosovo and the rules of engagement in Sierra Leone. Parliament and Ministers accepted my advice, though as a leading counsel I had to defend the United Kingdom before the international court in The Hague.
As the greatly admired Lord Bingham wrote in his book The Rule of Law:
“The rule of law requires compliance by the state with … international law”
and national law. Ministers, civil servants and our Armed Forces are bound by the need to observe international law. The rule of law is not negotiable; to defer breaches does not alter the fact that Parliament is being asked now to legislate in breach of its obligations. It is similar to blessing a potential burglar or murderer for any future wrongdoing.
We have already lost one esteemed and distinguished law officer. Is it not the time that we have a clear statement on where they stand from the Lord Chancellor, who has a statutory duty to maintain the rule of law, as well as the remaining law officers, who are clinging to office?
I turn now to devolution legislation. As one of the architects of Welsh devolution, which I began as a graduate student in Cambridge in 1953 and culminated in 1999, I regard it as my duty to safeguard the settlement. Once powers are devolved, they cannot be withdrawn. The Bill drives a coach and four horses through the devolved settlement. The Welsh Government tell me that the United Kingdom Governments have worked collaboratively on the common parliamentary programme for three years; this Bill neuters it and hollows out the powers of the devolved legislatures to regulate policy areas. There is no time to give examples. In the memorandum from the Welsh Parliament, it spells out its grievances.
I will make two points. First, the Bill contains, for the first time, powers for the UK Government to spend money over the heads of devolved Ministers—[Inaudible.] I ask the Minister to confirm whether that interpretation by the Welsh Government is right. Secondly, the Bill seeks explicitly to amend the Government of Wales Act to add the design and operation of state aid policy to the list of reserved powers. Again, examples have been given. Could we have a statement on that issue and on whether the Welsh Government are right? Again, I would like the Minister to confirm what the position is.
The brief for the Bill states that the devolved Administrations will see their powers increase significantly following the transition period and the transfer of EU powers, and will be able to use new and existing powers within the internal market system. Who is right: the Welsh Government or the Minister, as he set out in his speech? Is that factual brief correct?
I will ask one further question: is it the Government’s wish and intention to go back on the settlement of devolution over 20 years, or is the Bill an inadvertence that will undermine the unity of the United Kingdom? Is that what they want?
Lord Garnier (Con)
My Lords, I begin by congratulating the noble Baroness, Lady Hayman of Ullock, on her excellent maiden speech and by saying how much I look forward to hearing from my noble friend Lord Sarfraz very shortly.
Because of Part 5, very few are prepared to give the Bill their wholehearted support. I am not one of them, and, in the event of a Division tomorrow, I will without hesitation support the regret Motion moved by the noble and learned Lord, Lord Judge. To do otherwise would be wrong as a matter of principle, but as a former law officer, like the noble and learned Lord, Lord Morris, and as a Member of the other place and of this House since 1992, it would also be a matter of personal shame to agree to such flagrant abuse of the rule of law and our international treaty obligations.
Set against last year’s unlawful Prorogation and the fact that Mr Dominic Cummings is the instigator of Part 5 and is the latest person to have been found in contempt of Parliament, I am not surprised, although I ought to be shocked, that, first, a Cabinet Minister could say that the Government intended to break international law, and, secondly, that the Attorney-General could apparently advise the Government that what was proposed was defensible as a matter of law. It plainly is not, even if some may think it has political advantages.
I have heard excuses for Part 5, which contains provisions that unquestionably breach international law or authorise such breaches, from Members of Parliament not previously noted for their interest in questions of international law and from government Ministers. They appear to confuse the sovereignty of Parliament with the Government’s treaty obligations. If sophistry is an unparliamentary description of what we have been asked to believe, let me say instead that the explanations for Part 5 are risible. They amount to bad law, poor diplomacy and inept politics.
Let us be clear: the European Union withdrawal agreement is not some ancient treaty entered into by two medieval monarchs when our customs and usages were very different, nor is it as difficult to understand as the Schleswig-Holstein question. It is only a year since the Prime Minister agreed to it—not just bits of it, but all of it, including the Northern Ireland protocol, the clauses referring to EU law, and the trading arrangements between Great Britain and Northern Ireland, and Northern Ireland and the Republic of Ireland. It is barely six months since Mr Johnson, in the triumphant afterglow of the general election, recommended it to Parliament for translation into United Kingdom law.
We have not heard publicly from the Attorney-General. It is entirely normal for the law officers to keep confidential their advice to the Government, albeit that the Attorney-General has published a digest of the opinion of the three lawyers she selected to advise her. Its conclusions are not convincing, save perhaps as a political manifesto. Certainly they did not impress the Treasury Solicitor, Sir Jonathan Jones, who resigned rather than be party to this unlawful policy. Nor did they impress my noble and learned friend Lord Keen of Elie, who, despite valiantly trying to bring the Government to a proper understanding of the rule of law and their obligations freely entered into as parties to international treaties, resigned as well.
However, it is not just a breach of international law; Part 5 also undermines our domestic law. Clause 47 is breath-taking. It will give Ministers the power to make regulations and renders those regulations unassailable, even if they break the law. Thomas Cromwell would be proud of this clause. It prevents legal challenge so that no court can rule against them. Government by ministerial decree is certainly not what we should see in a parliamentary democracy.
Under Section 25 of the Theft Act 1968, “Going equipped” is a crime. It is an offence, when not at home, to be in possession of an
“article made or adapted for use in committing a burglary or theft”.
Part 5 is the equivalent of the burglar’s jemmy. Government and law officers should not advocate their use and expect to retain the respect of Parliament or the legal profession.
Lord Stirrup (CB)
Like other noble Lords, I wish to focus today not on the broader provisions of this Bill but on Part 5. Giving Ministers the power to break the law seems to me an astonishing thing for Parliament even to contemplate, let alone agree to. I quite understand that there are situations where there may be argument about what the law is or whether particular matters fall within the provisions of a given law, but that does not appear to be the case here. The Government have acknowledged that they wish Ministers to be able to break a law. The fact that it would be in a “limited and specific way” seems to me to be irrelevant. Why should the residents of Greater Manchester not now feel that they can break the law in a “limited and specific way”?
The Government have advanced the argument that this is a provision that would only be applied if the EU had previously acted in an “unreasonable” way in implementing the withdrawal agreement. However, as we have heard many times, there is already a dispute resolution mechanism in place to deal with this situation, and, if this is deemed insufficient and the Government see the need for new primary legislation, why not enact it once the other party has patently broken faith? Emergency legislation could then be made specific and passed swiftly, and the UK would be reacting to a breach of trust rather than creating one.
However, I wish to make another, broader point about power this evening. In setting and carrying out its foreign policy, the UK is essentially seeking to persuade countries to do things they would otherwise not do or to dissuade them from doing what they otherwise would. Such persuasion rests upon the ability to convince or to compel, which, in turn, is based upon the power that we wield in the international arena. The underlying foundation of that power is undoubtedly our economic strength, but it also depends upon a degree of moral authority.
If we are to convince others of the force of our arguments, they need to know whether they can rely upon what we say, whether we deliver on our obligations, whether we are steadfast or blown by the latest wind— whether they would be prepared to buy a used car from us. Even when we seek to compel rather than convince, both our hard and soft power are most effective when arrayed alongside that of our partners, who know the quality of our contribution, who know that we can be relied upon to fulfil our undertakings and who trust us.
It is clear that certain clauses within Part 5 of this Bill have already undermined international trust in the United Kingdom. EU leaders are looking for harder and more specific conditions in any new agreement with the UK because they now view us as untrustworthy. Our power in the world has been diminished by this Bill and will be diminished further if it is passed unamended. This seems a strange way to advance the cause of global Britain.
Therefore, there are very clear practical reasons for doing something about Part 5, but, above all, there is the fundamental issue of principle. The Government exercise authority through the law; if they undermine respect for the law, they undermine both themselves and the stability of our society. This is surely not the path we, as a nation, wish to follow. I urge the Government to think again, and I shall certainly support the amendment of my noble and learned friend Lord Judge.
Lord Sarfraz (Con) (Maiden Speech)
My Lords, it is with great pleasure that I stand to give my first contribution in your Lordships’ House. I congratulate the noble Baroness, Lady Hayman, on her very thoughtful maiden speech.
I have not been a Member long, but I have learned that this House is full of very kind and generous people who have been incredibly welcoming to me. I would like to thank the wonderful doorkeepers, Black Rod, the Clerk of the Parliaments and all the staff for their warm welcome. I am very grateful to them, as well as to my supporters, my noble friends Lord Goldsmith of Richmond Park and Lord Choudrey. I am particularly grateful to the Prime Minister for giving me an opportunity to be part of your Lordships’ House. I have learned about the procedures of this House from my Whip, my noble friend Lord Borwick, and my mentor, my noble friend, Lord Leigh of Hurley. There is a tremendous amount I hope to learn from Members of this House across all parties, who have had such distinguished and diverse careers.
I grew up in Pakistan in a family with a tradition of military service. Both my grandfathers were officers in the British Indian Army and my father was commissioned as a naval officer at the Britannia Royal Naval College. I could not serve in the military because I have asthma, but I now have the opportunity to serve in a different way from the floor of this House. I understand that maiden speeches are meant to be uncontroversial, so I will keep my contribution short and sweet.
In global Britain, entrepreneurs in the technology industry will play a huge role. I am a proud member of the ethnic-minority community of the United Kingdom and I would like to work with my own community so that we can continue to make important contributions in the global economy. For example, the CEOs of Google, Microsoft, IBM, Mastercard and Adobe—among many others—are all from ethnic minorities. I refer to my interest in technology venture capital as set out in the register. We in the United Kingdom have been at the forefront of innovation for centuries. Many people believe that venture capital was invented in Silicon Valley but it was actually invented in Birmingham. In the 18th century, members of the Lunar Society would meet monthly to discuss, demo and fund the greatest technology innovations of their time.
In my career, I had the privilege of observing that one of the determining factors of success and failure is entrepreneurs having access to a strong domestic market. As global as technology markets are, entrepreneurs who can quickly and easily build a foundation in domestic markets are often the ones who have the necessary platform to then scale internationally. The history of virtually every successful technology company started with early commercial wins in a sizeable domestic market. We are fortunate that the United Kingdom is a strong domestic market, especially for entrepreneurs. We must make sure that our start-ups—whether in space technology in Glasgow, cybersecurity in Belfast, digital health in Cardiff, artificial intelligence in Oxford, life sciences in Cambridge, the internet of things in Manchester or virtual reality in Liverpool—all have access to a strong, stable UK internal market with certainty of rules and regulations. I am therefore pleased to support this Bill in your Lordships’ House.
Finally, I would like to thank my family, my parents, my wife and my beautiful daughters for their long-standing love and support, and I thank noble Lords for giving me an opportunity to participate in this important Second Reading.
Lord Polak (Con)
My Lords, I am delighted to follow my noble friend Lord Sarfraz and congratulate him on his excellent speech. I also congratulate the noble Baroness, Lady Hayman of Ullock.
As my noble friend rightly said, maiden speeches are meant to be uncontroversial. His contribution was in no way controversial; in fact, it was deeply encouraging and seriously important for the House as a whole. The Governor of Punjab, among many political and business leaders in Pakistan, paid tribute to my noble friend Lord Sarfraz on his elevation, saying that Aamer Sarfraz has helped to build a bright image of Pakistan in the international community. He said:
“You made Pakistan and British Pakistanis proud.”
At such a young age my noble friend Lord Sarfraz brings enormous experience as an entrepreneur and venture capital investor. He has also initiated many social projects, including training thousands of smallholder farmers in the Punjab, and has supported many charitable endeavours, including horse-riding therapy for children with special needs. I have no doubt that my noble friend will make many important contributions going forward. From a proud British Jew to a proud British Muslim, I say that I look forward to continuing to work closely with my noble friend for the benefit of British society from within our House of Lords.
My noble friend Lord Sarfraz made a strong point about the need to have access to a strong and stable internal market, with certainty of rules and regulations. I note that the Scottish Government called this Bill a “power grab”. On that point—that goods and services sold in part of the UK must be available for sale in the rest of the country—the Scottish government said it would,
“effectively be limiting standards across the country to the lowest of the four nations.”
I just cannot understand their pessimism. As for it being a power grab, it was no surprise that MSPs voted 90 to 28 to reject a legislative consent Motion. It is clear that the SNP would really like to hand back powers to the EU and/or keep most of them for themselves as an independent country. I joined the Conservative and Unionist Party, and I support this Bill’s intention to maintain high standards across the whole of the UK.
Like the noble Lord behind me, I am not a lawyer, nor are most of the people in our country. They want clarity. I was a reluctant remainer back in 2016 but I am not today: I am neither reluctant nor a remainer. Permit me to put these last few words simply—the sort of words that would be uttered in a pub, if we could get to one. We were a member of a club of 28, where, throughout, there was a rocky relationship. We voted to leave and tried to negotiate a mutual and sensible exit in good faith, but it seems that the good faith has not been reciprocated. There is still time for the EU to act in good faith, and there would be no need to break any laws at all. But, ultimately, we can create our own rules for our own club: the club of the United Kingdom.
Baroness Bryan of Partick (Lab) [V]
My Lords, I congratulate my noble friend Lady Hayman of Ullock and the noble Lord, Lord Sarfraz, on their maiden speeches of excellent quality. It is really good to have two younger Members join us. I must also congratulate the Government on doing so much to bring about harmony. They have managed to unite so many speakers in this Chamber and all but one of the parties in the Scottish Parliament, to name just two groups.
One of the purposes of this Bill is to enact the political ideology of the ruling faction of the Conservative Party, which demands that unfettered access of business across the UK should be able to overrule any democratically decided public policy goals. BEIS’s own impact assessment makes it clear that market access principles will reduce the ability to pursue targeted social and environmental policy objectives. We were told that Brexit would result in the return of powers to the devolved Administrations, but instead significant powers have been retained by Westminster. This Bill goes even further, as it will take away existing powers.
The noble Lord, Lord Callanan, as I understood him, said that industry subsidies had never been devolved, but Part 7 of the Bill amends Schedule 5 of the Scotland Act 1998 to eliminate state aid from the devolved powers that have rested with the Scottish Parliament for over 20 years. This happened without negotiation and with only the most cursory consultation.
The so-called level playing field is far from fair. How can it be when the players on the field are of massively different size and strength? It would be the equivalent of a football match between Chelsea and Partick Thistle. The big firms in the large countries flourish; small firms in small countries struggle. The Bill does not establish independent arbitration or dispute resolution. Once again, the UK Government will act as both participant and final arbiter and will, as usual, find in their own favour.
This legislation confirms what many of us already know: the current system of joint working between the UK Government and devolved Administrations is not fit for purpose. It does nothing to guarantee high regulatory standards. Instead, it creates incentives to lower standards. It prioritises the removal of potential barriers to trade at the expense of other public policy goals, such as health or the environment, regardless of the democratic decisions of the electorate in the devolved Administrations.
Andrew Bowie, Conservative MP for West Aberdeenshire and Kincardine, gave a stark warning in a recent newspaper article. He said,
“this Internal Market Bill, is just the start. The UK Government is back in Scotland. Get used to it.”
If ever a wedge would serve to divide the United Kingdom, this is it. We cannot in all conscience allow this dreadful legislation to be rushed through Parliament. We must ask the Government to think again.
Lord McNally (LD)
My Lords, my first duty is to congratulate the noble Lord, Lord Sarfraz, and the noble Baroness, Lady Hayman, on two excellent maiden speeches. It is not always like this, by the way. In his speech today, the most reverend Primate the Archbishop of Canterbury made it clear that we are an unelected second Chamber with a mainly advisory and revisory role, but along with those responsibilities is another power, rarely used but very important.
In 2006, along with my noble friend Lord Tyler, I sat on a Joint Committee of both Houses set up to examine the conventions that govern the relations between both Houses, and between Parliament and Government. The report and recommendations of that committee chaired by the noble Lord, Lord Cunningham, were adopted by overwhelming votes of both Houses and stand as the basic rules of the conventions between them—not Salisbury/Addison, but the Cunningham conventions. Paragraph 281 of that report said about the powers of the House of Lords:
“Nothing in these recommendations would alter the … right of the House … in exceptional circumstances, to vote against the Second Reading or passing of any Bill”.
It is that right to say no that stops this House being simply a debating society. In the 110 years since the first major reform of this House, its most passionate defenders have argued that the Lords was the safety catch to prevent an abuse of power by a temporary majority in the other place. A constant in all our deliberations has been the special responsibility of this House to uphold the rule of law.
Over the next two days we are considering a Bill on which a Minister of the Crown in the other place admitted a proposed breach of the UK’s international obligations, and where the Government’s senior law officer in this House, the noble and learned Lord, Lord Keen, has resigned rather than be at the Dispatch Box today to try to defend it. When all five living ex-Prime Ministers express concerns about the Bill; when the joint briefing on it from the Law Society and the Bar Council calls for the removal of the offending clauses; when the Bingham Centre for the Rule of Law says that these clauses are in fundamental opposition to the rule of law and damage our standing internationally; and when our own Select Committee on the Constitution calls in aid the late Lord Bingham and states:
“We agree with Lord Bingham that respect for the rule of law requires respect for international law”,
one is bound to ask whether this House could ever have before it legislation which better fits the term “exceptional circumstances” than that before us today.
I will vote for the amendment tabled by the noble and learned Lord, Lord Judge, and it will undoubtedly be carried tomorrow. It does not, however, use the power of this House to remove the offending clauses—Clauses 44, 45 and 47—from the Bill. In that respect, it will allow us to go home feeling good but without having changed the mischief in the Bill.
I am clear that we should refuse this Bill a Second Reading, but am told by my more herbivorous colleagues that the Bill should go to Committee. I hope that during its passage through Committee and Report we will see an amendment to remove the offending clauses, and that, however many times it is brought back, this House will say no. If this is not an “exceptional circumstance” as set out in the 2006 report, I fail to see when this House will ever summon up the courage to use that power. Those who have a contempt for our parliamentary democracy and the rule of law will be emboldened by our failure, and this House will be diminished in the process.
Baroness Jones of Moulsecoomb (GP) [V]
My Lords, I too welcome the noble Lord, Lord Sarfraz, whom I have had the pleasure of meeting already, and the noble Baroness, Lady Hayman of Ullock. I hope to work with her on the environment and animal welfare; that would be fantastic.
My noble friend Lady Bennett cannot be here this evening. She would like me to explain that we are dividing this Bill between us and she will speak on the internal and devolution issues. She abhors the destruction by this Bill of the rights of democratic devolution that have been embraced and exercised by the people of Scotland, Wales and Northern Ireland. Scotland has long had a distinct education system with higher qualification standards for teachers. The Senedd too has plans for better control of single-use plastics than we have managed here in England.
I, therefore, will focus on international and rule of law issues in the Bill. First, I congratulate the Constitution Committee on its wonderful report on this Bill. I read it through and laughed with pleasure. I thank the committee for that. This debate has been extremely interesting because I did not think that anyone would have the audacity to defend this Bill, apart from the Minister. The Constitution Committee expressed the problem in relation to the law very well when it said:
“Society cannot afford to take this principle for granted or acquiesce in its violation. The rule of law is essential to an open and democratic society and the institutions which embody and protect it. Any Government that seeks to secure widespread compliance with the law must itself adhere to it”.
It is indicative that there are two amendments. One of them is from the Convenor of the Cross Benches, who is a former Lord Chief Justice of England and Wales, and the other is from a Peer who was a Conservative MP for 40 years. These are hardly rebels of the usual kind. The Government have some cheek to introduce the Bill now, because it is less than a year since they campaigned on Boris’s deal as their main election gambit. This House passed that deal in recognition of the fact that the Government had won the election and it was a quasi-referendum on the deal itself. Now the Government come to Parliament to try to unpick key provisions of the deal that they themselves negotiated.
It is too easy to get bogged down in seeing this as the narrow political issue around Brexit and Boris’s deal; it is much deeper than that. I say to those few noble Lords who have talked about remoaners that I voted for Brexit yet I am deeply unhappy with the Bill. The Government are trying to use the principle of parliamentary sovereignty to justify this course of action. That is wrong. A classic example of parliamentary sovereignty is that nothing stops Parliament from passing a law to ban Frenchmen from smoking in the streets of Paris, but it would have no effect. Parliament has the power to pass legislation that violates international laws and agreements, but that does not mean that it is justified in doing so. There is, therefore, scope for your Lordships’ House to amend the Bill to remove the offending provisions. If, however, this Bill cannot be sufficiently amended, our role as guardians of the constitution will require us to reject the Bill in its entirety. I will of course support the amendment.
Lord Hamilton of Epsom (Con)
My Lords, I join in the congratulations to the noble Baroness, Lady Hayman of Ullock, and my noble friend Lord Sarfraz on their maiden speeches, which I much enjoyed. I hope they enjoy this House as much as I have. I also hope they listened to my noble friend Lord Cavendish of Furness, who gave a slight word of warning that we have lost many of our friends in the other place, and we have not made any new ones, so our future is not quite as straightforward as we might all hope.
I want to talk about the extremely shabby way in which my noble and learned friend Lord Keen of Elie was treated by this House and by others in the Government. He was a very fine lawyer, and probably one of the best Advocates-General for Scotland that we have ever seen. Those are not my words; they were the words of the noble and learned Lord, Lord Wallace of Tankerness, earlier today. We have lost an extremely able man, and the contributions of rather lesser men in your Lordships’ House have contributed to him being removed from office. I do not think that that has done any great favours to our House, or to Scotland.
In previous Administrations in which I served, in a very junior capacity, we always had problems of how you interpret legal situations. A tremendous onus is put on our law officers to decide whether things are legal or illegal. The noble and learned Lord, Lord Morris of Aberavon, made reference to this, with respect to his time as Attorney-General under a Labour Government.
My noble and learned friend Lord Keen, on 15 September, made it absolutely clear that he thought the Internal Market Bill, which we are now considering, was within our obligations under the withdrawal agreement and was legal. A number of noble Lords have chosen during this debate to try to obscure that fact and say that somehow my noble and learned friend Lord Keen was conflicted. He was not. He said on that occasion that
“the EU has materially breached its treaty obligations and … we find that it may have acted in such a way as to fundamentally alter our obligations under the treaties.”—[Official Report, 15/9/20; col. 1131.]
So he was quite unequivocal on the fact that the Government were acting completely legally over this, and he was the law officer.
In my opinion, what he was referring to—these are my words—was the fact that the EU had decided to say that the border in the Irish Sea should remain even if we left the EU with no deal. That, of course, would have undermined completely the single market of the United Kingdom and was totally unacceptable to this country. So it seems quite straightforward that my noble and learned friend Lord Keen considered the actions of the Government to be legal.
Therefore, we have to ask what on earth my right honourable friend the Secretary of State for Northern Ireland was doing when he said that in some way this was a minor infringement or a technical matter that was only slightly illegal. I do not think that things can be slightly illegal—they are either legal or illegal—and I do not really know what Brandon Lewis was doing. He was actually called to the Bar himself in his youth. Why did he not question what he was doing by getting up and saying that this was only slightly illegal? That is rather like the curate’s egg—excellent in parts—or a woman saying that she is only half-pregnant.
At the end of the day, the advice that should have been taken by this Government was from its law officers. There may be many noble Lords in your Lordships’ House who do not agree with the judgment of my noble and learned friend Lord Keen, but he said that this was legal, I believe it to be legal, and for that reason I shall be voting against the amendment moved by the noble and learned Lord, Lord Judge, and supporting the Bill.
Baroness Kennedy of The Shaws (Lab) [V]
Let me join with others in welcoming new Members to this House. I hope that they will have as happy and fulfilling a time as I have had.
I wanted to express my respect and admiration for the noble and learned Lord, Lord Judge, and other noble Lords who have spoken up for the rule of law and our obligations under international law.
Baroness Scott of Bybrook (Con)
We cannot hear you. Can somebody please try to change the sound for you, and we will come back to you?
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
In view of the difficulties experienced by the noble Baroness, Lady Kennedy, we will move on to the noble Lord, Lord Lisvane.
Lord Lisvane (CB) [V]
There is so much wrong with this Bill that it is hard to know where to start—apart from, of course, warmly congratulating and welcoming today’s maiden speakers, the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz.
I will make three points. First, on the use—or, I should say, abuse—of delegated powers, the Delegated Powers Committee has done its usual excellent job. It notes that this Bill contains 11 delegated powers and describes some as “extraordinary” and others as “unprecedented”. There are seven Henry VIII powers, allowing Ministers simply to rewrite primary legislation, with a much lower level of parliamentary scrutiny and public exposure. Overall, the Bill exemplifies the decline in the legislative process that I have observed for nearly half a century. Now it is, I fear, a disaster area, which the promised Constitution, Democracy and Rights Commission should examine as a high priority—although I have little hope that it will do so, or will be allowed to do so.
Secondly, on the Bill’s effect on the devolution settlement, it has successfully united three of the constituent parts of the—presently—United Kingdom in a chorus of execration at what they see as an attempt to undermine the devolution settlements and change the nature and scope of reserved powers. Noble Lords are expressing strong views on this aspect, but I simply draw your Lordships’ attention to the Act of Union Bill that I introduced towards the end of the last Parliament, in which the Constitution Reform Group chaired by Lord Salisbury seeks a more effective and equitable settlement between the constituent parts of the United Kingdom. A moment ago, I described it as the “presently” United Kingdom. I do not think that history will deal kindly with an Administration who contrive to take us out of not one union but two.
I conclude with the rule of law issues. Yes, Parliament can legislate in the way proposed—of course it can—but it should not and, I suggest, must not. The rule of law is not something just for lawyers and academics; it is for us all. As my noble and gallant friend Lord Stirrup said, if I break the Covid-19 restrictions, will the Government come to my aid when I say, “Yes, I was breaking the law, but only in a specific and limited way”? The attempt to present the law-breaking powers in the Bill as more acceptable by making them subject to approval by the House of Commons is naive. It is as though I were to say to your Lordships, “I have a revolver—but don’t worry, it’s empty. I’ve given the ammunition to a friend of mine. But when I ask, he’ll give it back and I’ll put the rounds into the weapon.” The answer is, of course, that I should not have the revolver in the first place.
I shall certainly vote for my noble and learned friend Lord Judge’s amendment, and when the Bill goes back to the Commons it should do so without at least Part 5. What happens then? I agree with my noble friend Lord Butler that this is an issue on which your Lordships should be prepared for a bumpy ride. It would not be possible to use the Parliament Acts in the time available, so the Government would have to rethink their approach.
Please let us have no chuntering about the Salisbury/Addison convention. In 2006, the Joint Committee on Conventions of the UK Parliament acknowledged the change in the nature of the convention over time—hardly surprising as it arose from very specific circumstances 75 years ago—but it still linked the convention only to manifesto commitments, with a reserve responsibility of this House in exceptional circumstances, as the noble Lord, Lord McNally, reminded us. No one could seriously suggest that departing from the rule of law has received electoral approval. I suggest that your Lordships should not be deterred by any assertions of unconstitutionality. If there is unconstitutionality anywhere, it is in this Bill.
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
My Lords, I believe we can now hear from the noble Baroness, Lady Kennedy of The Shaws.
Baroness Kennedy of The Shaws (Lab)
I am very sorry if people could not hear me. I hope noble Lords can hear me now.
I start by welcoming our new Members to the House. I also add my respect and admiration for the noble and learned Lord, Lord Judge, and all noble Lords who have spoken in support of the rule of law. I would have thought that all of us would be committed to it.
Some of our colleagues have mentioned our role as a revising and scrutinising House, but our role goes beyond that. Those of us who have the fortune to be in this House are stewards of the constitution. We are also the protectors of the rule of law. We are the people who guard rights and preserve for future generations the things that really sustain this society. We are also the people who are supposed to look at the long term when government may be pressed into or encouraged to think short term.
I urge this House to support the amendment from the noble and learned Lord, Lord Judge. I am a director of the International Bar Association as well as a practitioner at the English Bar, and I recently hosted two webinars on this very Bill. Thousands of lawyers attended not just from the United Kingdom but from around the world. One of the webinars was on the impact on international law, and another on the effects here in the United Kingdom.
The legal profession in this country is united in its opposition to the Bill—the Bar Council, the Law Society, the lawyers and judges. Let me tell you, it is a very small club indeed who think that this Bill does not contravene the rule of law. It seems to me to be following a regrettable trend of undermining law more generally. We are seeing attacks on lawyers and the judiciary, and an effort to undermine the judiciary and its discretion. We are also seeing attacks on judicial review and other aspects of law.
When the webinars took place, international lawyers, much to my surprise, engaged from all over the world, shocked at the fact that Britain was doing this. They said, “It’s to you that we look when we are having difficulties with our own Governments. It’s to you in the United Kingdom that we look as the standard bearer for the rule of law.” One of our distinguished commercial judges, recently retired, said that the City’s position as a world-leading financial services centre is underpinned by our reputation in law. That is not something to play around with, even if you are doing it for a pragmatic reason rather than out of principle. As one or two other noble Lords have said, this is a matter of principle, and I believe that principle at times has to take precedence over party loyalty.
In one of the webinars, the noble and learned Lord, Lord Neuberger, reminded us that we are asking a lot of our citizens in the United Kingdom at this time because of the pandemic. We are asking them to abide by certain rules that constrict their lives. We are asking them to obey the law. That our Government should be dismissive of law and be prepared to break the law at this time sends a very bad message. The Government should listen and remove the offending clauses and the whole of Part 5. I am afraid that to disregard the law is really a very poor prospect for this country.
Lord Alderdice (LD) [V]
My Lords, my perspectives are shaped by my Northern Ireland roots and the implications that I draw from Part 5 of this dangerous Bill.
The inevitable consequence of Brexit was a series of difficulties with the Belfast Good Friday agreement, which had brought to an end not only 30 years of terrorism but a disturbed historical relationship with Ireland that went back many centuries. Those of us who spent many years of our lives negotiating and implementing that agreement had assumed that if we could find a new future for the people of our islands, we could find a way of maintaining our relationships with the rest of the European Union. However, when it became apparent that Brexit was the will of a majority of people in England and Wales, the challenge was to negotiate arrangements that would maintain the Good Friday agreement while taking the UK out of the European Union and at the same time hold together the constitutional union of England, Scotland, Wales and Northern Ireland.
Since Northern Ireland’s relationship with the rest of the UK and Ireland was already a singular one, it was clear that there would be significant challenges, especially if the British Government chose to leave the customs union and the single market. This was widely discussed in Northern Ireland during the referendum campaign and was probably the chief reason why the Ulster Unionist Party became pro-remain.
When Mr Johnson became Prime Minister, he and his party, including the members of the European Research Group, abandoned their Democratic Unionist allies and, last October, signed up for the revised protocol for Northern Ireland that Mr Johnson had negotiated. The DUP was betrayed, but Mr Johnson went on to fight the election on what he called
“a good arrangement, reconciling the special circumstances in Northern Ireland with the minimum possible bureaucratic consequences at a few points of arrival in Northern Ireland.”
The Conservative Party won the December 2019 general election, its manifesto based on the “great new deal” that the Prime Minister said he had done. Now, in presenting this Bill for the approval of your Lordships’ House, he has abandoned the commitment to the British people on which he was elected and seeks to break not only his manifesto commitment but international law. We should not be surprised; the Prime Minister has been entirely consistent—he has never felt the need to be bound by any commitments that he makes to people, nor by any rules or law. He was even prepared to mislead Her Majesty the Queen into approving a prorogation of Parliament, advice ruled to be unlawful.
Now he wants the rest of us in Parliament to collude with him in a flagrant breach of international law. That creates a constitutional crisis. While this House should generally restrict itself to giving advice to the Government of the day, I believe it has a responsibility of constitutional guardianship that is now being called into play by the Government’s premeditated breach of international law. Even the tabling of the Bill is a breach.
It is possible in the short term to toss facts, truth and the law to the side, but as this Government are beginning to discover, truth, facts, the law and broken relationships have a way of coming back to bite. Bluster, hyperbole and waving one’s arms around do not impress the Covid-19 virus; nor, increasingly, do they convince ordinary people in this country.
When one manifestly does the wrong thing—not making a mistake, but doing what is morally wrong and unjustifiable—history will find you out. Members of your Lordships’ House who support this Government’s disregard for the law should reflect on how past leaders have been hauled before the bar of history and their reputations irreparably shredded. Today’s remarkable debate in your Lordships’ House may even be the beginning of the end of this Government, for this is not a mistake or a misjudgment but a consistent pattern of behaviour that must be stopped before it destroys our United Kingdom.
Lord Barwell (Con)
My Lords, I congratulate the noble Baroness, Lady Hayman, and the noble Lord, Lord Sarfraz, on their maiden speeches and for their extreme skill in staying uncontroversial on this most controversial of topics.
I find myself in a curious position today, wanting to defend a withdrawal agreement, parts of which I strongly disagree with. Those of your Lordships who know my background will know that I preferred a different withdrawal agreement, negotiated by the former Prime Minister. The current Prime Minister, and many members of the Government, opposed that withdrawal agreement and the backstop within it because, they argued, there was no way out of it and it would be unthinkable for the United Kingdom to break international law. What was once unthinkable is now government policy. As the noble and learned Lord, Lord Judge, said, we are being asked in Part 5 to give Ministers powers to break the law—powers to override an agreement that was agreed not in some dim and distant past but just a few months ago.
What justification are we offered for that course of action? We have had two. The Prime Minister, in an article, said that these were incredibly turbulent times; it was all done in a bit of a rush and now some problems have come to light. It is also being suggested to us that the EU has been unreasonable. I will leave it to your Lordships to decide whether you believe that the EU’s approach is unreasonable—I doubt I will convince anybody on that point—but I will say that it has been entirely consistent from the word go. The EU has argued that there could be no free trade agreement without a resolution of the issues in Ireland and Northern Ireland and that the UK could never have a Canada-style agreement because of our geographical proximity. The issues that have come to light, and which this Bill seeks to address in relation to customs or exit declarations for goods coming from Northern Ireland to Great Britain, or to state aid, have not materialised overnight: they are in the withdrawal agreement. The Explanatory Notes of the Bill say that they are in the withdrawal agreement, so these are consequences of the agreement that the Prime Minister signed. They are consequences that were pointed out by those of us who had reservations about that agreement at the point at which it was agreed.
As has been made very clear, there was no need to take the course that the Government have taken in this Bill. Article 16 of the withdrawal agreement provides a procedure to use if the agreement leads to economical, societal or environmental difficulties, where parties can take unilateral action.
None of these things is the real reason for what has happened here. The real reason is that David Frost, the Prime Minister’s chief negotiator, asked No. 10 to come up with something that would shift the EU in its negotiating position. My noble friend Lord Hamilton asked why the Secretary of State for Northern Ireland said what he said. He said those words because he was told to say them. The opposition of this House, of five former Prime Ministers and of the most reverend Primate the Archbishop of Canterbury is what Number 10 wanted: it wanted to demonstrate to the European Union the extent to which it was prepared to take a different approach from all previous Governments.
I will end by making two very brief points. First, I am not a lawyer, but you do not have to be a lawyer to think that the rule of law matters. This is not some abstract concept: it has real world consequences. On Friday, Moody’s downgraded the UK’s credit rating; it referred to the weakening of the UK’s institutions of governance in recent years.
Finally, the tragedy of this Bill and the situation that we find ourselves in as a country is that the reason why the Brexit negotiations have proved so difficult is that the EU believed all along that the UK might end up breaching faith. I well recall a meeting with EU officials that I attended with Theresa May, where she asked why the backstop had to be set out in all that operational difficulty. She was told, “Because, bluntly, we do not think you will be there for much longer and we do not trust what is going to follow in terms of living up to any commitments.” That is the tragedy of this Bill. This behaviour was predicted and is one of the reasons why we confront this problem. Let us hope that we reach a deal, that the Government can withdraw these clauses and that we can find a satisfactory way out of this situation in which we now find ourselves.
Lord Hope of Craighead (CB) [V]
My Lords, it is a real pleasure to follow such an impressive speech by the noble Lord, Lord Barwell. For myself, I wish to concentrate on the consequences of this Bill for the devolution settlement. I am aware that this issue might seem to be a sideshow compared with Part 5 of the Bill—perhaps a moment, especially for those of your Lordships who, like me, are participating virtually, to go away and do something else. However, like so many others, I urge your Lordships to take notice of it and take it very seriously.
Frictionless trade across all parts of the United Kingdom is, of course, what we all wish and must aim for, but this depends on the principles of co-operation and on mutual trust between all four nations. As presently drafted, the Bill and the way it has been introduced is deeply damaging to those principles. Mutual trust between the nations has never been lower than it is now: Scotland has refused to give legislative consent to the Bill and Wales, as we have heard, has indicated that it cannot give consent to the Bill in its present form. Of course, this Parliament can do what it likes, but a different approach is essential if the union is to hold together against a growing trend towards fragmentation that will—if this Government are not very careful—bring our precious union to an end.
The devolution settlements were guided by the market access principles of proportionality and subsidiarity that operate under EU law. There was room for a carefully worked out devolution of legislative power which enabled the devolved authorities to pursue their own legitimate policy aims as to the sale of goods where, in their judgment, this was in the public interest. Nobody doubts that the way this freedom has been handled works well at present. It is not in any way a barrier to trade between our nations; on the contrary, it has real benefits. It enables new trading policies to be tried out in one area before the rest. The Bill itself accepts that such divergences as exist at present can remain.
However, the Bill seeks to replace the freedom to develop local standards or separate policy aims in the future with centrally driven, overriding market principles. It does not seek to repeal the various exceptions to the list of reserved powers that are set out in the statutes, but its effect would be the same, as there would be no stopping traders bringing goods in from other areas that do not conform to the home area’s rules. The devolved powers are rendered worthless by this new system. UK Ministers are given powers to do things which contravene the devolution settlements without consultation, let alone consent. The opportunity to create an internal market by agreement through the continued development of common frameworks—about which the noble Baroness, Lady Andrews, spoke so well earlier today—is being undermined because it is being ignored. The common frameworks are not even mentioned in the Bill.
The effect of the Bill has been described as a “power grab” by the Scottish National Party. I am not given to hyperbole—which I thought this was—but now, having read the Bill and the well-founded and withering report of the Constitution Committee, I can see why this expression is being used by them and now in Wales too. There is something very far wrong here; that is the challenge that we face. We do not need this Bill, but if we have to have it, it must be put right.
Baroness Neville-Rolfe (Con)
My Lords, I congratulate my noble friend Lord Sarfraz, a dynamic entrepreneur, on a very fine maiden speech, and also the noble Baroness, Lady Hayman of Ullock. I look forward to the noble Baroness boosting the parliamentary choir and hearing a bit more about that Welsh farm.
I rise to pursue two points. First, I want to address the operation of the internal market provisions. Secondly, I will comment on the great issue of the day and provide some much-needed support for the Government’s position.
The Bill makes a great deal of sense. We need the internal market to function smoothly. As we leave the EU single market, our own UK single market will be even more important. As an economist by training, I believe in the theory of comparative advantage, and that applies across the UK. We need to avoid protectionist measures so, for example, the Scots and English can exchange Scotch whisky and London gin without hindrance or charge. I apologise for resorting to GCSE economics, but the point is a very important one, and it is equally valid for services—80% of the economy. I declare my interests in the register.
That does not mean small variations in law need to be prevented. The Scots have different rules on minimum alcohol pricing and the Welsh were early regulators on plastic bags—both areas in which I am interested—and that has worked fine. However, devolution can only go so far, or it will harm the common interest immeasurably.
I congratulate my noble friend the Minister on producing an impact assessment, and his help with getting the promoters of the agriculture and fisheries Bills to do the same. However, it is disappointingly light on numbers. I think a better effort could have been made at economic assessment and the dynamics of growth—or lack of it, without a proper free market—and that this would have shown how vital the UK internal market measures in the Bill in fact are.
I also have a question for my noble friend. Why has the Competition and Markets Authority been chosen to gather information and monitor the new arrangements in a fancy new Office for the Internal Market? I can see the advantage in terms of recruitment and retention at the CMA. However, the CMA is much more focused on the consumer than on business success and, at a time when we face grave economic difficulties, I find this worrying. It is also a politically charged area, so does it really make sense to delegate these vital powers to a supposedly independent body? PHE and Ofqual spring to mind as not wholly satisfactory analogies.
Much has been said about Part 5 of the Bill. I agree that in principle this approach is undesirable. However, there is at least a theoretical possibility that EU action could place the UK in an impossible position as regards the coherence of its own internal market. If that came to pass, we would be presented with a very unpleasant choice. I am sorry to say this, but the real problem stems from the nature of the withdrawal agreement which the present Prime Minister inherited in an extremely unsatisfactory state from the previous Administration. As my noble friend Lord Howell hinted, the UK-EU joint committee has not stepped up to the mark in resolving the issues for whatever reason, as it would have done had everybody acted in good faith.
So having a safety-net provision in the Bill for use in extremis, and only after a special parliamentary vote, is probably the least damaging way forward. The fact is that treaty requirements sometimes conflict with each other and some member states fail to observe important treaty provisions, such as the Maastricht criteria, as my noble friend Lord Lamont reminded us so eloquently earlier today.
Lord Hendy (Lab) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Neville-Rolfe. I too welcome my noble friend Lady Hayman and the noble Lord, Lord Sarfraz, to the House, and I compliment them on their excellent speeches.
Like so many other noble Lords, I share the view that the Bill would cause this country to be in breach of the rule of law. Having spent over 40 years in practice at the Bar, over 30 of them in silk, I consider myself, like other Queen’s Counsel in this House, to be under a duty to oppose the Bill on that ground. I support the noble and learned Lord, Lord Judge, in his amendment but shall not weary the House by repeating in a pedestrian way the arguments so elegantly and powerfully put by him and others.
I wish to raise another, different point. The Bill seeks to create a uniform internal market for goods and services, but it says nothing about the protection of those who actually make or provide the goods and services—the workers of the United Kingdom and beyond. I use the term “worker” as a lawyer, meaning someone who works for a living whether under a contract of service or a contract for services. The EU single market, from which this Bill takes inspiration, had much in the way of protection of affected workers; the Bill has nothing.
I accept that labour law—the law of the workplace—is not a devolved matter and therefore applies across the UK, with minor variations in Scotland and Northern Ireland, but that does not avoid the issue of social dumping. It is entirely foreseeable that measures are taken in Wales, Scotland and Northern Ireland to protect workers in those countries from being undercut in England or abroad.
Let us take, for example, agriculture. In 2013, the coalition Government abolished the Agricultural Wages Board for England and Wales—a negotiating body representing employers and workers—the agreements of which on wages, housing costs, and, of course, dog allowances, became binding on every farmer and farm worker in England and Wales. The board was originally set up in 1924, a daughter of the Trade Boards Act 1909. Scotland retained its AWB. The Welsh Government, having lost the AWB for England and Wales, set up their own under their devolved power over agriculture. The UK Government considered it intolerable that Wales should exercise this kind of sovereignty to maintain higher pay rates for its farm workers and therefore challenged the Welsh Government in the courts, a case they ultimately lost in the Supreme Court. Wales therefore now retains its own AWB.
In consequence of the Covid catastrophe, there will be more such differential measures of worker protection. Even before Covid, the Welsh and Scottish Governments considered the use of conditions attached to public procurement contracts in order to enhance worker protection and develop social dialogue with trade unions —a concept alien to the Government in Westminster. This Bill should make provision to permit national Governments to discriminate on goods and services in order to maintain labour standards, as well as on the grounds set out in Schedule 1. I propose to move an amendment to this effect in Committee, should the Bill proceed.
Lord Brown of Eaton-under-Heywood (CB) [V]
My Lords, it is always good to follow the noble Lord, Lord Hendy. I start by welcoming and congratulating the two excellent maiden speakers. I doubt they were as nervous as I am making my maiden remote Zoom speech.
I shall vote for the amendment to the Motion moved by the noble and learned Lord, Lord Judge. Like him and so many others who have spoken in this remarkable debate, I deplore Clauses 42 to 47 in Part 5, and I express my deep regret that our great country, champion for centuries of the rule of law, domestically and internationally, has reached the point of prospectively repudiating binding treaty obligations entered into less than a year ago. The damage to our international reputation and standing needs no additional emphasis from me. Similarly, I note the damage to our prospects of finding—as we now need to—trusting new treaty partners and, as mentioned by the noble Baroness, Lady Kennedy of The Shaws, to London’s standing as the economically very valuable centre of international legal practice and dispute resolution by both litigation and arbitration.
I now turn to a rather different aspect of Part 5. It is my contention that these clauses are not merely unlawful and, therefore, intrinsically objectionable in principle; they are quite unnecessary—unless, quite outrageously, they are in the Bill merely to shift the dial to try to bully the EU into a more helpful stance, as the noble Lord, Lord Barwell, suggested. Assuming that they are in the Bill for “good faith” reasons, I strongly agree with the noble and gallant Lord, Lord Stirrup, that, were it ever to be necessary to legislate to breach international law, that should follow—not, as here, precede—that need.
However, I would go further and say it never would be necessary. I will explain why. Naturally, I recognise the imperative under the protocol that it applies to honour and not imperil the Belfast agreement and that it does not destroy the essential unity and integrity of the United Kingdom internal market. This requires reaching a sensible, workable agreement by negotiation or, if necessary, the decision of the joint committee under Article 16 on, for example, what are reasonably to be regarded as “goods at risk”.
However—and this is really the crunch point—if the Government say they truly fear the EU playing hardball on the wider negotiations, threatening to act quite unreasonably or acting in bad faith in its interpretation and application of the protocol, then, instead of our pre-emptively breaking, as these clauses do, the agreement ourselves, we would be able to treat them as being in breach. This would entitle us not merely to invoke, as we would, the dispute resolution mechanism provided for but, in the meantime, temporarily and pending the eventual outcome of any arbitration, to take all necessary and proportionate measures to protect our fundamental interests, which obviously include the Belfast agreement.
That is it: both parties owe the “good faith” obligations and that is plain under Article 5 of the Vienna convention. Neither side is entitled to act unreasonably, such as to frustrate the essential object of the agreement. With those thoughts in mind, it seems not merely outrageous in principle but, in fact, ultimately absurd to include provisions that could never be properly required given that there is, as the Government fear, bad faith on the EU side.
Lord Vaizey of Didcot (Con)
My Lords, I begin by congratulating the noble Baroness, Lady Hayman, and the noble Lord, Lord Sarfraz, on their excellent maiden speeches in this Second Reading debate.
This is the first debate I have taken part in where I have had the opportunity for a dinner break and the chance to discuss with colleagues how the Bill is progressing. One remarked, interestingly, that you know the Government are in trouble when they are condemned by a former Lord Chief Justice and the Archbishop of Canterbury before the debate has barely got going. However, maybe something can be salvaged in this debate.
The first point that all noble Lords must remember is that, leaving aside the controversial Part 5 and Clause 47, the Bill is still important and necessary. We need an internal market Bill after Brexit. As the noble Lord, Lord Cavendish, remarked earlier, we had an internal market in this country for 300 years, and it was effectively taken over when we joined the European Economic Community. Now, as we leave the European Union, the Government must make provision to restore the union and the internal market that existed before we became members of that community. It is my impression that although there is a lot of politics surrounding some of the provisions for replacing the internal market, none of the devolved Assemblies will lose powers that they already have. They will have the same powers when the Bill is passed. In that sense, the glass is half full.
There are, of course, some very controversial measures in the Bill and they are entirely of the Government’s own making. We face a conundrum which has been present ever since the country voted for Brexit and we started looking at how to implement the referendum result: either to have a border between Ireland and Northern Ireland, or a border between Northern Ireland and the rest of the United Kingdom. The then Prime Minister, Theresa May, tried to find a way out of that conundrum, and did so very elegantly by seeking to keep us within the customs union. When I was in the other place, I voted for her withdrawal agreement—I was fond of remarking to some of my more ideological colleagues that I had voted for Brexit more times than they had. The Government then decided to return to a form of Brexit which brings us to where we are today: potentially having to choose, inevitably, between a border between Northern Ireland and the rest of the United Kingdom and a border between Ireland and Northern Ireland.
Again, however, my glass gets slightly fuller, because I think that there may be a way out of this impasse. We know that, despite the confrontational attitude that seems to be adopted now by both sides, who are negotiating the future of millions of people in this country and the rest of the European Union, there is a potential way forward and we may have a free trade agreement. The European Union has said that it will hold a special Council in order to achieve that. I very much hope that that will come about. If it does not, and the provisions in the Bill reach a conclusion without a free trade agreement, we will face some very serious consequences. If, as I hope, we are able to preserve the internal market in the United Kingdom, but we do so under the provisions of the Bill without a free trade agreement, it is inevitable that we will get a hard border between Ireland and Northern Ireland, either one that Ireland itself feels it has to impose or one that the European Union chooses to impose on its behalf. That will be extremely damaging for everyone in this country.
Baroness Finlay of Llandaff (CB) [V]
My Lords, among the historic speeches today, including superb maiden speeches, I venture to address Part 1, on the application of market access principles to goods and public health. The Government say that this part of the Bill is necessary to ensure that no new barriers to trade arise after the end of EU transition, but how might such barriers arise given that, on 1 January, the whole UK will be governed by retained EU law? The current legal frameworks which limit but do not eliminate the rights of the devolved institutions to implement progressive policies in areas such as food safety or labelling will still be in place, but I expect that the Government will warn that barriers could arise from new policy initiatives from the devolved Governments. That is why they propose automatic application of market access, meaning that any goods which can be legally sold in one nation must automatically be offered for sale across the whole UK. What does this mean in practice? If, for example, the Welsh Government wish to change food labelling to improve warnings on sugar or fat content, or want to ban sugary fizzy drinks, they could in theory still do so, but the law would be wholly ineffective because products legally made in, or imported into, England and which did not comply could be freely sold in Cardiff and Caernarfon. This would neuter the ability of the elected legislatures in Cardiff, Edinburgh and Belfast to act within their devolved competences.
There is no imminent threat which renders this measure necessary. For the past three years, all four Governments have worked to create common frameworks in those areas which the Government here in Westminster identified as requiring limits on the extent to which any one part of the UK could diverge from the standards that we will inherit through retained EU laws. Quietly, and without any publicity in this House, good progress has been made on developing these voluntary frameworks, which will bind all Governments by each forswearing the right to diverge too greatly. A great deal of work has been undertaken by the committee chaired by the noble Baroness, Lady Andrews, and was reported to the House on 24 September. Now, this Bill renders all that work superfluous.
The Government, representing the overwhelming share of the UK economy, are reneging on their commitment to the agreed frameworks. They can do whatever they want and whatever they agree in a trade deal without consulting the devolved Administrations. The Bill stops the devolved Governments adopting more progressive policies. It suddenly changes the rules of the game from those agreed and seems to tear up the common frameworks approach that the devolved Administrations have supported. Amendments in my name would protect these negotiated common frameworks and ensure that market access principles were used only when all efforts to agree a common framework had failed.
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
My Lords, the noble Baroness, Lady Gardner of Parkes, has withdrawn from the debate, so I call the next speaker, the noble Baroness, Lady Crawley.
Baroness Crawley (Lab) [V]
My Lords, I welcome the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz, and commend their excellent contributions today.
This Bill comes to us with a reputation rather like that of the Vikings: dangerous, unloved, little respect for the law and disrespect for the kingdoms of Great Britain—it obviously leaves out pillaging, for which much thanks.
First, I add my voice to the rising chorus against Part 5 of the Bill, which as we know allows parts of the Ireland/Northern Ireland protocol to be disapplied. The protocol, being part of the withdrawal agreement, is an international treaty and trumps—if noble Lords will excuse the expression—domestic law. The noble and learned Lord, Lord Judge, is right: Part 5 must go. But, reply the Government, the EU is acting in bad faith. However, there is no evidence. Show us the evidence. There is no evidence at all for that, states the House of Lords European Union Committee. Are we really no longer a member of the international rules-based order—because I did not get the memo? Perhaps the Bill is the memo.
The Bill allows Ministers to make regulations that are inconsistent with the UK’s obligations under Article 4 of the withdrawal agreement. But, say the Government, we may never use these powers. We will just threaten to break the glass and pull the emergency cord, meanwhile not actually being in breach of the state aid and customs provisions of the Northern Ireland protocol.
Ireland, our nearest and most important trading partner, does not agree. On the Government’s claims that these disapplying provisions are needed as a safety net against the possibility of a no-deal Brexit, the Irish Government have been very clear that the protocol is designed and empowered to operate in all circumstances, including the absence of an agreement on the future relationship between the EU and the UK. The UK Government may disregard the views of the Irish Government, but they may wish to take notice of the House of Lords Constitution and European Union Committees. Their recommendations on this sorry Bill are damning—to say nothing of the views of the Anglican Church.
I make my second and final point as a member of the new House of Lords Common Frameworks Scrutiny Committee. My noble friend Lady Andrews and many other noble Lords made strong arguments that common frameworks are better instruments for creating the new internal market than is the Bill. Indeed, the Government themselves said that common frameworks, and the programme that they imply, would in fact map out the area of the UK internal market. These frameworks, whether on food safety, emissions trading, company law or whatever, have been worked up in partnership with the devolved Administrations. Although they are based on regulatory consistency, they respect the flexibility of the devolved settlements, as did the EU. Could the Minister say why the Government are not putting their energy into these consensual frameworks, rather than this divisive Bill?
Baroness Ludford (LD)
My Lords, I add my congratulations and welcome to the maiden speakers, whom I look forward to getting to know. I sincerely thank our committees, on the constitution, EU affairs and delegated powers, for their expert and powerful reports. Part 5 of the Bill, with its attempt to override an international law commitment, in an agreement the Government themselves signed and then enshrined in domestic law less than a year ago, is breath-taking. The comment by the Secretary of State for Northern Ireland that the Bill breaks international law
“in a specific and limited way”
is destined to go down in history alongside “economical with the truth”.
It was commendable, if regrettable, that the noble and learned Lord, Lord Keen of Elie, felt compelled to resign, as did the Treasury Solicitor Sir Jonathan Jones. I regret that this means we do not have a law officer here to answer the debate. The noble Lord, Lord Wilson of Dinton, pithily summed up the situation in testimony to the Constitution Committee when he said of the Bill that
“the constitutional position is that it is an outrage, and the political position is that it is hugely damaging to our reputation internationally.”
The Constitution Committee concluded that Part 5 clauses
“represent a disregard for the rule of law”.
The Bill is only one aspect of the cavalier attitude of Conservative Governments in the last few years to the law and constitutional convention. Examples include: trying to trigger Article 50 without parliamentary approval; illegal Prorogation; and launching attacks on lawyers as “lefty human rights lawyers”, “activists” and “do-gooders”. Was it a coincidence that a knifeman threatened to kill a solicitor last month?
Then they are grossly under-resourcing the justice system; and “taking back control” not for Parliament but for themselves, through an accumulation of executive power and overuse of statutory instruments, to the extent that the legal commentator for the Financial Times, David Allen Green, called it “government by decree”. He quoted Lord Hewart, a Liberal politician and judge who became Lord Chief Justice and who said, in his 1929 book The New Despotism:
“The strategy is different”—
from the “old despotism” of Charles I—
“but the goal is the same. It is to subordinate Parliament, to evade the Courts, and to render the will or the caprice of the Executive unfettered and supreme.”
It sounds very modern.
The Government’s claim that the Bill is simply an insurance policy or safety net has spectacularly backfired. As our EU Committee observed, it has
“in effect, placed the United Kingdom in the wrong”.
The EU responded accordingly by insisting on tougher enforcement provisions and sending a letter of formal notice—the first step in infringement proceedings. The Irish equality and human rights commissions from north and south, as well as the Anglican Primates, have expressed deep concern that the Irish protocol to the withdrawal agreement might be breached, and the human rights and equality provisions of the Good Friday agreement overridden.
The Bingham Centre for the Rule of Law notes:
“The ideal of Magna Carta—that no one is above the law—is a source of global inspiration”,
and the Bar Council and the Law Society highlight the prejudice to the position of London as a centre for international practice and dispute resolution, and to our attempt to accede to the Lugano Convention.
The 20th anniversary of Human Rights Act has just passed, and it is the 70th anniversary of European Convention on Human Rights in a few weeks. It was a Conservative lawyer and politician, Sir David Maxwell Fyfe, as he then was, who was largely instrumental in drafting the ECHR. It is shameful not only that the modern Conservative Party is weakening its commitment to the convention and the HRA, but that our Prime Minister had to be forced by the EU, in order to protect security ties, to pledge not to “materially alter the spirit”—whatever that means—of the Human Rights Act. This was billed as a “compromise” by Mr Johnson.
Part 5 of this Bill is a disgrace. The noble Lord, Lord Howard, was quite right to say that Parliament should fix this Bill and not leave it to the courts; hence the amendment in the name of the noble and learned Lord, Lord Judge, should be supported.
Lord Jay of Ewelme (CB) [V]
My Lords, there is much in the Internal Market Bill that I am happy to support, but I have two reservations. The first is devolution. Bringing back for settlement within the United Kingdom questions which have for a generation been settled at the level of the EU was always going to be difficult. This is particularly so if, as I suspect, the United Kingdom is moving in the direction of a federal state—one of the great ironies of Brexit. The right way forward must surely depend on genuine consultation and negotiation among all four countries of the union, as has been happening over common frameworks. The Bill seems to be putting all this unnecessarily—and, indeed, dangerously—at risk, for reasons I simply do not understand. So I look forward to the noble Lord, Lord True, explaining why tomorrow.
My second reservation relates to Part 5 of the Bill. I have read the reports of the EU Committee and the Constitution Committee, and the Bingham Centre’s analysis of the Bill, and I agree with every word of the letter from the most reverend Primate the Archbishop of Canterbury and his colleagues. It is clear that Clauses 44, 45 and 47 would constitute a breach of international law and, as the Bingham Centre’s report makes clear:
“A breach of the rule of international law is still a breach of the Rule of Law.”
These clauses go against all that the United Kingdom has stood for, nationally and internationally, for as long as I can remember. How can we persuade other countries to observe the rule of law if we are willing to break it ourselves? These clauses not only contribute nothing to the Brexit negotiations—indeed, it seems to me, rather the reverse—but reduce the future effectiveness of global Britain. They must be removed from the draft Bill; meanwhile, I will be glad to support the Motion in the name of my noble and learned friend Lord Judge tomorrow.
Baroness Stroud (Con)
My Lords, I begin by adding my congratulations to the noble Baroness, Lady Hayman, and the noble Lord, Lord Sarfraz, on their maiden speeches. I look forward to hearing further contributions from them both over many years.
The Bill, as we have heard, makes provision for the continuation of the UK’s single market when the transition period ends on 31 December. This single, unified, internal market is a key block in the constitutional foundations of the United Kingdom. It is my understanding that the 1707 Articles of Union between England and Scotland, and those between Great Britain and Ireland in 1800, abolished all customs duties between the different parts of the United Kingdom. Accordingly, free and uninterrupted commerce across all parts of the newly united kingdom were seen as one of the most important advantages of the Act of Union, particularly in Scotland and Ireland, the citizens of which could freely trade into and out of the larger English market.
When Ireland was partitioned and the separate Parliament of Northern Ireland was established, the Westminster Parliament was careful to ensure Northern Ireland and Great Britain should continue to remain a single, integrated, internal market. The devolved legislatures in Scotland and Wales were created after the UK had joined the European community. Because the EU single market rules on state aid and free movement of goods and services apply to regional governments and legislatures as well as the central governments of member states, there was no need, during our EU membership, for specific UK-based rules maintaining the UK internal market against fragmentation. Now that we are approaching the end of the transition period, a vehicle is needed to maintain the free flow of trade across the nation in the post-Brexit world.
As we are all aware, though, there are two clauses in particular that will be subject to much debate and have already been subject to much debate during the passage of this Bill. These would allow the Government to restrict the so-called direct effect of two parts of the Northern Ireland protocol, which is part of the EU withdrawal agreement. These clauses have the goals of protecting the basic functioning of the United Kingdom’s internal market, as it operates between Great Britain and Northern Ireland in the event that it is not possible to reach an agreement with the EU on the UK’s future relationship with it; and allowing state aid in Great Britain to be dispensed under a framework of rules devised in this country, rather than being subject to European Commission control and European Court of Justice jurisdiction.
During the passage of this Bill, it is my intention to focus on and scrutinise, first, the degree to which, under the UK’s constitutional law, international treaties in general do not form part of the law. It is my understanding that, when an international treaty has made it necessary to make changes to the UK’s internal law in order to comply with it, the general practice has been for Parliament to pass legislation to make any necessary changes to the law. Secondly, I want to focus on the degree to which the jurisdiction clauses represent a gross departure from normal international treaty practice, under which sovereign states simply do not accept binding rulings by the courts of the other treaty party and agree only to subject themselves to mutual international courts or tribunals. Thirdly, I shall look at the degree to which, as a matter of UK constitutional law, the UK Parliament is entitled to legislate to remove direct effect from part of, or, if it so chose, the whole of, an international treaty.
I look forward to engaging in the debate on this Bill and hope that, in doing so, we can find a way through that addresses the challenge this Bill seeks to address and remember that having UK law subordinated to EU law and ECJ rulings was one of the main drivers leading to the British people’s decision to leave the EU.
Lord Trevethin and Oaksey (CB) [V]
My Lords, while listening to the many powerful speeches condemning part 5 of this Bill, I have wondered how the arguments in favour of these controversial provisions might be best presented. First, the phrase “breach of international law” is a loose expression, and the Minister in the Commons might well wish now that he had not used it. What is being contemplated here is better defined as a breach of an obligation arising under an international treaty, which is a better way in which to define the matter. This is a familiar contractual problem of quite a familiar sort: one party to the agreement wants to tear up certain provisions that it does not like.
Secondly, it is probably accurate to say that the contemplated breach is potential, not actual. The Constitution Committee concluded in paragraph 152 of its report that this is an open question. The actual breach may occur only if the power to disapply parts of the Northern Ireland protocol is exercised. Therefore, it can be argued that there is no current breach of a treaty obligation, only something rather less objectionable: the equivalent of a solicitor’s letter saying: “We intend to continue negotiating in good faith, but you need to know that we reserve all rights and, in particular, the right—if we have it—to tear up parts of the present agreement that we do not like, if it seems to us necessary to do so”. This is close to being what English lawyers call a “repudiatory and anticipatory breach of contract”, but it is probably on just the right side of the line.
Thirdly, Article 184 of the agreement requires both parties to use their best endeavours, acting in good faith, to negotiate the agreements referred to in the political declaration. That obligation should be read as being informed by the recitals to the Irish protocol. These repay careful reading. In particular, the parties affirm that the Good Friday agreement
“should be protected in all its parts”.
There is ample scope for argument on what may follow from that. It may be argued, as the Government have already argued, albeit faintly and without particulars, that the EU has in various ways itself been in breach of this good faith obligation. Reserving the right to disapply certain provisions of the agreement at some future point is not properly characterised as an outrageous and unlawful threat to renege. It is something different— namely, making it clear that, if the EU persists in conduct which the UK regards as a breach of Article 184, the UK reserves its right to treat the agreement, or part of it, as terminated or suspended. That, it may be argued, is a right that exists under Article 60 of the Vienna convention, which provides that a material breach of a bilateral treaty entitles the innocent party to terminate the treaty or treat it as suspended, in whole or in part.
Fourthly, to move away from the law of contract, it might be said that dealings between the EU and the UK over the last four years have shown very clearly, that in zero-sum adversarial contractual negotiations, it is sometimes necessary to play with a hard ball. The speech made by the noble Lord, Lord Skidelsky, displayed hard-headed pragmatism which Mr Keynes surely would have admired. The noble Lord correctly observed that the most complex treaties involve constructive ambiguity and, often, a degree of what might be called “covert bad faith”.
Those are the arguments. I do not suppose that I have persuaded the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood, with whose speeches I agree, and I have not come close even to persuading myself that Part 5 of the Bill is defensible. Clause 47 is an astonishing provision. In that respect, I listened with dismay to the Lord Chancellor’s recent answers to questions put to him by the noble Lord, Lord Pannick. The Government seem to be largely ignoring the details of exhaustive dispute resolution provisions in the agreement—in particular, in Article 168 —which makes it mandatory to use them. Theyhave not done much more than faintly to sketch a case that the EU has acted in bad faith; if they want to rely on that, they should set it out in detail. This is a very wobbly position from which to launch a case that the counterparty is acting in bad faith. In the absence of such a case, there is no legal justification for threatening to tear up part of the agreement. Accordingly, I regret Part 5 of the Bill, and add that, while this House must act in accordance with its perception of what the rule of law requires, it should also bear in mind the admonition of the noble Lord, Lord Skidelsky, that we risk weakening the hand of our negotiators.
Viscount Trenchard (Con) [V]
My Lords, I too would like to congratulate the noble Baroness, Lady Hayman of Ullock, and my noble friend Lord Sarfraz on their excellent maiden speeches. I congratulate my noble friend the Minister on introducing this Bill under fire, so to speak. It builds upon the common frameworks approach to which the UK Government and the devolved authorities are sensibly committed in order to preserve the status quo of intra-UK free trade.
At the time of devolution for Scotland in 1997 and Wales in 1999, the United Kingdom Parliament was free only to devolve those parts of legislative competence that it, as a member state, still retained. High-level principles and frameworks in many areas had already been transferred by the member states to the union. The Scottish and Welsh Governments are now disingenuously arguing that responsibility for these high-level principles and frameworks should be transferred from Brussels to Edinburgh and Cardiff. Does my noble friend agree with the arguments advanced by Nick Timothy in his article in today’s Daily Telegraph entitled “Devolution is a Mess That Fails the Public and Endangers the Union”?
As I am not a lawyer, I should not presume to enter into discussion of the finer legal points. However, I would ask my noble friend if he agrees that the EU and the UK had already broken international law when they signed the withdrawal agreement in October 2019 because it was a breach of the conditions of the Lisbon treaty. According to the website of the European Union, Article 50 provides for the negotiation of a withdrawal agreement between the EU and the withdrawing state, defining in particular the latter’s future relationship with the union. The wording of the article itself refers to negotiation with the withdrawing state, taking account of the framework for its future relationship with the union. However, that did not happen.
I do not think for one moment that the UK’s international reputation as a country that upholds the rule of law is placed at risk by this Bill. I believe the conclusion of the Bingham Centre—that this Bill has serious implications for the rule of law—is based on a narrow legal interpretation of the facts, ignoring the refusal of the EU to negotiate Article 50 and our withdrawal in accordance with the treaty provisions. Our acquiescence to the EU’s demands for the two-stage negotiation was surely predictably going to lead to the present impasse. The world knows that the UK is still negotiating to leave the EU. To suggest that our trade partners will be shocked or surprised by this turn of events is not true. Indeed, the Prime Minister has always been clear and consistent that we want a Canada-style trade agreement and that we will not agree to an internal border between Great Britain and Northern Ireland, dividing the United Kingdom customs territory in two.
I have the highest regard for the noble and learned Lord, Lord Judge, but I would ask him if he knows why the EU and the learned lawyers of the Bingham Centre have remained silent and expressed no outrage at the finding of the German constitutional court that the ECJ exceeded its powers in its recent approval of the ECB’s public sector purchasing programme. I would also ask him if he thinks that Lord Diplock was right in 1964 in defending the sovereign right of the Crown to change its policy. The Crown needs the flexibility to use its sovereign rights as much as ever today, which should help it reach an 11th-hour agreement with the EU in the interests of all our citizens.
Lord Faulkner of Worcester (Lab) [V]
My Lords, this has been a fascinating debate, with many important issues raised with skill and eloquence in all parts of the Chamber, and enhanced by two excellent maiden speeches.
I am a member of the EU Select Committee. The views I express in this debate are of course my own, though I should make it clear that I agree with every conclusion contained in the report which we published last week on Part 5 of the internal market Bill. The report was agreed unanimously, and I pay tribute to the noble Earl, Lord Kinnoull, who chaired our proceedings with skill, distinction and humour.
I also congratulate my noble friend Lady Taylor of Bolton and her colleagues on the Constitution Committee on their report which focuses on devolution arrangements in the UK and the rule of law. Other speakers have dealt with the devastating nature of those issues: the consequences for Britain’s reputation abroad if we appear prepared to ignore the rule of law, the threats to the 1998 Belfast/Good Friday agreement, and the aggravation of the risk that Scotland will leave the United Kingdom.
One concern which has not received much attention in this debate, except, I think, from the noble Baroness, Lady Finlay of Llandaff, is the threat posed to public health. Public health is a devolved responsibility, and the individual nations of the UK have different populations and different priorities. Scotland, for example, pioneered minimum unit pricing for alcohol and England led the way on prohibiting tobacco displays in shops. However, the narrow drafting of this Bill substantially undermines the ability of all parts of the UK to innovate and improve public health policy. This is because of the very limited exceptions for public health. Furthermore, the current exclusions, including the list of legitimate aims that override non-discrimination, can be removed or weakened by statutory regulation. In my view, the Bill must be amended to allow the Governments of the four UK nations to protect the health of their populations. Protecting human health must be included as a legitimate aim for overriding all market access rules. I shall be supporting amendments to this effect in Committee.
In my last few moments, I want to make a couple of other points. First, I want to emphasise that this is not a rerun of earlier Brexit debates. If anyone is in any doubt about that, one need listen only to the powerful speech by the noble Lord, Lord Howard of Lympne, earlier today. And this is despite the intemperate attack by some Conservative MPs on the most reverend Primate and his fellow archbishops for daring to have a letter published in the Financial Times today.
The second point concerns the role of your Lordships’ House. The work of our committees—the Constitution Committee, the European Union Select Committee and the Delegated Powers Committee—has been outstanding and has hugely informed today’s debate. If your Lordships believe that Part 5 should not be included in the Bill, we should not be afraid to say so when we vote on the amendment of the noble and learned Lord, Lord Judge, tomorrow, and when we consider the Bill line by line in Committee. However, if Part 5 survives, I hope your Lordships will look closely at new Clause 56. It provides for the House of Commons to have to approve a resolution before Ministers can use the powers in Part 5 but it is silent about any role in your Lordships’ House. That is something I hope we can address as well.
Lord Hay of Ballyore (DUP) [V]
My Lords, as a proud advocate for our great union of nations, I will never shy from expounding the benefits of belonging to, and strengthening, the deep ties and bonds across the United Kingdom. In an Ulster-specific context, we must continue to do all we can to work across all sectors to ensure that Northern Ireland plays its full part in the long-term future growth of these islands. Working together does not always mean agreeing on every issue; focusing on the general work in hand means working together even if you disagree on certain issues.
As we look to the matter before us this evening, we should remember how far Northern Ireland has come and should be reminded of the lives lost and of families who have fewer seats at their tables today. As we acknowledge this, and reflect on historical differences, we should let the reign of peace and prosperity over the last two decades be an important guide looking forward.
Turning to the specifics before us, the Bill allows the United Kingdom to prosper together, and importantly goes some way toward protecting businesses in Northern Ireland in all eventualities. The Bill makes certain provisions for the regrettable flawed scenario in which parts of the withdrawal agreement would create potential barriers to internal trade. It is for that reason, above all else, that I support the Bill before your Lordships’ House today.
Presently, the EU can inflict significant economic damage on the people of Northern Ireland if a deal is not achieved. My party colleagues in the other place tabled amendments that sought to protect Northern Ireland still further. This Bill is therefore a necessary insurance policy at this stage, although it perhaps does not yet go far enough. Concern still exists for example about the Bill’s exclusion of Northern Ireland from protection against EU interference in state aid. It would be wholly unfair if business owners in Northern Ireland were unable to avail themselves of the same assistance available to similar companies elsewhere in Britain.
I support the general principles of the Bill, as it is aimed at preventing any fundamental undercutting of the union, which would damage business, create uncertainty, and dampen prosperity. There should be no question of further hurdles being introduced that would be barriers between parts of the United Kingdom. Regardless of the eventual free trade deal with the EU, there is a need for a sensible and mature approach to Northern Ireland. Regrettably, in some respects, that approach has been missing to date.
Key to all this is Northern Ireland’s economic reliance on the United Kingdom market, as total trade to Great Britain is significantly greater than trade to the EU. It is the duty of government and political representatives to put the interests of the people of the United Kingdom first. That means leaving the EU fully, securing our sovereignty, controlling our borders, and protecting the integrity of the United Kingdom internal market and our union.
In conclusion, we need to work collaboratively to ensure that the whole of the United Kingdom benefits equally from the various trade deals, economic opportunities and further prosperity that will come from being a free and independent nation state. We have to remain focused on ensuring that our exit from the European Union is a launchpad for a stronger, more determined and more united Britain.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am delighted to have the opportunity to participate in this debate. I warmly congratulate the noble Baroness, Lady Hayman of Ullock, and my noble friend Lord Sarfraz, on their excellent maiden speeches, and I bid them a very warm welcome to the House.
My noble friend Lord Callanan set out the reasons why, in his view, the Bill is necessary, in particular to extend market access of goods, services, professional qualifications and other aspects, and to create a coherent internal market now that we have left the European Union. There were always going to be complex questions arising following Brexit, including what happens to the powers that are returned to the United Kingdom, and how those powers are exercised by the Parliament at Westminster and by the devolved Administrations. I pay tribute to the work of both the Government and the devolved Administrations through the common frameworks. This has been an example of excellent co-operation and achievement in reducing to just 16 or 18 issues that will require further legislation.
One area that has not been referred to a great deal during this debate is how agriculture will be dealt with following the adoption of the Bill in its present form. Scotland has a separate agricultural policy that is much the envy of North Yorkshire, Cumbria, Northumberland and other farmers in the border regions. It gives rise to the question of how those policies will be administered now through the common frameworks.
I follow what a number of other noble Lords said earlier, particularly the noble Baronesses, Lady Andrews and Lady Finlay of Llandaff, and the noble and learned Lord, Lord Hope of Craighead, in asking the Minister specific questions. What is the situation now, and where does the Bill leave the common frameworks? Is it intended that work will continue to proceed on the achievements that have been made to date on those frameworks?
I really have no quarrel with what the noble and learned Lord, Lord Judge, set out in moving his amendment, nor with my noble friend Lord Cormack. I also found myself in absolute agreement with my noble friends Lord Howard and Lord Lamont. What I regret most about the Bill in its present form—not just Part 5, to which many have referred, but Parts 1 to 4, although Part 5 in particular—is the fact that the Government are increasingly standing alone internationally and domestically, claiming that they alone are right and everyone else is wrong. There are 27 member states in the EU and they have reached, and maintain, a common negotiating position. It is a matter of note, and it is to be welcomed, that there is a change in that negotiating position announced by the EU today.
The Bill in its present form shows how we risk forming barriers and disagreements with the devolved Assemblies, which will be hoping to work as closely as possible with the Parliament at Westminster. As my noble friend Lord Vaizey has said, there is time, and hopefully scope, to retrieve this situation. I wish the passage of the Bill well, but in heavily amended form before its adoption.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I, too, welcome our maiden speakers.
Like many noble Lords, I find that the conclusions of the Constitution Committee, the European Union Committee and the DPRRC chime with my own concerns about the Bill. I concur with the many magnificent speeches today, led by the noble and learned Lord, Lord Judge, about the rule of law. My humble offering is that the Government have made their bed, must lie in it and must use internationally respected ways to work with it to best advantage.
Regrettably, the theme throughout the Bill seems not to be about working with things but a rush to legislate around primitive principles, lacking the refinements of consultation, consent or even continuity concerning devolution. Really, the question is why. The Bill seems designed to upset. Is it part of the “revolution by disruption” plan, or was it thought that boxes needed ticking right now?
The UK internal market must be taken seriously, but why is there not time to stand still and work intergovernmentally and then legislate where needed, without recourse to Henry VIII clauses to make up for not yet really knowing what to do? The powers in the Bill are a land grab, taking the soul, if not the territory, of the devolved nations as well as sidelining Parliament, allowing anything to be changed by regulation.
I want to make points about the CMA and whether it is the right body and construction to be the embryonic unelected guardian of the single market. Paragraph 35 of the Constitution Committee’s report says it all. Why choose the CMA? Why not establish a properly independent body representing all four nations? Further, the input tenets in the EU lookalike texts of mutual recognition and non-discrimination have neither been agreed by all nations, via the frameworks or otherwise, nor maintain the degree of flexibility and subsidiarity that already exists in the UK.
The CMA itself is sponsored by a Government ministry and all the appointments are still governed by the Secretary of State—despite, for the OIM side, after consulting the devolved authorities. But this is a serious question: why the hermetically sealed and secretive CMA inquiry panel process? I understand it for matters of competition where commercially confidential information is considered and policy is well developed, but for the internal market it will be a matter of public interest and constitutional development. That surely should not be secretive. It will not be simply technical analysis. That leads to overbearing harmonisation; how often have we fought the EU over that?
Analysing the UK internal market must encompass subsidiarity and degree, at least once that has been properly agreed. Does the CMA have that expertise? Surely the evidence, procedures and reasoning need to be seen and, if I may say so, be robust enough to withstand public scrutiny. The Minister has already twice referenced the support of what are, in the end, relatively few of the total of UK businesses. Even within the unsuitable structure, unsuitably appointed, a minimum task group of three is too small and exclusive. Why should it be potentially smaller than the minimum number of judges sitting in the Supreme Court? Are panellists so superior? For such a constitutionally important matter, this all needs a rework.
Baroness Scott of Bybrook (Con)
I remind everybody that there is a four-minute advisory time. We are getting quite late and there are still rather a lot of speakers to come.
Lord Anderson of Ipswich (CB) [V]
My Lords, shortly after the Singing Revolution restored democracy to Estonia, its legal profession welcomed a British delegation to Tallinn’s largest law firm. At the centre of its new partners’ table was a brass disc, proudly engraved with the words “pacta sunt servanda”. As a newly independent nation, our hosts knew the importance of ensuring that promises are honoured, whether in commercial agreements or international treaties.
The precise meaning of such promises is often disputed, but Part 5 of this Bill is no inadvertent or merely arguable breach of some vague or trivial international undertaking. Its whole purpose is to signal to our negotiating partners a kind of anarchic disdain: disdain for this Government’s recent, specific and binding commitments on export declarations and state aid, and disdain for the very principle—fundamental to our status in the world—that treaties must be observed. With respect to the noble Lord, Lord Lilley, the Kadi case in which I appeared against the EU is no sort of precedent for a similar attitude on the part of the EU or its court. In that very case, the Court of Justice of the European Union affirmed its long-standing insistence that
“the European Community must respect international law in the exercise of its powers.”
The Secretary of State for Northern Ireland and a unanimous Constitution Committee have expressed the view that the Bill itself is in breach of the withdrawal agreement, or will be by the time it is entered into force. I agree, although perhaps it matters little since whether it is unlawful itself, the whole point of Part 5 is, on any view, to enable unlawfulness.
Then there are the judges: Francis Bacon’s “lions under the throne”. Here too, the Bill is deeply troubling. It not only authorises the Government to act unlawfully but deems such unlawful actions to be lawful. The lions are still on show, but they are comprehensively defanged by successive subsections of Clause 47. Deprived of their usual power to strike down unlawful regulations, they might as well be mounted on the wall.
Imagine, if we can, that the EU were to renege on the guarantees that it gave to British citizens in the withdrawal agreement. There would be justified accusations of perfidy and duplicity, yet it is, I am afraid, precisely such duplicity that we are asked to facilitate today. Can the strategic damage to our reputation as a trustworthy international partner be mitigated by any tactical advantage in the negotiations? Rather the reverse, I suspect, as the noble Lord, Lord Jay, suggested with all his diplomatic experience. Showing contempt for our existing agreement with the EU will hardly encourage it to sign a new one. More likely it will enhance the unity of the 27, at just the time when we should be testing it, and its determination not to give us the benefit of any doubt.
The Bill seeks to make Parliament complicit in a scheme that openly flouts two foundational principles: that agreements, once made, should be kept, and that government is not above the law. How could we possibly go along with that?
This is not a House of opposition, as the noble Lord, Lord Cavendish, rightly reminded us; but it is a guardian of constitutional principle and, as such, it needs to send a strong and clear signal. For my part, I look forward to supporting the amendment of the noble and learned Lord, Lord Judge, to voting at the earliest feasible opportunity not for some messy compromise but for the simple removal of Clauses 44, 45 and 47, and, like my noble friends Lord Butler and Lord Lisvane, to strapping in, if necessary, for a bumpy ride.
Lord Bowness (Con) [V]
My Lords, it is a little daunting to follow the learned speech of the noble Lord, Lord Anderson of Ipswich, and the excellent maiden speeches that we have heard this evening. However, Brexit is a phantom that still haunts and divides us, and the major issues in the Bill, whether the stated intention to flout a freely entered-into withdrawal agreement or the potential disputes around the devolution settlements as affected by the Bill, are a manifestation of that divide.
I put it to your Lordships, with some regret, that the fault for that rests fairly and squarely on the Prime Minister and his cohorts of hard-line Brexiteers. He said that the divide should be healed, but nothing has been done to bring those of a different point of view close. Most of those who voted remain are ready to accept the realities of leaving the European Union but wanted a closer collaborative settlement. There has been no attempt to accommodate those views. We rejected the single market, the customs union, the Norway option, membership of agencies such as the European Aviation Safety Agency, and all the matters that benefit citizens—mutual recognition of drivers’ licences, blue badges and the European health insurance card, which are currently in limbo. But fear not: we have a blue passport.
The Prime Minister told us that he had achieved an oven-ready deal. He crowed about it and fought an election on its basis. The electorate were, it seems, sold a gold brick because, as it turns out, much of the political declaration that accompanied the oven-ready agreement has been abandoned, if not rejected. There is no more talk of the
“ambitious, broad, deep and flexible partnership”
and more, or of the level playing field.
Now, the famous agreement—signed by the Prime Minister and approved by this Parliament—is considered defective, and this Bill seeks power to flout international law and amend the agreement to make it acceptable to the leader of the Brexit legion. The enormity of what the Government want to do has been more than adequately expressed by other noble Lords of both remainer and Brexit tendencies. To produce a measure considered constitutionally and legally appalling certainly unites both sides, but not in a way that one would have hoped.
It is convenient to blame the European Union for the current situation but whatever difficulties we face in the negotiations, we are the ones who decided to leave. We have a very integrated market with the European Union, we are 22 miles from mainland Europe and we have been part of the system for more than 40 years. It is unrealistic to expect that the European Union will treat us as just another third country. Now, we have the spectacle of the Government almost rejoicing at the prospect of no deal. We shall be like Australia, which has such good arrangements that it is seeking a free trade agreement with the European Union. We want a Canada free trade agreement, but not just the Canada deal—we want Canada-plus, because we believe that we are in some way entitled.
We refused an extension of the transition—pointless bravado. Now we do not want to continue talking, even when the EU negotiators are ready to come here—more bravado. Small wonder that the EU has reacted to the Bill with a determination to stand by what has been freely agreed and signed by this Prime Minister. We should drop the provisions in the Bill which seek to undermine and change the withdrawal agreement.
I will vote for the amendment of the noble and learned Lord, Lord Judge, and vote for any amendments presented during the passage of the Bill which seek to amend the offending provisions. In considering how far we should press our objections, we need to revisit the Prevention of Terrorism Act 2005, when Conservatives and others maintained our objections for five rounds of ping-pong. We must not acquiesce in recreating our reputation as perfidious Albion.
Baroness Clark of Kilwinning (Lab)
I am pleased to join others in welcoming the noble Baroness, Lady Hayman of Ullock, whom I have known for a number of years, and the noble Lord, Lord Sarfraz, whom I met this evening, on their maiden speeches. I hope they enjoy their time in this place.
We have had a number of powerful speeches focusing on various technical features of the devolution aspects of this legislation, but I am not going to focus on specific provisions on whether it will still be possible for the devolved institutions to regulate on issues such as single-use plastic, or indeed on the state aid provisions. I am going to focus on the politics of the situation, and I do that as a former Labour MP in Scotland and as someone who was heavily involved in the independence issue in the lead-up to the 2014 referendum. The constitutional debate in Scotland completely dominated Scottish politics, both during the lead-up to that two-and-a-half-year-long referendum and increasingly as the referendum went on. Indeed, the issue has not gone away, and it is still centre stage in Scottish politics.
As the House is aware, the Scottish Parliament voted 90 to 28 against giving legislative consent to this Bill, and it was suggested earlier on that that was the SNP. I want to make it absolutely clear to this House that the only Members of the Scottish Parliament who voted in favour of giving legislative consent were the Conservative Members. Every other political party and every other MSP voted against giving legislative consent.
The Government will no doubt say again when they sum up—as they did at the beginning of this debate—that further powers are being devolved as part of the changes taking place, and that some of the powers coming back from Europe will be devolved to the devolved institutions. I respectfully say that that is not really the point; the issue is that certain powers are being eroded without consent, and certain powers of the devolved institutions are being eroded when the direction of travel should be transferring powers to those institutions. I was really interested in listening to the speech of the noble and learned Lord, Lord Hope of Craighead, who considered whether it was a power grab or not.
It is absolutely clear that in Scotland in particular—and I will focus on Scotland, because that is my background—there is a genuine view that this legislation undermines the devolution settlement. The backdrop is that, since the 1950s, a significant divergence has taken place in the political views and voting of people in Scotland from those south of the border. To put it simply, Scotland has tended to vote for social democratic-type politics, while nationally we have had few Labour Governments elected in that period. Those political differences, and the differences in voting habits, have had a major impact in Scotland over many decades. It has thrust the constitutional debate into the centre stage of Scottish politics. Most people in Scotland simply believe that decisions affecting Scottish people should be made in Scotland, and they do not think it is fair if they get policies they feel they have not voted for.
It is often said that it was Margaret Thatcher’s Government who delivered devolution. The behaviour of this Government is again having a big impact on the constitutional debate, so I very much hope that they think again.
Baroness D'Souza (CB) [V]
My Lords, the Bill is littered with Henry VIII powers, the Government’s justification being that it allows for speed in decision-making and safeguards trade within the UK, notwithstanding that Parliament has already shown itself to be adept at speed in dealing with the current Covid crisis. The tendency on the part of a Government to extend their powers is a slippery slope; and power, once conceded, cannot easily be won back. It is therefore of great significance that relevant committees—the House of Lords European Union Committee, Delegated Powers and Regulatory Reform Committee and Constitution Committee—have questioned and even strongly advised the deletion of such clauses that empower the Government through secondary legislation.
The Bill goes beyond what is needed to ensure economic and regulatory coherence between the four UK nations, and undermines the purpose of the common frameworks programme, as well as the principles of mutual recognition. The Bill challenges the Sewel convention, as evidenced by the Motion agreed in the Northern Ireland Assembly on 22 September, and the Scottish and Welsh Governments’ stated intentions to withhold consent for the Bill.
The powers that the Government afford themselves are breath-takingly wide, including the non-recognition or enforcement of rights, powers, obligations, restrictions and remedies contained in the withdrawal Act. The Bill allows Ministers to interpret, modify or disapply any of the provisions set out in international and domestic law, defined as any provisions of the European Communities Act, any other EU or retained EU law and
“any other legislation, convention or rule of international or domestic law whatsoever, including any order, judgment or decision of the European Court or of any other court or tribunal”.
The concession to parliamentary approval for the implementation of derogation clauses allowed the Bill to pass in the other place, but the Government have shown their willingness to ride roughshod over an international treaty. Can they therefore not also do the same with this commitment citing, for example, bad faith on the part of the EU to gain parliamentary consent? Legislation, once on the statute book, has a habit of being resuscitated for a purpose other than that originally intended; as such, this so-called safeguard amendment could well become a hostage to fortune.
Meanwhile, statutory instruments are increasingly bolstering skeleton Bills, and both recourse to judicial review and mechanisms to counteract secondary legislation are severely limited. A precedent is being set that challenges the rule of law. Clauses 44, 45 and 47 of the Bill must not reach the statute book. I too will support the amendment in the name of the noble and learned Lord, Lord Judge.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady D’Souza, as I concur with a lot of her views expressed here. I also offer my congratulations and best wishes to the noble Baroness, Lady Hayman, and the noble Lord, Lord Sarfraz, on making their maiden speeches. I look forward to working with them. I will concentrate on Part 5 of the Bill, because I believe that it is totally unnecessary and very damaging. I refer to the bits that deal with trade between Britain and Northern Ireland and the Northern Ireland protocol.
When the Conservative Party jettisoned Theresa May’s proposals and decided that “getting Brexit done” meant leaving the EU customs union, a formal border between the EU and the UK became inevitable. As regards Ireland, this interface could be located only along the north-south border on the island of Ireland or at UK ports, effectively a border in the Irish Sea. In signing the withdrawal agreement and the Northern Ireland protocol, the Government chose the Irish Sea, despite much rhetoric to the contrary. The noble and learned Lord, Lord Clarke of Nottingham, made this point earlier in this debate. In the process, the Government managed to set the nationalist and unionist communities against each other and undermine relations with Dublin by leaving the possibility of a hard border on the island of Ireland on the table for so long—the very issue which the Northern Ireland protocol sought to provide for and ensure did not happen.
Let me be clear that while all Irish nationalists—I am one myself—as well as the EU and others, opposed customs infrastructure on the north-south border and were concerned about the damage it would do to our historic settlement, no nationalists want a hard border in the Irish Sea. I share many of the concerns of my unionist colleagues in Northern Ireland and want to see minimal friction on goods travelling from Britain to Northern Ireland. I also want to see unfettered access to the GB market for Northern Ireland businesses. This should not be a cause of division. No one on the island of Ireland, north or south, wants heavy bureaucracy around trade with Great Britain.
The way to maximise the possibility of this highly desirable outcome is to sign a zero-tariff, comprehensive trade agreement with the EU. This is achievable, and I would like the Minister to comment on it in his winding-up. Instead, we have the internal market Bill, which, under Clauses 44, 45 and 47, proposes to empower UK Ministers to breach their legal obligations under the protocol and which reopens, dangerously, the whole political argument. I am totally opposed to this and I will vote tomorrow for the amendment to the Motion in the name of the noble and learned Lord, Lord Judge.
Baroness Altmann (Con) [V]
I join other noble Lords in congratulating the noble Baroness, Lady Hayman of Ullock, and my noble friend Lord Sarfraz on their maiden speeches, and I warmly welcome them to this House.
On the Bill before the House, I wholeheartedly support the amendment to the Motion in the name of the noble and learned Lord, Lord Judge, for all the reasons that he so admirably and eloquently laid out, and that in the name of my noble friend Lord Cormack. I share the deep regrets expressed by my noble friend Lord Bridges and agree with all the remarks of my noble and learned friend Lord Clarke.
The damning reports of three House of Lords Select Committees, and the exceptionally clear explanation presented to the House by my noble friend Lord Barwell, are clear indications of why it is our duty to ensure that the Bill, particularly Part 5, does not pass through this House. I cannot, in all good conscience, support the measures in the Bill, particularly Part 5 but much else, too. I am afraid that I will have to vote, on every occasion, against the Government’s intention to break international law. I congratulate the most reverend Primate the Archbishop of Canterbury on his brave intervention, and I join other noble Lords in warning about the potential of the Bill, as presented to this House, to pave the way to authoritarian rule.
Principle must come before party, and this is the moment of truth when we must face up to the consequences of seeking to have the same rules within the four countries of the UK while pretending that these rules can somehow differ from those of the EU, particularly Ireland, without erecting borders either in the Irish Sea or on the island of Ireland. Should those mythical alternative arrangements to do away with the need for such borders materialise—arrangements that were promised to us a year or two ago—that would have been fine, but in their absence we must ensure that the Bill does not pass through this House as presented to us today.
Lord Shipley (LD) [V]
My Lords, the Bill will represent a further stage in the eventual break-up of the United Kingdom should it proceed unamended. It centralises power away from the devolved Administrations, gives excessive powers to Ministers, and undermines the rule of law.
In the Minister’s opening address, in which he justified the Bill, he said that the Government wanted a coherent internal market in the UK, with control of subsidies and fair competition. This approach sits oddly with this Government’s negotiating position with the EU, where we are leaving a coherent internal market seemingly to do the opposite with regard to subsidies and fair competition, and, in the process, to override the devolution settlement.
The Minister referred to a huge transfer of powers from the EU to the devolved nations following Brexit. He neglected to say that under this Bill the devolved nations would lose some crucial powers. It is little surprise that the devolved nations have reacted as they have.
In the face of the coronavirus pandemic it has been beneficial to have the devolved Administrations devising and piloting different approaches. We need to encourage new thinking that tests potential solutions, not stifle it on the basis that Whitehall knows best. As an example, the Welsh Government are proposing a ban on the sale of nine single-use plastic products, while the UK Government are proposing to ban only three. This Bill would mean that in Wales the six other products could still be sold, because they have been made in England, Scotland or Northern Ireland. We would therefore have lower environmental standards—levelling down, not up.
The Bill should include derogations that limit the primacy of mutual recognition for matters of environmental protection. In 2011, Wales led the way in introducing a charge on plastic carrier bags. It worked so well that the other parts of the UK followed, and the outcome today is a higher standard of environmental protection for us all. Public health is another area where devolved powers really matter, because they can help to effect positive changes more quickly than centralised structures. We have seen devolved Administrations give the rest of the UK a sense of direction with policies that improve public health. One example is Scotland’s minimum unit pricing for alcohol, as the noble Lord, Lord Faulkner of Worcester, has mentioned. There are other examples. As it stands, however, the Bill could lead to poorer public health outcomes in one country because of the right of market access from others.
There is a solution: the Government could set out a general public health exception to the mutual recognition principle, along with the necessary derogations on matters of environmental protection. However, as the noble Baroness, Lady Finlay of Llandaff, pointed out, these are matters, first, for common frameworks. Market access principles should be considered only when discussions on common frameworks have failed. Even then, the power to introduce derogations would remain essential.
Lord Vaux of Harrowden (CB) [V]
My Lords, I will leave detailed discussion of Part 5 to colleagues, but I will just say that I find the idea of a UK Government knowingly and deliberately breaking the law—to wriggle out of a deal signed less than a year ago—repugnant. It is not something that this House should accept. In the justifiable outrage over Part 5, however, there is a risk that the other flaws of the Bill get lost. As the Constitution Committee has explained so well, it has significant implications for the UK’s devolved structure.
There are three elements that are necessary for the efficient operation of an internal market: rules for market access, a framework for agreeing minimum standards, and a mechanism for resolving disputes. This Bill provides only the first element, the market access rules. If the EU’s single market had worked with only market access rules, it would have allowed, say, Romania to reduce its standards so that its businesses could produce, for export, substandard goods that could be sold freely here. We would not have accepted that as part of the EU, so why would we think it appropriate for our own internal market? I do not often say this, but the Scottish Government are right: this Bill undermines their devolved competencies. This works both ways, and the UK Government should be just as worried about, say, Scotland reducing its standards and selling substandard goods into the rest of the UK. As the Welsh Government pointed out, it incentivises a race to the bottom.
To avoid this, a system for agreeing minimum common standards is essential. We have heard that good progress has been made towards agreeing common frameworks, but the Bill completely ignores them. Indeed, it would undermine them. I would go as far as to say that, if the Bill is not amended to take account of the common frameworks, including the necessary flexibility described by my noble and learned friend Lord Hope of Craighead, it will be more damaging to the UK’s internal market than no Bill. Like the Constitution Committee, I question whether this Bill is really necessary. Perhaps the Minister could explain why the common frameworks have been ignored and how a race to the bottom will be avoided.
The third element required for an internal market to work is a mechanism for dispute resolution. To be acceptable to all parties, any mechanism needs a high degree of independence, all parties should be represented, and it must have the ability to resolve disputes. The Bill creates the Office for the Internal Market, but that is neither independent nor representative. And it cannot actually resolve a dispute: all it can do is issue advice and reports. Does the Minister not see a contradiction in being ready to die in a ditch to prevent the European Court being the arbiter of a trade deal, but not allowing an independent arbiter in our own internal market?
There is general agreement throughout the UK—and I agree with it—on the need for an efficient internal market, but this Bill does not achieve that. We must adopt a more consensual approach between the UK’s constituent parts. After all, there is one overriding requirement for an internal market: the parties must want to be part of it. This Government in particular must know that the heavy-handed imposition of rules from the centre can lead to countries wanting to “take back control”. If the Government want to keep this kingdom of ours united, they would do well to remember that.
Lord Bourne of Aberystwyth (Con) [V]
My Lords, it is an immense pleasure to follow the noble Lord, Lord Vaux, who made some very powerful points. I too pay tribute to the maiden speeches of both the noble Baroness, Lady Hayman, who made some very valuable points on the environment, and my noble friend Lord Sarfraz, who spoke powerfully about entrepreneurship. I also pay tribute to the report of the Constitution Committee, which I found very compelling.
This Bill presents two very real concerns for me. The first relates to the relationship with the devolved Administrations. Over the years, we have made progress in handling devolved relationships. Naturally, it was a little bit raw in the early years, but it has improved noticeably. There is a carefully constructed balancing of interests in the devolved world and we have seen that with the common framework: it exemplified that. I had the opportunity—indeed, the privilege—to see that at first hand: discussion, consultation, and often agreement. This Bill throws all that over, and that is regrettable. It is heavy-handed and pulls rank, and that is unwise. Acting like Goliath with the flexing of muscles is not an approach with much to commend it, particularly given the outcome of that particular engagement. We need consultation and real engagement if we are going to keep our union united.
My second real concern relates, of course, to Part 5. I very much regret the resignation of my noble and learned friend Lord Keen of Elie. I understand the reasons for it, but he is a lawyer of considerable ability and integrity, and of course he went on a point of principle. We should not lose sight of that.
The breaking of international law quite openly and, even when challenged, confirming the breach, is not a pretty sight. It represents a move against a treaty and a protocol that were only recently concluded and, indeed, hailed as a triumph. This Bill goes against a fundamental principle of our law, national character, constitution, history and deeply held principles as a country, taken on with mother’s milk: the upholding of the law. There can be no excuse for it. It is no excuse that we may not use it, that it needs a vote in Parliament or that other countries may breach international law. It is, quite frankly, inexcusable, and our Ministers must in their hearts know that.
Openly breaking international law is not the British way. From Magna Carta onwards, this country has stood for the rule of law, and this Bill should alarm us all greatly. It is not in our national interest for it to pass, as we see the tearing up of this deeply held principle sending a shudder through the reeds at Runnymede. I will certainly be supporting the noble and learned Lord, Lord Judge, and seeking to improve this legislation, which is deeply flawed.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
The noble Lord, Lord Berkeley, and the noble Baroness, Lady Bennett of Manor Castle, have both withdrawn, so I now call the noble Lord, Lord Arbuthnot of Edrom.
Lord Arbuthnot of Edrom (Con)
My Lords, it is a pleasure to follow my noble friend Lord Bourne, with whose words I agree entirely. We have four minutes; I shall try to take no more than one.
In this Bill, the Government invite us to pass a law to break a law. That is not only wrong but patently absurd. If we believe in law, we should not break it. If we do not believe in law, then we should not be passing it. If the Government can break the law, why should the people obey it? If the UK can break the law, why should other countries obey it? So the damage of this Bill will last for the long term. In signing the protocol, we gave our word. Nothing has changed since then and we should keep our word. I shall support the amendment of the noble and learned Lord, Lord Judge, because this Bill brings shame on this country.
Lord Brooke of Alverthorpe (Lab) [V]
My Lords, I congratulate my noble friend Lady Hayman of Ullock and the noble Lord, Lord Sarfraz, on their great maiden speeches and look forward to hearing them in the future. This has been an extraordinarily long Second Reading and an exceptional one in many respects. However, I think it is worth reflecting on the fact that some of the topics on which there have been the strongest feelings and arguments—for example, Part 5 of the Bill, the opposition to which I fully support—are not actually the topic that is foremost in the minds of the public at the moment. That, of course, is Covid-19 and their health and well-being.
So, like the noble Baroness, Lady Finlay of Llandaff, my noble friend Lord Faulkner of Worcester, and the noble Lord, Lord Shipley—who spoke just a few moments ago—I will focus on what might seem to be a fairly narrow area: protecting the UK’s public health, in so far as this Bill will do so. Will the Bill improve it or not after we leave the EU internal market? Does it provide the framework, to which the noble Lord, Lord Shipley, referred, that will raise standards, or might the existing ones possibly be at risk?
The devolved Administrations’ views are very clear indeed: they fear the balance between market interests and the public health policies they have been pursuing will be at risk and that the Bill could undermine and diminish their ability to enact essential public health legislation for their countries. For example, on alcohol labelling, they pointed out to me that, currently, alcohol labels lack basic information, such as how many calories are in the product or the Chief Medical Officer’s low-risk drinking guidelines—they are not there. In recent years, both the Scottish and Welsh Governments have worked hard at moving forward with significant changes there. The English lead is well behind; we are looking to consult, but we are well behind on most of these issues.
The devolved Administrations say that the drafting of the mutual recognition principle in the Bill, which unlike the current rules allows no general exemption for protecting health, means that Governments within the UK may set higher labelling standards for products originating in their own nations but these standards will not apply to products sold within their borders that come from other parts of the UK or from overseas via another UK nation. Instead, those products must only meet the standard required in the part of the UK in which they originated.
This is just one of the many key public health policies that will be hampered by the Bill. Although the Government have included a public health exemption from non-discrimination, there is no corresponding exemption for the mutual recognition principle. Others have raised this point and I again ask the Minister to explain why it is necessary to water down the public health protections that have existed in our markets up to this point.
Lord Kerr of Kinlochard (CB) [V]
I should say that it is a pleasure to take part in a debate with so many distinguished speakers, such excellent maiden speeches and one informed by three such good reports, but it is not a pleasure because, like the noble Lord, Lord Arbuthnot, I feel that we should not be here debating this Bill; it is a bad Bill. Like the Constitution Committee, I cannot see the need for it, and I cannot support the reopening of the devolution settlement, putting new limits on devolved competence or binning the common frameworks. However, for me, the central issue is stark and shockingly simple: a treaty is a contract binding on the states party to it.
Exactly 12 months ago today, Mr Johnson concluded a treaty. Some of us here said that we found its Irish protocol offensive in principle and likely to prove problematic in practice, but Mr Johnson said that we were wrong; it was fine; indeed, it was fantastic—his triumph. He won his majority and he used it to ensure that this Parliament ratified his treaty. It thus became binding on the country and on all of us, whatever reservations we may have had about it: binding in law and binding in honour—I repeat, honour. That is what this is all about; that is what makes it so shocking that Mr Johnson now asks us to empower him to override his treaty—not to seek to change it, just to choose to break it—and require the courts to ignore it whenever he decides they should.
It is no wonder the head of the Government Legal Service, Sir Jonathan Jones, resigned—I pay tribute to him for doing so. I cannot see how this House could in honour collude in legislating to break a treaty. This is not about frontier checks; it is not about Brexit; it is about honour and reputation. For what purpose are we going to throw all that away? The noble and learned Lord, Lord Clarke of Nottingham, pointed out that Mr Johnson has not told us what arrangements he envisages for the border between the EU single market and our single market. If he overrides the protocol, what will replace it? What will sustain the Good Friday agreement? Why, if Mr Johnson believes that he has grounds for complaint against the EU, does he not use the dispute resolution procedures in the treaty he signed? I refer the House to the nine questions in the letter that the noble Earl, Lord Kinnoull, as chairman of the EU Committee, sent to Mr Gove a month ago—they are at the back of the committee’s report. They remain unanswered; I think that they are unanswerable.
It is hard to avoid the conclusion that what we have here is a simple case of buyer’s remorse. Mr Johnson now dislikes what his treaty said. Just as he chose in the current negotiation to tear up the political declaration that he agreed on this day last year, so he proposes to tear out bits of the treaty. What price honour? He gave his word. Moreover, worse, he gave our word when, at his urging, we ratified his treaty. Ours is the responsibility for saving the national reputation, and in honour we must.
I will vote for the amendment in the name of the noble and learned Lord, Lord Judge, and I trust that we will then move on to remove Part 5 and, if necessary, insist with the noble Lord, Lord Butler, and persevere.
“Perseverance, dear my lord, Keeps honour bright.”
Lord Wallace of Saltaire (LD) [V]
My Lords, some of the language of the Bill brings back distant memories from over 35 years ago. Proponents of free trade and open markets, including Margaret Thatcher as Prime Minister, argued then that the absence of a common framework for regulation across the European Community disadvantaged UK exports to our neighbours. It also meant that British standards usually copied US standards; American regulators exercised what lawyers termed “extraterritorial jurisdiction” over foreign markets such as the UK. For Mrs Thatcher, a European single market would mean that British Ministers could take an active part in negotiating international standards rather than swallowing American ones.
A generation later, in a far more integrated global economy, it has become clear that standards and regulations will emerge from one of three major global players: the United States, China or the European Union. However, our Government are pursuing an antique and absolutist version of Westminster sovereignty, breaking free of the EU. In practice, that means we will end up following either American or European standards on food safety, financial regulation and the internet without much influence on either—losing control, not taking back control.
The doctrine of sovereignty that underlies the Bill was set out by Albert Venn Dicey in his 1885 Introduction to the Study of the Law of the Constitution. Dicey insisted that Westminster sovereignty was supreme and indivisible, internally and externally. Sir William Cash frequently quotes him and the noble and learned Lord, Lord Keen, cited Dicey in this House when challenged about the subject. However, Dicey was writing at the high point of British imperialism when English politicians could assume that Britain shaped international law and other countries had to follow. The Empire has gone, but the mixture of imperial nostalgia and English nationalism that motivates hard-right Conservatives resists negotiating international law with other states. That is disastrous for Britain’s reputation, for London as a global centre for litigation and legal expertise and for our ability to negotiate future trade deals with others, as the noble Lord, Lord Carlile, and others have noted.
Dicey’s approach to domestic sovereignty was shaped by his bitter opposition to Irish home rule. He refused to accept that powers could be shared with a parliament in Dublin. Conservative unionists follow Dicey, insisting that all authority in the UK rests in Westminster. That absolutist view, through opposition to successive proposals for home rule, led to Ireland breaking away from the United Kingdom.
This is a constitutional Bill. It goes to the heart of the rule of law within the UK as well as in relation to other states, and it threatens the further disintegration of our state, with Scotland leaving and Ulster moving towards reunification to leave England diminished and internally divided.
We are now watching right-wing Republicans bend America’s written constitution until it is close to breaking. We have even seen the embittered partisanship of American politics spilling over into this debate in the attack by the noble Baroness, Lady Noakes, on the Bishops who are addressing the moral dimensions of the Bill. We should not allow our increasingly authoritarian Government to bend the conventions of our own unwritten constitution any further.
Baroness Meyer (Con)
My Lords, of course the Government’s Bill has my support. It is sheer common sense. If the EU continues its obstinacy over fisheries and the level playing field, we are unlikely to have in place by the end of the year an agreement on the future relationship. It would be the height of folly not to have an insurance policy against that possibility. That is what the Bill provides—no more, no less. Without such insurance, we could find ourselves in a situation where the EU is able to tell us what we can and cannot do throughout the United Kingdom by way of state aid. That would be to continue to submit to the authority of the European Union and the European Court of Justice. How on earth is that compatible with the decision taken by the British people in 2016, which politicians across the spectrum committed to honour? It would also be in breach of the Act of Union 1800 and the Good Friday agreement.
Our American friends must understand that any threat to the agreement comes not from London but from Brussels. The EU has for four years sought to exploit the Good Friday agreement to its negotiating advantage. To change the terms of trade between Great Britain and Northern Ireland without the explicit consent of the people of Northern Ireland is to violate the Good Friday agreement. Those in Washington and Brussels who profess concern for peace in Northern Ireland would do well to also consider that, without a UK-EU agreement, the only authority that could conceivably want a hard border between the north and the south is the European Commission—to protect what Brussels calls the integrity of the single market. The UK has no intention of erecting a hard border.
The withdrawal agreement and its Northern Ireland protocol do not stand in isolation. They are organically linked to the intended agreement on the future relationship through Article 184 of the withdrawal agreement and the political declaration. As was confirmed by the noble Lord, Lord Pannick, in his letter to the Times of 15 March last year, without such an agreement we would be entitled, under Article 62 of the Vienna convention, to terminate the withdrawal agreement. Article 184 obliges the signatories to negotiate the future relationship in good faith. The EU has failed to show good faith and thus is itself in breach of the withdrawal agreement. There is no other way to describe a negotiating position which, to take one example, insists on the historic pattern of fishing quotas—the common fisheries policy by any other name.
There are two falsehoods here: that the UK is in breach of international law and that the British Government would violate the Good Friday agreement. The reality is precisely the opposite. The internal market Bill seeks to remedy a situation where, thanks to the EU’s bad faith and intransigence, the Good Friday agreement and the British constitution are imperilled. Can the Minister reassure the House that the Government are making an intensive effort to explain to our friends and allies around the world, including and especially the United States, the true state of affairs?
Baroness Greengross (CB) [V]
My Lords, like many of the previous speakers I am genuinely concerned about what is being proposed in this Bill. My main concern—the one I will address—is that the Bill could well undermine areas of medical research and access to new medicines. The Bill might also do considerable harm to the economic prosperity of the country, and it would breach international law—something I never expected to see a UK Government try to do, particularly through legislation.
I am the co-chair of the All-Party Parliamentary Group on Dementia. According to NHS figures, there are 850,000 people living with dementia in the UK, and this figure is set to rise to 1.6 million people by 2040. The Bill increases the likelihood of a no-deal Brexit. In that scenario, access to new drugs and medicines could be delayed by 12 to 24 months, as the UK would no longer be covered by the European Medicines Agency regulations, and instead by a separate UK regulatory system. Also, dementia research that up until now has been carried out collaboratively with researchers and academics in the UK and across Europe could be delayed or undermined if we fail to negotiate a deal with the EU.
I did not support Brexit, but I accept the referendum result. What I cannot accept, however, is that the Government now seek to breach the terms of the withdrawal agreement with the EU only months after they voluntarily agreed to its terms. Britain is a trading nation. One of the things that makes us so successful at this is that we are a nation with a long-standing reputation for respecting the rule of law, including international law. The reputational damage to the UK that Part 5 of the Bill will cause cannot be overstated. A no-deal Brexit, and Britain gaining a global reputation as a nation that does not stick to international agreements, will harm us for many years to come. From an intergenerational fairness perspective, we lawmakers have a duty to do all we can to stop such an outcome, otherwise, we risk reducing the prosperity and well-being of those who will live in this country when we are gone.
There are many who are critical of the House of Lords and do not believe it makes a useful or important contribution to our democracy. With this legislation, we have an opportunity to show the nation the value of the second Chamber. Further, by opposing Part 5 of the Bill, the House of Lords has the opportunity to show the world that the UK is a country that does indeed respect the rule of law.
Lord Shinkwin (Con)
My Lords, imagine this: a foreign power—a trading bloc—is desperate to make an example of a former member state to discourage any others tempted to follow them to freedom. So desperate is this foreign power to protect its empire that since a withdrawal agreement was signed with the former member state, it has issued new threats to the very viability of the former member state’s internal market, and therefore to its future prosperity and security. In short, the empire cannot afford for the break-away member state to succeed. It must be seen to fail. That is the reality this country faces; a reality that I am amazed so many still choose to ignore. Surely when any UK Government realise that the UK is in great danger of being put in a headlock by new threats made since the withdrawal agreement was signed, it is that Government’s duty to counter the new threats through legislation empowering them to act if necessary.
I hear what some of my noble friends have said about Part 5 of the Bill, and I hope they know that, while I may beg to differ, I have the utmost respect for them. However, I fear that other noble Lords’ views remain rooted in a refusal to reconcile themselves with the reality of the referendum result to leave the EU. Nothing, it seems, will extinguish the Euro-federalist dream. But at a time when coronavirus casts such a dark shadow over so much of our lives, neither should we extinguish hope for a better future beyond coronavirus: hope for a return to the growth that will underpin our economic recovery and, with it, the security of the NHS and all that we hold dear.
We should not underestimate how much the Eurocrats stand to lose if the British people are allowed to make a success of their lives after Brexit. Their empire will implode. Brussels can go for broke if it wants to; the United Kingdom must go for growth. Pre-empting a foreign power’s threat to the integrity and viability of our internal market is essential if we want all parts of the UK to benefit from that growth. People will not understand if we fail now to protect them from the very real threat posed to their future well-being and prosperity from a foreign power, the EU, which above all else needs Brexit to be seen to fail. That means poverty, not prosperity. No Government could wish that on their own people. That is why, for the people’s sake, this Bill deserves our support.
Lord Desai (Lab) [V]
My Lords, I will not speak to the legal aspects of the Bill, as I am not a lawyer, and that topic has been well covered. I will simply share with your Lordships my curiosity as to what made the Government try to enact this piece of legislation, which, as many have said, is totally outside the normal character of the constitutional behaviour of the United Kingdom. Some noble Lords have referred to this, but this arises out of historical and contemporary amnesia, which have struck the party in power.
First, let me say that I was a remainer, but I have always respected the decision of the people. However, we should notice one thing, which not many people have realised: that the decision in the referendum was more or less a decision by England, not by the United Kingdom. Of the 34 million votes cast, 18 million were for exit, and 16 million against, and 32 million were cast were cast by the English electorate. The difference in the English electorate, 17 million to 15 million, was exactly the final result margin of 2 million. So Brexit has always been an English decision, not that of the UK. Because the party in power has always been predominately an English party, it has begun to renege on devolution, in which it had no part. It was my party which initiated devolution, during the great Blair Government, and that is now being undermined.
The present party in power, 100 years ago, partitioned Ireland, creating Northern Ireland. At that time, as people may remember, the behaviour of the Conservatives when in opposition against the Liberals, and later when in coalition, almost amounted to subversion of the law, encouraging people in Northern Ireland to defy all manner of laws. Now we have come to a stage when the party in power has almost forgotten Northern Ireland. Boris Johnson inherited this proposition of Brexit, although of course he supported it. But I do not remember anybody at the time of the referendum discussion realising that the geography of the United Kingdom is not just England, Scotland and Wales. There is a region out there, Northern Ireland, which everybody forgot—that because Northern Ireland shares a border with the Republic and because we have signed an international treaty to keep that border open all the time, it was logically and legislatively impossible for Northern Ireland to leave the European Union and also have a free border. The logical and legal impossibility of the separation of Northern Ireland from the Republic of Ireland, while the Republic stayed within the European Union, was not, to my memory, ever discussed.
Lord German (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord Desai, because I want to talk about the union—the union of which we are all members. I remind the Government that the union that we now call our United Kingdom is very different from the union that existed prior to our membership of the European Economic Community. We have now had more than 20 years of devolution, and the Bill threatens the union as we know it. Many noble Lords have given examples of how it threatens devolution, and I pay tribute to my noble friend Lord Shipley, who talked about the health implications, and to the noble Baroness, Lady Finlay, who also spoke on this matter. So there are big questions about the union, and they are what I want to address.
First, do we need the Bill now? I do not think we do, because there is no threat to the internal market at the moment. The common frameworks, which are close to agreement, could be used in their draft form, if they are not finally detailed and ready. Common frameworks do not even get a mention in the Bill, yet that work has been going on for two years.
Have the Government put in place appropriate dispute procedures? No, they have not. The Government’s engagement with the devolved Governments has not given an inch on their involvement. Will the Bill weaken devolution in our country? Yes, it will, because it produces override and bypass mechanisms that have the effect of reducing devolved powers. Will the Bill guarantee high regulatory standards? No, it will not, by creating a system that places you at a competitive disadvantage if you follow high standards. Will the Bill promote co-operation and trust between the Governments of the UK? That is an easy one: no, it will not. It will self-evidently not, because of the approach to devolution that the Government have shown. The evidence is that it has managed to bring together three very different democratically elected Governments in their view that it is not the right thing to do.
I will mention a few words on Part 6 of the Bill. That is the add-on part, related to spending. It is not clear how that links to the proposed regulatory structure for the UK internal market, which is the intention of the Bill. Perhaps, in reply, the Minister can say why this section is there at all.
In answer to an Oral Question of mine in your Lordships’ House earlier this year, the Government stated that Wales would receive, pound for pound, what it had previously received from the EU, and that that money would be controlled by the Welsh Government. The question that the Bill documentation does not address is whether the Government still intend to follow the pound-for-pound statement they previously made, and that any money proposed to be spent in devolved areas by this UK Government is in addition to the former EU funds replacement. I must say that the reference to “EU programmes” in the impact assessment says to me that the Welsh Government are set to lose control over these funds.
As it stands, it is very unlikely, almost impossible, to see this Bill having the support of all three devolved Administrations. However, with amendment, there is a very slim chance that it could meet with the agreement of the Welsh Government. I ask the Government to live up to the agreement they made in July 2017 that a UK internal state aid framework needs to be drawn up co-operatively and consensually between the UK Government and the devolved Administrations as equal partners. The Government must avoid actions that could lead to the breakup of this union, but to defend the union, you have to have respect for it, you have to have regard for it, and that is simply not apparent from the way this Government are proceeding at this time.
Baroness Meacher (CB) [V]
My Lords, I will keep my remarks brief and try to avoid duplication—difficult at this time of night. As a member of the Delegated Powers and Regulatory Reform Committee, I must put on record, along with the great majority of the 100 or so speakers today, my deep disquiet that, in proposing the Bill, our Government have shown such disregard both for the international reputation of this country and for one of the most fundamental principles of our democracy: the supremacy of Parliament.
I applaud my noble and learned friend Lord Judge on his very powerful speech. I agree with every word of it and will certainly be supporting his Motion. For the sake of Britain’s standing in the world, I implore the Government to ensure that the Bill never reaches the statute book unless Clauses 44, 45 and 47 are removed, along with most, I would say, of the Henry VIII clauses, which have absolutely not been adequately justified by the Government's memorandum to Parliament on the Bill.
For the sake of the health of our democracy, I trust that the Government will respond positively to the appeal, in a letter to Michael Gove and Jacob Rees-Mogg, from the chairs of the Constitution Committee, the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Committee. The letter sets out the considerable concerns of the members of all three committees about the truly extraordinary delegation of powers to Ministers in recent Bills, not just this one—although this one, the internal market Bill, is undoubtedly the most extreme and troubling example of this trend.
Finally, I call on the Government to respect the conclusion of the Strathclyde review of the role of the House of Lords in relation to statutory instruments. The review made clear that,
“it would be appropriate for the Government to take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument.”
Do the Government really want to completely disregard a report commissioned by a recent Conservative Government? I believe that the noble Lord, Lord Strathclyde, would want your Lordships’ House to challenge the exceptionally pervasive use of Henry VIII clauses in the Bill and, indeed, the terrible Clauses 44, 45 and 47, and I very much hope that we can do this on a cross-party basis.
Lord Lea of Crondall (Non-Afl) [V]
My Lords, like many Members I was horrified when I saw this Bill. I was, for many years, on an EU committee on benchmarking, and in those days people had to get used to the idea that if we get best practice in Europe, it is for the good of us all. The slogan we in the trade unions worked out in those days—Jacques Delors and all that—was something like “Europe is the league we are in”. Britain will go nowhere but backwards if we get out, and although we have accepted that there has been a referendum result, we are now going to make the situation far more adverse for our employment and investment prospects. Multinationals said, in a meeting I went to a couple of years ago, that their investment forecasts for Britain were going down even then, and now it is going down very much more than 50% for many industries.
It is so unrealistic to have the idea that we can complain about the 26 countries together wanting to stick with their standards, rather than them saying “Britain wants to change, in a negotiation between equals, so we will change all our standards”. I hear colleagues in this House suggest there is some rational motivation for this Bill, when I can only imagine it was from some late-night conversation in No. 10 Downing Street. That Conservative Party element wants to return to the heyday of Boris Johnson by doing something a bit more dashing, such as tearing up this aspect of the Good Friday agreement because some people have never liked it. Where the Irish question is concerned, the Good Friday agreement has of course been a great contributor to peace. It implies a certain degree of condominium between aspects of life in Northern Ireland and—with dotted lines to them—London and Dublin. If that is the issue lurking behind this it is, historically, such a ludicrous way for the tail to wag the dog.
If we go down this track now, there is a big question about whether we could have third-nation status within the WTO because part of the United Kingdom—Northern Ireland—would need to have one foot in the joint arrangements with Dublin, under the Good Friday agreement, and another foot in the United Kingdom. Therefore, it is hard to think that we would be a normal third nation. Before the lorries queue up at Dover on 31 December, we should start to think how we are going to get away from this ridiculous apotheosis of Boris Johnson’s idea of the world and see what we can do. We need a framework agreement not just for the British Isles but one such as Switzerland has with the European Union, at the least. That is not my ideal, but we cannot simply commit hari-kari in the way we are going.
Lord Flight (Con)
My Lords, the justification for this Bill is to support and advance trade, and, as pointed out, to provide insurance against present negotiations breaking down. The existing internal market is supported by EU law until the end of the year, where this Bill provides for UK law to take over. This is a detailed Bill, which provides for what I call single market membership in respect of our trade with the rest of the EU, if we reach agreement with the EU to this end.
The question is raised; what happens if trade negotiations break down and the UK opts for the WTO? This looks unfortunately likely, from the Prime Minister’s comments yesterday, to be the case. It is clear, I am afraid, that the EU has been acting in bad faith in the trade negotiations, which the PM has pointed out involved a requirement to lead, and not a requirement to lead to a breakdown.
Presumably we could amend and use the Bill as we saw fit. We would, however, have a self-interest to make the Bill as helpful as possible to European importers and exporters to help optimise our trade. As we are leading historic free trade supporters, I am sure we will be happy to be driven by the free trade principles of mutual recognition and non-discrimination. The Bill will become an Act as of 31 December, assuming it passes both Chambers. Whether or not we do a trade formula deal with the EU, this trade legislation will be on the statute book and operative to ensure the smooth functioning of trade.
I turn now to the controversy. It was the UK Government who found out that the EU was seeking to misuse aspects of the Northern Ireland protocol in a way that was not intended and in order to gain advantage in future relationship negotiations. I am somewhat disappointed that no one seems to have made this point, and the whole problem with Clause 5 arises from that. It was for this reason that the UK Government created the safety net of Clauses 44 and 45, to give British Ministers the power to unilaterally interpret, modify or disapply parts of the Northern Ireland protocol.
The UK has agreed to require parliamentary approval of any government initiatives involved here—I think that this is Clause 56. I was always told as a student that there was really no such thing as international law, as there was no agreed single court of law to monitor it. But, in this situation, I am inclined to the view that it may be better to get rid of Clauses 5 and 6 and to address the issues raised in another way.
I remain a staunch supporter of free trade and appreciate the major contribution to upholding free trade afforded by the Internal Market Bill, but it has the weakness of underpinning oligopoly. Most of the trading requirements as witnessed by this legislation are too detailed, too difficult, too expensive and too demanding of businesses—
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, the noble Baroness, Lady Goudie, has withdrawn from the debate, so I now call the noble Lord, Lord Palmer of Childs Hill.
Lord Palmer of Childs Hill (LD) [V]
My Lords, it appears that Brexit will not only have queues of trucks on roads leading to the Channel ports but will lead to an expected plethora of disputes in the internal market between parts of the UK. The Bill, by its very existence, acknowledges the divisive self-harm being inflicted on our nations by this clueless Government. We already have a common frameworks programme, so well detailed by my noble friend Lord German, and a commitment to collaboration in a regulatory manner. So I do not see how this Bill in any way helps or adds to the resolution of disputes in the functioning of the single market.
The latest proposed quango is the Office for the Internal Market. Its role will be purely to provide independent advice on dispute resolution. Well, we already have the Competition and Markets Authority, which has become a very large body in its own right. It will now also include the Office for the Internal Market—an added and expensive creation. It appears that in the current crisis in health, business and employment, the only growth industry is an expanding Civil Service. Sir Humphrey Appleby of “Yes Minister” would have been proud of it. An article in The Times today suggests that there is one civil servant for every 152 citizens, not counting employees of arm’s-length bodies. This Bill moves us nearer to the doubtful utopia of a civil servant for each and every citizen.
We can see at this very moment in the Covid pandemic how there are divergent policies between Scotland, Wales, Northern Ireland and England. Can the Minister state clearly whether, in the case of a dispute not being solved after the valued advice of the latest quango, the UK Minister will make the decision? If so, that is a sure way to build up resentment in the devolved Administrations. Surely a more collaborative arrangement is required between the devolved parts of the United Kingdom.
This brings us back to the common frameworks programme, detailed, as I said, by my noble friend Lord German. There is no doubt that the advanced development of common frameworks has been complicated by the Bill before us today. The Bill aims for a draconian, even dictatorial, power to ensure that sales in one part of the UK will be acceptable in all other parts. This may be the desired result for some people under any arrangement, but it may not be the desired result in one of the devolved nations.
I require the Minister to explain how the Bill and the common frameworks are to function at the same time. The Bill is unnecessary and could well be very harmful. We should do all in our power to defeat the Bill in its current form.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
The noble Lord, Lord Woolley of Woodford, has withdrawn from the debate, so I now call the noble Lord, Lord Naseby.
Lord Naseby (Con)
My Lords, I am no lawyer, but after 46 years in Parliament, and five as Deputy Speaker, frankly my faith was somewhat shattered in the law when a decision went against the Government on the autumn adjournment, which seemed to me to be perfectly in order in parliamentary terms, and when we normally adjourn for party conferences.
Having said that, three aspects do concern me. First, obviously I am concerned about the amendment to the Motion, and I recognise that the noble and learned Lord, Lord Judge, is sitting here in the Chamber. I am concerned if, as he says, we are undermining an international agreement, particularly by Part 5, and it appears that we are repudiating part of an international treaty which we have negotiated and which we in this House have signed up to.
However, I then listened to my noble friend Lord Howard of Rising. I had a copy of the statement of the noble Lord, Lord Pannick, and as I understand it:
“If, therefore, the UK and the EU were unable to reach an agreement on Northern Ireland/Ireland, despite good faith negotiations and despite the arbitration procedures, and if the UK were therefore to be faced (against its will) with a permanent backstop arrangement, the UK would be entitled to terminate the withdrawal agreement under Article 62 of the Vienna convention on the Law of Treaties.”
Therein may be where the answer lies.
Secondly, I am concerned about the union with the devolved Assemblies of Wales, Scotland and Northern Ireland, and I have a particular concern about Scotland. There must be nothing in the Bill that makes it easier for Scotland to be difficult. Sadly, there is, and I am indebted to the Delegated Powers and Regulatory Reform Committee, which highlights the problems of how the consultation and the dispute processes would actually work.
Thirdly—I am not sure that anybody has actually mentioned this—there is the Office for the Internal Market, which will be part of the Competition and Markets Authority. Even here the portents are not good, because the CMA is regularly criticised for its poor performance, recently over bank reforms and sport monopolies.
This is a Bill fraught with difficulty, not least the reputation of the UK internationally, which is so vital for our future international trade. I shall listen with particular care to my noble friend on the Front Bench, in whom I have great faith, and I hope that he will be able to address the legal point. I hope that the noble Lord, Lord Pannick, is correct, and, if he is, it will be with my support for the Government that I will be voting in the Lobby.
Lord Judd (Lab) [V]
My Lords, we have heard two interesting maiden speeches today. I warmly welcome my Cumbrian neighbour, my noble friend Lady Hayman of Ullock. What she said about the environment was not only right but very important. We look forward to hearing much more from her in the years ahead.
I put on record my appreciation for the forthright clarity of the reports of the Delegated Powers and Regulatory Reform Committee, the Constitution Committee, jointly the chairs of the Constitution Committee and the European Union Committee, and of the brief from the greatly respected Bingham Centre.
Just what are the principal, inescapable mega-issues confronting us all in the UK? Climate change, migration, pandemics, conflict, limited natural resources, the biodiversity crisis, pollution, destruction of the natural environment, terrorism and international crime—they all require multinational co-operation. Not one of them can be dealt with effectively by the UK on its own. They require trust and discipline, hence the indispensability of the rule of law to underpin that essential co-operation. The UK has in the past been respected as a pioneer in the rule of law. What will the ideological, blinkered and visionless proposals in this Bill do to the respect and esteem which has been won for the UK by its principled leadership? What signals will they send to Russia, China, Belarus, Burma and Latin America?
This Bill is indeed a disaster. More immediately in the UK, the stability and trust that has been central to the cause of peacebuilding in Ireland is potentially jeopardised. The Good Friday agreement and the protocol are not just words to be cynically played with. They are crucial. What is proposed in this Bill could threaten that peace and stability which has been so painstakingly and imaginatively built. It is time to say enough. Security demands a more principled and enlightened commitment. How I welcome the reasoned amendment by the noble and learned Lord, Lord Judge. I also totally endorse the arguments of the noble Lord, Lord Butler, on any forthcoming ping-pong experience.
Regarding devolution, the same ideological zeal to recentre control in No. 10 crudely challenges all the progress and success so far in constructively building towards the new constitutional settlement achievements for Scotland, Wales and Northern Ireland. We must beware, for the future peaceful stability of the UK itself. The lowest common denominator becomes the reality. On a practical level, what of the lead given by England in the provision to help curb deaths from cigarettes and other tobacco? What of the legislation in Scotland on alcohol pricing? What of the spring water and bottled water standards established in Wales? What prospects now of their being part of a firm base from which to develop civilised policy for the future? We can now see starkly what “take back control” really meant: control for an ideologically ruthless No. 10. It is high time for us to make a firm stand.
Lord Bhatia (Non-Afl) [V]
My Lords, there is a definite need to give Northern Ireland goods unfettered access to the UK internal market. The Northern Ireland protocol, as part of the withdrawal agreement, creates a unique status for Northern Ireland to remain part of the UK’s customs territory. The EU’s customs code, Community rules and single market rules will continue to apply to goods after the transition period ends on 31 December 2020.
After the transition period, these provisions can rightly continue to apply, with the consent of the Northern Ireland Assembly. Nothing in this protocol should prevent the UK ensuring unfettered market access for goods moving from Northern Ireland to other parts of the UK’s internal market.
The UK Government are committed to having legislation to guarantee unfettered access for Northern Ireland businesses to all of the UK market in place by 1 January 2021. This commitment was made in January 2020 to restore devolved government in Northern Ireland in 2020. We cannot break this commitment. If we do, the UK’s reputation will be severely damaged. We are respected internationally for not breaking commitments that we have made in law.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
The noble Lord, Lord James of Blackheath, has withdrawn, so I now call the noble Lord, Lord Bilimoria.
Lord Bilimoria (CB) [V]
My Lords, the UK internal market operates across England, Scotland, Wales and Northern Ireland, and it is the economic glue that binds our four nations. It is key to helping increase prosperity and raise living standards and opportunities for people and businesses across all parts of the UK. The internal market is critical for the UK to remain attractive to foreign investors and to maximise opportunities from new trade deals.
Firms across the UK have operated with the devolution settlement for more than 20 years. The United Kingdom Internal Market Bill must provide certainty that products made in one part of the UK will not face additional barriers to the market in another part of the UK and, with this, ensure that consumers in one part of the UK are not disadvantaged by having access to goods and services limited.
The UK is a highly integrated market. For the internal market to continue to operate effectively, firms across the UK have been clear that three principles must guide its implementation: first, that there should be no new barriers to trade; secondly, that there should be collaboration across the UK; and, thirdly, that there should be fair, independent and trusted adjudication.
The CBI, of which I am president, welcomes the Government’s plans to give powers to the Competition and Markets Authority to establish the Office for the Internal Market, which will also have the responsibility to report to the devolved Parliaments and Administrations. Where Northern Ireland is concerned, a free trade deal with the EU would minimise the need for strict controls on a range of goods entering Northern Ireland from the rest of the UK, bolstering the Northern Ireland protocol, maintaining the integrity of the UK internal market and respecting the all-island Irish economy.
The United Kingdom Internal Market Bill must work in lock-step with the implementation and operation of the Northern Ireland protocol. England, Scotland and Wales—that is, Great Britain—are Northern Ireland’s biggest market for external sales, being larger than all export sales combined. Over 7,000 businesses in Northern Ireland rely on the GB market, which is worth over £11 billion annually. For this to work effectively, the Bill must work in lock-step with the Northern Ireland protocol and respect the all-island economy between Northern Ireland and the Republic of Ireland. Firms in Northern Ireland have always been clear that they want to see the protocol work. In respect of trade flows from Northern Ireland to Great Britain, the protocol provides that nothing in it shall prevent unfettered access to the GB market for trade in goods.
On 16 October, the noble Earl, Lord Kinnoull, the chair of the EU Select Committee, and the noble Baroness, Lady Taylor of Bolton, the chair of the Constitution Committee, wrote in the Times:
“It is clear that the Internal Market Bill authorises violations of the UK’s obligations in international law. Setting out explicitly to break international law in this way is unprecedented and undermines the rule of law. The bill also risks destabilising devolution arrangements when it has never been more important for central and devolved governments to work together effectively.”
Today, the UK’s five most senior Anglican churchmen joined forces to denounce the Government’s new legislation, claiming that the internal market Bill could set a “disastrous precedent”.
Across the UK, firms are clear that the UK internal market is an essential aspect of how they operate their businesses. Yesterday, the CBI and 71 trade associations and professional bodies, representing 190,000 businesses and 7 million employees, called for politicians on both sides to carve a path towards a deal. The automotive, aviation, chemicals, creative industries, farming, food and pharmaceuticals sectors are united: securing a quick agreement matters greatly for jobs and livelihoods. Clarity on an ambitious deal would turbocharge business preparations, increase confidence in the UK as a place to invest and help to ease the sustainable implementation of the Northern Ireland protocol. This follows an intervention earlier this week by leading European businesses from France, Germany and Italy calling for a solution. Now is the time for historic political leadership. After four years of debate, there must be resolution; 2021 can then be a year to rebuild rather than regret.
United Kingdom Internal Market Bill
Tuesday 20th October 2020
(4 years, 7 months ago)
Lords ChamberUnited Kingdom Internal Market Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 135(a) Amendments for Committee - (20 Oct 2020)
13:55 - Division conducted remotely on Lord Judge’s amendment. - Ayes: 395 / Noes: 169 - Lord Judge’s amendment agreed.
Lord Judge
At end to insert “but that this House regrets that Part 5 of the bill contains provisions which, if enacted, would undermine the rule of law and damage the reputation of the United Kingdom.
Relevant documents: 14th Report from the EU Select Committee, 24th and 26th Reports from the Delegated Powers Committee, 17th Report from the Constitution Committee.
Lord Fox (LD)
My Lords, yesterday we heard some remarkable speeches, not least from the two debutants: the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz. Over eight hours we heard the Bill broken down into three areas of serious concern: its illegality, its threat to the union, and its structural limitations. The analysis of the noble and learned Lord, Lord Judge, backed up by many other legal Peers, was clear: this Bill establishes a position whereby the United Kingdom breaks international law.
The counterarguments were less numerous, and they were weak. On the one hand, they said that this is an anti-Brexit rearguard action—something easily dismissed by taking note of the powerful speeches of the noble Lords, Lord Howard of Lympne and Lord Lamont of Lerwick, neither of whom is publicly gripped by pro-EU sentiment. The other line taken was that because other countries have broken the law, we can too. It is the cry of the playground: “They started it!” My noble friend Lord Thomas and others demonstrated that that argument is neither here nor there.
This Bill transcends legal affront—and here we should thank the most reverend Primate the Archbishop of Canterbury, who, in his speech, set out a moral case against this part of the Bill. As he put it:
“Our reputation as a nation, our profoundly good and powerful influence and example … will suffer great harm if law-breaking is pursued”.—[Official Report, 19/10/20; cols. 1293-4.]
That point was backed up by the noble and gallant Lord, Lord Stirrup:
“The Government exercise authority through the law; if they undermine respect for the law, they undermine both themselves and the stability of our society”.—[Official Report, 19/10/20; col. 1348.]
It is fair to say that the noble and gallant Lord knows a thing or two about the importance of moral courage.
This is not an academic argument. If we needed to be reminded how this Bill can affect the lives of people on the island of Ireland, my noble friend Lord Alderdice, speaking from his vast experience, set out what is at stake, and as my noble friend Lady Suttie said:
“The Northern Ireland protocol, which is far from perfect, is none the less a carefully constructed compromise to try to maintain peace and stability on the island of Ireland and to protect the Good Friday/Belfast agreement”.—[Official Report, 19/10/20; col. 1315.]
Quite.
Among yesterday’s speeches came a quite remarkable intervention from the noble Lord, Lord Barwell—a man with a unique window on this process. He recalled how, in a meeting with EU officials, Theresa May asked why the Northern Ireland backstop had to be set out in such operational detail. She was told:
“‘Because, bluntly, we do not think you will be there for much longer and we do not trust what is going to follow in terms of living up to any commitments’”.—[Official Report, 19/10/20; col. 1359.]
So, far from sending the EU a stern message about the UK’s resolve, the Bill simply confirms its suspicions about our trustworthiness—or rather, our lack of it.
Moving on to devolution, the noble Lord, Lord Callanan, asserted:
“These powers are not designed to take powers from the devolved Administrations”.—[Official Report, 19/10/20; col. 1284.]
My noble and learned friend Lord Wallace of Tankerness and my noble friends Lord Bruce of Bennachie and Lord German and others made it clear that the reality is something quite different. The Bill pulls back power to Westminster at the expense of the devolution settlement. Many Peers, such as my noble friend Lady Humphreys, pointed to the glaring absence of any reference to the common framework in the Bill.
For its part, the Constitution Committee is not convinced that opportunities for managing the UK internal market through the common framework process have been exhausted—and neither am I. By abstracting the internal market from these frameworks and pushing ahead unilaterally against opposition from devolved authorities, the UK Government are putting the common frameworks at risk. I have to ask: is that what Her Majesty’s Government want? That is what it looks like.
In light of progress being made with the common frameworks, my noble friend Lord Newby questioned, with considerable support, whether the Bill is needed at all. However, in his speech, the noble Lord, Lord Callanan, claimed:
“Without the Bill a Welsh lamb producer … could end up unable to sell their lamb as easily … Scotch whisky producers could lose access to supply from English barley farmers”.—[Official Report, 19/10/20; col. 1282.]
My noble friend Lord Purvis asked some specific questions regarding whisky. I would like to ask: what possible grounds are there to support the Welsh lamb claim?
Further, the noble Lord, Lord Callanan, also said that the Bill
“will allow professionals such as doctors and nurses, qualified in one of the UK nations, to work in any other”.—[Official Report, 19/10/20; col. 1283.]
If by this the Minister is saying that, without the Bill, English doctors will not be able to practise in Wales, I challenge him; if not, what is he saying? I think these comments are entirely baseless and I ask the noble Lord, Lord True, either to demonstrate that they are rooted in fact or to withdraw them.
The third element of the Bill is the role of the CMA as the home for an office for the internal market. As ever, I listened to my noble friend Lady Bowles on such issues. The Committee stage will see significant debate on this.
It will come as no surprise that noble Lords on these Benches will support the amendment in the name of the noble and learned Lord, Lord Judge, but as my noble friend Lord Newby made clear, it cannot stop there. This was backed by a strident call to arms from the noble Lord, Lord Butler. He and others made it clear that your Lordships have to be prepared to stand by the splendid speeches that we heard yesterday when we get to the sharp end of this Bill. In that regard, your Lordships’ House should be indebted to my noble friend Lord McNally for outlining the outcome of the Cunningham conventions. As he explained, we should not be inhibited in standing up to the Government.
The conclusions that I draw from yesterday’s debate are: the illegality of this Bill must be removed; Clauses 44, 45 and 47 should be excised and the Henry VIII clauses removed; the role of the common frameworks as the prime mover in a single market must be reinstated; and consensus must be sought on the principles of the Bill where the market is managed and disputes are dealt with. Finally, if there needs to be an office for the internal market, it needs a different governance structure from that proposed.
We all know that this Bill is illegal, flouts important constitutional issues and threatens devolution. More than that, we know that it has already eroded trust in our institutions and is damaging the reputation of this country, which promotes the rule of law. Finally, and perhaps most insidiously, we know that any law that seeks to permit the Executive to break laws is morally wrong.
Lord Stevenson of Balmacara (Lab)
My Lords, it seems a long time ago now, but I start by thanking the Minister, the noble Lord, Lord Callanan, for introducing the Bill. It was, as many noble Lords commented at the time, a little surprising that he did not cover Part 5, but he may have decided that others would focus on it—he was right. I thank too my noble friend Lady Hayman of Ullock and the noble Lord, Lord Sarfraz, for their excellent maiden speeches. We welcome them to full membership of the House.
We have benefited enormously from the advice of our Select Committees and our deliberations have been improved by the contributions of their members. I thank everyone, from all groups, who has contributed, and the House authorities and the technical wizards who made it all work seamlessly. It was a long but worthwhile day. It is an honour to wind on what I think will turn out to have been a significant debate.
There is usually little to say about why a Government, especially one recently elected with a huge majority, should bring forward a seemingly routine Bill for Parliament to consider. It would have probably appeared in their manifesto, it would have featured in the Queen’s Speech, and it would have been preceded by consultation, a Command Paper or two and possibly pre-legislative scrutiny—although that, sadly, appears to be out of fashion these days. However, this Bill has left no such traces, apart from a vapid announcement and a pretty token consultation over the summer months.
During the debate yesterday, two rather different narratives emerged. On the one side was an assertion that this was a vital and necessary Bill that was required to ensure that the internal market within the UK worked smoothly with effect from the end of the transition period, with Part 5 tacked on just in case it became necessary to legislate if the joint committee failed to resolve issues related to the complex customs and single market situation in Northern Ireland. On the other side was a feeling that the Bill could not be supported as it stood because not only was it asking Members of this House to be complicit in a proposal to take powers to break the rule of law but it was damaging, possibly fatally, to the devolution settlement, was packed with egregious Henry VIII powers and was full of internal inconsistencies about how and to what effect the single market and state aid rules would operate after the transition period ended.
I am not by nature a believer in conspiracy theories, but the communique issued by the Cabinet Office after yesterday’s withdrawal agreement joint committee meeting makes interesting reading:
“The UK reiterated its commitment to upholding obligations under the Withdrawal Agreement and protecting the Belfast (Good Friday) Agreement in all respects.”
It is hard to accept that the Bill before us is just a cock-up, but perhaps only time will tell. Whatever its provenance, the elected House has asked us to consider it, and that is what we have to do.
Before we joined the EEC, we had a well-functioning internal market. We have now left the EU, and with that decision comes the imminent end of the rules governing the single market. How do we move forward, preserving the best of what we currently have? How do we ensure that consumers continue to benefit as they have in the past because of the way in which strong EU competition and state aid rules protected their interests? We do not believe that the proposition for a top-down, centralised standard-setting system contained in the Bill is right for the modern UK economy. The EU single market rules governed trade in goods and services across members states. They recognised the diverse economic, social and legal contexts of those states and harmonised practice, or set minimum standards, only where it was agreed that it was essential to support the market while observing the important principles of subsidiarity and proportionality. Why are these principles patently not in the Bill? The principles that are there, of mutual recognition and non-discrimination, are good in so far as they go, but they will not prevent local divergence or a race to the bottom on standards.
The sensible way of managing policy divergence within the UK internal market is by continuing to develop a suite of common frameworks; that is, agreed common approaches in areas previously governed by EU law but otherwise within the areas of competence of the devolved Administrations or legislatures. The common frameworks are intended to be agreed by consensus, and surely that is a prize worth waiting for. The UK Government have collaborated on a common frameworks programme for three years; many are close to final agreement, with the remainder being progressed at pace. Given how close we are to agreement, why does this Bill ignore rather than build on that programme? We intend to strongly challenge this approach. The Bill threatens to frustrate the progress made so far and to undermine future trust and co-operation because, to quote the chairs of the Constitution Committee and the EU Committee:
“The Bill provides the Government with powers to alter the competences of the devolved administrations and risks destabilising existing devolution arrangements.”
The Bill also seeks explicitly to amend the devolution settlement to add the design and operation of a “subsidy regime”—it used to be known as state aid—to the list of reserved matters. This has been described as a “power grab”, and it cannot be right for the UK Parliament to press ahead with legislation on an issue which is causing such genuine anger and concern. Again, it is difficult to see what is to be gained by pushing ahead with the Bill when so much needs to be determined about how and in what circumstances the UK wishes to evolve its state aid regime for the future. When we learn that the Government intend to follow WTO rules on state aid after 31 December, we ought really to start worrying. We will suggest that the new UK state aid system be run by an independent regulator with the power to rule against illegal subsidies, taking an evidence-based approach to deciding when a subsidy is harmful or distortive. The OIM will not work unless it is independent, trusted and supported across the UK.
My noble friend Lady Hayter has outlined our approach to the CMA, and I repeat her call that the CMA’s present structure is inadequate, not simply because it fails to represent the four nations but because it lacks a clear duty to place consumers at the heart of its work. Competition is undoubtedly an important way of avoiding consumer detriment, but it is not, and never will be, an end in itself.
As I have hinted, most of the speeches in this Second Reading debate have focused on the egregious Clauses 42 to 47. Despite amendments to the Bill in the Commons, it has not been improved by the additions made and the arguments put forward yesterday by a huge range of speakers from all parts of your Lordships’ House were comprehensive and utterly convincing. As my noble and learned friend Lord Falconer and others reminded us, the tensions inherent in the protocol on Ireland/Northern Ireland were not hidden but were apparent from the outset. The breach of international law has been entered into knowingly. The Bill strikes at the heart not only of the protocol but of the withdrawal agreement. It could pose a threat to the maintenance of the Belfast/Good Friday agreement. In bringing forward the Bill, the Government alleged that the EU had not been acting in good faith, but they have not disclosed any evidence that it has acted in bad faith.
The government amendment in the other place does not alter the Bill’s fundamental incompatibility with the withdrawal agreement. The Government’s pre-emptive action has placed the United Kingdom in the wrong. The Bill has damaged the United Kingdom’s international reputation as a defender of the rule of law. As my noble and learned friend said yesterday, we will invite the House to remove Part 5 of the Bill neck and crop, to use his colourful language, at the earliest opportunity, and we hope that thereafter we can work with all parts of your Lordships’ House so that the House can do everything that it legitimately can to ensure that Part 5 remains removed permanently.
The amendments to this Bill put down by the noble and learned Lord, Lord Judge, and by the noble Lord, Lord Cormack, are supported by this side and, as far as I can judge, by the vast majority of your Lordships’ House and by the country at large. If moved, we will support them. I expect that the Government will be humiliated by the size of the majority against them, and a message will go out to the EU and the world that at least this House has standards and principles that others can depend upon, even if the present Government have not. When the history of these troubled months comes to be written, it will not be kind to the current Prime Minister and his Cabinet.
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, obviously, I thank all those who have spoken in this long debate and, in particular, the noble Baroness, Lady Hayman of Ullock, and my noble friend Lord Sarfraz for their remarkable and uplifting maiden speeches. Sometimes all of us need uplifting, and long may they stay in this House to enlighten us.
This has been a serious debate, as is appropriate on serious matters of serious importance—the sustaining of the union of the United Kingdom and the building of prosperity in a climate of certainty and security for business. However, I had some reflections during the course of the debate, and at one point found myself asking whether Henry VIII’s foundation of the Church of England was fully in accord with both our domestic law and international obligations.
I apologise if I cannot mention over 100 speakers by name when addressing the many issues raised, but I have listened carefully to every speech, shall respond as fully as I can on the main issues and will write to noble Lords on points of fact where that is not possible. First, I address points made on the main parts of the Bill, ably presented by my noble friend Lord Callanan, before I come directly to answer the amendments before us, on which the noble and learned Lord, Lord Judge, has indicated that—unusually—he wishes to divide the House at Second Reading.
I was pleased to hear understanding across the House for the purposes behind the Bill, even if we do not agree on it. There is agreement that commerce, services and professions must be enabled to operate freely across the whole United Kingdom. That is widely supported—indeed, demanded—by business, including in Northern Ireland. Without this legislation, there could be problematic divergence, putting at risk the seamless trade that businesses in Scotland, Northern Ireland, Wales and England enjoyed before we entered the EU, enjoyed in it and should enjoy hereafter. This Bill will protect trade and secure jobs across all parts of the United Kingdom after the end of the transition period. It will guarantee that UK businesses can trade unhindered in every part of the United Kingdom.
I assure those noble Lords who raised this that the Government will maintain the highest standards for consumers, workers, food and the environment. We have repeatedly stated our commitment to high standards. Under our proposals, the devolved Administrations will continue to have power to regulate within devolved areas, in so far as these do not cause a barrier to internal trade. We are committed to being a global leader in environmental protection and animal welfare standards while maintaining the high quality of our produce for consumers at home and overseas.
Some noble Lords, including those who spoke today, have questioned the need for the Bill, arguing that non-statutory arrangements may be enough. They fear that the Bill may restrict the freedoms of devolved Administrations. We have listened and will continue to listen to such concerns; we wish for close co-operation with the devolved Administrations—there is no so-called power grab here. Indeed, at the end of the transition period, hundreds of powers currently exercised by the EU will flow back to the UK, as the British people have asked. Many of the powers coming back from the EU fall within the competence of the devolved Administrations, which will see a major transfer of powers that before the EU exit they did not have.
As we set out in our White Paper, without an up-to-date, coherent market structure, economic barriers could block or inhibit trade in goods across the United Kingdom, and services could be significantly and detrimentally impacted. Future complexities could arise— for example, differing qualifications for plumbers or technicians could limit access to skilled construction workers and make it harder for one nation’s construction companies to bid for contracts in another. Such costs could ultimately reach consumers, increasing prices or decreasing choice. Significant and unmanaged economic barriers arising across the UK could not only cause serious harm to the interests of our business and consumers but threaten the prosperity of the UK economy as a whole.
I was pleased that so many noble Lords commended the common frameworks programme, which has been mentioned again today. It is an important process and one that will continue. We will update the House on progress as we work with our friends in the devolved Administrations in the months ahead and will study carefully the observations of your Lordships’ Select Committees on this part of the Bill. I assure the House that this Bill does not make the common frameworks redundant, as many, including the noble Baroness, Lady Finlay of Llandaff, my noble friend Lord Dunlop, the noble Baroness, Lady Crawley, the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Andrews, fear. However, common frame- works do not replace the need for this Bill; they are a mechanism for collaborative policy-making in areas of returning EU law which intersect with devolved competence. They are sector-specific and allow for a deeper level of regulatory coherence, but they do so in a specific set of policy areas. While they remain a crucial part of our regulatory landscape, common frameworks alone cannot guarantee the integrity of the entire internal market.
The Bill ensures that areas without a common frame- work will still benefit from the regulatory underpinning and, crucially, market coherence will be provided for issues that fall around, or between, individual sector-focused frameworks. The Bill complements common frameworks by providing a broad safety net and additional protections to maintain the status quo of seamless intra-UK trade across all sectors of the economy. That will ensure maximum certainty for businesses and for investors, domestic and foreign. I am sure that all noble Lords support that objective. We look forward to pursuing these important issues in detail in Committee —and I give that undertaking.
Let me turn to the subject of most of the speeches yesterday—Part 5 of the Bill and the amendments before your Lordships. The future of our union and the sustaining of the Belfast agreement are at the heart of this Bill. A strong and open internal market with the ability to support all parts of our union and deliver prosperity for communities across the whole of the United Kingdom is something that we should surely all support. That includes Northern Ireland, as is affirmed in Clause 42 in Part 5. Support for free trade across the United Kingdom must extend to the good people and businesses of Northern Ireland; they are our countrymen and women, and part of our union. This Government will allow no foreign authority, armed with whatever pretext, high or low, to undermine the principle of free trade within our customs territory that has been fundamental since the Act of Union.
I am pleased to tell the noble Lord, Lord Browne, that EU state aid rules will not apply to Northern Ireland as they do today. State aid provisions apply only to trade subject to the protocol, which is limited in scope to goods and wholesale electricity markets. Northern Ireland will therefore enjoy new flexibilities with respect to support for its service industries, including those with potential for rapid growth—for example, fintech and cybersecurity businesses.
I thank the noble and learned Lord, Lord Judge, and I hope that the House will forgive me if I send my good wishes to Lady Judge, and wish for a speedy recovery. I thank him for meeting me; I understand why he cannot be here today, and I thank him for sharing with me his thoughts on this part of the Bill. As we have heard, his objections fall not on the objective to safeguard our union and the Belfast agreement, but on his strongly held sense, held by other noble Lords who have spoken, that Part 5 of the Bill, sent to us by another place, undermines the rule of law.
We share a full and fundamental respect for and belief in the rule of law. That is not something handed to us from outside by some directive or convention. It was won in the sacrifice of civil war and affirmed in the Glorious Revolution, the Bill of Rights and the Claim of Right, since when our parliamentary Government and rule of law, as many have said, have been an inspiration to the world.
The Government do not believe that the limited, contingent proposals in this Bill change that position. They do not accept that these safeguard provisions render our country, as has been claimed, an international pariah, or justify, as was asserted, murderous actions by others. People are still talking to us. Indeed, your Lordships’ Constitution Committee said in paragraph 171 that in
“domestic law, it is correct that Parliament may enact legislation which”
infringes
“international obligations.”
This Bill does nothing to abrogate our commitment. We are committed to implementing the withdrawal agreement and the Northern Ireland protocol, and have already taken many practical steps to do this. We continue, as the noble Lord opposite said, to work with the EU in the joint committee set up to address uncertainties and incompatibilities in parts of the Northern Ireland protocol. We hope we may resolve the outstanding issues and avoid the maximalist interpretations by the EU that might lead to a situation where tensions arise between our domestic obligations and our international commitments and we have to act to resolve them.
We cannot guarantee that agreement will be found. The fact remains that we have not reached agreement. Last Thursday the EU summit appeared explicitly to rule out a Canada-style deal. It effectively restated its opening position in the negotiation as its present position, and instructed the UK to move. As my right honourable friend the Prime Minister said last Thursday, the EU has
“refused to negotiate seriously for much of the last few months”.
We must therefore address the contingent possibility that a threat to the union and to the Belfast agreement might arise. The provisions in Part 5 of the Bill are about creating a legal safety net, taking powers in reserve whereby Ministers could act to guarantee the integrity of the United Kingdom and protect the peace process. The Government never have and never will seek north-south barriers in Ireland; equally, we cannot accept east-west barriers in our customs territory. The imperative here is balance. The prerequisite is reason. In the difficult and highly exceptional circumstances in which we find ourselves, it is right that we take these precautionary steps now.
I can also confirm to the House, as asked by the noble and learned Lord, Lord Falconer, that we will take action, if necessary, in a finance Bill in 2020, to address the issue of tariffs.
We are clear that we are acting in full accordance with UK law and the UK’s constitutional norms in our actions. We do not take this action lightly or without good reason.
Your Lordships will have every chance to consider these matters in Committee, and consider them we must. We cannot set aside our constitutional duty to scrutinise a Bill that has passed through the other place with a healthy majority, as was said by the noble Lord opposite. To do so would be a failure to fulfil our revising purpose. Neither amendment before your Lordships refuses that. They accept Parliament’s right to receive and consider legislation such as this. The effect of the amendments is declaratory. As such, their purpose is to send a message. I hear the message about the importance of the rule of law. We can all assent to that. The noble Lord opposite used the language of “message”. There is another message that some will hear; a message, as he said, to the European Union: if the UK Government and the elected Chamber refuse to accept the EU’s most encroaching demands, your Lordships will deny the UK Government a contingent power to protect our union and safeguard the Belfast agreement.
That, and, still more, a threat to destroy this whole Bill, would be a heavy missile to launch at what is a profoundly delicate state of negotiations, when this Government are seeking to fulfil the firm resolution of the people of the United Kingdom that this country should be a fully independent state. That is the context of these proposals. I am deeply mindful of the wise words of my noble friend Lord Hunt of Wirral and the noble Lord, Lord Skidelsky, that this House should not tie the hands of this Government at this time.
It is the Government’s sincere wish that these provisions need never be invoked. We have listened to the views of those concerned and amended the Bill so that Clauses 44, 45 and 47 can be commenced only following approval by the House of Commons. In addition, I can confirm to my noble friend Lord Lamont that regulations under Clauses 44 and 45 could be made only following approval by Parliament as a whole, which includes your Lordships’ House. In circumstances where your Lordships have the power to set a staying hand, at a time when we will know the state of negotiations between the UK and the EU, it would seem quixotic to threaten, as the noble Lord, Lord Butler, did, to destroy the whole Bill now.
My noble friend Lord Bridges posed a question. The Government do not consider that these clauses, as and when the Bill is enacted, of themselves breach Article 4 of the withdrawal agreement, which requires that those provisions of EU law made applicable by the withdrawal agreement are given effect in domestic law in the UK in the same way as they are in EU member states. However, there is a political question before us as well as a legal one, and a balance of judgment to be made in the national interest. I repeat: the fact remains that there is no negotiated agreement, and the Government must be realistic that we are barely more than two months away from the end of the transition period.
I do not accept strictures around morality, although I note with interest that I now have to seek moral guidance in the House journal of Mammon. It would be irresponsible not to have measures in place in our domestic law that allowed Ministers to protect the UK’s internal market and the Northern Ireland peace process. The Government are making sure that the protocol is implemented in a way that works for Northern Ireland; that is, in a flexible, pragmatic and proportionate way, in line with the approach set out in our May Command Paper. That approach was broadly welcomed by the majority of businesses and political parties in Northern Ireland and is the basis on which we have been negotiating and will continue to negotiate with the EU. However, we cannot and will not allow harmful legal defaults under the protocol to take effect.
In all circumstances, Northern Ireland is and must remain part of the UK customs territory, with genuine unfettered access to the rest of the UK internal market. We must at the very least avoid the European Commission applying its state aid rules to companies in Scotland, Wales or England with no link, or only the most trivial one, to Northern Ireland.
As we have made clear, if these measures were ever needed, their commencement would be subject to a vote in the other place and a take-note debate in our House, as set out in the Government’s Statement on 17 September. Your Lordships would have the opportunity to vote against the necessary statutory instrument, although I of course hope you would not be so inclined—one has to travel in hope.
The rule of law is a great matter, and the integrity of this union is also a great matter. There is a balance to be struck in these difficult times, and proportion to be found. We believe that these measures, with all the safeguards I have mentioned, strike that balance without tying the hands of the Government at a critical time.
What is potentially proposed is not an armed invasion of another nation but a contingent and potential power, subject to safeguards, which the Government have stated they hope need never be invoked. It is presented to Parliament fully in accord with our constitutional norms.
I urge noble Lords to support the Bill and not to support the amendments in the names of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Cormack.
Lord Judge (CB) [V]
My Lords, I thank everybody who has taken part in this debate, including those who disagree with me. I welcome the noble Lord, Lord Sarfraz, and particularly the noble Baroness, Lady Hayman—I am sure the noble Lord will not be upset with me if I say that it is an absolute delight to know that there are now three Members of your Lordships’ House who support Leicester City Football Club.
The debate has reinforced my anxiety about the Bill. If it is enacted, we shall be giving the Executive the most extraordinarily wide powers, and until the debate I had not fully appreciated the dangers to the union of giving the Executive in London effectively uncontrolled power over the way in which the internal market will work. That reinforces my anxiety. I wish to make just a couple of points.
I notice that the Minister has not resiled from the proposition which some of those who support him were keen to advance: that the Bill, if enacted, would not break international law or break the law. That it would not break the law seems a crucial element in this. The fact of the matter is that the law would be broken. The Minister in the other place said so; the Treasury Solicitor resigned; and the noble and learned Lord, Lord Keen, resigned. There can be no getting away from it, and, to be fair, the Minister in our House has not sought to do so. That is the starting point.
I then listened to a number of arguments suggesting that the Government are entirely justified anyway because the EU has been acting in bad faith. Although the Minister did not use those words, he just touched upon it by referring to the way in which the negotiations had broken down and to the Prime Minister describing how the EU was refusing to negotiate. If any of that has force, the remedies are there to be found within the Act, the agreement, the protocol and within the ordinary rules which govern international treaties where one side is breaking the purpose and spirit of the agreement. That is the remedy that should be sought if there is indeed bad faith by the EU.
I expect the negotiations to be tough—that is the whole point of them. I hope that our negotiators are being tough—that is what they are there for. That is a very far distant cry from bad faith. No evidence of that has so far been shown to any of the committees which examined these issues; indeed, apart from the most recent observation by the Minister before us today, there is no evidence. Therefore, we are dealing with a hypothetical situation, which is: “We may need these powers at some stage.” Maybe we will; I hope not. If we do, it is perfectly open to the Government to come back to us, to Parliament, to put before us emergency legislation and for both Houses to sit as long and as late as necessary to examine the proposals, and, if they are satisfactory, to endorse them.
I shall not go through the arguments that were deployed before your Lordships’ House yesterday. I add merely that you do not have to be a lawyer to understand the rule of law, and you certainly do not have to be a lawyer to understand when you are giving powers away. That is what the Bill will do. You do not have to be a lawyer to understand the reputational damage to the United Kingdom. That is what this situation will do. We cannot resile from the fact that we are breaking the law if the Bill is enacted. That is what the Government say. That is why, while I quite understand the Minister’s anxiety about the future and I share his concern about it, I will seek the views of this House.
Just before I finish, I thank the Minister for his courtesy and good wishes.
I seek the opinion of the House.
United Kingdom Internal Market Bill
Monday 26th October 2020
(4 years, 6 months ago)
Lords ChamberUnited Kingdom Internal Market Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 135-II Revised second marshalled list for Committee - (26 Oct 2020)
Baroness Hayter of Kentish Town (Lab)
My Lords, in moving Amendment 1, I welcome that today we are not starting on Part 5 of the Bill, as there are two other major issues which need to be reformed. Indeed, the Bill’s genesis never involved including Part 5, but concerned how to use repatriated competitive and other regulatory powers post transition. Today we will deal with two of these: first, how to give the new competition regime a consumer focus; and secondly, how to organise returning powers into the devolved structure the UK will operate in 2021, as opposed to the 1973 position when we entered the EU.
Amendment 1 deals with the whole point of market intervention and competition policy: to promote the interest of consumers where, for whatever reason, they are operating in an imperfect market. But it also acknowledges that helping businesses to grow or consumers to benefit must not be at the expense of our precious environment. The amendment would write into Part 1 that its purpose is to benefit consumers and to safeguard the environment.
Anyone who has worked in regulation or in the courts knows that these overarching objectives, or duties, are essential in interpreting or enforcing the specific clauses, resulting legislation or indeed future legal cases arising from the Act. The overarching purpose is usually taken into account. Before he left the CMA, the noble Lord, Lord Tyrie, as its chair, called on government to strengthen the CMA’s consumer duty, writing that the internal market will work for consumers only if it is
“fair, competitive and adequately, proportionally and properly regulated.”
Amendment 1 would ensure that legislation on how the internal market is governed has this objective hardwired, or mainstreamed, into its overarching purpose.
A clear example of why this is so necessary is the Agriculture Bill. The Government refused to accept a UK-wide commitment to retaining food standards. I gather that Prue Leith has resigned from the Conservative Party in reaction to that rejection. More importantly for this Bill, just because the UK Government do not want to guarantee high food standards for consumers does not mean that the other countries of the UK do not.
As we roll out a new internal market for the UK, it is essential that an overarching objective of the legislation—the interest and well-being of consumers—be written into the Bill. Given the role of the CMA with regard to this Bill, it is similarly important that it has the duty to the consumer at the forefront of its work. As the noble Lord, Lord Tyrie, said, for the internal market to work for consumers, the CMA must be fit for this task:
“Until Brexit, much of the competition work lay with the Commission. If we are to ensure our companies play fair, do not profit at the expense of ripped off customers, are overseen ... by a competent authority, we need ... changes to the ... composition and duties of the CMA”,
which
“needs new duties to act quickly and with the consumer interest paramount and powers to make this possible”.
The amendments in this group are part of the effort to achieve these aims. Amendment 1 adds the duty to the purpose of the Bill, and Amendment 112, also in my name, adds it to the CMA’s objectives.
The group addresses two other issues: what is known in EU-speak as proportionality, and procurement. Amendment 2 in the names of my noble friend Lord Stevenson, the noble Lord, Lord Anderson, and the noble Baronesses, Lady Bowles and Lady McIntosh, would write the principle of proportionality into law to make sure that the Government, in exercising their powers under the Bill, do not go further than is necessary to effect mutual recognition and non-discrimination; and, vitally, that they respect the principle of subsidiarity whereby matters are agreed at the most local level possible. This would make sure the Government act only when their objectives cannot be achieved by the devolved authorities and would be better done at UK level.
The Government recognise and use this principle of proportionality. Indeed, just last week they tabled an amendment to the Medicines and Medical Devices Bill—which I believe is in Grand Committee even as we speak—stating that disclosure of information relating to medicines covered by international agreements may take place only where it
“is proportionate to what is sought to be achieved by it.”
That same principle needs to be hardwired into this Bill to make sure the powers are not used—for convenience or whatever—by the UK Government when they could be used better by the devolved authorities.
As the Minister will know, having been around the EU for some time, subsidiarity was not always in the EU mandate but, once introduced, influenced all decision-makers’ thinking, making them think twice before taking powers to themselves at too global a level. For those reading this in Hansard, the Minister at this point has a very disbelieving look on his face.
Finally, Amendment 59 in the name of my noble friend Lord Stevenson aims to retain public procurement as a devolved matter, thus exempt from market access principles. This is not to say that public procurement should not adhere to recognised principles, but to ensure that these are covered in the existing work on common frameworks in a public procurement framework. Since 1998, public procurement has been devolved, and our leaving the EU is no reason to alter this or for it suddenly to become a reserved matter, especially when a framework is already being developed. The Government have given no rationale for trying to make it reserved. In the White Paper, they said, without any reasoning:
“For goods, non-discrimination will apply within certain excluded areas such as procurement.”
They said they were considering—only considering—whether and to what extent non-discrimination should apply to public procurement. Perhaps the Minister could provide an update on their thinking. Perhaps he could also explain why Whitehall thinks it can deal with procurement any better than the devolved authorities, particularly given the recent example of UK-wide public procurement under Covid.
There are real concerns about simply handing public procurement to the Government, given that the WTO’s general procurement agreement, which would replace the UK’s 2015 regulations, would not include socially responsible public procurement provisions unless they were nailed down in advance. Amendment 59, therefore, aims to prevent the loss of these safeguards and keep public procurement devolved so that price-quality ratio, rather than simply price, is included in tender evaluation criteria and can be maintained by the devolved authorities along with the normal requirements of value for money et cetera. We want a UK-wide internal market to work for consumers and business, to safeguard standards, maintain the environment and ensure that competition does not fuel a race to the bottom. That would be good for neither workers nor consumers, nor indeed for businesses. These modest amendments would help to achieve that objective. I beg to move.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I am pleased to support Amendment 2; I was about to do my own version when I discovered that the noble Lord, Lord Stevenson, had already tabled a similar one, and it is pleasing that it has cross-party signatories. There is a lot in this Bill about the internal market that is either premature or inadequately or inappropriately worded. It may be that amendments elsewhere referencing the common frameworks will help, but just as the common frameworks have a set of principles that are being followed in negotiations, a bit more about the flavour of the internal market is needed here, beyond mutual recognition and non-discrimination.
One of the principles for the common frameworks is to maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory, as is afforded by current EU rules. Therefore, it seems wholly appropriate to utilise the principles of subsidiarity and proportionality that have been a defining part of the EU internal market and which have helped form the current flexibility. It would also chime with the recommendations of the Constitution Committee in its report The Union and Devolution, which set out six principles of solidarity, diversity, consent, responsiveness, subsidiarity and clarity. We could use all those principles here too, and certainly they should guide how we approach amending this Bill throughout.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I support Amendments 1 and 2, to which I have lent my name; they are probing amendments to ask the Government a number of questions. The concept of the internal market in European Union terms is relatively recent: we have only had the single market since 1992. Of course, devolution followed some five years later, so both are still relatively new in terms of the British constitution.
British competition rules are loosely based on—and generally have always reflected—the original competition rules of the EU treaty on state aid in Articles 85, 86 and 92. The noble Baroness, Lady Hayter, has been right to highlight that, in what we have been used to in terms of both EU competition rules and British competition law as applied by the CMA, what is missing in the Bill is a reference to consumers. The flip side of competition policy to make sure that companies behave well is to ensure fair competition as well as protection of the consumer. I wonder whether leaving out any reference to consumers, both here and in later parts of the Bill, was deliberate. Why is there is no specific reference to consumers in the Bill, as Amendments 1 and 112 would provide?
Equally, Amendment 1 relates to safeguarding and the environment. That begs another question. We are told that our current regulations setting out food safety can always be changed by secondary legislation and that we do not need an Act of Parliament to do so. But that could lead to the situation—particularly if it remains devolved, and the Government have repeatedly stated that this is their intention—where we have to ask: to what extent will divergence be tolerated? For example, if the Food Standards Agency of England made substantial changes to our food safety requirements, would Food Standards Scotland simply diverge and not necessarily follow those changes? In future, could a product produced in Scotland, meeting Scottish environmental and animal welfare standards—I will be supporting the forthcoming amendments regarding those—still be allowed to be imported into England if it no longer met those same standards? This seems to be an obvious potential crisis for Scottish, Northern Irish and Welsh farmers some way down the road. The Government might want to rethink their idea of not having UK-wide standards. I would be most grateful if, when summing up, my noble friend could turn his attention to that potential conflict and the potential for divergence.
Turning to proportionality and subsidiarity, I absolutely agree with Amendment 2, to which I have lent my name, and later amendments. The Bill must clearly set out only what is necessary to achieve its stated objectives. My noble friend will probably answer that this is self-evident, but it bears repetition. Personally, I see some merit in having it on the face of the Bill. The principle of subsidiarity might seem clear now, but I ask my noble friend to consider the horrific situation, some five or 10 years down the road, when we may face a federal Britain. What impact would that have on subsidiarity?
On procurement, does my noble friend share my concern that despite all the potential benefits around procurement provisions that I envisage us enjoying by leaving the European Union—for example, we would no longer be bound by the threshold of €136,000, beyond which any public contract must be put out for tender, meaning that we could source many more of our English, Scottish, Welsh and Northern Irish foods into public institutions such as schools, hospitals, prisons and others—we have completely lost that advantage because through the Trade Bill we are joining the Agreement on Government Procurement, which, surprisingly, has exactly the same threshold of $135,000? We seem to be jumping out of the frying pan and into the fire, without getting all the opportunities that were promised to our farmers by leaving the European Union, such as sourcing more local food to schools, hospitals and other public institutions. That will in fact not come about, because we will be bound by international rules on public procurement. Have the Government done a cost-benefit analysis on how much competition we will face from other providers to source their foods into our public institutions, as opposed to the potential benefits our farmers might have from tendering in other international jurisdictions to source our home-produced food there?
I look forward to hearing my noble friend’s reply to this little debate.
Lord Hope of Craighead (CB) [V]
My Lords, I want to add a few words in support of Amendment 2. Proportionality and subsidiarity are part of the language of EU law which, while relatively new in historical terms, we are now very familiar with. It would be a mistake to think that as we reach the end of the transition period, we should leave these concepts behind. Proportionality, after all, is deeply embedded in our own public law, and has been for decades. It has long since been recognised that black-letter law alone is not a good guide to the way in which public law and public affairs should be administered. One simple example can be found in the civil litigation rules, where the word appears to make it clear that the courts should seek to obtain a just result with appropriate speed and expense in giving effect to the rules that are set out in the document. The point is that individual facts and circumstances vary greatly across the spectrum. Proportionality allows them to be taken into account and avoids blunt decisions where a greater need is to fit the facts together with the rule to find a suitable result that will achieve the desired object.
Subsidiarity too is now deeply ingrained in our constitutional arrangements. It is part of the thinking behind devolution, and the word is used with reference not only to Wales, Northern Ireland and Scotland but to devolution throughout England. The great advantage of this is that local decisions are best taken with regard for local circumstances. For them to be taken centrally sometimes misses the point and leads to solutions that are inappropriate given the local circumstances. It is a useful tool best used in the administration of our affairs to make sure that things are properly organised across the whole of our United Kingdom, which, after all, is what our new internal market is all about.
Both these principles are sound and appropriate guides as to how the two basic principles which are set out in Clause 1 should be administered. I support the argument that, somehow, these principles should find a place in the Bill. Quite how that is done I leave to the draftsmen, but Amendment 2 is at least an important start to make sure that the significance and relevance of these principles are appropriately recognised.
Baroness Noakes (Con)
My Lords, I offer a few comments on these amendments. It seems to me that Amendment 1 has the effect of confining the concept of the internal market to consumers and the environment. That completely misses the point. If we go back to the Government’s White Paper in July, we see they were clear that the policy objectives were economic opportunities across the UK, increasing competitiveness and making the UK the best place to do business, thereby supporting the general welfare, prosperity and economic security of all UK citizens. The amendment in the name of the noble Baroness puts the cart before the horse, trying to make that an overarching requirement when it should be a consequence of achieving all the other things.
I emphasise that this is about frictionless business—about making it easy to do business across the UK. In all our debates, we should not lose sight of the importance of this to the devolved nations. About 60% of the exports of Scotland and Wales go to the rest of the United Kingdom; for Northern Ireland, it is a fraction below 50%. They are important to those economies. We are trying to create an environment in which trade can prosper and grow within the UK, without barriers, which will in turn allow the other objectives to be achieved—for example, the protection of consumers and supporting the general welfare of the country.
Lord Morris of Aberavon (Lab) [V]
My Lords, I support Amendment 1. There is very little that needs to be said in addition to what my noble friend Lady Hayter so clearly set out. In her speech she prayed in aid the Government’s attitude to the Agriculture Bill—which I also took part in—hence the necessity of the amendment. In my innocence, I am assuming that the Government will accept it, but perhaps I am too innocent.
I also support Amendment 2. The purpose of my speech is to serve as a pre-emptive strike to preserve the position of devolved legislatures, as I did in my Second Reading speech. I will make the same point regarding other amendments. Agriculture is a devolved matter. The single market is important throughout the United Kingdom. However, I am wary when power given to devolved Administrations and legislatures is taken away from them. The onus is on Her Majesty’s Government to prove necessity—hence the importance of the words in paragraph (d) in the amendment, which I particularly support.
Lord Purvis of Tweed (LD)
My Lords, I agree with the first point made by the noble Baroness, Lady Noakes, who said that this group of amendments and this debate are about whether it is necessary and desirable to agree with the Government on the definition of mutual recognition and non-discrimination. The question is therefore whether the Government have made their case sufficiently that the Bill’s definitions meet the criteria that the White Paper sets out for the functioning of the single market, which is something that we all value.
I think that the Government have made a less than convincing case on the necessity of these definitions. However, even if it were necessary to make a strategic case for defining these market access principles, such a case was not set out in the consultation, the White Paper, the Commons stages or the Minister’s speech on Second Reading. Have the Government explained why they have deviated from our current approach or from the approach we had before we joined the European Union? We had a functioning single market before we joined the EU and while we were members, as we do now, and it has served our country well. Even before devolution, our internal market before we joined the EU allowed for different laws and approaches and historic divergences in many areas, including in economic development, trading standards and other areas linked to the economy. The question is why the Government have decided to move away from the earlier British approach or the British approach as it was adapted and adopted through the European Union.
Before I turn to the matter of definitions, I want to speak to Amendment 59 on procurement. Noble Lords who took part in the early Committee sittings on the Trade Bill will recall that we debated the procurement aspects. I specifically asked why procurement was mentioned in the White Paper but not in this legislation. The noble Baroness, Lady Hayter, has also asked that question, and I hope the Minister will give us a clear answer. As the noble Baroness, Lady Noakes, indicated, if procurement continues to be a devolved matter—as it has been, in many respects, under the framework of the European standards and the GPA international agreement—and the Scottish Government, for example, wish to have a procurement policy within an overall framework which sets standards for infrastructure or public buildings used for health or education, every supplier will have to meet those standards. That would not necessarily be discriminating against Scottish, English or Welsh construction firms; it would be a standard that they would be expected to meet. I fear that the Government want to have a uniform standard for the delivery of procurement policy across the United Kingdom. That would be worrying because it would be a significant move away from the flexibility we have had within the approach taken by the European Union.
There has been an assessment of the current approach taken within the EU single market—which we have left—which was updated in April 2020 in Regulation 2019/515. The current approach has a well-defined assessment procedure to be followed by competent authorities when assessing goods, which the Government’s approach lacks. The current approach has obligatory elements to be included in an administrative decision that restricts or denies market access. However, that is left open to UK Ministers to decide in a vacuum, and thus is lacking in the Government’s approach. Our current approach offers a voluntary mutual recognition declaration which businesses can use to demonstrate that their products are lawfully marketed in one EU country in a business-friendly, problem-solving procedure through the European single digital gateway for businesses and service providers on how this operates. These important aspects are missing in the new approach. I think it is therefore justifiable to ask on behalf of businesses across the UK which need to prepare for this, why the Government are not ready.
As will become clear in the debates on following groups, the Government are not ready for the implementation of this because the framework relationships are not yet in place. But even if they were, the Government have also failed to state why the nature and scope of the application of these market access principles are different from what we have understood and worked with for many years. For example, as Professor Nicola McEwen of Edinburgh University pointed out, the definition of indirect discrimination is not the same and is now more complicated than EU law. Not only that, Professor McEwen highlighted the circumstances in which mutual recognition rather than the non-discrimination rule will apply, or vice versa, which is different from the position under EU law. It is unclear how certain types of trading rules would be classified. She gives an interesting example of restrictions on the use rather than the sale or marketing of a product, such as the current ban on the use of electric shock training collars in Wales. There is no consistency in the Government’s approach on that. In further groups of amendments we will also need to explore why the range of exclusions and exceptions from the mutual recognition and non-discrimination principles is significantly narrower than under EU law.
The Government should tell us why the UK’s new approach is far more restrictive and more bureaucratic than the position we are moving away from. With a more restrictive approach, and without the previous flexibility that had been obvious in some areas, businesses, service providers and public authorities will have a much more burdensome single market to operate. The Government have presented no justification whatever for that. My noble and learned friend Lord Wallace of Tankerness raised this issue at Second Reading. In a reply, the Minister said why the Government are taking a different approach:
“The market access principles have been designed to take account of the UK’s unique circumstances, reflecting that our market consists of four highly integrated, highly aligned parts. Conversely, EU provisions deal with 27 countries, all with diverse histories, cultures, and competing marketing priorities”.
I note that the Government do not think that our nations have a diverse history and culture, but they most definitely do. If they did not, we would not have had devolution in the first place. However, it does not follow that our current approach, even with devolution, has been more streamlined, and the Government seek to have a more complicated approach going forward.
My noble and learned friend asked about subsidiarity and proportionality, and the Minister replied as follows, which is interesting, given the very well-argued speech of the noble and learned Lord, Lord Hope of Craighead. He said:
“Turning to your comment on subsidiarity and proportionality, we have now left the EU and are free to organise our internal market in a way that is better suited to the UK’s unique constitutional arrangements and common law system.”
The noble and learned Lord, Lord Hope, stated categorically that these approaches of subsidiarity and proportionality are deeply embedded in our constitutional arrangements, so why have the Government chosen to move away from them? I fail to understand why they are even changing their position from that of the frameworks agreement that had been in place. Regarding the principles agreed among all the nations, the second paragraph of the agreement on common frameworks states:
“Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore”—
this is the second bullet point—
“maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory, as is afforded by current EU rules”.
So the Government agreed with the devolved nations that the current flexibilities and approach afforded by current EU rules would continue to apply, but this Bill argues that they will not. Given that this has implications for Scotland’s decision on minimum unit pricing or for a live case of the deposit return scheme that has been put in place, there are considerable concerns about why the Government have opted not to include environmental objectives in these restrictions.
I will close with another point on the environmental side. Can the Minister clarify the position on the relevant requirements for environmental aspects, which were formulated before this Bill but have yet to come into force? The Scottish deposit return scheme, which has been legislated for but is due to come into force in 2022, would, on my reading, come within the scope of this legislation. It has been made but is not yet in force. That legislation was fully compliant with the European approach because of the environmental objectives. Is it the Government’s intention that the Scottish deposit return scheme regulations will now be within the scope of this Bill? If not, this is just one example of why there are real difficulties with the Government not following the common-sense approach. The UK operated a single market before joining the EU and during its membership of the EU, and indeed our approach allowed for devolution to be accommodated within it. Why are the Government putting that at risk with their approach to these market principles, which are more restrictive, less certain, more bureaucratic and less clear? Why are they not seeking continuity?
Lord Cormack (Con)
My Lords, in that extraordinary vote on Tuesday last, your Lordships’ House indicated what it felt about the most objectionable part of the Bill, and I hope that we will have a chance to develop those arguments further next week. However, the noble Baroness, Lady Hayter, was right in her opening words to remind us that, although they are the overwhelming matters of concern in the Bill, they are not the only ones. Indeed, I find myself echoing what a number of your Lordships said in last week’s debate: what is the point of this Bill in its present form?
I draw your Lordships’ attention to the very trenchant comments in the devastating report of our Constitution Committee published last week. It indicated the committee’s unanimous real concern on the whole issue of devolution. Way back in the 1970s, I was not an advocate of devolution, and I sometimes think that my fears have come to pass. However, the fact is that we have devolution, and we cannot ignore what we have or we will truly endanger the future of the union, and that we must not do. Therefore, I very much hope that when my noble friend comes to wind up this debate, he will make it quite plain that he has taken on board our Constitution Committee’s comments on devolution.
Baroness Jones of Moulsecoomb (GP) [V]
My Lords, when the Conservative Party came up with its absolutely brilliant slogan about taking back control, many of us, for whom it resonated, felt that it meant that our Parliament would be taking back control. However, over the past year it has become obvious that that is not how the Government see it. In fact, they are using Brexit as an excuse to take more control of the country, which of course is extremely undemocratic. In this Bill, they are trying to seize control from the devolved Governments and Parliaments, and that, as the noble Lord, Lord Cormack, has just said, is extremely unhealthy for the UK. The Bill pretends to replicate what exists in EU law, but it has created a sort of Frankenstein’s monster, which is not at all what any of us were expecting. It is like a legal framework creating a bureaucratic bulldozer that the Government will use to grab more power.
It is obvious that this Government cannot win any seats in Scotland, Northern Ireland or Wales, so they are using this Bill—this bureaucratic bulldozer—to force the elected Governments of the devolved nations to fall in line with Conservative Party policy. These amendments are important because they would stop that undemocratic move. Without them, devolution will be replaced with a sort of lowest-common-denominator system in which the devolved Governments will have to wait for the UK Parliament to take action on any policy or law that relates to the production, distribution and sale of goods and services in the UK before they can take action. That is clearly not what any of us expected. The devolved Parliaments must continue to have the right to make decisions on improving environmental standards and implementing other legitimate policies that will benefit their nations. Your Lordships’ House must amend this Bill and prevent yet another government power grab, and of course protect the rights of the devolved nations.
Lord Inglewood (Non-Afl) [V]
My Lords, now that we are leaving the scope of the single market, the characteristics of the UK internal market become very important; that is why I put my name down to speak to this group and, in particular, to Amendments 2 and 59.
Superficially, it is easy to assume that the UK internal market should, and will, share the principal attributes of the EU single market but, of course, that is far from certain, not least because of the circumstances surrounding it all. After all, the creation of the EU single market was first agreed by member states in an IGC, which is very different from what we are looking at now in this country. The new arrangements have come into being in somewhat different circumstances and across a single territory in which there has been devolution—and within that, the different components clearly have different perspectives.
There is now much less consensus and no prior agreement. In these circumstances, within a devolved as opposed to a federal system, there are potential procedural problems where the UK Government and the English Government—if I might be allowed to call them that—are coterminous. It is not desirable for the repatriation of European competencies to drive a coach and six through the devolution settlement in these islands. For this reason, I believe strongly that Amendment 2 is important to provide a legal framework around the political procedures repatriating these powers. In my view, it is particularly important—I speak as both a unionist and a supporter of the devolution settlements—that England does not emerge as a bully boy imposing its will on the other countries. To do that would be to take the high road to the break-up of the UK.
I also want to touch on Amendment 59, in the context of my chairmanship of the Cumbria local enterprise partnership. As a border region and part of borderlands, any form of potential discrimination—be it direct or indirect, intended or unintended—poses a very real threat to our economy, much of which is focused on both sides of the Solway Firth. Competition law, environmental law and a number of other more general categories of social law are essential components of market economies in our kinds of societies in the 21st century. As a number of speakers have said, there is a real conundrum at the heart of this between local autonomy, which matters, and British cohesion and homogeneity, which also matter. I very much hope that the Minister will spell out exactly how the Government see these things interacting, because, as always, the devil lies in the detail.
Lord Empey (UUP) [V]
My Lords, my concern in this group of amendments and, indeed, with the Bill as a whole is that a fundamental collision is taking place between what is happening in London and what is happening in the regions. I was never struck by the Sewell convention. I believe that we have not properly explained the source of funds to the devolved nations, and I do not believe that any country like ours should leave itself unable to function in certain parts of its own territory. Nevertheless, I believe that we are now paying the price for the haphazard, ill-thought-through lurch to different types of devolution that have been going on over the last 20 years in a virtually unco-ordinated way.
This collision is demonstrated by the fact that we had discussions taking place on the various common frameworks, which have been sort of set to one side and replaced with some of the provisions in the Bill. Probing amendments such as Amendment 2 are important. The Minister and his colleagues have to reassess where they are with all this because there is a pattern emerging—we have devolution and people are now more focused on their local identity. We see this happening in parts of England with the Covid crisis; it is really concerning. Some Members have already expressed their concern about the future of the union as a whole; I very much share that and have done so for some time.
Looking at the best way ahead, while the term “subsidiarity” is European, the general principle that you take decisions at the closest point to the people who are affected by them is a solid and sound way of doing business. There are examples of where the United Kingdom was until relatively recently still a very centralised country compared to some of our European colleagues and other countries around the world.
One other element not mentioned so far is that my own region of Northern Ireland will be subject to different laws on a whole variety of subjects, and it is not entirely clear to me where this will leave us. For nearly all of our economic activity, we will remain to all intents and purposes within the European Union, subject to European and state aid regulations, and there will be a whole, as yet unresolved, customs conundrum as far as our trade is concerned. How all these different measures are to be brought together in a coherent way is entirely unclear to me at this stage. I feel that this probing amendment and others in this group are important because they force the Government to explain to us how this will work in practice.
I accept the concept of common frameworks, in which you get general agreement from the devolved regions. Whether you agree with it or not, this Parliament has given them the power—the fact is that they have it and they are entitled to exercise the functions that have been devolved to them. We should not find ourselves in a situation where ultimately we sow the seeds of further clashes. That would undermine the union and our economy, and I certainly do not want to see that. The Government need to revisit these amendments and this section of the Bill. Unless it is clear and people know where they stand, we will have the sources of further friction built into our legislation—and we have more than enough of those at the moment.
I ask the Minister to address my point specifically: if Northern Ireland is effectively in the EU from an economic point of view, where is the line drawn between functioning under EU laws and regulations and, in the future, such things as market access being involved? I can see circumstances where there could be a significant clash. Procurement is one of the most obvious areas. A lot of small suppliers throughout the United Kingdom have felt that they have been discriminated against because Governments and various authorities have always tended to go to the bigger players. As was pointed out at the beginning of this debate, we could end up with almost the same threshold as we currently have as part of the EU. Will the Minister and his colleagues take seriously the concerns that Members of this House have been expressing about the fundamental clash—the collision—between our devolved settlements and our internal market? To me, that will be the key to making sure that this legislation does good and does not end up doing harm.
Lord Naseby (Con)
My Lords, it is worth reminding ourselves that we are talking about the Committee stage of an internal market Bill. I frankly do not see the relevance of the part of Amendment 1 which talks about the environment. We do of course have environmental laws. They are ever being strengthened and are an important part of our society. What they are not is anything specifically to do with an internal market.
We turn to look at consumers. I am a marketing man by profession. After university, having read economics, I joined the Reckitt and Colman Group as a marketing executive and later a marketing manager, in the UK, India and what is now Sri Lanka. I understand marketing. Marketing is about more than just the consumer. It is about those elements of a market that are all working within it. A whole host of bodies is working there. I share the view of my noble friend Lady Noakes. While the UK was in the EU, which I voted to stay in, we had all sorts of restrictions, some of which were very adverse to industry and commerce in this country—not all by a long way, but some were. We want an internal market where people who manufacture, sell, distribute, research and devise new products can succeed. We want that market there, without the stranglehold of having to agree with half a dozen other nations. That is absolutely key. It is not a simple matter of just worrying about the consumer. I think it was the noble Baroness who opened who spoke about driving competition to the lowest level.
Competition is very healthy but, of course, there must be safeguards. That is why in the Bill there is this new body, the office for the internal market, working alongside the CMA. I criticised the CMA at Second Reading and I believe those criticisms were valid. I want to see this office for the internal market really have teeth and really be able to operate. Reflecting on Second Reading, frankly, it is not right in the Bill to just have a review after five years. We have enough evidence in modern society to recognise that things move much more quickly these days than they ever used to. I put it to the Minister that Her Majesty’s Government should consider a three-year review of that body.
On Amendment 2, it is already part of our public law, so why does it have to be written here—if that is right? It comes later, under Part 5, but we cannot have a situation whereby all parts of the UK can have their own minor arguments on whatever product or service it may be. Then we would end up with everybody having a different viewpoint. That does not seem to me at all sensible. My plea to the Minister is that this is a very exciting time if you are a UK manufacturer, trader, in financial services, in hospitality, in the professions, a retailers or wholesaler, or an online trader. Certainly, in my former constituency of Northampton, they look forward to this internal market.
Lord Fox (LD)
My Lords, if the Ministers shepherding this Bill expected an easy ride, this gives a taste of things to come. It serves a purpose in setting the scene, and a lot of arguments and debates will come in other groups as we go through this process. I shall not labour those points. An overriding sense I got from my noble friend Lord Purvis is that the question everybody wants to know the answer to is: why have Her Majesty’s Government decided to turn away from a process of managing markets that has been extremely successful? It was successful before we joined the European Union and successful afterwards. This is the overriding question that hangs over this whole debate.
On Amendments 1 and 112, if ever we needed convincing that things such as the environment need to be written into the Bill, the speech by the noble Lord, Lord Naseby, convinced me that they do. This is because we cannot take things for granted. Governments come and Governments go, but the law stays, and we need to be sure that our public policy is being directed properly. I uncharacteristically find myself somewhat agreeing with the noble Baroness, Lady Noakes: we have to be careful not to constrain the nature of this Bill. We need to find a way to write in issues such as those of the consumer and the environment. I would add some of the points made by my noble friend Lady Bowles and food safety to that. We need to ensure that there is an assessment of the success of this internal market in some of those areas, including the environment, the effect on consumers, the effect on jobs, et cetera. I share the view of my noble friend Lady Bowles that perhaps more work is needed, but the issue is live and very important. I thank the proposers of the amendment.
Turning to Amendment 2, I do not think proportionality pops up anywhere in other amendments. We had a brief discussion of this extremely important subject from various speakers. I take my lead on this from the noble and learned Lord, Lord Hope, who understands the law, and my noble friend Lady Bowles, who knows a thing or two about regulation. If they are concerned about proportionality, so are we on these Benches. The Government need to find a way of writing that issue into the Bill.
On public procurement, we need to understand what the Government mean by what they seek to do in this legislation. The issue highlighted by my noble friend Lord Purvis is live and real: how will this legislation affect those issues? It is a probing amendment, but for it to work we need answers.
We have started. There are issues we shall return to, but proportionality and public procurement are two on which I hope the Minister will respond at length.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, let me open by thanking noble Lords for their contributions at Second Reading last week. Again, the contributions have demonstrated the tremendous breadth of expertise in this House. This is indeed a crucial piece of legislation. In this respect, I agree with the noble Lord, Lord Fox, and I look forward to providing the scrutiny it deserves and that I am sure it will receive from noble Lords, beginning today and in the days and weeks ahead.
Let me reassure, and to some extent disagree with, my noble friend Lord Cormack, which will not come as a surprise to him. We are not riding roughshod over the devolution settlements. The devolved Administrations will acquire dozens of new powers that they have not exercised before once we leave the EU transition period. The Bill is about ensuring that those powers are exercised in a non-discriminatory manner, but they will acquire new powers and new responsibilities. Before I address the specifics of Amendments 1, 2, 59 and 112, which we are discussing in this first group, I want to remind to noble Lords of why we need this Bill and the context of Part 1.
By opening with the purpose of the Bill, I hope to explain why these four amendments, which seek to alter the Bill’s core principles, are not necessary. The Bill aims to allow the continuing smooth functioning of our UK internal market at the end of the transition period. As we set out in the White Paper, and as I explained at Second Reading, the Bill will establish a market access commitment by enshrining mutual recognition and non-discrimination in law. Part 1 concerns itself with delivering this market access commitment for goods. The principle of mutual recognition is that goods and services from one part of the UK will continue to be recognised across the country. This will ensure the devolved Administrations will benefit from their additional powers and freedoms outside the EU. As the transition period ends, they will gain increased powers, as I said to my noble friend Lord Cormack, to set their own rules and standards across a wide range of policy areas within their competence. At the same time, it provides firm assurance to our businesses that their goods can continue to flow freely throughout the United Kingdom. Non-discrimination ensures that there is continued equal opportunity for companies to trade in the UK, regardless of where in the UK the business is based.
I say to the noble Lord, Lord Empey, that the measures in the Bill will also ensure that Northern Ireland qualifying goods benefit from the market access commitment and receive mutual recognition in the rest of the UK. The Bill will also affirm the principle that those goods are not subject to checks, controls or administrative processes as they move from Northern Ireland to Great Britain. I hope that I can reassure the noble Lord on that point. This means we will fulfil our commitment to legislate for unfettered access, as we promised to the people and businesses of Northern Ireland. This will ensure that businesses and citizens in the United Kingdom can continue to trade freely across the four nations.
With this context in mind, I turn to Amendments 1 and 112 together. These seek respectively to limit the purpose of Part 1 and the Office for the Internal Market’s statutory objective to the protection of the environment and consumer interests. Now, it goes without saying that the protection of the environment and consumers is hugely important, and something that we as a Government are already committed to. The UK, as I never tire of repeating, has some of the highest standards in the world, and we will continue to improve these ahead of others. We remain committed to being at the forefront of environmental protection and a leader in setting ambitious targets to prevent damage to our natural world, building on our already strong environmental record. For example, we have set out a range of new policies in the Environment Bill that are designed to drive up environmental standards in line with the UK’s priorities.
The statutory objective of the Competition and Markets Authority—acting as the Office for the Internal Market—ensures that the office is able to effectively operate as the monitoring body for the internal market, and that there is no confusion between the pre-existing powers of the CMA and those newly conferred on it as the OIM. Distinct objectives will prevent any operationally problematic blurring of functions.
As my noble friend Lady Noakes observed, the office will operate for the benefit of all those with an interest in a smooth-functioning internal market, whether that be regulators, businesses, professionals, the four legislatures or indeed consumers. Explicitly narrowing its focus to consumers would be to the detriment of all the others that I have listed.
Moreover, the functions set out in Part 4 of the Bill clearly establish that the office will consider the economic impacts of regulatory measures on the internal market. Although some of these will of course be environmental protection measures, it will not be authorised to opine on the extent to which these measures safeguard the environment, because this would risk duplicating the role of existing public bodies with a purely environmental focus. As such, given how much the Government are already doing in the area of consumer and environmental protection, I consider that these amendments, which seek to change the purpose of the Bill, are unnecessary, and I hope that I have been able to persuade my noble friend Lady McIntosh and the noble Baroness, Lady Hayter, to withdraw Amendment 1 and not move Amendment 112.
Amendment 2 aims to introduce the principles of proportionality and subsidiarity into the Bill as additional market access principles. These are European law principles. We have now left the EU and are free to organise our internal market in a way that is better suited to the UK’s unique constitutional arrangements and common-law systems. I agree with my noble friend Lady Noakes that the market access principles will protect seamless trade and jobs across all four corners of the United Kingdom following the end of the transition period in December 2020. They have been designed for the UK’s specific devolution arrangements and legal approach, and they already take account of the need for reasonableness and respect for devolution. In contrast, the proposed amendment would muddy the waters with EU concepts that in our view are ill-fitting in the UK. For these reasons, the Government cannot accept this amendment and I hope that noble Lords will not move it.
Amendment 59, on which there was considerable discussion, seeks to disapply the market access principles from the public procurement rules. I assure the noble Baroness, Lady Hayter, and the noble Lords, Lord Purvis and Lord Fox, that the principles proposed in the Bill will not typically operate in the area of public procurement, and indeed that we intend to legislate separately in this area via a wider package of procurement reform, on which we will shortly consult. The market access principles are not relevant to procurement as they are about how business is regulated. The procurement rules cover how public authorities carry out their procurement function. We believe that the risk of divergence can be effectively managed through a combination of close devolved Administration engagement and use of the common frameworks, and we are working to develop a concordat on expected public procurement practices and policies between the four UK nations.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Purvis of Tweed.
Lord Purvis of Tweed (LD)
My Lords, while I am grateful that the Minister has confirmed to me that a piece of legislation that has been made fully compliant with our single market—the deposit return scheme—will now come into scope under this legislation, because it is not yet in force in Scotland, that will be of very significant concern to Members of the Scottish Parliament, who legislated in good faith in a perfectly legal way. This Government have now said that that will come into scope, contrary to the market access principles, because it will not be able to be afforded protection if it is challenged in court because of the lack of environmental objections. I take the Minister’s point that he believes that it will be brought under the scope of market access principles, so I would be grateful if he could write to me to explain how indeed that will happen. If it is under a framework, we are back to exactly where we started, which is that the best approach on all these aspects is a framework.
That leads me to the question that I wish to ask him, because he did reply to the question that I asked about the status of the agreement made between the UK Government and the devolved Administrations on the framework agreement. In the document of September 2020 on the framework analysis, the Government repeated what that agreement was. I will quote from it again for the Minister: it was to
“maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory, as is afforded by current EU rules”.
The document goes on to say:
“These principles continue to guide all discussions between the UK Government and the devolved administrations on common frameworks.”
What is the basis of that document and that commitment, given what the Minister has just said in responding on this group: namely, that that is an ill-fitted set of agreements because we are now out of the EU? What is the status of the agreement that was made over the frameworks?
Lord Callanan (Con)
Well, as I have said before to the noble Lord, we remain completely committed to the framework process and we remain committed to frameworks that have already been agreed—but we see this legislation as complementary to that, as it underpins the entire framework process. As I said to him with regard to the deposit return scheme, if it comes into force when it is predicted to do so, then indeed it will be covered by the market access principles, but we are confident that the deposit return scheme can be brought into effect in full compliance with the market access principles.
Baroness Hayter of Kentish Town (Lab)
I am slightly lost on that, but we will come back to it. I thank the Minister for his response and I am grateful for the very interesting debate that has happened. I will say a few words about what was said by the noble Baronesses, Lady Noakes and Lady Bowles, about the point of competition and why it should be here. I agree with the noble Lord, Lord Naseby, that competition is extremely good for consumers. We want to see a successful economy, and I see no difference whatever in what he was spelling out and what we want to achieve.
The problem, of course, is where, for whatever reason, there is not a perfect market. Although here we are talking about goods rather than financial services, I was involved in the Financial Services Consumer Panel, and even though we had and still have—although Covid is throwing everything out—a thriving financial services market that has been good for the economy, for consumers and for the taxpayer, it has sometimes been, as we know from all the compensation that had to be paid, at the expense of consumers. So we cannot assume, simply because we have a good, thriving economy and lots of competition, that there are not sometimes disadvantages for consumers. That is why it is important, while we want a competitive, thriving market, to make sure that those protections are there. So as we look forward to the internal market being all the things that have been described, it cannot be at the price of consumers.
As I have said, I really support competition—we all used to wear NHS glasses until someone freed up the market, so we are all able to get nice red ones now. I doubt there is anything much between us on that. It is important, though, as we look forward to a market that is going to work for the whole UK, that it is not at the expense of consumers or the environment. I have been buying plants recently, hoping that one day we will have some good weather, but they should not be in peat pots. That is not good for the environment. Something may be good for consumers and at a good price, but you also need to consider the environmental aspect.
Consumers are not just interested in price; they are interested in safety and the longevity of products. However, that is not always something they can see at the point of purchase. Price is very easy for consumers: they can look at it and compare. Other things behind the price are also important. It is important as we look to a new market mechanism that we take that into account. I am sorry to have gone on a bit about this issue but as we will come back to it on Report, it is probably helpful for the Minister to understand. We may not have got the wording quite right: I am not trying to trump the Government but to point out why those elements need to be included.
On the devolution issue, the noble Lord, Lord Empey, is right that there is a clash between the settlements and what we are now trying to do with the internal market; I think he called it a collision between London and the regions. I hear very much what the noble Lord, Lord Cormack, said: that if we get this wrong, we are threatening something much bigger than any of us thought. No Brexiteer wanted to challenge the union; that was not what divided some of us who had divisions on that issue.
We need to look at how we deal with devolution. I was really taken by the example that the noble Lord, Lord Inglewood, gave of the IGC process that led to the single market and other things. I will come on to that way of working when we consider a different group of amendments. The confidence to do things in a shared and consensual way is important. The noble and learned Lord, Lord Hope, said that it would probably be important to put in the Bill retention of the subsidiarity and proportionality principles. They have guided us well and there is no reason why we should lose them, just because we are leaving. I think we will return to that issue.
On procurement, I think the arguments were fairly common between us. I am afraid I was slightly thrown by what the Minister said and will have to read later exactly what he said about separate legislation. Maybe we can exchange correspondence on that issue, and on the timing. Clearly, we will need to come back to procurement to ensure that we have something that will work for all four nations. For the moment—and I am sorry about the length of my response—I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
We now come to the group beginning with Amendment 3. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment or anything else in this group to a Division should make that clear in the debate.
Amendment 3
“( ) This Part only has effect during any time when the United Kingdom is fully in compliance with—(a) the terms regarding the United Kingdom internal market set out in the Northern Ireland Protocol, and(b) the terms of the Good Friday Agreement which are relevant to the United Kingdom internal market.”
Lord Hain (Lab)
My Lords, in moving Amendment 3 I wish also to speak to Amendments 157 and 177, standing in my name and those of the noble Baronesses, Lady Ritchie, Lady Altmann and Lady Suttie, for whose support I am most grateful. I spoke on this Bill at Second Reading and set out my fundamental objections to it then. In particular, along with a clear majority in this House, I totally rejected Part 5, which deliberately and cynically drives a coach and horses through the UK’s respect for the rule of law. Not only that, it drives that same coach and horses through the protections we need for the Good Friday/Belfast agreement that successfully brought an end to most of the Troubles, which had blighted life in Northern Ireland since the 1960s.
In that Second Reading debate and in the Committee stage debate on the Trade Bill, I put on the record of this House the horror and disbelief felt well beyond the shores of this United Kingdom. The most striking reaction was that in the United States, where the current President’s Northern Ireland envoy—his former chief of staff—agreed fundamentally with their rivals in the Democratic party that they cannot do any trade deal with the UK if the UK acts against the Good Friday agreement. That is exactly what is happening here in this Bill. It is a legal document that works against the peace agreement for Northern Ireland. In proposing this, the Government have pulled off a spectacular feat in uniting Republicans and Democrats at a time when they have never been more divided. This, of course, is not a feat but a spectacular own goal, even by the standards of this Prime Minister and this Government.
Since I last spoke, the front-runner in the US presidential election has made his position even clearer, in case people were not listening the first time. I want to add to the record of the House the relevant lines from his policy paper, Joe Biden, Irish-America and Ireland, published on 18 October: Joe Biden
“will support active US engagement to advance the Northern Ireland peace process”
and will ensure that there will be
“no US-UK trade deal if the implementation of Brexit imperils the Good Friday agreement.”
There is nothing subtle here. The front-runner to be President of the United States does not like what he sees as this Government seek to implement Brexit. He is sending a strong warning to us, and we in this House have it in our power, through this Bill, to force the Government to change course.
I am sad to note that the Government’s weak and pathetic defences include the wholly spurious argument that this Bill actually protects the Belfast/Good Friday agreement. Words such as “consent” are thrown about in a misleading way—to put it charitably—in order to create an impression that the purpose of these clauses is to protect all those who brought about the peace agreement. Let us look at all those who did that.
First and foremost, there are the people of Northern Ireland. They voted overwhelmingly for the agreement in 1998 and voted firmly against Brexit in 2016. They went on to vote overwhelmingly for parties opposed to Brexit in last December’s parliamentary election. Secondly, there are the political parties themselves. The majority of parties, representing the majority of the people of Northern Ireland, are opposed to this Bill. Thirdly, the Irish Government, the UK Government’s co-guarantor of our peace process, are opposed to this Bill. Fourthly, the United States, which provided the broker for the agreement in Senator Mitchell and has supported it ever since, is unanimous in its opposition, whatever the result of the forthcoming presidential election. Fifthly, the European Union, which backed up the agreement through PEACE funding and through the openness of the single market, is clear that the Bill is in breach of the Protocol on Ireland/Northern Ireland.
Not one of these groups supports what the Government are attempting through this Bill, so whose consent exactly do the Government think they have? I have been racking my brains to think of anyone, but all I have come up with are the Brexit extremists in the Conservative party and the most Brexit-obsessed end of one political party in Northern Ireland, the DUP—that is it. It has now emerged that both Brexiteer and Unionist-sympathising MPs were, late last year, promised an opportunity to address their concerns about the protocol in order to persuade them to pass the European Union (Withdrawal) Bill into law. It therefore seems most probable that No. 10 always had a step like this in mind, even at the very time of signing the withdrawal agreement. So much for the British Government negotiating in good faith.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, it is a pleasure to follow my noble and honourable friend Lord Hain, who is instructive in this regard as a former Secretary of State for Northern Ireland, and who has quite clearly shown the need for these amendments as safeguards to protect the Good Friday agreement and the withdrawal agreement, with direct reference to the Northern Ireland/Ireland protocol.
As somebody who grew up in Northern Ireland and comes from a democratic nationalist tradition but seeks reconciliation with my unionist neighbours, I am in absolutely no doubt that the Bill as currently drafted in terms of trade could cause innumerable problems for north-south co-operation, east-west co-operation between Ireland and Britain, and internal co-operation in terms of the need to build relations between unionists and nationalists—the very thing that the Belfast/Good Friday agreement, as an international treaty, sought to address.
As the noble Lord, Lord Hain, has referred to, in that regard we had the support of the European Union, underscored by peace funds underscored by the United States of America. It is significant that the front runner and others, such as the US envoy to Northern Ireland, have quite clearly stated that this current Bill, with the fracturing of the agreement and the fracturing of the Northern Ireland protocol, could imperil the Good Friday agreement and imperil those relationships. They would not countenance, at this stage, the Bill remaining in its current form, with particular reference to Part 5 on a trade deal with the UK. That is a particular warning signal from one of the biggest Administrations in our global world.
These amendments focus on the need to ensure that the provisions of the Bill cannot be enacted unless they are compliant with the Good Friday/Belfast agreement and the Northern Ireland protocol—and, as my noble friend Lord Hain said, they do provide that necessary safeguard and protection.
Amendment 3 seeks to ensure that the “UK Market Access: Goods” section—Part 1—will have effect only when the UK is fully compliant with the terms regarding the UK internal market set out in the Northern Ireland protocol and the terms of the Good Friday agreement that are relevant to the UK internal market.
Amendment 157 requests the insertion of a clause specifically about the Good Friday agreement to
“address the unique political circumstances on the island of Ireland … maintain the necessary conditions for continued North-South cooperation … avoid a hard border between Northern Ireland and the Republic of Ireland”—
which is what the Northern Ireland protocol was designed to do, and which is clearly and specifically referred to in the withdrawal agreement that was signed by the Prime Minister last year with the European Union—and
“support, protect or implement the 1998 Good Friday/Belfast Agreement”
in so far as it is relevant to the UK internal market.
Amendment 177 is quite instructive, in that it states in the rubric explanatory section:
“No provisions of this Act come into force unless the United Kingdom is … fully in compliance with … the Northern Ireland Protocol … and … the terms of the Good Friday Agreement which are relevant to the United Kingdom internal market.”
Each of these amendments builds on the others, stressing the importance of the Belfast agreement and the Northern Ireland protocol to British-Irish relations and underscoring the bipartisan approach between Britain and Ireland that I have already referred to. In fact, the protocol stresses the essential elements of strands 2 and 3 of the Belfast agreement in respect of north-south economic co-operation and British-Irish relations. So it is important: we need to utilise the machinery of the Good Friday agreement to develop such relations as the North/South Ministerial Council and the British-Irish Council.
It does sadden me that the Government insist that they are trying to protect the Good Friday agreement. Nothing could be further from the truth, because in actual fact, through this United Kingdom Internal Market Bill, the Government are quite specifically fracturing that agreement and fracturing the withdrawal agreement that they signed up to this time last year.
The European Union Committee report, which was published some 14 days ago, has also been particularly instructive in relation to this issue. The committee states that there has been an “inherent tension” at the heart of the Northern Ireland protocol from the outset, due to the divergent expectations of the two parties: for the Government, it is
“maintaining the territorial integrity of the United Kingdom, and its internal market”
and for the EU it is
“to maintain the integrity of the Single Market and the customs union.”
Originally, the idea was to negotiate, in good faith, a pragmatic compromise, providing proportionate safeguards to protect the 1998 Good Friday agreement in all its dimensions. The Lords European Union Committee argues that, instead, the Bill elevates one element—the integrity of the UK internal market—above the others. That is the danger with this particular Bill.
Baroness Altmann (Con) [V]
My Lords, I have added my name to these amendments, moved so excellently and explained clearly by the noble Lord, Lord Hain, and of course the noble Baroness, Lady Ritchie of Downpatrick. So I will not spend too much time going through the proposals of these particular amendments. I would just like to ask the Minister, from these Benches, why the Government are objecting to these amendments being in the Bill.
I understand that one of the arguments is that they are superfluous or not really required. However, given the clear lack of trust or concerns about some aspects of recent statements, and given that, I assume, the Conservative and Unionist Party is indeed committed to the Good Friday agreement, to no hard border on the island of Ireland and to the terms of the Northern Ireland protocol—on which this Government were so recently elected and which our Prime Minister signed up to—this amendment merely aims to ensure that measures in the Bill are fully compliant with both the Good Friday agreement and the Northern Ireland protocol, which was part of the great deal that the Government negotiated and put to the country. If Part 5 is a negotiating tactic and the Government really do not intend to use it and are aiming to get a deal, or if there is no deal, surely we still need to respect the Good Friday agreement, and our internal market needs to respect the promises made that this Northern Ireland protocol will be part of our future relationship with the EU.
I ask my noble friend to explain why the Government are unwilling to accept these amendments and to confirm that our party wishes to maintain our country’s reputation for upholding the legal agreements that we have reached with other countries in good faith.
Lord Carlile of Berriew (CB) [V]
My Lords, I start by apologising to the noble Baroness, Lady Ritchie, for speaking over her earlier; I had not realised that I had already been unmuted.
The issue of the Northern Ireland protocol is about nothing more nor less than peace and stability in Northern Ireland and peace and security in the United Kingdom. I share the view given with such clarity a moment ago by the noble Baroness, Lady Altmann, that this matter should be explicitly declared in the Bill. There is nothing more important to national security and public safety than the Good Friday agreement. It celebrates the 21st birthday of its effectiveness on 2 December this year. My interest in the Good Friday agreement arose from my time as Independent Reviewer of Terrorism Legislation and the years that followed. I have followed very closely both the sometimes fractious, but surviving, political process in Northern Ireland and the recent history of residual terrorism in Northern Ireland. Although it still exists, it is much reduced and is well understood, now, at least, by the authorities.
The Good Friday agreement has secured the United Kingdom. If you visit Northern Ireland and look at its political and business institutions and public authorities, you will see that it has given them a sense of benefit which is sometimes not matched in other parts of the United Kingdom.
I pay tribute to the political parties in Northern Ireland, some of which were regarded as enemies of the people until the Good Friday agreement—and whose presence at St Andrews caused a good deal of criticism of the then Government—for the way in which they embraced constitutional activity in the political issues of Northern Ireland. I once spent some time with some ex-terrorists who had, by then, become respected politicians. I was hugely impressed by the way in which they embraced those constitutional proprieties, both in Northern Ireland and the Republic of Ireland.
There is no more important issue in the context of Brexit than ensuring that nothing is done to undermine in any way the Good Friday agreement. Everything else fades into unimportance. We must be clear that no sacrifices of the stability that the Good Friday agreement has brought will be made in the name of Brexit.
I will listen with great care to what is said by the noble Lord, Lord True, in replying to this short debate. I hope we will hear unequivocally from him not only that nothing will be allowed to happen that undermines the Good Friday agreement but that the Government are prepared to declare that in the Bill.
Lord Cormack (Con)
My Lords, after that speech from the noble Lord, Lord Carlile of Berriew, I am tempted to say “Amen” and sit down, but I will just add a few words. We will, of course, return to this subject when we debate the crucial Part 5 of the Bill.
All I really want to say to your Lordships is this: the Good Friday agreement is the greatest cross-party agreement since the war. It is the achievement, of course, of the Blair Government, but it is also the achievement of the John Major Government. As Tony Blair himself has admitted on a number of occasions, particularly when we had that great ceremony with the Taoiseach in Westminster Hall shortly after the Good Friday agreement, without the groundwork of John Major, Albert Reynolds and others, this could never have come about.
It would be an act of supreme folly if anything we did in this Parliament endangered the continuity of the Good Friday agreement. It is absolutely crucial that each and every one of us recognises this. In whichever party we sit, or on the Cross Benches, this agreement is our heritage and it is our duty to conserve it. It is nothing to do with whether you are on the Brexit or remainer side; that argument is over. What is not over is the continuing relevance and importance of an island of Ireland without hard borders and the principles and achievements of the Good Friday agreement being maintained.
I had the honour to serve as the chairman of the Select Committee on Northern Ireland in the other place. There were many memorable moments, such as addressing a meeting in Crossmaglen with my committee, which would never have been possible without the agreement, but my most memorable moment is this: being asked by the late Lord Bannside, or Ian Paisley as he was then, if I would be kind enough to have a private meeting with him. This was soon after the joint Executive had come into being, and of course Lord Bannside had not been altogether helpful at the time that the agreement was forged. When I congratulated him on working with Martin McGuinness, he said to me, “I have discovered that Martin McGuinness has a spiritual dimension.” I could have fallen off my chair. When I went to Ian Paisley’s farewell at Hillsborough, attended by the Taoiseach and others, a panegyric—and it was that—was delivered by Martin McGuinness, thanking his friend and mentor. We have come a long way and had some rough passages since then, but I will always remember that as an extraordinary illustration of what a political agreement can achieve. We must not jeopardise that.
I am glad that this was introduced by the noble Lord, Lord Hain—he was himself a notable contributor to all these things and has been since. We must not put this at risk.
Baroness McIntosh of Pickering (Con)
My Lords, it is a pleasure to follow my noble friend Lord Cormack, who has spoken so passionately, as did the noble Lord, Lord Carlile. I, too, also pay tribute to the contribution made by the then Conservative Government at the start of the Good Friday agreement. Speaking on the eve of the US elections, never has it been more timely to remind ourselves of the ongoing importance of that agreement.
Given that I do not think that there will be another opportunity to do so, perhaps I may briefly refer to the original Clause 1(3) which states that the principles set out in that clause
“have no direct legal effect except as provided by this Part.”
If they have no direct effect, presumably statutory instruments will need to be introduced for them to have effect. Will they become directly applicable at the same time in all four constituent parts of the United Kingdom?
I welcome in particular the probing nature of Amendment 3. I shall refer in passing to the evidence that we took in the EU Environment Sub-Committee. I am disappointed by the seeming lack of urgency reflected by the Government in preparing, in particular, farmers, producers, the road haulage industry and other interested parties involved in the production of or associated with agri-food, which of course is a mega business for Northern Ireland. In our letter to the Secretary of State, we concluded:
“We urge the Government to consider the likely impacts on Northern Ireland businesses and consumers of the increased levels of checks and controls that will be required as a consequence if the UK-EU future relationship negotiations are not successful.”
We noted that in his original reply the Secretary of State did not acknowledge the challenging timetable to implement the protocol in this regard. I know that when we come to discuss Part 5, there will be opportunities to consider this in more detail, but Clause 11 already looks at some of the details in Part 1 that relate to this.
I will use this opportunity to ask the Minister to assure us that in parallel with the consideration of this Bill, that what the Secretary of State said in reply to the sub-committee on 7 October, which was that the Government are actively engaging with the Northern Ireland Assembly, along with Northern Irish farmers, producers, hauliers and all those who are involved in the agri-food industry to enable them to be fully prepared to do business on 1 January 2021, is the case. Leading up to July, the evidence we took indicated to the contrary. There had been no direct contact of any specific nature with the Northern Ireland Assembly and certainly not with those interested parties from which we took evidence. Can my noble friend put my mind at rest that this has now moved on and that there have been direct contacts with the Northern Ireland Assembly and with the parties that will be affected in this regard?
Baroness Suttie (LD) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Cormack, and the noble Baroness, Lady McIntosh. Along with the noble Baroness, Lady Altmann, they have shown that there is much agreement about this matter on all sides of the House. The noble Lord, Lord Cormack, always speaks with passion, conviction and experience on matters to do with Northern Ireland, especially on maintaining the progress made since the 1998 agreement. I hope that his wise counsel was listened to by the Government Front Bench today. The noble Lord, Lord Hain, and the noble Baroness, Lady Ritchie, set out very clearly in their powerful speeches why we feel that these amendments are necessary, and I am very glad to have been able to add my name to Amendments 3, 157 and 177. As my noble friend Lord Carlile said so clearly, this is a matter of peace and stability.
I would like to make four points. As the noble Baroness, Lady Ritchie, and the noble Lord, Lord Hain, said, it is frankly staggering that the Government are claiming that they are acting to protect the Good Friday/Belfast agreement through the introduction of this Bill. As has been said by many noble Lords, it is the Government’s own withdrawal agreement and protocol that they are now trying to reverse through measures set out in this Bill. They were either wrong in their assessment of the impact of the withdrawal treaty on the Good Friday/Belfast agreement 10 months ago or they are wrong now. Can the Minister clarify which is the case?
My second point is that ahead of the Brexit negotiations, the European Union carried out an extensive exercise mapping the connections between the Belfast agreement and the single market. Clearly, it is important to recognise that north-south co-operation under strand 2 of the Good Friday/Belfast agreement has moved on extensively since 1998. Can the Minister say whether a similar mapping exercise was carried out by the UK Government on the potential impact on the Good Friday/Belfast agreement ahead of the drafting of this Bill?
My third point concerns the hugely important area of rights, safeguards and equality of opportunity. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland have expressed understandable anxiety about the protection of these rights following the introduction of this Bill. Can the Minister confirm that there will be no reduction in the rights as set out in the Good Friday/Belfast agreement and that the relevant obligations in the withdrawal treaty will be implemented in full? Can he also clarify whether an impact assessment was carried out specifically on the potential impact on rights and equalities?
My final point is about the Good Friday/Belfast agreement itself. We are blessed to have many noble Lords from all sides of the House who were directly involved in negotiating that agreement. We have several former Northern Ireland Secretaries, including the noble Lord, Lord Hain, who I have appreciated working closely with in producing these amendments. As my noble friend Lord Alderdice said in the Second Reading debate on this Bill last Monday:
“Those of us who spent many years of our lives negotiating and implementing that agreement had assumed that if we could find a new future for the people of our islands, we could find a way of maintaining our relationships with the rest of the European Union.—[Official Report, 19/10/20; col. 1357.]
This Bill now puts a very real strain on that relationship with our European partners, not least because of the potential impact on the Good Friday/Belfast agreement. When the Government committed to the Northern Ireland protocol, it was on the understanding that it was to
“be implemented so as to maintain the necessary conditions for continued North-South cooperation, including for possible new arrangements in accordance with the 1998 Agreement”.
Following the introduction of this Bill, do the Government still stand by that commitment?
It is deeply depressing, as the noble Lord, Lord Hain, has said, that Brussels and Washington appear to understand with greater clarity than this Government what is at stake if we start to disrupt the careful checks and balances based on trust and consent that are so essential to the Good Friday/Belfast agreement. That is why these amendments are necessary. We need to have this continuing commitment in the Bill. I look forward to hearing the Minister’s response.
Lord Falconer of Thoroton (Lab)
My Lords, it is a privilege to speak in this important debate. I say straightaway that we on these Benches support the principles that have been outlined by my noble friend Lord Hain, and the noble Baronesses, Lady Ritchie of Downpatrick, Lady Altmann and Lady Suttie, who have all put their names to the amendment. The essence of this amendment is that the Government should commit themselves to doing nothing that breaches the Good Friday agreement.
There is no noble Lord who has spoken in this debate who does not agree that a critical part of the Good Friday agreement is an open border between north and south. No noble Lord does not agree that, if the border is closed, one of the essentials of the peace agreement goes—and that threatens security and lives in Northern Ireland. That view is obviously accepted not just by the Democratic Party in the United States of America but by the Republican Party.
The dilemma the Government faced in reaching a conclusion about how to Brexit was how to keep the border open yet, at the same time, leave the single market while giving the European Union security whereby the border between north and south would not be an open door for goods from the north of Ireland flowing into the single market to the south. The solution reached, which the current Prime Minister said was “brilliant” and which he formally endorsed “strongly”, was that goods in Northern Ireland and those brought into it which were at risk of going to the south would be compliant with the single market regulations—both regulatory requirements and the payment of duty. That would be achieved with checks on goods, in so far as necessary, coming from Great Britain to Northern Ireland. That was a good solution to the problem and was, as I said, adopted by the British Government.
It was also agreed that there would be four protections in the Northern Ireland protocol to ensure that the constitutional arrangements would not create difficulty for the unionist community in the north. First, there would be a joint committee to settle the detailed arrangements. Secondly, there would be an arbitration provision if there was a dispute about whether they went too far one way or the other. Thirdly, Article 16 would allow the British Government to impose their own measures, in accordance with the terms of the Northern Ireland protocol, if they were concerned about a threat to society, the economy or cultural links between the two. Fourthly, there is a provision for democratic consent if the people of Northern Ireland no longer wish to comply with the Northern Ireland protocol.
Those were the arrangements agreed by the UK Government. Now the Government say that we may not continue to comply with the Northern Ireland protocol. They are signalling to the European Union, to the Republic of Ireland and to the United States of America that you cannot rely on us in relation to the provision that keeps the border open. This Government have the impertinence to say that it is the European Union that is threatening the border. If you say, having just entered into an agreement, “We may not continue to agree or comply with it”, then of course the other side is going to think that you are not reliable. As it happens, you also trash our reputation as a country by doing it. You make this Government an absolute laughing-stock. First, Brandon Lewis said that they were breaking the agreement. Then the noble and learned Lord, Lord Keen, said that they were not. Then Brandon Lewis said, “Oh yes we are”. Then the noble and learned Lord resigned because of what Brandon Lewis said. Then Michael Gove said, “Maybe we are; maybe we aren’t”. That is the position of the Government of the United Kingdom, which has a reputation for complying with the law.
Could the Minister explain? First, are we breaking the law or not? Secondly, if we are, why are we doing so—or even threatening to—when we entered into those four protections to ensure that there was no pressure on the border between Northern Ireland and Great Britain? Thirdly, can he give the assurance required by my noble friend Lord Hain, and the noble Baronesses, Lady Ritchie of Downpatrick, Lady Altmann and Lady Suttie? We all require that the Government will do nothing that threatens the Good Friday agreement. Finally, will the Minister explain how it does not threaten an open border to say, as the British Government do, “We may not stand behind the Northern Ireland protocol”?
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, I thank all noble Lords who have spoken, particularly the noble Lord, Lord Hain, the noble Baroness Ritchie of Downpatrick, my noble friend Lady Altmann and the noble Baroness, Lady Suttie, who all signed the amendment. I congratulate the noble Lord, Lord Hain, on the measured and thoughtful way in which he presented his case, and on his ingenuity in getting this amendment in so early in the Bill, so that the Committee can debate this important topic, which is one of the abiding matters of interest in the Bill. I do not demur from sensing the opinions the House has expressed on aspects of the Bill, even if I do not agree with them.
I will and must, as invited, repeat the assurances that the Government gave to the House at Second Reading last week, and will do so again when the Committee turns more fully to the Part 5 clauses. I say again, without demur or cavil, that the Government’s overriding priority has been, and will remain, to protect the Belfast/Good Friday agreement and the gains of the peace process. We agree with all noble Lords who have spoken on that fundamental objective. I assure the noble Baroness, Lady Suttie, that Her Majesty’s Government always give the most careful consideration to the impact of any of their actions in this important respect.
I was asked about the human rights aspect. The Government are, of course, committed to the European Convention on Human Rights. We have made that clear before, time and again. However, we have brought forward amendments to the Bill clarifying that regulations made under clauses which the Committee will discuss later will be subject to judicial review on public law grounds. That will provide an effective remedy in the theoretical and limited scenarios in which regulations might conceivably interfere with convention rights. My noble friend has obviously made the due statement on the European convention on the face of the Bill.
The Government’s commitment to the Belfast/Good Friday agreement and to the peace process is beyond question. We all acknowledge the importance of the delicate balance across communities in Northern Ireland. We should all reflect on the importance of not letting opinions and comment flow which suggest, either within or outside these shores, that this Government, this party, the party opposite or any Member of this House do not believe that this agreement is fundamental. We do. Where we differ is that the Government do not agree with many noble Lords who have spoken that the United Kingdom Internal Market Bill undermines the Belfast agreement. On the contrary, the Bill delivers on our commitment to unfettered access for Northern Ireland businesses to the whole UK market. In so doing, it supports the economic and social links between Northern Ireland and the rest of the United Kingdom. In that way, it complements the provisions of the protocol which avoid a hard border on the island of Ireland. It is, and remains, the Government’s position and policy that there should be no such border. The Bill supports the interlocking and interdependent elements of the Belfast/Good Friday agreement.
The Committee will come back to the questions of the rule of law in detail in Part 5, but I repeat what I said at Second Reading: the Government believe that presenting this Bill to your Lordships’ House, and the fact that it passed through the other House, is in accordance with our constitutional norms and does not infringe the rule of law.
Northern Ireland Peers voted, by a majority, against the amendment moved by the noble and learned Lord, Lord Judge, at Second Reading. That was not every Peer from Northern Ireland and I accept that it reflects differences of opinion. We have to note and respect that. The noble Lords, Lord Kilclooney and Lord Trimble, both of whom negotiated and signed the Belfast/Good Friday agreement, voted against the amendment your Lordships agreed to at Second Reading. I repeat: it is the firm resolve of the Government to maintain, and ensure compliance with, the Belfast/Good Friday agreement, and so I disappoint noble Lords who have spoken. I do not believe that the addition of these amendments to the Bill is necessary.
Turning to the references in Amendments 3 and 177 to the Northern Ireland protocol, again, as I have set out, the Government are committed to implementing the withdrawal agreement and the Northern Ireland protocol and have already taken many practical steps to do this, and continue to do so. I assure the noble and learned Lord, Lord Falconer, and others that we are continuing to work with the EU in the joint committee to resolve outstanding issues arising from the Northern Ireland protocol. Our priority is to secure the outcomes that we need in that forum, working in a spirit of good faith, so that the protocol can be implemented in the pragmatic and proportionate way intended. This is intended to give the best platform for it to command support across the whole community in Northern Ireland. Let me repeat: as a responsible Government, we cannot allow the economic integrity of the UK’s internal market to be compromised inadvertently by certain provisions in the protocol without a safety net in place. The Government have been clear in our statements, including on the criteria set out by the Government on 17 September, that these provisions would, in any case, be used only where, in the Government’s view, there had been a material breach by the EU of duties of good faith or other obligations, and be used in parallel with the dispute resolution procedures that the protocol itself establishes.
These amendments as drafted could remove, prevent or suspend our ability to act in the interests of the people of Northern Ireland, and so ensuring they are treated as our countrymen and countrywomen with equal access to the UK internal market. Furthermore, they could leave core elements of unfettered access—not only the safety net provisions—in a state of consistent uncertainty and open to persistent litigation. It is far from clear how compliance with the Northern Ireland protocol, for the purposes of these amendments, would be assessed or who would make the assessment. For example, it is possible that all the provisions in the Bill could cease to have effect if the EU alleged a breach of the Northern Ireland protocol. Any dispute then would be resolved by the appropriate dispute resolution mechanism, which in some cases would include the jurisdiction of the CJEU. That cannot be the means by which we safeguard the links between Northern Ireland and its most important market, Great Britain, which is the subject of the Bill. That cannot be the means by which we safeguard the interests of Northern Ireland from the end of the transition period and beyond.
I am well aware that we will return to these important matters in great detail later in Committee. At this point, however, I urge noble Lords to withdraw or not move the amendments. Before I do, I refer my noble friend Lady McIntosh to the whole of Clause 1(3), which says, as she quoted:
“Those principles have no direct legal effect except as provided by this Part.”
If she looks at the Bill, she will see that in the rest of that part there are number of provisions for secondary legislation. I apologise for that divergence, but I felt I should answer that point. I return to the fundamental position: this Government are wholly committed to the Belfast agreement, they cannot accept these amendments and I urge the noble Lord to withdraw his amendment.
Lord Hain (Lab)
My Lords, I thank the Minister for his courtesy and all those who have spoken in support of these amendments. I note that a third of the speakers are from the Minister’s own Benches. I think that shows that there is cross-party, cross-Bench support for the principles that these amendments enunciate.
My noble friend Lady Ritchie of Downpatrick spoke with passion about how this Bill, without these protections, imperils the Good Friday agreement. I want to return to that point when I pick up some of the arguments used by the Minister in a moment.
The noble Baroness, Lady Altmann, made a telling point: why are the Government not accepting their own policy? If their policy is, as the Minister states—I accept that in good faith—that the Government support the Good Friday agreement and the Northern Ireland protocol in protecting the Good Friday agreement, why are they not accepting these amendments? If there is some technical issue, and I will return to one of the issues he raised, we could discuss wording and come to an agreement. I ask the Minister to look carefully at what the noble Baroness, Lady Altmann, said about the Government’s own policy being reflected in these amendments. At least, we think it is the Government’s own policy.
The noble Lord, Lord Carlile of Berriew, spoke with great authority because he has spent many years on this. As Secretary of State, I worked with him on this and his review of terrorist legislation, as did the noble Lord, Lord Cormack, who was a distinguished chair of the Northern Ireland Affairs Committee in the other place. He was hugely respected on the island of Ireland for his diligence and the conscientious empathy he showed towards the situation in Northern Ireland.
The noble Baroness, Lady McIntosh, again speaking from the Minister’s own Benches, was compelling on the fact that this should be a cross-party matter. It was, of course, John Major, as she said, who played a crucial role in the lead-up to the Good Friday agreement that enabled Tony Blair to pick up the baton and drive it forward.
Another contributor to this debate, the noble Baroness, Lady Suttie, to whom I am also grateful to for her support for these amendments, speaks with real authority, particularly about what is at stake here. This is not some technical issue; this is about the future of peace in Northern Ireland. My noble and learned friend Lord Falconer, spoke also about the importance of keeping that border absolutely open on the island of Ireland, to take the process of peacemaking forward.
I ask your Lordships’ House to note that the Minister did not explain how the Bill upholds the Good Friday agreement. He asserted it, but he did not explain how it upholds is, especially given that it repeals the Irish Northern Ireland protocol. On Report, I would urge him to explain in great detail—if necessary, in technical detail—how he thinks the Bill actually upholds the Good Friday Agreement. The majority of contributors to this debate—in fact, everybody except him—dispute that. That is the problem that the Government face in setting their face against these amendments.
Unless there is an ulterior motive here, and I am not suggesting that of the Minister personally but of No. 10 Downing Street, I do not understand. If there are concerns about the implementation of the Northern Ireland protocol, there is a committee, as I mentioned in my speech, co-chaired by Michael Gove with a representative of the EU, to iron out the detailed implementation points. It is a joint committee. That makes us all think that there is something much more serious at stake here, which is undermining the whole foundation of the protocol and, indeed, of the Good Friday agreement with which it sits in partnership.
To conclude, this is a series of very modest amendments. They ask the Government to uphold their own professed policy. That is all they are doing. They are not suggesting some revolutionary change in the Government’s policy. They are asking them to uphold their professed policy on the island of Ireland, in particular on continued progress in Northern Ireland. Meanwhile, I will seek leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, we now come to the group consisting of Amendment 4. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anybody wishing to press this Amendment to a Division should make that clear in debate.
Amendment 4
“Purposes of Parts 1, 2, 3 and 4
(1) Parts 1, 2, 3 and 4 promote the continued functioning of the internal market for goods (see Part 1) and services (see Part 2), including the recognition of professional and other qualifications (see Part 3), in the United Kingdom by establishing the United Kingdom market access principles.(2) The United Kingdom market access principles are—(a) the mutual recognition principle for goods and services, and(b) the non-discrimination principle for goods and services.(3) Those principles have no direct legal effect except as provided by Parts 1, 2, 3 and 4, and only to the extent that they have been agreed in a memorandum of understanding by—(a) the Secretary of State,(b) the Welsh Ministers,(c) the Scottish Ministers, and(d) a Northern Ireland department.(4) The Secretary of State must lay before Parliament the memorandum of understanding, which must also set out—(a) how the agreed policy frameworks on the functioning of the internal market in the United Kingdom will operate,(b) any agreed exclusions from the market access principles,(c) proposals for the establishment of a council or councils, comprising representatives of the Secretary of State, the Welsh Ministers, the Scottish Ministers, and a Northern Ireland department to oversee the operation of agreed policy frameworks and the functioning of the internal market in the United Kingdom, and(d) proposals for the establishment of an agreed dispute resolution mechanism relating to the internal market in the United Kingdom for any disputes among the Secretary of State, the Welsh Ministers, the Scottish Ministers, and a Northern Ireland department.(5) A statutory instrument containing regulations under section 56(3) may not appoint a day for the commencement of Parts 1, 2, 3 or 4 until the requirement in subsection (4) is met.”
Lord Fox (LD)
My Lords, as I said in winding up at Second Reading, the eight hours of speeches broke the Bill down into three areas of serious concern: its illegality, its threat to the union, and its structural contradictions. As the noble Baroness, Lady Hayter, said, even if Part 5 is removed one way or another, there will still be great dangers lurking within the Bill. This amendment focuses squarely on putting the threat to devolution on ice.
The Minister was right when he said that the devolved authorities get new powers through the Bill, but these new powers are heavily constrained—more so than they were before when there was EU flexibility. We have heard some of this debate already. More importantly, both Ministers have omitted to mention that, at the same time, the Government are taking significant powers away. These losses are far more significant than any notional gains. This has already been correctly characterised by the devolved authorities as rolling back the devolution settlements.
The Governments of Wales and Scotland need only look over their respective borders to see how the UK Gossvernment are treating their regions and cities—where there is only piecemeal devolution—to conclude that taking power back to the centre is not an accident; it is a pattern of behaviour. As an aside, this is not a unique pattern of behaviour. My Scottish friends tell me that the Scottish Government are very enthusiastic about centralising power away from their local councils.
Returning to the Bill, we should not worry when it comes to Westminster’s reputation in Scotland. I read in the press that Michael Gove is heading up a new unit to tackle the secessionist movement in Scotland. What could go wrong there? Perhaps a better way of dealing with the unpopularity of Westminster is to deal with the central devolution issue in the Bill.
There are many later amendments concerning parts of the problem with the Bill. This amendment seeks to deal with it all in one go, taking it head on. It is driven by a central principle which we on these Benches share. We do not believe that it is only the UK Government or this Parliament that should dictate how the future internal market should work. It has to be a collaborative effort between Westminster, Edinburgh, Cardiff and Belfast. To achieve this, Parts 1 to 4 of the Bill need to be rewritten by consensus, not imposed, which is why this amendment seeks to halt the progress of Parts 1 to 4 until a joint process has created the future market structure. In essence, it will put on ice the Bill’s implementation until agreement is reached on the operation of the internal market frameworks.
In order to do this, the amendment rewrites the purpose of the Bill. What stays is the promotion of the continued functioning of the internal market for goods, in Part 1, and services, in Part 2. It includes the recognition of professional and other qualifications in the UK—in Part 3—by establishing the UK market access principles, including, as now, the mutual recognition and non-discrimination principles for goods and services. It adds the important rider that those principles have to be agreed in a memorandum by the Secretary of State, the Welsh and Scottish Ministers and a Northern Ireland department. This memorandum would cover how the agreed policy frameworks on the functioning of the internal market in the United Kingdom would operate and any agreed exclusions from market access principles. It would establish a council or councils, comprising representatives of the Secretary of State, the Welsh and Scottish Ministers and a Northern Ireland department to oversee the operation of the agreed policy frameworks and the functioning of the internal market in the United Kingdom. The current Joint Ministerial Council would need to be strengthened to achieve this objective.
The amendment would also establish an agreed dispute resolution mechanism, relating to the internal market of the United Kingdom. It requires the Secretary of State to lay this memorandum before Parliament. In short, this amendment makes the Government do what it should already have done. Amendment 4 requires them to consult and reach agreement with the devolved nations of the United Kingdom. By pausing and putting this on ice, Her Majesty’s Government can then create the consensus that is needed. It can also address the holes in the Bill, including the role of the common frameworks, which will be discussed in much more detail later, and it can put in place a process of dispute resolution. The deliberate absence of detail around dispute resolution can be viewed with great suspicion by those who are so minded. It seems that in the end, the Westminster-based UK Minister will decide disputes if the Bill remains unamended.
Why should the Government agree to this amendment? The first reason is due process. I met the noble Lord, Lord Callanan, on Friday. His key anxiety was about discipline and time in order to get through all this. If he were to accept this amendment, he would, at a stroke, remove large portions of the subsequent debate up to, but not including, Part 5 of this Bill. He would then meet his time objectives. Much more seriously, by accepting this amendment, the Government could step back from a truly appalling act of political vandalism. To say that this Bill drives a coach and horses through devolution is not hyperbole. This cynical approach to the balance of powers established between Westminster and Scotland, Wales and Northern Ireland, is calling down issues that, once started, will not easily be halted. This amendment seeks to avert this disaster, creating a role for the devolved authorities, including the operation of the internal market frameworks, robust dispute resolution, agreed exclusions from market access principles and representation for all four nations on oversight councils. I beg to move.
Baroness Neville-Rolfe (Con) [V]
My Lords, I refer to my interests in the register as this is the first time I have had the honour of speaking in Committee. Amendment 4 introduces an expanded purpose for the Bill. The noble Lord, Lord Fox, has explained the rationale for his wide-ranging proposal. I can understand his wish to refer to services at this introductory point in the Bill, given that they comprise over 80% of GDP, and to professional and other qualifications, harmony on which is so important to the UK’s single market.
I accept that the changes to subsections (1) and (2) merit consideration. However, I am very uneasy about the proposed new subsections (3) and (4). I fear that they make this a wrecking clause. They give the devolved Administrations a veto over the way internal market arrangements will work, in addition to the substantial powers and money that they have already been given in the various devolution settlements and EU exit Bills. This is a recipe for the politics of national resentment, chaos and delay, at a time when we need rapid agreement on the new order so that the country can move forward and make the EU exit work, difficult though this may be.
Resources are already massively redistributed out of London and the south-east to other parts of the UK, with Scotland alone having a fiscal deficit of £15 billion—namely, a subsidy from richer England—according to a recent article by David Gauke, who served in the Treasury for seven years. We do not want yet another stand-off at this moment in time with the devolved nations, able to hold things up. There has been quite enough of such delay in the exit negotiation process, now more than four years long, I remind noble Lords.
Where I have more sympathy with the noble Lords, Lord Fox and Lord Purvis of Tweed, is on the fact that we need clarity now, before the Bill takes effect. Perhaps I can explain why by way of analogy.
When I was at Tesco, one of the key reasons for success was a clear understanding of who had responsibility for what and a readiness to accept the rules for the greater good. Procurement was done centrally by buyers, who could work with the supply chain, such as British food producers, understand their needs, strengths and innovations, agree a reasonable deal and ship goods to the stores in line with customer demand. When it came to other areas, such as who to hire as employees and how to schedule their hours, that was locally determined. The key was that everyone knew and accepted the division of labour because it contributed to the success of the whole. There was no council where everyone could waste hour after hour arguing the toss, as appears to be proposed in this amendment.
Let us have clear divisions and let us decide them now, not leave them for a great fight over a memorandum of understanding or yet more devolved government bodies backed up by dispute resolution. That is just an invitation to politically motivated folk to stop the country adjusting to the new norms and getting ahead with economic recovery and international ambition.
The proposals in the Bill are a good start, and, as noble Lords can see, I am uneasy about this particular amendment. I served for nearly three years as the single market Minister in the EU and for years as a British official negotiating in Brussels and Luxembourg, and the truth is that, subject to some minor subsidiarity, internal market rules for goods were set at the EU level in the interests of the efficient functioning of the market. By analogy, rules for the UK single market should be set at the UK level. EU services were less streamlined, but we all recognised that and wanted to bring about improvement, which was one of the main objectives of the UK presidency in 2017, but that never happened. I look forward to hearing from my noble friend the Minister, but I will take a lot of convincing that subsections (3) and (4) make sense.
Lord Morris of Aberavon (Lab) [V]
My Lords, I fear I must disagree with the noble Baroness, Lady Neville-Rolfe. I support this amendment. The House will be aware of my approach as a devolutionist, and I will not repeat my general views. However, for my part, the key is subsections (3) and (4) of Amendment 4 on what should be contained in a very necessary and vital memorandum of understanding.
At Second Reading, I raised the divergence in understanding between the Welsh Government and Whitehall. The Welsh Government spelled out that they were losers from the Bill—their powers would be changed. There were two particular differences in understanding between HMG and the Welsh Government. First, they said that the Bill takes powers to spend money over the heads of devolved Ministers on devolved matters; and, secondly, that the Bill amends the Government of Wales Act to add the decision on and operation of state aid policy to the list of reserved powers. In the factual briefing on the Bill, the Government actually claim that they are increasing the powers of the devolved legislatures. Indeed, in the discussion on the previous amendment, the Minister claimed again that new powers were being given to the devolved legislatures. They cannot both be right. A recent meeting of Peers with the Welsh Secretary failed miserably to clarify the position. I now specifically ask for the Government to publish a reply to the Welsh Government’s document on their concerns about the Bill.
Baroness Randerson (LD) [V]
My Lords, I regret that I was unable to take part at Second Reading, but that does not mean that I am not deeply concerned—[Inaudible.]
The Deputy Chairman of Committees (Lord Alderdice) (LD)
We seem to have a technical problem.
Baroness Randerson (LD) [V]
[Inaudible]—needed at all, certainly at this stage. The earlier parts of the Bill, which deal with the establishment of new rules to maintain the internal market now that we have left the EU, have received much less publicity than Part 5. However, these parts are just as constitutionally significant because, under the cover of Brexit, the Government are attempting to slip through the unravelling of devolution. They have claimed that this Bill will increase the powers of the devolved Administrations, which is akin to President Trump claiming that the virus is waning in the USA: the facts demonstrate its falsity, as the clauses in this Bill demonstrate multiple ways in which it undermines current devolved powers.
The UK’s internal market appears to function perfectly well at the moment. The barriers cited by the Government as the reason for this Bill are hypothetical and unlikely to materialise because they are clearly against the interests of the devolved Administrations. There is no clamour to diverge from existing standards set by the EU because they are both high and universally recognised. Therefore, taking the Bill at face value, it seeks to solve a problem that does not exist, but that judgment is rather too kind because the details betray the Government’s real purpose.
Until now, devolution in the UK has functioned under the umbrella of EU legislation. Most of the fundamental devolved powers have operated in that way, and EU regulation has been accepted with noticeably little argument because it operates on such a large scale that there is little perception of party-political bias. The new arrangements set out in this Bill will be very different. Obviously, England will dominate, come what may, but the Government are not content with relying on size alone. This Bill steals all the remaining cards from the devolved nations.
We have a ragged devolution settlement—lopsided, confused, and already under huge strain. Leaving the EU has destabilised it further. Because there is no proper devolution in England, UK Government Ministers are effectively hybrid Ministers. One minute they are acting as Ministers for England and the next they are UK Ministers. Indeed, in some cases, such as agriculture, the Secretary of State is largely just the Minister for England, so it is essential that there is a strong dispute resolution mechanism: there will be problems if that fell back on the Secretary of State alone. This Bill itself will become a protected enactment, which devolved Administrations cannot repeal or modify. However, the UK Parliament will, in practice, be able to override the market access principles when legislating for England. Hence it will have an inherently asymmetrical effect.
Looking at how the market access principles will be enforced, we see a much tighter definition than allowed under EU law. It narrows the territorial scope of devolved legislation, which will no longer be able to apply to all activity within that nation. The Senedd could still vote to ban a wide range of single-use plastic items, for example, but that ban could no longer be applied to products entering Wales from the rest of the UK, nor could it ban sales of those goods. Such a ban would therefore be pretty meaningless. Amendment 4 applies the Government’s own market access principles, but with a framework of respect for the decisions and views of the devolved nations. With all due respect to the noble Baroness, Lady Neville-Rolfe, the UK is not a supermarket. The nations of the UK have individual and proud heritages and identities.
The Government’s regulatory impact assessment recognises that the broad application of the market access principles will limit the ability of the devolved Administrations to introduce distinct approaches to environmental and social policy, which will of course undermine the fundamental purpose of devolution. In the interests of centralisation of power, the Government are attacking innovation. The freedom provided by devolution has encouraged new approaches, such as plastic bag pricing, in Wales and minimum alcohol unit pricing in Scotland and Wales. There is an insidious pattern in many of the controls in the Bill. It allows the status quo to stand in some instances, but removes the right of devolved Administrations to change regulations in the future. This looks like the path to a stagnating economy.
Amendment 4 seeks to strengthen the hand of the devolved Administrations so that their voice can be heard. It replaces the very weak duty to consult with a much stronger principle of consent. That would force the Government to return to a normal approach of partnership and respect. The Bill scythes its way through devolved powers, and the amendment attempts to tackle some of that. The Government have lately reminded me of a drunk in a bar, who swaggers around aggressively challenging the other customers over imagined insults and picking unnecessary fights. This really is an unnecessary fight with the devolved Administrations. Devolution was always incomplete and uneven, and UK identity has been stretched pretty thin recently. Throughout the Bill there is a thread seeking to reverse devolution and recentralise the state, and this Government simply must not be allowed to get away with it.
Lord Dunlop (Con) [V]
My Lords, I want to comment on some of the issues raised by the amendment. It is useful in that, so far as this Bill is concerned, it draws attention to—if I may put it this way—the dog that did not bark. The dog in this case is the agreement reached at the Joint Ministerial Committee in October 2017, between the UK Government, the Scottish and Welsh Governments and the senior civil servant representing the Northern Ireland Executive, on the principles to guide the work on common frameworks. There will be an opportunity to debate in more detail how common frameworks intersect with the Bill’s provisions in the next group of amendments, but looking at the JMC principles is a good starting point.
In its report on the Bill, your Lordships’ Constitution Committee, of which I am a member, concluded:
“We consider that adhering to the principles agreed for formulating common frameworks would improve the likelihood of reaching agreement on how to progress the Bill. We are not convinced that the opportunities for managing the UK internal market through the common frameworks have been exhausted”.
The JMC principles embody what can reasonably be assumed to be core UK Government concerns: the effective functioning of the UK internal market; compliance with international obligations; the ability to negotiate, enter into and implement new trade and international agreements; the management of common resources; and cross-border justice and security. They also address those issues likely to be of most concern to the devolved Administrations: respect for the devolution settlements; devolved competence not normally adjusted without consent; and equivalent flexibility for local tailoring of policies as is afforded by current EU rules, as we have heard.
One of the witnesses from whom the Constitution Committee took evidence— Professor Nicola McEwen from Edinburgh University—contrasted the approach adopted for common frameworks, which she characterised as a co-operative and co-owned process, with the provisions of the Bill, which she described as more top-down. It is fair challenge to wonder whether a top-down approach might be necessary because one of the participants in the common frameworks negotiations is often seen as provocative and difficult to deal with, and of course committed to the break-up of the United Kingdom. The introduction this summer in the Scottish Parliament of a second continuity Bill, designed to give Scottish Ministers powers to maintain dynamic alignment with the EU, might well have been seen by the UK Government in this light. However, I would make three observations about this:
First, the Welsh Government, who, unlike the Scottish Government, gave their legislative consent to the European Union (Withdrawal) Act 2018, are a unionist Government but nevertheless as concerned as the Scottish Government about the implications of the internal market Bill for devolution. Secondly, we have now had eight of the statutory quarterly common frameworks reports from the UK Government mandated by the 2018 Act. Each has confirmed that common frameworks are making progress and that the Government have not felt the need to exercise their power to freeze devolved competence to counter any imminent risk of policy or regulatory divergence. Thirdly, even at a time when relations between the UK Government and the Scottish Government are at a low ebb, and the Scottish Government initially insisted that they would withhold legislative consent as a matter of principle for all Brexit-related Bills, the Scottish Government have in recent months recommended legislative consent—albeit with some qualifications—to the Fisheries, Agriculture and Trade Bills.
In conclusion, the amendment in the names of the noble Lords, Lord Fox and Lord Purvis, seeks to inject into the Bill the spirit of the JMC principles—here I am concerned more by its spirit than its precise terms—and to provide a more co-operative intergovernmental architecture for taking forward the UK internal market, which is currently missing from the Bill. I therefore hope that Ministers—despite the challenges, which I do not underestimate—will not give way to pessimism about the governance of the union, nor give up on a collaborative “four nations, one country” approach to protecting free trade within the UK. As such, I hope they will work constructively to address the concerns raised about the Bill during this debate.
Lord Bruce of Bennachie (LD) [V]
My Lords, I am delighted to follow the noble Lord, Lord Dunlop. That was a thoughtful contribution, and I hope the Government will reflect on it, because it is in the interests of both the Government and the future of the United Kingdom that that kind of approach is thought through.
I speak in support of the amendment, which I contend is a constructive approach to maintaining trust in the existing devolution settlements, which are strained, and establishing a consensual way forward. I believe it is consistent with the report of this House’s Constitution Committee, which, along with others, has questioned the need for the Bill at all—a point that has been mentioned by a number of speakers. Very late in the day, it appears that some in this Government show signs of a growing awareness of the dangerous game they are playing with the devolution settlements and the implications for the future of the United Kingdom. The question arises why the Government are in such a hurry to get this through with totally inadequate consultation with business or the devolved Administrations. The Minister’s claims of business support during Second Reading was, frankly, extremely thin.
The devolved Administrations are, as has been said, opposed to the Bill as it stands, and amendments have been tabled on their behalf on a cross-party basis. When challenged as to why the powers in the Bill are needed, the Government’s responses are wholly unconvincing. From everything I have seen and heard, the Bill appears to be a solution looking for a problem. When Ministers airily suggest, for example, that Scotch whisky distillers may be prevented from buying malting barley from England, without any shred of evidence, they refer to different building standards, apparently in ignorance of the fact that Scotland has different standards that well predate devolution.
Given the flimsiness of the Government’s case and knowing what we do about the high-handed, centralising, cavalier approach of the Government, we are surely entitled to be suspicious about their intentions. After all, as the noble Lord, Lord Dunlop, pointed out, three years ago it was possible to set out in a communique the principles and approach behind the common frameworks process. The language is detailed and consensual. Specifically, the communique setting out the common frameworks describes the objective as enabling the function of the UK internal market while acknowledging policy divergence. It further stated that the devolution settlement should be respected and frameworks will
“be based on the established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent.”
This approach and language are entirely missing from the Bill, so the question to the Minister is not only why the Bill is needed, but, even if that case can be made, why the hurry? More pertinently, having rejected letting common frameworks take all the strain, can the Minister explain why the eminently sensible and constructive approach of the common frameworks is not incorporated into the Bill, as I hope subsequent amendments will allow it to be? We will return to that.
That said, there remains a flaw in the common frameworks approach, which must be addressed and attached to the Bill if it goes forward, and it is identified in this amendment. It is that the devolved Administrations must be fully involved throughout the process and represented in the institutions that progress the frameworks. The proposals for the office for the internal market to be incorporated into the Competition and Markets Authority has been widely criticised. First, the CMA has a dedicated and reserved function, and there is no provision for the devolved Administrations to be represented, but they surely must be represented on the OIM or a better alternative.
As has again been commented on, so far, the common frameworks are progressing with all the appearance of a high degree of consensus and the dispute mechanism has not been called into play. It might be thought that, given the constructive, consensual approach to date, the likelihood is that if dispute resolution reached the apex, it would be accepted. However, it would not be satisfactory as it stands, and certainly not fit for purpose in relation to this Bill. The weakness is that as a dispute escalates, first to Ministers of the devolved Administrations, which includes UK Ministers acting for England, the final resolution lies with UK Ministers. The noble Baroness, Lady Neville-Rolfe, was concerned that the devolved Administrations might be the cause of delay, but I fear she underestimates the resentment of UK English Ministers overruling the devolved territories. That, I suspect, sadly helps explain the rather smug responses from UK Ministers: devolved Administrations may huff and puff, but UK Ministers can blow their houses down.
The Government have quoted examples from abroad to justify their approach but, ironically, they are mostly drawn from countries with properly established federal constitutions, notably Australia and Canada, where state and provincial governments’ views are fully involved in decision-making. In the case of Australia, a two-thirds qualified majority is required.
According to weekend reports, Michael Gove is establishing a unit to combat the SNP and its pressure for independence. I certainly believe that the largely unchallenged fantasy and lies which are fuelling the case for independence that would be so disruptive and damaging on a disastrous scale on top of Brexit and post-Covid recovery need to be challenged, but Mr Gove should have enlightened his colleagues that in its present form, the Bill will make his task almost impossible. Amendment 4 would greatly help him by delaying implementation of Parts 1 to 4 until an agreed approach is confirmed.
As the party with the deepest commitment of any to home rule—we battled for it for over a century—Liberal Democrats are determined to protect the devolution settlement against a centralising government in London and the separatist thrust of the SNP. Scotland’s best interests lie in using the powers that have been secured, ensuring they are not eroded and gaining a positive relationship with the other devolved Administrations and the UK Government. As we rebuild after a botched Brexit and a mishandled Covid-19 crisis, businesses do not need further disruption over constitutional arguments.
With the mechanisms in place and goodwill to seek the best for Scotland, the devolved territories and the UK, confidence can be restored. Ideally, the Government should abandon this Bill, which is at best premature and probably unnecessary but, so long as they push ahead, Liberal Democrats will push to secure this responsible and constructive amendment and save us from an unwanted and unnecessary constitutional crisis. Surely we have had enough disruption for one year—or even 10.
Lord Purvis of Tweed (LD)
My Lords, it is a pleasure to follow my noble friend. Amendment 4 was ably moved by my noble friend Lord Fox, and I want to outline some further considerations based on principles and on practical considerations.
I start by reflecting on the important contribution of the noble Lord, Lord Dunlop. I first met the noble Lord when he was the adviser to Prime Minister David Cameron in Downing Street and I was chair of the cross-party Devo Plus group in Scotland, which was arguing for enhanced powers for the Scottish Parliament, which subsequently came into legislation with the Scotland Act 2016. The noble Lord considered our proposals carefully, he has been a very thoughtful contributor to our debates and I look forward to the conclusions of his review on intergovernmental relations. The fact that he has asked for a degree of pause on what could be considered a constitutional rush is important and should be taken seriously. If despite his wise counsel and the thrust of the amendment—which has been tabled sincerely—the Government insist on moving forward on their current trajectory and in their current manner, it will be the first time in a quarter of a century that a major constitutional change will have been imposed on the nations without any form of public or parliamentary consent. That will not serve the start of a new functioning internal market well. The principle of consent is therefore not a theoretical argument; it is important at the political level for those of us who believe strongly in the continued functioning of the United Kingdom and its internal market.
That is in stark contrast with the following groups that we will be considering, where, as the Minister has heard, the frameworks process has been good and we have supported it. The fact that it has been supported across all parties and, indeed, the nations is important.
I reflected on the point indicated by the noble Baroness, Lady Neville-Rolfe, which is that we need the Bill to prevent a veto by one of the nations. That argument would have some form of justification if we had seen that approach within the common frameworks. They cover the policy areas that are being repatriated: 154 of them, of which only four remain where there is not agreement whether they are reserved or devolved. Two of them will be resolved only after we know what is the agreement with the European Union, because they concern geographical indications and state aid—we don’t know what the Government’s proposals are for those two areas because we don’t know what the agreement with the European Union is. That will leave only two. For the 18 that require legislation, it is well under way to being proposed.
So it is not the case that there will be a major gap on the statute book at the beginning of January, and nor is it the case that any of the nations that are in receipt of these powers are seeking to exercise their veto. What those nations are asking, justifiably, is whether the powers being repatriated under the Bill—not the frameworks—are being constrained in a manner that is significantly different from how they were exercised under the single market in the European Union? These are justifiable concerns. So, with the greatest respect, I do not think that the point made by the noble Baroness, Lady Neville-Rolfe, holds any water at all.
It is of concern that in the first group the Minister was not able to categorically reinforce what has been referred to so far, which was the agreement made among the Ministers of Wales, Scotland and the United Kingdom and the representative from Northern Ireland of the principles of moving forward on the framework agreement. I hope that, when the Minister responds to this, he will be more clear in supporting that. If the approach of this amendment had been followed from the outset, I believe that we would have been able to secure consensus, because it would have been consistent with the manner in which we have been approaching it so far.
The point that my noble friend Lady Randerson indicated, which I thought was a very powerful one and which I hope the Minister is not only aware of but very sensitive to, is that this Bill, probably more than most, brings into stark reality the fact that we do not have a federal Government, which means that there are not designated Ministers for England on devolved areas for England. So we will continue to have UK Ministers who will be operating both at a UK level and effectively as Ministers for England. When it comes to areas of the functioning of the internal market, which is about the four nations, and then separately a consideration at the supra-United Kingdom level, the direct conflict of interest that exists in a Minister making the decision in the interests of England, and thus being the arbiter of the approach of Wales or Scotland as to whether they are in breach of the market principles, is a very valid concern.
We have already heard the example of a decision made on legislation in Scotland, the deposit return scheme, where the Minister himself said in the debate on the first group that, under the Bill, it could be disapplied unless UK Ministers decided that it could be within the principles. Now UK Ministers will decide on that. The Minister is shaking his head. If he is shaking his head, it is on the basis of agreement—which is my point. Consensus would be secured on agreement for that.
What is certainly the case—and the Minister cannot shake his head at this—is that the Bill states that decisions made for England by the UK Parliament cannot be bound by any successor UK Parliament. But if decisions made in Scotland or Wales are overridden by the UK Parliament, those parliaments themselves cannot subsequently legislate within those areas. That is why paragraph 88 of the Constitution Committee report asked the Government to
“explain why clause 6 treats legislation intended for England differently from that passed by the devolved legislatures.”
This is the reality—which is why there is justifiable concern. If there is such a concern, what is a better way of approaching it? A better way, as my noble friend Lord Fox and others indicated, would be to look to other countries.
Before I move on to outlining why I think we could look at international precedents, I would like to pick up a further point regarding dispute resolution. My noble friend Lord Fox and I met the Minister and the noble Lord, Lord True, and I am very grateful to the Minister for sending a long letter answering the points that we raised in the question that we asked about when these issues would inevitably arise in disputes. The Minister’s reply of 13 October was very interesting. He said that
“dispute resolution between Administrations will be managed through the appropriate intergovernmental relations fora and are interlinked with the outcomes of the review of intergovernmental relations which is due to conclude in the autumn. The Office for the Internal Market will have a role in providing independent advice in the dispute resolution process.”
Lord Naseby (Con)
My Lords, I shall resist the temptation to follow the noble Lord, Lord Purvis, in what he has said. However, I reflect that in the other place I was responsible for, and chaired most of, the Maastricht Bill, with 500 amendments and 24 days of debate. Even there, I think that I would have been really stretched to have enabled what is labelled here as a new clause to be put into the purpose of Part 1 on an introductory basis.
I understand the feelings of Scotland, Wales and Northern Ireland. I had the privilege of being Parliamentary Private Secretary in Northern Ireland, and I was a local government leader. Of course they feel strongly, as I do about local authorities and the Covid situation. Nevertheless, it is quite clear that the purpose of Part 1 is
“the continued functioning of the internal market for goods in the United Kingdom by establishing the United Kingdom market access principles.”
It then lists what the mutual recognition and non-discrimination principles should be.
If the Opposition and those who do not like what is in Part 1 want to make a point, there is a case for having a small amendment including just the words “and services”. I see merit in that because, as I said earlier, that seems to have some validity, but to suggest in the introductory part, under “Purpose of Part 1”, that we have to await a statutory instrument
“containing regulations under section 56(3)”,
et cetera, is extraordinary. I cannot believe that there have ever been many Bills where that sort of new clause has been inserted into the introductory part.
Therefore, I say to my noble friend on the Front Bench that there are valid questions arising from this alleged new clause to be asked in the right place, but this is certainly not the right place in this Bill.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, as the noble Lord, Lord Dunlop, said, this debate is a sort of appetiser for the main course to come in later groups, when we will dig much deeper into the right approach to ensuring that our current well-functioning internal market continues after the transition period ends and that we can manage the necessary and inevitable policy divergences that we need across the United Kingdom and should welcome.
The noble Lord, Lord Bruce, said that the key questions are why we need the Bill at all, let alone now, why the Government are ignoring the evident successes of the co-operation and constructive progress which have been hallmarks of the common framework programme, why threaten the devolution settlement so directly, and what it is about the top-down approach that the Government wish to introduce that is so attractive, given the huge risks to devolution. Those are very important questions and I look forward to hearing what the Minister says when he comes to respond.
The noble Baroness, Lady Neville-Rolfe, said that she recognised the value of proposed new subsections (1) and (2) in the amendment but was worried that proposed new subsections (3) and (4) made it a wrecking amendment. I do not think that it is. Indeed, I make the same points about the need for a pause before we implement in my Amendment 178, which is in a later group.
I hope that the Government will think very hard about the clear message that seems to come from this debate. We need to carry on down the road well travelled in recent years, encouraging the devolved Administrations to continue to collaborate, to work together with mutual understanding until agreement is reached, and then to go further so that there is agreement on all the issues that need to be agreed and a way of resolving any issues that are left over. This is the way in which we make progress—not by imposing a top-down solution. Indeed, anything else risks destroying the complex but pretty successful devolution settlement that we currently enjoy.
Lord Callanan (Con)
My Lords, Amendment 4, tabled by the noble Lords, Lord Fox and Lord Purvis, would prevent the market access principles applying by the end of the transition period. As my noble friend Lady Neville-Rolfe pointed out, that would produce a considerable delay in providing certainty to businesses that free trade can continue within the UK’s internal market.
I heard the noble Lord, Lord Bruce, query my assertion at Second Reading about business support for these measures, but over 270 businesses and organisations responded to the public consultation on our proposals and, overwhelmingly, businesses supported our approach. Particularly as they look to recover from the impacts of Covid-19, businesses need certainty, and that is what this Bill, as drafted, seeks to provide.
I repeat that the aim of the Bill is to ensure that there are no internal barriers to trade within the UK, while respecting the devolution policies. All devolved policy areas will stay devolved. The proposals ensure only that no new barriers to UK internal trade are created. The Bill aims only to procure frictionless trade, movement and investment between all nations of the UK. The policies that different parts of the UK choose to pursue in the future is a matter for those Administrations. The Bill ensures that these local policies can be pursued while, at the same time, maintaining seamless trade in the UK internal market.
The noble Lord, Lord Bruce, asked me specifically about barley, and indeed the noble Lord, Lord Purvis, has written to me on the same subject. We believe that this provides a good example of the risks that businesses could be exposed to. Food produce placed on the market must comply with rules on pesticide maximum residue levels. These are currently set at EU level, and so are consistent across the United Kingdom, meaning that food can be traded across the devolved Administrations. This is an example of a policy area which will be devolved after 1 January. At the moment, all Administrations are supported by the same regulator—the Health and Safety Executive. That will, to a certain extent, aid consistency, and we are of course committed to working closely with the devolved Administrations to jointly agree consistent maximum residue levels across Great Britain.
However, without the Bill’s mutual recognition provisions, there would be the possibility of divergent decisions being taken, which would then introduce new trade barriers on food between different parts of our country. Depending on any particular decision, this could affect any agricultural or horticultural produce that has been previously treated with pesticides. For example, different residue rules might mean that it is not lawful to sell in Scotland barley grown in England.
More broadly, without the principles set out in the Bill, harmful divergence would be possible, in spite of the important protection provided by industry standards. That is because industry standards are voluntarily agreed between private economic actors and so cannot provide the same certainty for businesses and investors as the legislative principles set out in the Bill.
The consent process proposed in the amendment would remove that certainty and make operating conditions for businesses across the UK dependent on a number of fairly onerous conditions. These conditions include matters that would cut across ongoing collaborative work with the devolved Administrations. I say to the noble Lord, Lord Bruce, that these include the common frameworks programme and the intergovernmental relations review, both of which the Government are fully committed to pursuing. Indeed, in the next group, we will examine the common frameworks principles in more detail, and my noble friend Lord True will explain our position in more detail.
However, I assure noble Lords that the Government have already committed to appropriate consultation with the devolved Administrations on these matters. Furthermore, we are engaging them in all suggestions for how practically to improve intergovernmental relations, including both the machinery, such as dispute resolution, and the way in which these joint forums are run.
The noble Lords, Lord Fox and Lord Purvis, asked a question about dispute resolution. I can tell them both that the office for the internal market will support existing arrangements for dispute resolution. Its non-binding reporting will ensure that evidence-based dispute resolution takes place in line with the current memorandum of understanding on devolution. The OIM’s reporting will be available to all four Administrations and legislatures on an equal and purely advisory basis. It will provide information and support separate political processes to resolve any disagreements and enable intergovernmental engagement. The amendment would cut across all ongoing collaborative work with the DAs and remove our ability to give businesses the certainty they need at this time.
The noble Baroness, Lady Randerson, said that the Government would override the rest of the UK when legislating for England. That is certainly not our intention. The nature of our constitution is that the UK Parliament will be able to legislate over existing legislation, but the Bill aims to treat all domestic legislation in the same way. Her Majesty’s Government will be cognisant of the importance of market access principles in supporting any extra legislation.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received three requests to speak after the Minister: from the noble Lord, Lord Wigley, the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Purvis of Tweed.
Lord Wigley (PC) [V]
My Lords, the Minister cited the example of pesticides, a subject on which there will almost certainly be unanimity. But on matters such as subsidy control, where there may be a justifiable difference in approach, does the Minister not accept that unless the Government are willing to accept a mechanism such as this to secure consent from the devolved Administrations, he is in effect imposing his solution on them, and cannot in any way claim that this Bill is agreed by the devolved nations—with all the consequences that flow from that unfortunate situation?
Lord Callanan (Con)
The Bill would legislate for subsidy control becoming a reserved matter. We are committed to consulting further with the devolved Administrations before proceeding, if we do, to any further legislation.
Baroness Neville-Rolfe (Con) [V]
I have two questions. First, I called for clarity, trying to explain its importance to organisational success, which, frankly, is very relevant. I noticed almost no support for this from the Benches opposite, yet businesses, citizens and professionals will have to manage in the new market, and if the rules are at risk of changing in different ways regularly, that could be a problem. Obviously, sensible consultation and collaboration are needed, but we must be wary of a political veto. Does the Minister agree that this is a problem, or is the noble Lord, Lord Purvis, right?
My second question is whether the noble Baroness, Lady Randerson, is right or I am. At Second Reading, I mentioned with approval the ability of the devolved territories to do their own thing and gave two examples: minimum pricing of alcohol and carrier-bag charges, both of which I supported at the time. The noble Baroness, Lady Randerson, suggested that the powers to do such things will be undermined, and quoted exactly the same examples. Am I right or is she right?
Lord Callanan (Con)
My noble friend is putting me in the very difficult position of choosing which noble Baroness is correct. If I might venture to say, on the measures she has quoted my noble friend is correct. The Bill has no effect on minimum pricing of alcohol; that is excluded as a policy area, as are all pre-existing measures. This would also apply to carrier-bag prices. The Bill provides clarity and certainty for businesses, which is what we seek.
Lord Purvis of Tweed (LD)
My Lords, I take it as a little chink of victory that the Minister found it difficult to say whether he agreed with his noble friend or me. I will secure that as an achievement of the day, if he does not mind. I will return in a future group to minimum unit pricing and single-use carrier bags, because I am not convinced about that position.
I suspected that the Minister would refer to pesticides, so I took the liberty of reading the Health and Safety Executive’s board report on the framework, which has now been agreed, on pesticides and maximum residue levels. That agreement has been reached, so the concern the Minister is putting forward, of a threat to the operation of the single market, does not exist. That will be a UK-wide provision, and the regulations for Scotland are about policing it. The approach of the HSE has been well established for many years, and the regulation required to police this in Scotland is quite different from what the Government are asserting, which is the exercise of a power that would effectively prohibit goods from entering a Scottish market. That is notwithstanding the fact that if it concerns what is ultimately used for produce such as whisky, it is an industry standard, based on the minimum base that would be taken. The chemicals and pesticides framework from Defra and HSE has been resolved, so perhaps the Minister should stop using this an example. It is not convincing.
Regarding the office for the internal market, the Minister has now said something new: that the CMA, the parent body of the OIM, is involved in existing disputes under the Joint Ministerial Committee’s memorandum of understanding that was agreed after devolution. This will be news to the CMA. Can the Minister repeat that the CMA has a role in the Joint Ministerial Committee’s disputes, under the memorandum? That is what he said in response to the question, but it is not the case. As outlined in the Bill, the OIM has no role in disputes. If the Minister is saying that the dispute resolution mechanism for the internal market is the JMC memorandum of 20 years ago that was agreed for devolution, it simply will not work, because it does not provide for the operation of the single market.
Lord Callanan (Con)
The noble Lord asked a number of questions, and I am sure he will be quick to write to me if I do not answer all of them. On the famous subject of barley and pesticides, he is correct, but the whole point about frameworks is that they are voluntary agreements. Any one of the Administrations can walk away at any time. We are committed to agreeing voluntary frameworks and will continue to take part in those discussions and advocate them, but the point of this legislation is to provide a legislative underpinning for all of the work taking place on frameworks.
Could the noble Lord remind me what the other questions were?
Lord Purvis of Tweed (LD)
I am grateful to the Minister and may well be writing to him on that basis, as he predicted. Can he clarify what the intended role of the office for the internal market will be under the CMA? In a previous answer, he indicated that it has a role in the dispute resolution mechanism in the devolution memorandum of understanding. My understanding is that it does not. Which is the case? If the intention is that the OIM has a role in the dispute resolution mechanism, there is no reference to that in the legislation.
Lord Callanan (Con)
The purpose of the office for the internal market is to provide advice, reports and monitoring to all four Governments and legislatures. It will have no direct role in dispute resolution, which will be a matter for the Joint Ministerial Committee to discuss.
Lord Fox (LD)
My Lords, I apologise to the Deputy Chairman of Committees for having jumped in so soon. I thank all noble Lords for their contributions; the subsequent questions were worth waiting for, so I am glad that I did not plough on.
This has been an interesting debate; however many more hours we will have in Committee, it has uncovered above all else how half-baked—how completely undercooked—this Bill is. It is not worked through. The point of this amendment was to highlight, and give the Government, an opportunity to step back and admit that there are so many open questions and so many issues. I feel sorry for the Minister—I rarely do, but on this occasion I do—because he is having to respond to things that have not been properly locked down in this legislation. So I will look at Hansard, but it is quite clear that, one way or another, we will have to come back on Report to these absolutely central issues. Having said that, I beg leave to withdraw Amendment 4.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
My Lords, we now come to the group beginning with Amendment 5. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or any other amendment in this group to a Division should make that clear in debate.
Amendment 5
Lord Hope of Craighead
“Common frameworks process
(1) The United Kingdom market access principles shall only apply to subjects within a description listed in Schedule (Common frameworks) when the common frameworks process in relation to that subject has been exhausted.(2) The common frameworks process is a means by a measure of regulatory consistency in relation to policy areas within devolved competence may be mutually agreed between the United Kingdom and devolved governments.”
Lord Hope of Craighead (CB) [V]
My Lords, I wish to speak to Amendments 5, 11 and 53 in this group, which are in my name and, in the case of Amendment 5, that of the noble Lord, Lord Wigley. They are directed to an issue that, as we have heard, lies at the heart of the way the internal market is to operate in the best interests of all parts of the United Kingdom. The problem to which they and all the other amendments in this group are directed is this: how can the common frameworks programme fit in with the centrally driven market principles laid out in the Bill?
I must declare an interest in the common frameworks programme, as I am a member of the Common Frameworks Scrutiny Committee, chaired by the noble Baroness, Lady Andrews. For us, scrutiny of a number of these frameworks is already work in progress. So we are looking for an answer to that question, too, quite apart from the need to address it for the purposes of the Bill.
I shall introduce this subject as succinctly as I can, but the issue is one of fundamental importance to the devolved Administrations and to the future progress of the Bill, so I hope I shall be forgiven if I take some time to say what common frameworks are and why they matter. The common frameworks are a means by which the UK and the devolved Governments can agree on a measure of consistency across the United Kingdom for those policy areas returned to us from the EU that are within devolved competence. The process has been going on since the European Union (Withdrawal) Act 2018, which mandated it, was enacted. It is founded on the principles that were agreed by the JMC at its meeting in 2017, to which the noble Lord, Lord Dunlop, referred in the previous group.
To begin with, the UK Government identified 142 distinct areas that might need to be addressed. While we were within the EU, legal and regulatory consistency was maintained across the UK in these areas by EU law—but EU law does not insist on complete regulatory uniformity. The degree to which this has to be so depends on the nature of EU law in each given area. In some cases, minimum standards are set by EU law, leaving a measure of discretion to member states. In other areas, EU law is more prescriptive, leaving little room for variation. The devolved settlements were arrived at against that background. The key to their success is that they allowed for policy divergence within the UK in areas that were not reserved to Westminster.
Baroness Finlay of Llandaff (CB) [V]
My Lords, I support almost all the amendments in this group—particularly those tabled and introduced with such great clarity by my noble and learned friend Lord Hope—because they all tend in the same direction: to narrow the focus of the Bill on to areas where agreement cannot be reached with the devolved Governments, on ways of managing the tension between safeguarding the internal market and safeguarding the rights of the devolved institutions to take measures they have been elected to take. I shall address these issues myself later in the debate.
My role in this group is more specific: to explain why I believe that Clause 51 should not stand part of the Bill. Clause 51, regrettably, reflects the general powers of the Bill—powers which are sweeping in the Bill’s attack on the very nature of devolution. The clause would make the whole of the Bill a “protected enactment”. In other words, it would prevent a devolved legislature amending any part of the legislation as it applies in a devolved nation, even if that change would otherwise be within devolved competence.
There is precedent for that, but those precedents reflect the fact that such protection should be applied only to legislation of fundamental importance to the constitution or to human rights. Currently, only the Human Rights Act, the Civil Contingencies Act and the soon to be revoked European Communities Act are protected in their entirety. Even in the case of the European Union (Withdrawal) Act, the Government undertook a clause-by-clause analysis of the Bill to set out the case why some clauses, but not every clause, should be protected. Not only is this Bill clearly not of an equivalent weight to those that I have named; the Explanatory Memorandum even claims that this is an economic Bill, not a constitutional one. That is worryingly inconsistent. If the Bill is not constitutional, there is no justification for making any part of it a protected enactment.
I therefore ask the Minister to explain why each and every clause in the Bill should be protected. Can he please explain why the Bill shows indifference to the whole edifice of devolved government? This House needs a clause-by-clause analysis and explanation of the Bill. That is what happened with the European Union (Withdrawal) Bill, as it then was. Now we need a sound justification, before Report, for the rationale behind the Government’s asking Parliament to pass legislation that requires it to be protected in its entirety, and an explanation of the adverse consequences that would result if it is not protected when it becomes an Act of Parliament.
Baroness Hayter of Kentish Town (Lab)
My Lords, it is always somewhat intimidating to follow an introduction such as the one we have just heard from the noble and learned Lord, Lord Hope. I think I heard him correctly when he said at one point that he did not have a monopoly of wisdom. That was the only bit of his speech that I really disagreed with.
As we heard from the noble and learned Lord and from the noble Baroness, Lady Finlay, we need a mechanism to ensure that the common frameworks are at the start of the process before market access principles are applied. How exactly that can be finessed between the menu of options we have in front of us, with these and other amendments today, can be a question for discussion—as indeed the noble and learned Lord, Lord Hope, indicated. But, essentially, the role of the common frameworks undoubtedly needs a statutory basis. The consensual mode of working that we have seen via the common frameworks surely has to take priority over other modes of rule setting, and a failure-to-agree process—which must be exhausted before other action is taken—needs to be in the Bill, as it is in the common frameworks mechanism.
Like other Members of your Lordships’ House, I was involved in the work of the European Parliament. I was a party functionary rather than an elected Member. Through that I witnessed the discussions, arguments, concessions, joint working, co-determination, consultation, redrafting and mutual respect that went into the emergence of EU regulations. There was no simple imposition by one all-powerful body. Negotiation and agreement were needed between the European Council, the Commission and the European Parliament for action to be taken. As the noble Lord, Lord Inglewood, mentioned, some really big decisions were referred to the IGC—the Intergovernmental Conference. It was a way of working that produced outcomes to which everyone could sign up. Now, consensus building might have taken time; there was the odd time when clocks were stopped at midnight, which we may have to do again today, but the position reached each time meant that all the parties involved could live with the resulting decision.
My view—and I think the view of all of us—is that the internal market process ought to be replicating, albeit on a smaller and much easier scale, those sorts of international and intranational methods that allow for joint working and consensus building as the prime route for decision-making. Of course, some issues will prove not to be amenable to consensus—this too was mentioned earlier—in which case there has to be an agreed adjudication and decision-making mechanism in place, but with the common frameworks procedures exhausted before any of that has to be set in train.
I turn to Clause 51, which has just been mentioned by the noble Baroness, Lady Finlay. This is understandably of major concern to the devolved legislatures and their Governments. In three quite simple, short subsections it amends the Scotland Act 1988, the Government of Wales Act 2006 and the Northern Ireland Act 1998—and all without a word of warning, far less the agreement of any of those elected authorities whose established settlements it undermines. Few of us expected to read a clause like that, dropped into a Bill on a quite different subject, which would blatantly amend these long-developed settlements.
We heard from the noble Lord, Lord Dunlop, in the previous group and we will hear from him shortly in this group. I hope he will not mind if I quote from what he said at Second Reading. He said:
“Devolution is now integral to the UK’s constitutional arrangements. At a time … when it has never been more important for central and devolved Governments to work together … to risk destabilising those arrangements seems careless, to say the least.”
He went on to ask whether
“we want our country’s future to be all about endless intergovernmental competition and conflict or about co-operation and confidence”.
His preference, of course, was for
“a modern, thriving, forward-thinking and inclusive UK union … to look and feel like a joint endeavour”.—[Official Report, 19/10/20; col. 1336.]
That is what this group of amendments is seeking to achieve, but it is not where the Government are going at present. They seem to be thinking of asking us to pass this Bill without legislative consent from the very authorities whose powers are being diminished. I cannot believe that the Minister wants such an outcome, but how seriously does he take this? Is he really happy to completely override the Sewel convention, set aside the success of the common frameworks process and challenge the devolution settlements that have served us so well for so long?
Baroness Humphreys (LD) [V]
My Lords, I will speak to the amendment to Clause 51 in the name of the noble Baroness, Lady Finlay of Llandaff, to which I have added my name. The amendment opposes this clause standing part of the Bill. In a Bill that stands accused of breaching international law and impacting on devolution settlements, this clause is probably one of the most harmful, in the power that it hands to Ministers, and through them the Executive, to make regulations.
As the Explanatory Memorandum explains, regulations made by Ministers under these powers are to be made by statutory instrument and may be used to amend, repeal or modify the effect of legislation, including Acts of Parliament, which of course include the Government of Wales Act 2006—and, as the noble Baroness, Lady Hayter, has just pointed out, all without consultation with the devolved Administrations.
However, the prime function of this clause, and the whole of Part 7, is to ensure that all clauses of this Bill become protected enactments. It neuters the powers of the devolved legislatures, ensuring that they are unable to put forward Acts in their own Parliaments, in their own areas of devolved competence, to modify this Bill if or when it becomes an Act. This is almost unprecedented. The noble Baroness, Lady Finlay, has already told us that, since devolution, the only other examples of protected enactments covering all sections of an Act are the Human Rights Act and the Civil Contingencies Act.
Even in the case of the withdrawal agreement Bill, which was initially intended as a protected enactment, the UK Government produced a clause-by-clause analysis justifying protected enactment status, which eventually resulted in only a few clauses being protected. Why is this approach not applicable to this Bill? The Welsh Government have asked for a clause-by-clause discussion of why each clause should be protected. I would be grateful if the Minister could outline the Government’s response to this request.
Up to now, the Government have not produced any detailed justification of why protected enactment status is necessary, which exemplifies their cavalier attitude to devolution in general. In Wales this is seen as an assault on our devolution settlement, heralding the return of direct rule from England.
We are faced here with another example, as with the Covid-19 response in England, of Whitehall insisting on managing from the centre rather than understanding and empowering local decision-making. The powers of our devolved legislatures and regional mayors, although limited, seem to be resented and distrusted by the Government, and the automatic response seems to be to claw back control to the centre. My fear is that this Government’s unthinking, knee-jerk reactions all add to the perception that the union is not working for the devolved nations and, as I have said in previous contributions, this is encouraging an increasing percentage of people in Wales to conclude that the future lies in independence.
My colleagues and I on these Liberal Democrat Benches want to see true devolution of power to all four nations, including England, in a federal UK where each nation is equal to the other and treated with equal respect. For our party, the union is important because, as federalists we know, that without a union, federalism cannot exist, but we also know, that without federalism, this union will not exist into the future.
Clause 51 is truly indicative of the UK Government’s attitude towards the devolved parliaments and their powers and the desperate need they seem to have to curtail those powers by a show of strength. It is vital to the devolved nations that this clause does not stand part of this Bill, and if the noble Baroness is minded to reintroduce a similar amendment on Report, she will again have my support.
Lord Mackay of Clashfern (Con) [V]
My Lords, I am a very strong supporter of the common framework system, explained so well by my noble and learned friend Lord Hope. One of the defects I find in this successful system, which I think was a very good invention at the conclusion of the withdrawal agreement Bill when it was set up, is that it is without formal parliamentary recognition. I do not know with any degree of completeness what sort of results it already has, except in the reports produced in accordance with the statutory requirement. One does not know the exact detail of the decisions made. I hoped that as the principles went along in the common frameworks procedure, the principles to be set up in the Bill for the internal market in the UK would become evident. However, so far, that has not been fully revealed in Parliament. I am very anxious that some form of recognition in Parliament of decisions taken and agreed should be set up. This is the purpose of the new clause that I propose in Amendment 170. I do not stand closely on the wording, but some recognition of what is happening in Parliament and ensuring that it is regarded as part of the law would be a useful addition to the present procedure.
The situation between the devolved Administrations and an internal market was regulated by the European Union, therefore some form of renewal of that may be required. I notice that the Scottish Government have said they would not introduce any changes that would damage the internal market, pending legislation. Of course, that is only on the basis that legislation would be something to which they were able to agree. I am very anxious that the results of what we do now should not damage the arrangements for devolution in a way that would point towards independence.
Lord Foulkes of Cumnock (Lab Co-op) [V]
My Lords, I am speaking in support of my Amendments 172 and 173, which, in two different ways, as the noble and learned Lord, Lord Hope, said, seek to achieve the same as his amendment. Like the noble and learned Lord, Lord Hope, I am a member the Common Frameworks Scrutiny Committee chaired by the noble Baroness, Lady Andrews, and I am pleased to be so. Also a member is the noble Lord, Lord Bruce of Bennachie, who spoke earlier on Amendment 4. He described it as a consensus amendment. I wondered—if it was a consensus amendment—why he did not seek a consensus within the House on it, but I discovered why when I opened my Scotsman this morning and saw the big story, which sought to imply, I think, that the Liberal Democrats were taking credit for opposing this Bill and not wanting others to get any credit for that, but he got the support of the SNP in doing so.
Like the noble Lord, Lord Bruce, I am a long-term supporter of devolution. As some here will recall, I campaigned for it in the 1960s and 1970s, when there were few supporters of it in the Labour Party—John P Mackintosh, Donald Dewar and myself were three of the few—there were even fewer in the Tory party and none in the SNP, who wanted then, as they do now, complete separation. When people are picking up arguments in the cause of the SNP, they should never forget that.
Devolution is different from the unitary state we had. I recall well when in Westminster we were dealing with education in Scotland, which was administratively devolved. That was one of the main arguments for devolution: to have legislative control over what was administrative devolution. Devolution is also totally different from separation, but the SNP now see devolution as a means to achieve their aim, as a slippery slope to independence, and that is something we must be wary about. To the noble Lord, Lord Cormack, who spoke in a debate earlier, I say that Westminster remains ultimately sovereign in relation to all matters, although, if it oversteps the mark and tries to do something unacceptable, there must be other consequences.
As others have said, unfortunately devolution was never followed through in England, and we are left with a difficult situation, difficult most of all for the UK Government who regularly try to act on behalf of England as well as their overall responsibility for the United Kingdom. We have seen that in stark perspective in the pandemic. It does not help when the noble Lord, Lord Inglewood, describes them as the English Government. Successful devolution needs understanding and co-operation between both levels. Incidentally, as some people tend now to forget, it was envisaged originally that powers might be transferred back to Westminster if experience has shown something could be dealt with more appropriately at that level.
What I find a bit alarming is how some colleagues—those who were not in favour of devolution before—now seem to believe that the devolved Administrations are always right. It reminds me of the zeal of the convert. There is no greater critic of the Tories than me—I think the noble Lord, Lord Callahan, the Minister, will confirm that. Incidentally, they are not always wrong, but, thankfully, they are not going to be in power forever here at Westminster, so we need to have a more long-term perspective. On this transfer of powers from the European Union, the SNP describes it as a power grab and the Tories describe it as a power surge. Neither is true or helpful.
Before our regrettable withdrawal from the EU, we accepted that all these powers were better dealt with for all of the United Kingdom—Scotland, Wales, Northern Ireland and England—at a European level because we were all part of a common market. Now, we continue to have a common market here in the United Kingdom, so it is sensible that as many of the transferred powers as possible should be dealt with on a common basis. However, it is my view—as it was that of the noble and learned Lord, Lord Hope, and others—that this is best done by agreement through a common framework procedure and by ensuring there is, as one of my amendments says, no regression or diminution of the standards that we take back from Europe. That is what my amendments seek to achieve in different ways.
It could be, as some noble Lords have said, that all four countries have to agree or—the Minister might like to think about this—it may be appropriate to have a qualified majority, so that one Government could not block something useful by mischievous means.
Incidentally, there has been mention again today, from the noble Lord, Lord Purvis, of the threat to minimum alcohol pricing in Scotland. The Minister dealt with it well. It is, therefore, useful to recall that there was a challenge to minimum alcohol pricing, but it came from within Scotland, from the Scotch Whisky Association, based on it breaking European Union law. Interestingly, the ruling was that it did not break European Union law, and it was the United Kingdom Supreme Court that made that ruling. It is important that we separate party politics, which is not easy for us party politicians, and look at what is best for consumers and the public in general. That may be that things are decided at the UK level, or by Wales, Northern Ireland and Scotland separately.
We will soon need to sort out the English democratic deficit, which is real for the people in England and the regions in particular. We need to make devolution complete with a scheme for England, then the United Kingdom Parliament can properly carry out its federal role, maybe with a somewhat different role for the second Chamber.
Meanwhile I, like the noble and learned Lord, Lord Hope, hope that the common frameworks procedure sets a good co-operative working example. It is a better way than the Bill. I say to the Minister—I have not disagreed with him on everything—that it is a better way of dealing with this than the Bill in its current form, as the noble and learned Lord, Lord Hope, rightly said in his introduction. I hope the Minister will accept the general principle of these amendments, before we return to the Bill on Report. It would certainly make his life a great deal easier.
Lord Hain (Lab)
My Lords, it is a pleasure to follow my noble friend, with whose speech I completely agree. I speak to Amendment 175, which is also in the names of the noble Baronesses, Lady Altmann, Lady Suttie and Lady Ritchie. It ensures that no regulations may be made under the ensuing Act affecting matters that were within the devolved competence of Scottish Ministers, Welsh Ministers or a Northern Ireland department prior to 31 January 2020, unless a common framework on the United Kingdom internal market or the relevant aspect of it has been agreed between the United Kingdom Government and the relevant devolved Administration or Administrations. In this respect, I agree with all the speeches so far, which began so eloquently and compellingly with the noble and learned Lord, Lord Hope.
Sadly, the Government believe that the best method to achieve their objectives in negotiations with an international partner is to stick out their metaphorical tongue and say that, if they do not cave in, they will tear up an agreement made less than a year ago, even when Britain has more to lose than the EU if there is no agreement. Despite the Sewel convention that the UK Parliament
“will not normally legislate with regard to devolved matters without the consent”
of the devolved legislatures, the Government chose to ignore that all three devolved legislatures denied consent to the EU (Withdrawal Agreement) Bill. I suppose we should not be surprised that, when it comes to the devolved nations of these islands, the Government seem to believe that they hold all the cards and have nothing to lose—apart from, perhaps, destroying the United Kingdom once and for all.
The Government claimed, in their White Paper published in July 2020, that the proposals for the UK internal market would provide frictionless trade, fair competition and protection for businesses and consumers in the UK. However, as pointed out by the think tank UK in a Changing Europe, there is no urgency to introduce such internal market rules because all parts of the UK have been within the integrated EU single market for decades; we have all been together.
The provisions of the Bill are highly controversial. Those in relation to the Northern Ireland protocol have provoked legal action by the European Union and could yet undermine the basis for an EU-UK trade deal. Others cut into the ability of the devolved Governments in Scotland and Wales to regulate economic activity. Not surprisingly, the Scottish Parliament has voted against consent to the Bill, which it said
“constrains the competence of the Scottish Parliament and breaches international law.”
The Welsh Government have recommended that the Senedd follows suit.
So far as Northern Ireland is concerned, what is finally agreed—or not—at a UK-EU level will have far more impact on Northern Ireland’s trade with the rest of the UK than will this Bill. That is because the powers of the Northern Ireland Assembly are already constrained by the Ireland/Northern Ireland protocol, under which Northern Ireland will continue to follow the same EU rules on goods and on customs that it follows now.
For this reason, the market access principles set out in the Bill will not deliver unhindered trade within the UK, as Brexit itself will introduce such friction. After 31 January, the greater Great Britain’s divergence from EU rules in a race to the bottom, the greater the friction on the movement of goods from Great Britain into Northern Ireland, as goods will not be allowed into Northern Ireland unless they meet EU standards. There will also be an impact in the other direction, as lower standards in Great Britain would put Northern Ireland goods at a competitive disadvantage.
These market access measures in the Bill therefore appear to be a power grab against the devolved authorities, especially those of Scotland and Wales. This is because the provisions of the Bill will narrow the territorial scope of devolved legislation, which will apply only to goods produced in that territory, not to those imported from other parts of the UK. The Bill includes a much more restricted set of public policy justifications for exemptions from the market access principles than is permitted under EU law. This, as acknowledged in the business department’s impact assessment of the internal market White Paper, will curtail the ability of the Scottish and Welsh Governments to introduce targeted measures, for example, for social and environmental objectives.
Without the protection of these amendments, therefore, the market access principles will significantly undermine the ability of the devolved Administrations to address their own local needs or political preferences, which is surely the whole purpose of devolution. The Welsh Government have confirmed:
“The Bill automatically applies market access principles without requiring intergovernmental agreements, which will effectively nullify/override Welsh rules on product standards, environmental standards and professional qualifications.”
Referring to “this unnecessary Bill”, the Scottish Government called it an “unprecedented threat” to the Scottish Parliament’s powers. For example, if lower food and environmental standards were allowed elsewhere in the UK, Scotland would be forced to accept them. They also noted that, under the proposals, the UK would take over key devolved spending powers and
“the devolved policy of state aid”.
As for Northern Ireland, the UK Government have ignored a Motion passed by the Assembly in June, calling for an extension to the transition period. Matthew O’Toole, a Member of the Northern Ireland Assembly for the SDLP, has said that the Bill may go down in history
“as one of the most disreputable and damaging pieces of legislation ever proposed at Westminster”
on the grounds that
“it jeopardises all the protections against a hardened border between the north and south”
and that it has undermined trust in one of the signatory parties to the Good Friday agreement.
7 pm
In 2017, despite deep differences on Brexit, the UK and the devolved Governments announced that they had agreed the principles that would guide the development of common frameworks to set out a common UK or GB approach, and to managing the internal market. The UK Government reiterated their commitment to respect the devolution settlements. Common frameworks are not mentioned in the Bill and it is unclear whether regulatory rules established through the common frameworks process would be subject to the market access principles. For example, the Nutrition Related Labelling, Composition and Standards Provisional Common Framework, published on 9 October, notes
“The framework arrangements within this framework will also link into any future arrangements for the UK Internal Market.”
However, that does not provide any clarity on how the two will be linked. This programme, which admittedly is as yet a largely subterranean creature with little visibility to your Lordships’ House, has made good progress. It is true that not all will have completed the process by the end of the transition period, largely thanks to the disastrous negotiation strategy of the Government which led to two abortive sets of no-deal preparations. However, I understand that most if not all have been agreed on a provisional basis and that the devolved Governments have undertaken to fully respect them until they have been through legislative scrutiny.
Moreover, since all parts of the UK will inherit retained EU law, it is completely misleading to claim that there will somehow be a dangerous void in the statute book without this Bill. The only void there will be is where the UK Government want to leave one, notably on state aid policy. What there would be in the absence of this Bill is a restraint on the UK Government being able to tear up retained EU law on environmental standards, food standards, the mutual recognition of qualifications, and would de facto force the devolved Governments to follow suit. That is why this is so objectionable. If pressed, this Bill would undermine the good progress made in many of the areas where common frameworks are being developed, and it is not clear how the provisions of the Bill and the common frameworks could function alongside each other. I hope that the Minister will respond to that point.
I shall take just two examples. If this Parliament decided to permit English farmers to use certain antibiotics that are currently banned for treating animal disease, the sale of English products containing those antibiotics could not be prevented in Wales unless the Welsh Government could demonstrate an immediate threat to public health rather than the slow erosion of antimicrobial resistance. If Scotland wanted to introduce a new requirement for headteachers to obtain a specialist qualification in identifying and dealing with mental health issues in young people, the Scottish Government would struggle to prevent an English or Welsh teacher without that specialist qualification being appointed to a headteacher post in Scotland. For this reason, I wholly endorse the other Cross-Bench amendments suggested by the Welsh Government and tabled by the noble Baroness, Lady Finlay, and others, which would restrict the application of the so-called market access principles to areas where negotiations over common frameworks have broken down. This would give the Government every incentive to work with the devolved institutions to agree common frameworks and the chance to come back to this House and the other place if they believe that a devolved Government were attempting to wield a veto. Surely the way forward is to negotiate common framework agreements in all areas where the UK Government feel they have an interest, but which cover areas within devolved government competences. That is what the amendment seeks to achieve, and for the life of me, I cannot comprehend why the Government will not accept it. Perhaps the noble Lord the Minister will explain.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I declare an interest as a member of the Common Frameworks Scrutiny Select Committee, ably chaired by the noble Baroness, Lady Andrews. The noble Lord, Lord Foulkes, and the noble and learned Lord, Lord Hope of Craighead, are also members of the committee. I am a signatory to Amendment 175 along with the noble Lord, Lord Hain, and the noble Baronesses, Lady Altmann and Lady Suttie. The specific purpose of the amendment, as ably demonstrated by the noble Lord, Lord Hain, is to state that no new UK regulations can be made affecting any area that devolved prior to Brexit, including any area with cross-border impacts, without a common framework agreement with the devolved Governments concerned.
As has already been explained, these amendments, particularly this one and others in this group, focus on the primacy of the common frameworks and the importance of devolution. In many instances, throughout this Bill, the Government seem intent on power grabs from devolution to bring power directly to Whitehall. Quite clearly, the aim of our Amendment 175 is to protect devolution. I can think of those special devolution arrangements in Northern Ireland—of which I was once a part as a member the Northern Ireland Assembly and also as a former Minister—that arose out of the Northern Ireland Act 1998 and as a consequence of the Good Friday Agreement. They were based around those interlocking sets of three relationships within Northern Ireland: between north and south on the island and east-west between Ireland and Britain, and the accompanying infrastructure arrangements. These were reflected in the Northern Ireland protocol, and in the Withdrawal Agreement that the Government now seem intent on scuppering through this UK Internal Market Bill.
Interestingly—as the noble and learned Lord, Lord Hope of Craighead, and others have referred to—this Bill does not contain common frameworks. I was at a recent briefing with others, such as the noble and learned Lord, Lord Hope. It was very well organised by the Minister and the noble Lord, Lord Callanan. It was attended by the Minister for the constitution, Chloe Smith. She indicated that the reason why the frameworks were not in the legislation is because they are not all legislative. I found that reason very odd, but also very hollow and flimsy. As the Centre on Constitutional Change has stated, common frameworks are not mentioned in the Bill and it is unclear whether regulatory rules established through the common frameworks process will be subject to the market access principles. This is an issue that has also been addressed by the Lords Constitution Committee and by a group of academics for the Centre on Constitutional Change in their paper entitled UK Internal Market Bill Devolution and the Union, which was published last week.
To go back to the Lords Constitution Committee, it states at point 15 in its conclusions that:
“The Government should explain why the Bill does not mention common frameworks and how it expects the arrangements for the UK internal market will relate to the common frameworks.”
It further states at point 16 that:
“The Government has failed to explain why a combination of retained EU law, its existing powers to amend that law, and common frameworks could not provide the certainty required at the end of the transition period to secure an effective UK internal market. Such an approach would obviate the need for the Bill.”
Academics for the Centre on Constitutional Change who published their paper last week stated:
“By abstracting the internal market from these frameworks and pushing ahead unilaterally against opposition from the authorities in Scotland and Wales, the UK Government is putting the common frameworks approach at risk.”
They also state that the market access principles in the Bill weaken devolution, reduce divergence and risk undermining the objectives and principles that have guided frameworks discussions.
The market access principles within the Bill undermine devolution competences in two ways. The UK Internal Market Bill itself will become a protected enactment, which the devolved legislatures will be unable to repeal or modify—hence our Amendment 175.
The Bill also narrows the territorial scope of devolved legislation. Currently, devolved legislation applies to all relevant activity within the devolved territory. This will no longer be the case as a result of this Bill, if it is enacted. The effect of the market access principles would, therefore, significantly undermine the purpose of devolution, which was to enable the devolved nations and regions to legislate according to their own local needs and political preferences. While I am supporting and speaking to Amendment 175, I also support other amendments in this group because they clearly specify the importance of devolution and, above all, the common frameworks scheme.
Baroness Altmann (Con) [V]
My Lords, I have added my name to Amendment 175 in this group, led and excellently explained by the noble Lord, Lord Hain, and in the names of the noble Baronesses, Lady Ritchie of Downpatrick and Lady Suttie. I also support Amendments 5, 11 and 53, so excellently moved and spoken to by the noble and learned Lord, Lord Hope, and others that seek similar objectives.
This is not a party-political matter. Our devolution settlement was originally pioneered by a Labour Government, then deepened and extended by the Conservatives—as explained by my noble friend Lord Dunlop—and clearly supported by the Liberal Democrats, giving the devolved Administrations additional powers. As other noble Lords have said, common frameworks are important and our existing carefully crafted settlements have kept our union united. Surely, a successful devolution of power cannot consist of dictating to the constituent nations what will happen, informing them what they have to agree to and then saying that they have been consulted, so all is agreed. This is how the measures in this Bill have clearly been perceived by the devolved Parliaments.
We are a federal nation, comprising four proud countries. Until now, our devolution settlement has allowed divergence, even on matters such as taxation, where Scotland has different tax rates. These divergences have been well accepted across the country and ensure clear powers for each of our constituent nations. I will ask my noble friend two questions. First, is he able to confirm that the Government respect and accept the devolution settlement, which has served our United Kingdom so well? Secondly, Amendment 75 and others in this group merely insert proposals to ensure that future regulations will be introduced with a consensual approach. Could my noble friend explain the Government’s objection to such a consensual approach?
Baroness Suttie (LD) [V]
My Lords, I have added my name to Amendment 175, which is, once again, a cross-party amendment, tabled by the noble Lord, Lord Hain—who very powerfully and comprehensively explained it in great detail—and the noble Baronesses, Lady Ritchie and Lady Altmann. In the debate on this group of amendments, as well as on the previous group, noble Lords from all sides of the House have acknowledged that the common framework process has been a positive one. Therefore, I shall concentrate my brief remarks on the Bill’s impact on the delivery of the common framework agreements, which play such an important role, not least in avoiding future disputes and building consensus.
The Bill has illustrated the very worst of a top-down No. 10 decision-making process, with little or no engagement with the devolved Administrations in advance of its publication and in spite of the very real impacts that it will have on every part of the United Kingdom. I would argue that this top-down approach almost always results in rushed and poorly thought-through legislation, which will almost inevitably lead to unnecessary disputes with the devolved Administrations. As the noble and learned Lord, Lord Hope, explained in his excellent and very comprehensive speech at the beginning of this debate, it is, frankly, extraordinary that common frameworks are omitted from the Bill.
In a report published earlier this month, the Institute for Government stated:
“This legislation will cut across many of the areas where common frameworks are due to be developed. It is not clear how the bill and the frameworks are intended to function alongside each other.”
This gives rise to a number of questions. Will the Minister clarify exactly how the common frameworks will be linked to future arrangements for the UK internal market? Does he accept that, as it stands, the Bill risks undermining the ongoing joint review of intergovernmental relations, including the development of common frameworks? Does he acknowledge that this process has been significantly further complicated by the introduction of this Bill?
Lord Dunlop (Con) [V]
My Lords, I support the group of amendments tabled by the noble and learned Lord, Lord Hope. They address a central question: how does this Bill sit alongside the common frameworks process? Common frameworks are the process established to ensure that once the UK has left the EU’s legal orbit, policy and regulatory divergence does not damage the seamless operation of the UK’s domestic market. Unimpeded trade within the UK is something we all agree on.
The common frameworks process was initiated while I was still a Northern Ireland and Scotland Office Minister. The frameworks analysis informing it—the latest iteration of which was published only last month—provides a full assessment of the risk areas arising from EU powers flowing back directly from Brussels to Edinburgh, Cardiff and Belfast. As the noble and learned Lord, Lord Hope, explained, the latest analysis identifies 154 policy areas—115 are deemed to require no further action and 22 require a non-legislative framework, leaving just 18 identified as needing such a legislative framework. Examples in the latest analysis include food standards and labelling, mutual recognition of professional standards, the provision of services, and chemicals and pesticides. As an aside, I am even more confused about the position on pesticides than I was before. When winding up, perhaps the Minister could clarify whether chemicals and pesticides will be a legislative framework. I thought I heard my noble friend Lord Callanan say that it would be a voluntary agreement, from which the devolved Administrations could walk away.
So far as one can tell, this process of common frameworks is making progress—though more slowly than originally intended as a result of Covid. Seven will be in place by the end of the year with a joint commitment from all Governments to deliver the remainder during 2021.
In its detailed report on the Bill, the Constitution Committee concluded:
“The Government has failed to explain why a combination of retained EU law, its existing powers to amend that law, and common frameworks could not provide the certainty required at the end of the transition period to secure an effective internal market.”
When responding to the Second Reading debate, my noble friend Lord True argued that common frameworks are insufficient because they are sector-specific and cannot guarantee the integrity of the entire market. In responding to this debate, I hope that my noble friend will take the opportunity to explain in greater detail the Government’s concerns and the rationale for the approach adopted in the Bill.
There are three specific points that I hope the Minister will address, relating to necessity, urgency and proportionality. First, on necessity, my noble friend Lord True said in his wind-up speech last week:
“The Bill ensures that areas without a common framework will still benefit from the regulatory underpinning and, crucially, market coherence will be provided for issues that fall around, or between, individual sector-focused frameworks.”—[Official Report, 20/10/20; col. 1427.]
I am puzzled by this explanation, as my understanding has always been that the portfolio of legislative and non-legislative frameworks was intended to represent a comprehensive package for managing the identified risks of divergence arising from EU exit. As I have already mentioned, many of the areas identified to be covered by frameworks are cross-cutting, and not simply sectoral, such as public procurement, recognition of professional standards and the provision of services in general. Therefore, can the Minister be more specific in identifying what the issues are that the Government are so concerned about that fall in and around individual sectors, which have not already been identified in the common frameworks analysis?
Secondly, on urgency, I hope the Minister will explain why the Government are legislating in such haste. Yes, this is a major and important piece of economic legislation, but it is also a Bill with significant constitutional implications, not least for the stability of our devolution arrangements and the future of the union. This matters because there are important gaps in the scheme created by this Bill. For example, where in this scheme are the conclusions from the review of intergovernmental relations? When will the review be concluded and published, associated as it is with the work on common frameworks? How will the provisions of the Bill be enforced, and how will disputes between the UK Government and the devolved Administrations be managed?
The timetable for the Bill appears to be predicated on the end of the transition period on 31 December this year, but what is the real risk of regulatory divergence between then and the completion of the common frameworks process in 2021? The House is aware that the European Union (Withdrawal) Act 2018 already confers on Ministers so-called Section 12 powers to freeze devolved competence in relation to EU retained law. It is worth reminding ourselves of its provisions. Ministers can make regulations to restrict the ability of devolved Administrations to change EU retained law for up to two years after our formal exit from the EU. Should they make such regulations, these could remain in force for up to a further five years, so by my reckoning to January 2027. Therefore, on the face of it, there is ample time for the Government to put in place—in co-operation with the devolved Administrations—the necessary protections in the form of common frameworks and the associated intergovernmental architecture to protect the seamless operation of the UK domestic market. In light of the existing legislative protections that are already in place, will the Minister explain the need to legislate on this accelerated timetable, which, as we have heard, has not allowed sufficient time for more than the most cursory consultation? On the subject of consultation, can the Minister confirm whether all the responses to the consultation have been published? If not, will he give a commitment today that they will all be published in full and in short order?
Thirdly, and finally, on proportionality, the Government may be motivated in bringing forward this Bill by Mr Rumsfeld’s famous “unknown unknowns”. Ministers may indeed be confident that a portfolio of common frameworks can do most of the job, but still want to put in place an insurance policy to cater for unforeseen circumstances or to have a mechanism for monitoring the cumulative effects of policy and regulatory differences, which on their own may be entirely harmless. That is fair enough, but if that is so, then is not the scheme in this Bill the wrong way around? Instead of effectively overriding from the outset the practical ability of devolved Administrations to regulate differently to reflect local priorities and to suit local circumstances—and in the process potentially compromising a core benefit of devolution—would it not have been preferable for the Bill to provide a safety net of last resort? Would that not provide a better balancing of the needs of free trade within the UK with the need to respect the roles and responsibilities of the devolved institutions? Would not this create better incentives for all parties to agree sooner rather than later the full package of common frameworks? We all agree with the aims of this Bill. However, I suspect the Government will need to do more to convince the House that the legislative scheme in the Bill is the best way to achieve those aims.
Baroness Andrews (Lab) [V]
My Lords, it is a great pleasure to follow the noble Lord, Lord Dunlop, and indeed to agree with much of what he said. I support the amendments in the name of my noble and learned friend Lord Hope.
I should declare an interest as the chair of the Common Frameworks Scrutiny Committee. The House will judge that I have a formidable group of Peers to do the work, and we have heard from some of them this evening. It has been splendid to hear so much exposure given to common frameworks because, as many other noble Lords have said, the Bill is silent on them.
It is a particular pleasure for me personally to support these amendments because they are a model of clarity and common sense. They track the history and purpose of, and the co-operation involved in, the common frameworks in the context of our membership of and exit from Europe, holding firm to the principle and practice of devolution.
The Government are silent on the common frameworks and silent on the years of hard negotiation that has gone into them so far to ensure that the principles that govern them bear fruit. I am surprised at that silence because in everything that the Ministers have said so far—and they have said it informally in communications with us, which we very much welcome—they have insisted that they still support the principles of the common frameworks and their role in stabilising the internal market, yet in effect these clauses drive a stake through them.
As my noble and learned friend Lord Hope said, the common frameworks allow for reconciliation across an enormous range of highly sensitive areas of policy—from the safety of baby milk to protections relating to the location and storage of hazardous waste, to maintaining future emissions trading. It has been a slow and careful process because the dispute mechanisms and the legislative frameworks have to be resilient if the internal market is to work with integrity in the future.
As the noble Lord, Lord Dunlop, said, at Second Reading the Minister defended these clauses in the Bill on the grounds that this matter needs regulatory underpinning, because there are issues that fall around and in between the frameworks. First, as he also said, they are not entirely sector based, but the real puzzle for all of us is where these identifiable gaps are. If there are indeed gaps, could not other frameworks be developed as appropriate? We already have the models in front of us. Therefore, like the noble Lord, Lord Dunlop, I would be very interested if the Minister could now tell us in more detail what these issues are that fall around or between the individual sectors. What is the problem to be solved here?
The best clue that we have is that the Minister has suggested that the Bill is needed in case there are future developments that cut across seamless trade. Again, it is impossible to know what the Government think is likely to happen, why they cannot share that with us and why such developments cannot be accommodated. So far, no Minister and no officials, in formal and informal conversations, has come up with an instance of what this means.
It is the more frustrating because, by definition, the frameworks are dynamic. They will be under regular review—they are work in progress. If there is a push for further divergence, the reconciliation and dispute processes kick in. The union becomes the stronger because it acknowledges that culture, demography, local economics and geography drive diversity. If the Government fear that somehow, and at some point, unacceptable barriers to trade will be erected across the union, surely the frameworks are the solution and not the problem.
The Bill is important. It is also important not to exaggerate, but I believe that these clauses will exact an enormous price if they are not amended, as my noble and learned friend Lord Hope suggests. The mutual recognition principle becomes the default position, no matter what the devolved nations hope to achieve. The Government argue that, for example, we have the highest environmental standards in the world. Indeed, we might, but how can these be upheld in a highly competitive market where cheaper food invites cutting standards? How can each nation continue to drive down salt content in food if a cheaper product with a higher salt content becomes available for sale across the UK?
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, the noble Lords, Lord Naseby and Lord Cormack, have withdrawn. I therefore call the next speaker, the noble Lord, Lord Rooker.
Lord Rooker (Lab) [V]
I was attracted to speak to this group of amendments by Amendments 5, 11 and 53, in the name of the noble and learned Lord, Lord Hope of Craighead, and, as I have listened to the debate, I have begun to wonder even more why the Bill is required in the first place. At the risk of upsetting my good and noble friend Lord Foulkes—and I certainly do not want to get involved in Scottish internal politics; that is my caveat for what I am about to say—as a Minister in MAFF, Northern Ireland and Defra, and as chair of the Food Standards Agency, I worked very closely with several Ministers in the Scottish Government, and I always found them totally professional and focused on the issue at hand at the time.
Nobody has asked me to make a speech today on this matter, but I am going to raise matters raised by Food Standards Scotland in consultation in August and in the recent letter in October. The very reason the Food Standards Agency and Food Standards Scotland exist is to ensure that policy formation, regulation and enforcement in relation to protection of consumers’ interests are clearly separated from those responsible for food industry growth and promotion. Food Standards Scotland says the Bill blurs that distinction, which has been in place since the FSA was formed after the BSE crisis in the 1990s. Both the FSA and the FSS have a legal duty to
“protect public health from risks which may arise in connection with the consumption of food”.
That comes from the Food Standards Act 1999 and the Food Scotland Act 2015.
Only a few weeks ago, the UK Government confirmed in their report on the common frameworks that the powers they have to restrict devolved competence under Section 12 of the European Union (Withdrawal Agreement) Act—referred to by the noble Lord, Lord Dunlop—had not been used precisely because
“significant progress is being made across policy areas to establish common frameworks in collaboration with the devolved administrations.”
No party has ever expressed the need for, or provided evidence in support of, a statutory framework to regulate the UK internal market in the way that this Bill tries to do.
It is worth pointing out that the current internal market makes provision to allow the devolved Governments to impose conditions such as labelling and composition requirements or price mechanisms on food business operators in order to meet a public health objective, provided that the proposal meets an overriding public interest test. The Bill makes no equivalent provision and, indeed, makes clear that business cost is the primary driver, with no consideration of either public health costs or non-financial consumer interests and protection. The Bill does not advance the protection of consumers, other than in cost reduction. If consumer interest is defined solely by cost, it is inevitable that it will drive down standards, because lower standards are less costly.
I will briefly deploy three examples of existing responsible policy-making that is fully in line with current UK market issues and industry pressures. They are all evidence based, taking account of industry impacts as well as consumer interests. These three examples of why the present arrangements work were all given in August to the Business Secretary, Alok Sharma, by Food Standards Scotland—to which he has never responded.
The first is the fortification of flour with folic acid to improve pregnancies affected by neural tube defects. This policy has been advocated for some time by the Scientific Advisory Committee on Nutrition and I have raised it in your Lordships’ House on several occasions since November 2013. In the absence of UK Government action, Food Standards Scotland was asked by the Government there to carry out an assessment for Scottish Ministers. It did, and concluded that the nature of the UK market was such that all flour would require fortification and differentiation in product lines was not possible. Food Standards Scotland concluded that a separate Scottish solution should not be followed. UK-wide action is currently under consideration, of course.
The second example is the prohibition of the sale of raw drinking milk in Scotland. The original wide ban has been continued in Scotland, based on illness and deaths and the advice of the Advisory Committee on the Microbiological Safety of Food. Controls in England, Wales and Northern Ireland are less restrictive than in Scotland, so different rules apply. The current system works, and Food Standards Scotland is at a complete loss to understand why the Bill appears to save the existing unique provisions; it is clear that future provisions introduced on public health grounds are not protected. In other words, what will be saved now would not be protected if further provisions were introduced. The Government are making assertions that, without legislative underpinning, unnecessary regulatory barriers could emerge between different parts of the UK. The Government have given not a shred of evidence to support this assertion.
The third example concerns allergen information for consumers on “prepacked for direct sale” foods—that is a unique type of food. Working with Defra, the Food Standards Agency and Food Standards Scotland developed proposals to improve information following the tragic death of a teenager eating a baguette containing undeclared sesame seeds. Four options were considered as part of a UK-wide consultation. In short, option 4 was recommended as in the best interests of consumers, even though option 1 was the cheapest for industry. Under the Bill, if, for example, one of the bodies had opted for option 3—slightly less than option 4—the body that had chosen option 4 would have to go for option 3. Worse still, using the Competition and Markets Authority, it is likely that option 1, which was simply aimed at raising consumer confidence without regulation, would be chosen. It would be the cheapest for industry but the most unsafe for the consumer. These three examples of responsible policy-making show that the current common frameworks system should be used, and be shown to fail, before we move to the mutual recognition system outlined in Clause 2.
Finally, as was referred to earlier, diet conditions might in future require labelling of, for example, high fat and high sugar on public health grounds. This can work perfectly well under the current arrangements. Under the Bill, however, one part of the UK could be lobbied to reduce information on packaging which other parts would be required to follow. I cannot support the lowest common denominator; it is unsafe for consumers. I hope that, in due course, the noble and learned Lord, Lord Hope, will press his solution.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am delighted to speak to and support the amendments in this group. The debate demonstrates that it is not just Part 5 of the Bill that has created concern. In particular, I support Amendments 5, 11 and 53 in the name of the noble and learned Lord, Lord Hope of Craighead, and Amendment 170 in the name of my noble and learned friend Lord Mackay of Clashfern.
The House owes a great debt of service to the two noble and learned Lords for so clearly identifying the problems with the Bill and its complete oversight and omission of the common frameworks. In particular, they identify the problem of future common frameworks and their relationship to the Bill. But my concern is that, as there has not yet been agreement on the 18 common frameworks that may require legislative decisions, there may be some uncertainty. I note in passing that, of the 18, a large majority relate to issues being dealt with by Defra. They primarily concern agriculture, food and, to a certain extent, the environment, and that is a source of concern.
I express a concern over Schedule 1 and the impact on movements of animals and farm goods, in the event of threats to human, animal or plant health. The noble Baroness, Lady Andrews, referred to the default position appearing to be mutual recognition. Paragraph 2(2) of Schedule 1 refers to the “first condition” that would form an exclusion:
“the aim of the legislation is to prevent or reduce the movement of unsafe food or feed into the part of the United Kingdom in which the legislation applies … from another part of the United Kingdom”.
As the noble Lord, Lord Rooker, set out in some detail—I entirely endorse what he said—it is all very well when the Food Standards Agency in England and Food Standards Scotland take a similar view. I put to the Minister, for his reply when summing up the debate, my view that Schedule 1 indicates the need for common standards of human, animal and plant health to ensure free movement between England, Scotland, Wales and Northern Ireland. I thought that was the whole purpose of the Bill.
What will happen in future if the Food Standards Agency in England and Food Standards Scotland take different views on food, animal feed or a product from either state? Will Scottish produce be blocked from entering other parts of the United Kingdom, under Schedule 1 and other parts of the Bill? That would cause me great concern.
Finally, I endorse and support Amendment 170, in the name of my noble and learned friend Lord Mackay. He has identified the problem that there is simply no statutory basis for common frameworks. If so, would it not be better to have a common frameworks statutory basis to deal with all the problems that have been addressed during the debate?
Baroness Noakes (Con)
My Lords, it seems that most of the noble Lords who have taken part in this debate have looked at the Bill through one end of a telescope, which focuses on the powers of the devolved Administrations and the threats or perceived threats to them. There is another end of the telescope you could use to look at the Bill, which shows that businesses in all parts of the UK need the certainty of knowing how they will be able to trade within the UK, going forward. That is important for those businesses trying to build a successful economy, particularly coming out of the Covid pandemic.
Lord Vaux of Harrowden (CB) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Noakes, and for once find myself in agreement with much of what she said. In his winding-up speech at Second Reading, the Minister said:
“Under our proposals, the devolved Administrations will continue to have power to regulate within devolved areas, in so far as these do not cause a barrier to internal trade.”—[Official Report, 20/10/20; col. 1426.]
The noble Lord, Lord Callanan, has repeated the same point today. Well yes, the devolved Administrations will be able to continue to regulate, but those regulations will become effectively meaningless if they can be undermined by unfettered market access from other parts of the United Kingdom. The Minister seems unwilling to address that simple point. Within the EU single market the devolved nations have enjoyed a level of discretion to diverge within a wider framework of agreed standards. Despite that divergence, our internal market has operated smoothly, and I do not think that many would argue otherwise.
Like it or not, devolution is a fact and we cannot and should not back-pedal on it. The Government recognised that in the frameworks agreement when they agreed that the common frameworks should
“maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules”.
Can the Minister please confirm that the Government still stand by that agreement, in spirit as well as letter?
This Bill is a blunt instrument which effectively removes that flexibility for tailoring policies. What would be the point in, for example, the Welsh Government legislating against single-use plastics, if they are unable to block such items coming in from other parts of the UK; or of Scotland tightening labelling requirements, if goods sold in Scotland from other parts of the UK do not need to follow those requirements? Does the Minister seriously argue that those kinds of actions have created or would create significant barriers to internal trade?
The common frameworks programme, as we have heard, provides a simple solution that already exists. The programme is generally thought to have been a positive and consensual process to try to find the right balance. Indeed, as the revised frameworks analysis published by the Cabinet Office states:
“The cooperative approach on frameworks so far demonstrates the progress that can be achieved through proceeding collaboratively”.
As we have heard, however, the Bill as drafted ignores the common frameworks completely. There is not so much as a reference. The Minister said at Second Reading that the Bill does not make the common frameworks redundant, but it is very difficult to agree with that. As explained earlier, any divergence of regulation by a devolved Administration will be undermined by the precedence that this Bill gives to unfettered market access. I really do not see that that is an arguable point. It is the logical result of this Bill.
It is hard not to sympathise with the view of the devolved Administrations that the hard work and constructive engagement on trying to reach agreement on the common frameworks has effectively been torn up by this Bill. The Government cannot, in all honesty, be surprised that the devolved Administrations have rejected it. It is precisely this kind of heavy-handed, non-collaborative behaviour that is adding to the impetus towards the breaking up of our United Kingdom, which I am extremely worried about.
I said at Second Reading that I am not fully convinced that this Bill is actually necessary to achieve its stated aims. The Constitution Committee, and a number of noble Lords, has made the same point. However, I can see that there is some argument for the market access rules it creates, provided that they genuinely work alongside the common frameworks. However, for that to work without undermining them, the common frameworks must be recognised in the Bill, and any agreed permitted divergence from common standards allowed by the common frameworks must take precedence over the mutual recognition and non-discrimination principles of the Bill.
There are a number of ways to achieve that end, and the amendments in this group try to do this in different ways. I am particularly attracted by the approach taken by my noble and learned friend Lord Hope of Craighead in his Amendments 5, 11 and 53, and by Amendment 170, in the name of the noble and learned Lord, Lord Mackay of Clashfern. These seem to be a neat and simple way of recognising the common frameworks explicitly in the Bill and giving them precedence over the market access principles where appropriate, without undermining the Bill as it stands. I am also drawn to the introduction of the proportionality and subsidiarity principles in Amendment 2, which were discussed earlier.
I was heartened by the Minister’s commitment at Second Reading that the Government will
“study carefully the observations of your Lordships’ Select Committees on this part of the Bill”.—[Official Report, 20/10/20; col. 1427.]
Accepting these amendments, or something like them, would recognise that the internal market can work perfectly smoothly in a more nuanced, flexible and collaborative manner, just as it has in the past. That would show sensitivity to the legitimate and reasonable concerns of the devolved Administrations, and the respect for devolution that the noble Lord, Lord Callanan, referred to earlier today, without undermining the smooth-running internal market that we all want and which this Bill is intended to achieve. I would therefore urge strongly the Government to consider these amendments in a constructive light.
The Duke of Montrose (Con) [V]
My Lords, it is a great pleasure and honour to be able to participate in this very important legislation. The search for common frameworks is something that has concerned me from the minute we went down the Brexit road. I would like to support the amendments that were put forward in the name of the noble and learned Lord, Lord Hope. I was also interested to hear the analysis by the noble Lord, Lord Vaux, of ways of solving problems.
It is very important that we go into this area in great detail. I congratulate the noble and learned Lord, Lord Hope, for bringing it in, in this way, this early in our discussion. What he gave us is a very fair and understanding analysis and I hope the Government will pay due attention to the issues that he outlined. We have also been privileged this evening to hear from four Members who have worked on the frameworks committee, and it is of course also very important to look at what they said. I was interested in the way that the noble Lord, Lord Foulkes, supported the issue from the Scottish point of view.
I would like to offer my support to Amendment 170, in the name of the noble and learned Lord, Lord Mackay, which he moved in his intervention. It is very important that agreements that are achieved are formally notified to Parliament, and that was the point he was making.
It is not a direct parallel, but noble Lords will probably remember that, on the introduction of the Scottish devolution Bill, the parties concerned when it was brought into practice in the Scottish Parliament found that they had to achieve a memorandum of understanding. One of the things that was contained in the memorandum of understanding was the Sewel convention. Here in Westminster, we received no details of what this memorandum of understanding contained. One was left wondering how some of the agreements were arrived at. This of course was rectified when we next looked at the Scottish devolution Act and the actual practice was brought in, in a legislative form, under that Act. We need to be kept fully up to date with the agreements that Governments come to. I support that amendment.
Lord Bruce of Bennachie (LD) [V]
My Lords, I also am a member of the Common Frameworks Scrutiny Committee. I would like to give my appreciation to the noble Baroness, Lady Andrews, for the way in which she is chairing the committee. It has a hugely demanding task, which we are all learning extremely fast.
The noble and learned Lord, Lord Hope, is of course a member of that committee. The combination of his work and his expertise in the law has been demonstrated to be one of the strengths of the House today in the amendments that he has drafted, moved and explained in such meticulous detail. This is of huge benefit, and I hope that the Minister will recognise that he should give very serious consideration to what is being proposed.
I do not have the audacity to summarise the noble and learned Lord, other than to say that his basic questions were these: how do the frameworks fit into the Bill, and how will future arrangements be conducted if there is not a proper correlation between the frameworks and the Bill, and indeed the principles behind the frameworks? That is something that we have all been asking the Government to explain.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, this has been an excellent debate, brilliantly introduced by my kinsman, the noble and learned Lord, Lord Hope of Craighead, and with some other excellent speeches, particularly from those who were members of your Lordships’ Select Committee and, of course, the chair, my noble friend Lady Andrews.
The weight of the arguments deployed in this group and the virtual unanimity of views expressed from all sides of the Committee were to be expected, but Ministers might not have expected to be offered a route out of the mess that they have got themselves into. If common sense prevails, there is a win-win here. As the noble Lord, Lord Dunlop, said, the Bill currently has things the wrong way around. The Government need to signal tonight that they will take away the amendments in the name of the noble and learned Lord, Lord Hope of Craighead, and work with him to find a structure that better delivers the aims of the Bill.
They should use this legislative opportunity to encourage the completion of the current work on the common frameworks, to encourage the process to cover the remaining outstanding issues and to anticipate future needs. They should then draft an effective safety net for the Bill, based on mutual recognition and non-discrimination, while, as the noble Lord, Lord Vaux, said, having regard to subsidiarity and proportionality. They should ensure that the current informal processes have a light-touch underpinning, with a regulatory framework that commands trust and the confidence of the devolved Administrations. If they do this, we will happily work with and support them.
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, it has been a most fascinating debate. I endorse what the noble Lord, Lord Stevenson, has just said. While I sadly cannot claim to be his kinsman, I thought the opening speech by the noble and learned Lord, Lord Hope, was a masterclass in how to present a case. That does not necessarily mean that the Government accede to the case, but it was entirely clear. I also pay tribute to those members of your Lordships’ Select Committee on common frameworks who spoke. Their experience is obvious and the work of that committee is important. I believe it will shortly meet or hear from my honourable friend Chloe Smith.
Many businesses welcome this Bill. They welcome it on the basis that, after the end of the transition period, they hope, expect and require that they will be able to operate in a period of certainty, not buffeted by any unexpected or unreasonable developments. I respond to the general tone of the debate by saying that it is, of course, the Government’s intention—it always has been and remains so—that the functioning of the UK internal market will be driven by co-operation with the devolved Administrations. The market access proposals here are designed not to replace but to complement the common frameworks; I know that is a phrase I have used before. The common frameworks are the key. They support coherent policy-making across the UK by setting out terms of engagement between the UK Government and the devolved Administrations as well as, where appropriate, common strategic goals and policy approaches.
The Government remain committed to the common frameworks programme. As many noble Lords have said, it is progressing well. The UK Government and the devolved Administrations continue to co-operate closely as we jointly develop the programme. Yes, progress overall has been slower than we would have liked, and I acknowledge the effect of the resource constraints driven by the response to Covid, and the need to prioritise planning in advance of the end of the transition period. However, all parties remain committed to the programme. At a recent JMC (EN) meeting last month, both the UK Government and DA Ministers reconfirmed their strong commitment to it.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Bruce of Bennachie.
Lord Bruce of Bennachie (LD) [V]
I shall not detain the Committee for long but the Minister came up with the example of flour. I think that as the Bill progresses we can all dream up examples of hypothetical possibilities. However, the question that arises from that example is: why should we not follow the principles and dispute resolution model of the common frameworks? Indeed, as the noble Baroness, Lady Andrews, said, where are the gaps that cannot be filled by the common frameworks? Why do the Government need to take such extreme powers for fast Executive action when, in nearly all these cases, the problem will emerge over time? Everybody agrees that if legislation is required, we should have it, but the Government seem to want to take powers in anticipation of unknown challenges. Therefore, why cannot the principles and model of the common frameworks be the basis on which these cases are taken forward and disputes resolved?
Lord True (Con)
My Lords, I should have acknowledged the very thoughtful speeches of the noble Lords, Lord Bruce and Lord Stevenson. I hoped that I had made clear that the common frameworks process would continue. I was asked to give an example of how circumstances might change in the future and how matters that need to be addressed might arise. The emergence of an unregulated new technology might be another example. However, I think it is better that we address these questions in the further discussions that we might have.
So far as pace is concerned, the transition period ends at the end of the year and there is a need to provide a climate of certainty for business when the EU system falls away. Therefore, I do not resile from the fact that it was necessary and sensible for the Government to bring proposals before Parliament to address the post-31 December situation.
Lord Hope of Craighead (CB) [V]
My Lords, first, I thank the Minister for his courteous and careful reply. I also thank all noble Lords who have contributed to this fascinating and very well-informed debate. I shall not attempt to sum it up because the noble Lord, Lord Bruce of Bennachie, did that very ably for me in his contribution before the interval.
I was very grateful to the Minister for his kind opening words. Of course, I am disappointed that there is not more of an indication of movement on his part, but he said that he would consider the arguments, which I am sure he will, and that he was open to further engagement and discussion—for my part, I certainly am, and I am sure that others across the Committee are too. Of course, there is not much point in those discussions unless he has a rather more open mind in appreciating the problems than he has indicated so far.
One point mentioned from time to time was the fact that this measure, and indeed the White Paper that preceded it, emerged with very little consultation with the devolved Administrations. I hope that the noble Lord will forgive me but I have the feeling that there was a certain amount of lack of consultation across the Government.
If I may offer the Minister a little bedtime reading, there is a clause in another Bill which is still before Parliament that illustrates the problem: Clause 39 of the Agriculture Bill. I do not suppose that the Minister knows what I am talking about so I will say a few words about it. It may help him—the Minister sitting in Westminster, looking at the matter from the other side of the fence—to see how things appear from the perspective of the devolved Administrations.
Clause 39 attempts to set marketing standards. It lays down a basis for the setting of market standards in relation to agricultural products that are marketed in England. It contains a long list of matters that will be covered by regulations—there are 15 of them. I will not go through the list, but one or two of them are important. They refer to regulations or cover matters about the type of farming and production methods, as to the use of certain substances and practices—one might think of pesticides, additions of flour—packaging and so on. At the discussions on the Agriculture Bill, I asked the Minister what this means for the farmers in Wales, Scotland and Northern Ireland, given the volume of goods that they move for marketing in England, since these are matters that have been set for all goods marketed in England. There is no reference in this clause to consultation, let alone consent, and my suggestion was that there should be, on the face of the Bill, a provision that if these standards are to be set and people coming from other parts of the UK are obliged to comply with them, then surely that would have to be done with consent. I do not think that the Minister responding to me had any idea that the Internal Market Bill was on the horizon. I mentioned that the White Paper had just come out, but I got no response from him about that either.
The effect of the mutual principles set out in Clause 2 solves the problem as far as farmers in Wales and Scotland are concerned. They need not trouble themselves about regulations, additives, pesticides, packaging, production methods and so on, because they have a complete opening to the market. The question is: is there any point in going through this huge list and laying down carefully regulated provisions for England when the Minister knows perfectly well that people can come from the other parts of the UK under his Bill and ignore them? I am not talking about a lowering of standards, but about different standards which are not provided for. That is the kind of problem that I mean. Can the Minister look at this before he goes to sleep tonight, think it through and see how it looks from the other side of the fence? These are really big issues. Although the Bill is still going through ping-pong, I wonder whether Clause 39 can survive and whether the regulation- making power in that clause will ever be exercised.
These are fundamental points and, to be honest, I do not think that the Minister has really grasped the importance of them. I would like to think that he will, and I look forward to further discussions with him before Report. For the time being, however, I beg leave to withdraw the amendment.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, we now come to the group beginning with Amendment 6. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and anyone wishing to press this or any other amendment in the group to a Division should make that clear in debate.
Amendment 6
“Legislation to which market access principles apply
(1) Legislation on market access principles may only apply—(a) when the common frameworks process in respect of subjects within a description listed in Schedule (Subjects to which market access principles may be applied) has been exhausted, and(b) only so far as it relates to a subject specified in regulations made by the Secretary of State.(2) Regulations under subsection (1) may specify a subject only if it is within a description listed in Schedule (Subjects to which market access principles may be applied).(3) The Secretary of State may by regulations amend Schedule (Subjects to which market access principles may be applied).(4) Regulations under this section are subject to the affirmative resolution procedure.(5) Before laying a draft of a statutory instrument containing regulations under this section before either House of Parliament, the Secretary of State must give notice of the proposed regulations to—(a) each devolved authority, and(b) the Competition and Markets Authority.(6) The Secretary of State may not lay the draft instrument before either House of Parliament until—(a) the Secretary of State has received—(i) a statement in relation to the proposed regulations from each devolved authority, and(ii) a report or advice on the proposed regulations from the Competition and Markets Authority, or(b) the period of 12 months beginning with the day on which notice was given under subsection (5) has ended.(7) When a draft of a statutory instrument containing regulations under this section is laid before either House of Parliament, the Secretary of State must at the same time lay before that House copies of any statements, report or advice mentioned in subsection (6)(a).(8) In this section, “devolved authority” means—(a) the Scottish Ministers;(b) the Welsh Ministers;(c) the Department for the Economy in Northern Ireland.”Member’s explanatory statement
This amendment means that the United Kingdom market access principles only apply after the process for agreeing common frameworks has been exhausted. It introduces a new Schedule, inserted by another amendment in the name of Baroness Finlay, listing the subjects to which the common frameworks apply and for which regulations may be made if common frameworks are not agreed.
Baroness Finlay of Llandaff (CB)
My Lords, I have tabled both the amendments in this group. Amendment 6 is arguably the most important of all the amendments that I have laid, because it aims to do what many of the amendments in the previous group also intended to achieve. In the light of the disappointing ministerial response to the amendments in the previous group, so superbly introduced by my noble and learned friend Lord Hope of Craighead, it could be said that I am having another go, in a more watertight way. Amendment 6 puts common frameworks on the face of the Bill. Amendment 44 is consequential on Amendment 6, since it would make the point at which the regulations came into force the trigger point from which the market access principles would apply. I assure the Government that these amendments are drafted with the Welsh Government, who want the process on the face of the Bill.
I am grateful to the Minister for meeting me and other Peers last week and for his letter of yesterday. In it he states:
“The common frameworks programme was designed to find effective, pragmatic and flexible ways of working with the devolved administrations. The purpose of frameworks is to ensure that intra-UK policy-making is based on agreed structures for cooperation across the UK. They are voluntary in nature and allow the UK Government and devolved administrations the opportunity to find common approaches to the exercise of powers returning from the EU. One of the main benefits of the programme is its inherent flexibility to adapt to changing circumstances.
Enshrining common frameworks in legislation would remove the voluntary element on which the common frameworks programme is based. As frameworks are developed jointly with the devolved administrations, any change of this nature which departs from the agreed principles of the programme would need to be agreed with the devolved administrations. It would also likely eliminate the flexibility which makes frameworks effective in managing intergovernmental policy development in the long term.”
I agree that they are voluntary, but without them in this Bill it reads rather like a blunderbuss, sweeping over all in its path. That is precisely why the devolved Government in Cardiff want common frameworks to be the starting point for this legislation, not hidden away and never referred to, like the first Mrs Rochester. These principles of frameworks were first agreed in October 2017. More than 150 areas have been identified where EU law intersects with devolved competence, including 24 areas, now narrowed down to 18, where legislation may be needed. Thirteen of them are well on their way for early delivery. In the Minister’s response to the first group of amendments today, he flagged up that there will be “dozens of new powers” and responsibilities for the devolved Governments—I hope I have quoted his words correctly. This will inevitably mean wider divergence and, I suggest, is an even stronger reason for an agreed mechanism to find consensus and avoid the situation outlined by the example of flour. Only when that hits the buffers should Parliament step in.
The reason they need to be in the Bill—I believe that Scotland would strongly support this approach—is that they provide an agreed framework, whereas the Bill as drafted empowers the imposition of market access principles across all areas of economic activity, regardless of whether divergence between the devolved nations on a specific issue would pose a threat to the coherence of the internal market. It ignores the frameworks process that has been developed. It seems to assume such frameworks will fail without spending time listening to both sides to reach agreement, which may—let us be realistic—be an agreed compromise. It fails, if I may draw on John Lennon, to “give peace a chance”. It may not be the intention—though some may fear it may be—to launch a full-frontal attack on the current system of devolution, but whether it is or not, its approach feels overbearing and intolerant of difference.
This amendment and equivalent ones in respect of Parts 2 and 3 reverse the burden of proof. This would require the frameworks to be worked through properly, not in a tokenistic way. Failure to reach agreement would trigger action. It would create a system where the market access principles could then be brought into effect by affirmative resolution of this House and the other place. The principles would then, and only then, apply to specified areas of economic activity: areas where attempts to agree a common framework by negotiation between the four Governments of these islands had failed and where the Government could make a credible argument that there was a threat to the economic coherence and well-being of the United Kingdom.
Lord German (LD)
My Lords, these amendments have been prepared by the Welsh Government and have their support; I am pleased to support them. The Welsh Government, as noble Lords know, are committed to the union of the United Kingdom. These proposals before us today seek to find a route through in the way that the Bill has been put together. In fact, they intend to put the horse before the cart rather than the cart before the horse. In the discussions that we had on the previous group and subsequently, there have been for me some very puzzling matters, and I am trying to work out quite where the Government have placed themselves.
First, on timing, the Government seem to argue that we must have the Bill in place in its entirety so that on 1 January they can move forward and have something absolutely concrete to work from. I will come back to that point in a moment. The second point is that the Government have not been able to find any way to describe something which falls outside the area of the structure.
In the last round of amendments, the Minister described additives for flour. Flour and additives are part of the common framework on nutrition. I am told that the three frameworks which are already on the way to early delivery and will be fully operational by the end of the year cover nutrition, hazardous substances and emissions.
I am puzzled why the Government are not able to provide any specific examples of what falls outside the framework, apart from “the future”. We do not know what the future is, but as it arrives we will sort out legislation and frameworks as we move along. That is bound to happen.
Timing is another puzzle because the Government do not want to proceed with the common frameworks as the underpinning structure for this Bill. They seem to want to use what the noble Baroness, Lady Finlay, called a blunderbuss. Battle axe might be another way of putting it. Basically, they do not want the co-operative approach which has been at the forefront of these frameworks.
In September, the Government published their view of the frameworks. Right at the front—on the first page—were the principles which the Government are now seeking to break about the way in which they intend to govern, and about giving and not taking away powers from the devolved Administrations. They were right at the top of the Government’s own papers as recently as last month. If the Government want to put them front and centre, but need something temporary, why not say so? Why not put in a sunset clause, or some form of clause which says this will be a temporary measure until particular frameworks are in place?
The Government’s position is not defensible inside Wales as I know it. The Welsh Government have sought to bring forward a proposal which meets the Government’s aspirations. It says, “Put the common frameworks first and then, if there is any dispute whatever, use the backstop which is being put into this Bill through regulations.” We all want to see an alteration to the way in which they have been carried out and for there to be adequate consultation and debate.
My concern is that I am not certain that the Government know where they are going. I am not certain that they know what they mean by “putting the common frameworks front and centre”. Is this a timing issue? I hope that the Government will be able to answer all these questions.
I want to talk briefly about the one-use plastic teaspoon. They will be banned next year by the Welsh Government, through the Welsh Assembly, because they are bad for the environment and do not degrade in the soil. One-use cutlery is damaging for us as a country and for our environment. However, if that legislation is passed, there is nothing to stop a whole generation of English single-use plastic spoon manufacturers bringing them across the border and distributing and selling them wholesale in Wales. This is an extreme example, but it illustrates that there are bound to be some divergences if the power exists. If, as a Government, you have been given powers and you want to enable them, but you find you are being stopped because of this sort of extraordinary behaviour by a Government somewhere else, that is not going to help the union. The union of this United Kingdom is to be treasured, but to treasure it you have to respect it. I do not believe that the Government are doing so in this Bill. So I ask them all those questions about the direction in which they are going. Will they try to outline whether these frameworks will be placed front and centre? Is it a timing issue? Can they come up with some examples—one would do—which would tell us where the gaps are?
Baroness Andrews (Lab) [V]
My Lords, I can speak more briefly to this amendment than the one I spoke to earlier, because my arguments will be much the same. What attracts me particularly about this amendment is that it once again asks the Government to look at the possibility of putting in the Bill the process whereby the Bill becomes the default position and the common frameworks process has to be exhausted before the market principles kick in. I have said before that I think that this is logical. It helps the Government to achieve their own objectives.
When the Minister replied to the previous debate, it was very welcome to hear him say that he was prepared to give more thought to things he had heard the House say this evening. He seemed to think that this process of exhaustion was somehow going to be rather difficult and messy to achieve. From what we have seen in the Common Frameworks Scrutiny Committee, the dispute resolutions are worked out very clearly and in detail. I do not see a problem with that process at all and I would be happy to talk to the Minister about it. If he is worried about that, we can provide some reassurance and, as we scrutinise it, there may be some things we can do to improve the process. If it is a technical problem, then that is what we are here to solve. If it is a problem in principle, then we need to know; he needs to tell us.
The rest of the amendment is slightly more legislative in structure than the amendments from the noble and learned Lord, Lord Hope of Craighead, but I continue to support it in principle because it flags up the significance of common frameworks and the importance of the need for a fit between the Bill and the common frameworks.
The noble Baroness, Lady Finlay, asked me whether we had come across any areas where there was deadlock or difficulty in securing agreement. In the summaries of the frameworks that we have seen so far, and in the one completed framework, we have not seen anything that would alert us to the fact that there is a continuing problem. The problem that the framework negotiators have is the unsettled nature of European negotiations and the issues posed by this Bill itself. They are bound to be waiting for resolutions of different sorts. The processes that they are establishing are clear, transparent and robust. As I say, they offer a solution in practical terms, as well as, frankly, in ethical and political terms, as far as the Government are concerned.
With that, I simply say that I am pleased to support the amendment in principle. I look forward to the Minister, the noble Lord, Lord Callanan, having another go at some of these very specific questions that I think we have a right to hear some answers to.
Baroness Neville-Rolfe (Con) [V]
My Lords, I will speak to Amendment 6. I have already expressed some concerns about delays and problems that could arise in trying to satisfy devolutionary feelings beyond the existing devolution settlements and the withdrawal Act, which have already given many powers to Scotland, Wales and Northern Ireland.
We need always to bear in mind the need for a well-functioning single UK market. That is in the interests of citizens, and of charities and businesses which operate across the borders of Northern Ireland, Scotland, Wales and England. My noble friend Lady Noakes cited some figures which bear repeating. I think she said that 60% of Welsh and Scottish exports and 49% of Northern Ireland exports come to other parts of the UK. Incidentally, I was glad to hear my noble friend the Minister committing the Government to high regulatory standards.
We heard from the noble and learned Lord, Lord Hope, in an impressive speech, and from the Minister in an equally persuasive one, about the role of common frameworks in relation to Amendment 5. I heard what my noble friend the Minister said, but it may be that a brief reference to these common frameworks could make everyone more comfortable with this Bill—I was thinking of an annual report on how they are working and how consultations have progressed. It seems odd, given their importance, that there is no reference to them at all.
Lord Hope of Craighead (CB) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Neville-Rolfe. I found myself in agreement with some of what she was saying, and I respect very much the background in business and marketing from which she comes, which of course is of great value to the House in this discussion. She said that we were all agreed on the need for a fully functioning internal market and, as I tried to make clear in my speech, I am in absolute agreement with that aim. Obviously, everything we would do is working towards that aim, despite the differences of perspective across the various nations of the United Kingdom.
The noble Baroness said that a brief reference might be a way of making the devolved Administrations more comfortable. For my part, I have been trying to adopt a light-touch approach, which may not be too far away from what she is talking about—but it would have to be pointed enough to meet the concerns of the devolved Administrations and give them the assurance that they need for the future. So in a way I find myself in a rather frustrating position. I cannot believe that we are all that far apart, but the gulf that divides us at the moment is very deep. I would love to find a ladder, or something, that would take us across this gulf and solve the problem. That is why I am certainly open to discussion.
Before I go any further, I should say that I am entirely behind the noble Baroness, Lady Finlay of Llandaff, on the principles that lie behind her amendment. Indeed, I am extremely grateful to the Welsh Government, who have done so much to inform us about the background to the issue and who have done a great deal of drafting work to show us what amendments might be made to work to solve the problem as they see it. Although they look very different, my own amendments were inspired by the work that they have done, and I owe a considerable debt of gratitude to them for that, and for their generosity when I indicated that I would want to take a rather different approach in the way that the amendments should be worded. The principles behind us are exactly the same and, for that reason, I entirely support, in principle, the amendment in the name of the noble Baroness and applaud the way in which she introduced it.
This issue is simply not going to go away. We will be pursuing it in various ways on Report. For the time being, I encourage the Minister to appreciate that there is some force in the point made by noble Baroness, Lady Neville-Rolfe. If her approach were adopted, one could see this frustrating gap narrowing slightly—and I would love to see it closed over so that we could solve the problem completely, to the satisfaction of both sides.
The Deputy Chairman of Committees (The Earl of Kinnoull) (Non-Afl)
I call the noble and learned Lord, Lord Morris of Aberavon. Do we have Lord Morris of Aberavon? We will move on.
Lord Naseby (Con)
My Lords, I apologise to the House. I understand I was on the list for Amendment 5, but I never applied to speak on that one.
This is an interesting amendment. My colleagues, the noble Baronesses, Lady Noakes and Lady Neville-Rolfe, have already made the point that we are very close to 1 January—in fact, we are 66 days away, by a quick calculation—and so I look at that time dimension against the complications within this proposed new clause.
As I said much earlier in the evening, I am a marketing man by profession; I worked very closely with a large number of manufacturers when I was a senior director in one of the major advertising agencies. I find some of the elements of this amendment, or proposed new clause, too prescriptive. Take subsection (1)(a), where the whole principle is that nothing is going to happen until the
“access principles may be applied”
and have been “exhausted”. We are in a time framework where that is not going to work. It may be necessary, later on, to look at how it does work in principle, and maybe some changes should be made then.
I worry deeply. We are a creative nation. We are in an enormous period of change. One sees now what is happening in the fintech world: it is moving forward at an enormous rate, and it does not want to be stultified by a whole series of restrictions before it can be added to a particular schedule or not. All of us are conscious that there is a whole variety of different companies, across the world, trying to find an answer to Covid-19 through new drugs and vaccines.
Personally, I am terribly practical, and I just do not see the elements of this amendment helping the United Kingdom move forward. There may be bits of it that have some relevance—I am sure there are—and I recognise that they are put forward with a genuineness by people who want things to work. But when I listen to the noble Lord opposite talk about the Welsh Government, and having observed what is happening down in Wales now, one has to say that it is not terribly practical. I am not sure that the credibility of the Welsh Government is very strong in today’s world.
I hope my noble friend on the Front Bench will understand that, perhaps in the future, some of these elements may need to be applied, but, as matters stand today, with 66 days to go, frankly, I do not think that this proposed new clause helps at all.
The Deputy Chairman of Committees (The Earl of Kinnoull) (Non-Afl)
I call the noble and learned Lord, Lord Morris of Aberavon.
Lord Morris of Aberavon (Lab) [V]
It has been a most interesting debate. I do not think I have anything to add. I await the Minister’s reply with great interest.
Baroness Randerson (LD) [V]
My Lords, the concept of common frameworks is notable for its absence from this Bill, as many noble Lords have said. For three years, they have been accepted as the way forward, on which the future operation of the UK internal market would be built. Now, they have been silenced.
I, along with a number of other noble Lords who have spoken on this and previous groups, am a member of the Common Frameworks Scrutiny Committee, ably chaired by the noble Baroness, Lady Andrews. I can report that common frameworks are alive and well and that a great deal of work has gone into them. There is general agreement from stakeholders, the devolved assemblies and UK Government representatives that they can provide a sensible and effective way forward. Amendment 6 seeks to flesh out the principles of co-operation on which they should work. That common frameworks process should be exhausted before the market access principles come into place.
The Government respond by saying that there is no need for common frameworks, as a concept, to be enshrined in legislation. I am sceptical. There are already signs that the Government are attempting to sidestep common frameworks—for instance, on the emissions trading scheme, where they have announced their intention to consider replacing it with a carbon tax, which would be a UK responsibility and would effectively take away the devolved powers. That is despite the fact that the common framework on this issue—emissions trading—has just about got to the final point. Despite the Minister’s assurances, I fear that the Government are poised to put the principles in the Bill into effect with the excuse that common frameworks have not proved workable.
Amendment 6 has cross-party support. Noble Lords have emphasised that it has been designed in consideration with the Welsh Government and reflects the well-founded concerns of the devolved assemblies. As with a number of issues, there is a lack of clarity on how common frameworks will link with the market access principles. Common frameworks set up a system—a framework—for the operation of markets, complete with dispute mechanisms. They allow for changing standards over time. So, I ask the Minister: how does this fit in with the provisions in the Bill that remove the right of devolved Administrations to introduce new standards in many circumstances? If the Government genuinely support common frameworks as the fundamental building blocks of the way forward, will the Minister agree to accept Amendment 6, which states that the Bill’s market access principles apply only after the common frameworks process has been exhausted? Will she clarify the relationship of the Bill to common frameworks? Will she accept our assurances that the Welsh Government, for instance, want common frameworks in the Bill?
Will the Minister also explain precisely how the measures in the Bill will guarantee that the devolved Administrations will be able to experiment and develop novel approaches, as they have in the past? That is how a great deal of social and environmental progress has been made in the last two decades. I give the example, used earlier in the debate, of single-use plastic bags. Wales experimented with the concept of paying for single-use plastic bags and was dramatically successful in reducing their use. The English approach to this, taken by the UK Parliament, was very sceptical, but Parliament saw that it worked and, in due course, England followed suit. Wales is an ideal size as an experimental sounding board.
Amendment 44 to Clause 9 refers to the non-discrimination principle. For clarity, can the Minister spell out to us where the requirement for the provision of, for example, labelling in the Welsh language would stand in relation to that principle? There is a legitimate reason for the need for Welsh labelling in certain circumstances, and as policy in relation to the Welsh language matures, it is fairly certain that there will be increasing demand and need for labelling in the Welsh language. How will that fit with the Bill?
Lord Stevenson of Balmacara (Lab) [V]
My Lords, at the end of the previous group the Minister, the noble Lord, Lord True, kindly said that his mind was not closed to further discussion on this issue about common frameworks and how they relate to the Bill. I welcome that. In a sense, the amendments in this group are part of the same debate. I therefore hope that they will also be included in the next-stage discussions, as they are a variation on the theme.
I set out my route map for progress in my response to the previous group and I will not repeat it. However, I endorse the points made by the noble Baroness, Lady Finlay, my noble friend Lady Andrews, the noble Lord, Lord German, and the noble and learned Lord, Lord Hope, particularly their growing confusion about what exactly is in the Government’s mind on this issue. Perhaps the noble Baroness, Lady Bloomfield, coming fresh to the debate, can persuade us that there is indeed a coherent logic to the Government’s position—because it certainly eludes me.
Baroness Bloomfield of Hinton Waldrist (Con)
I hate to disappoint the noble Baroness, Lady Andrews, but it falls to me to respond to this debate. I will now speak to the two amendments—Amendment 6 and the consequential Amendment 44—concerned with how UK market access principles, as proposed in the Bill, will apply. I understand that the noble Baroness, Lady Finlay of Llandaff, has tabled these amendments on behalf of the Welsh Government. Accordingly, I would like to begin by thanking the Welsh Government for their positive engagement on this Bill so far. The UK Government look forward to continuing constructive future engagement with the Welsh Government.
As my noble friend Lord True said earlier, we continue to work closely with the Welsh Government to develop common frameworks, in line with the framework principles agreed by the Joint Ministerial Committee (EU Negotiations) in October 2017. I know the Senedd were happy to see the Joint Ministerial Committee provisionally confirm the first two frameworks of the programme on hazardous substances and nutrition. Work continues in earnest to reach further such agreements in the coming months and beyond.
Before I turn to the detail of the amendments, I want briefly to cover the context of the Bill in order to explain the approach the Government took to applying the market access principles. At the risk of repeating the arguments of my noble friend Lord True, now that we have left the EU and as we recover after our fight against Covid, it is vital that we deliver legislation which allows the continuing smooth function of our UK internal market at the end of the transition period. The Bill aims to ensure frictionless trade, movement and investment between all the nations of the UK. The policies that different parts of the UK choose to pursue in the future is a matter for each Administration. The Bill ensures that these local policies can be pursued while maintaining seamless trade in the UK internal market. There is no question of the UK Government intending to bypass the common frameworks; the Bill is intended to complement them.
The approach we have taken in the Bill will give businesses the regulatory clarity and certainty they want. It will ensure that the cost of doing business in the UK stays as low as possible, and without damaging and costly regulatory barriers emerging between the nations of the UK. With this context in mind, I turn to the amendments. They would, in combination, prevent the market access principles from applying at the end of the transition period. The lengthy process they put in place before the principles can apply, including the need to exhaust frameworks discussions, would mean a considerable delay in securing business certainty that trade can continue unhindered within the UK’s internal market. The resulting threat of unmanaged regulatory divergence would not provide the certainty businesses need and could deter businesses that wish to expand and supply customers across the UK. This is not desirable, especially as we continue our recovery from Covid-19.
The amendments would also limit the areas to which the market access principles can apply. Again, this would unduly constrain the scope of the principles and fail to protect the internal market fully. In contrast, the Government’s approach is more comprehensive and ensures that businesses in all sectors can continue to trade across the UK without facing new barriers or discrimination.
The amendments also present a challenge in defining the exhaustion of the frameworks process. In all cases, common frameworks are designed as living arrangements, capable of change by agreement as required. Thus, the process is never wholly exhausted. The new clause also specifies a consultation process with the devolved Administrations and the CMA, or, failing that, a 12-month delay before any regulations can be made specifying areas to which the market access requirement would apply. The Government are already committed to appropriate consultation with the devolved Administrations; however, under the terms of the amendments, the time limits proposed would create unnecessary delay.
The noble Lord, Lord German, asked about the timing of the Bill. Reduced certainty would indeed be a disaster to our recovery from Covid-19. We do not believe that it is acceptable for businesses to have less certainty on trade with their UK supply chain after 1 January 2021 than they have today and have had for centuries. The UK Government are committed to ensuring that the status quo of seamless internal trade is maintained for the shared prosperity and the welfare of people and businesses across all four nations of the UK. Without the internal market, livelihoods would be at risk. There is also the issue of future-proofing the Bill to allow that, for the jobs of the future, mutual recognition will apply across areas that we may know nothing about today, including things such as the artificial intelligence industry.
My noble friend Lady Neville-Rolfe and the noble and learned Lord, Lord Hope, asked whether reference should be made to the common frameworks should be made in the Bill. We already have a statutory obligation to report quarterly on progress on the common frameworks, so there is no need to put this in the Bill as well. Far from being silenced, as the noble Baroness, Lady Randerson, suggested, as she knows, two common frameworks have already been agreed. However, some 38 more have yet to be considered, with only nine or 10 weeks until the end of the transition period. They do indeed provide a very sensible framework, but they remain voluntary. Ultimately, the common frameworks depend on continued co-operation. In spring 2019, the Scottish Government walked away from the internal market project. This legislation is required to provide certainty for business and consumers.
The noble Baroness asked about labelling in Welsh. There is nothing to prevent labelling in Welsh for goods produced in Wales. I was also asked about the use of plastic teaspoons. The Welsh Government can still ban their use, but perhaps not their sale.
For these reasons, and for the uncertainty and confusion that it would generate for businesses and consumers, unfortunately the Government cannot support the amendments in this group and I would ask noble Lords to withdraw or not move them.
The Deputy Chairman of Committees (The Earl of Kinnoull) (Non-Afl)
I have received one request to speak after the Minister. I call the noble Lord, Lord Purvis of Tweed.
Lord Purvis of Tweed (LD)
My Lords, I listened very carefully to what the Minister said about the need for certainty, which seems to be the overriding approach. But, having listened to my noble friend Lord German and the noble Baroness, Lady Finlay, I would refer to the Food Standards Agency report, Food and Feed Safety and Hygiene Common Framework Update. Paragraph 3.15 states, in relation to adopting mitigating measures against mutual recognition, which we will discuss in another group on another day, makes a quite interesting point that
“where common approaches are taken, mutual recognition will not apply.”
If that is the case in this Bill, the common approaches across the nations—the mutual recognition and certainty that she indicated—will not apply. But we do not yet have full agreement on all the common frameworks, so how can that apply under this Bill, given that we have not reached the agreements yet? However, the Government’s own position is that mutual recognition will not apply if common approaches are taken on any regulatory changes. So which is it? Is it in this Bill or is it within the common frameworks?
Baroness Bloomfield of Hinton Waldrist (Con)
I am afraid that the noble Lord has the advantage of me in that I have not seen that bit of the food standards framework. I would rather look at his question again in Hansard tomorrow and reply to him in detail. I do not think that I am able to give him a full answer now.
Baroness Finlay of Llandaff (CB) [V]
My Lords, I am most grateful to all noble Lords who have spoken. I am grateful to the Minister for her response but it is disappointing.
I must say that I appreciate the noble Lord, Lord German, pressing the Government on why they cannot specify any examples of potential disruption to the internal market, because we really need to hear those. Perhaps the Minister might write to me with some of those specific points following this debate. I note that the noble Baroness, Lady Andrews, confirmed that there is no evidence that common frameworks are breaking down, nor that there is an inability to be fast.
I can see that the timing in the amendment needs to be looked at and renegotiated, and I am sure that would not be a problem. I know that the Welsh Government are sincerely committed to bridging the gap that the noble and learned Lord, Lord Hope, outlined so clearly; at the moment it is a chasm, but it can be bridged.
I agree with the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Naseby, that we all want the UK to prosper and things to work, but we must find a way to make them work by not splitting the UK, which is what the Bill seems to be doing at the moment.
I am grateful for confirmation from the noble Baroness, Lady Randerson, and the noble Lord, Lord Stevenson, of cross-party support for this approach. I have to agree with the noble Baroness that there is little evidence of the Government’s good will towards devolution in the Bill as drafted, and that at the moment the logic of the Government’s approach is quite difficult to discern.
The amendment was a genuine attempt to restore confidence between the central Westminster Government and the devolved Governments. I hope we will return to it because I think we need to. This was a hand of peace, an olive branch, and we must return to it later on Report. For the moment, though, pending further discussions and negotiations, I beg leave to withdraw the amendment.
United Kingdom Internal Market Bill
Wednesday 28th October 2020
(4 years, 6 months ago)
Lords ChamberUnited Kingdom Internal Market Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 135-III Third Marshalled list for Committee - (28 Oct 2020)
The Deputy Chairman of Committees (Lord Lexden) (Con)
We come to the group beginning with Amendment 7. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division should make that clear in the debate.
Clause 2: The mutual recognition principle for goods
Amendment 7
Baroness Hayter of Kentish Town (Lab)
My Lords, my purpose in moving Amendment 7, which would exclude imported goods, is to emphasise, in rather stark terms perhaps, that the Bill goes considerably further than simply saying that goods made in one part of the UK must be able to be sold in any other part.
As written, it allows any good that one part chooses to import to be sold throughout the UK, with absolutely no say by the Governments or legislatures of the other three countries. So, if Northern Ireland, for any reason, permitted chlorinated chicken to be imported—although I am absolutely confident that it would not—those delightful carcases would automatically have the right to be sold elsewhere in the UK. Similarly, if Scotland accepted a very high salt content in crisps or we in Wales had too much sugar in our chocolate, or anything else like that, we would be able to import those things in any one country and they would automatically have the right to be sold elsewhere.
It could be something that we do not want for all sorts of reasons. For example, England might import something that perhaps does not damage particular producers, consumers or the environment within England but could affect farming, consumers or households elsewhere. With agriculture, we would well understand the problem with sheep farming—hill sheep farming in Wales being more affected. Certain things imported into England could have a more devastating effect somewhere else; nevertheless, once imported into one country, there would be an automatic right for a good to be sold across the kingdom.
When we were in the EU, of course, we had similar rules on what are called “goods on the market”, whereby goods guaranteed as safe, desirable or acceptable in one country could appear in the other 27 markets. However, the difference is that the EU has a system of mutual recognition of checks, standards, assurance and monitoring, as well as the safety alert system, which applies to all member states, so that each nation has confidence that, when something is imported and on the market in one country, it is equally acceptable in any of the other member countries.
It is not that we distrust any of the fellow Governments in the UK—even Mr Johnson’s—but the worry is the denial of the involvement of the other three nations in decisions on what to import by the fourth. Of course, that then impacts on what can be sold on that market, and that is the problem—the lack of that involvement. The noble Lord will understand that this is more of a probing amendment but I think that it needs justifying and some explanation of the risks in relation to imported goods.
Amendment 8, in the name of my noble friend Lord Rooker, who is of course something of an expert on the subject, is more targeted and would exclude food or animal feeding stuffs from the mutual recognition principle. Obviously, I will let him make the case, rather more effectively than I ever could, for himself, but I should say to the Minister that my noble friend’s amendment is absolutely on the button with regard to consumer worries, so he will need some rather robust arguments for that amendment not to be considered on Report. I beg to move.
Lord Rooker (Lab) [V]
My Lords, at this stage of the Bill, Amendment 8, like Amendment 7, is a probing amendment, but I should just like to comment as an aside on the reference in the amendment to the definition of “food”. Most of our discussion on food safety centres on the Food Standards Act 1999 and the Food Standards Agency, but the bedrock of food safety in the country is the Food Safety Act 1990. Thirty years on, that Act, introduced by a Conservative Government, has really stood the test of time. The change made in 1999 was to separate policy for protecting consumers from the department at the time—MAFF, the producer department.
I do not want to disappoint my noble friend but I shall deal only with animal feed issues. I took the view that there will be plenty of opportunities to raise food issues—of course, I reserve the right to come back to those—but I want to deal with some animal feed issues. There is no lobby and no brief on this; I am simply using my own experience on some aspects and have made a modest internet search for some numbers. It is a multi-billion pound business, and it is crucial for human and animal safety that it is regulated effectively. There are some matters relating to animals—we are talking about food animals—which are all-island matters and which I am not at all clear about, and the Bill does not make them clear.
Animal disease control is currently an all-island matter on the island of Ireland. I say that for obvious reasons, but does that remain the case under the Bill? That is a point that really needs bringing home. If you looked at the other aspect, particularly in Schedule 1, you would think that we in the UK were isolated. We are not. Northern Ireland is on the island of Ireland, and there are some issues—I will give some other examples—where all-island matters take priority.
Animal feed is an area worth looking at because, to be honest, it is not considered to be as important as food, although of course it is. I recall that when I was at the Food Standards Agency—this was under the then chief executive, Tim Smith, who of course is currently distinguishedly chairing the agriculture trade commission and others—discussions with Thompsons in Belfast, the largest feed mill in Europe, centred on a scheme for controlling animal feed imports into the island of Ireland. This was industry-led and was to be through very few ports indeed. Today Thompsons operates an animal feed joint venture with R&H Hall in the Republic via Origin Enterprises to provide grain and non-grain ingredients to animal feed manufacturers and the flour milling industry across the island of Ireland. I want to know how that is affected by Clause 2.
To give a sense of the importance and scale of livestock, it is much more important to the economies of Northern Ireland and Ireland than it is to the rest of the UK. I will give just one example. If we compare human populations with those of the four-legged food production animals, cattle, sheep and pigs—I have excluded horses, which people can get uncertain about; we slaughter horses for feed but we export them—in the UK the ratio is approximately 0.7 of an animal per person, but in Ireland it is 2.6 animals per person and in Northern Ireland the figure may even be 2.7. So one can see that livestock is much more important to the economies of the island of Ireland than it is to the rest of the UK.
Animal genetics are just as important on an all-island basis. For example, Elite Sires has been Ireland’s leading provider of high-quality pig semen for 30 years. It is the sole provider of DanBred cutting-edge swine genetics on the island of Ireland, based of course on Denmark’s remarkable success in pig production. It delivers what it says—because I could not argue between one sample of swine semen and another—is the best swine semen in the land all over Ireland at the time when the animals are ready. How is that affected by Clause 2?
I mentioned that the safety of feed is important. The Food Standards Agency and Food Standards Scotland are responsible for, and carry out, the function of official controls, to use the technical term, via local authorities. That is the case with most food safety issues as well. However, local authorities, particularly in England, have not in the main taken feed issues as seriously as food. The Food Standards Agency, being aware of that—I am speaking now specifically about England—has taken many steps to try to improve the situation, but the picture in its latest assessment is not a good one. I will give some short quotes from the executive summary of the latest audit for England of the way that local authorities look at animal feed, published as long ago as October 2016. Local authority service plans
“had not adequately taken into account the Agency’s National Enforcement Priorities … There had been only limited implementation of the scheme for earned recognition.”
There was “little evidence” that local authorities
“had reviewed the impact of earned recognition on the delivery of official controls”.
Local authorities were
“using an out of date version of the Association of Chief Trading Standards Officers … risk scoring system”.
Half the local authorities audited
“had incomplete feed registers and databases”,
which are absolutely fundamental to traceability. It said:
“Auditors were unable to assess the effectiveness of formal feed law enforcement actions as none had been carried out in the previous two years”.
Lastly, none of the English local authorities audited had
“any specific documented procedures for assessing the accuracy of official feed reports to the Agency”.
I have to say that if the Government want to check on this situation and there has been no significant improvement in the last few years, that function should probably be removed from English local authorities because they are not up to the job. It is fundamental to human and animal safety.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am delighted to follow the noble Baroness, Lady Hayter, and the noble Lord, Lord Rooker. I shall speak to my own amendments but I have a question following on from what they have both said which relates to an earlier debate, particularly when in summing up the noble and learned Lord, Lord Hope of Craighead, linked Clause 39 of the Agriculture Bill to the clause relating to the movement and mutual recognition of goods.
Clause 39 of the Agriculture Bill relates to marketing standards, and I have a specific question to put to my noble friend the Minister that I hope he will address head on in view of the remarks made by both the previous speakers. If, in the course of events in the new internal market arrangements under this Bill, the Food Standards Agency with responsibility for England came out with different provisions to Food Standards Scotland, and in the event that the latter adopted different rules for, especially, animal products, food and animal feed, how would that impact on the free movement of goods? Could it eventually mean that there was no longer any mutual recognition, and Scottish goods could not pass into England or other parts of the United Kingdom in those circumstances? Would the same apply if the Food Standards Agency in England produced different rules to other parts of the United Kingdom? It is extremely important that we understand those impacts.
I will now speak briefly to my Amendments 20, 22, 26 and 45. I am extremely grateful for the extensive briefing I have obtained from the Law Society of Scotland and for its drafting of these amendments, which are probing in nature but address some key issues. Amendment 20 is a probing amendment to seek the Government’s interpretation of Clause 4(2)(b). Clause 4 purports to mean that certain regulatory divergences that currently exist will continue to be able to be enforced against goods produced in or imported into other parts of the United Kingdom and would not be able to be so enforced were they introduced after the mutual recognition principle comes into force. However, the Law Society of Scotland has noticed that, in order for a statutory requirement in a part of the United Kingdom not to be a relevant requirement for the purposes of mutual recognition, the conditions in subsection (2) must be met.
There are two conditions in subsection (2), and my comments will relate specifically to subsection (2)(b), which provides:
“The conditions are that, on the relevant day … there was no corresponding requirement in force in each of the other three parts of the United Kingdom.”
What provisions do the Government imagine will be captured by the current terms of Clause 4? For example, food and feed law is mainly derived from EU law, and, in terms of the European Union (Withdrawal) Act 2018, this body of law is retained EU law, implemented throughout the UK. Are Scottish food and feed regulations, and, by implication, all retained EU law, excluded from the application of the mutual recognition principle because there are corresponding requirements implementing the same EU obligation, albeit in slightly different terms, to fit into the relevant law in each of the other parts of the United Kingdom? How does the mutual recognition principle relate to common frameworks? My Amendment 22 simply has a consequential effect, following on from the deletion of Clause 4(2)(b), making the necessary changes there.
Amendment 26 probes the meaning of Clause 5(3), regarding the effect of a statutory requirement under Clause 6. It appears that Clause 5(3) would render a statutory provision in devolved legislation “of no effect”. This lacks clarity. Am I right in thinking that the statutory requirement is valid? Is it valid but cannot be enforced? Is it voidable? It is also not clear regarding the application, if any, of Clause 5(3) if the statutory provision is in an Act of Parliament that applies to England only. I would be grateful if the Minister would take this opportunity to clarify this.
The amendment applies the statutory language that exists in Section 29 of the Scotland Act 1998 to Clause 5(3) in an effort to bring clarity to the point. Section 29(1) provides:
“An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.”
It is not the intention of this amendment to amend the Scotland Act 1998 but rather to say that that Act provides, in my view, much clearer language than the Bill. These statutory provisions could be challenged by private parties and will presumably also be a basis for challenging devolved legislation. Assuming the inability to modify the Bill under Clause 51, it will in all cases prohibit legislation that is contrary to its principles. Presumably that is the intention, but it is not the clearest way that that outcome could have been achieved, so I am grateful for this opportunity to seek clarification.
Finally, Amendment 45 is a probing amendment, looking to understand a phrase the Government have used: “substantive change”. What do they interpret as substantive change in connection with changes to statutory requirements? I am grateful for this opportunity to speak to these probing amendments.
Baroness Finlay of Llandaff (CB) [V]
My Lords, Amendment 21 in my name is effectively consequential on the changes I have already proposed to ensure that the market access principles are only applied once regulations have been brought forward, relating to a specific type of goods, when it has proved impossible to reach agreement through the common frameworks process.
The Bill proposes that legislation already in place at the time Part 1 of the Bill comes into force cannot be caught by the market access principles—at least where the restrictions imposed by that legislation are not ones that exist across the United Kingdom. This amendment would simply apply that same principle in the context of a process whereby the market access principles could only be switched on by regulations approved by both Houses, meaning that restrictions to the exercise of devolved powers would only be switched on in specific areas where the Government have made regulations to that effect. In other words, the rules on non-discrimination would apply only where a devolved legislature sought to introduce new statutory requirements in the particular area covered by the regulations. This seems to be both logical and respectful of devolved competencies.
I also record my support for other amendments in this group, notably Amendments 7 and 8, which seek to limit the mutual recognition principle in ways that seem thoroughly appropriate, and Amendment 20 in the name of the noble Baroness, Lady McIntosh. This last amendment touches on an important point and would, on its own, if adopted, broaden the scope of the exemption for prior legislation. It seems to me—and please correct me if my understanding is wrong—that this would address one of my major concerns, which is that the legislation seeks to prevent regulation that increases standards but does not impede regulation that lowers them.
The Bill as currently constructed would mean that, if this Parliament decided to legislate in England for the current ban on the use of hormones in beef cattle to be removed, for example, then the fact that a ban had previously existed in Wales and Scotland could not be invoked to prevent the sale of such beef in those nations. This is because the condition in Clause 4(2)(b) would require the Welsh and Scottish Governments to demonstrate that a “corresponding requirement” had not previously existed in England.
In a letter from the Minister that I received just as we started this debate, he stresses, if I have understood it correctly, that a potential for harmful regulatory divergence did not exist during our membership of the EU, but, at the end of the transition period, that will change and create a significant risk of harmful divergence between the four nations. He goes on to write that the Government have consulted widely on the proposals and have had overwhelming support from businesses and industry organisations on the steps they have outlined to protect our internal market from discriminatory behaviours.
I would be most grateful if the Minister could kindly tell us, either today or in a letter following today’s debate, details of the results of that consultation because I think it is important that those of us speaking to amendments really understand the background of the results that came in. I will be most interested in the Minister’s reply to all the amendments in this group, particularly Amendment 20.
Lord German (LD)
My Lords, I have added my name to Amendment 21 to which the noble Baroness, Lady Finlay, has spoken. It seems to me that the clarification that the amendment is seeking is to understand whether, where a statutory regulation, rule or law is passed in a devolved Administration, that would exist until such time as the UK Government decided something different. Whether or not that is the intention of the Government, I do not understand.
The difficulty that I face in trying to work out the logical progression and the sequencing of what is happening in this Bill is correlated with the issue that we had on the common frameworks. It seems to me that the Government are moving down a dual carriageway in which one road is the internal market Bill and the other is the common frameworks progression, and between them is a brick wall. I do not understand how you can cross over between one and the other. That is the understanding that I got from the discussion we had in the earlier days in Committee.
The problem is that by the end of this year—I will use this as an example, which I would like the Minister to respond to at the end, if he would—the framework on emissions trading, which is a legislative framework, will be completed. I understand that it is with Ministers for final sign-off, but it has been agreed. If that emissions trading legislative framework is agreed, presumably there will then be legislation. I would like to understand where that legislation fits within the context of this Bill. Clearly, that has been reached by agreement—it has been agreed by all parts, including the United Kingdom Government, that there will be a legislative approach to this particular area of work. Then, of course, there will be a piece of legislation that sits either within this Bill or without it. I would like to know where that legislation will occur: will it be stand-alone legislation or will it be an amendment to the Bill we are discussing today?
There are two other frameworks—one on nutrition and one on hazardous substances—that are also virtually complete. They are non-legislative, and I understand that they will be agreed by Christmas. Take those three areas: on one side we have a legislative proposal and on the other we have a non-legislative proposal that the Government have agreed will be a non-legislative proposal and will therefore not require other legislation. And it will not require this legislation, because that is what the Government have agreed. Perhaps the Government could explain how the two are interconnected.
I understand that the reason for turning down a frameworks-only approach is because there are gaps, but we are yet to find out what the Government have established is a gap. We have asked for a current example that we can use, and I hope that, over the past few days, the Minister has found a current example that he can give us.
It seems to me that the fundamental principle that Amendment 21 is trying to establish absolutely is that, where there has been a legislative agreement or legislation that has been passed by either Wales, Scotland or Northern Ireland, when the Government introduce new legislation or regulations on the back of this legislation, such legislation will look only at the future and not the past and will have no retrospective effect.
Baroness Noakes (Con)
My Lords, I would like to remind the Committee of two things about this Bill. First, the Bill is to facilitate trade between all parts of the United Kingdom, not make it harder. Secondly, businesses favour barrier-free trade. That was the very clear message that came from the consultation on the White Paper during the summer. We should be trying to minimise the possibility of barriers being put up to trade within the United Kingdom.
If we allow exclusions of goods from mutual recognition, that will inevitably lead to higher costs. This is analysed in quite considerable detail in the internal market White Paper. Costs generally end up being borne by consumers. Excluding goods can also result in businesses deciding to withdraw from certain markets, which can in turn restrict consumer choice. I know the noble Baroness, Lady Hayter, is keen on consumer protection; she reminded us of that on the first day of Committee. Restricting trade tends to operate against consumer interests, so we should be very careful in trying to put amendments to the Bill that make trade more difficult. I also remind noble Lords that restricting trade is more likely to hit the devolved Administrations’ economies because of their greater dependence on exporting to the rest of the United Kingdom.
I want to comment on a couple of the amendments in this group, Amendments 7 and 8. The noble Baroness, Lady Hayter, said that Amendment 7 was a probing amendment, but by seeking to exclude imports into any part of the United Kingdom we are reducing the internal market rules to a very parochial interpretation. It seems to ignore the plain fact of commercial life, which is that there are complex supply chains and complex distribution logistics. It is of course the way we have been living in the EU; at the moment, we are quite accustomed to importing in one place and those imports being accepted throughout the rest of the community.
It also seems to me that the noble Baroness’s amendment would, in effect, impact exports between different parts of the United Kingdom. For example, if something was exported to Wales and imported to England, it would stop it then being imported into Scotland with the protection of the internal market Bill. That does not seem to make any kind of sense. It is pretty clear from the impact assessment that Wales and Scotland in particular are reliant on intermediate goods coming from other parts of the United Kingdom.
The noble Lord, Lord Rooker, spoke to Amendment 8. I did not follow what he said about pig semen because I do not think that, by any definition, pig semen is an animal feedstuff. I did have a chance to check the definition of “animal feedstuff” while he was speaking, and it is not. Perhaps we can put that to one side. We have to understand that if we try to exclude food and animal feedstuffs from the UK internal market mutual recognition rules, this will again potentially impact the devolved Administrations the most, given their import and export profiles. For example, if you look at Wales’s agri-food chain, you will see that 48% of agricultural inputs to Welsh food manufacturers come from the rest of the UK and 31% of food and drink sold in Wales comes from the rest of the UK. We should be thinking really hard about who we are likely to hurt when we put amendments such as this in the Bill, which restrict barrier-free trade.
Lord Hope of Craighead (CB) [V]
My Lords, I support Amendment 7 in the name of the noble Baroness, Lady Hayter, and Amendment 21 in the name of the noble Baroness, Lady Finlay.
I shall start with Amendment 7. First of all, I entirely agree with the noble Baroness, Lady Noakes, that importing and exporting goods is part of the commercial life of this country. That applies across all parts of the United Kingdom, and one can well understand the point that she makes about the importance for the devolved Administrations of maintaining that system with as little interference as possible. However, the point to which Amendment 7 draws attention is a matter of real concern to the devolved Administrations. As she explained, its effect appears to be to deny them any involvement in decisions on the importation of goods from overseas, to which they might wish to take objection. Various horror stories are of course passed around as one discusses this issue, but I am not concentrating on them so much as I am on the simple lack of ability to contribute to a discussion as to whether or not these goods should be imported.
If one was talking about legislation, I suppose one would say the Sewel principle would apply and consultation would take place, but there appears to be nothing that allows for that. The effect of the way the provision is worded is that something that comes in can take the benefit of the principles and pass without any kind of control to the devolved Administrations, without their having any say. That is of real concern. This is a probing amendment, but it requires some explanation of what place, if any, the devolved Administrations have in trying to resist the importation into, and transmission across borders within, the UK of goods to which, for one reason or another, they might wish to take exception.
That covers Amendment 7. As for Amendment 21, I was attracted by what the noble Lord, Lord German, said about the dual carriageway—the parallel lines—for a particular reason, which I have not mentioned before but must be emphasised. The common frameworks are living arrangements. There is no point at which one can strictly say that a framework has come to an end, although I confess that my own amendment suggests that it could happen. These frameworks are open to subsequent discussion and revisiting as things change. For example, much of the UK emissions trading system is based on EU law and treaty arrangements that could change. If that happened, the framework would be revisited, and, no doubt, different policy decisions may need to be taken. The same is true of the hazardous substances framework.
One has to bear in mind these are two living instruments working side by side: the UK internal market and the common frameworks system. The fact that, as the Bill has it at the moment, there is no means by which they can communicate with each other, is a matter of real concern, because it affects the whole structure of how these things co-operate and will co-operate in the future, in ways we cannot yet predict. That underlines the importance of trying to find a solution to the point I drew attention to on Monday of making some arrangement whereby the decisions taken, based on common framework decisions, to legislate in the devolved Administrations are protected against the effect of the market principles, particularly the non-discrimination principle, which has very broad reach indeed.
The great value of the amendment of the noble Baroness, Lady Finlay, is that it has drawn attention once again to that very real problem. It requires some response from the Minister so that we can have some idea of how he thinks these two parallel carriageways, stretching out into the future, will ever meet and co-operate with one another.
Lord Purvis of Tweed (LD)
My Lords, it is a pleasure to follow the noble and learned Lord and to agree with the thrust of his argument, which he made very well. The noble Baroness, Lady Noakes, made the valid point that the purpose of our internal UK economy is to have as few barriers as possible while recognising that we are an entity of four nations with distinct areas that can make their own policies. That is not new. The Agriculture Act 1970 had different applications within the Scottish, English and Welsh agricultural sectors. So many of the areas we are talking about within these groups predate the European Union, so the principle that we have had a different approach in many of the component nations is valid.
The Government, however, have introduced this new concept, which means, for example, that the UK’s biggest food and drink export, whisky, could now be open to a great problem because a decision made by one country, Scotland, could act against the interests of farmers in England who provide products to serve that. It is the barley question, which the Minister has referred to and on which I have asked questions before. As the noble Lord, Lord True, indicated, in summing up the debate on the previous group on Monday and correcting the noble Lord, Lord Callanan, that is an area that will be covered by a legislative framework.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
The noble Lord, Lord Naseby, has withdrawn, so I call the noble Lord, Lord Inglewood.
Lord Inglewood (Non-Afl) [V]
My Lords, this is been an interesting debate. These amendments are important, focusing as they do on food, foodstuffs and animal feed, and the legal framework surrounding them in the UK internal market that is about to come into being.
While I have passed a few law exams in my life, I want to come at the issues from a slightly different perspective, as a farmer. I spoke about a number of these matters during the passage of the Agriculture Bill. What I intend to do is along the lines described by the noble Lord, Lord Rooker, in respect of his amendment, which I am pleased to speak to: probe the Government and get a bit deeper into what their actual position and thinking might be. As a number of noble Lords have said, these matters are still pretty unclear.
In the context of the amendment in the name of the noble Lord, Lord Rooker, perhaps I might say that, as a one-time chairman of Carr’s—one of the country’s largest animal feed suppliers—and as a farmer who had his livestock wiped out in the foot and mouth outbreak, I believe that the points he made merit serious consideration.
First, I declare an interest as someone who farms and manages land in Cumbria. I am also involved with a number of organisations that are stakeholders in and consultees on the forthcoming changes in policy across the UK, although I will confine myself principally to England in my remarks. I should also say that I am the chairman of the Cumbria Local Enterprise Partnership. Agriculture is one of the most important industries in the county, both on its own account and for the role it plays in underpinning the visitor economy—as your Lordships will appreciate, that has been very hard hit.
One of the characteristics of the common agricultural policy was its intention, perhaps observed as often in the breach as in anything else, to establish a single market for agricultural products across the Union. One of its purposes was to establish even-handedness across the whole; albeit it was not a homogenous area and, indeed, as I have said already, it was not always successful. Surely this must be one of the aspirations of the UK internal market that we are now considering.
Noble Lords will understand fully that the systems of support for agriculture are evolving as particular outputs of agriculture are being expanded—I do not think that there is much objection to that—and that, as this is a devolved matter, much of the detail is being dealt with at that level. In this context, as was commented on by the previous speaker, Defra is almost exclusively an English department, albeit part of the UK Government. It is clear that the systems of support are being reconfigured quite significantly across the various home nations, in respect both of quantum and of impact, so there will be real variations.
These differences can and will have a real impact on the marketplace. Perhaps the best example I can quote is historical; I hasten to add that I do not expect the Minister to be familiar with the detail, and I expect it may raise a smile. However, the evidence is clear from what happened in the Cumbrian agricultural economy in the 17th and 18th centuries, when the rules of trade relating to the English-Scots border in the period from the Union of Crowns until after the Act of Union varied quite regularly. I draw the House’s attention to Professor Peter Roebuck’s book Cattle Droving through Cumbria 1600-1900, where this is all spelled out. More recently, in my own case, as a boy I went with my father to buy an Ayrshire bull near Lockerbie. When we got it home, we found that its Scottish licence did not allow us to deploy it in England, though fortunately I am glad to be able to tell the House that, after a bit of trouble, we acquired the relevant authorisation and put it to good use.
Setting aside what is, I think, generally accepted as a better settlement for agriculture in Scotland, Wales and Northern Ireland than in England, let us look at what is about to happen. England is hell-bent on phasing out direct payments. I am not opposed to that but doing so as soon as possible is a problem—unlike in Wales, which is not starting until 2022, and Scotland, which I think will start even later, in 2023, because they want time to be able to put their houses in order and get the policy sorted out.
We must not forget that farm income is predominantly derived from the sale of agricultural commodities and is likely to be so in the immediate future. All the evidence that I have been able to glean from appropriate discussions with stakeholders and consultees is that Defra is formulating its policies for the transition in cloud-cuckoo-land. Its sustainable farming systems were described to me by one interlocutor as “nationalisation by micromanagement”—something that the Government are, at the same time, committed to reducing in the context of planning, as is spelled out in the planning White Paper. Another person, discussing the generality, commented, “Well, you’ll go bust quicker taking the money than not doing so.”
There are clearly all kinds of ramifications of these kinds of things but, in the context of the Bill, the UK marketplace for agricultural products, as has been commented on by a number of speakers, is in imminent danger of being seriously distorted because of all the changes that are being considered. It is not even-handed across the union and it becomes a cancer in the market. As such, it merits the serious attention of the UK Government; as I have said, they just happen to be the English generator, and hence also the architect, of some of the forthcoming difficulties. Furthermore, what confidence can English farmers and English agriculture have that the internal market will not be rigged against them? What will the system of market regulation being put in place be able to do about it?
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
The noble and learned Lord, Lord Morris of Aberavon, has withdrawn, so I call the noble Lord, Lord Liddle.
Lord Liddle (Lab)
My Lords, this is a very interesting debate to join. It is a pleasure to welcome the noble Lord, Lord Callanan, to his place, as it were, once again defending an extremely complex and difficult piece of legislation. I hope he will give pretty comprehensive answers to the points raised by my noble friend Lord Rooker, the noble and learned Lord, Lord Hope of Craighead, and the noble Lords, Lord Purvis and Lord Inglewood, because they all had great merit.
I spoke at Second Reading but was not able to attend the first day of Committee because of commitments in Cumbria. In all the furore about the unconstitutional and completely unacceptable clauses of the Bill, the Government have got away with the rest of it, which may not be unconstitutional but is certainly unacceptable. Therefore, this House should expose it to very critical scrutiny.
We need clarification—this is where my noble friend Lady Hayter’s amendment is so important—in very simple and clear language of what the Government mean by mutual recognition and how this will work out. The idea of mutual recognition was an important foundational principle in the history of the European Union and the single market, but only because mutual recognition without anything else is a weapon that results in a race to the bottom. In the single market White Paper put forward by Jacques Delors in the early 1980s, the whole point was that you had to have common standards and harmonisation in a list of certain areas—I think there were 300—to go alongside the principle of mutual recognition.
I have two points to make on this. First, on the position of the devolved authorities and the nations of Britain, do the Government recognise that an essential principle of devolution is that diversity and experimentation are good things, and that it is therefore important that in a devolved settlement the devolved nations should be able to experiment with setting standards in the areas of public health, environment and consumers? This is part of the point of devolution. It is not something the UK Government should seek to prevent. It is very important that the Government make clear their support for the principle of devolution and diversity.
My second general point is the one to which the noble and learned Lord, Lord Hope, drew attention in his support for my noble friend Lady Hayter’s probing amendment: why do the Government include in their general principle this business of goods being imported into the United Kingdom? Does this essentially tell the devolved Administrations that, in any trade agreement that the UK Government negotiate, they will have no say over the standard of goods coming into the UK and would have to accept them whatever they thought about their compatibility with their own aspirations to set standards? That seems to me a fundamental point that needs an answer. This legislation is deeply complex, but we need clarity from the Government on fundamental points.
Lord Fox (LD)
My Lords, this has been a relatively short debate in terms of the Bill so far, but it has raised some fundamental issues which beg some quite deep and considered answers from the Minister.
When the noble Lord, Lord Inglewood, brought up Cumbrian cattle-driving and we had the noble Lord, Lord Liddle, to follow, I felt we might have had quite a long discussion around that, although we did not. The noble Lord, Lord Inglewood, in characterising Defra as an English department, brought out the Janus face Secretaries of State have in being not only Secretary of State for the United Kingdom but in most cases also Secretary of State for England. Herein lie some of our problems and uncertainties.
The noble Baroness, Lady Hayter, set out and explained very well the issues surrounding mutual recognition. In the noble Lord, Lord Rooker, this House has the benefit of someone with fantastic knowledge and it is important to listen to him. Animal feed is an important area, although it is not always clear. If I may beg your Lordships’ indulgence for a short anecdote, in the mid-1970s our farm was subject to one of the small outbreaks of anthrax, which is very rare—I found the animal that died of it, and it was not a pretty sight. We were put into quarantine—something like lockdown—and it was tracked down to the importation of cheap beans from India. That is why the control of animal food in this country is really important.
In terms of animal feed on the island of Ireland, I was struck that the Government have already exempted the electricity market there—the Minister and I debated this on a statutory instrument—from the overall UK market. They have done that because of the integrated nature of electricity on the island of Ireland; it is an entirely sensible move, of which we approve. It seems to me that animal feed is very similarly integrated and would benefit from a similar island-of-Ireland-wide process. The Minister might like to think about that going forward.
As usual, the noble Baroness, Lady McIntosh, asked a series of excellent and important questions. We need answers to them to understand the objectives of the Bill.
In Amendment 21, the noble Baroness, Lady Finlay, seeks what I think many of us seek to do: to look at this, as somebody mentioned, through the other end of the telescope. This is turning things upside down. Why do we not start with the common frameworks and what is currently working around the devolved authorities and legislate only what needs to be done to create the market we all want? My noble friend Lord German’s twin-track, two-road approach is a very good example. Where is the gap? How do these twin tracks come together? There is no explanation anywhere of how the common frameworks and the Bill are supposed to work together. The only conclusion I can draw is that the common frameworks are allowed somehow to dwindle, because the Government seem to be putting an enormous amount of energy into the Bill.
As usual, the noble Baroness, Lady Noakes, is right: we need to facilitate trade and make it as frictionless as possible across the UK. It is a shame we cannot make it frictionless across the whole of the European Union. The fact is, we have devolution, and the internal market Bill must respect that. At present, it seems that it does not. The noble and learned Lord, Lord Hope, made this point very ably.
As usual, my noble friend Lord Purvis came up with a series of important questions, including Scotch whisky-based ones. He came up with the revelation that there is a complete and absolute internal contradiction in the Bill. The Government brought forward an amendment that causes the following to happen: if England decided to set up its own approval system and started approving active chemicals banned in the EU, Scotland could refuse them. Conversely, Scotland could presumably go further than the EU ban and ban substances which England approved. That is the Government’s position, based on an amendment they brought to the Commons. However, he Minister has said that we must stop this happening, and that the Bill will do that. Something is not right, and the Minister needs to explain what is wrong.
The telling point made by my noble friend Lord Purvis and other noble Lords, including the noble Baroness, Lady McIntosh, is that without clear definitions, it will not be the Government causing the race to the bottom—it will be companies taking this to the courts. That is why we expect from the Minister a very detailed answer to these important questions.
Lord Falconer of Thoroton (Lab)
I strongly endorse what has been said by the noble Lord, Lord Fox. This is an incredibly important and rich debate in which detailed answers are required. It has been a very powerful debate because it has identified a range of problems, both of principle and detail, suggesting that either the Bill has not been properly thought out—subject to what the Minister says in answer—or that there are fundamental problems with it.
I strongly echo what was said by the noble Lord, Lord Inglewood, and endorse what the noble Baroness, Lady Noakes, said—we want frictionless trade as much as possible. I do not know about the noble Baroness, but my experience of business is that if every five minutes one is in the courts trying to work out what is allowed and what is not, that is the classic recipe for a lack of certainty. This Bill, as said so accurately by the noble Lord, Lord Purvis, is creating a whole range of private rights not to be discriminated against, to be treated the same in one place as another. Unless the Bill is clear and has a practical impact, it will be an absolute goldmine for lawyers. It is therefore critical there is confidence this has been properly thought through and the principles work. I am dubious— I am not talking about Part 5 but about the internal market provisions.
We had a very important debate on Amendment 7 about imports, tabled by my noble friend Lady Hayter. My noble friend and the noble and learned Lord, Lord Hope, asked why the devolved Assemblies or Parliaments are excluded from having any voice on what is imported. We were treated by my noble friend Lord Rooker and the noble Lord, Lord Inglewood, to an explanation of all the drawbacks of including food and animal foodstuffs in the arrangements. They gave a devastating series of reasons why these are wrong. Could we have detailed answers for the point made by the former chair of the Food Standards Agency? I ask the Minister to convince us if he can that my noble friend was wrong and the Government are right in the way they have approached this.
The amendments which were very powerfully introduced by the noble Baroness, Lady McIntosh, indicated legal issue after legal issue. I draw attention to two where an answer is important. First, how do the measures already in place apply, and why are they better than the common frameworks approach? Secondly, what is meant by substantive change, rather than significant change? That feels like an issue that could be litigated over for a long period of time.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
I thank everybody who has contributed to what has been, as always in this House, a fascinating debate, ranging far and wide, from cattle droving in the 1700s, through to the immense knowledge of the noble Lord, Lord Liddle, on current EU matters. It is good to see him again to take up cudgels across the Dispatch Box. As he knows, I do not agree with him, but I always enjoy debating these matters. I hope that noble Lords will have patience today. I have quite a lot to say—many points have been raised and I intend to go into a lot of the detail. I apologise if my remarks are a little long.
Amendments 7, 8, 20, 21, 22, 26, 32, 45 and 61, all seek to alter or change the application and scope of mutual recognition and non-discrimination for the internal market and goods. The workings of mutual recognition and non-discrimination as applied in this Bill have been carefully designed to suit the UK’s unique constitutional and legal arrangements. We consulted widely on this, based on the Government’s proposals set out in the White Paper in June.
The noble Baroness, Lady Finlay, wanted to know in detail about the consultation. We published for her benefit, a response in full to the White Paper consultation on 9 September and I would be happy to send her a copy. The consultation demonstrated that UK businesses and industry representatives are overwhelmingly supportive of the measures to prevent discriminating behaviours within our internal market. I will set out the rationale why I cannot accept these amendments. I am happy to explain how mutual recognition and non-discrimination work in greater detail.
We have been clear that the UK will do nothing to diminish its reputation as a leading nation when it comes to setting and expecting high standards of its domestic businesses and international trading partners. I know this is a concern that the noble Baroness, Lady Hayter, has expressed on other Bills that we have discussed in relation to EU exit and is what she seeks to address in Amendment 7, but I contend that this simply will not arise.
Removing imported goods from the mutual recognition principle would mean that those goods, simply because of where they were sourced, could not benefit from the same regulatory treatment as goods produced in the United Kingdom. Even when produced to identical specification and quality as domestic products, this discriminatory impact would put imported goods at a conspicuously unfair disadvantage. Under such a discriminatory approach, we would be likely to be in clear breach of our World Trade Organization commitments to treat imports from other countries no less favourably than similar products produced domestically.
This amendment would also create continued uncertainty for importers. Those businesses whose supply chains rely on overseas sourcing could find themselves at a competitive disadvantage. This amendment would not tackle the issue it seeks to address and would have significant negative consequences for the UK if included.
There was considerable discussion of Amendment 8, tabled by the noble Lord, Lord Rooker, which would ensure that food and animal feedstuffs would not fall within scope of the mutual recognition principle. Like my noble friend Lady Noakes, I was slightly struggling to understand the relevance of his comments about pig semen. I think he asked whether pig semen across the island of Ireland would be affected by Clause 2, but I am happy to confirm for his benefit that pig semen will be subject to the same rules as other goods across the island of Ireland and only when it moves from Northern Ireland to Great Britain will it be subject to any checks. On pigswill, I am happy to confirm for him that the Government will not allow the reinstatement of its use.
This amendment could have serious consequences for the food supply chain, as foods sold in one nation could not be sold in another if there were different regulatory requirements, creating significant barriers to trade within the UK. As I have said, the Government remain committed to maintaining the highest standards in food and feed safety. The UK internal market approach will not change the approach to determining food and feed safety and hygiene policy. I can put at rest the noble Lord’s mind and that of the noble Lord, Lord Purvis: Schedule 1 to the Bill contains an exclusion to the market access principles to continue to enable the UK Government and the devolved Administrations to take appropriate risk-management measures to prevent or reduce the movement of unsafe food or feed from one part of the UK to other parts. I will have more to say about that later.
Turning to Amendment 20 and the consequential Amendment 22, tabled by my noble friend Lady McIntosh and relating to the exclusion of certain existing statutory requirements from the mutual recognition principle, Clause 4 ensures that pre-existing regulatory differences within the UK are excluded from the scope of mutual recognition. This is a forward-looking Bill that seeks to ensure that businesses can continue to enjoy the benefits of our well-integrated internal market after the transition period ends on 31 December. Businesses already live with and have adapted to any regulatory differences that currently exist, so mutual recognition does not need to apply retrospectively. In line with this objective, Clause 4(2)(b) ensures that this exclusion is specifically targeted at those areas in which regulatory differences have previously emerged.
This amendment would widen the exclusion to include any statutory requirement that existed prior to the relevant day set out in the Bill, regardless of whether there had been divergence in that area. However, this is not necessary. Mutual recognition has a practical effect only in areas where requirements differ across the UK, which is why the exclusion is targeted at those areas. Regulatory requirements, which are currently harmonised across the UK, do not need to be specifically excluded as the application of mutual recognition will not make any difference to the status quo. Of course, if the existing requirements excluded by Clause 4 are amended in a way that changes the effect or outcome of the legislation, they would then come within the scope of mutual recognition.
Amendment 21 is consequential on Amendment 6, which we discussed previously as part of a wider discussion on market access principles. It would amend the exclusion of pre-existing requirements from the mutual principle if Amendment 6 is also adopted. My noble friend Lady Bloomfield addressed Amendment 6 yesterday in the fifth group but, in brief, these amendments in combination would enable harmful regulatory divergence within the UK internal market into 2021 and beyond. This could lead to new barriers for businesses trading within the UK, instead of clarity and certainty.
The noble Lord, Lord German, and the noble and learned Lord, Lord Hope, asked about any follow-on emissions trading scheme. This is a non-market framework, so it would not be captured by the market access principles as it does not relate to a good or service.
The noble Lord, Lord Purvis, raised a number of questions about fertilisers. I shall give him a detailed reply. To exclude from the principle of mutual recognition as proposed by the Bill the safeguarding decisions of Administrations in relation to the placing on the market of fertilisers would allow each Administration to ban the sale of a fertiliser or impose conditions on that fertiliser in their jurisdiction in response to a risk to the health and safety of humans, animals, plants and the environment. We think it necessary to retain the current ability for the individual nations to take local circumstances into account and immediately to take a fertiliser deemed unsafe off the market in their territory without the risk of that product finding its way back into that territory via another nation. Without that amendment, it could take some time formally to ban a product through legislation—perhaps a couple of years.
The noble Lord also asked about pesticides. Decisions on which pesticides can be authorised to be marketed and sold in each part of the UK are already within devolved competence. All four Administrations work closely together, supported by HSE, and most decisions can be taken jointly by consensus. However, retaining the ability of each Administration to take its own decision where necessary is important, for example, if merely to consider locally specific factors, such as environmental or farming conditions, which can differ across the UK. This has worked well for many years where there has been occasional divergence between different parts of the UK and has not, so far, caused problems. This amendment therefore maintains the current position.
Amendment 26, tabled by my noble friend Lady McIntosh, seeks an explanation of the meaning of Clause 5(3), which I am happy to give. Clause 5(3) will operate so that any future requirements that fall within the scope of the non-discrimination principle will be of no effect to the extent that they are discriminatory. For the benefit of the lawyers, this does not mean that the requirement is to be treated as if it never had any legal effect. Rather, it allows the continued operation of the requirement, except to the extent that it has discriminatory effects. This aims to ensure that businesses can continue in their trade and goods can continue to be sold, despite protectionist measures that might treat goods from one part of the UK more favourably than goods from another. As the Bill deals with trade across the whole of the United Kingdom, the intention is that this will apply to all legislation: secondary legislation, primary legislation passed by devolved legislatures and legislation passed by the UK Parliament.
We believe that this does not require further elaboration in the Bill and is clear that only changes to existing legislation that affect the outcome are in scope. The amendment in question could cause confusion as there may be amendments that are considered “significant”, but do not change the outcome or effect of legislation. Fundamentally, however, the drafting in this clause will allow businesses to continue following the same regulations as they have been accustomed to, as our desire is not to disrupt their operations. That flexibility is important, because we want this provision to catch legislation only to the extent that it produces discriminatory effects. If something is not law, it cannot have any effect. As I said, we want to create a presumption that future Acts of Parliament are subject to this rule, which the current drafting allows.
My noble friend Lady McIntosh also asked whether, if the FSA and FSS had different rules, that would impact on the free movement of goods. The principles of mutual recognition and non-discrimination will apply to goods, including food, feed and animal products. This means that a good that can be lawfully sold in one territory can be lawfully sold in the other territories without having to comply with that other territory’s requirements. The only exclusion from this, as I said earlier, is set out in Schedule 1, which provides for exclusion in emergency scenarios where specific criteria are set out.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I have had a request to speak after the Minister from the noble Lord, Lord Purvis of Tweed.
Lord Purvis of Tweed (LD)
The Minister did not explain why services from the Isle of Man to the rest of the United Kingdom will be considered within the United Kingdom internal market, but goods coming from the Isle of Man are outside the single market. There are many service providers from the Isle of Man. In fact, financial services are probably a bigger part of the Isle of Man economy than goods for export. I would be grateful if the Minister could explain this. The Minister did not respond to my point about whether these regulations apply to the services that citizens receive for higher education. This is very important within Scotland.
My point to the Minister, I believe, justifies my argument on the good working relationship across the four nations on fertilisers and pesticides. The Minister referenced the justification for the government amendment about the need to work in emergencies. Paragraph 1 of Schedule 1 already has exclusions from market access principles for threats to human, animal and plant health. Emergencies were already covered. The amendment that the Government brought forward was not on emergencies; I looked at the regulations that it covers, which are in paragraph 9 of Schedule 1 on fertilisers and pesticides. The Bill will allow the Scottish Government, and a Welsh Government or UK Government acting for England, to make a different judgment on the advice they get from the single regulator about the safety of a pesticide for, as the Minister Paul Scully said, “movement and use”.
So, if English farmers, under the authority of the regulations in the Bill, decide to use fertilisers on crops—barley—that are unsafe in the view of the Scottish Government, the Bill will allow the Scottish Government to prevent that barley from being used in Scottish distilleries. The Minister said that the whole purpose of the Bill was to prevent that from arising. So he has managed to undermine the entire intent of his argument at Second Reading, which was that the purpose of this legislation was to prevent a barrier from a different decision being made on safety grounds. If this amendment, which the Government brought forward, allows for different decisions to be made on the safety of pesticides used in different parts of the UK, I hope the Minister will reflect on what he said about the justification for the Bill.
Lord Callanan (Con)
I understand the point the noble Lord is making, but I think we are talking at cross purposes. It would allow provisions on unsafe products, but the provisions would be based on advice from the common regulator—so presumably the authorities in England would draw the same conclusion. It does not allow a Minister to dream up a definition of “unsafe” and implement provisions on that.
On the noble Lord’s first point, if he will forgive me, I will write to him.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I have had a further request to speak after the Minister from the noble Baroness, Lady McIntosh of Pickering.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am struggling to understand the Minister’s reply on Amendments 26 and 45. I am particularly concerned about Amendment 26, which is a probing amendment and simply asks for greater clarity, which I do not think we have had. Is he saying that the statutory requirement has no effect? Does he mean that it is valid or not? Is it enforceable? I am trying to avoid a situation where there is any doubt whatever, and court action might be taken. I do not quite understand his answer that the possibility of court action is excluded if, in the view of others, a statutory requirement has effect and could, therefore, be actionable.
Lord Callanan (Con)
No, it does not mean that the requirement is to be treated as though it never had any legal effect. Rather, it allows the continued operation of the requirement, except to the extent that it has discriminatory effect.
Baroness Hayter of Kentish Town (Lab)
My Lords, I think I am Baroness Hayter of Confused. I did not understand that last reply. I thank the Minister for attempting to answer the question, though I have to warn him that I think he is in trouble with the boss. I think he admitted that there would be checks at the border between Northern Ireland and Great Britain on pig semen. The boss said, “No checks, no extra paperwork”. I am now hearing noble Lords say, “New checks”. That is not what the Prime Minister said at that reception. He said, “If there’s a piece of paper, send it to me and I’ll throw it away”. I shall make no comment on semen causing particular problems, but it seems that there would be checks on it.
I shall try to be brief because a lot of points have been raised. I thank all noble Lords who have spoken, particularly those who support the line we are taking. I fear that many of these questions flag up the problem that the Bill was drafted without the full involvement and agreement of the devolved authorities. We may not be where we are if those discussions had taken place beforehand. I think it was the noble Lord, Lord German, who talked about parallel tracks between the common framework and this Bill. It loses not only the consensus approach to the common frameworks that we have discussed before, but the flexibility that the noble Lord, Lord Purvis, mentioned. We want to build on this. I hope the Minister will hear some of these questions and see whether he can give a response that ensures clarity for business, as well as for those operating in this area.
The Minister did not answer on universities and I am not sure he answered about the all-Ireland agreement. A lot of other points were raised about animal feedstuffs and pesticides. It would help if some of those dialogues could continue before we get to Report. It is also worth listening to what my noble friend Lord Liddle said. The Government should stand up and say that they support the maintenance of the devolved settlements, and that they recognise and want to keep diversity where it would still enable us to have an internal market. That sort of statement would be helpful.
I am sorry that the noble Baroness, Lady Noakes, is now not allowed to come back at me for what I am going to say. I partly agree with her. We want trade and believe that it is good, but not at any price—not at the price of safety or the environment. This does not mean that we are not in favour of greater trade with all the benefits that it has brought. I also agree with her that, of course, we favour free, and barrier-free, trade. That is why some of us want a deal with the EU, which has no tariffs or checks, and we wanted to stay as close to it as possible. I know it was not her view that we should stay in. I think I once heard her say—I am happy to correct this at the end if I am wrong—that trading on WTO terms would not be the end of the world. Good, the noble Baroness is nodding, so she confirms that she said it. That, of course, would mean a lot of checks and a stop to free trade.
The issues raised in this debate need further consideration. We have to resolve the question that the noble and learned Lord, Lord Hope, asked. Will there be any input by the devolved authorities into importation by, particularly, the English Government? They will need some comfort over that. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
We now come to the group beginning with Amendment 9. I again remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this, or anything else in this group, to a Division should make this clear in debate.
Clause 3: Relevant requirements for the purposes of section 2
Amendment 9
Lord Callanan
Member’s explanatory statement
This amendment would clarify that the purpose of Clause 3 is to identify what are the relevant requirements that apply to a specific sale of goods (the word “sale” being defined broadly in Clause 14).
Lord Callanan (Con)
I apologise in advance if noble Lords are in for more technical explanations. We will take together the minor technical amendments in my name to Clauses 3 and 4. All involve drafting improvements or clarifying technicalities. None of these amendments results in a change of policy, but they need full and proper scrutiny in this Chamber and noble Lords deserve an explanation of the improvements that they make to the Bill.
First, I turn to Amendment 9. This clarifies Clause 3 by identifying what is a relevant requirement in relation to a specific case where particular goods are sold. Without this amendment, there could be ambiguity as to whether a requirement needs to apply to all sales of all goods to be a relevant requirement. For example, where a business has produced a tin of biscuits in Scotland and seeks to rely on the mutual recognition principle to sell them in England, this amendment makes it clear that the relevant requirements are those that would apply to the sale of the biscuits in England and to the equivalent, hypothetical sale of the biscuits in Scotland, Northern Ireland or Wales. Requirements that apply to other sales of other goods—for example, requirements that apply to the auctioning of a painting—would not be relevant requirements in this context. Without this amendment, there is a risk of legal uncertainty over which requirements are relevant. This could create confusion, costs and inconvenience for businesses.
Amendment 10 provides similar clarification. It emphasises that subsection (2), which defines and therefore enables one to identify a relevant requirement in relation to a particular sale, makes relevant requirements only in relation that sale. Requirements are not relevant in any general way; they are relevant only in relation to the sale in question.
Amendment 18 clarifies that Clause 4(1)(a) refers to a specific sale of goods, rather than a hypothetical sale of goods. It makes clear that we are referring to an actual sale of goods and not to a hypothetical sale. As a result, the amendment removes any potential ambiguity around which existing statutory requirements are excluded from the mutual recognition principle. This amendment also ensures consistency with Clause 3(1), as proposed to be amended by Amendment 9—also in my name. Once again, we are considering requirements which apply specifically to a particular sale—for example, the requirements that would apply to the sale of a tin of biscuits in England, as per my previous example, but not all requirements that might apply to any other sales of goods. This makes clear which statutory requirements might be excluded, if the conditions in Clause 4(2) are met.
Amendment 19 corrects a small drafting error in Clause 4(1)(a). This paragraph refers to “a” part of the United Kingdom when it should refer to “the” part of the UK mentioned in the opening words of the subsection. It removes any ambiguity around which part of the United Kingdom is being referred to in Clause 4(1)(a), so that there can be no doubt that when we are considering English requirements, we are considering how they apply in relation to a sale in England. Without this amendment, there could be confusion over whether we are referring to just those requirements which apply in England or to requirements which could apply in any part of the UK.
Finally in this group, Amendment 23 aligns the language used in Clause 4(2) and 4(5). Both provisions refer to a hypothetical sale on a particular day, rather than to an actual sale. These subsections set out the conditions for when an existing requirement will be excluded from mutual recognition. Both should refer to a hypothetical sale on the relevant day. This amendment clears up the ambiguity by making it clear that both subsections refer to a hypothetical sale, rather than to an actual sale. Aligning the language in this way will make the drafting of this clause clearer and will avoid any confusion over why the wording is different in Clause 4(2) and 4(5) when both should refer to a hypothetical and not to an actual sale.
Taking again the example of the sale of a tin of biscuits, Clause 4(2) and 4(5) refer to the statutory requirements around the sale of biscuits, which would have been enforced in different parts of the UK on the relevant day, which is the day before this Bill comes into force, if the tin of biscuits had been sold on that day. This means that we will always be talking about a hypothetical sale here, and the amendment to Clause 4(5) makes this clear. Without this amendment, it is not clear that Clause 4(5) is referring to a hypothetical sale, which may cause confusion. I beg to move.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am interested to know why the Minister felt that these amendments needed to be moved at this time; what provoked that? Furthermore, who decides—and in what circumstances—what is a hypothetical sale, as opposed to a real sale?
Lord Purvis of Tweed (LD)
My Lords, I am grateful to the Minister for clearing this up, because any confusion beforehand may be ongoing. Since he was so clear, perhaps he will not mind my asking a couple more questions.
As the Committee knows, I live on the border, and some of these things are very relevant for traders, especially rural traders living on either side of the border. When I was a Member of the Scottish Parliament, one of the big areas of debate when minimum unit pricing was introduced was the concern about the cross-border selling of alcohol, which avoided the decision being made in Scotland concerning the price of that alcohol. This is not hypothetical; these were real sales. It did not apply to the more expensive malt whiskies et cetera. The minimum unit pricing of alcohol was, by and large, about the low-value alcohol which could be brought across the border in large quantities to be sold in Scotland. That was a valid issue, and a key area of consideration when it was debated by the European court. The justification, which the ability of the public authorities to prevent that happening relied on, was that this was against market access principles but justified on public health grounds. The Government have chosen not to do this, so they will be relying on the market access principles.
Can the Minister clarify something that I genuinely do not know? I am not trying to catch him off guard. On the sale areas of goods, does the Bill permit alcohol for use within Scotland to be sold in Scotland on English grounds? Can alcohol be sold in Scotland by using mutual recognition, to avoid the minimum unit price stipulated for alcohol that is then sold in Scotland? I have a fear that it may be. It will be reassuring if the Minister indicates that this is not the case, because Clause 13 is about the sale of goods complying with local law and states:
“Nothing in this Part prevents goods produced in or imported into a part of the United Kingdom from being sold in another part of the United Kingdom if … the sale complies with any requirements applicable in that other part of the United Kingdom”.
Therefore, if we say that, rather than biscuits, it is gin or vodka, and a policy has a direct impact on the price of that gin or vodka because of the Scottish legislation, then Clause 13 suggests that if that alcohol was brought over from Northumberland and sold in the borders, the selling of it to a wholesaler within the borders would have to be done as if it had taken place in Berwick, Northumberland.
I ask this because there is currently a lot of cross-border trade in agricultural business. Many Scottish producers will sell livestock at the Wooler market in England. A lot of this is happening. It has been worked through with regard to the different agricultural standards. Therefore, I am anxious that Clause 13 could inadvertently be used to bypass what are correct elements.
This leads me to my final question. We will come to the definition of “goods” and “sale” with Amendments 66 and 67, but there is nothing in the definition of “sale”, or the other parts of the Bill, relating to the price. If policies are in place which directly impact on the price of an item to be sold, rather than standards, labelling or marketing, is price also considered within that? I would be very grateful and give him top marks if the Minister can answer those questions clearly.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, I have mainly technical, minor drafting points, which do not require much discussion. The Minister was consumed during his speech because of the hypothetical tin of biscuits that he brought into play. I am so glad that we do not have details of what pig semen is carried in. I much prefer us sticking with the tin of biscuits as our main metaphor in these issues.
Like the noble Baroness, Lady McIntosh, I wonder why these amendments are being tabled now. After all, the Bill has been through the other place and been republished. Only now are we getting evidence of “scrubbing the text” to ensure that the sorts of issues raised in this group of amendments will not get into the final version of the Bill. It is a minor criticism of a very minor issue, and I am happy to await the answers to the questions raised by the noble Lord, Lord Purvis, which would bear substantial response and will need to be dealt with at the appropriate time.
Lord Callanan (Con)
My Lords, I apologise to noble Lords for hesitating in my answer earlier. There is a danger of this “tin of biscuits” example assuming the same significance that the maiden aunts of the noble Lord, Lord Lisvane, did, during the EU withdrawal Bills. I see smiles from noble Lords who were involved in those debates. However, I am not sure that we should pursue the “pig semen” argument of the noble Lord, Lord Stevenson.
To answer my noble friend Lady McIntosh, these are technical changes relating to drafting errors that became apparent in further studying the text following amendments tabled by noble Lords. Following further examination by government lawyers, the Bill was drafted fairly speedily over the summer. Our intention was to avoid government amendments, but we wanted to hear the replies to the consultation and the White Paper. They are technical and legal clarifications that change none of the policy intent.
I assure the noble Lord, Lord Purvis, that the minimum unit alcohol pricing policy is unaffected, because it is an existing measure that is excluded, and because it is specifically excluded in addition to that, via various clauses. I will write to reassure him of that. Regarding his points about gin and vodka, I am not an expert on the Scottish measure, but I think it affects the retail price of the sale and not wholesale prices, and therefore the product would need to be sold at a different price, as specified in the Scottish measure. However, I consulted officials when we first debated this legislation and was assured that the Scottish measure would be unaffected by this legislation. I am happy to write reassuring the noble Lord on that point.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I have received a request from the noble Baroness, Lady McIntosh of Pickering, to speak after the Minister. My apologies; I gather that is not the case.
Lord Callanan
Member’s explanatory statement
This amendment would clarify that a statutory requirement that meets the conditions in paragraphs (a) and (b) of Clause 3(2) is a relevant requirement in relation to the sale mentioned in Clause 3(1).
The Deputy Chairman of Committees (Baroness Fookes) (Con)
We now come to the group beginning with Amendment 12. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press anything in this group to a Division should make that clear in the debate.
Amendment 12
Member’s explanatory statement
This amendment would remove the Secretary of State’s regulation-making power, as recommended by the Delegated Powers and Regulatory Reform Committee in its 24th Report.
Lord Fox (LD)
My Lords, in moving Amendment 12, I will also speak to Amendments 27, 38, 46, 72, 97 and 160 in my name. These amendments would remove the Bill’s regulation-making power, which is fully in line with the recommendations of the Delegated Powers and Regulatory Reform Committee. Its report is a comprehensive review of these issues; your Lordships will be pleased to hear that I will therefore not reiterate them at length. Later, we will hear the wise words of my noble friend Lord Thomas of Gresford, who will describe that your Lordships’ House is approaching a watershed on this issue. He is of course right; this train has been coming down the tracks for some time.
A while ago, the noble and learned Lord, Lord Judge, gave a lecture at King’s College London entitled “Ceding Power to the Executive: The Resurrection of Henry VIII”. He made the stark point that parliamentary sovereignty is the antithesis of executive sovereignty. The two concepts are mutually contradictory. The democratic process is not meant to give—and our constitutional arrangements are not meant to provide us with—executive sovereignty. The burden of the noble and learned Lord’s argument was that Henry VIII powers, although paradoxically conferred upon the Executive by none other than Parliament, are an affront to parliamentary sovereignty. That lecture was held in 2016. Since then, we have seen an acceleration of the erosion of parliamentary sovereignty through these means.
As the House of Lords Constitution Committee put it in its report of the Strathclyde review some five years ago:
“Delegated powers in primary legislation have increasingly been drafted in broad and poorly-defined language that has permitted successive governments to use delegated legislation to address issues of policy and principle, rather than points of an administrative or technical nature.”
This Bill pushes that envelope yet further. The Delegated Powers and Regulatory Reform Committee was clear. It described some of the powers in that report as either “extraordinary” or “unprecedented”. To justify these extraordinary and unprecedented powers, the Government cite the need for legislation to evolve. The possibility of unknown unknowns required a yet unknowable legislative response and a yearning for law-making speed. None of these justifications is extraordinary and none of them is unprecedented.
I beg to move.
Baroness Andrews (Lab)
My Lords, the amendments in my name in this group are for the most part identical to those of the noble Lord, Lord Fox, although in some cases they are wider in their supplementary implications. It goes without saying that I agree with everything he said—and everything that I suspect the noble Lord, Lord Thomas of Gresford, is about to say—about the whole range of excessive and inappropriate delegations. Of course, my amendments follow the advice of the DPRRC; I declare an interest as a member of that committee.
I will make a few general points about what the Government are trying to do in these clauses and how they have justified them. I speak for myself but I suspect that I also speak for many members of the committee —certainly for our distinguished chair—when I say that we have reached a point of almost total exasperation with the Bill. The DPRRC was set up in 1992 to monitor and control the excesses of executive power and the temptation for Ministers and officials to try to avoid parliamentary interference and take inappropriate powers. So it is hardly new, but in recent years, we have been sorely tested— not least on the limits of our vocabulary. Indeed, the DPRRC has described these powers as “extraordinary” and “unprecedented”.
We have seen the increasing use of skeleton Bills and statutory instruments not for the delivery of policy but for the design of policy and for carrying the principles of legislation within the secondary framework. Most recently, we have seen mounting evidence of a Government that will go to endless lengths to avoid scrutiny. This Bill is in a class of its own because of the sheer volume and significance of the Henry VIII powers. Of the 12 delegated powers in the Bill, seven are Henry VIII powers, allowing Ministers to amend or repeal significant provisions of the Bill itself, as well as other primary and secondary legislation. We used to protest when only one Henry VIII power turned up in a Bill.
It sets a different tone, too, because the delegated powers memorandum, in its attempt to justify why these powers to expedite the mutual recognition principle and the non-discriminatory principle are necessary, does not even bother to try to find a convincing justification for the powers taken. In the clauses relating to my Amendments 13, 28, 39 and 47, for example, the explanations for using statutory instruments to amend Acts of Parliament cite the need for speed and flexibility to respond to unforeseen developments—the known unknowns and so on—respond to stakeholders and provide certainty. These are profoundly lazy and threadbare arguments, and Ministers and officials know that. I consider that contempt of Parliament. Secondary legislation does not guarantee speed, flexibility or certainty. Primary legislation, as we know from dealing with the pandemic, can be introduced at the speed of light and amended. Indeed, the Government have conceded in their own arguments that the Secretary of State is not required to declare that the making of regulations is required as a matter of urgency, so urgency is a false trail too.
This disingenuous use of language offered in the memorandum in regard to Clause 6(5) is a case in point. It argues that Ministers need to be able to respond swiftly to future-proof the operation of these principles so that they can be changed as and when Ministers decide that it is necessary. The DPRRC dismisses this as an attempt to completely rewrite the non-discrimination principle. When the Government argue that there is no way that they can change the definition of legitimate aims attached to the non-discrimination principles in Clause 8 other than by secondary legislation, they seem to have completely forgotten that such a thing as primary legislation exists. Indeed, in Schedule 2, for example, the assumption is that only secondary legislation is fit for purpose when it comes to making future amendments.
The powers that my amendments seek to remove are described by the DPRRC as inappropriate and ones that should be removed; the Constitution Committee endorses that. “Inappropriate” may seem rather feeble in the parliamentary lexicon; in fact, it could not be more powerful. Among other synonyms, it means unseemly, unbecoming, lacking in propriety, ill-judged and out of order. Nowhere are those and many other epithets more appropriate than what these clauses have to say about the devolution settlement. For in Clauses 3(10) and 6(7), in relation to mutual recognition and non-discrimination —the two main pillars of market access—there is the explicit instruction that, before making regulations, the Secretary of State must consult the Ministers of the devolved assemblies. The Government are required not to seek consent but merely to consult, so they
“can act without the need to introduce new primary legislation or to obtain the consent of the devolved administrations (the Minister being only under a duty to consult) even though the proper functioning of the internal market is essential to all the administrations of the UK.”
That is a direct quote from the DPRRC.
That most eloquently brings us to the fracture at the heart of the Bill, and to the reason for taking these inappropriate powers which removes them from the full attention of Parliament. It comes back to what the Government insist is the purpose of the Bill—to secure, despite the promise and the purpose of common frameworks, that the internal market will need a new regulatory structure flexible enough to meet the unforeseen demands in the future, notwithstanding that they cannot tell us what those demands are likely to be or explain how they are going to prevent lower common standards permitted by law in this Bill, or why the common frameworks are not sufficient in themselves to prevent that, or why the Bill cannot be amended in such a way as to ensure a tight fit between the common frameworks and the common purposes of the Bill. These inappropriate powers are seen as necessary to expedite what might happen in the future, notwithstanding the impact on the devolved nations or the devolved settlements, the role of Parliament, the balance of powers expressed in appropriate legislation or the integrity of the process itself.
There is a great deal at stake in this Bill, as has been said many times already in the process of the Bill. They are grave matters, and they have been drawn to the attention of this House by the two most senior scrutiny committees. I hope the Minister will find he can agree with me that these powers are offensive as well as unnecessary, and that they will be removed.
Lord Hope of Craighead (CB) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Andrews. I am not a member of the Delegated Powers Committee and never have been, so I think I can, without any embarrassment, praise the work which that committee does so often on behalf of the House and, in particular, the reports it has made in respect of the Bill we are considering today. The issue which it raises, of course, is a very serious one, and it has been very well explained in its own report and spoken to by both the noble Lord, Lord Fox, and the noble Baroness, Lady Andrews. I do not want to say very much more about it. The important point is revealed when you look at the subsection which introduces the power to make regulations in the case we are looking at, first of all in Clause 3(8). There is absolutely no qualification whatever to indicate the purpose for which that power may be exercised. It is a totally unqualified power, which may be used without any control from anybody as to the way in which the power is being exercised.
Twenty years ago, this House was looking at, among other things, the Scotland Bill. It is very interesting for the historian to compare the way in which delegated powers are conferred by that Bill with the way in which they are being conferred by this Bill. Both of them were major pieces of legislation, designed to lay the structure for the future governance of this country. On the part of the Scotland Bill, of course, it was very obvious because it was the first step toward devolution; it had to be carefully crafted, and yet it was moving into an uncertain world. The many powers to make legislation by delegated legislation are all carefully described, so that one knows exactly the purpose for which that power could be used. As the Bill went through both Houses, the reason for the power and the scope that was given to Ministers to use it was carefully scrutinised by both Houses.
We do not have that benefit in this case, in a Bill which is designed to settle the internal market—a Bill of equal importance and, perhaps I might say, equal difficulty. Nevertheless, they have in common that they are major pieces of legislation, and yet, in this case, the power we have to legislate and to scrutinise legislation is really being opened up to Ministers to deal with, without any control whatever. That is the basic flaw which runs through all of the clauses to which these amendments draw attention.
There is, of course, the point that the noble Baroness mentioned, that all that has been required with the devolved Administrations—or the Ministers in the devolved Administrations—is that they be consulted, not consent. That is not in keeping with the Sewel convention, although that is qualified by the word “normally”. I would have thought that in this case, because of the scope of the powers, consent would be appropriate here, because there is no other way of controlling what the power may be used for. That is the reason why the absence of a provision for consent is so important in these cases.
Without saying any more, I must say that I fully support the points that have already been made on these very important amendments.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
The noble Baroness, Lady Noakes, has withdrawn, so I now call the noble Lord, Lord Thomas of Gresford.
Lord Thomas of Gresford (LD) [V]
My Lords, the House of Lords is coming to a watershed. When we threw out the statutory instrument in relation to tax credits in 2015, the reaction of the Government was to wheel in the noble Lord, Lord Strathclyde, to set up a review. His report advised that the House of Commons should be given the power to overrule this House should it ever have the temerity to do the same thing again. Since then, the Labour Party has followed an unwavering policy of abstaining on fatal amendments to statutory instruments.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I welcome this opportunity to agree with what has been said by previous speakers, and particularly thank those who have contributed to this debate through the 24th report of the Delegated Powers and Regulatory Reform Committee, and the noble Lord, Lord Fox, and the noble Baroness, Lady Andrews, for putting into effect the conclusions of that report. The report is indeed striking in its conclusions, and in particular in the power of the language used. I think students of constitutional law will be watching these deliberations very closely to see whether this is a new trend on the part of the Government or a one-off.
My understanding is that the Bill is in large measure to deal with the political fallout of the Government agreeing to the EU withdrawal agreement and the Northern Ireland protocol. Perhaps I am wrong, but that is my understanding. My further understanding is that, when Parliament agrees to delegate powers to the Executive, it does so on the strict understanding that the Government will act on behalf of Parliament with respect for the rule of law and parliamentary democracy. Clearly, in all five parts of the Bill, this is stretched to breaking point. As has been said, the reliance in the Bill on the sweeping Henry VIII clauses is breath-taking. So I entirely echo what has been said by previous speakers and find that I have great sympathy with the amendments.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, it is always a pleasure to follow the noble Baroness, Lady McIntosh of Pickering, and to agree with the amendments in the names of my noble friend Lady Andrews and the noble Lord, Lord Fox. For me, the Delegated Powers and Regulatory Reform Committee is particularly instructive, because it has issued a very scathing report which states quite clearly that, in the absence of a convincing justification for the Henry VIII powers in those clauses, the power is inappropriate and should be removed from the Bill.
The noble Baroness, Lady McIntosh of Pickering, said that perhaps the Government wish to use these powers to get their way in terms of the withdrawal agreement—an international agreement which they signed only one year ago with the European Union—and to undermine the Northern Ireland protocol, which in turn could undermine another international agreement, the Good Friday agreement. I say to the noble Lord, Lord Callanan, that the people of Ireland, north and south, who voted for that agreement and who by and large support the principle behind the Northern Ireland protocol—to prevent a hard border on the island of Ireland and to prevent any further turmoil, trauma, distress or levels of terrorism—will not take kindly to any of that.
I was also very taken with the words—referred to by the noble Lord, Lord Fox—of the noble and learned Lord, Lord Judge, a few years ago about parliamentary sovereignty. Yes, parliamentary sovereignty is the antithesis of executive sovereignty, and I do recall, as a former Minister in the Northern Ireland Executive, that I was always told that the Executive are accountable to Parliament. Can the Minister advise the House whether there has been consultation of any kind with the devolved Administrations? I know that Scotland and Wales have so far refused to give legislative consent to the Bill, because they clearly see the powers within it as totally egregious in terms of what they can do, and in terms of no consent being required from them and no real consultation. I also know that in the Northern Ireland Assembly there was a majority vote against the UK Internal Market Bill.
I believe that there are three different issues with these powers. Giving too much power to Ministers to change the rules of the UK internal market via regulations without proper parliamentary scrutiny is wrong. It is interesting to note that the regulations in these clauses require first a consultation with the devolved counterparts, so there is a need to obtain their consent to such regulations, but that consent is clearly absent. That is what Amendments 13 and 28 are all about.
The Bill also has an extremely narrow understanding of exceptions to these principles. If we compare it with the EU internal market where other objectives such as environmental improvement can be used, at least in certain cases, to restrict mutual recognition and keep more ambitious domestic rules, we see that the Secretary of State also has the power to add, vary or remove exceptions, as set out later in Clause 8 for non-discrimination and in Clause 10 for all the principles to which Amendment 47 refers.
There is no doubt that the UK Internal Market Bill will become a protected environment that the devolved Administrations will be unable to repeal or modify. That is why these amendments tabled by the noble Baroness, Lady Andrews, and the noble Lord, Lord Fox, are apt and timely. They should be supported because both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee believe that the use of these powers is wrong.
Lord Liddle (Lab)
My Lords, we have heard many excellent speeches in this short debate, and I agree in particular with what my noble friend Lady Andrews has said.
I am a member of the Secondary Legislation Scrutiny Committee. The committee shares many of the concerns expressed by the Delegated Powers Committee in its report. However, I would somewhat disagree with the strictures of the noble Lord, Lord Thomas of Gresford, on the behaviour of Her Majesty’s loyal Opposition. We have to be considered and careful about using fatal Motions, but to my knowledge it is certainly not Labour’s position that those fatal powers should never be used.
On the substance of the Trade Bill, the Agriculture Bill and the immigration Bill, I had assumed that the Government are putting extensive delegated powers into the legislation basically because they do not know what their post-Brexit policy is going to be—they do not really have a clue. For instance, they do not have a clue about what national strategy we are going to pursue on trade. Will it be one that maintains our high standards, or will it be one that tries desperately to get trade agreements with the rest of the world that lower standards in order to open markets in the hope that that will compensate for the loss of market access in Europe? I think that the Government do not know. There are deep divisions inside the Conservative Party on where the Government should go on these questions, so the simple thing to do is to put a lot of these policy decisions into delegated powers which Ministers will have to decide on at some future point.
However, in this Bill, I am concerned for a quite different reason: in this case the Government know only too well, in particular on the clauses on the Northern Ireland protocol, what they want to do with the powers that they would have. If we cannot remove those offending Northern Ireland clauses from this Bill, then if delegated legislation comes to this House based on them, we should vote against it every single time, because that is clearly unconstitutional and it would be perfectly within the powers of this House so to do.
Baroness Hayter of Kentish Town (Lab)
My Lords, there is little to add to what my noble friend Lady Andrews and other members of the hard-working, thorough and thoughtful DPRRC have said, along with the noble Lord, Lord Fox, and others who have spoken in the debate. However, I would remind the noble Lord, Lord Thomas, whose party has been in government more recently than we have, that I do not recall any reluctance on the part of the coalition Government to reach for secondary powers when it suited them—but perhaps his memory is rather shorter than mine.
I should say to the Minister that these amendments are pretty much bound to be accepted by the House on Report. That, of course, will leave the Government having to try to defend in the House of Commons in more detail than they have had to thus far why they should gift themselves the most remarkable and far-reaching powers, none of which, as has been said, have they sought to justify by purpose, urgency or anything else. Rather than repeat what the 24th report sets out and what has just been set out so eloquently, I urge the Minister to listen to the wise words and, either after discussion or of his own accord, take these unnecessary and worrying powers out of the Bill.
My noble friend Lord Liddle touched on the powers in Part 5. Obviously we will take those out, but of course the Government might try to put them back in again. We should remember that this group of amendments covers regulations that would, if they manage to keep Part 5 in or return it, be made in some areas of Part 5. These regulations are really serious, due to the current Clause 47(2)(a), which, as everyone will know, gives the status of primary legislation for the purposes of the Human Rights Act to secondary legislation. Inexplicably and extraordinarily, those pieces of secondary legislation would therefore not be able to be struck down if they breached convention rights, rather they would have thrown around them the protective ring that is normally used only for primary legislation. But those measures are regulations that will not have been through the legislative process. They would be introduced as secondary legislation by regulation, but would suddenly be preserved as if having been given the status of primary legislation. That is set out in Clause 47(2)(a)—I hope I have got that right; I have my learned friend next to me, in case I have got it wrong.
Needless to say, the Joint Committee on Human Rights had rather a lot to say about this constitutionally unacceptable ruse. Its members have tabled an appropriate amendment to remove it when we get to Part 5, and quite right too. The Government seem to want to legislate by regulation—unchallengeable in court, therefore —giving it primary status that goes even further than the other Henry VIII powers which were considered by the DPRRC. I have a feeling that the committee met before the insertion of this clause in the Commons—I think I am getting a nod from behind me—which is presumably why the Delegated Powers Committee did not discuss it.
I add a further comment that goes beyond the Bill but is a reflection of what has already been mentioned. I have spoken in the House previously about the book, How Democracies Die, which lists institutional forbearance —along with the rule of law, respect for the opposition and a free press—as a fourth vital element of what the authors call quadrilles, which go beyond democratic elections, on how to have a robust and fully functioning democracy. Institutional forbearance is an interesting term and is defined in the book as,
“the action of restraining from exercising a legal right”,
thereby perhaps avoiding actions which, while within the law, violate its spirit. It is what my former supervisor, the noble Lord, Lord Hennessy, would call the “good chaps” theory of government. I agree that regulation-making powers can be donated to Ministers but the purpose of that was to enable small adjustments to the policy of an Act to be finalised or tweaked without primary legislation. It was not meant to gift big policy decisions—especially not of the sort included in the Bill, which I heard today was hurriedly written over the summer—to the Government with effectively no parliamentary scrutiny or agreement.
Therefore, like my noble friend Lady Andrews, and the noble Lord, Lord Fox—whose extremely useful quote from the noble and learned Lord, Lord Judge, I have not heard before—I am concerned about the extensive, unnecessary and quite unjustified use of Henry VIII powers, not simply in this Bill but in others. It is a worrying pattern that this House has a duty to curtail. I hope that this is the last occasion on which we have to remind Ministers that they should carry out the primary laws as passed by Parliament, not take to themselves powers to make their own laws.
Lord Callanan (Con)
My Lords, I have a sense of déjà vu about this debate. The noble Lord, Lord Liddle, will well remember our debates on the EU (Withdrawal) Bill. These amendments relate to delegated powers included in Parts 1, 2 and 5 of this Bill. I should probably decline the kind opportunity afforded to me by the noble Lord, Lord Thomas, to comment on the parentage of Henry VIII, apart from saying that the noble Baroness, Lady Bloomfield, who is an expert on all these matters, tells me that his parents were Henry VII and Elizabeth of York—officially, at least.
I should say in answer to the noble and learned Lord, Lord Hope of Craighead, and his comments on the Sewel convention that the Government are fully committed to that convention and its associated practices for seeking consent. These powers are purely there to ensure that the legislation works properly and is future proof. There is no intention whatever to use the powers to avoid Sewel processes.
I should like to take this chance to emphasise the importance of these powers for the ongoing dynamism of our internal market, and to emphasise that the Government will not take lightly their responsibility in administering these powers. I am of course listening carefully to what your Lordships say but it is important for me to explain how we intend to use these powers.
The Bill aims to ensure a smooth transition for businesses as they are no longer subject to EU constraints. However, we recognise that this is an ambitious new system and the Government want to make sure that it works as well as possible for businesses and for devolved Administrations. As the system embeds in the functioning of law and trade, we will of course be monitoring this. We will speak to stakeholders and devolved Administrations to ensure that it works as well as possible within our constitutional framework. Where it does not, the Government need to be able to make necessary amendments to the system for the benefit of all parts of the UK. In line with normal arrangements for secondary legislation covering devolved matters, we will of course engage with the devolved Administrations in the spirit of the devolution memorandum of understanding. This system has worked well for 20 years and continues to do so.
Lord Fox (LD)
My Lords, as I suspected, the speakers who came after me made a far more powerful case for these amendments than I could have managed. The noble Baroness, Lady Andrews, expressed the exasperation of her committee, and I think we could all feel that exasperation coming through in her speech. In reiterating the report of the Delegated Powers Committee, she gave a powerful and devasting critique of the measures that are sought here.
Similarly, the noble and learned Lord, Lord Hope, highlighted the absence of a purpose for these powers—and I will return to the Minister’s response in a minute. My noble friend Lord Thomas was right to characterise this as an issue between Parliament and the Executive, not between the Lords and the Commons. I am also grateful to the noble Baroness, Lady Hayter, who very clearly made the point that there is seriously bad stuff in this Bill beyond Part 5—if I may paraphrase her thus.
The noble Baronesses, Lady Ritchie and Lady McIntosh, and others shared my position on why the Government might be taking on these powers. I was worried that perhaps the noble Lord, Lord Liddle, was going to be kind to the Government for a moment, but I am happy to say that he, too, shares our view that these powers are being accrued in order to do things, not least to the Northern Ireland situation, that should not be done.
In defending the Bill, the Minister not only sorted out the Tudor family tree but put forward a very detailed response, and he and his team should be thanked for the comprehensive nature of that. If noble Lords will excuse me, I will boil most of his reply down to saying, “We might need to change stuff but we’re not sure why”. That is true for every piece of legislation that ever came before your Lordships’ House, so it is not, in itself, a justification. Further, if the Government need to change the number of things that are on the list, they do not need these levels of powers in order to do that kind of amendment.
Furthermore, your Lordships have talked at length about the value of common frameworks. The noble and learned Lord, Lord Hope, talked about these frameworks being a living process which embraces change—the very sort of change that the Minister is seeking to gain through these draconian powers. So, if the noble Lord is worried about future unknown unknowns, I commend to him and his Government the common framework process. That is what it is there for.
So we have had a preliminary debate, and I sense a lot of unity across the Floor. In a vague moment of upset, I am grateful to the noble Baroness, Lady Hayter, for raising the coalition Government’s bringing forward of secondary legislation of this nature. It came in the Public Bodies Bill. On listening to the response, the coalition Government withdrew that measure and it did not go forward in the legislation. That is precisely what we are asking Her Majesty’s Government to do here. I cannot help thinking that there is sufficient consensus to take this forward to Report, and we will be talking with fellow speakers. In the meantime, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
We now come to the group beginning with Amendment 14. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate.
Amendment 14
“(9) Regulations under subsection (8) are subject to super-affirmative resolution procedure (see Schedule (Super-affirmative resolution procedure)).”Member’s explanatory statement
This amendment ensures that regulations under subsection (8) are subject to super- affirmative resolution procedure and introduces the supportive Schedule in respect of super-affirmative resolution procedure.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am grateful to have this opportunity to speak to these amendments, which in large measure refer to the possibility of introducing the super-affirmative resolution procedure in the parts of the Bill where it is deemed most necessary. Again, I thank the Law Society of Scotland for briefing me so well and for assisting me in drafting these amendments for our consideration.
Paragraph 31.14 of Erskine May states:
“The super-affirmative procedure has been implemented in enactments where an exceptionally high degree of scrutiny is thought appropriate, for instance, for the scrutiny of certain items of delegated legislation made, or proposed to be made, under ‘Henry VIII’ powers. Sometimes it is the only procedure available and sometimes the responsible Minister is given a choice of order-making powers that includes the procedure, a choice that can be constrained at a preliminary stage by either House.”
I remind noble Lords that the super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. It is important to note that the power to amend the proposed instrument remains with the Minister.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, the noble Baroness, Lady Noakes, and the noble Lord, Lord Carlile of Berriew, have both withdrawn, so I now call the noble Lord, Lord Naseby.
Lord Naseby (Con) [V]
My Lords, as colleagues know, I had the privilege of being Deputy Speaker in the House of Commons for five years, and of course Erskine May was my bible. Indeed, one had to refer to it pretty regularly during the Maastricht Bill procedures. Just as an aside, Erskine May went to Bedford School, as I did, and history has it that he was the only Clerk of the House of Commons who managed to get Big Ben silenced in the middle of the night. However, that is by the by.
We are dealing with trade, industry and markets here; we are not dealing with life-threatening situations that obviously require anything that comes forward to be looked at in a practical manner. Only in the last few days, we have had news of the future trade agreement with Japan, which has just been signed. The agreement makes it clear that the deal that has been settled between the UK and Japan goes far beyond our existing agreement with the EU.
However, of relevance to this amendment is a letter which I have received and which went to all Peers. On the second page, under the heading “Parliamentary transparency and scrutiny, next steps”, the letter says,
“we have shared the full UK-Japan Partnership Agreement treaty text with both the International Agreements Sub-Committee in the House of Lords and the International Trade Committee in the House of Commons. This is to aid the committees’ important scrutiny work and the production of reports by them on the agreement.”
That is a practical example, in the last few days, of the way in which the Government are proceeding. I have to say to the noble Lord, Lord Liddle, that that rather shoots the fox that he produced earlier—that nobody knew what they were doing and that they did not have a strategy, et cetera. That is a practical example.
Like my noble friend Lady McIntosh, I looked again this morning at what Erskine May says about the affirmative procedures. They are pretty straightforward. Traditionally, there were three variations. The first is used where something has to take place on an SI immediately—we have seen the need for that in relation to Covid—and there is usually a specified period by which it should not continue. It has obviously expanded since the days when I was in the Chair: then, it was about 40 days, and now, it appears to be almost six months, but that is by the by.
Then there is the more normal procedure in which a draft is laid before both Houses, not to be made and have effect unless one or both Houses present an Address to the Crown praying for the order to be made or for agreement to resolutions approving the draft instrument. Therefore, there is already a whole host of procedures whereby anything that comes forward can be debated before it is voted on. The key thing is that it is voted on.
As I have said in our earlier sessions, I have been a marketing man and a trading man. We really do not want yet another hurdle—in this case, the super-affirmative procedure—that just creates more delay, and to my mind this degree of consultation on an issue that was causing a problem to one of the devolved Assemblies, a particular industry or a particular trade would do that. Any of us in trade or business knows that if you have a problem, you put it to the Government of the day and you say that the present procedures are not working. There are already safeguards, as I have indicated; in my judgment, you certainly do not need yet another layer of safeguard unless it is a matter of life and death.
I am sorry. I have to say to my noble friend that I cannot possibly agree with this; I think that it is way over the top. If it is taken to a vote, I will certainly vote against it.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
The noble Lord, Lord Liddle, has withdrawn so I call the noble Lord, Lord Judd.
Lord Judd (Lab) [V]
My Lords, I want to put on record my admiration for the consistent, valiant work done by the noble Baroness, Lady McIntosh of Pickering. She has proved herself over recent weeks as a champion, almost second to none, of the principle of accountability to Parliament, the importance of Parliament and the importance of always being cautious lest power drifts back to the Executive. If we are to have these new arrangements for regulation and supervision, what she has talked about is a prime candidate for this. I believe it is a test of whether the Government really do believe in parliamentary authority and the accountability and supremacy of Parliament, and whether they really believe that there is no attempt by the Executive to take back power. I thank the noble Baroness for having given us another opportunity to raise this, which I hope the Government will take seriously.
I have immense respect for my noble friends who are working so hard and consistently on our behalf on the Bill. The rest of us who have strong feelings therefore have to be very cautious about getting in their way and making generalised statements that hold up proceedings and in the end undermine the effectiveness of what they are trying to do.
I want to make this point: anyone who believes that the Bill is simply about an internal market must face the reality, given that history will judge the effectiveness of this Chamber as a scrutinising Chamber, that it is about more than that. It is about a determined drive, as I see it, by the present Government all the time to increase the powers of the Executive. We must therefore be on our toes strategically if we are not, in our preoccupation with the detail of the Bill, to lose sight of this major challenge that we constantly have to face. I thank the noble Baroness once again.
Lord Thomas of Gresford (LD) [V]
My Lords, it is always a delight to follow the noble Lord, Lord Judd, who always helps us with his wisdom and experience. I join him in commending this understandable attempt by the noble Baroness, Lady McIntosh of Pickering, to strengthen the scrutiny of any regulations made by the Minister under the proposed Bill, whether in the exercise of Henry VIII powers or otherwise. While I entirely support their purpose, I cannot support the precise method that the noble Baroness puts forward. The trouble is that there is no single super-affirmative procedure; there are, as the noble Lord, Lord Naseby, pointed out, a whole host of procedures.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, I join the noble Lord, Lord Thomas of Gresford, in thanking the Scottish Law Commission for its contribution to this debate; it keeps an eagle eye on issues in front of your Lordships’ House and from time to time delivers material that is very useful to us as we go through our duties.
As the noble Baroness, Lady McIntosh, said, these are probing amendments. They are about the possible uses of super-affirmative procedures and, as she says, relate to issues in the Bill that might well qualify under her heading for a higher degree of scrutiny.
The noble Lord, Lord Thomas, gave us a useful tour d’horizon of the available ways of doing super-affirmative. I agree with him that there is a case to be made here for looking at them in more detail to make sure that they are picked up and looked at regarding their best purpose, but that perhaps is not for today; there are bigger issues here and they should be looked at, but not in this Bill.
My noble friend Lord Judd asked whether the Government really welcome scrutiny or are simply pursuing their normal process—which seems almost inevitable for any Government—to try to obtain absolute control over the legislation they are bringing forward. I suspect the answer to that question is not to be found in providing for better scrutiny. This is a Bill with deeper problems. I do not think that these proposals, although they have their merits, are the right way forward in trying to unscramble those deeper difficulties. I look forward to hearing the Minister respond.
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, I thank my noble friend for tabling her amendments, which relate, as she explained to the Committee, to the implementation of a super-affirmative resolution procedure. This debate is something of a coda to the previous group. It teases at the questions that many of your Lordships raised there and to which my noble friend Lord Callanan responded in some detail, so, if the House will forgive me, I will not repeat those general arguments in relation to these matters, although I repeat that the Government believe that these powers are important for our internal market. As my noble friend Lord Naseby said, we are dealing with trade matters. I repeat that the Government will not take lightly our responsibility in administering these powers.
I thank all those who took part in this debate for the interesting speeches we heard. On a personal note, I always welcome seeing the noble Lord, Lord Judd. I agree with his expression of admiration for noble Lords and Baronesses on the Front Benches opposite for their work on this Bill. Perhaps he will allow me to extend that sentiment to my noble friends Lord Callanan, Lady Scott and Lady Bloomfield and my colleagues.
Pleasantries apart, of course we acknowledge that the Bill gives the Secretary of State the ability to amend the list of legitimate aims, relevant requirements and schedule exclusions through a draft affirmative statutory instrument, with just one time-limited made-affirmative power, which relates to the services exclusions in Clause 17(4). We are fully committed to ensuring that the use of these powers is subject to effective oversight and consultation. That is why any use of the power would require an affirmative regulation to be passed in both Houses of Parliament. This will ensure that Parliament would be able to scrutinise and vote on any changes.
Turning to the substance of my noble friend’s amendments, if we were to accept Amendments 14, 29, 40, 76, 77, 101, 133 and 176, to which my noble friend spoke in this group and which call for the super-affirmative resolution procedure, it would cause unnecessary delay when a change was urgently needed. That point was very forcefully made by my noble friend Lord Naseby in a compelling speech made from the standpoint of his immense experience in chairing the proceedings of the other place.
Although your Lordships’ Delegated Powers Committee had many observations on this legislation, it did not propose the super-affirmative resolution procedure. I repeat: there is a risk of undue delay in a situation that may arise where it appears necessary to act swiftly to prevent undesirable outcomes. My noble friend Lord Callanan gave a number of examples on the previous group. The Government may need to respond quickly and effectively to maintain the status quo after the transition period has ended.
We believe that the draft affirmative resolution procedure—noting that the made-affirmative power is time-limited—offers sufficient parliamentary scrutiny while enabling the Government to act quickly. I therefore ask my noble friend to withdraw the amendment. While I think her amendments attracted the interest of the Committee, and I am grateful to her for bringing them forward, I think it would be fair to say they did not carry the support of the Committee.
As my noble friend has acknowledged, Amendment 24 is consequential so I will not address it in detail. Amendment 25 seeks to probe the Government’s understanding of what is meant by “substantive change” in Clause 4. I can tell my noble friend that it means that any changes that re-enact regulation in a way that changes its outcome count as substantive. Where existing legislation receives technical or minor amendments that do not alter its substance, that does not count as a substantive change.
I hope these responses address the concerns of my noble friend and therefore ask her to withdraw her amendment.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Purvis of Tweed.
Lord Purvis of Tweed (LD)
My Lords, I am grateful for the Minister’s comments on Amendment 25. It was a question linked to the previous group that the noble Lord, Lord Callanan, did not respond to, so I am very grateful that he did.
The Minister talked about how “substantive change” is now defined. We are now in the realm of what the Minister said is a Pepper v Hart moment because what is said on the record at the Dispatch Box is very important, and these measures require a different outcome. The policy outcome intentions of many of these measures might remain the same, but some elements would be different. If the Minister is saying—on minimum unit pricing, for example, or on environmental or public health considerations—that if the intended outcome of the re-enacted or updated requirement remains the same, would that continue to be exempt? That is important because, in both the legislation and the Explanatory Memorandum, that is not so defined. If minimum unit pricing changes the level of the price, or if tuition fees continue but their level changes, if the policy intent is the same, the exemption will carry on—is that the correct understanding?
Lord True (Con)
My Lords, I note and hear what the noble Lord has said, but I think he would allow me not to enter into speculative discussions. I have put to the Committee a response to a question—a response provided to me to advise the Committee. As for its application, that is a matter that would be speculative and could be considered further. I will stand by the words that I put before the Committee.
Baroness McIntosh of Pickering (Con) [V]
I thank all noble Lords who have spoken in this debate. I was grateful for the opportunity to probe the extent to which this procedure of super-affirmative resolution may be more appropriate.
My noble friend Lord Naseby might not think that this is a matter of life and death, but if you are dealing with perishable goods—particularly animals and their movement over what will be internal borders—that might be the case. I part company with my noble friend on the EU-Japan agreement; it actually does not go that far. My understanding is that what was heralded as a bigger market for cheese, which will be very welcome, relies on the EU allowing us to use what is left of its quota that it does not wish to use. It is the leftovers—the crumbs under the table. It could be very helpful to our cheese producers, but it is not quite as straightforward as one might first think.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
We now come to the group beginning with Amendment 15. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment or anything else in this group to a Division should make that clear in the debate. The noble Baroness, Lady Finlay, is having difficulties connecting with us, so I call the noble Lord, Lord German.
Amendment 15
Lord German
Member’s explanatory statement
This amendment requires the Secretary of State to obtain the consent of the devolved administrations before making regulations amending Clause 3(3), which specifies the types of statutory requirement that are within the scope of the mutual recognition principle.
Lord German (LD)
My Lords, the noble Baroness, Lady Finlay, is detained in another part of your Lordships’ House. I will move Amendment 15 and speak to Amendments 30 and 64 in this group, which attempt to place one limitation on the extraordinary and extensive Henry VIII powers that we were talking about in the last group: namely, they require the consent of the devolved Administrations to using those powers. Amendments 15 and 30 would impose this requirement in relation to Ministers’ power to remove or, more worryingly, add to the statutory requirements that are
“within the scope of the mutual recognition principle”
and “the non-discrimination principle”, respectively. Amendment 64 would require devolved consent for any guidance issued in respect of Part 1.
I must say that I am very attracted to the amendments tabled by my noble friend Lord Fox, which would simply strike out the Henry VIII powers in Clauses 3 and 6. As your Lordships will know, these have been strongly condemned by the Delegated Powers and Regulatory Reform Committee—a matter to which I will return later.
Without amendments such as these, it would be possible for the Government to strip back still further the very limited exemptions that these clauses provide for, which are far more limited than is currently the case with EU law, where the principles of subsidiarity and proportionality apply alongside far broader public policy exemptions. I remind your Lordships and the Government that they are working on the basis of principles that they repeated last month and established in October 2017—that they would move forward under
“established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent”.
Those words, “without their consent”, represent a principle to which the Government have signed up. That is why the amendments of the noble Baronesses, Lady Hayter and Lady McIntosh, seek to engage with the devolved Administrations but do not require the Government to achieve their consent.
Obviously, either amendment would be preferable to the current problem, but the issue is that it would be easy for the Government to demonstrate that they had sought the consent of the devolved Administrations on a wholly unreasonable proposal, and the fact that it had not been forthcoming would have no relevance at all. Therefore, the Government could report that they had consulted the devolved Administrations and tick the box required without even attempting to address their concerns.
I return to the issue of secondary legislation; that is the source of these amendments because the powers are so sweeping and there is no restriction on, or knowledge of, what they will deal with. As noble Lords may be aware, three committees of your Lordships’ House have expressed concern about these matters. The Delegated Powers and Regulatory Reform Committee, the Secondary Legislation Scrutiny Committee and the Constitution Committee all wrote to the Lord President of the Council, the Leader of the House of Commons, who has government responsibility for the way in which delegated powers are used.
In Jacob Rees-Mogg’s reply of 19 October, he said:
“I agree that Bills with substantial powers, though sometimes essential, should not be a tool to cover imperfect policy development. As a Government, we must have a clear direction and be able to explain to both Parliament and our constituents how we are fulfilling the promises of our manifesto. I can see that extensive use of delegated powers can hinder rather than help us in that. Therefore, I am happy to consider issuing communications to Secretaries of State on this matter, encouraging them to minimise the use of delegated powers where possible”.
I ask the Minister: has the Lord President of the Council, the Leader of the House of Commons, consulted him on the matters that he is putting before us today? If so, will he heed that warning from Jacob Rees-Mogg?
The other matter that concerns me, which my noble friend Lord Purvis talked about, is the extent to which the powers can be used in a variety of ways. I reflect on the environmental aspects, which the noble Lord, Lord Callanan, just talked about, in relation to the recycling of materials, which is one of the issues on which the Government may wish to introduce regulations. The reason for that might well be that they have a concern about the environment, such as the nature of plastic film or single-use plastics; they might want to introduce those requirements.
However, it could go the other way and make the problem worse. For example, you might stop a devolved authority banning the use of plastic spoons or using plastic film on fresh food. The Government have admitted that they want to carry through all those health and environmental considerations by saying that they are looking at the recycling of materials as something that it might touch in the future.
Therefore, it seems to me that we have grave concerns about the way changes in these areas will be implemented. If we follow the advice of Jacob Rees-Mogg, then, certainly, we would not seek these powers in this Bill at this time because they do not include the policy intent that is to be provided. In these amendments, we can ensure that the consent of the devolved Administrations is given and that we can address and seek their approval, but it would be far better if we did not have these delegated powers at all.
Lord Hope of Craighead (CB) [V]
My Lords, as the noble Lord, Lord German, just said, it would be far better if we did not have these provisions in the Bill at all, but one must assume that they may remain. That is why these amendments, particularly Amendments 15 and 30, to which I have added my name, address the provision which talks about consultation but does not mention the word “consent”.
I have two requests for the Minister; I will not elaborate further on what the noble Lord, Lord German, said in his very helpful introduction to this group. First, would he be good enough to repeat, in the context to which these amendments refer, the assurance he has already given that the Sewel convention principles will be applied without any hesitation in regard to consultation?
Secondly, will the Minister consider whether it would not be wise, in view of the importance of the clauses in which these provisions appear, to adopt the system used, he will recall, in the European Union (Withdrawal) Act 2018 when considering the system of seeking the consent of the devolved Administrations—Assemblies, Senates and Parliaments—to the modification of EU law? He may recall that Ministers were given power to restrict the powers of the devolved Administrations to modify EU law in certain respects by delegated legislation. Provided for in Part 1 of Schedule 3 was a system whereby the Parliaments, Senate and Assembly were given an opportunity to provide consent. The wording in the Scotland provision was:
“A Minister of the Crown must not lay for approval before each House of the Parliament of the United Kingdom a draft of a statutory instrument containing”
the relevant
“regulations … unless … the Scottish Parliament has made a consent decision in relation to the laying of the draft, or … the 40 day period has ended without the Parliament having made such a decision.”
If it came to the point of there being no consent, when the Minister of the Crown laid this draft, as mentioned, before either House, he would be required to explain his decision to lay it without the consent of the Parliament.
That system was arrived at after a great deal of discussion in the 2018 Act; it is quite a useful one that might well be thought appropriate in this case to reduce the element of dismay which the devolved Administrations are feeling about how they are being treated by these provisions—all that has been provided for is consultation. They would at least have an opportunity in their legislatures to consider whether consent should be given. Of course, if they fail to give it within 40 days, ultimately the Minister can go ahead, provided he explains why he is doing so. There is no amendment to this effect, but this is an opportunity for the noble Lord to consider whether it would not be wise to soften the blow that has been felt by the devolved Administrations by adopting that system, which was so carefully worked out and eventually accepted in the 2018 Act.
Beyond that, I support everything the noble Lord, Lord German, has said in support of the amendments to which he has spoken.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord German, and the noble and learned Lord, Lord Hope of Craighead. I thank them both for setting out detailed consideration of this rather long list of amendments, the length reflecting the levels of concern in the Committee about this area of the Bill.
I will speak to a series of amendments in this group to which I have attached my name, Amendments 15 and 64 in the name of the noble Baroness, Lady Finlay of Llandaff, and Amendments 16, 41, 48, 74 and 99 in the name of the noble Baroness, Lady Hayter of Kentish Town. I apologise to your Lordships for not taking part at Second Reading. My name was down to speak, but I was caught up in the collision with the Medicines and Medical Devices Bill, which also prevented me from taking part in earlier Committee sittings.
That is not the only crucial political collision we are encountering at the moment. As a former newspaper editor, I am well aware of the problem of the media being able to focus on only one issue at a time. I sought to place an article about the environmental issues in the medicines Bill with a major news outlet, and was told “No, we’ve already run too many articles on this Bill.” We are at risk of falling into the same problem with this Bill.
I can identify at least three major areas that could in normal circumstances expect attention from the serious media. Rightfully getting top billing are the Part 5 issues that we expect to get to on the final day of this Committee’s deliberations. The second area, which would normally get massive amounts of attention, is the clauses that provide powers even greater than those of Henry VIII, as the noble Baroness, Lady Andrews, the noble and learned Lord, Lord Hope of Craighead, and others spoke to so powerfully earlier today. As a former journalist, I have a shorthand for that—Henry VIII on steroids. I share the liking of the noble Lord, Lord German, for the amendments that wipe those out altogether.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am delighted to speak to a number of amendments in my name but also to lend my support to Amendment 16, which I have co-signed, in the name of the noble Baroness, Lady Hayter of Kentish Town. It is essential that we seek the consent of the devolved Administrations in these circumstances, rather than just simply consult, for the reasons the noble Lord, Lord German, gave in moving his Amendment 15 and those alluded to by the noble Lord, Lord Thomas of Gresford, in the earlier debate. I hope that the Government and my noble friend the Minister will look favourably on the request that we should seek the consent of the devolved Administrations.
Again, I am grateful to the Law Society for its drafting of and briefing on the amendments I have put forward. In Amendments 17 and 31, I am seeking greater transparency and inviting the Secretary of State to publish the results of the consultation and give reasons for any decision reached.
I pray in aid the conclusions of the Constitution Committee report on the Bill, at paragraphs 76 to 79, which criticise the powers set out in Clause 3(8) in particular. Paragraph 78 states the following:
“The Government should explain how the consultation process for amending the relevant requirements for goods would work and how disputes would be resolved.”
At paragraph 79, it says:
“We agree with the DPRRC that the power in clause 3(8) has not been justified and should be removed from the Bill.”
I seek to oblige the Secretary of State to consult the devolved Administrations but also to go further and make public, in the interests of transparency, the results of the consultation and the reasons for any decision taken on the basis of that consultation.
Similarly, my Amendment 42, asks for consultation with the devolved Administrations in a host of circumstances, before, as my explanatory statement refers to,
“amending the list of legitimate aims.”
Amendment 43 says that, in relation to Clause 8:
“The Secretary of State must publish the results of the consultation and give reasons for any decision reached.”
Amendment 49 seeks consultation with the devolved Administrations before amending Schedule 1. Amendment 62 seeks consultation with the devolved Administrations before preparing guidance under Clause 12. Amendment 65 is a consequential amendment. Amendment 75 seeks that consultation be sought with the devolved Administrations before amending Schedule 2.
Finally, Amendment 100 seeks consultation with the devolved Administrations before the definition of “legitimate aim” in Clause 26 is amended. I refer here to both the definition of “legitimate aim” being amended and to the guidance having earlier been published. With those remarks, I urge my noble friend and the House to look favourably on these amendments.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I concur with the comments of my noble friend Lord German, the noble and learned Lord, Lord Hope, and others concerning consent and what might be termed the proper conduct of devolution. But I will limit my remarks to the amendments in the name of the noble Baroness, Lady McIntosh, relating to the publication of decisions, to which I added my name, not for the purpose of signalling that I am satisfied with consulting rather than obtaining consent, but because I want to flag up that there must be transparency.
It is difficult to tell from provisions throughout this Bill how transparent various procedures will be, which raises my concern that they may not be very transparent at all. The internal market is a matter of significant public interest, and while individuals may not bury themselves in the minutiae, they will feel the impact. There are various organisations on the front line of helping consumers and small businesses to understand laws and their rights. Therefore, whatever the procedure, there should be publication of the proceedings that are formulating the structure of the internal market.
I have amendments on transparency elsewhere relating to the CMA and the OIM, and they are part of the same theme. If the consumer voice is to be heard and articulated by consumer organisations, access to information is paramount. Otherwise, interventions and understanding may come too late.
Lord Wigley (PC) [V]
My Lords, I agree with the noble Baroness, Lady Bowles, on transparency, and I look forward to coming to those points later. I am pleased to speak to this group of amendments, and in particular to Amendments 30 and 64, to which I have added my name, and to Amendments 75A and 100A, which stand in my name.
Perhaps I should first make it clear that I support Amendment 15 in the name of the noble Baroness, Lady Finlay of Llandaff, moved by the noble Lord, Lord German, which stipulates that not only should the UK Government consult the devolved Governments but that they must obtain their consent. I would have added my name to that amendment had other colleagues not got there first. I agree with the noble Lord, Lord German, that it would be far better if we did not have these powers in the Bill at all. I also believe that the points made by the noble Baroness, Lady Bennett, go to the heart of why devolution of power was made in the first place and is still very much needed.
Amendment 16 does not go as far as Amendment 15. It advocates the need to seek consent of the devolved Administrations but it does not impose a requirement to obtain that consent. Amendment 17, likewise, does not go as far as Amendment 15, in that it again requires the Government to publish the result of consultation, so the implication is that the UK Government may well consult the devolved Governments and then blithely ignore their viewpoints. There is, as the noble Lord, Lord German, implied, no earthly point in having a consultation system if the UK Government may then, willy-nilly, totally ignore the devolved Governments’ viewpoints.
I now turn to the group of amendments that relates to Clause 12. Amendment 64 in the name of the noble Baroness, Lady Hayter, requires the UK Government Minister, in this context, to consult and seek the consent of the devolved Governments. Likewise, Amendment 75 in the name of the noble Baroness, Lady McIntosh, requires the Minister to consult the devolved Governments. But both these amendments give the appearance of consulting the devolved Governments but place no obligation whatever on the Minister to take any notice of the response elicited. The Minister can happily consult then blithely ignore the views of the devolved Governments. That is not good enough. Indeed, it is highly dangerous. It gives the appearance of consultation without providing the substance of a requirement to respect the outcome of any such process. In reality, this plays out a charade of having a joint approach between the four nations and provides an open road for the UK Government Minister to totally ignore the views of the devolved Governments.
My Amendment 75A simply requires the Minister, with regard to subsection (2), to consult and obtain the consent of the devolved Governments. I readily recognise that the UK Government may argue that the devolved Governments should not have a veto over the Westminster approach. That is something I recognise and respect, but the implication is that Westminster should have such a veto. In regard to devolved functions, the whole point is that the four nations should have the right to make their own policies. That is what devolution is about. The Government seem to take the Orwellian approach that all four nations are equal but one is a little bit more equal than the others.
My Amendment 100A applies the same principle to the consultation issues relating to Clause 20(7) and the need for the Minister also to obtain the consent of devolved Governments in that regard. What this comes down to, yet again, is the need to have an acceptable mechanism to resolve disagreements, to have the common frameworks to which we have resorted on so many other occasions and not to take the approach that the Government of England—which it is for the devolved function—always has the right, by dint of its respective size, to overrule the other four nations. If such a mechanism were in place, we would not have to put ourselves through the pain of raising these questions on every occasion that the issue of consultation between the Minister and the devolved authorities arises. I implore the Minister to bring forward an amendment on Report that would obviate the need for us to return to these issues, time after time. Until such a change to the Government’s approach is forthcoming, we will have no choice but to press amendments along the lines of this group at a later stage.
Lord Hain (Lab) [V]
My Lords, as so often, my noble friend Lord Wigley has spoken for the wide consensus on this question in Wales. I will speak specifically in support of Amendments 74, 75 and 99, which seek to ensure that the Henry VIII powers of the Secretary of State to amend the Bill’s provisions relating to market access on mutual recognition, non-discrimination and the “legitimate aim” of regulatory requirements are referred to the devolved Administrations for their consultation and consent. I do so following a series of excellent opening speeches, notably by the noble Lord, Lord German, and the noble and learned Lord, Lord Hope.
The Bill has been justified on the basis that it is intended to support the UK internal market for goods and services once EU rules no longer apply after the transition period ends on 31 December. These rules, derived from EU law, place constraints on the ability of government institutions within the UK to impose constraints on the free movement of goods, as well as people, and significantly reduce the scope for measures that would restrict intra-UK trade. One reason that the UK Government wish to constrain the autonomy of the devolved Administrations in this area is that countries with which the UK is trying to negotiate trade deals may wish to clarify that they have access to the whole UK market, or Great Britain market if the Northern Ireland protocol survives, as it must do.
A White Paper published by the Government in July 2020 claimed that the Bill would provide “frictionless trade”, “fair competition” and protection for businesses and consumers within the UK. To achieve these aims, two market access principles were identified, namely mutual recognition and non-discrimination, which would constrain the ability of all relevant actors within the UK, be they regulators, local authorities or devolved Administrations, to impose new regulations on goods and services. These limit the ability of devolved Governments to regulate economic activity far more than did their EU predecessors. So much for taking back control. Obviously, that does not apply to devolved legislatures, which will lose control under the Bill—to Whitehall.
The UK internal market was initially seen as one strand of work, begun in October 2017 by the four Governments within the UK, to establish a common approach in key policy areas of returned EU rule, referred to as common frameworks, about which I spoke in the last Session. However, it is generally agreed that, by removing the internal market from these discussions and pushing ahead without the agreement of the devolved Authorities, the common framework approach is being completely undermined by the UK Government.
In response to the White Paper, the Welsh Government insisted that any new system must have independent oversight and dispute resolution, and that common rules must be agreed by all four Governments. When the Bill was published, Jeremy Miles, the Welsh Government Counsel General, called it an “attack on democracy”, and the Scottish Constitution Minister pointed out that the concept of mutual recognition could mean that Scotland, for example, would be forced to accept lower food standards—an area that is currently devolved—against its express wishes.
The mutual recognition provisions would, therefore, effectively prevent one part of the UK unilaterally imposing and enforcing requirements, for example for the presentation or characteristics of goods, which are covered by this principle, which also applies to services. There are exceptions under the Northern Ireland protocol. “Manner of sale” requirements, on the other hand, for example governing to whom products may be sold or their price, would not be covered by mutual recognition but by the non-discrimination provisions of the Bill. The exclusion of price from the mutual recognition principle was driven, in part, by arguments in the other place about what the Bill might mean for Scotland’s minimum alcohol pricing regime—subsequently adopted in Wales, more or less—in response to the public health challenge from excessive alcohol consumption.
Schedule 2 contains lists of services that are excluded from the principles of mutual recognition and non-discrimination, such as healthcare, transport and water supply, as well as some privately provided services. Amendments 74 and 75 require the Secretary of State to consult and/or seek the consent of the devolved Administrations before making changes to Schedule 2.
If there is wariness about enabling any one of the devolved nations to exercise a veto—for example, the Scottish nationalists simply refusing to consent to something which would benefit the rest of the UK —leading to deadlock, why, as I have suggested several times in recent debates in your Lordships’ House, do the Government not adopt the Welsh Government’s proposal for a Council of Ministers-type model with a form of qualified majority voting, in place of the current Joint Ministerial Committee, which has been dysfunctional and, frankly, worse than useless? I specifically ask the Minister to respond to this suggestion of the Welsh Government to have a Council of Ministers-type model with qualified majority voting, which could overcome many of the issues involved. This model would require the UK Government, since it represents England with its disproportionately large population and share of GDP, to secure the agreement of at least one devolved Administration before overriding any devolved Administration that wanted to exercise a veto.
The Bill prohibits both direct and indirect discrimination. The latter is permitted if it can reasonably be considered a “legitimate aim”, as defined in the Bill. However, with the Bill as it stands, the Secretary of State can redefine that term by regulations, subject only to an affirmative resolution procedure. Amendment 99 rightly seeks to ensure that there is consultation and consent from the devolved Administrations before doing so. I cannot for the life of me understand why the Government or the Minister, for that matter, would object to that.
New functions will be bestowed on the Competition and Markets Authority—the CMA—to monitor and report on the impact of specific regulations that are considered to potentially have a detrimental effect on the internal market. The Bill also proposes to establish an office for the internal market within the CMA to oversee the application of these principles and the functioning of the internal market. Expert analysis has shown that, whereas EU law had a symmetrical effect upon the UK Parliament and devolved legislatures, the Bill will have an inherently asymmetrical effect as it will become a protected enactment, which the devolved legislatures will be powerless to repeal or modify.
The Bill will also narrow the territorial scope of devolved legislation. Regulations relating to goods, passed by the Senedd, for example, will apply only to goods produced in Wales or imported directly into Wales from outside the UK. They will not apply to goods imported from the rest of the UK. This, as acknowledged by the business department’s impact assessment of the Bill, would reduce the ability of local legislatures to produce targeted social and environmental objectives, so that the intended societal—[Inaudible.]
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
We seem to have lost connection with the noble Lord, Lord Hain, so I call the noble and learned Lord, Lord Mackay of Clashfern.
Lord Mackay of Clashfern (Con) [V]
My Lords, I have not tabled many amendments to the Bill—although there are many things on which I might seek reconsideration—because it is important that I confine myself to the principal matters. In this group, my amendment requires that the powers in the Bill are to be used only for the promotion of the internal market. Any idea that the Bill can be used for any other purpose should be clearly outlawed.
It is important to note that while the powers of the European Union in relation to our internal market will stop on 31 December, the retained EU law on our internal market will, of course, remain in place unless and until it is altered. Therefore, the question before the Committee now is about the rules that should apply after 31 December, and the powers that exist to change these in that time. I think it is absolutely clear that the responsibility for the internal market in legislative form must ultimately be with the UK Parliament, but of course the UK Parliament includes representatives from all four countries. Therefore, it is a suitable responsibility to carry. However, the other point is that the existing devolved Administrations and legislatures have responsibility for the laws in their particular areas. Accordingly, it is very important to ensure that, so far as possible, the rules of the internal market should accommodate that and be in agreement throughout the whole United Kingdom—in the devolved Administrations and legislatures also.
Therefore, I agree very much with a great deal of what has been said in support of the amendments in this group. I have an amendment later that suggests that every power that the Secretary of State has should be subject to the rule that they consult the JMC(EN), which I think is the committee responsible for the modification and regeneration of the common frameworks. That system seems to have worked very well, as far as I can gather from what has been said. I suggest that every power that the Secretary of State has to make regulations under the Bill should be subject to being put before that committee, which includes Ministers from the devolved Administrations, before they go forward. If, and only if, there is discontent or disagreement, the matter should then be referred to two debates, one in each House of Parliament, to resolve the matter using the responsibility that they have to solve the matters of the common market.
This is absolutely important. It is extremely important that the union we have is preserved by proper relationships between all the Administrations. I see no reason at all why that should not happen. I know that at least one of the Administrations has a desire to forsake the union, but in the meantime, while they are in the union, it is important that we have the best relationships possible with them, so that there is no feeling of resentment. An internal market is a very important part of the union, and a part that would be damaged if there were any degree of separation, both for the remaining units as well as for the unit that was thinking of leaving. This series of amendments in various forms is very important in the preservation of the union, and I support the principles laid down. I do not concentrate particularly on my own amendment, although I think it is quite important.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, the noble Lord, Lord Hain, lost his connection, so we shall try him again now. It seems we are still having problems with the noble Lord, so I now call the noble Lord, Lord Naseby.
Lord Naseby (Con) [V]
I thank my noble and learned friend Lord Mackay. He certainly has a very practical sense of the law, which not all lawyers have. He is right: it is an internal market; the relationships between England, Scotland, Wales and Northern Ireland are usually very close and we all have a common cause, perhaps not in rugby, but in most things. Nevertheless, I repeat that the words used in the Bill are pretty strong. It does not say that, in making regulations, the Secretary of State “may” or “should”, as we see occasionally in law; it uses the word “must”, which is a strong word. He “must consult”; there is no option. That is quite right—absolutely right, but we need to remember what “consult” means.
It is not a soft verb. Its component parts, in my view, involve seeking out information or advice, depending on the subject matter. It means doing one’s best to find out what the views are, to have an interchange and to take into consideration all aspects of the particular action proposed. It is not a dictatorship or anything like that, and I would not believe that any Secretary of State, of any Government, would view it that way. I personally think it is as strong as it needs to be. The addition of “obtain the consent of” in place of “consult” is a threat; there are no two ways about it. When I was in local government and the leader of a local authority, if I had had some legislation in front of me that said, “You have to obtain our consent”, I would dig my heels in. Do not bother about the other 31 local authorities in London—just dig your heels in and that will foul it all up.
That is not what this is all about, so I am not in favour of Amendment 15. I think, though, that the noble Lord, Lord Hain, and my noble and learned friend Lord Mackay have taken the argument a bit further. The noble Lord, Lord Hain, was talking about a qualified majority, when one part of the nation dug its heels in for some reason, and maybe we should look at that. My noble and learned friend Lord Mackay put forward how Parliament might be brought in at a higher level in something that was particularly difficult. There is merit in looking at both aspects, but I just think the amendment before us, Amendment 15, is over the top.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, it is a pleasure to take part in this fascinating debate, which is very much legal in content. I support the principles enunciated by the noble Lord, Lord German, and the noble and learned Lord, Lord Hope of Craighead. Like him, I would like to ask the Minister, the noble Lord, Lord True, what the Government’s view is of the Sewel convention. What is the Government’s view of devolution?
I speak as someone who was once a Minister in the devolved Administration in Northern Ireland. I dealt with legislative consent Motions all the time. The connection between the consultation and the devolved Administration was vital, particularly on benefits, where we operated the principle of parity.
I support all these amendments because they pivot the debate on the issue of seeking the consent of the devolved Administrations and the level of consultation. If the Government are serious about respecting devolution and honouring the Sewel convention, they should accept these amendments. It is my fear that this Bill is really about a power grab and Henry VIII powers. Unlike the noble Lord, Lord Naseby, who is obviously batting for the Government as a Back-Bencher, I do not think these amendments are meant as a threat to the legislation or to the Government. We must always remember that the Executive should be accountable to Parliament. The words of the noble and learned Lord, Lord Judge, in his treatise on this are very germane on this issue.
The Bill is peppered with many provisions where the Government seem intent on undermining devolution and the devolution settlements. This demonstrates a lack of respect for them and the work they do. Do the Government believe in and subscribe to devolution, or are they trying, by stealth and secondary legislation, to be an integrationist Government? In this regard, I refer to a report from the Lords Constitution Committee, which states:
“As the operation of the devolution arrangements and the respective power of the devolved institutions are constitutional matters, we would expect to see them amended by primary rather than secondary legislation or by using a statutory procedure that requires the consent of the devolved legislatures”.
I ask the Minister: when are the Government going to come back to that position? The Constitution Committee is also instructive about the role of consultation. Point 5 of its summary of conclusions and recommendations states:
“The lack of specificity about the consultation requirements in the Bill is problematic. The Government must set out the process for consultation with the devolved Administrations on the management and adjustment of the internal market arrangements.”
So be it with the mutual recognition principles for goods.
There is also a lack of reference to the common frameworks, an area that would help to resolve some of these issues. Is that because the Government wish to further control the devolved Administrations? There is a strong case for withdrawing this legislation and going back to the drawing board, while a more suitable intergovernmental approach and better consultation are used to develop an appropriate system of governance.
The Government’s approach in this Bill is about weakening devolution arrangements, hence it is important to achieve and obtain the consent of the devolved Administrations for the mutual recognition principles. I therefore fully support these amendments, which are trying to curb the Henry VIII powers.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, I am told that we have the noble Lord, Lord Hain, again.
Lord Hain (Lab) [V]
Thank you, my Lords. I suddenly expired by unilateral mute for reasons that neither the broadcasting hub nor I could understand. I was about to complete what I said so, with the leave of the Committee, I will briefly do so.
The Bill will also narrow the territorial scope of devolved legislation. Regulations relating to goods passed by the Senedd, for example, will apply only to goods produced in Wales or imported directly into Wales from outside the UK. They will not apply to goods imported from the rest of the UK. This, as acknowledged by BEIS’s impact assessment of the Bill, would reduce the ability of local legislatures to pursue targeted social and environmental objectives so that the intended societal benefits “would be forgone”.
It is therefore clear that the market access principles of mutual recognition and non-discrimination set out in the Bill would present a significant threat to the purposes of devolution, which have been democratically established now for nearly two decades. Surely it is not too much to ask that, at the very least, the devolved Administrations should be consulted and their consent sought on the relevant measures in this Bill, as set out in these amendments?
Lord Liddle (Lab)
My Lords, there have been many excellent speeches in this debate and I doubt that I have anything much to add.
I commend to the Government that they take note of what was said by the noble and learned Lord, Lord Mackay of Clashfern. This is potentially a critical issue for the future of the United Kingdom. I want to see a United Kingdom survive; I am a passionate supporter of that. That means we must have a well-functioning internal market. However, the Government are making a great meal of this issue, building it up into a much bigger conflict than it needs to be. I urge them to follow the route of reviving and working through the common frameworks that I remember David Lidington proposed as part of the European Union (Withdrawal) Act. I do not see why this new Conservative Government have apparently abandoned the approach that David Lidington took then and are seeking to create a confrontation between the principle of consultation, which they favour, and the principle of consent favoured by the devolved Administrations.
The present Government seem to see Brexit as an opportunity for the assertion of the UK as a unitary state. This is very dangerous for the UK’s future. Take, for example, the structural funds, which play an important part in the Welsh and Scottish economies. Under the devolution settlement, the devolved Administrations were responsible for how structural fund money was spent in their areas. This Government are trying to take that away, establishing new powers to direct investment in Scotland and Wales. The Government are trying to reassert a unitary state. This is the wrong path to be following.
The person I think speaks the most sense on these questions is former Prime Minister Gordon Brown. I want to see us evolving in a federal direction and we cannot do that if we are going to tear up principles that have already been agreed. We are on the verge of making the mistake that the Conservative Party made in the 1880s when it rejected Gladstone’s visionary plan for Irish home rule and we will pay very heavily for the consequences.
Lord Cormack (Con)
My Lords, I am very glad to follow the noble Lord, Lord Liddle, because, not for the first time, he speaks a great deal of powerful good sense. We have to recognise that what is at stake here is the future of the United Kingdom as we now have it and not as we used to have it. As I said when I spoke briefly on Monday, I was not an advocate of Scottish devolution because I saw within it the seeds of disaster, but we have it. The fact that we have a Government in Scotland who are bent on independence adds a real danger and we must not play into the hands of those who would destroy the union.
It is all a question of getting the right balance. Far too often we have not got the right balance. I completely accept that the United Kingdom, which I want to see retained, has a Parliament and a Government which are clearly superior in political power to the devolved Administrations. Bearing in mind that one of those Administrations wishes to separate, I believe there is an enormous amount of good sense in what the noble Lord, Lord Hain, said. He talked about qualified majority voting within a council of Ministers drawn from the United Kingdom Government and the devolved Administrations. I beg my noble friend on the Front Bench to reflect on the wisdom of what the noble Lord, Lord Hain, and my noble and learned friend Lord Mackay of Clashfern, to whom the noble Lord, Lord Liddle, referred, said in very thoughtful, well-considered and powerful speeches.
It is clearly crucial that we consult within the four countries. It is clearly crucial that we recognise that one of the four countries has 80% of the population of the United Kingdom. It is clearly important that no tail wags the dog, but it is equally vital that we treat each other as equals and that Ministers meet and come to sensible decisions which are not seen as impositions. That is why I am so fundamentally opposed, as I always have been, to Henry VIII clauses. That Henry VIII should have been recruited in such large measure by the present Government is extremely unwise. To get immediate domination through a means that can only spawn long-term disaffection is not wise, and we need a Government who are able to practise wisdom at this crucial moment in our history.
We have left the European Union, we are going forward as a United Kingdom and we have got to achieve balance and symmetry and a long-term wisdom which does not lead to the replication of the sort of social division that was created in the 1880s, to which the noble Lord, Lord Liddle, just referred. History does not repeat itself, but it does—or should—teach us lessons and we should seek to derive wisdom from the knowledge of what has happened in the past. I beg my noble friend to consider what has been said in this debate, to reflect on the very wise words which we have had from the noble Lords, Lord German and Lord Liddle, the noble Lord, Lord Hain, in particular, and my noble and learned friend Lord Mackay of Clashfern, and let us try to come to an accommodation.
We need to come together in this country more than we have ever needed to. We must not dismiss opinions because they come from parties other than our own. I am not so starry-eyed as to think that we could have a national Government tomorrow, but we have to treat each other with a degree of respect. We have to recognise that it is just conceivably possible that the other side might have a few good views.
Cromwell was not a man for consensus, but he once said, in the predecessor of the other place: “Conceive it possible, in the bowels of Christ, that you may be mistaken.” My message to the Government this evening is: conceive it possible that you may not have got it quite right, and let us come together to help you to get it right.
Lord Judd (Lab) [V]
My Lords, I declare an interest because I am half English and half Scottish, and proud of it. I am very close to my Scottish family. I have always feared that, in this House in particular, we have underestimated the dangers ahead had devolution not happened. The lessons of Ireland are there, and I believe that the peace and stability of our peoples across the islands of Ireland and Great Britain have been ensured by the process of devolution; I am convinced of that.
When my noble friend Lord Hain says he sometimes does not understand why Ministers do not accept the logic of a particular position that is taken, I think that he is failing to look at the driving force behind all that is happening. As I said in a debate on a previous amendment today, I believe that there is a driving force against everything that I think most of us in this House have believed was vital.
There is a world of difference between the concepts of “consult” and “consent”. What builds up the resentment of the Scottish people, for example—I am sure it is true for Northern Ireland and Wales as well—is the patronising assumption that we will consult the others. Those who emphasise the importance of mutuality in this debate are absolutely right. That means that we meet, in a sense, as equals, and we seek their consent to proposals that we may be making.
The amendment is vital. It is vital not just to this internal market Bill but to recommitting ourselves to peace-building. We always seem to react and try to deal with crises when they have overtaken us. In this case, we had the wisdom to look ahead and do things in time. We will need to reassert the whole process of peace-building, mutual consent and the recognition of people as people, wherever they are with their identity. This amendment is very important indeed.
Lord Purvis of Tweed (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord Judd. I agree with him. Reflecting on this amendment, so ably moved by my noble friend Lord German on behalf of the noble Baroness, Lady Finlay of Llandaff, I was struck by the point made by the noble Lord, Lord Cormack. During the 20 years of devolution, none of us has had a unique monopoly on wisdom as to what devolution is. It has been a combination of people on a journey. The noble Lord started from a position of opposition but then perhaps found areas to support, while recognising that there are still frictions within our union. Within my party, there has been a consistent element of support for delivering it.
I hope the Minister accepts that no one in this House wishes our union ill harm. No one wants the internal market not to operate in the best way that it can for the benefit of our businesses and our people. Clearly, there are nationalists across parts of the United Kingdom who have a different purpose, but when we are scrutinising this Bill, we want it to be better.
I want to reflect on the points made to the Scottish Parliament by the right honourable Michael Gove. He was asked why the Government was insisting on putting this legislation forward when it had not received the normal legislative consent Motions. Michael Gove said that these were exceptional circumstances. It is arguable whether all the component parts of this Bill—which creates the framework for an internal market with its long-term consequences—are both exceptional and necessary before the end of January.
The Minister still has to persuade many that the whole of the Bill is required by the end of the IP period, given that we are still awaiting legislative frameworks. As part of EU retained law, there is a standstill period for all those pieces of legislation anyway, so we question the Bill’s necessity. The Government insist that they need it to go through but, since the noble Lord, Lord Callanan, indicated in a previous group that it was drafted in a bit of a rush during the summer, it is right to ask the Government to think seriously about those elements that will have a significant impact on the ability of the devolved Administrations to legislate and of Ministers in Scotland and Wales to act in an executive way within their competences.
Perhaps the Government could reflect and insert some provisions into this legislation in order to reassure the devolved Administrations that the level of consultation to which we have been accustomed in the past will continue in future. As the Constitution Committee report clearly indicated, it is only in Clause 6 where changes would have an impact that the Government are proposing to consult with the devolved Administrations. There is no provision for what would happen if there were a dispute or if the consultation were to indicate that the devolved Administrations did not want the Government to continue on their chosen route.
Clauses 8, 10, 17, 19, 20 and 48 all contain areas where the Constitution Committee has highlighted changes that would have an impact on the devolved Administrations and their legislative competences, and where no consultation is proposed. These areas can be rectified without a change to the timetable by which the Government wish to move forward. This is a legitimate request on behalf of all noble Lords who have contributed to this debate.
In this group, it has been helpful to reflect on the areas where it has become the practice to seek consent for significant changes to the constitutional framework impacting on Scotland, Wales and Northern Ireland. Then there are secondary areas where—if there has been an impact—consultation has been the norm.
Baroness Hayter of Kentish Town (Lab)
My Lords, the noble Lord, Lord Cormack, always worries me when he starts talking about Henry VIII. As any woman knows, we gird our necks a little tighter if there is a threat that that is coming back.
In some ways, this is a continuation of the same debate, which is about why on earth the Government put together a Bill in such a hurry, as we heard earlier, and with so little consultation with—or even consideration of, let alone agreement with—the very devolved authorities whose competences it seeks to amend. It is partly that suspicion which has necessitated a rather sad amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern. To have to add the wording that the powers in the Bill must be used only for the purpose for which they were designed seems extraordinary. That would not normally be needed, if trust and mutual respect had been there in abundance.
Similarly, the amendments requiring consultation with the devolved authorities before introducing regulations or guidance affecting them should never be needed. If Government-to-Government relations were working properly, it would be de rigueur that that had taken place. Clearly, those relationships are not working properly, and that is why we need the amendments: to establish or obtain what the noble Baroness, Lady Bowles, called the proper conduct of devolution—or, as the noble and learned Lord, Lord Mackay, and others said, we have to get this right to protect the union.
I turn to the amendments in my name, Amendments 16, 41, 48, 63, 74 and 99. They make two particular points, one of which, as we have heard, is slightly at variance with those in the name of the noble Baroness, Lady Finlay. They are about whether any one part of the union should have a veto over something that may be of particular concern to the others, which is what the words “obtain consent” imply. Our words are “seek consent”, but make it an overriding obligation to do the necessary to try to reach full agreement. We also accept that there may be times when one party might hold up the process, at which point we will need some sort of dispute mechanism in place, which is something we ought to be discussing. As the noble Lords, Lord Cormack and Lord Naseby, said, maybe we should look at the two suggestions made today: my noble friend Lord Hain’s council of Ministers or, as the noble and learned Lord, Lord Hope, said, using the formula in the 2018 Act. But clearly we need to have thought about something like that before we get to Report, so we could add that.
But the principle, surely, is that the Government cannot simply start down the track of making regulations without first consulting. There was an issue about what consultation is—it is consultation before you even start the process. Handing over a finished draft instrument is not what I call consultation; you start at the beginning of the process. So they should not start down the track of making regulations without first consulting and then seeking to reach consensus with the devolved authorities. In a Bill about making a four-country internal market work, I would have thought that that was obvious—but history shows we need to nail it down. Surely, as I think the noble Baroness, Lady McIntosh of Pickering, said, we cannot believe that the Government would reject a requirement to seek agreement. It is motherhood and apple pie. For them to say, “No, we are not even going to seek agreement”, I think, would be an interesting response.
There is an issue about what all of this is about. Is my noble friend Lord Hain right to say that this, as we have heard, hastily written Bill is about trying to satisfy our US negotiating partners that they will have full access to the whole market and that the Government will not let anything get in the way of that? Or is it, as my noble friend Lord Liddle said, something perhaps in a way more serious, of trying to bring back control into the centre? I am not sure what the answer is to that. We will not go there tonight, but at some point, I think, we need to flesh out what is the purpose of some of this.
I turn briefly to my Amendments 41 and 48, the first of which would require the Government to consult with the devolveds before introducing legislation to amend the list of legitimate aims in Clause 8(6)—an issue touched on by the noble Baroness, Lady McIntosh. These are important—I know they sound a bit techy—because indirect discrimination is effectively excluded from the overarching principle if it can reasonably be considered as necessary to achieve a legitimate aim. So the definition, the list of legitimate aims, is clearly key. Quite rightly, the Bill lists the protection of the health of people in Clause 8(6) as a legitimate aim—amen to that.
The problem, as my noble friend Lord Hain has said, is that the list of legitimate aims can then be amended by regulation. Now, perhaps adding to the list might not constitute a problem, and Amendment 35 —not in this group but in a later one—in the name of my noble friend Lord Stevenson and others, would indeed add some more categories to the list of legitimate aims. But they would be on the face of the Bill, not stuck in by regulation, and that is surely the proper way of doing it. The problem, of course, is that while at the moment human health and, indeed, the health of animals or plants are there, they could be removed by secondary legislation from the list of legitimate aims. That would then extend the areas in which devolved Governments would not be able to set standards for products sold in their jurisdiction. This is real stuff.
Lord True (Con)
My Lords, I am grateful to all those who have spoken in what has been a thoughtful debate absolutely in the proper traditions of your Lordships’ House, both in the spirit of inquiry and in the main—I will come to that point in a minute—in manner. I am of course sorry that the noble Baroness, Lady Finlay, was unable to be here, but I was delighted to hear the noble Lord, Lord German, move the amendment so ably. I was also glad to learn that he is an assiduous reader of the words of my right honourable friend Jacob Rees-Mogg. I can tell him that that is a very improving activity and I heartily commend it to him. I would say in response to his point that this legislation has collective agreement and therefore it is subscribed to by all members of the Government.
Having mentioned the noble Baroness, Lady Finlay, and having in mind the remarks of the noble Lord, Lord Wigley, I would like to thank the Welsh Government, who had an involvement in some of these amendments, for what has been their positive engagement on this Bill to date at both ministerial and official levels. I have had the privilege of being present at discussions on this matter.
When I talked about taking exception, I was thinking about tone. People have asked what the Government’s intention is and what the exceptional circumstances are. Like it or not, the exceptional circumstances are that, after a lengthy period of being a member of the European Union, which effectively controlled our internal market, the British people have elected to leave the European Union and the British Government—and British Governments collectively—have a responsibility to provide for successor arrangements. I do not believe that this should be the occasion for a great set of conspiracy theories. I do not agree with the noble Lord, Lord Liddle, that the Government are making a meal of the system, and I reject what he said about the Government abandoning the frameworks. We have discussed that at length in this Chamber and I have set out the continuing commitment of this Government to the framework process.
So, as we discuss this, it is important that the process of respect goes all ways, and this Government have a profound respect for all the peoples of these islands and all those involved at every level in the difficult process of governing effectively and responsibly the people they have the honour to represent. The Government seek to go forward co-operatively with the devolved Administrations and all other people in our democracy. I do not believe—with great respect to my noble friend Lord Cormack—that it is helpful to use words such as “domination” as an aspiration of the Government, and nor is it helpful for the noble Baroness, Lady Bennett, to talk of dictatorship. That is not the way in which this Government think, behave or intend to go forward. They hope to go forward with respect and co-operation.
The Bill attempts to ensure a smooth transition for businesses, as they are no longer subject to EU constraints, and to maximise certainty through the Covid recovery and the end of the transition period. It does not remove powers from the devolved Administrations. What the Bill does do is ensure that no new barriers to intra-UK internal trade will be created following the end of the transition period, and that companies from all parts of the United Kingdom will be able to trade seamlessly with one another. That is an objective that everybody in this House genuinely shares. I agree with what the noble Lord, Lord Purvis of Tweed, said: I believe that everybody in this Chamber—or, at least, almost everybody—is committed to maintaining the union of the United Kingdom. We intend, and obviously hope, to perpetuate and protect the system where companies from all parts of the United Kingdom are able to trade with each other.
Following the end of the transition period, devolved Administrations will see an increase in their powers in multiple devolved policy areas, as the role of the EU institutions falls away. They will include areas where the EU has previously set regulatory standards. The Bill seeks to strike a balance between respecting devolution and ensuring that UK companies can continue to trade unhindered in every part of the UK. Hearing some of the things that have been said, one would not think that it was this Conservative Administration who, as recently as 2017, extended so profoundly the role of the Welsh Senedd. It is vital that legislation introduced by the Bill should act across the whole of the UK, providing all of our businesses and consumers with the same degree of certainty. That is important in whatever corner of the four parts of our kingdom businesses and consumers live, just as there must be the same protection from discrimination and the same opportunities for prosperity and well-being. We owe that to every corner of this kingdom.
Yes, the driving principle of the Bill—maintenance of the internal market—is captured by Amendment 109, in the name of the my noble and learned friend Lord Mackay of Clashfern. The purpose of the Bill is as he set it out, but I do not see how it could be used for any other purpose, and I do not believe that to restate it on the face of the Bill could be anything other than potentially confusing. But I do take the spirit and the letter of what my noble and learned friend said: this is the purpose of the Bill, and it certainly is not to be set in the context of conspiracy theory. It provides for a new system that is both ambitious and necessary and, as I have said, it is a pivotal moment for the United Kingdom to develop its own bespoke regulatory system and we must make sure that this offers benefits to businesses in every part of the United Kingdom and to the devolved Administrations.
The noble and learned Lord, Lord Hope of Craighead, made a typically thoughtful opening speech. I hope that I misheard him when he said that he regretted the provisions in the Bill as a whole; I believe he was referring to the nature of the regulatory powers. In his remarks, he put forward some ideas that obviously—as my noble friend Lord Callanan said in an earlier debate—we will read carefully.
I can answer directly on the Sewel convention, about which the noble and learned Lord asked a second question. It was addressed earlier by my noble friend Lord Callanan but, for those who were not here, I repeat that the United Kingdom Government continue to demonstrate respect for and commitment to the convention. As such, they have sought the consent of each devolved legislature for the Bill through the established practices and procedures.
However, the convention envisages situations whereby the UK Parliament may need to legislate without consent; the noble Lord, Lord Purvis of Tweed, referred to such a situation. The Government have continued to hold positive discussions with the Welsh Government and the Northern Ireland Executive at both official and ministerial level. The door remains open to the Scottish Government, should they wish to re-engage on internal market matters. It is regrettable that the Scottish Government walked away from discussions on the internal market in March 2019; we urge them to return to the table.
We consulted extensively on the UK internal market White Paper, and received more than 300 responses and overwhelming support from businesses and industry to maintain the status quo and avoid new trade barriers emerging. The consultative nature of that work does not end there. I understand the undertone of what Members have sought in these amendments. We will of course monitor the implementation of the provisions in the Bill and speak to stakeholders and the devolved Administrations to ensure that it works as well as possible within our constitutional setting. The system requires effective and clear governance to provide the necessary certainty for business. Where the system is not working, the Government need to be able to act quickly and effectively to fine-tune the system for the benefit of everyone. That matter was discussed earlier today.
It is suggested by your Lordships that some of the provisions in the Bill should be subject to the prior consent of the devolved Administrations. Amendments 15, 16, 30, 41, 42, 48, 49, 75A and 100A would require this, meaning that, as a pre-condition, Ministers from Scotland, Wales and Northern Ireland would all have to agree with any change before it could be given effect. A number of noble Lords alluded to difficulties that might arise in certain circumstances. Clearly, such a provision could undermine the Government’s ability to act rapidly and decisively to make any changes necessary to reflect the interests of all parts of the United Kingdom, although noble Lords will, I know, have different views on the likelihood of that.
However, there is also a matter of principle at stake: attaching a requirement to obtain consent from the devolved Administrations would undermine the responsibility of Parliament with regard to the internal market. My noble and learned friend Lord Mackay of Clashfern referred in his excellent and thoughtful speech to the importance of the central role of Parliament. The Government believe that this is a fundamental issue. There may at times be a need to legislate effectively for the whole of the UK and only Parliament is capable of doing that. It is a responsibility that we take seriously; we should not resile from or compromise it in any way.
We are fully committed to ensuring that the use of the powers in the Bill are subject to effective oversight and consultation. First, any use of the powers would require an affirmative regulation to be passed in Parliament. This will ensure that MPs from all parts of the UK can scrutinise and vote on any changes.
Secondly, consultation with colleagues in the devolved Administrations is required for any change to the relevant requirements in Clause 3. It is true that a legislative consultation requirement would not be appropriate for the powers relating to exclusions from the market access principles or the list of legitimate aims for non-discrimination. In this case, the Government may need to make a swift decision in the interests of all parts of the United Kingdom, should there be an emergency or an unforeseen issue in future. In these instances, there may be no time to have a consultation period to seek consent. However, for all powers, UK Government officials will engage with the devolved Administrations in the spirit of the devolution memorandum of understanding. This system has worked well for 20 years and continues to do so.
Lord German (LD)
This has been a very thoughtful debate. I think that it has got to the heart of the problem, which is how the UK Government regard the whole devolution settlement and the way that the United Kingdom currently operates.
I think the mood of the Committee is that we want to get a sense of moving together to sustain and develop our union. In that sense, we require consent, because consent is what eventually drives these matters forward. I pray in aid of the view of the CBI. It is often said in this Chamber, “Business needs to have this. Business needs to have that”. The CBI has said that it wants a collaborative approach, rather like the frameworks that are being used. That is the style that we need to ensure the Government provide.
We have had some very powerful commentary about the way our union should work. If you want to work together for consent, you need, as many noble Lords have said, a method for dealing with any disputes that may come at the end. There have been many suggestions, including from the noble Lord, Lord Hain, and the noble and learned Lords, Lord Hope and Lord Mackay of Clashfern. They talked about how to resolve these matters to move forward together. My sense is that, at the moment, the Government have not got the mood right. They have not felt that there is a need to move together in a way that people feel is the right way forward for the whole of our country.
In passing, one of the effects of what we have been discussing in this group of amendments is of course that it will lead to the end of EVEL in the House of Commons. Basically, everything will have a commentary on everywhere, and therefore it will not be possible to ban Scottish MPs from debating and voting on particular issues. So it will need a change of the way in which Parliament operates as well. But clearly what this whole debate has been about is the collaborative approach and the way in which we can work together in the thoughtful way that people have talked about. What the Minister needs to consider is how you can rectify the deficiencies of that mood inside the Bill.
The right honourable Jacob Rees-Mogg said that the regulations that you produce should clearly express the policy intent. I do not think the policy intent is closely laid out in what these regulations are going to be there for, whereas the collaborative approach would be to say very clearly, “Let’s work together as we go through to the future, and we’ll have some mechanism by which we can resolve disputes between us”. Because I think we are all looking for—and accept that we have to have—a fully functioning internal market. We have to have a sense of divergence, which we already have within our United Kingdom, where already we have a functioning internal market. But we also have to know that there are systems in place in this place and in the Government that will make it all happen.
I thank all noble Lords for their very thoughtful contributions and beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment would clarify that Clause 4(1)(a) relates to a specific sale of goods (the word “sale” being defined broadly in Clause 14). This is for consistency with Clause 3(1) as proposed to be amended by my amendment to Clause 3 at page 2, line 21.
Member’s explanatory statement
This amendment would correct a misleading reference in subsection (1)(a) of Clause 4 that should refer to the same part of the United Kingdom as is mentioned in the opening words of the subsection.
Member’s explanatory statement
This amendment would bring the wording of Clause 4(5) into line with Clause 4(2).
The Deputy Chairman of Committees (Baroness Henig) (Lab)
We now come to Amendment 32. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate.
Amendment 32
Member’s explanatory statement
This amendment probes the description of local goods in Clause 7(3).
Baroness McIntosh of Pickering (Con) [V]
My Lords, I perhaps need to correct something. I may have mis-spoken when I spoke to Amendments 17, 31 and 42. Of course I meant to refer to the devolved Administrations, as is written in the amendments. I apologise if I did not say that on every occasion, but obviously I was referring to consultation with the devolved Administrations. I am grateful for the opportunity to correct that.
I am delighted to have a short debate on whether Clause 7 should stand part and, within that, Amendment 32 in my name. Clause 7 makes provisions relating to “direct discrimination”, and, among these, Clause 7(1) sets out:
“A relevant requirement directly discriminates against incoming goods if, for the reason that the goods have the relevant connection with the originating part, the requirement applies to, or in relation to, the incoming goods in a way—(a) in which it does not or would not apply to local goods, and (b) that puts the incoming goods at a disadvantage compared to local goods.”
Subsection (2) states:
“Goods are put at a disadvantage if it is made in any way more difficult, or less attractive, to sell or buy the goods or do anything in connection with their sale.”
The particular difficulty I have in Clause 7 is subsection (3), and in particular:
“‘Local goods’, for the purposes of this section, are actual or hypothetical goods”.
The purpose of Amendment 32 is to probe the description of local goods and, in particular, what actually constitutes “hypothetical goods”.
Again, I am grateful to the Law Society of Scotland for its help in briefing and preparing me and drafting this amendment. It has concerns about the definition of “local goods” within this purpose, including actual or hypothetical goods. It is very strange that there is no definition of hypothetical goods, and the opportunity that my Amendment 32 creates is to simply ask the Government what they mean by “hypothetical goods” and why on earth we are using such an expression in these circumstances. I am sure it will give my noble friend the opportunity to return to his favourite tin or box of biscuits in this regard.
I will also raise a question that my noble friend Lord Callanan did not answer in summing up an earlier debate, when I asked who decides what is hypothetical? So I will take this opportunity briefly to ask my noble friend the Minister why we have inserted “hypothetical goods” in this clause? What on earth does this mean, and who determines what is hypothetical and what is real? With those few remarks I beg leave to move Amendment 32.
Lord Naseby (Con) [V]
My Lords, I cannot presume to know what my noble friend on the Front Bench is going to define as “hypothetical”, other than to say that I spent 15 years of my life in the marketing profession, as I have already said to your Lordships. In that time, I worked with food manufacturers and pharmaceutical, agrochemical and household-product companies. Each of those markets, and many others, will have on its list test-marketing activities with different strengths, varieties, perfume levels and activity levels: a whole host of variables.
The companies will not know which is the actual product they are going to market—and they might not even market it at all—so, at a certain point in time, those products are hypothetical. They are not registered under a trade name: they are test markets and, quite frankly, that is the normal process for consumer goods. So, as far as I am concerned—and I do not think that I need to speak at great length on this—this is perfectly understandable to anybody who has worked in the pharmaceutical, agrochemical, household-product or food world, or any other product category.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
The noble Lord, Lord Liddle, has scratched, so I now call the noble Lord, Lord Fox.
Lord Fox (LD)
My Lords, this is a short and vaguely surreal debate. I caught my mind wandering to the “League of Gentlemen” with the slogan “Local goods for local people”—but not even they attempted to define “hypothetical” local goods. Indeed, neither have the Government, because there is no explanation in the non-explanatory Explanatory Memorandum which sits at the back. We are indebted again to the eagle-eyed lawyers of Scotland for finding this issue. The question is simple: what is a “hypothetical good”, why are you using this word and who on earth decides what is a good and what is a hypothetical good?
Lord Stevenson of Balmacara (Lab) [V]
My Lords, we are obviously in competition to make the shortest speech of the evening; I cannot imagine why, because this is quite an interesting question, although we had a partial answer to it in an earlier debate. My take on it was not so much about the points raised clearly by the noble Baroness, Lady McIntosh; I am worried about how acceptably these phrases, put into this Bill at this time, work in a digital world. It is clearly stated in the clause that we are talking about businesses that are local and not local, businesses which are located or not located in an area. We are talking about propinquity and the ability of those who have to interpret these clauses to understand where there are real businesses and how they are operating if they are to be seen to be local.
That does not work for Amazon or quite a lot of the shopping we will be doing between now and Christmas, which will be largely digital in form. Is “hypothetical” to mean virtual? I leave that rather complicated philosophical question for the Minister to respond to.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I understand that the purpose of this amendment from my noble friend Lady McIntosh is to probe the meaning of “actual or hypothetical goods” in the Bill, which has foxed a number of other noble Lords. I am very happy to provide further information on that. The inclusion of actual and hypothetical goods in this clause is critical, as it means the provisions work effectively in scenarios that could arise where there are no actual local goods against which impacts on incoming goods can be compared.
If a company has a product which is subject to a patent, it can therefore be made by only one company in the UK. If an authority were to regulate against that product because of where it is produced, there could not possibly be a local good to compare it against to determine relative disadvantage. Being able to compare it to a hypothetical good addresses this and allows the rules against direct discrimination to operate properly and protect all businesses across the UK.
Let us take as an example a new technology which takes an innovative approach to food processing, cutting production times by half. The technology may be completely unique, novel and unlike other technologies for food processing on the market. Without being able to compare this against a hypothetical good, it would be very challenging to deem whether any new measures taken by Administrations were discriminatory or not. Equally, as a further example, if a Scottish company patented a technological breakthrough in quantum computing, this same technology would not be present on the English market and we would therefore need a hypothetical good to be able to compare this innovation to in order to determine whether new English regulations discriminated against this Scottish technology and otherwise created an unfair disadvantage.
The existing wording is also important to deal with situations where arguments could be posited that a local good is similar to, but not the same as, an incoming good, and therefore would not be a good comparator in determining whether discrimination exists. Being able to compare a hypothetical good that is the same as the incoming good, save for location, enables that determination to take place.
I was also asked who determines what a hypothetical good actually is. Ultimately, it would be the courts, but a business would bring forward the challenge and claim discrimination.
I turn to the stand part debate on Clause 7, which sets out the test for direct discrimination. Direct discrimination is where a requirement applies explicitly differently to local goods and goods from elsewhere in the UK and that difference results in disadvantage for the goods from elsewhere. This means, for example, that a Scottish regulator cannot impose additional licensing requirements for Welsh goods unless it does the same for Scottish goods. As another example, take a scenario where Scotland regulated that only Scottish whisky could be sold in pubs; this would be directly discriminatory against the very fine Penderyn whisky produced in Wales, as they would have a clear disadvantage against similar goods on the Scottish market—I see that meets with approval.
“Disadvantage” simply means that it is more difficult or less attractive for those incoming goods to be bought or sold. In this example, any additional licensing requirements on Welsh goods may impose additional costs and potentially increase the price of the Welsh good, meaning it would be less attractive to buy. To be clear, the goods that we are comparing here are the local equivalents of the incoming goods that are materially the same, or materially share the same characteristics, but do not have the same connection to the originating part of the UK. For example, a potato produced in Wales is compared with a potato produced in Scotland. This clause will ensure that directly discriminatory barriers cannot be created by rules that aim at the way in which a good is sold to circumvent the effect of mutual recognition. For example, if English butchers were banned from selling Welsh lamb, this would be directly discriminatory.
It is worth noting that Schedule 1 to the Bill allows for direct discrimination where a requirement discriminates in a reasonable way, as a response to a public health emergency, ensuring that the rules leave scope to react to such situations. I ask my noble friend to withdraw her amendment.
Baroness McIntosh of Pickering (Con) [V]
I am grateful to all noble Lords who have contributed to this little debate, which I hope wins the prize for the shortest debate during the passage of the Bill. I am grateful for the attempt of my noble friend Lord Naseby to give us the benefit of his marketing experience and take a stab at what is meant here, but I am very much in line with the noble Lords, Lord Fox and Lord Stevenson, in that I think it would help to have an explanation in the Bill. Many Bills include definitions, and it would help if this was one such.
One hypothetical example that springs to mind is that, in the days before cloning, one would never have thought that a cloned animal could be bred in the way that Dolly the sheep was by the Roslin Institute, which is part of the University of Edinburgh. As my noble friend has gone to the trouble of explaining—I hope I understand it a little better—in the final analysis, it is for the courts to determine. It is regrettable that we do not have a definition in the Bill that would save court time and legal fees, going forward.
I very much enjoyed the contribution from the noble Lord, Lord Stevenson, particularly his hypothetical question about how this would apply to virtual sales. I do not think we have had an answer to that, so I would be grateful if the Minister could write to us.
Generally, the difficulty I have with Clause 7 has been eased, to some extent, by the explanation from the Minister. As my noble and learned friend Lord Mackay said in an earlier debate, a lot of EU law has been passed over and retained. The non-discrimination part of EU law, under the treaties, is on the grounds of nationality and is inherently clearer. The complicated process we have come up with in Clause 7 could be summed up by how no one can discriminate against a good—or a service in a later part of the Bill—simply because it comes from a different nation of the United Kingdom. That could have been explained more clearly, but I am grateful for the opportunity to have had this little debate and the explanation, as far as it went, from my noble friend Lady Bloomfield. At this stage, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, we now resume Committee stage and come to the group beginning with Amendment 33. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate.
Clause 8: The non-discrimination principle: indirect discrimination
Amendment 33
Member’s explanatory statement
This amendment is consequential on the amendment in Baroness Finlay's name which leaves out Clause 10 and inserts a new Clause. It removes the provision that a relevant requirement is indirectly discriminatory if (among other things) it cannot reasonably be considered a necessary means of achieving a legitimate aim. The issue is addressed more generally in the new Clause 10.
Baroness Finlay of Llandaff (CB) [V]
My Lords, I am grateful to the noble Lord, Lord German, for introducing the previous group in my name. Technical difficulties were compounded by a timing clash on legislation in Grand Committee.
My amendments in this rather large group seek to achieve three different objectives which are in many ways complementary to one another, but in what is perhaps a belt-and-braces way. Amendment 54 would insert a new Schedule 1. It perhaps more properly belongs with an earlier group, because it is intimately related to Amendment 6 which we debated on Monday. Although Monday no doubt already seems a distant memory, your Lordships may recall that Amendment 6 was intended to restrict the application of the market principles to policy areas where an attempt had been made to develop a common framework but agreement had proved impossible to reach. The proposed new Schedule 1 provides a list of areas in relation to which regulations may be brought forward to apply the market access principles. It is a list of those areas where common frameworks which require legislation are currently in development.
It should be noted that this list is not intended to be unamendable. Obviously, over time, the list will need to change. Should the Government ever be able to identify an area which is not already in the common frameworks programme but where they believe there is a serious threat to the internal market, something which the Minister has so far singularly failed to point out, Ministers will be able to add to or amend the list by statutory instrument, having consulted the devolved Governments. I emphasise “having consulted”, because there is deliberately no requirement to obtain the consent of the devolved Governments in this instance.
I note that the Welsh Government, who originally drafted these amendments, have gone to great lengths to allay the potential anxieties of Ministers here. I think it is a fair-minded and sensitive strategy, in contrast to some of the things that we have seen, because neither one nor all the devolved Governments could veto the inclusion of new subjects in the list of areas to which market access principles could be applied by regulation.
I now turn to the second block of amendments in my name in this group: Amendments 33, 34, 50, 55, 56, 60, 80 and 95. They all have the same objective: to increase the scope of potential exceptions to the application of the market access principles. At Second Reading, many noble Lords pointed out that while the Government refer to the precedent of the European Union in seeking to impose the market access principles —something which one might have expected would rather stick in the throat of Ministers—the comparison is inexact. European legislation frequently gives discretion to member states, and therefore sub-state Governments, according to their powers and competence, to vary the approach to standards for goods, and indeed services and professional qualifications, where there are sound public policy reasons for doing just that.
Lord Anderson of Ipswich (CB) [V]
My Lords, I have put my name to Amendments 35 and 51, which have a number of near relatives in this group. The noble Baroness, Lady Noakes, reminded us earlier today that the purpose of the Bill is to facilitate trade and that different rules in different jurisdictions create costs to business and so may operate against the consumer interest. That is a highly respectable economic argument against devolution, but devolution has been implemented and the logic of devolution is diversity—including, as the noble Lord, Lord Liddle, said, the ability to experiment.
A devolved power to regulate is valuable only if it can be used to give effect to a policy objective of a devolved Administration. Its use will be pointless and damaging to businesses in the devolved territory if non-conforming goods, unencumbered by the higher local standards, have to be admitted from elsewhere. A single market that inhibited the rational, proportionate and non-protectionist use of devolved powers in pursuance of vital policy objectives would put devolution into reverse. This is shown by the fact that it was deemed necessary to exempt existing measures from the market access principles. It would also, of course, be a never-ending source of grievance for nationalists and separatists.
In connection with that, there are two puzzling features of the Bill. The first is the small number of aims that it even acknowledges as legitimate. I do not, myself, insist on all the drafting of Amendment 51—I recall that the European concept of sociocultural characteristics mystified the courts during the Sunday trading litigation—but why is there no place in the Bill for aims as basic as environmental protection save, curiously, in relation to fertilisers and pesticides, and consumer protection? If aims as important as the protection of public safety and security may justify indirect discrimination, as Clause 8(6) provides, why must those same aims, however compelling the circumstances, give way to outside business interests in every case of direct discrimination or mutual recognition of product requirements?
The noble Lord, Lord Callanan, said earlier that we need not slavishly copy the EU single market and he is right—successful, as I am sure he will acknowledge, as that single market has been. However, with respect to him, that is not a sufficient answer. The issue did not go away when we left the EU, and it needs to be addressed on its merits and with proper respect for our own devolution settlement.
The second puzzling feature is the patchy treatment of such aims as are acknowledged, particularly public health. That aim is most broadly expressed in Clause 8(6), but as a potential justification only for indirect discrimination. Paragraph 1 of Schedule 1 provides a general exclusion relating to the movement of pests and disease but paragraph 2, on the movement of unsafe food and feed, applies only to mutual recognition while paragraph 5, on public health emergency, applies only to direct discrimination. The problem with defining permitted public health derogations in such a limited and piecemeal fashion is that, outside the scope of those derogations, policies motivated by public health, however necessary and well-designed they may be, must always give way to trading interests, without any ability to balance the competing factors.
An injection of principle is needed here. That principle, I suggest, is that:
“All the exceptions should apply to the entire panoply of market access rules.”
Those are not my words but those of Dr Peter Oliver, practitioner and author of the leading academic text on the free movement of goods, commenting on the Bill on the “EU relations law” blog. The same principle infuses Amendment 52A in the name of the noble Lord, Lord Young of Cookham, and I support it for that reason. Its list of legitimate aims is disappointingly short, but since the noble Lord has also put his name to Amendment 35, perhaps there is nothing between us on that. To accept that all the exceptions should be capable of applying to all the market access rules need not cause trade to suffer, because the application of those derogations would be regulated, as it is in federal and devolved jurisdictions across the world, by strictly expressed constraints based on necessity, rationality and proportionality.
If the Government are concerned about their ability to include devolved markets in a US trade deal, I add that countries from Canada to Switzerland—and, indeed, the EU—have proved perfectly capable of entering into international trade agreements irrespective of their internal allocation of powers. Consultation, consent and co-ordination are surely the keys.
Most of the amendments in this group would function as shock-absorbers. Their purpose, as I see it, is not to wreck the Bill but to remove genuine grievances on the part of the devolved Governments, weakening the case for separatism and rendering the market access principles, in the areas where they may be necessary, operable in the long term. I hope they will be viewed as the constructive proposals that I believe them to be.
Finally, I endorse the strong comments of our committees, and of other noble Lords, as regards the excessive and extremely troubling powers given to the Secretary of State by, among others, Clause 8(7) and Clause 10(2). In this group, Amendments 39A and 47A, in the name of the noble Lord, Lord Young of Cookham, would retain those Henry VIII clauses, but restrict their use to the adding or broadening of legitimate aims and exclusions. We would be authorising King Henry to act benevolently, but not, in the phrase attributed to Sir Edward Leigh, as “a bastard”. That course, though not for the constitutional purist, has a certain pragmatic attraction, at least for me.
Baroness Jones of Moulsecoomb (GP) [V]
My Lords, I have listened to the vast majority of the debates today and I have actually been shocked by some of the speeches: they were, unusually, wonderfully tough and very critical. Therefore, I hope that Ministers are actually listening and understanding that we are trying to help. It thrills me to be speaking alongside so many incredible noble Lords; in particular, the forensically brilliant noble Baroness, Lady Finlay of Llandaff, and the amazing legal minds of the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Hope of Craighead. It is very comforting to be in agreement with them.
Noble and learned Lords will go into the intricacies of EU law, which is, of course, incredibly important, but to me there is one very simple principle, which is that the Government have taken a decision not to be part of the EU’s single market, saying that it is a bulldozer and prevents our Parliament legislating on important policy areas. However, the Government then seek to create their own bulldozer, a new single market that flattens everything and does not even have the carve-outs and reservations that EU single market laws protect, such as legitimate environmental and health policies. There are times when a bulldozer is the perfect machine, but not in this legislation. It is totally false of the Government to make any comparison of this UK internal market with existing EU arrangements without including any of these policy protections and derogations. The Bill actually represents a huge centralisation of power in the UK Government, and tramples over existing legislative rights of the devolved Parliaments, as many noble Lords have said already.
It also demonstrates what I see as the extremist view of this Government—that the free market and capitalism should override everything else, and that there is no legitimate policy that can challenge the free market. That is completely wrong and fundamentally at odds with what the majority of people in this country believe. For me, this legislation is a dangerous wolf that the Government are trying to dress in populist sheep’s clothing as somehow defending us from the hostile manoeuvres of the European Union. The truth is something else entirely: this is an important building block in the extremist ideology of a hypercapitalist future in which the market subverts and consumes everything else. Noble Lords must oppose this.
Lord Young of Cookham (Con)
My Lords, Amendments 39A, 47A and 52A are in my name and those of the noble Baroness, Lady Northover, and the noble Lord, Lord Faulkner of Worcester. They have the support of Cancer Research UK, the Faculty of Public Health and the British Heart Foundation along with Action on Smoking and Health and the Alcohol Health Alliance UK, for whose briefing I am grateful.
The amendments address some of the concerns expressed by the Scottish and Welsh Governments over the Bill, regarding a risk of a race to the bottom in relation to public health. They also complement amendments in earlier debates that sought to restore the flexibility that exists under the common framework for legitimate variations in approach within the component parts of the UK—a common theme that has run through our debates this week—so my amendments are another pair of braces for the belt of the noble Baroness, Lady Finlay.
The noble Lord, Lord Anderson, in a remarkable speech, mentioned public health. Public health is an essential part of this debate; Covid has finally brought home to us the importance of what was previously the Cinderella service of our healthcare system. To quote the Secretary of State for Health:
“The first responsibility of any government is the protection of its citizens, and threats to public health are among the most important of all.”
So it is critical that the provision of market access is balanced against the ability of Governments to protect the health of their citizens.
With regard to goods, the Bill describes exemptions in two places: Clause 8(3) and in the list of legitimate aims, including the protection of human, plant or animal health, public safety, along with a number of other more specific exclusions in Schedule 1. In both instances the Secretary of State can amend the core principles of the Bill, which are quite rightly enshrined in primary legislation, and he can do so by regulation. Again, that has been a consistent theme throughout our debate.
The House of Lords Delegated Powers and Regulatory Reform Committee has raised serious concerns that the power included in Part 1 to amend, repeal or otherwise modify legislation by regulation is inappropriate as drafted and should be removed from the Bill. The Marshalled List is full of amendments raising objections to these powers. My amendments focus specifically on the impact on public health.
The ability to alter these regulations matters. Take, for example, minimum unit pricing for alcohol, as currently exists in Scotland and Wales. The Government have argued that new policies similar to minimum unit pricing would be possible under the Bill because they are covered by the non-discrimination principle, so there is a pathway through which they might be justified. Minimum unit pricing might be a necessary means of achieving the legitimate aim of protecting human health. In future, though, through a simple affirmative resolution procedure the Secretary of State could modify that list of legitimate aims to remove the justification of protecting human health so that that was no longer the case. That is an insufficient safeguard for future legislation to protect our health, and the amendment would prevent that. The reach of market principles is so broad that a number of other potential policies, including regulations to restrict the availability of alcohol, attempts to raise the age of purchase for cigarettes, restrictions on children buying sugary drinks and other legitimate public health measures, could all be similarly vulnerable.
I turn briefly to Amendment 52A, which aims to expand the reach of the public health exclusions listed above. The proposals contained in the initial White Paper would have posed more potential risks for public health, but the Government have listened and have put in the protection of being a
“necessary means of achieving a legitimate aim”,
as I mentioned earlier. This is very welcome, but the protections are unevenly applied, allowing legislation that aims to protect our health and safety to be justified in some instances only. This is because the Bill contains two market access principles, non-discrimination on the one hand and mutual recognition on the other. Currently, only non-discrimination can be overridden by a policy that is shown to be necessary to pursue a legitimate aim. Mutual recognition contains no such clause. This is different from the status quo, where a general exclusion for the protection of human health against a broad range of other aims exists. It is in that respect a step backwards, a point made by the noble Baroness, Lady Finlay. This difference is significant, as mutual recognition covers characteristics of goods such as packaging, content and labelling, all key areas of public health.
To take one example, 40 years ago, when I was a Health Minister under Margaret Thatcher, I argued for a health warning not just on cigarette packs but on individual cigarettes. If, for example, the Welsh Government legislated to do exactly that, I would be delighted to see it implemented but, because this is subject to mutual recognition, Wales would be unable to require it for cigarettes coming into Wales from other parts of the UK, even if they were originally produced overseas. A range of similar examples includes calorie labelling on alcohol, as proposed by the Department of Health and Social Care; including information about the medical officer’s low-risk guidelines, something that Scotland has expressed some interest in legislating on; improved front-of-pack warnings on cigarettes; or even policies such as restricting the amount of sugar in goods sold in Scotland. That was an example given in the Scottish Government’s legislative consent memorandum.
Finally, this could also impact on England. Let us take, for example, the current plans of the Department of Health and Social Care to consult on requiring calorie labels on alcohol products to help reduce obesity in England. Once more, if England implemented this requirement, it would not be able to enforce it on alcohol sold in England but produced, or even first imported, into other parts of the UK.
We have made great strides forward in public health, in part because the swiftest moving parts of our union have been able to lead the others. England led the way on restricting tobacco displays in shops. Scotland and Wales are ahead on policies such as minimum unit pricing. This lack of a broad public health exclusion risks this advantage being inverted and our pace being locked into the slowest moving of our constituent parts. I know that the Minister will have taken note of the concerns raised by noble Lords in this debate and that he will endeavour to meet them, but I hope that between now and Report there will be discussions with a view to finding acceptable amendments that do not prejudice the key pursuit of legitimate public health objectives.
Lord Hope of Craighead (CB) [V]
My Lords, I am in sympathy with the words just uttered by the noble Lord, Lord Young of Cookham, but I wish to speak to my own amendment, Amendment 36, and I am grateful to the noble Baroness, Lady Finlay, for her support.
My amendment is concerned with the meaning of words and, to some extent, achieving compatibility, as far as possible, with devolution legislation. It is directed to the definition of the expression “legitimate aim” in Clause 8(6), which sets out two aims, one of which is
“(a) the protection of the life or health of humans, animals or plants”.
If the draftsman of the Bill was to look at Part 1 of Schedule 5 to the Scotland Act 1998, under heading C5 he would find similar words set out in one of the exceptions to the reserved powers; that is, exceptions which mean that the things described are within the devolved competences of the Scottish Parliament. It refers to the
“protection of animal products, plants and plant products for the purposes of protecting human, animal or plant health, animal welfare or the environment.”
My point is that what one finds in subsection (6)(a) takes part of what is found in that provision but misses out some other important words. The phrase I quoted from the Scotland Act draws a distinction between animal health and animal welfare. There is some basis for that distinction because there are things that are designed to achieve the welfare of animals that are not directly related to their state of health. So there is some force in considering the addition of “animal welfare” to the formula in that provision. It also refers to the environment, and nowadays, thinking of all the concerns we have about the environment, I would have thought one could, without damaging the purposes of the Bill, include the words “protection of the environment” within the formula of the clause.
These are drafting points. I draw them, if the Minister will forgive me, more to the attention of the Bill team and the draftsman of the Bill to see whether he can find room for including words in my amendment. It is to make sure that they cover what I take to be the broad aim of the language; it is the kind of discussion we might have had, had we been given time, around a table, discussing how those particular provisions should be framed.
I am not trying to damage the Bill or adjust it in any more significant way; I just want to see that the language used covers the aim of the provision fully and completely. It is on that basis that I brought forward this amendment.
Baroness McIntosh of Pickering (Con) [V]
I am grateful for the opportunity to speak in this interesting debate on these particular amendments, many of which I support. I will limit my remarks to Amendment 37 in my name; I am grateful to the noble Baroness, Lady Bowles of Berkhamsted, for her support in co-signing.
The purpose of Amendment 37 is to bring the definition of “legitimate aim” set out in this clause in line with the source of EU law as contained in articles 34 to 36 of the Treaty on the Functioning of the European Union. In particular, I refer to article 36 of that treaty, which states:
“The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified”
on the grounds I set out in my little Amendment 37. It goes on to say:
“Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”
For reasons similar to those set out by the noble and learned Lord, Lord Hope, in speaking to his Amendment 36, I think that it will be helpful to have
“public morality, public policy … the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property”
brought into Clause 8. This would be a drafting improvement, so I also make a plea to the drafting team in that regard.
I listened with great interest to what the noble and learned Lord, Lord Hope, said on adding the regulation of animal welfare. It goes to his point in a debate earlier this week on the link between this Bill and the Agriculture Bill, particularly regarding the marketing standards covered by Clause 39 of the Agriculture Bill. It would help enormously if we could have some seamless references across different Bills—in this case, the Agriculture Bill and the Bill before us this evening, the UK Internal Market Bill.
With those few remarks, I am grateful to have my noble friend consider favourably Amendment 37.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I added my name to Amendment 37, tabled by the noble Baroness, Lady McIntosh. However, there are several other amendments on the same theme, all highlighting important considerations that should be legitimate aims. The legitimate aims in Amendment 37 have been in use from the EU treaties, as the noble Baroness, Lady McIntosh, explained. That makes a starting point: they have been tried and tested as well as embodying the status quo, even though, as the noble Baroness, Lady Finlay, and the noble Lord, Lord Young, explained, in the EU, they apply in a wider context to mutual recognition as well.
Lord Faulkner of Worcester (Lab) [V]
My Lords, I wish to draw the Committee’s attention to the risk to future public health policy as a result of the inconsistent nature of this Bill and focus on the impact of artificially splitting the public health exclusion so that it applies unevenly across the market access principles.
I will concentrate on Amendments 39A, 47A and 52A —tabled by the noble Lord, Lord Young of Cookham—to which I have added my name and which are also supported by the noble Baroness, Lady Northover. As the noble Lord, Lord Young of Cookham, said, the exclusions to the market access commitment differ between mutual recognition and non-discrimination. I struggle to understand the rationale of legislation that recognises the importance of allowing policy that is necessary to protect some aspects of human health but provides no equivalent avenue for others. This is not a continuation of how our internal market is currently regulated, but a significant departure from it.
The example of minimum unit pricing for alcohol, which was mentioned by the noble Lord, Lord Young, illuminates the risk of arbitrary distinctions. Much of the discussion in the House of Commons on this Bill’s health impacts revolved around its potential effects on minimum unit pricing, which arguably was covered by the mutual recognition principle. If it were covered by mutual recognition, this could have rendered any future similar policy—possibly even modifications of the existing minimum pricing regime—largely untenable due to the lack of a public health exclusion from mutual recognition.
In responding to this, rather than applying a public health exclusion to mutual recognition, the Government instead moved minimum unit pricing and similar manner-of-sale policies from mutual recognition. When introducing these amendments, the Minister in the other place said:
“We are taking the opportunity to put it beyond any possible doubt that alcohol minimum unit pricing-type regulation and any other sales requirements are not in the scope of the mutual recognition principle, unless they amount in practice to a total ban on a good being sold.”—[Official Report, Commons 29/9/2020; col. 189.]
While your Lordships may consider that this represents an improvement at face value, on closer inspection, it is a cause for considerable concern.
First, the Government’s decision to do this indicates that a thoroughly evidenced-based policy such as minimum unit pricing, which has steadily defeated challenge in the courts, might not have been possible if it were included within mutual recognition. That illustrates just how narrow the exclusions are to this principle.
Secondly, it demonstrates the risk that this Bill poses to future public health legislation. We know about minimum unit pricing, so we can modify the Bill to attempt to protect it, but it is not hard to imagine that we might in future see innovative and effective policy based on health labelling bans or content reformulation of alcohol, tobacco or food products. All these aspects would likely be subject to the rigid mutual recognition principle.
Lastly, regarding the amendments on the powers of the Secretary of State to amend the Bill through secondary legislation, the Delegated Powers and Regulatory Reform Committee concluded that the Government’s adoption in the Bill of wide-ranging Henry VIII powers, whereby:
“Any power to make regulations under this Act is exercisable by statutory instrument”
and includes the power
“to amend, repeal or otherwise modify legislation”
is completely inappropriate. In effect, it allows the removal or weakening by ministerial diktat of the limited public health protections currently included in the Bill.
At Second Reading, I discussed the importance of allowing the Governments of the four nations of the United Kingdom to protect the health of their populations and how that can lead to innovative policy solutions. The UK has been a leader in the past on tackling smoking, alcohol and sugary drinks. This legislation risks us being unable to embrace, let alone lead, key public health policies in years to come. Our amendments will protect the future of public health legislation, and I commend them to the Committee.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Faulkner of Worcester, who, along with many other noble Lords in this group, focused on public health. Covid-19 has reminded us how unhealthy our society is and how inadequate current arrangements are.
Given that my noble friend Lady Jones of Moulsecoomb has spoken with great power and eloquence in this group, I will be brief and address only Amendment 51 in the name of the noble Lord, Lord Stevenson of Balmacara, to which I attached my name. That amendment would provide public interest defences on trade restrictions; environmental standards and protection; animal welfare; consumer standards; employment rights; the health and life of humans, animals or plants; cultural expression; regional sociocultural characteristics; and equality entitlements, rights and protections. These describe what should be the goals of a decent Government aiming to deliver a healthy life for all their citizens and the sustainable development goals that they are signed up to.
The term “public interest” makes me think of public money for public goods. I am aware that “public goods” has a technical definition but the parallels with “public interest” in this amendment are obvious. I cannot, therefore, see how the Government can oppose it, given that they want to spend significant sums of public money for some of the same goals through the mechanisms of the Agriculture Bill and the Environment Bill, whereas here we are simply applying standards to deliver public goods. I am aware that some Members of your Lordships’ House believe that trade, and the greater volume of it, is a good in itself and should be our primary or sole aim, but we come back to the question: do we work for the economic system, or does it work for us?
Many of these discussions have a distinctly Groundhog Day feeling and the Government may respond by saying, “Our intentions are good and we are trying to deliver all these things”. I come back to the word “dictatorship”, my use of which the noble Lord, Lord True, objected to. I reserve my own right to judgment on that. In fact, I do not have to go that far for the purpose of arguing for this or other amendments. We know that Prime Ministers and Governments have not had a long shelf life in recent times, and who knows how long this one will last? We are creating a legal framework and the possibility for action by any future Government, whatever they might look like. Giving the right to all devolved Governments to act on behalf of their citizens to defend them against chlorinated chicken or fruits laced with dangerous pesticides can be the only basis for continuing in a democratic manner.
Lord Teverson (LD) [V]
My Lords, I declare my interest as chair of the Cornwall and Isles of Scilly Local Nature Partnership. I wish to speak to Amendment 52, although I support a number of other amendments in this group. That amendment has been tabled by the noble Baroness, Lady Boycott, who, in a topsy-turvy way, will follow me.
We have naturally and correctly been obsessed by the Covid-19 crisis, yet we still very much have the climate change issues—the loss of nature, the biodiversity challenge and a raft of other environmental issues of great importance, such as plastics, marine pollution and so on. Those challenges are not just global; they are national, as well as being regional and subnational. In the United Kingdom devolution is a fact of life and something that I certainly welcome. Those devolution principles allow the nations that make up the United Kingdom to be able to set their own standards in a number of areas. One key area where those standards can be different and which I believe has been particularly successful is the environmental area, and there is potential in climate change as well.
The history of devolution and different decision-making within the UK in the environmental area has been very positive. There has been almost a competition, if you like, to get ahead of other nations within the UK, and that way the bar has been raised in terms of environmental legislation and what we are trying to do. In fact, the word “experimentation” has been used previously. It is important to see what works in one part of the UK, as this is sometimes copied by others. The plastic bag policy in supermarkets, cotton buds, plastic straws—all are examples of one leading and others following. Indeed, as we have heard many times, even within the EU single market, member states have been allowed to have enhanced standards and have not been challenged.
The challenge is: how do we meet the environmental and climate crises that we have and still keep our internal market? To do that, we cannot rest on the status quo. We have to move forward on all those agendas, as indeed the noble Lord, Lord Callanan, will know well, being the Government’s climate change Minister. We cannot stay where we are and have business as usual.
We therefore need to keep these positive, competitive aspects of environmental and climate change legislation within our devolution in the United Kingdom while keeping that important single market. As has been said before in this debate, no one in this Chamber is looking to restrict that single market in any way in principle. But I believe that this Bill undermines our ability to meet our environmental objectives easily and quickly.
What does the blanket—as I see it—market access principle risk here? One thing we have is offshoring. We have been very good performers in the United Kingdom on our carbon footprint, but that is because a lot of manufacturing has perhaps gone to Asia. That is not the whole story, but it is some of it.
As the Bill stands, if we have stringent rules within one part of the UK, manufacturers would just move to another part of it and effectively import into those other regions or nations. That would be extremely negative. But one key thing would happen: rather than having a “raising the bar” competition between national authorities within the UK, we would risk moving the power to the corporate sector, which is more likely to look for efficiencies or the lowest standards in order to make sure that they can remain strong within the market. That would be a very undesirable outcome of this legislation, which is not the Government’s intention. We risk, potentially, more of a commercial race to the bottom. I have nothing against industry whatever—indeed, I wish to see it promoted—but this would change the power structure within the supply chain. It is as if the legislation were applying the harshest WTO rules internally to our own internal market.
We need to have sensible derogations that can avoid these downsides and outcomes. Amendment 52, in the name of the noble Baroness, Lady Boycott, is exactly what we need for the environment and climate change agenda and for the United Kingdom to stay ahead in this area, not just globally but nationally and regionally as well. Without such derogations, other environmental legislation at a devolved level becomes almost redundant, as it cannot be enforced because goods will come from elsewhere in the United Kingdom—or else devolution will become redundant in this area because, since England is the largest part of the market, Westminster will effectively decide the rules. That is why this amendment is vital.
Baroness Boycott (CB)
My Lords, it is a great pleasure to follow the noble Lord, Lord Teverson. I thank him and the noble Baroness, Lady Jones of Moulsecoomb, for supporting this amendment. I very much agree with what the noble Lord, Lord Young of Cookham, said. I also agree with the noble Baroness, Lady McIntosh, when she said that, if this internal market Bill does not align with the Agriculture Bill, then something is wrong and we are missing a trick.
I have tabled Amendment 52, which seeks to introduce a derogation from the market access principles to allow all four nations to put in place proportionate measures to protect the environment, support the progressive improvement of environmental standards and tackle climate change. My concern is that, in the absence of an agreed common framework, we will not be able to protect existing high regulatory standards in cases where one nation wants to introduce something new and higher, in the environmental sense, for a particular good or service—although not legally prohibited from doing so, it could be disincentivised from doing so. Under the market access provisions in the Bill, goods from other parts of the UK would not have to meet those requirements if standards elsewhere were lower. Other Peers have spoken about this. It is about protecting us against a race to the bottom in setting environmental standards or measures to tackle climate change.
At Second Reading, the Parliamentary Under-Secretary of State, the noble Lord, Lord Callanan, said of the Bill:
“It will protect our common causes, such as the setting of high standards in our economy”.—[Official Report, 19/10/2020; col. 1285.]
But the Bill does not give legislative effect to these commitments. It fails to create the proper framework and fails to deliver the safeguards and assurances needed to ensure that all four nations of the UK can legislate ambitiously, progressively and effectively to protect the environment. Currently, the Bill provides for exceptions only in a limited range of circumstances, such as preventing the spread of diseases or pests. Even then, this is only under very strictly controlled conditions.
Environmental matters generally fall within devolved competence. Regulatory divergence already exists within the UK and there have been a number of examples of really innovative policies which have delivered legitimate public policy objectives—and specifically progressive environmental rules. I know that this has been mentioned before, but Wales was the first country in the UK to introduce a charge on carrier bags. It is atrocious to think that that could somehow have been denied.
Amendment 52 would allow an individual nation to refuse mutual recognition on the grounds of measures protecting the environment or tackling climate change. To give a practical example of why this is so important, there have been mounting calls to ban the sale of horticultural products that contain peat. This is obviously to protect biodiversity, but also to avoid the extraction of peat and the release of high levels of soil-based carbon. If one of our four nations’ Governments decided to ban the sale of products containing peat, this could potentially be undermined by the failure to match those efforts in other jurisdictions, where producers could continue to actively sell these products in a market where they would otherwise be banned.
My amendment would require suppliers to comply with these devolved rules where they relate to the protection of the environment or tackling climate change, meaning that even if regulation in England were to fall behind, say, that found in Wales, those supplying the Welsh market would still have to comply.
At Second Reading, the Minister, the noble Lord, Lord True, responded:
“commerce, services and professions must be enabled to operate freely across the whole United Kingdom. That is … demanded … by business”.—[Official Report, 20/10/20; col. 1426.]
However, business coalitions such as the Aldersgate Group have commented that the objectives of frictionless trade and encouraging a race to the top for environmental standards do not contradict one another. A fully functioning and innovative internal market should strive to both reduce unnecessary costs and uncertainty and protect all four nations’ right to regulate in the public interest.
Finally, protection of our environment and tackling climate change really are not an option anymore. If you listen to Christiana Figueres, who set up the Paris Agreement, you will know that we have 10 years in which to try to get ourselves to 50% of carbon emissions. That means reducing by about 7% to 8% a year. Not to do this is a complete abdication of our rights as legislators because, if we do not put policies in place in this Government and this Parliament, then we will be left pretty legless in the fight ahead.
As the noble Lord, Lord Teverson, said, we cannot do business as usual; we have to do business in a new way. We have many excellent Bills before us that can make this happen, and I commend my amendment to the House.
Baroness Noakes (Con)
My Lords, as noble Lords who have attended this Committee to date know, my role is occasionally to get up and give a minority perspective on the amendments before us. There are 20 amendments in this group and, one way or another, each of them would allow barriers to trade to be erected by one or more of the devolved nations. The effect of the amendments is to restrict the amount of trade to which the market access principles will apply and thereby reduce the extent to which barrier-free trade can take place throughout the UK’s internal market. I say to the noble Lord, Lord Anderson, that that is not an argument against devolution; it is an argument for trade and economic success, which I hope that we all want to achieve for the United Kingdom.
I will not repeat all of what I said on the earlier group, but the more that laws relating to trade in goods and services diverge between the component parts of the UK, the more likely it is that costs will rise and choice will diminish for consumers. Barriers to trade are also likely to result in lower GDP, as the impact assessment analysed, and we need all the GDP that we can get at the moment, given the impact of lockdown and similar anti-Covid measures. I am sure all those noble Lords who support and voted for devolution did not vote to become poorer through devolution.
The amendments give very considerable cover to the devolved Administrations to erect trade barriers under the guise of higher standards but, actually, on grounds of protectionism. At the very least, I predict that there will be massive scope for lawyers to argue for a very long period and to mount legal challenges. That may well be good for the fees of the legal profession—and for the noble and learned Lord, Lord Falconer of Thoroton—but the important thing I want to stress is that it will result in uncertainty for business. If there is one thing that is bad for business, it is an uncertain business trading environment.
Therefore, while I understand the desire for higher standards—and many noble Lords have spoken to this in respect of the particular varieties of relaxation that they are seeking in the Bill—at the end of the day, they can result in trade barriers. We really should be very careful not to wreck the UK’s internal market before it has even started.
Lord German (LD)
My Lords, I shall address Amendment 54 in my name. As the noble Baroness, Lady Finlay, said in moving her amendment, it harks back to debates we have had on the mysterious absence of common frameworks from the Bill. As your Lordships will know, common frameworks are a way of doing business that is supported by the CBI. The amendment would insert a new schedule into the Bill. It may look arcane, or like an obscure pub quiz question, so perhaps noble Lords would like to answer the question: what unites ozone-depleting substances and Caerphilly cheese? The answer is that the list in the schedule is the list of subjects where all four Governments in this country have agreed that legislative common frameworks are necessary. However, this is not intended as an exhaustive list. It would be possible to add to this by secondary legislation if new areas emerge that require a common framework.
I concede that it would not have been necessary to have such a schedule if the dual carriageway with the brick wall in between the two approaches that the Government are taking—this Bill and the common frameworks—were guaranteed to coincide and meet. Both approaches are progressing and have the enthusiasm of the Government behind them. This amendment would be a way of ensuring that those approaches coincided and met. The amendment would help, since it identifies common frameworks without using the name.
One of the more striking aspects of the Bill, as noble Lords and Ministers keep telling us, is that common frameworks on their own cannot guarantee the integrity of the entire UK internal market. They are sector-specific and not intended to address the totality of economic regulation. In answer to every question asked, there has been a real silence from the Government, who have failed to identify any areas where the integrity of the internal market might be threatened that are not covered by common frameworks. We had reference to the threat to the sale of barley from English farmers to Scotland, which has proved an issue already resolved by the common framework. There is also the wholly hypothetical example of a devolved Government wishing to legislate for additives to flour, which is already in one of the common frameworks on nutrition.
We therefore have to manage this problem of having two-track approaches to the internal market. The amendment proposes a way of creating that gateway between the two and ensuring that there is a link between them, so that we know that we are on the same course for a functioning internal market.
Baroness Randerson (LD) [V]
My Lords, I have added my name to Amendment 174 in this group. I wish to speak to that and other amendments that I support.
Possibly the greatest asset that we gained from our decades of EU membership was the development of and assistance on the highest standards. In consumer and environmental protection, employment practices, public health standards, animal health and in the development of social policies, we have all benefited enormously and our quality of life has been greatly enhanced. Often, we as a nation were at the forefront of the development of those EU policies. On occasion, in our own legislation, we chose to adopt even higher standards, as my noble friend Lord Teverson said earlier. Those were the days when we really were world-beating. It is therefore very disappointing that the Bill contains nothing to guarantee high standards; there is no process set out to agree even minimum standards. The amendments in this group seek to rectify this, hence it is a legitimate aim to seek higher standards or to maintain existing standards.
Across the world, the experience of capitalism reveals that unfettered markets—capitalism in the raw—without a sound framework of standards often drive down standards to the lowest common denominator. For example, in the USA, hardly a country struggling for development, market access provisions unaccompanied by agreed minimum standards have led to deregulation as a way to attract business. It is well known as a ploy.
Baroness Hayman of Ullock (Lab)
My Lords, I wish to speak in support of Amendments 35 and 58, in the name of my noble friend Lord Stevenson of Balmacara, particularly because I am concerned about the lack of standards protections. We have been assured that the Government have repeatedly stated their commitment to high standards and that this Bill does not change that commitment, but, as the noble Baroness, Lady Randerson, has just said, it does not alter the fact that there is no evidence of that commitment on the face of the Bill.
Amendment 35 would expand the legitimate aims laid out in Clause 8 to include protection of consumers, environmental standards, social and labour standards, public health and animal health. I do not intend to rerun the various concerns raised regarding devolution, but we need to ensure that environmental protections in the UK are maintained and enhanced after our exit from the EU. Provisions in this Bill must not derail the Government’s ambition to become the first generation to leave the environment in a better state than they found it. I would like to give some examples of why that is so very important.
Since the Second World War, we have lost 97% of our meadows, 80% of our chalk grassland and more than half of our ancient woodland. The recent State of Nature report from the Royal Society for the Protection of Birds found that 41% of UK species that it studied had declined since 1970. It found that 15% were threatened with extinction and 133 species were already extinct. The Natural Capital Committee has concluded that only half of our habitats currently meet minimum quality targets, with bees, butterflies, birds and many plant species continuing to decline. The BMA has called for a commitment to non-regression on all current UK-wide and devolved nation health, well-being, animal welfare and environmental standards to be written into the Bill.
The EU has been a leader in environmental legislation over the last 40 years, and the UK has played a very important part. Now, our domestic legislation must ensure that environmental protections in the UK are maintained and enhanced after our exit from the EU, and we must not risk losing any of those key protections or allow for any regression. Amendment 35 would help to ensure that those minimum standards were met.
I turn to animal welfare and food standards. UK farmers and producers are rightly proud of their high agriculture and animal welfare standards compared with those in many other parts of the world. They have been very clear that they do not want those standards lowered and are calling on the Government not to allow low-quality products to come into the UK.
It is also worth remembering that, when we reach the end of the transition period, the UK will find itself outside the European Food Safety Authority and therefore outside the Panel on Animal Health and Welfare. Farm animal welfare standards post Brexit may well be threatened as UK farmers struggle to compete against cheap imported food from countries that produce to lower standards. UK farmers could become uncompetitive, and welfare standards could then come under pressure.
When I was in the other place working on the Agriculture Bill, I read your Lordships’ committee report Brexit: Agriculture and I am still hugely concerned about one of its conclusions. It said:
“It may be hard to reconcile the Government’s wish for the UK to become a global leader in free trade with its desire to maintain high quality standards for agri-food products within the UK”.
The legislation that is being passed in the run-up to the end of the Brexit transition period, including this Bill, will have huge impacts on the UK’s standards of animal health and welfare, food safety and environmental protection. Those ramifications could be felt for years, so we have to get it right. Farmers have told me that they are particularly concerned about transparency of provenance and traceability.
The United States is often mentioned in the debate about food standards, with chlorinated washed chicken and the use of injected growth hormones in cattle demonstrating the difference in standards between our countries. Both give rise to significant welfare concerns for the animals involved; both are banned by the EU and, until this point, have been banned by the UK. But we also know that a priority for the UK Government is securing a free trade agreement with the USA. This is also about food safety: the United States has 10 times more food poisonings than Europe, so food safety could be compromised. We could also end up with higher pesticide residues in food, if protections are negotiated away in trade deals.
Compassion in World Farming has pointed out that we should be concerned not just about the USA. It has looked at a potential deal with Australia, where hormone-treated beef and battery eggs are still common, and believes that, if concessions are made there, they could form a precedent for other talks and trade deals.
So we need to redefine unsafe food in the Bill, which is where Amendment 58 comes into play. That is why I am supporting it, recognising the impact that lower food standards can have on our safety and health. I ask the Minister to listen carefully to these arguments.
Baroness Altmann (Con) [V]
My Lords, I add my support in particular to Amendment 52, in the names of the noble Baronesses, Lady Boycott and Lady Jones, and the noble Lord, Lord Teverson. It deals specifically with environmental standards and climate protections, and has already been well explained. As so many other noble Lords have said, this amendment introduces a wider set of derogations to allow any one of our four nations to refuse mutual recognition if it believes it is justified by the legitimate public policy objective to protect the environment and tackle climate change. This is really important, to ensure that innovation is not stifled and that there is no race to the bottom, as has already been well explained.
I also support many other amendments in this group, particularly Amendments 39A, 47A and 52A, in the name of my noble friend Lord Young of Cookham, proposing similar protections for public health, safety and security. I also support my noble friend Lady McIntosh of Pickering and other noble Lords who have spoken on the protections required in the agriculture sector.
I recognise the concerns raised by my noble friend Lady Noakes that lack of uniformity could increase costs to consumers and reduce GDP. However, I do not believe that cheap goods are the be-all and end-all. Ethical production standards, safety, health concerns and environmental protections may all add costs in the short term. However, better quality and higher standards can benefit consumers and the long-term sustainability of the economy. Encouraging innovation in environmental and climate protections can and perhaps should be led by individual countries where they have specific expertise, rather than having a centralised uniform approach imposed that could reduce standards in the long term and leave us with a cheaper but less safe future.
I hope that my noble friend can confirm that the Government are in favour of building consensus and agreements across the UK, with common frameworks, while also respecting the rights of individual countries to have different policies in areas of particular importance.
Lord Whitty (Lab) [V]
My Lords, like the noble Baroness, Lady Altmann, I originally put my name down to speak on this group because I wanted to give strong support to Amendment 52 in the name of the noble Baroness, Lady Boycott. She, the noble Lord, Lord Teverson, and the noble Baroness, Lady Altmann, have made a good case; after all, climate change and the other environmental challenges are bigger issues than Brexit, Covid or even the break-up of the United Kingdom. We need to ensure that nothing we do in this Bill or in parallel Bills diminishes our commitment to meeting our international obligations under the Paris Agreement or our national obligations under the Committee on Climate Change’s proposals on carbon budgets and the commitments we make as a Government and as a Parliament to meet our targets on that front. Amendment 52 would help deliver that.
During this afternoon—I was not here on the first day of Committee—I have also become increasingly concerned that the Bill is, as the noble Lord, Lord German, called it, twin-tracking different aspects of government policy on the devolution settlements and the way they are going. The two do not meet. The principal commitment here is market access. There are government commitments to standards in the Agriculture Bill and elsewhere, and there is the whole process of common frameworks, many of which are still in very preliminary form.
With regard to the broad public debate, the Government have managed a great diversionary tactic by banging Part 5 into the Bill and causing public and international outrage. However, there are some fairly profound issues in the lack of commonality or melding in the approaches on market access, common frameworks and the long-term implications for our devolution settlement. They have not been resolved today in the subjects we have discussed. At Second Reading, I expressed some concern that the Bill was not clear in relation to state aid and the internal market, or the role of the proposed office for the internal market.
A lot of this needs to be pulled together before we complete the Bill. I have a proposition. We have as a House established a short-term Select Committee looking at common frameworks. That has called for evidence; the deadline is 30 November. Would it not be sensible for the Government and the usual channels to talk to it? I am afraid I have not consulted my noble friend Lady Andrews, who chairs that committee, on this; it occurred to me only this afternoon. It is looking at the role of common frameworks, but in this Bill, which the Government are trying to get through as fast as possible, we are doing something which cuts across some of the commitments on them. Would it not be sensible to ask that Select Committee to look at the relationship between the Bill and common frameworks before we move to Report, or, if that is not possible, at least between Report and Third Reading? The process we normally adopt will not resolve these conundrums in the Bill; we need to find a novel way of dealing with them, and we have a solution at our fingertips with the Select Committee, which has already begun its work. I ask the Government and the usual channels to look at that proposition.
Lord Judd (Lab) [V]
My Lords, what a powerful team at the end of this very interesting debate. It was great to hear the noble Baroness, Lady Randerson, putting her case on standards so strongly; she is absolutely right. I was also delighted to hear my good neighbour and noble friend Lady Hayman—we live in the same ward in the west of Cumbria—speaking with all her authority. She will bring a very important contribution to the considerations of this House. My respect for the noble Baroness, Lady Altmann, is continuing and constant, and noble Lords hear it again tonight. What my noble friend Lord Whitty was saying about the useful contribution the Select Committee could make in getting things right should be taken very seriously. We get awfully trapped in patterns of organisation for our affairs and debates. Sometimes we do not look at our assets and the contributions they can make.
I strongly support my noble friend Lord Stevenson’s amendment and I am impressed and struck by the importance of Amendments 52, 53 and 54. They all deal with the essential quality of our existence and the action that is necessary to ensure that we have some sort of quality of existence, and ensuring that we are in a strong position to ameliorate the impact of climate change. These are absolutely fundamental issues for our future.
I sometimes look back on a long time in Parliament and politics and think that we sometimes want to fit things into organisational structures. Of course, the market is crucial and what we are debating is a reform of the market and what we are going to do, but the market is not an end in itself. We should constantly be restating the challenge: in the environment, in conditions of work and workers’ rights and employment conditions, of animal welfare, and of good husbandry of our land and care of it. There is also the whole issue of understanding that this is not just a choice of what we might do; we are dependent upon getting it right. From that standpoint, these amendments are a very important part of our proceedings, and I congratulate all those who have been involved in proposing them.
Lord Fox (LD)
My Lords, my name is on Amendments 33, 34, 50, 55, 56, 60, 80 and 95 but, to be honest, all these amendments are trying to cover similar ground in slightly different ways. I suggest that they are trying to meet the gap that the noble Lord, Lord Anderson, in his exceptional speech, characterised —in my words, not his—as the paucity of ambition that lies within the Bill. He also effectively highlighted some of the inconsistencies that crop up throughout it.
Amendment 50 seeks to add a range of additional conditions around the aim of legislation, and Amendment 51 does much the same. The noble Lords, Lord Young and Lord Faulkner, talked specifically about public health, animal welfare came up with the noble Baroness, Lady Hayman, and my noble friend Lord Teverson and the noble Baroness, Lady Boycott, and other noble Lords, spoke very powerfully about climate change.
The last two speakers, and in particular the noble Lord, Lord Whitty, in a way characterised where I had got to; the penny had dropped. I will use slightly different language. I am slow; after 15 hours of Committee I think I am getting there. The problem is that Her Majesty’s Government may hate devolution, or they may want to grab hold of the money and spend it in Scotland—those might be by-products of the Bill. The fundamental philosophy and thinking from the Government’s position, however, is that the only way to have to have a properly ordered internal market is, essentially, for everything to be the same. With non-discrimination and mutual recognition, in the end that is what you will get.
Your Lordships’ House, with the exception of the noble Baroness, Lady Noakes— who very ably put once again the minority view, which is actually the government view—has taken a diverse approach and believes that there can be an ordered internal market that is not the same, but diverse. That is what the common frameworks are there to do. A number of noble Lords raised my noble friend Lord German’s twin highways and questioned how they will ever come together. The answer is that they do not because the Bill rides over the diversity that the common frameworks will deliver. Why are the two things happening together? One can speculate. One started three years ago with a different Government who probably had a different philosophy, and killing it is probably harder than letting it die.
I know that the Minister has been assailed with examples. He has had chlorinated chicken, whisky, all sorts of things—he even brought in hypothetical biscuits. I will give him an example that is the other way round. It is of where the devolved authorities could do things to England. England, very wisely, has banned the household burning of coal. Wales and Scotland have not. If I lived in Herefordshire all the time, I could nip over the border to Harry Tuffins, which is just the other side of Offa’s Dyke, buy a bag of coal, take it home and burn it on my fire in Leominster. So far, so good.
Within the terms of the Bill, I could—[Interruption.] Minister, you will have your chance. If I were heckling you, I suspect I would be told to sit down; I look forward to the debate. If I was a businessperson living in Leominster, I could go to Wales and import that coal. If the Minister tried to stop me, I would go to law and use this Bill to assert my right to sell that coal in England. Whether or not I won we would see, but all those things will be happening all the time. Because of the non-legislative common framework that it is covered by, where does it sit in law beside the iron-clad rules of non-discrimination and mutual recognition?
Lord Stevenson of Balmacara (Lab) [V]
My Lords, this has been a very good and wide-ranging debate—one of the best we have had so far on the Bill. We have heard several notable speeches and some new voices. I look forward to reading their speeches in Hansard and learning from them. The main focus has been the necessary tension between the wish to have unfettered frictionless trade in our internal market and the wish to preserve our existing high standards. This was well expressed by my noble friend Lady Hayman.
My amendments cover this ground. Amendment 35, which I am delighted is also signed by the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Jones of Moulsecoomb, tries to expand the legitimate aims to include some of the standards to which I have already referred. Amendment 51 expands that and provides for a slightly wider context within which legislative aims are discussed and slightly expanded. It also comes back to the basics: standards of activity within which trading takes place and where we have rightly set high standards that are enjoyed by our consumers.
Amendment 57 deals with conditions excluded by market principles and amends the schedule only as consequential to earlier amendments, I think. Amendment 58 deals with an issue raised by the noble Lord, Lord Anderson of Ipswich, in his very good speech in which he quoted Peter Oliver, who pointed out that some of the restraints that are allowed within the Bill are very limited indeed. Our amendment tries to expand that to make sure that it is not restricted just to basic considerations.
Lord Callanan (Con)
I thank everyone who has spoken in what has been another excellent debate. Most of the points have been valid. I will disagree with many of them but noble Lords made their points well.
Before I start, the noble Baroness, Lady Jones of Moulsecoomb, knows that I have tremendous respect for her: we do not often agree, but I have tremendous respect for her views. However, talking about an “extremist ideology” and “hypercapitalism”—whatever hypercapitalism is—does not aid her cause; I would prefer that noble Lords address the issues in a better and more constructive manner.
The scope of the market access principles and the areas of regulation included in Schedule 1 have been carefully designed to avoid unnecessary barriers within the UK’s internal market while ensuring that the devolved Administrations and the UK Government can act to preserve the proper functioning of certain policy areas. This is where I part company with the noble Lord, Lord Fox, because when he talks about the principle of uniformity in an internal market, that is, of course, the EU system, and I do not recall the Liberal Democrats having much of a problem with that in years past. The system of mutual recognition does allow diversity, but while not discriminating against other countries’ goods. The principle of mutual recognition and market access principles allow diversity of policy. The EU system, of which the Liberal Democrats were previously particularly fond—as far as I am concerned—does not because you have common standards and common principles. I understand the argument about the so-called race to the bottom, et cetera, but that is the system that the Liberal Democrats happily signed up to and defended loyally for many years—indeed, it is still their policy that we should rejoin the EU and assume a further application of common principles. I do not agree with it, but it is a view.
I am listening carefully to what many noble Lords are saying this evening, but it is important, so I will take the time to explain why we have taken the approach we have to the application of the market access principles and the exclusions from these principles. Amendments 35, 36, 37, 39A and 95 seek to alter the list of legitimate aims for the disapplication of indirect discrimination against goods and services. The current list of legitimate aims for indirect discrimination against goods contains
“the protection of the life or health of humans, animals or plants”,
which will, of course, align in many cases with the protection of the environment. It also contains
“the protection of public safety or security.”
I agree with my noble friend Lady Noakes that expanding the list of legitimate aims beyond the current list would increase the grounds on which goods from one part of the UK could face discrimination in another—maybe in small, incremental steps, but with each addition steadily eroding the benefits that we all enjoy of the UK internal market. Expanding the list would also make discrimination easier to create and implement within the internal market, which would contradict our policy objectives.
I am of course aware of the comparisons that have been made to the EU system and its list of legitimate aims. The UKIM Bill and non-discrimination principle have been designed to take account of the UK’s unique circumstances, reflecting that our market consists of four highly integrated, highly aligned parts. Conversely, EU provisions deal with 27 countries, all with diverse histories, cultures and competing market priorities. It is therefore right that the list of legitimate aims in the Bill is more narrowly focused. Should a need to amend the list be identified, the Bill allows for the Secretary of State to add, vary or remove additional legitimate aims.
Let me deal with the points raised about legitimate aims by my noble friend Lord Young and the noble Lord, Lord Faulkner, as well as, on a number of occasions, the noble Lord, Lord Purvis, with regard to minimum alcohol unit pricing. I reiterate that policies such as minimum alcohol unit pricing and other innovative pricing policies are not covered by mutual recognition, unless they result in disguised prohibition. It would also be possible to enforce them regardless of what is on the list of legitimate aims or indirectly discriminatory measures, as long as they are non-discriminatory.
The noble Baroness, Lady Randerson, mentioned air guns. All the existing requirements will be out of scope—as I have said, the Bill is forward looking—unless they are amended significantly. Other than that, the air gun restrictions would have to create a significant adverse market effect for indirect discrimination to apply. That is before any consideration of whether that meets a legitimate aim. On her point about unfettered access for Northern Ireland goods, this is an unequivocal commitment from the Government precisely to take account of the possibility of divergence. It precludes qualifying Northern Ireland goods from being subject to new checks and controls and it protects their access to the whole of the UK market, no matter what the legislative regime is in Great Britain.
Amendment 39A is a more nuanced version of Amendment 38. It aims to limit the Secretary of State’s regulation-making powers to only add or broaden a legitimate aim—the Secretary of State would not be able to vary or remove a legitimate aim. Again, I appreciate the nuance of the amendment, but I must emphasise the importance, as we see it, of ensuring that the Government have the ability to adapt and improve the list of legitimate aims to address any challenges that arise—for example, during the implementation phase. We will of course listen attentively to businesses and to consumer stakeholders and may employ the powers that the amendment seeks to remove to ensure the UK internal market’s continued smooth functioning. To clarify another matter about which some have asked, Her Majesty’s Government and the devolved Administrations are not constrained by the rules against indirect discrimination when they need to take reasonable action to protect the life or health of humans, animals or plants, or to protect public safety or security.
Amendment 95 has a dual purpose. It seeks to remove the list of legitimate aims for indirect discrimination against services in Clause 20 and, as such, it would also remove the Secretary of State’s ability to amend that list. The list of legitimate aims covers a limited range of necessary objectives for regulators, which would justify a requirement that may have a discriminatory effect. The legitimate aims are the protection of the life or health of humans, animals or plants, the protection of public safety or security and the efficient administration of justice.
The inclusion of the list of legitimate aims is in our view vital, as it clarifies whether a requirement should be considered indirectly discriminatory and thus whether it is justified to put an affected service provider at a disadvantage compared to a similar provider from another part of the United Kingdom. To allow the flexibility to adapt to potential changes in circumstance—for example, in relation to future types of services regulation—a power for the Secretary of State to add, vary or remove additional legitimate aims is crucial and has therefore been included in the Bill.
I turn now to Amendments 50, 51, 52, 52A and 56, which seek to add in new clauses before and after Clause 10 of the Bill. The proposed new clauses would introduce a new set of conditions that would need to be met in order for an exclusion to be applied. Exclusions have been tightly defined to areas where the market access principles would adversely affect, or prevent the proper functioning of, the UK internal market. For example, we have made it possible for authorities to continue to consider local environmental conditions when authorising a chemical for use in a particular part of the UK.
Turning to Amendment 52, the protection of the environment and tackling climate change are vitally important, and something that the Government are, of course, already committed to. The UK leads the world in environmental standards and tackling climate change. We were the first major economy in the world to set a legally binding target to achieve net-zero greenhouse gas emissions from across the economy by 2050. The EU is only just now catching up with us. We have also been quick to take action against single-use plastic, with our ban on the supply of plastic straws, drinks stirrers and cotton buds having come into force on 1 October this year.
Moving on to Amendment 52A, broadening exclusions from market access principles could result in significant challenges for the UK’s internal market. These are intentionally narrowly drafted to ensure that there are no unnecessary trade barriers that would ultimately increase costs to businesses and consumers while reducing choice. These amendments also do not take into consideration the impact any exclusions might have on unfettered access and Northern Ireland’s place in the UK’s internal market.
Amendments 33 and 34 are both consequential on Amendment 50, which I addressed above. Amendments 55 and 56 are consequential on Amendment 50 as well. Taken together, these amendments would replace the existing schedule of exclusions with a significantly wider exclusion process. The proposed process is not sufficiently targeted and would increase the potential for trade barriers to emerge. For these reasons, I ask noble Lords not to press their amendments.
Amendment 47A limits the Secretary of State’s regulation-making powers to only add to or broaden the exclusions in Schedule 1. The Secretary of State would not be able to vary the meaning of the exclusions in Schedule 1, nor to remove the exclusions entirely under the amendment. This might make it impossible for the Government to respond to business and wider stakeholder feedback and to act rapidly to adjust the list of exclusions if implementation shows the need for a review. While we are committed to retaining this power in the Bill, we are also fully committed to ensuring that the use of this power is subject to effective oversight and scrutiny.
First, any use of the power would, of course, require an affirmative regulation to be made in Parliament. This would ensure that MPs from all parts of the UK would be able to scrutinise and vote on any changes, along with Members of this House. Secondly, in line with normal arrangements for secondary legislation covering devolved matters, UK Government officials will engage with the devolved Administrations in the spirit of the devolution memorandum of understanding. This is a system that has worked well for 20 years and continues to do so. I hope, therefore, that noble Lords will agree that it is not appropriate for us to accept that amendment.
Turning to Amendment 54, the proposed new schedule is related to the new clause in Amendment 6, to which I responded on Monday. These amendments would, in combination, prevent the market access principles from applying in time at the end of the transition period. The lengthy process they put in place before the principles can apply would mean a considerable delay in securing business certainty that trade can continue unhindered within the UK’s internal market. Furthermore, they would limit the areas that the market access principles could apply to. This would again unduly constrain the scope of the principles and fail to fully protect the internal market.
Amendment 57 removes the requirement that a measure meets all the conditions set out in paragraph 2 of Schedule 1 to be excluded from the mutual recognition principle. The conditions in paragraph 2 of Schedule 1 relate to the exclusion of certain food and feed measures from the mutual recognition principle, where this is required to address a serious threat to the health of humans or animals. A measure will be excluded from the mutual recognition principle if all the conditions in paragraph 2 are met. These conditions were designed to be cumulative and work as a whole, and in our view would not be effective individually. The fourth condition, for example, relates to the responsible Administration providing a risk assessment of the threat addressed by the measure in question, which is essential in situations relating to protecting human, animal and plant health, but is not a stand-alone condition for any exclusion. As this amendment weakens the ability of the Bill to ensure that we can address a serious threat to the health of humans or animals, I hope that noble Lords will agree not to move it.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
I have received a request to speak after the Minister from the noble Lord, Lord Fox.
Lord Fox (LD)
I sometimes wonder whether the Minister sustains himself through the long periods of Committee by imagining himself throwing off the yoke of hideous EU conformity. In fact, nothing could be further from the truth. How does the noble Lord explain all the examples of diversity across the four nations of the United Kingdom if there is this conformity? How can his comment that the market has worked very well for 20 years stand up, if this conformity was so bad? Indeed, the 2020 assessment by the Government of the frameworks says that they will maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory, as afforded by the current EU rules. The Government clearly recognise the flexibility in the current EU rules.
I commend the Minister for getting through that lengthy statement without once mentioning the words “common frameworks”. There is still no explanation of how the common frameworks inform the Government’s view today of the internal market. Will he please answer that question?
Lord Callanan (Con)
I thought my comments might provoke a reaction from the noble Lord. Of course, there are EU common standards in many areas as well as EU minimum standards in many areas, and it is possible for Administrations to go further than those minimum standards in many areas, as he will know from his knowledge of EU affairs.
I have said a number of times that we are committed to the work on frameworks and will take it forward, but we were looking for frameworks in something like 38 different areas. So far, we have managed to agree frameworks in two of them. In terms of the frameworks that have been approved by the ministerial committee, I think those numbers are correct; I will write to the noble Lord if they are not. We are committed to taking forward that work on common frameworks, but we believe that this legislation provides an underpinning to that work. We do not believe that they are mutually exclusive; indeed, we think that they complement each other.
Baroness Finlay of Llandaff (CB) [V]
My Lords, this has been an extraordinary debate. At this late hour I cannot possibly do credit to all the amazing speeches that we have had, but I want to highlight a few points. The noble Lord, Lord Anderson, set the scene superbly with enormous clarity and told us very clearly where the warning signs were. My noble and learned friend Lord Hope of Craighead, reinforced by the noble Baroness, Lady McIntosh of Pickering, pointed out that the meaning of words is what this is all about.
I am surprised at the Minister reinforcing to us that the environment and climate change were a manifesto commitment and then rejecting the really powerful voices from the noble Baronesses, Lady Hayman, Lady Boycott, Lady Bennett, Lady Jones and Lady Altmann, and the noble Lord, Lord Teverson, who were all talking about ways of protecting the environment and future biodiversity. It almost felt as if their amendments would solve the Government’s problem of how to meet their manifesto commitment.
As for public health and welfare, I do not believe that people in this country vote for worse health and therefore shorter lives; they do not expect their Government not to look out for their health, neither do they want to live in a worsening biodiversity that will leave an ecological desert for the next generation. The amendments that we have considered this evening are incredibly important. The noble Lords, Lord Young of Cookham and Lord Faulkner of Worcester, laid out clearly the importance of public health overall. As the noble Lord, Lord German, and the noble Baroness, Lady Randerson, pointed out very clearly, there are enormous benefits in reinforcing the current system and not trying to override it. I am surprised that in his summing up the Minister did not pick up on the suggestion of the noble Lord, Lord Whitty, of going to the committee of the noble Baroness, Lady Randerson, and talking to it about what is going forward.
Although I will obviously withdraw the amendment, I am convinced that we will return to this matter in force on Report. I am also convinced that everyone who has spoken will need to pool resources because we heard some worrying things in the Minister’s response, which blanket-rejected the fact that we are trying to solve the problem, not create difficulties. We all want the United Kingdom to prosper and do well. This is not the time to allow it to drop to the lowest common denominator, when people are striving for higher standards and to make Britain a place of excellence, not low standards. With that, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
We now come to the group beginning with Amendment 66. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment or anything else in the group to a Division should make that clear in the debate.
Clause 14: Interpretation of references to “sale” in Part 1
Amendment 66
“(4) “Sale” has the meaning given in section 61 of the Sale of Goods Act 1979.”Member’s explanatory statement
This amendment brings Clause 14 into conformity with the existing law of sale.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am grateful for this opportunity to speak also to Amendment 67. I am grateful to the Law Society for its help, as with other amendments, including Amendment 37, in preparing and drafting them.
The amendment looks at bringing Clause 14 into conformity with the existing law of sale. The reason for this is that the Sale of Goods Act 1979 defines a contract of sale of goods as,
“a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.”
It further defines an “agreement to sell” as a contract of sale whereby,
“the transfer of the property in the goods is to take place at a future time or subject to some condition later to be fulfilled”.
The introduction of a new definition of “sale” as set out in the Bill, without reference to the Sale of Goods Act 1979, could produce confusion and lack of clarity among traders and consumers alike. I should be grateful if the Minister could explain the reasons for the Government departing from the definitions of “sale” in that Act to avoid any confusion.
Similarly, Amendment 67 would leave out Clause 14(6)(c). This has the effect that I have just set out. Clause 14(6) applies to other means of transferring possession or property unrelated to sale, including barter or exchange, leasing or hiring, and gift. I would be grateful if the Minister could explain why the Government are seeking to extend the Bill to these transactions, in particular to gifts, which transfer ownership of the item donated without payment or consideration. With those few remarks, I would be grateful to hear from my noble friend why these changes are being sought in the Bill. I beg to move.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
The noble Lord, Lord Liddle, has withdrawn, so I call the noble Lord, Lord Purvis of Tweed.
Lord Purvis of Tweed (LD)
My Lords, I am grateful to the noble Baroness, Lady McIntosh of Pickering, for putting down this question. The Law Society of Scotland makes a valid point about why there would be a new, and potentially competing, definition of sales between this legislation and the Sale of Goods Act. I will just ask two supplementary questions. The first is a genuine probing question about the Government’s view. Given that many sales are conducted online now—and probably the vast majority in the coming years—what is the Government’s view, with regard to this legislation, on the location where an online sale takes place and how that is covered by the definition?
The example given by my noble friend Lord Fox was about phasing in the banning of coal in England, but not yet in Wales or Scotland. It was a genuine question, and it was a shame that the noble Lord, Lord Callanan, did not have a chance to answer. On a reading of this legislation, someone in England who is banned from purchasing coal for use in their household in England would, under the definition of “sale” in Clause 13, be able to buy household coal from a Welsh or Scottish coal merchant, at a local or online sale, who would then be able to deliver. It would be good if that could be clarified, even if the Minister needs to write to us about it. It is a genuine issue to highlight.
My second question links to this amendment more directly. The noble Baroness, Lady McIntosh of Pickering, and other noble Lords who have Scottish legal qualifications will be familiar with this. I see the noble and learned Lord, Lord Falconer, on the Opposition Front Bench. Sales in Scotland often have a cut-and-paste element, stating that the law of contract of England applies. Of course, it does not in Scotland. That tends to be viewed as not having effect, and that the cut and paste is not accurate, as contract law is different north of the border. When it comes to the definition of sales through a contract, if the sale of an imported good is conducted within Scotland, is it considered local or not? If that is the case, does the contract law of Scotland apply under this legislation or is the default the law of contract for England? If the latter, that is problematic for transactions carried out north of the border.
Lord Falconer of Thoroton (Lab)
I am obliged to the noble Baroness, Lady McIntosh of Pickering, for raising these points. There is a raft of unanswered questions here. It is late at night, so I will try to focus on only the most important. Am I right in assuming that the market access principles, recognition and discrimination, apply to the rental and gifting of goods? If they apply to the rental of goods, what is the policy purpose? What is the purpose of applying them to the gifting of goods and what does it mean in practice? For example, does it apply to statutory requirements for the provision of food by food suppliers that are subject to statutory requirements?
The second head of issues concerns the position of public bodies engaged in commerce. I understand, but only from the Explanatory Notes, that the supplying of drugs by the NHS, even though it does so in a commercial context from time to time, is not covered by the Bill. Is this right? I have particularly in mind Clause 14(2), which says:
“‘Sale’ does not include a sale which … is made in the course of a business but only for the purpose of performing a function of a public nature.”
I read in the Explanatory Notes that that means the NHS supplying drugs. If that is right, what does the completely impenetrable Clause 14(3)(b) mean when it says:
“Subsection (2)(b) does not exclude a sale which is … not made for the purpose of performing a function of a public nature (other than a function relating to the carrying on of commercial activities)”?
Can the Minister explain this to the House? It matters quite considerably because I suspect it will cover a great deal of commercial activity performed by public bodies.
Thirdly, and separately, what is the position in relation to the goods that are made partly in one part of the United Kingdom and partly in another—for example, cars on an assembly line that crosses borders, or planes or high-tech equipment where parts from elsewhere come into it? As a result of Clause 15(3) and (4), is there a separate application to each of the individual components or does one look only at the completed goods?
Lastly, and this is perhaps the most significant, how do the Government envisage that this will operate? My understanding of Clause 6, on the non-discrimination principle, is that where a statutory or regulatory requirement in one part of the country discriminates indirectly, making the sale of those goods disadvantageous in another part of the United Kingdom, that disadvantageous provision can be supported only if it has one of the legitimate aims identified in Clause 8(6).
Let us take minimum alcohol pricing in Scotland. This is a relevant requirement which indiscriminately discriminates against incoming goods on the basis that alcohol brought into Scotland from England by a supplier is the subject of a disadvantage as defined in Clause 8(2); namely, minimum pricing makes it less attractive because the goods are more expensive to buy. As I understand it, this can be justified only if that minimum pricing statutory requirement has one of the following aims:
“the protection of the life or health of humans, animals or plants”
or
“the protection of public safety or security”.
Am I right in understanding that if, for example, a large supplier of alcohol from England into Scotland wished to challenge minimum alcohol pricing, he could do so by taking his buyer to court? There would then be a private law action in the courts of either Scotland or England—could the Minister tell me which it would be, assuming that the minimum alcohol pricing was in Scotland and the supplier was in England?—and the courts would have to decide whether or not minimum alcohol pricing was a regulation that had a legitimate aim.
The consequence of this Act—which is quite tricky to understand and is perhaps unthought-out—is that we in Parliament are handing over to the courts the determination of policies such as minimum alcohol pricing. That seems at the moment to be the consequence of the way that the Bill is drafted. I cannot believe that that is what any sensible Government would wish. Could the Minister please explain how Clause 8 works? I hope she can explain why my conclusions on the basis of Clause 8 are wrong—I really hope they are.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I thank noble Lords for their contributions to this short debate. There were a lot of questions in there, some of which I will just have to write to noble Lords about because my briefing does not cover the whole gamut of what was asked and I would rather give a full answer.
Amendments 66 and 67 are relatively technical amendments relating to the definitions of “sale” in the Bill. I am willing to provide further details on this issue and discuss any concerns that my noble friend has. Amendment 66 would narrow the definition of “sale” in the Bill. It would narrow the types of supply-related activities that a trader could carry out and benefit from the market access principles. It would therefore reduce the effectiveness of the market access principles in reducing barriers to trade across the UK.
The United Kingdom Internal Market Bill is intended to provide a structural underpinning and additional protections to the status quo of intra-UK trade, ensuring certainty for businesses and investors in the form of a safety net of regulatory coherence. We should not cut holes in the safety net. The definition of “sale” that we have will ensure that businesses can continue to trade in a frictionless way, no matter how they are supplying their goods. It also seeks to align broadly with the scope of the “placing on the market” concept that is central to our existing goods regulation.
I say to my noble friend Lady McIntosh that the Sale of Goods Act 1979 was a very UK-specific way of defining a sale. The EU style of definition that has been brought into our legislation is much broader, and there is a need to ensure that the same principles align across the whole legislative piece. “Placing on the market” is therefore included in this as a concept but not in the Sale of Goods Act. In short, the Government cannot support this amendment, and I ask my noble friend to withdraw it.
Amendment 67 would exclude the supply of goods free of charge from the market access principles. It would include the rental of goods, as the noble Lord, Lord Purvis, pointed out. That would lead to the strange outcome that a good could be lawfully sold under the mutual recognition principle in a part of the UK for only a penny but could not be supplied there under that principle free of charge. This would affect a range of items such as commercial samples, marketing merchandise or introductory offers, and would reduce the effectiveness of the market access principles in reducing barriers to trade across the UK.
I was asked a question by the noble Lord, Lord Purvis, when we were talking about coal. I think the distinction my noble friend was trying to make was between a ban on the sale of coal and a ban on its use. As in his example, you could legally buy it in Wales, but you could not then legally use it in England just because you bought it over the border due to the difference in rules. For these reasons, I ask my noble friend not to move Amendment 67.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
I have received a request to speak after the Minister from the noble Lord, Lord Purvis of Tweed.
Lord Purvis of Tweed (LD)
I am grateful for how the Minister responded. I think that the last point she made was really important. The Government have been talking about restrictions on the ability of the devolved Administrations to sell, yet on the point that my noble friend Lord Fox made—that the Government for England have banned not the use but the sale of household coal—the Minister said that it would be possible to continue to provide household coal in England through a Welsh or online retailer. It is quite extraordinary that the undermining of public policy along those lines could be operated, but the Government seem to be perfectly content about that. However, the transparency on that, at least, has been helpful.
Baroness Bloomfield of Hinton Waldrist (Con)
I remember the noble Lord asking that question earlier in the debate. I am more than happy to write to him on that and on the other issues that I have not been able to cover in my response.
Lord Falconer of Thoroton (Lab)
I am not complaining, but the Minister did not try to answer any of my questions, so I would like a comprehensive response.
I am really interested in whether the Government envisage that in private law actions the courts will be resolving whether regulations that are discriminatory on the face of it for public purposes, as defined in the Bill, are valid—that is, whether they are for a legitimate aim. If they are, then the consequence is that Parliament is subcontracting decisions on these policy issues to the courts. I am not asking the Minister to deal with the other issues, but if she could deal with that one now, I would be grateful. If she cannot, because the answer is not yet known or has not been worked out, I would be grateful if she could indicate that. This issue seems to be absolutely key to the question of certainty for business. If where we come out at the end of the Bill is the courts system deciding on the legitimacy of a whole range of regulations, I am sure that that would not be what the Government would have wished. That is why the common frameworks process looks so much more attractive.
Baroness Bloomfield of Hinton Waldrist (Con)
Having looked at that question, I would rather write to the noble and learned Lord giving a full answer—but I will do so very speedily, before we come to the next stage.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am grateful to have had this little debate. I am particularly grateful to the noble Lord, Lord Purvis, and the noble and learned Lord, Lord Falconer, for identifying even more issues than I and the Law Society of Scotland had done.
I thank my noble friend Lady Bloomfield for her answers, as far as they went, but, bearing in mind in particular the way that procedure operates in this place as opposed to the other place, it is extremely important that we have a very full letter. Perhaps she could write to the three of us who have contributed, as well as putting a copy of her letter in the Library, before we get anywhere close to the next stage.
I would like to, and still do not, understand why we are bringing in a new definition of “sale” that has a different meaning from that in the Sale of Goods Act 1979. I do not know whether my noble friend is saying that we are widening the definition to include what is generally understood in EU law, but I do not recognise any of this from what is before us in the Bill, so I would be grateful if my noble friend could write to me and say what, precisely, is the legal basis for widening and changing the definition in the way that the Government have in that regard.
I am grateful to the noble Lord, Lord Purvis, for the definitions that he gave and the illustrations that he posted as being a particular problem north of the border. I am also grateful to the noble and learned Lord, Lord Falconer of Thoroton, because I think this is absolutely vital: none of us here this evening wants to put up barriers to trade between the four nations of the United Kingdom. However, it is absolutely essential that we have clarity on the face of the Bill for the reasons that the noble and learned Lord, Lord Falconer of Thoroton, has given: we do not wish to have to resort to private-law actions before the courts—that, surely, is not acceptable. I quite understand that the Government have had to bring this Bill forward in something of a hurry, but I am here this evening to help them identify these issues.
Certainly, I am now even more confused as to why Clause 14(6)(c) has been introduced, particularly as regards the noble and learned Lord, Lord Falconer of Thoroton, referring to Clause 8(6) in this regard. However, rather than delay proceedings this evening, I will say that it would be extremely helpful to have a written understanding from my noble friend Lady Bloomfield as to why we are in this position this evening. With those remarks, I beg leave to withdraw Amendment 66 at this stage.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 68. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate.
Amendment 68
“Purpose of Part 2
This Part promotes the continued functioning of the internal market for services in the United Kingdom for the benefit and protection of consumers.”
Baroness Hayter of Kentish Town (Lab)
My Lords, I rise to move Amendment 68 but also to speak to Amendments 89, 96 and 102 in my name. I will take Amendments 68 and 96 together. As we discussed on Monday, these are to ensure that, as we go through this process of ensuring a working single market across the UK, we have consumers—in whose interest, after all, public policy needs to act—at the forefront of our minds.
Amendment 68 is particularly important. Noble Lords may recall that, at the start of Part 1, the very first clause outlines the “Purpose of Part 1”. I may have wanted to expand this a little, but at least a purpose is there. As we turn to Part 2, on “UK market access” as it applies to services, it simply says that it will govern the regulation of service providers in the UK, but no objective is set for why this is done.
If we look at the regulation of the financial services sector, for example, we see that clear objectives for their work are set down in the appropriate legislation. It would be good to have a similar set of aims here. My amendment, unsurprisingly, would set the purpose as promoting
“the continued functioning of the internal market for services in the United Kingdom for the benefit and protection of consumers.”
Other colleagues would add other things, and I am sure the noble Baroness, Lady Noakes, if she was in her place, would also prefer a different focus—although I hope that she would recognise that it should still have an eye on consumers. Surely, however, there has to be a purpose for this regulation.
As we have found with the legal profession under the Legal Services Act, for example, or with financial services under the various FiSMA Acts, intervention was needed because uninhibited competition in a market where consumers often cannot shop around or judge the long-term outcome of services—particularly financial services—necessitates some regulatory protections. If they buy a pension scheme, they cannot tell the long-term outcome, which means as a consumer they are very vulnerable. It is the same with legal services; you have no idea if your divorce settlement was good or bad until many years later. Very often there is an intervention for that purpose, but it is clear why the intervention is happening and what its purposes are. We need a similar thing here. Incidentally, given that such interventions often level the playing field, they have not been shown to restrict the growth of the relevant sector, so one does not need to fear that this will inhibit growth in any way.
Amendment 96 would add “the protection of consumers” to the list of legitimate aims whereby a service may be deemed not to be discriminatory. This might mean providing a service only in Welsh or in some other country specific way, but if it is aimed at protecting consumers, that would allow an opt-out, if you like, from it being discriminatory.
Amendment 89 would remove from the consideration of whether a service provider is discriminating the words,
“it cannot reasonably be considered a necessary means of achieving a legitimate aim.”
I asked not my noble and learned friend here but another of our very learned colleagues how that sounded and whether this phrase was common in law, and at that point, he could not think of an example. It seems a vague definition for a service provider to have to work to. The whole paragraph is fraught with uncertainty as to who would judge that and how something could be reasonably considered necessary, for example, to protect public health, which is defined as a legitimate aim. However, it is a very indistinct definition for someone to decide whether it is discriminatory. Given that service providers sometimes have to act at speed, one has to ask: what sort of certainty would that provide?
Even more confusingly, when looking at whether something could be reasonably considered as necessary —as if that was not hard enough—a further bit in Clause 20(9) says that has to be decided with regard to
“the effects … in all the circumstances, and”
Whether an alternative way of achieving a legitimate aim was available. We are getting into a lot of legal difficulties for a service provider to be able to judge whether they can tailor-make a service for particular needs if they have to go through quite so many indistinct legal loops. I beg to move.
Baroness Finlay of Llandaff (CB) [V]
My Lords, the hour is late, and I will shorten what I was going to say. Amendment 78 is intended to achieve exactly the same objective, in respect of Part 2, as my Amendment 6 does in respect of goods. In other words, it seeks to incentivise both the Government and the devolved Administrations to commit fully to the common frameworks programme and rely on the market access principles only as a fallback when all else fails. The other two amendments in this group, Amendments 67 and 71, are consequential on it, since they would make the point at which the regulations came into force the point from which market access principles would apply. I cannot see why there is any difficulty with that.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
The noble Lord, Lord German, is not taking part in this group, so I call the next speaker, the noble Baroness, Lady McIntosh of Pickering.
Baroness McIntosh of Pickering (Con) [V]
I will speak briefly to several amendments in this group. Regarding Amendment 70, again I raise the question of substantial change, and whether that means a “significant amendment”. I am seeking clarification on the part of the Bill to which this refers.
Amendment 81 would delete “of no effect”, as would Amendment 84. Can the Minister say what that means when replying? It is very unclear. I am again grateful to the Law Society of Scotland for its help in putting forward and drafting these amendments.
In Amendment 92, what is meant by “less attractive”? In my view, to put a service provider at a disadvantage is a serious matter in a Bill such as this. Using a phrase such as “less attractive” as part of the assessment of disadvantage is subjective and lacks clarity. I would be very grateful if, when summing up, the Minister could just clarify what his understanding of “less attractive” is.
I turn to my Amendments 103 and 103A. Amendment 103, which would take out “mainly” and insert “substantially”, is a probing amendment to understand the meaning of “mainly” in connection with the gathering of experience—for example, in relation to Clause 23(7). In my view, Clause (23)(7)(b) requires further definition. How should “mainly” be measured? Will it be by the time spent as a proportion of the whole qualifying experience or by some other measure? How will this experience be recorded and verified?
The same questions arise in regard to that aspect of the experience obtained elsewhere than in the UK. The purpose of my Amendment 103A is to ask whether we are excluding all other experience than that obtained in the UK. I pray in aid my own experience, where I practised law in Brussels in two different situations. Would that experience, and the experience of others as well, qualify for the purposes of the Bill? I am grateful for the opportunity to move these probing amendments and I look forward to the Minister’s clarification of these points.
Baroness Neville-Rolfe (Con) [V]
My Lords, I want to speak to this group of amendments for two simple reasons. First, services are incredibly important to the UK and to all four nations within it. As I said on Amendment 4, they are vital to the success of our economy, making up more than 80% of GDP. They range from financial services, mentioned by the noble Baroness, Lady Hayter, which I believe now provide more jobs outside London than in the City, to arts and entertainment of every kind. Invisibles, including legal and accountancy services where we have world-leading expertise, represent more export value than goods.
Secondly, I am mystified by the clauses on services, which are the subject of these amendments. The arrangements seem to work well currently. No doubt some protection is provided by the carryover of EU rules under the withdrawal Acts, which are relatively light touch because attempts to align local rules within the EU on services were also light touch.
We are forcing on to the service industries apparently new rules and new exemptions linked to the principles of mutual recognition and non-discrimination. There could potentially be a whole load of bureaucracy and regulation associated with this activity, which business, the service sector and regulators will need to understand. Lobbyists may try to secure new rules that benefit narrow interests, as they do in Brussels now. Moreover, as someone who takes a morbid and forensic interest in these things, I find the impact assessment—welcome though it is in principle—extremely disappointing. These are usually very helpful to Committee discussions, but the assessment asserts on page 2 that
“the cost savings to businesses, consumers and the wider UK economy would be expected to significantly offset any costs imposed by this legislation, translating into a net benefit to the UK economy.”
The small and micro business assessment on page 37, a section to which I always pay the greatest attention as small business is the lifeblood of this country and key to its dynamism, says:
“Due to a lack of historical need, there is a shortage of data on businesses trading between different parts of the UK. It has therefore not been possible to identify the volume of such businesses who operate across borders, nor the extent to which they benefit because of the hypothetical nature of the future regulatory regimes.”
So we have no evidence to justify the new powers, nor an assessment of their consequences. We almost seem to be creating borders for services where none existed before, which is surely the opposite of what we want.
We need to understand better how this part of the Bill will work, but the material presented so far has stumped me, as a business operator who has worked in various industries across the UK and the world. In that connection, let me ask a simple question on marketing activity, which is not listed in the schedules: would I be permitted to discriminate in favour of a company that was Welsh to help with the marketing of Welsh products or would I have to take time to listen to pitches from English-owned—or, indeed, US or Canadian-owned—companies?
In response to a number of understandable probing amendments in this group, can my noble friend the Minister kindly justify the provisions simply, with some good worked examples relating to significant service sectors, and assuage my fears? I must say, at this point in time, I am confused and therefore concerned.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
Both the noble Baroness, Lady Noakes, and the noble Lord, Lord Liddle, have withdrawn from this group so I call the noble Lord, Lord Purvis of Tweed.
Lord Purvis of Tweed (LD)
My Lords, the Minister will no doubt be pleased to hear that I will not ask questions about whisky even though, after nine hours on this Bench, it seems to be at the forefront of my mind right now. I do not know why but a nice glass of whisky would be rather welcome.
I want to follow on directly from the noble Baroness, Lady Neville-Rolfe, and expand on her very good second point about organisations that are not within the Schedule 2 exclusions but may, for example, seek services that have a specific characteristic of one of our home nations or additional requirements—such as having the capacity to speak the Welsh language, which would be important for the provision of certain services in parts of the United Kingdom, or, in the highlands of Scotland or certain parts of Glasgow, proficiency in the Gaelic language. Given that these were covered in the European Union elements, which the Minister argued previously were restrictive but which are actually broad and allowed this trade to be conducted properly, I hope that the Minister can respond as to why those elements would not be covered in this Bill and whether there would be the ability to have some of the specific requirements with regard to regulatory requirements that have specific characteristics.
Aside from language and other conditions with regard to equality legislation, which would be covered under putting services to contracts, I notice that transport services are excluded but water services are not. As the Minister knows, the provision of water services is distinct in our four nations. There are separate industries and these will not be excluded. I would be interested to know whether the current contractual arrangements are out of scope of this legislation because they are current. On the non-discrimination principles in the services sector, I have a concern about the distinct nature of the legislation for the Scottish water industry, which is a public body with one shareholder—the Scottish Minister—and whether an English service provider would be able to challenge the provision of Scottish water services because they are not excluded from this legislation. I would be most grateful if the Minister could allay my concern about that.
Similarly, the provision of water in Wales is a different legal entity—it is a mutual approach. Many private enterprises in the provision of services, as we know, are of an international nature. There is an even greater concern that if, for example, an American service business, through a trade agreement with the United Kingdom, had a brass plate enterprise in the City of London with American shareholders, that might be the gateway for it to challenge the mutual model in Wales or the approach in Scotland. I hope that the Minister can allay my fear about that.
Lord Callanan (Con)
It may be helpful to the noble Lord, Lord Purvis, who I know is interested, if I return to a question he asked on the previous group—the vexed question of coal and the English-Welsh border. Let me build on the answer given by my noble friend Lady Bloomfield. Under mutual recognition, the use of coal could be banned regardless of where it is bought. The sale cannot be stopped simply because the use is not permitted. The use would still not be permitted in England, even if the coal is bought in Wales, or if it is legal to use it there. It is the distinction between sale and use that my noble friend referred to. I thought the noble Lord would like early clarification of that.
Amendments 68, 69, 70, 71, 78, 81, 84, 89, 92, 96 and 102 seek to alter the application and scope of both the exclusions and non-discrimination rules for the internal market in services. Several of these amendments centre on the application of the services rules and the non-discrimination principle. This non-discrimination rule is a fundamental safeguard for businesses, ensuring that there is equal opportunity for companies trading in the UK, regardless of where in the UK the business is based. I will address the amendments in related groups, and I am happy to explain how the services rules work, and the list of exclusions, in greater detail.
I thank the noble Baroness, Lady Hayter, for tabling Amendments 68 and 96 on consumer protection. I hope to be able to persuade her that they are unnecessary. As I set out on Monday, the Government are committed to maintaining and protecting the highest consumer standards across the UK. This legislation will be to the benefit and protection of the country’s consumers. Without an updated, coherent market structure, UK services trade could be significantly and detrimentally affected. Future complexities could arise, and costs could then be passed on to consumers through an increase in prices or a decrease in choice.
Amendments 69, 71 and 78 would provide that Part 2 applies only to services specified in regulations. We believe that these amendments are contrary to the aims of the Bill, because this is the opposite to the current approach, which is that mutual recognition and non-discrimination applies to all services except those specified in the schedule. Further, the amendments set restrictive consultation and reporting conditions on a Secretary of State wishing to make those regulations, and a requirement for devolved Administration consent to regulations extending the list of exclusions in Schedule 2. My noble friend Lord True spoke about this issue earlier today in the group on the involvement of the devolved Administrations.
Clause 17 currently aligns with the wider aims of the Bill—to allow businesses and people to trade as they do now, without facing additional barriers based on which nation they are in. These amendments run contrary to those aims. They would make the raising of barriers to service provision the default position, by not applying mutual recognition and non-discrimination principles in the Bill to any services unless specified. The reporting and consultation requirements the amendments place on specifying regulations also mean that bringing services into scope of the rules of Part 2 of the Bill, including all those to which the principles of mutual recognition and non-discrimination apply under retained EU law, would be both difficult and time-consuming. This would, in turn, cause disruption to businesses seeking to provide their services across the whole United Kingdom.
Overall, these amendments could raise barriers to service provision across the UK where even the current system does not, and would seriously hinder any attempts to develop a co-ordinated and focused response to the evolution of services in the future. Therefore, while I recognise the spirit in which these amendments were tabled, I am unable to accept them. However, to answer the questions asked by the noble Baroness, Lady Hayter, and my noble friend Lady Neville-Rolfe, on financial and legal services, and to allay their specific concerns, I can reassure them that legal services are excluded from the mutual recognition principles, and financial services are excluded from Part 2 entirely.
As my noble friend Lady McIntosh makes clear in her explanatory statements accompanying Amendments 70, 81, 84 and 92, their primary purpose is to probe the drafting of the Bill. On Amendment 70, the intention of Clause 16(5)(c) is to restrict the application of Part 2 only to new requirements that take effect after Part 2 itself does. This is because the Bill is intended to prevent future obstacles to trade within the single market, not retrospectively review all existing requirements.
Clause 16(5)(c)(i) provides that requirements already in force are not subject to the principles in Part 2. Clause16(5)(c)(ii) recognises that there will inevitably be new iterations of rules, which will in fact simply restate the previous rules that were in place. This provision sets out a threshold, beyond which the new requirement will be brought within scope, and that is where the requirement has changed in substance.
My noble friend in particular asks the meaning of “substantive change”, which her amendment would replace with the phrase “significant amendment”. This wording is simply intended to distinguish between those rules which are genuinely new and different from those which may have been in place beforehand, and those which are in fact substantively the same rules. My noble friend’s suggested change uses the term “significant”, which is less easy to quantify and suggests to me a higher threshold before which a change would bring the provision within scope of the principles in the Bill. “Change” and “amendment” are of course covering fairly similar ground, but I suggest that “amendment” would more commonly be used when talking about changes to text. Since Part 2 is operating on requirements imposed by or under legislation rather than the text of the legislation itself, we think, in these circumstances, that “change” is the most fitting word— but there will probably be lots of work for the noble and learned Lord, Lord Falconer, and his friends in interpreting this.
I turn now to Amendments 81 and 84. In Clause 21, a legislative requirement is one imposed
“by, or by virtue of, legislation”.
This extends beyond legislation to rules produced by bodies with powers delegated to them in respect of a particular field of regulation, and it may include licences or requirements contained therein. My noble friend’s Amendments 81 and 84 would appear to have the same effect. However, in my view, the term “of no effect” is the more appropriate to apply in respect of a licence or a non-legislative rule.
Turning now to Amendment 92, the purpose of the words “less attractive” in Clause 20(3) is to encompass requirements which are not outright prohibitive but which otherwise make it harder to offer a service in a particular market. Without these words, the clause could be read as referring only to actively punitive measures, when in fact it is intended to cover a broader range of harms under the definition of direct discrimination. My noble friend will no doubt also be aware of the amendment in my name to Clause 20, which seeks to clarify the meaning of the test for indirect discrimination in that clause—although the language that she highlights remains unaltered by it.
Amendments 89 and 102 from the noble Baroness, Lady Hayter, seek to remove the reference to the legitimate aims in Clause 20. These amendments should be read alongside the other amendments in the noble Baroness’s name. The wider purpose of all these amendments is to alter the legitimate aims in Clause 20. The amendments would have the effect of making the principle of non-discrimination almost absolute, not allowing any requirement which had an indirectly discriminatory effect, no matter how valid or urgent the justification. I suspect that this was not what the noble Baroness intended with this suite of amendments.
Clause 20(2)(d) provides that a requirement will be discriminatory only if it cannot be justified by a legitimate aim. Amendment 89 suggests removing that. Clause 20(9) provides that, to determine whether a regulatory requirement can be considered as a necessary means to achieve a legitimate aim, particular consideration must be given to the effects of the requirement in all circumstances and to the availability of alternative means to achieve that aim. This subsection is key to determining whether a legitimate aim may be relied upon. It is designed to assist the reader and its removal would hinder the effective application and operation of the test. The subsections are both key to the effective operation of the non-discrimination principle provided for by Part 2 of the Bill. I therefore cannot accept these amendments.
Amendment 103 relates to Part 3 of the Bill, concerning professional qualifications. As used in the clause, “mainly” has been used in this context to ensure that the majority of the experience that a professional is relying on is obtained in the United Kingdom. This is so that relevant authorities can reliably assess the professional’s experience. The decision to use “mainly” rather than “substantially”, or other similar words, is so that professionals can rely on their experience for this part of the Bill without it being interpreted as the whole of their experience needing to have been obtained in the UK. I hope, therefore, that this explanation satisfies the House and that the noble Baroness feels able not to press her amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received one request to speak after the Minister from the noble and learned Lord, Lord Falconer of Thoroton.
Lord Falconer of Thoroton (Lab)
I go back to the very interesting answer that the Minister gave on the coal example. Let us assume that the coal example, which he described as being a prohibition on sale but not use, did not come in a pre-existing requirement and that it had been entered into after this Bill became law. I would be right, would I not, in assuming that such a requirement would offend against the non-discrimination principle under Clause 8? It is obviously a disadvantage to be able to sell coal to people who cannot use it. In those circumstances, it is valid only if that was a provision entered into after the Bill became law if such a provision was justified by one of the legitimate aims identified in Clause 8(6). Would I be right in assuming that? Would I be right in assuming that the question of whether the ban on the use of coal survived would depend upon a private law action between the supplier of the coal and the buyer of the coal?
Lord Callanan (Con)
I do not think the noble and learned Lord is correct in his assumption, but it is a detailed legal point, so I will take further advice and reply to him in writing.
Baroness Hayter of Kentish Town (Lab)
My Lords, I thank noble Lords who have contributed to the debate, which poses more questions than even I had realised. I have also realised that I have not got a complete handle on the services that are covered. Are financial services excluded? I think auditing is excluded. It would perhaps be helpful if a note could be passed about what services are covered. I assumed they are cultural and intellectual property, education and architecture, but there are some interesting ones where there are big differences at the moment between countries.
I am particularly thinking of residential property, where Wales now licenses landlords and is ahead of us in licensing letting agents. We are now in discussion with the Government about the licensing—shortly, we hope—or authorisation of all property agents, but then that would be different between England and Wales and Northern Ireland and Scotland. Presumably all that would be caught by this, but I am not certain.
This is a genuine question and it would be really helpful to have, without it being part of the Bill and without it committing the Government to anything, a more useful note of what is covered. Then we could look at what is already different, particularly in licensing, as is certainly the case in the area that I know about of residential agencies in Wales and elsewhere.
In a sense, the bigger issue is the one I set out at the beginning. The noble Baroness, Lady Neville-Rolfe, put it much better. I was asking about the purpose of Part 2. I think the noble Baroness went further and asked whether we even need Part 2. It actually comes back to whether we need the whole Bill or whether the common frameworks road might be the better one, or, as the noble Baroness, Lady Finlay, asked, whether it might be sufficient to fall back on the 2018 position on what things could not be agreed—it would probably save an awful lot of this. The purpose of Part 2 needs justifying, rather than defining. Why do we need it? Is the noble Baroness, Lady Neville-Rolfe, correct that we do not need this level of detail?
If the Minister could also informally explain a little more about what would be covered, that would be helpful, and we might come back at a later stage to look at whether we could define why we have this part. However, for now, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 79. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this, or anything else in this group, to a Division should make that clear in debate.
Schedule 2: Services exclusions
Amendment 79
“Teaching Services | provision of teaching services in schools or colleges” |
This amendment would add the profession of teacher and teaching services to the scope of the exclusions from the Bill, in the same way that the legal professions and legal services are excluded.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I beg leave to move Amendment 79, and also to speak to Amendment 106, both of which appear in my name. I acknowledge support in preparing these amendments and presenting this information from the General Teaching Council for Scotland. I also draw on the submission of the Education Workforce Council of Wales to the UK Internal Market White Paper. The Welsh submission noted:
“There is no public register of schoolteachers in England. There are many aspects of the regulatory system in England that are different. For example, there is no requirement for employers to refer cases, and the teaching regulation authority has only one disciplinary sanction it may apply. The rest of the UK and Ireland have registration and regulatory arrangements.”
In its equivalent submission, the General Teaching Council for Scotland said that it
“does not consider that a system of mutual recognition can or should be applied to the teaching profession within the UK.”
It noted, as did the Education Workforce Council, that the systems are structured differently in England from the rest of the UK. The General Teaching Council continued:
“GTC Scotland is not prepared to lose this control over the standard of teachers entering the teaching profession in Scotland in this way and given the devolved education function within the UK, it does not believe that it would appropriate to do so.”
In Wales, the registration and regulatory arrangements were strengthened in 2015 with the reconfiguration of the General Teaching Council for Wales as the Education Workforce Council. That extended registration and regulation from just schoolteachers to include seven education professions. From 2022, Wales is introducing a new curriculum for initial teacher training relating to the specific circumstances of that nation and its systems. In Scotland, the teacher training system continues to be based on formal education, rather than the classroom-based learning that has been adopted as an alternative system in England, where unqualified teachers, who operate primarily in free schools, are allowed.
I am assured that almost all teachers coming from other parts of the UK who apply for registration in Scotland achieve it. This is not about discrimination, but keeping control and maintaining an existing and separate different system and rules, without seeing them swept aside by the Bill—or “bulldozed” in the powerful metaphor that my noble friend Lady Jones of Moulsecoomb used with broader application earlier this evening.
In referring to Northern Ireland, I start with a very useful 16-page briefing paper from the Northern Ireland Assembly. It begins by noting that there is a “complex educational structure” there. It notes that the Assembly has overall responsibility for the education of the people of Northern Ireland and for effectively implementing educational policy. Northern Ireland’s General Teaching Council is an arm’s-length body for the Department of Education, responsible for registering all teachers in grant-aided schools and approving qualifications for the purposes of registration.
We have here four very different systems that have evolved in different ways, for different purposes and for different situations. Three have registration systems under local control. England does not. Forcing them into mutual recognition is, I argue, clearly inappropriate. That is why these two amendments together aim to add the profession of teacher and teaching services to the scope of the exclusions from the Bill, in the same way that the legal professions and legal services are excluded. Mutual recognition is in no way appropriate for this situation. It involves sweeping away established, working, respected different systems. That of course was the point of devolution generally: to allow the nations to head in different directions to fit their particular cultures, circumstances and needs.
I stress that the Bill already acknowledges the different legal systems and the need for these to be treated differently. My amendments are minimalist in that they simply mirror the different treatment of lawyers in the treatment of teachers. However, the issues that I raise may well extend beyond teaching, and certainly beyond Scotland—for example, regarding social work in Wales. The Government have a great deal of work to do before Report to disentangle these complications and possibly extend the amendments even beyond what I have presented here. But adopting my amendments, or something very like them, would at least, by aligning the different treatment of legal systems with teaching, solve one of the problems.
I will continue to pursue these issues to that stage if I need to, but I very much hope that the Government will acknowledge the clear issues raised here and find their own solution to allow the existing, working, devolved systems for the registration of teachers, and possibly other related professions, to operate in all the nations of the UK where that is relevant. If they do not, I hope that some of the noble, and noble and learned, Lords in your Lordships’ House, who I am sure welcome the exemption for the legal profession from the mutual recognition provisions, might be prepared to join in the work to assist another profession to keep independent control of its own activities, as befits professional organisations in the nations of the UK. I beg to move.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
The noble Lord, Lord Liddle, has withdrawn from this group, so I call the noble Lord, Lord German.
Lord German (LD)
My Lords, I thank the noble Baroness, Lady Bennett, for raising this issue. It is of significance, and the Government will need to make some clear statements in order to avoid a very large flaring up of problems as a result of this matter.
Professional teacher registration is a devolved matter. The General Teaching Council for Scotland was established in 1965 and has ownership of the standards for teachers seeking registration and employment as a teacher in Scotland. The Education Workforce Council for Wales, Cyngor y Gweithlu Addysg, was established by the Education (Wales) Act 2014 to register schoolteachers who wish to work in schools in Wales. Teachers in Wales have to have qualified teacher status and be registered with the body in order to work in the profession. In England, since the introduction of the Teaching Regulation Agency, there is no longer a register of teachers.
Access to the teaching profession differs greatly between England, Wales and Scotland—and there are different qualification entry levels. The General Teaching Council for Scotland has an auto-recognition process for UK teachers who possess adequate qualifications for registration in Scotland. However, that does not mean that all teachers who teach in England or Wales can teach in Scotland. As such, teachers in Scotland should hold a qualification that is the equivalent of Scottish qualifications to enter the teaching profession in Scotland.
Teachers moving to Wales have to have equivalent standards. FE teachers, who are recognised by the National College for Teaching and Leadership in England and who are qualified to teach in England, are not recognised in Wales, and that means that they cannot be registered. Both Wales and Scotland have set different qualification levels to be able to work in the teaching profession.
There is an additional factor in Wales because of the bilingual nature of our education system. I know that noble Lords are aware that the Welsh language has equality status, and teachers have to be able to manage aspects of the school curriculum where they intersect with that language requirement. That does not mean that they have to speak Welsh, but they have to be able to manage aspects of the curriculum in English-medium schools.
Any flattening of qualification requirements would have a detrimental impact on the education provided in schools in Wales and Scotland and would dilute the standards that each country has set. I cannot think of any pressure to change these structures that has an impact on the internal market. The teaching profession should be excluded from this Bill as a result.
Baroness Hayter of Kentish Town (Lab)
As the noble Baroness, Lady Bennett, makes clear, there is really no reason why the teaching profession should not be treated the same as legal services. If there is an answer, I look forward to the Minister supplying it. However, as I think the noble Lord, Lord German, said, it also raises the question of what else is covered, be it medical research, university teaching, religious teaching or driving instruction. It is the same question that I posed before: are these areas of education and the passing on of wisdom to be covered, or are they excluded? We might not have those answers now but we need to be very clear on what is covered in this part of the Bill.
Baroness Scott of Bybrook (Con)
My Lords, these amendments seek to exclude teaching services and the teaching profession from the scope of the mutual recognition principle in Parts 2 and 3 of the Bill. Starting with Amendment 79, the current list of entries in Schedule 2 is largely drawn from the exclusions under the existing framework in the retained EU law. Schedule 2 aims to list those services for which it would be inappropriate to apply either or both of the provisions in Part 2. For example, legal services are excluded in recognition of the long-standing differences between the legal systems in each part of the UK.
I should allay the noble Baroness’s concerns if I explain that public services, including the public education services, are already excluded from the scope of Part 2 of the Bill under Schedule 2. That exclusion will ensure that public education services are not subject to the principles of mutual recognition or non-discrimination in Part 2. For this reason, it is my view that Amendment 79 is unnecessary.
Clause 17 requires the Secretary of State to keep Schedule 2 under review and contains the power to amend it by regulation to add services or requirements to those matters excluded from the principles of mutual recognition and non-discrimination. I can assure noble Lords that the Government will continue to keep the list of exclusions under review to ensure that it includes the appropriate services and requirements, to which either or both market access principles should not apply.
I turn to Amendment 106, which deals with recognition of professional qualifications. I assure noble Lords that teaching standards across the UK are very important to this Government. The provisions in Clause 24 allow relevant authorities to replace the automatic recognition principle with an alternative recognition process if they think that automatic recognition of different UK teaching qualifications would not be appropriate.
We are therefore answering the General Teaching Council for Scotland and the issues brought up about Wales and Northern Ireland; they will still be able to set standards in those devolved authorities, as now, and control who can teach in them. If the General Teaching Council for Scotland or a council in any other devolved authority decides that recognising teaching qualifications from other parts of the UK automatically is not appropriate, it can put in place an alternative recognition process to check qualifications and experience, as set out in the Bill. That should allay a number of the fears brought up in this short debate.
The system will enable relevant authorities to assess an individual’s qualifications before allowing professionals to practise. Relevant authorities will continue to have the ability to refuse access to those who are unable to demonstrate that they meet the standard requirements, such as the Welsh language. This makes an exception for the teaching profession unnecessary. On those grounds, I cannot accept the amendment and hope that the noble Baroness will withdraw it.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
I have received a request to speak after the Minister. I call the noble Lord, Lord Purvis of Tweed.
Lord Purvis of Tweed (LD)
My Lords, I wish to obtain absolute clarity from the Minister on the exemption in Schedule 2 with regard to:
“Services provided by a person exercising functions of a public nature”—
that is, a public body. That may apply to Wales but the General Teaching Council for Scotland is a charity as well as a regulatory body. The Minister outlined what it would be able to do to change, if challenged, those seeking to be registered in Scotland under the English criteria but who do not meet the Scottish criteria. The fear is that because the council is a charity—it is the oldest regulatory body for teachers in the world—it would be forced to accept teachers of a different standard than the English standard, which I automatically assumed would be a lesser standard. Will the Minister clarify that charities, such as regulatory bodies like the GTCS, are included in Schedule 2? She said it applied just to public bodies.
Baroness Scott of Bybrook (Con)
I am not going to give the noble Lord a definitive answer now but I will write to him to make sure that we are clear about that issue.
Baroness Bennett of Manor Castle (GP) [V]
I thank noble Lords who have contributed to the debate and the Minister for her response. The noble Lords, Lord German and Lord Purvis of Tweed, usefully added some pieces of history, particularly on Scotland and helped to identify that we are talking about long-separate and different systems. The noble Lord, Lord German, identified the way in which Wales has been heading in different directions. The noble Baroness, Lady Hayter of Kentish Town, stressed my point that there is no reason why teaching services should not be treated in the Bill in the same way as legal services and the noble Lord, Lord Purvis of Tweed, made an important point.
The Minister acknowledged the long-standing differences. I understood her to say that teaching would be automatically excluded without needing to be included in the Bill—at least in her initial remarks, but perhaps not so clearly in answer to the question she was asked. I know that that is not what was conveyed to the GTCS in previous discussions and that there is considerable public concern, particularly in Scotland, about these issues. I note the word that the Minister used in her comment that the nations “can” put in place alternative systems. The systems are already in place.
I will go away and look at Hansard, but I reserve the right to come back on Report. In the meantime, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
We now come to the group beginning with Amendment 82. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate.
Amendment 82
Lord Callanan
Member’s explanatory statement
This amendment is consequential on the amendment adding a definition of relevant connection to Clause 20 (page 14, line 16).
Lord Callanan (Con)
My Lords, in moving Amendment 82, I shall speak also to Amendments 83 and 85 to 88 in my name.
Clause 20 provides the test for assessing whether a regulatory requirement is indirectly discriminatory in relation to service providers. The indirect discrimination test comprises several elements, including a test for difference of treatment between incoming and local service providers and a test to assess whether the difference in treatment gives rise to an adverse market effect. This group of amendments would provide greater clarity to readers, particularly in relation to differential treatment and adverse market effect. The amendments would break up concepts previously included in Clause 20(4) and deal with the unequal treatment test separately from the adverse market effect test. This revised drafting also allows for clarification of the language.
This change delivers the same policy objectives but with greater clarity. It is supported by consequential amendments throughout Clause 20, including new definitions for local and incoming service providers. The definition of “relevant connection” is also moved into Clause 20 to link it better to the provision. Limb C of that definition is deleted because it is not relevant to indirect discrimination. A consequential amendment to Clause 19 supports this.
In my detailed remarks, I will focus on Amendments 90, 91 and 93 upon which the other amendments are consequential. Amendments 90 and 91 would provide greater clarity and break up concepts that were previously packed into Clause 20(4). They deal with the unequal treatment test separately from the adverse market effect test, and this division also allows for a clarification of the language. These amendments would introduce and define the concept of “relevant disadvantage”, tying it more clearly to the concept of unequal treatment between incoming and local service providers. Importantly, the more clearly laid out test for relevant disadvantage between local and incoming providers makes plain that it does not require all incoming providers to be disadvantaged or all local providers to be advantaged. That was the intended effect of the drafting; this amendment would ensure that it is clear.
Amendment 93 does two things. First, it defines local and incoming service providers—terms used in this group of amendments. Secondly, it copies the definition of “relevant connection” over from Clause 19, linking it more clearly to this provision. Limb C of the direct discrimination provision is deleted because it is not relevant to indirect discrimination.
Amendment 94, which is unrelated to the other amendments in this group, would simply remove a provision that is now no longer necessary. I beg to move.
Baroness Neville-Rolfe (Con) [V]
My Lords, I apologise to my noble friend the Minister for speaking on a technical amendment. I support much of the Bill and have limited my contributions accordingly.
However, I want to ask for a fuller explanation of Amendments 90 and 93, which again relate to services. Why do we need to make a distinction between incoming service providers and local service providers? Will that not create uncertainties and its own form of discrimination? Is this an insurance policy, for example against unwise anti-competitive moves by a devolved Administration? Is there any evidence that such an outcome is at all likely, given their well-known attachment to the EU single market? What is the underlying purpose of this approach?
The Minister was not able to answer my question on Amendment 68 about how marketing activity would be treated, or indeed the question from the noble Lord, Lord Purvis, on local language capability. The distinction between incoming service providers and local service providers may be part of the answer. I would welcome some simple examples that make some of this service area easier to understand. If the Minister needs notice of the questions, perhaps he would be kind enough to write to me on these points, as it is late.
Lord Purvis of Tweed (LD)
My Lords, I will be brief because of the hour. It would be churlish not to welcome amendments that have the purpose of clarification within this legislation. I just say to the Minister, “Don’t stop here. Keep them coming”. We will certainly welcome further government amendments to add more clarification to the legislation.
I am glad the noble Baroness, Lady Neville-Rolfe, mentioned the point about languages, as an example of something that the Minister did not respond to in the previous group. If certain elements are set down as part of the regulatory requirement—such as language capability, for example, or other characteristics that would have been permitted under the current legitimate aims but are not allowed under the new legitimate aims—what is the status of those? Would that be considered as putting providers at a disadvantage under Clause 20(2)(b)?
My second point was that, under Clause (20)(2)(c), the regulatory requirement has no effect. I note that I do not think there has been a sufficient answer to the question in an earlier group about what “no effect” actually means when it comes to a regulatory requirement. It has no effect if it has “an adverse market effect”. I wonder if the Minister could outline in clear terms what the test for that adverse market effect would be. Where and how would it be judged, and who would judge it? What would the test for that be, given that, as the noble and learned Lord, Lord Falconer, and my noble friend Lord fox said, this is likely to be tested in court because of the lack of clarity?
My final point is this. Given that service providers for higher education are not considered to be public bodies—and this was not answered in the previous group—and higher education is not considered to be within a legitimate aim, if a higher education provider outside Scotland were seeking to deliver services, the higher education system within Scotland would not be able to restrict it on the basis of the indirect discrimination element. If the Minister could state whether that would be the case, I would be grateful.
Lord Fox (LD)
My Lords, the Minister will be pleased to hear that I have got very little to add.
On the question of an adverse market effect, there are also questions around adverse to whom and adverse to what. Is it merely the price and the amount of choice, which is what the Minister appears to fall back on every time the market is described, or is there a wider adversity that comes into this?
Lord Stevenson of Balmacara (Lab) [V]
My Lords, like other speakers, I welcome the idea that this is a clarification of the language currently used in the Bill. However, like the noble Baroness, Lady Neville-Rolfe, I wonder whether what we have got is in fact any clearer, or makes us any more clear about what we are supposed to be doing with this part of the Bill.
The language is, in places, incredibly archaic and obscure. There seems to be no recognition of the digital world. Services provided through the internet are not going to be provided locally; they are not going to be provided “in a region” and there are not going to be local service providers, and yet there seems no reference to them or how they are to be treated. Even if that were not that case—even if we were not living in the virtual world—the idea that somehow a service provider has a relevant connection to a part of the United Kingdom if it has a registered office seems to ignore hundreds of years of the use of brass plates outside solicitors’ offices which provide registered offices but no services, no people, no contribution and no economic effect. Where is all this heading?
Lord Callanan (Con)
I thank noble Lords for the brevity of their contributions, particularly given the late hour, and I shall endeavour—they shall be pleased to hear—to match that brevity.
We think that these amendments make the test significantly clearer. The relevant concepts are unpacked in distinct subsections, and the new subsections more clearly express policy intention on how the test for indirect discrimination will function. The additional clarity ensures that businesses can operate with certainty, which is what this Bill is intended to ensure.
I have noted the requests from my noble friend Lady Neville-Rolfe—the noble Lord, Lord Purvis, repeated them several times—for details of how the service provisions will operate in things like marketing, language tests, et cetera, and for the legal definition of what “adverse market effect” means in practice. I will, of course, provide those for them in writing. With that, I commend these amendments to the Committee.
Lord Callanan
Member’s explanatory statement
This amendment would make clear that Clause 20 is concerned with incoming service providers.
Lord Callanan
Member’s explanatory statement
This amendment follows from the amendment to page 13, line 34 in my name.
Member’s explanatory statement
This amendment follows from the amendment to page 13, line 34 in my name.
Member’s explanatory statement
This amendment would ensure that requirements would only be excluded from the scope of Clause 20 if they are directly discriminatory against the incoming service provider (rather than in a general sense).
Member’s explanatory statement
This amendment is to accommodate the redrafting of the test in Clause 20(4)- it would treat the concept of unequal treatment (or relevant disadvantage) as a test separate from adverse market effect (which is covered by paragraph (c)).
Lord Callanan
“(2A) A regulatory requirement puts an incoming service provider at a relevant disadvantage if—(a) it puts the incoming service provider at a disadvantage in relation to the provision of services in the part of the United Kingdom in which the requirement applies, and(b) it does not put, or would not put, each local service provider at that disadvantage in relation to the provision of those services in that part (at all or to the same extent).”Member’s explanatory statement
This amendment would define the concept of relevant disadvantage, introduced by the amendment to page 13, line 39 in my name.
“(3) A regulatory requirement puts a service provider at a disadvantage in relation to the provision of services in a part of the United Kingdom if it makes it in any way more difficult, or less attractive, for the service provider to provide the services in that part.(4) A regulatory requirement has an adverse market effect if, by putting an incoming service provider (or incoming service providers) at a relevant disadvantage in relation to the provision of services, it has a significant adverse effect on competition in the market for those services in the United Kingdom.”Member’s explanatory statement
This amendment would rephrase what is meant by “disadvantage” and “adverse market effect” in light of the addition of the concept of relevant disadvantage in the amendment to page 13, line 44 in my name.
Lord Callanan
“(4A) For the purposes of subsections (1) to (4)—(a) an “incoming service provider” is a service provider that—(i) provides the services in the part of the United Kingdom in which the regulatory requirement applies, but(ii) does not have a relevant connection to that part;(b) a “local service provider” is a service provider that—(i) provides the services in the part of the United Kingdom in which the regulatory requirement applies,(ii) has a relevant connection to that part, and (iii) does not have a relevant connection to another part of the United Kingdom;(c) a service provider has a “relevant connection” to a part of the United Kingdom if the service provider—(i) has a registered office, place of business or residence in that part, or(ii) provides the services from that part.”Member’s explanatory statement
This amendment would define concepts used in the other amendments to Clause 20 in my name.
Member’s explanatory statement
This amendment would remove an unnecessary interpretation provision.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
We now come to the group beginning with Amendment 102A. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and anyone wishing to press this or anything else in the group to a Division should make that clear in debate.
Amendment 102A
“Purpose of Part 3
This Part consolidates existing law relating to the mutual recognition of professional qualifications within the United Kingdom.”Member’s explanatory statement
This amendment is to probe the legal basis for introducing the provisions in this part, and whether they are covered in existing UK law.
Lord Fox (LD)
My Lords, Amendment 102A is a probing amendment to probe the legal basis for the introduction of the provisions in this part and whether they are covered by existing law.
It is a human trait to disregard history that happened before we were born. Most of what we have been describing as previous law and previous regulation has centred on EU law and devolution settlements. However, in their Command Paper, the Government hark back much further than that to the 1700s and the Act of Union. In their July paper, the Government stated that
“the Internal Market has been enshrined in British law for over three centuries”
on the basis of the Acts of Union. I will spare noble Lords the lengthy history lesson, but within this document it says:
“For centuries, the UK Internal Market has been the bedrock of our shared prosperity ever since 1707 when the Acts of Union formally united England and Wales with Scotland.”
The reason we were talking about the General Teaching Council for Scotland regulating Scottish teachers was because that Act of Union specifically carved out education as a Scottish prerogative. That particular activity of regulating Scottish teachers is a direct result of the Act of Union. It has nothing to do with devolution and nothing to do with the European Union.
Quite simply, I am asking for clarification: where does the Act of Union sit within this scheme of things? And where does previous law, made as a result of that Act of Union over the centuries that have followed, but before all these other bits of history we have been talking about, sit? It is not a philosophical question; it is real, because the example I have just given is real. I am sure there are many others for clever people to uncover.
Therefore, I would like to have some sense of the Government’s position, which appears somewhat ambivalent towards the Act of Union. They mention it in the Command Paper but, in a sense, disregard it thereafter. With that in mind, I beg to move Amendment 102A.
Baroness Finlay of Llandaff (CB) [V]
My Lords, Amendment 104 is almost identical to Amendment 6, which we debated on Monday, and Amendment 69, which I moved only a few hours ago. Those two amendments related, respectively, to goods in Part 1 and services in Part 2. This amendment, in the case of “recognition of professional qualifications”, seeks to make the application of the market access principles subordinate to the common frameworks process. In other words, the market access principles can be applied to professional qualifications only in the event that it proves impossible, by consensus, for the four Governments to agree a common framework.
Amendment 105 is consequential, simply moving the time point at which the mutual recognition principle would start to apply. While Part 3 is arguably more niche and therefore less damaging than the two parts that precede it, it is even more complex. I do not understand the exceptions that it suggests or the manner in which these could legitimately be handled.
Clause 24, for example, provides that the automatic mutual recognition of qualifications does not apply where a process of individual assessment is available but only in so far as the process conforms to four different principles. This includes the following principle in subsection (4)(c):
“to the extent that the applicant cannot, on application of the principles set out in paragraphs (a) and (b), demonstrate the necessary knowledge and skills to the satisfaction of the regulatory body, the applicant should (subject to subsection (5)) have an opportunity to do so by way of a test or assessment the demands of which are proportionate to the deficiency”.
However, this is subject to a further condition:
“The process may, without contravening the principle set out in subsection (4)(c), allow the regulatory body in a case to which this subsection applies to decline the application without the applicant first being offered a test or assessment as described in that principle.”
I am not a lawyer, and I will happily defer to any noble and learned Member who can enlighten me, but this appears to me to say that you have to give an individual the opportunity to prove that they possess the attributes necessary to do the job through a process of individual assessment, but you are nevertheless allowed to decline an application without first offering the individual a test.
Although I am not a lawyer, I am assured by those who are that this whole part is, to put it crudely, somewhat of a licence for the legal profession to print money and tie up regulators in litigation that could last years. Perhaps unsurprisingly, only one of the professions that is specifically exempted from this whole part is the legal profession. I am sorry; I know that sounds cynical, but I do find this very difficult to understand. I genuinely believe that, in trying to ensure that the mutual access principles can apply only to the recognition of qualifications when it is truly needed, I am trying to rescue the Government from themselves.
I shall give some examples of where this part of the Bill could prove damaging to the rights of devolved Governments, or indeed to those of the UK Government. Let us suppose that a more enlightened Westminster Government want to make a level 3 qualification in nutrition a requirement of registration as a nursery nurse in an effort to reduce childhood obesity. Presumably a qualified nursery nurse from Northern Ireland, where such a course was not a requirement, would still be able to apply for registration in England. Would this be automatic? Would they have to undertake a test? Could they be refused even without being given the right to take a test, as Clause 22(5) seems to permit? I would really appreciate some clarification.
Lord German (LD)
My Lords, I happen to have spent 10 years of my life working on the mutual recognition of qualifications in Europe. I left that role and, 20 years after that, it was applied to about only four or five professions across Europe. Trying to understand where people are able to employ the appropriate skills, knowledge, understanding and practice in another surrounding is an amazingly complex area. That surrounding might have a different framework of regulation and perhaps a different framework of operation.
The intention to have mutual recognition of qualifications is fine, but the timing for putting it in place is not fine, because the Government want it to happen very rapidly. It seems to me that the most sensible way of doing this would be to try to work through the professions in relation to their activities, trying to make sure that, where there are barriers, those are reduced, or where there are barriers that are appropriate, they are not legislated for by accident in advance.
The noble Baroness, Lady Finlay, has already talked about the Welsh language. There is a very interesting debate to be had about professions that can or cannot operate through the medium of Welsh. It depends on the services being provided and on the context of where those services are provided. A profession operating in a context that is different in different parts of the United Kingdom will have different requirements because of the geography, culture or operation of the services that are to be provided. Therefore, my request to the Government is that they step back a little, take some time, concentrate on trying to fix the things that they can fix and, for goodness’ sake, allow this thing to mature properly before going in with legislation that will be doomed to failure in the end.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, on the next group I will explain that the drafting of some clauses of Part 3 is complex and not as straightforward as it could be. One way or another, it would be useful to have a statement clarifying whether the end result is the status quo, either as a general objective or for certain circumstances.
However, as the hour is late, and as I will elaborate a specific instance on Monday, I do not need to say any more, other than to support what has been said by my noble friends Lord Fox and Lord German. This appears to be a rather complex topic. Maybe taking time to sort it out and make sure that the drafting is as clear as possible would be a good exercise.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, as we grope our way through the Bill and get to what seem even more complex and difficult to understand parts of it, we seem to reach a point where the Bill either does not add anything or is currently so badly drafted that it might destroy what we currently have. I may be being harsh, and I realise that I am asking quite a lot of the Minister, who has probably not been directly involved in any of these parts of the Bill, or concerned with some of the issues we had to deal with earlier this evening, but it seems to me that with every group, and every minute we spend on the Bill, there is a growing understanding that, as the noble Lord, Lord German, said, the Government are trying to push ahead with something that does not take the trick, as far as we are concerned, in relation to the issues before us.
The Government need to step back, take their time, concentrate on the things that they and only they can do, and encourage those who have other responsibilities that bear on what we are talking about to develop them, and out of the gloom will emerge—because they are the answer—the common frameworks. Why do the Government not realise that that is where we are heading? Why do they not get it into their heads that we need to stop being so concerned about the possibilities—the far ranges and the sunny uplands—that may be available in some nirvana they have yet to describe accurately, and work from where we are to try to get somewhere sensible in the time we have?
Baroness Scott of Bybrook (Con)
My Lords, I do not intend to have a debate on the union tonight, but I am sure it will come up later in the Bill. However, I reiterate to the noble Lord, Lord Fox, what I said on, I think, the group before last: the General Teaching Council for Scotland will still be able to set the standards in Scotland, as it does now, and will control who can teach in Scotland. That goes back to Scotland having control over its own education system. Similarly, the noble Lord, Lord German, brought up the Welsh language. If Welsh language requirements were introduced in respect of a profession in any other way—for example, by bringing in requirements for ongoing training—it could come under the equal treatment provisions of the Bill. As such, it would be possible for the regulator to impose Welsh language requirements on professionals qualified outside Wales if equally required of professionals qualifying in Wales. So there is an equality here.
I turn to the amendments in the group, which test and attempt to change the way in which professions would be in scope of Part 3. The purpose of the professional qualification provisions in the internal market Bill is to ensure that professionals can, in most cases, access their profession in all parts of the UK, by ensuring that there is an overarching system for recognition. It is important to ensure that, regardless of future policy changes, UK-qualified professionals will be able to practise across the whole of the UK. Divergence in professional regulation between the four nations of the UK should not increase barriers for professionals living and working in different parts of the UK.
The noble Lord, Lord Fox, has sought, with his Amendment 102A, to understand whether these provisions are covered in existing UK law. Currently, while recognition of professional qualifications between the four nations can and does occur, there is no overarching framework that ensures that it happens consistently. The Bill will create this overarching framework to guarantee that recognition of qualifications between the four nations of the UK will be possible, and that barriers to access will be minimised, so that professionals are not unduly limited in where they may work.
To that end, I must oppose the process that Amendments 104 and 105 seek to establish for bringing professions within scope of the internal market provisions. The Government’s approach ensures that nearly all professions are in scope and that barriers do not emerge. In contrast with the Government’s proposals, Amendment 104 lays out a bureaucratic process for adding professions. Amendment 105 builds on Amendment 104 and seeks to ensure that only professions that are specified in regulations are caught by automatic recognition. Ultimately, these amendments would result in delays and uncertainty, preventing barriers in the internal market being addressed. This would be to the detriment of all UK professionals.
I assure noble Lords that the Government acknowledge the importance of working with each devolved authority on the implementation of this Bill and will continue to do so, as they have done throughout this process. Clause 25 already ensures that existing divergence in professional qualification requirements across the UK is outside the scope of automatic recognition, until further changes are made. This means that there are no immediate changes for relevant authorities to make in respect of access to professions.
We must ensure the smooth functioning of the internal market for professionals. I therefore hope that the noble Lord will withdraw his amendment.
Lord Fox (LD)
I thank the noble Baroness for her answer. I heard the answer she gave two groups ago, which is why I did not repeat the question; I actually asked a different question, about the status of the Act of Union. It was not I who brought it up, but the Government in their Command Paper. It having been brought up, it would be quite helpful to understand how the Government see it fitting into all this. It is a perfectly reasonable question and I hope that, perhaps in writing, I could have a perfectly reasonable answer.
The market the noble Baroness described in the Government’s eyes appears to need fixing. What is broken in professional services that this Bill is seeking to mend? If this Government had a reputation for overwhelming competence, and an ability to really get hold of things and make them better, perhaps I might understand what it is about. There are many things that this Government could focus their laser attention on; mending something that is not broken is not one of them. That said, I beg leave to withdraw the amendment.
United Kingdom Internal Market Bill
Monday 2nd November 2020
(4 years, 6 months ago)
Lords ChamberUnited Kingdom Internal Market Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 135-IV Revised fourth marshalled list for Committee - (2 Nov 2020)
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, hybrid proceedings will now resume. Some Members are here in the Chamber respecting social distancing, others are participating remotely, but all Members will be treated equally. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
I will call Members to speak in the order listed in the annexe to today’s list. Members are not permitted to intervene spontaneously. The Chair calls each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted.
During the debate on each group I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request and will call the Minister to reply each time. The groupings are binding and it will not be possible to degroup an amendment for separate debate. A Member intending to press an amendment already debated to a Division should have given notice in the debate. Leave should be given to withdraw amendments. When putting the question, I will collect voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make this clear when speaking on the group. We will now begin.
Clause 25: Other exceptions from section 22
Amendment 107
Lord Callanan
“(d) in relation to any part of the United Kingdom, the profession of patent attorney or trade mark attorney.”Member’s explanatory statement
This amendment would add patent attorney and trade mark attorney to the list of legal professions the regulation of which is excluded from Clause 22.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, Amendments 107 and 108 in my name aim to clarify the scope and application of the professional qualification clauses of the Bill. Amendment 107 adds patent attorneys and trademark attorneys to the list of legal professions excluded from the application of the automatic recognition principle in Clause 22. As well as work related to trademarks and patents, trademark and patent attorneys may carry out broader regulated legal activities which require an understanding of the underpinning legal system in the part of the UK in which they practise. Accordingly, we are bringing them into line with the other legal professions to ensure that they are not caught by the automatic recognition provisions of the Bill. These exclusions ensure that access to these professions is not affected in any way by the recognition provisions of the Bill. Part 3 will not affect how these professions are regulated, nor will it change what activities trademark and patent attorneys are able to perform.
Amendment 107A has been tabled by the noble Baroness, Lady Bowles, in response to this government amendment and seeks to probe the effects of the amendment in respect of authorised reserved legal activities under the Legal Services Act 2007. In respect of this amendment, I reassure the noble Baroness, Lady Bowles, that nothing in the recognition provisions of the Bill, or in the government amendment, changes how reserved legal activities are authorised under the Legal Services Act 2007, and her amendment is therefore unnecessary.
Amendment 108 is a technical amendment to provide clarity on the type of qualifications and experience requirements to which Clause 22 applies. It ensures that where qualification requirements are attached to specific activities, those requirements are disapplied by automatic recognition only if they apply to activities that are essential to the practice of the profession in question—in other words, if they amount to a barrier to access to the profession as a whole. This will ensure that Clause 22 does not apply to qualifications or experience requirements for activities which are not essential to the practice of the profession, such as optional service activities which professionals may choose to offer.
I recommend that government Amendments 107 and 108 be accepted, as they provide clarity on the scope and application of automatic recognition principles. I regret, however, that I am unable to support Amendment 107A, for the reasons I gave earlier. I hope that the noble Baroness will feel able not to press her amendment. I beg to move.