Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, the hybrid Grand Committee will now begin. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I ask Members in the Room to wear a face covering except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any other surfaces they may touch before and after use. If the capacity of the Committee Room is exceeded, or other safety requirements are breached, I will immediately adjourn the Committee.
A participants’ list for today’s proceedings has been published by the Government Whips’ Office, as have lists of Members who have put down their names to the amendments or expressed an interest in speaking on each group. I will call Members to speak in the order listed. 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 will invite Members, including Members in the Grand Committee Room, to email the clerk if they wish to speak after the Minister, using the Grand Committee address. I will call Members to speak in order of request and will call the Minister to reply each time.
The groupings are binding; it will not be possible to degroup an amendment for separate debate. A Member intending to move formally an amendment already debated should have given notice in the debate. Leave should be given to withdraw amendments. If a Member taking part remotely intends to oppose an amendment expected to be agreed to, they should make this clear when speaking in the group.
Medicines and Medical Devices Bill
Monday 19th October 2020
(4 years, 1 month ago)
Grand CommitteeRead Full debate Medicines and Medical Devices Act 2021 View all Medicines and Medical Devices Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 116-I Corrected Marshalled list for Grand Committee - (15 Oct 2020)
Baroness Thornton
Member’s explanatory statement
This amendment provides a sunset provision for Part 1 of the Bill requiring the Government to return with primary legislation.
Baroness Thornton (Lab)
My Lords, at last we begin the scrutiny of this important Bill.
Although we have been keen to make progress with the MMD Bill, if I might call it that, it is not at the expense of proper debate, and I am afraid we feel that some of the amendments before us today will not benefit from the contributions they deserve because of the clash with the Second Reading of the Internal Market Bill and the rules of the hybrid House, which seem to mean we lose the contributions of at least four, five or possibly six noble Lords who have either put their names to amendments or are keen to take part in our discussions today.
The procedure, if the House were sitting normally, is that noble Lords would “Box and Cox” between the Chamber and the Grand Committee. As it is, they are not allowed to do so and I put on record that either scheduling or rules need to ensure this does not happen again. I would be very grateful if the Minister and his colleagues ensured that the usual channels are aware of this. This clash will not deter those who are absent, I am sure, from making their contribution either later in Committee or on Report.
The group of amendments right at the beginning of this Bill concerns sunset provision, a time limit on delegated powers and draft consolidated legislation. As my honourable friend Alex Norris MP said at the beginning of the Committee session in the Commons,
“we should not just wave … off to secondary legislation without understanding what that might mean and whether there might be a better way to do it … The proposed arrangements allow the Secretary of State and his successors to make hundreds or more individual decisions to change our current regulatory regime into a markedly different one, one statutory instrument at a time, which I do not think is desirable.”—[Official Report, Commons, Medicines and Medical Devices Bill Committee, 8/6/20; col. 4.]
I agree with my honourable friend.
This is a skeleton Bill. Its aim is to provide the Government with powers to regulate on critical, life-and-death matters involving medicines, devices, humans and animals. It is at risk of inadequate scrutiny; it has an overreliance on delegated powers; it gives rise to potential regulatory divergence in Northern Ireland; it has a need for streamlined primary legislation, not statutory instruments; and it gives rise to concerns regarding patient and user safety.
It has to be said that the Delegated Powers and Regulatory Reform Committee and the Constitution Committee agreed with my honourable friend and us at Second Reading, and were particularly unimpressed by the delegated powers memorandum the department produced. It said:
“This is a skeleton bill containing extensive delegated powers, covering a range of significant policy matters, with few constraints on the extent of the regulatory changes that could be made using the powers. The Government has not provided the exceptional justification required for this skeleton approach. We accept that regulatory regimes in policy areas such as these require frequent adjustment, and so need to be flexible, but the Government has not made a persuasive case for conferring largely unrestricted delegated powers that can be used to rewrite the existing regulatory framework. We recognise that the existing powers to amend these complex regulatory regimes will cease to have effect on 31 December 2020 and that alternative arrangements are required. If the Government is unable to specify the principles according to which it intends to amend and supplement the existing law, the delegated powers in the Bill should be subject to sunset clauses. This would allow Parliament to scrutinise a new bill which provides sufficient detail on the policy it is being asked to approve.”
This Bill gives Ministers very broad powers indeed. We acknowledge this and are seeking full justification for them. Those are just the opening remarks from both those committees, which agreed that Clauses 1, 8 and 12 contain inappropriate delegations of power and that the Government have failed to provide sufficient justification for this part of the Bill, adopting a skeleton Bill approach, with Ministers given very wide powers indeed.
Instead of seeking to justify such powers, the Government have downplayed them by suggesting that they are like-for-like replacements for the existing powers in Section 2(2) of the 1972 Act. The delegated legislation committee found this not to be the case. The Section 2(2) power is subject to a very significant built-in constraint; it is a mechanism for transposing into UK law EU rules on medicines and medical devices that the UK is required to follow. The new powers are subject to no such constraint; they would give Ministers free rein to legislate in those areas. The Government claim that the new powers are constrained in significant ways, but the reasons found for those constraints were described as “more apparent than real”.
I suggest that over the next few weeks we need to make those constraints real, democratic and accountable, and at the same time support medicine and devices safety and supply, and promote and protect innovation and research. Given the threatening no-deal scenario which seems to be looming, it becomes even more urgent that the issues dealt with in this legislation are clear and that the routes to ensuring medicine supply, safety, research and innovation are also clear and protected, in the interests of the NHS and patients, through parliamentary accountability.
This suite of amendments aims to open that discussion. Amendment 1 in my name and that of my noble friend Lord Hunt provides a sunset clause for Part 1 of the Bill, requiring the Government to return with primary legislation. We need this to happen because it is not satisfactory or democratic to run such an important part of public policy through regulation alone. We feel that three years is a generous, sensible and reasonable amount of time. It allows for a settling in of the new regime following Brexit and time for new legislation to be framed.
Our Amendment 140 follows the advice of the two committees and ensures that there is a time limit on delegated powers.
My Amendment 116 inserts a new clause which requires the Secretary of State to publish draft consolidated legislation within two years to streamline the existing regulatory framework. It offers the Secretary of State two years of that considerable power, but asks him—it might be “her” at some point—to return in two years’ time with a comprehensive set of regulations across medicines for humans and animals, medical devices and, critically, the proposed new regime surrounding the Medicines and Healthcare products Regulatory Agency.
This would provide a chance for proper consultation across the sector, including with patient groups, industry bodies and interested companies, as well as more parliamentary scrutiny to set up the regime that we all want—a safe one, an effective one and a world-class one. It would also give us two years of life outside the European Union and would really help us to land in that place and find out how different we intend to be, certainly in this sector. I beg to move.
Lord Patel (CB) [V]
My Lords, as I had four minutes to speak on Second Reading, it is inevitable that it will take me longer to speak to my amendments in Committee. I refer to Amendments 50, 67 and 115 in my name, and am grateful to the noble Lord, Lord Kakkar, for his support.
Amendment 50 requires consolidated legislation for medicines, veterinary medicines and medical devices. Together with Amendments 67 and 115, it creates the same obligation in respect of veterinary medicine and medical devices and intends to complement a later amendment calling for the powers of this Bill to be time-limited to three years. The Bill confers an extensive range of delegated powers in relation to medicines, veterinary medicines and medical devices. The Government state that they intend the Bill to be the primary legislation in this area while providing no substantive content to the law.
The powers granted in this Bill go far beyond what is necessary or prudent. The existing regulatory regime for medicines is complex and unwieldy, running to more than four pieces of primary and secondary legislation implementing several EU directives in preparing for Brexit. This complexity is mirrored in respect of medical devices as the Bill merely grants powers to create future regulation through such statutory instruments. It does not provide a clear picture of the future shape of regulations that can be scrutinised. This adds to the existing regulatory complexity.
The lack of detail in the Bill in its current form could lead to uncertainty among stakeholders as to their obligations. There is a need for clarity, for regulatory bodies, manufacturers, patients and other end-users, which makes the case for more streamlined primary legislation. The lack of detail in the current Bill, the broad delegation of powers with no indication of the substantive content of future regulation created by them provides no clear or certain path ahead for medicines and medical devices that can be scrutinised or relied on by stakeholders. For this reason, this amendment, together with similar amendments for veterinary medicines and medical devices, requires that the Government return with consolidated legislation in due course.
I refer briefly to Amendment 115, which relates to medical devices. As with medicines, the regulation relating to medical devices is complex and unwieldy. Currently, it consists of the Medical Devices Regulations 2002, which implement three different EU directives and the Medical Devices (Amendment etc) (EU Exit) Regulations) 2019, which came into force at the end of the EU exit implementation period and runs to over 200 pages of detailed amendments. The 2019 regulations were intended to ensure that the existing medical devices regulations continue to operate correctly, once we had left the EU, but they also mirror and implement key aspects of EU regulation on medical devices, Regulation (EU) 2017/745 MDR.
The regulations were due to be implemented this year, but following the European Union withdrawal agreement, they will come into effect at the end of the transition period. The MDR was also due to be implemented during the transition period. Had it done so, it would have automatically become part of UK law. However, due to the disruptions of Covid-19, the implementation date of MDR was postponed by a year. The situation is complicated further by the ambiguous operation of the 2019 regulations in light of the postponement until the end of the transition period, much like the MDR. The 2019 regulations contain clauses which set specific dates and periods of transition between the implementation of different provisions and considerations.
I hope I have made the point that there is a need to have consolidated legislation. The current Bill will simply add to the existing body of regulations without consolidating or clarifying any of these issues. This demonstrates the need to time-limit these delegated powers and ensure that consolidation primary legislation is introduced to Parliament after three years, in order to subject any policy changes to adequate scrutiny.
Baroness Jolly (LD) [V]
My Lords, given that we are in Committee, I will not be making lengthy speeches, but I will raise what I think are the key issues in each of the groups. The amendments to the Bill relate to some of the constitutional issues. As a general rule, noble Lords do not much care for delegated powers because it is not considered good practice or procedure to give a Secretary of State carte blanche in any area. There are some areas in this Bill where the Secretary of State is being given powers that we would rather that he or she did not have.
As the Bill is skeletal and consists mostly of delegated powers, it is important and a good idea to ensure that appropriate steps are taken to set an end date on these, so sunset powers are being proposed. The noble Lords, Lord Lansley and Lord Kakkar, and the noble Baroness, Lady Thornton, have requested the Secretary of State to publish draft legislation to consolidate the legislation relating to human and veterinary medicine within three years of the Bill being enacted.
My noble friend Lord Sharkey and I have put our names to several amendments in this group. My noble friend calls for the super-affirmative procedure so that all powers given in the Bill will elapse after three years. I confess that this is the first time that I have seen that being used. The super-affirmative procedure involves an additional stage of scrutiny where Parliament considers a proposal for a statutory instrument before it is formally laid. This procedure is used for those instruments that are considered to need a particularly high level of scrutiny, which I think is certainly the case with this Bill.
Some of the amendments call for consolidation within three years, but in general what we are saying to the Minister is that there are not enough checks and balances. Please use the time between now and Report stage to look again, speak to Members of the Committee and bring forward government amendments—otherwise, I suspect that we may be voting on Report.
Lord Hunt of Kings Heath (Lab)
My Lords, I have added my name to Amendments 1 and 140 tabled in the name of my noble friend Lady Thornton. As we are at the start of the Committee stage, perhaps I may remind the House of my membership of the board of the General Medical Council and my role as president of GS1 and the Health Care Supply Association.
I agree with my noble friend Lady Thornton about the clash between the first day of the Committee stage of this Bill and the Second Reading of the United Kingdom Internal Market Bill in the main Chamber. Today we are dealing with some of the most important debates in the whole Bill and when we come back on Report there will be a need to give more time to allow those people who could not be present today to make a full contribution to these debates. I hope that the usual channels will take that away. I am not quite sure about the procedure in these unusual circumstances, but in normal times I would have asked that the Committee stage procedure be used for these introductory debates on Report in order to allow for interventions. However, since interventions are now limited, that may not run well, although I think that noble Lords will understand what I am getting at.
This is an important Bill on patient safety and the health of our life sciences sector. It is striking in its brevity and in the extensive powers to be given to Ministers. The noble Lord, Lord Patel, has spelled out the wide range of delegated powers contained in the Bill, while a pungent analysis by my local university, the University of Birmingham, points out that, while delegated powers may be needed to ensure responsiveness in the EU exit transition period and to meet the challenges of technological change, they should not be used indefinitely or relied on to implement matters of policy. I am not going to repeat what the Delegated Powers Committee or the House of Lords Select Committee on the Constitution have said, but it is rare for two Select Committees to comment at the same time and in such a critical way about the skeletal nature of a Bill. It is to be hoped that the Government will listen carefully to what is being said.
At Second Reading, the Minister suggested that the sunset clause as proposed by my noble friend would emasculate legislation
“meant to give regulators the powers to be effective and to future-proof medical regulation in a fast-changing industry for many years to come. We must understand the impact on an industry that needs regulatory certainty or else, as many noble Lords have noted, will move elsewhere.”—[Official Report, 2/9/20; col. 433.]
I have to say to the Minister that most of the regulatory uncertainty has been caused by the Government’s failure to be clear about what regulatory regime they want for medicines and medical devices. They have now had four years to think about this and we are still nowhere near knowing what regulatory system they want to put in place. Are they going to go for alignment with the European Medicines Agency or do they want to strike out on their own? Do they want to ally with the US FDA? What on earth are the Government’s aims? The industry is at risk because of this huge uncertainty. The idea that we should allow the Government willy-nilly to get this Bill through and make whatever changes they want without the House treating it as primary legislation simply will not wash. I am absolutely convinced that the long-term regulatory system must be subject to detailed primary legislation. As far as I can see, the amendment to bring in a sunset clause is probably the most appropriate vehicle to ensure that that happens.
Lord Kakkar (CB) [V]
My Lords, in contributing to the first day in Committee on this Bill, I draw the attention of noble Lords to my registered interests, in particular to those as a professor of surgery at University College London and as the chairman of UCLPartners.
I support Amendments 50, 67 and 115 tabled in the name of my noble friend Lord Patel, to which I have added my name. The point has been well made by my noble friend that the ecosystem for the delivery of healthcare in our country and therefore the use of medicinal products, medical devices and veterinary medicines is a complex one that is attended by substantial legislation, much of which has been brought into force as a result of the European Communities Act 1972. It is therefore absolutely right, to echo a point made previously by the Minister, that there is a need for this Bill to ensure that such regulation can continue, so that we can continue to have a safe and effective healthcare system and take advantage of the essential requirement to avail ourselves of medicinal products and medical devices.
There is surely also an absolute obligation to ensure that regulation should avoid adding to the complexity that already exists. For those who have to labour under these regulations and ensure that they can present innovation and advances to benefit our fellow citizens within the context of the regulations, we should always be working to simplify them.
In this regard, we are all conscious of the fact that many different types of regulations touch on the healthcare system. There are those that pertain to ethics, and those that deal with the function and delivery of ethics committees and the evaluation of intervention at a local and national level. We have regulations that deal with the adoption and evaluation of innovation within the context of the MHRA, and with the evaluation of intervention and innovation pertaining to NICE. We have heard from the noble Lord, Lord Patel, about the medical device regulations enacted in 2002, which codify and implement various EU directives in this matter, and the substantial amendment attending medical device regulations in terms of the legislation passed as part of EU exit regulations in 2019.
Lord Lansley (Con)
My Lords, I am grateful for the opportunity to speak on this group of amendments. May I, however, begin by seeking clarity about the grouping of the amendments? Amendment 116 is also to be found in the eighth group and is more appropriately to be found there. It is my amendment; I know where it should sit properly. It does not belong in this group and is not relevant to this subject. However, I think the Marshalled List should list Amendment 116 in the name of the noble Baroness, Lady Thornton, who raises what is effectively the sunset issue in that amendment. The noble Lord, Lord Patel, who I always think of as a friend, referred to his Amendment 141, which is not listed in the grouping but should be here; Amendment 142 is listed in group five and also should be here. With those two changes, I think that we are talking about the right group.
I could stop now, but I will be quick and refer to just two things. First, as a former Leader of the House of Commons, responsible for the legislative programme, I view with deep unhappiness the idea of attaching three-year sunset clauses to all the legislation we put through the House. If we start down that path, we will never introduce new legislation but will constantly be revisiting old legislation and trying to renew it. There is an argument about the nature of this Bill but it is an argument I am proposing to have when we debate the next group of amendments. It is skeletal, and there are things we can do to make the power not only clearer in its purposes but much more accountable if used. So, I am against the sunset clause.
My other point relates to Amendments 50, 67 and 115 in the names of the noble Lords, Lord Patel and Lord Kakkar. I have great sympathy with these. I think it was the noble Lord, Lord Patel, who referred to the consolidation of human medicines regulations in 2011 or 2012. There is a great deal to be said for the regular consolidation of legislation to make it more accessible. I do not regard consolidation as a purely technical legal exercise; it should always be used as an opportunity to simplify and clarify. It is not, in my view, sufficient to say, as I think Ministers might well reasonably do, “We consolidated human medicines legislation and we will continue to keep the regulations in as clear a form as we can”. From time to time, there is a purpose in coming back to primary legislation and looking for clarity and consolidation. That is often what we use the Law Commission to do, because it has particular expertise in this area. It may be inappropriate to do so at this stage for human medicines because of the necessity of making the regulations and of transposing former EU regulations and directives into UK law. It is perfectly reasonable for that to happen over some period of time, but I hope that Ministers will consider that.
Where medical devices are concerned, there may be a better argument. The noble Lord, Lord Patel, was quite right—navigating medical devices legislation is, if anything, harder than navigating human or veterinary medicines legislation. There is a lot to be said for finding the consolidation instrument for medical devices regulation, once we know what it looks like and we have brought it into force. My friends the noble Lords, Lord Patel and Kakkar, are on to something; I just do not think that new primary legislation within three years is the route. However, for Ministers to recognise the value of consolidating instruments including, from time to time, consolidating primary legislation is certainly desirable.
Baroness Walmsley (LD) [V]
My Lords, I support the attempts in this group to put a sunset clause into the Bill. I have a great deal of sympathy with the demands of the noble Lord, Lord Patel, for consolidation. It is vital that through these amendments and others to later clauses, we are able to review the use of the Bill’s powers by this failed Government, who have made so many mistakes. A Government who cannot even secure the free trade agreement that was supposed to be the easiest thing ever, who disastrously and expensively have not produced the promised world-beating test and trace system and who have presided over one of the worst rate of Covid-19 deaths in Europe due to their dithering and failure to put health first, must have their powers fettered. But, as has been said, this is a skeleton Bill and gives the Government extensive powers with little ability for Parliament to intervene.
A lot is changing. The Brexit transition phase is coming to an end in a couple of months. We have learned many lessons from Covid-19, which should be implemented. The NICE review is coming up, and every month new medicines and therapies are coming on to the market. It would be folly not to have a sunset clause in the Bill. I therefore support what was said by my noble friends Lady Jolly and Lady Thornton, and urge the Government to consider, in all humility, that in two or three years’ time they may not be in power, and the whole landscape will have changed. It is therefore essential that we have an opportunity to review how the powers in the Bill have been used to change things, especially if all has not gone well.
Lord O'Shaughnessy (Con)
My Lords, I point out to noble Lords my interests as set out in the register. On Second Reading, when taking a somewhat unfashionable stance in defence of the delegated powers, I said that I was not going to die on that hill again—but, to mix my metaphors, I have been drawn, like a moth to a flame, back into this argument.
I want to make two brief points. The first has been perfectly well made already by my noble friend Lord Lansley, and is about the sheer impracticality of sunsetting legislation. Committing to an arbitrary deadline of that kind is not something that any Government could responsibly do, particularly at this time, and given the uncertainty that has already been discussed.
The second point is that many of the criticisms raised by the Delegated Powers and Regulatory Reform Committee and by the Constitution Committee have been dealt with, to some extent, by changes that the Minister, my noble friend Lord Bethell, has proposed to the affirmative procedure, which we are not discussing today. It is therefore worth recognising the progress that the Government have already made to try to meet those concerns, which were set out so well by the noble Baroness, Lady Thornton, and others, about the powers being given to the Government.
Again echoing my noble friend Lord Lansley, I would say that if we were to go down that route, the amendments tabled by the noble Lord, Lord Patel, represent the right approach, which is to commit not to a sunset clause, with all the cliff edges that that would involve, but to providing draft consolidated legislation. There is a good case in its own right for doing that, particularly in the circumstances. Like my noble friend Lord Lansley, I encourage my noble friend the Minister to look seriously at that idea.
Lord Sharkey (LD) [V]
My Lords, we have Amendment 139 in this group. It would require all the delegated powers in the Bill to expire on the third anniversary of its passing. We chose the three-year time limit because that had been discussed in the Commons. But, having heard what other noble Lords have said on the issue of expiry, I am persuaded that two years may be more appropriate, as the noble Baroness, Lady Thornton, has argued, given the wide-ranging and carte-blanche nature of the delegated powers. I am also persuaded that a sunset provision is absolutely necessary.
As many noble Lords noted on Second Reading, this is a skeleton Bill. It contains no, or very little, policy, and allows policy to be made by secondary legislation. This clearly avoids meaningful parliamentary scrutiny, and is a direct and flagrant abuse of the delegated powers system.
In its 16th report of the 2017-19 Session, The Legislative Process: The Delegation of Powers, our Constitution Committee noted that the Government had designated
“functions for which delegated powers may be appropriate”.
These included
“providing for the technical implementation of a policy; filling in detail that may need to be updated frequently or is otherwise subject to change; and accommodating cases where the detailed policy has to work differently in different circumstances. Such purposes constitute reasonable uses of delegated powers.”
The Constitution Committee’s view of all this was clear. It considered the use of delegated legislation to formulate policy, or to create new criminal offences or public bodies, to be “constitutionally unacceptable.”
The Delegated Powers and Regulatory Reform Committee, in its recent report on the Bill, points out that the Government say nothing about why it would not be appropriate to have aspects of the regulatory regimes which are not detailed or technical on the face of the Bill, combined with more focused delegated powers to fill in the detail. This is still the case.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)
My Lords, I thank all those involved in this first group; indeed, they are the team who, I feel, are likely to be walking with us through a great many groups of amendments. I enormously regret the fact that some noble Lords are unable to make this session, but I thank the usual channels for their efforts in the challenging process of trying to programme the hybrid House, and for finding time for this session, and for the Bill, in a packed programme.
We are starting with one of the most important groups of amendments, which address the principles behind the Bill. I believe that is the purpose of Amendment 1, in the name of the noble Baroness, Lady Thornton, and also her Amendment 140, Amendment 139, in the names of the noble Lord, Lord Sharkey, and the noble Baroness, Lady Jolly, and Amendments 50, 67, 115 and 141, in the name of the noble Lord, Lord Patel.
Although there is some variation in the specific effects of the amendments—such as which clauses they amend and which clauses come under their scope—they all look ahead towards drawing a line under the Bill, whether that be through a sunset clause or by asking the Government to return with consolidated legislation.
I emphatically believe in the Bill. I have listened to the criticisms of the Delegated Powers and Regulatory Reform Committee, and noted the comments of the noble Baroness, Lady Thornton, and the noble Lord, Lord Patel. Those points have been powerfully made in the report, on Second Reading and here today.
I know that the report may have inspired some of these amendments, because the committee considered sunsetting the Bill to be an appropriate response—but only if the Bill had remained as previously drafted. However, as your Lordships know, I have engaged extensively with noble Lords on these matters, and have tabled many amendments to address the specific concerns that we are debating today.
A sunset clause, reviewing these matters again in two or three years’ time, will not change the very good reasons why delegated powers are necessary. It would be an unhelpful precedent, which could lead to a rolling review of all legislation. My noble friend Lord Lansley, a former Leader of the House of Commons, and my predecessor, my noble friend Lord O’Shaughnessy, both made that point very powerfully.
The noble Lord, Lord Patel, is right to say that clarity is important, but that will come through consultation. As I respond to this point, and to my noble friend Lord O’Shaughnessy and to the noble Lord, Lord Sharkey, it is worth remembering that we have published six illustrative SIs—so it is not true that we have provided no examples of how the powers could be used. I want to ponder on this well-made thought, and give further thought to how we might go further. It is hard to see how sunsetting the whole Bill would bring additional clarity to the situation.
Returning to first principles, particularly patient safety, we need to react quickly and effectively to harm. Taking swift action, such as making changes to how medicines can be administered in the community—as we are doing in relation to the Covid vaccine—is absolutely necessary when the situation requires it. So sunsetting Clauses 1 and 12 would mean also sunsetting Clauses 6 and 15. We would have no emergency provision at all until that could be replaced—a regulatory cliff edge that I would find difficult to explain to patients who needed that flexibility to get the necessary treatment.
Harm can be also significant and require more fundamental regulatory change. The report of the noble Baroness, Lady Cumberlege, suggests that the system has been slow to move and respond, and that patients have not been heard. We cannot predict or pre-empt every risk of patient harm that will emerge. Patient safety cannot wait for primary legislation. When new measures have been introduced—such as databases of medical devices under Clause 16—I cannot think why we would want to go backwards. Saying that we should no longer be able to track and trace patients, nor be able to update the data types that should be recorded to protect patients, does not make sense. Using measures in the Bill such as the information system in Clause 16, we will do better for UK patients. This is not only what the Government want but what patients want. I hope that such a system will mean that the Government will know which patients have been affected by which specific device so that they can avert problems in future.
Secondly, the changes range on a scale from significant to relatively minor, for which primary legislation would be inappropriate. For instance, changing labelling to include pictograms is not a matter that needs to wait for a future Bill.
Thirdly, this is a modern and fast-changing industry, as the noble Lords, Lord Hunt and Lord Kakkar, put it so well. In two or three years’ time, we may still need to preserve our ability to amend and update regulations. We will need to provide confidence to businesses, patients and other parties that the statute book will keep pace with change. While much will be said on the attractiveness of the UK, this is a very real issue.
In response to the comments of the noble Baroness, Lady Thornton, on the benefits of a new round of consultation, perhaps even more serious is the fact that two or three years is simply not enough time for all the regulatory changes to take place—especially when we are obligated to consult all the people that noble Lords will identify when we come to that debate. Bills take time. This Bill was announced last year and was introduced in February. We are not there yet. We simply did not have enough time to judge its efficacy before we had to write it again.
On noble Lords’ amendments seeking to consolidate the legislation made in under three years, I say this: the Human Medicines Regulations were the consequence of a consolidation exercise. The Medicines Act 1968 was originally the method for regulating the way in which medicines were licensed for use in the UK. However, a number of changes were made over the years through regulations, which Parliament approved, to regulate medicines under that Act better. As such, the Human Medicines Regulations were meant to provide exactly what the noble Lord, Lord Patel, asked for: streamlined legislation that places regulatory matters in a single set of regulations.
Nor was there a lack of consultation on this approach. At the time, the MHRA took action to draw on stakeholder views and a formal consultation was run in late 2010. Parliament considered it appropriate to redirect into secondary legislation regulatory matters that required frequent changes to respond to potential safety concerns or changes in how medicines might be produced. The MHRA indicated that, should further consolidation be needed, this could be revisited. The noble Lord asked me whether there are ways of considering consolidation in the future. I must listen to him but, again, I say that three years is not a very long time at all for regulatory changes.
We recently published guidance for businesses that sets out the expected arrangements for the end of the transition period, in order to provide enough time to bring forward a standalone regulatory system and give businesses time to comply. That period of standstill will run for two and a half years; in that context, it is unlikely that, in the space of two years, there will be regulatory change that is so significant that it requires consolidation.
If your Lordships seek assurance on the visibility of how the Government will make regulations, or if your Lordships are asking me to specify our plans for how quickly we might move to the current regulations inherited from the EU, let me say this: we do not intend to make changes for the sake of it. We will do what is in the UK’s best interests. Whether our choices mean that our regulatory framework is similar to or different from regulations made by the EU does not change that approach. Regulations, rather than primary legislation, are the appropriate vehicle to protect patients best. Changes will be made subject to public consultation, and the amendment that I have tabled—on reporting obligations—will enable Parliament to consider and reflect on the Government’s use of powers in plans.
I am listening. I have proposed changes to improve the Bill—we will come to those later, having reflected on the debate—but I will face a real challenge in the new year as a result of the gap that will open up at the beginning of January if this Bill is not finished by then. I would not want to put in my place another Minister for Innovation who might also need swift regulatory change for UK patients, whether that is getting medicines approved quickly or changing who can administer them.
I hope that the noble Baroness has heard enough to reassure her and that she feels able to withdraw Amendment 1. I hope that other noble Lords with amendments in this group do not feel the need to move them.
The Deputy Chairman of Committees (Lord Lexden) (Con)
I have received a request to speak after the Minister from the noble Lord, Lord Patel.
Lord Patel (CB) [V]
My Lords, I am grateful to the Minister for his response and, to a degree, his assurance that he is at least prepared to look at ways to consolidate the legislation. I do not accept his point about time. We are not asking that this Bill be held up; we are asking that the Government consider over the next three years bringing in legislation to consolidate the current legislation.
I am also grateful to the noble Lords, Lord Lansley and Lord O’Shaughnessy—both of whom are experienced in dealing with matters related to medicine in their own right—for their comments and support. I hope that, in the debate on the next group of amendments, the Minister will confirm in a more tangible way how he will address this issue because when we discuss those amendments, we will have an opportunity to come back to what he has said about the government amendments.
Lord Bethell (Con)
My Lords, I hear the noble Lord, Lord Patel, very clearly. The arguments that he made during our conversations and engagement earlier were powerful. The comments made by my noble friends Lord Lansley and Lord O’Shaughnessy, one of whom is my predecessor and one of whom is a former Health Secretary, were also extremely persuasive.
The Government do not think that putting consolidation in the Bill is wise, but we hear the points made by the noble Lord, Lord Patel, loud and clear. We would definitely consider this matter at a future date if the arguments made were persuasive and agreeable.
Baroness Thornton (Lab)
My Lords, I thank all noble Lords who took part in this preliminary and important debate on the Bill.
The noble Lord, Lord Patel, made an important point concerning primary legislation after three years. The Minister seemed to suggest that three years is not long enough. That cannot be right; three years is certainly long enough. Without the principles and policy that my noble friend Lord Hunt spoke about, rule by regulation is not only inadequate but probably quite dangerous. That lies at the heart of this group of amendments.
The noble Lord, Lord Kakkar, made the important point that we have a well-designed regulatory framework in the UK; this amendment is not about disrupting that. He also said that the Bill should be about improving the framework; that is exactly right.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, a short adjournment has been requested by the Government. The Committee will adjourn for 15 minutes.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, we now come to the group beginning with Amendment 2. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during debate.
Amendment 2
Lord Bethell
“(1A) The appropriate authority may only make regulations under subsection (1) if satisfied that they would promote the health and safety of the public.”
Member’s explanatory statement
This amendment provides that the appropriate authority may only make regulations under subsection (1) of Clause 1 if satisfied that they would promote the health and safety of the public.
Lord Bethell (Con)
My Lords, Amendments 2, 7, 51, 54, 56, 68 and 72 are a package intended to respond to the comments made at Second Reading and the consideration of the Bill by your Lordships’ Delegated Powers and Regulatory Reform Committee and the Constitution Committee.
I have said at both the Dispatch Box on Second Reading and in meetings with a number of noble Lords that I am listening and ready to make improvements to the Bill where they are necessary. I am ready to provide reassurance about how the powers are intended to be exercised. Amendments 2 and 68 would require that regulations may be made only if the appropriate authority is satisfied that the regulations promote the health and safety of the public. A number of noble Lords spoke in favour of clarity regarding how the considerations applied in making regulations and whether the first consideration—that of safety—had primacy. This was a point made by the noble Baronesses, Lady Barker, Lady Andrews and Lady Walmsley, and by the noble and learned Lord, Lord Woolf. Their remarks on how the Government could improve the nature of the framework Bill were ones that I paid particularly close attention to. In making legislation, there is a delicate balance between making it absolutely clear that regulatory change will not be made that is contrary to promoting the health of the public and not binding the Government so completely that necessary regulatory change that is not explicitly for the purpose of promoting the health of the public is not possible. This amendment seeks to provide that comfort: that the Government’s making of regulations must satisfy that obligation.
Amendment 51, on veterinary medicines, is drafted differently to reflect the specific circumstances of how veterinary medicines are made. For example, a medicine that might be suited to the health of an animal might unhelpfully contribute to antimicrobial resistance in humans. An overarching requirement to be satisfied that regulatory change promotes the safety of animals, without reflecting that we must also consider the safety of animals as food products in the food chain, would have inadvertent consequences. Amendments 7, 54, 56 and 72 are consequential to these.
I have considered carefully the alternative constructions tabled by your Lordships. I wanted to demonstrate our absolute commitment to patients’ health and safety that is at the heart of this Bill. My noble friend Lady Cumberlege’s report has highlighted the importance of this.
My amendments do not fetter our ability to make good regulations that will enable the development of new medicines and devices in the UK and ensure the availability of those medicines. But, in doing so, the requirement to be satisfied will protect against the inadvertent impact on the health of the public. This will answer the requirement to make it clear how the Bill is a framework Bill, as opposed to a skeleton Bill, providing that test against which regulations can be measured.
I hope that these amendments provide assurance not only to those in this House who sit on the Delegated Powers and Regulatory Reform Committee and the Constitution Committee but to others who are keen to see the Government reflect my noble friend’s recommendation that patient safety be put first. I beg to move.
Lord Lansley (Con)
My Lords, I am glad to have this opportunity to speak to my Amendment 5 and to Amendments 70 and 76 in this group. I am particularly grateful to the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Jolly, for putting their names to Amendment 5. As the Minister rightly said, he set out to respond in government Amendment 2 to the remarks of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee. We discussed this a lot at Second Reading. The essence of the argument that I among other noble Lords made was that the Bill was a skeleton, the skeleton approach was criticised by the Delegated Powers Committee and we needed to move it from a skeleton to a framework by making it clear that the power to make regulations is for a purpose. The noble and learned Lord, Lord Woolf, and I set out to do that in our amendment: to express a purpose rather than have a power that essentially had no test other than whether the Secretary of State had had regard to certain factors—there was no objective test that could be examined, because it is very easy for Ministers to say that they have had regard to something.
Why did we have the objective of safeguarding public health? The relevant EU regulation, which is the EU human medicines directive 2001/83/EC, as amended, says at what is essentially its first article:
“The essential aim of any rules governing the production, distribution and use of medicinal products must be to safeguard public health.”
Therefore, rather than invent our own purpose, we thought that the starting point for the legislation should be to reflect the same objective as incorporated into the regulation-making power up to now. The Minister may well say, “But the EU regulation is not only based on the public health treaty objective but on the internal market objective”. However, Article 3 of the EU regulation, which follows that, is quite clear:
“However, this objective must be attained by means which will not hinder the development of the pharmaceutical industry or trade in medicinal products within the Community.”
Therefore, the other legal bases, if anything, tend to act alongside and be balanced with the original treaty objective, which is to safeguard public health. It seems that there is therefore nothing inherently wrong in our own power to set out the objective, which is to safeguard public health, and then to set alongside it in the subsequent subsection the other considerations to which the Secretary of State must have regard. We will go on to discuss those, but they include the safety of human medicines, the attractiveness of the UK as a place to conduct clinical trials, and so on.
This is the test: why are we moving from the current legislative basis to a new one? What is inherently better in saying that Ministers must be satisfied that they will promote the health and safety of the people and in what sense is that different from safeguarding public health? Noble Lords might well say, “You have won—you put your amendment down and the Minister has put government Amendment 2 down, and they say more or less the same thing”. We submit that they do not quite say the same thing, since the government amendment’s construction is that the Secretary of State “must be satisfied that”. Our construction is that it
“must have the objective of”.
I am not qualified to say any more about this matter; I will leave that to my noble friend in this regard, the noble and learned Lord, Lord Woolf. An objective test should be expressed in the legislation in objective terms, not in subjective terms of whether the Secretary of State is satisfied.
Amendment 70 does a similar thing in relation to medical devices. Amendment 76 begs the question: is the safety of a medical device to be assessed in the absence of knowing its therapeutic use? It may well be that the answer is that assessing the safety of a medical device must necessarily consist not only of the approval process but of understanding its use in therapeutic settings. If the answer is that that will necessarily be the case and if Clause 12 of the Bill means that anyway, I am perfectly happy to accept that. However, I am looking for an assurance from the Minister that that is what Clause 7 means: safety of a medical device is not simply through its approval processes but through understanding in the approval process how it will be used in therapeutic practice.
In conclusion, from what I have said we do not think that government Amendment 2 is better than our Amendment 5. However, government Amendment 2 is clearly better than what is in the Bill at the moment, because it gives us a purpose for which the regulation-making power is to be used. I make a plea to noble Lords. At this stage, in Committee, I would far rather change the Bill by accepting the government amendment and its sequelae, as we would say, and therefore send the Bill to Report in at least a form that one Front Bench agrees with than not change the Bill and have to have this same debate all over again on Report. We might have the same debate, but it would clarify for the benefit of noble Lords on Report if at least the Bill has moved from where it has been to show how the Government are seeking to meet the objectives set out at Second Reading and by the Delegated Powers Committee so that we can look at it again properly on Report. I of course reserve my position and that of my noble friends whose names are attached to this amendment, as we might well want to come back to the issue on Report and say that our formulation with an objective test is better than the subjective test that government Amendment 2 implies.
Lord Woolf (CB) [V]
I am most grateful to the noble Lord, Lord Lansley, for setting out the position we are in with such clarity. I will add just a few words to explain my involvement. It has already been pointed out that not many of my legal friends who I would expect to be concerned about this are present in Committee today. I am sure that the ones who one thinks of are busily engaged in the Chamber over a different piece of legislation which is causing them greater concern than the proposal here, although I believe that they would not disagree with my comments.
In this House, we naturally think as parliamentarians and are concerned about our process of scrutinising legislation, but bad legislation all too frequently ends up not being disputed in this House. That is not the end of the matter, however: the difficulties it creates then have subsequently to be sorted out, which is frequently done by judicial review in the courts. What the noble Lord, Lord Lansley, has said so well is very relevant to judicial review, and that is an area where I feel that, just as the doctors can comment about this Bill with a certain background of knowledge, I should refer to my entries in the register, which, at least with regard to judicial review, are quite important.
If the courts are to provide scrutiny at a later stage, they must know the purpose of the legislation. That is why what the noble Lord, Lord Lansley, has already said is so important. With blank cheques, the danger is that they can be used for all sorts of purposes. I have been trying, under the leadership of the noble Lord, to ensure that the blank cheques given by this legislation are as restricted as they can practically be, bearing in mind the situation in which we find ourselves.
I agree with what the noble Lord said about the amendments with regard to the present proposals. On the one hand, there is the proposal put forward by the Government; on the other is the proposal that the noble Lord, Lord Lansley, and I have suggested might be appropriate. My view, for the reason he indicated, is that our proposal is better, but, above all, I am attracted by the fact that what the Government are proposing is much better than what was there before. On that basis, with a degree of reluctance, I would be capable of being persuaded that we should accept what the Government offer, whereas I am quite satisfied that we should not have accepted what was there before.
Leaving the matter in that way, I hope that the further discussion which will no doubt take place will enable agreement to be reached on an amendment which achieves what is needed for the purposes I have indicated.
Lord Hunt of Kings Heath (Lab)
My Lords, I am glad that the Minister said that he was listening, and his amendments are important, particularly the one that makes the principle of the health and safety of the public the key consideration when making regulations under the parts of the Bill relating to human medicines and medical devices. He will be aware that concern was expressed by patient groups, in particular, about the Bill as originally drafted and the implication of the attractiveness provision. That concern takes us back to our first debate on “whither regulation in future”.
If we are not going to be aligned to the European Medicines Agency and are to plough it alone, the UK pharma industry will be at a huge disadvantage unless the Government offer an incentive. It may be a bung—the debate about state aid is very relevant to that—or much faster regulation. Otherwise, it is very difficult to see why the industry would continue to invest in R&D in this country. Its position could be as vulnerable as is the motor car industry as a result of the bumbling ineptitude of the Government in their Brexit so-called negotiation.
It is not far-fetched, it is a legitimate question to ask what on earth the Government really want from medicines and medical devices regulation. They may have issued all sorts of draft regulations, but we are clueless about what they are actually seeking to do. The MHRA is clearly not allowed to talk to anybody about this. I remember when the MHRA would talk to politicians and debate these things. It has clearly been given an instruction not to talk to anyone. We are absolutely clueless about the future direction of regulation. None the less, the amendments are clearly helpful, and no doubt we will consider them between Committee and Report.
I would, however, like to ask the Minister about Amendment 2 and its relevance to Northern Ireland. I understand that, exceptionally, it will be moved in Grand Committee because legislative consent takes three months to get through, which impacts on the Bill’s process. I understand that, but, as Parts 1 and 2 of the Bill affect Northern Ireland, does that similarly affect any amendment to Part 1 or 2 passed on Report? What is then the impact on Northern Ireland legislation?
Overall, however, most of the amendments are a constructive improvement, but we will obviously consider them further between now and Report.
Baroness Barker (LD)
My Lords, we must consider the whole Bill as building the foundations for the future of the medicines and pharmaceutical industry in this country. We do so in the knowledge that we have had a perhaps pre-eminent role in the world in pharmaceutical development because of the coming together of a number of factors—the European medicines regulations and all the conventions to which we are party, plus the existence of the NHS and the potential it offers for clinical research and our long tradition of working in the life sciences and biosciences sector.
The Minister definitely listened at Second Reading to the many voices of concern that perceived the Bill as it came to us as a weakening of the many factors that underpin our success in this area. He understood entirely, I think, that if we were to take away the pre-eminence of the health and safety of the industry, we would fatally undermine the whole basis of the construction of this very important sector for our economy.
The Minister has listened but not quite hard enough. I agree with the noble Lord, Lord Lansley, that Amendment 2 is an improvement, but it still leaves the decision-making on whether something promotes health and safety to the Secretary of State. I much prefer the construction in Amendment 5, to which my noble friend Lady Jolly has added her name.
My main concern in this group is with Amendment 51 on regulation for veterinary medicines. In his introduction, the Minister pointed to the fact that medicines for animals can work back into the food chain and to humans. I understand the interplay between taking into account things that are done to improve human well-being, animal well-being and the environment, but he will understand that, when people see the amendments, it will not be immediately apparent to them that human welfare is pre-eminent in the list. It says that the regulations must promote “one or more” of the three. I agree that the Minister has moved on the first set of amendments, but he has not gone anywhere near far enough on the regulations on veterinary medicines, so we may well need to come back to that at a later stage.
Lord Patel (CB) [V]
My Lords, before I start, I should point out that someone is typing with their microphone on, which interferes with the sound, so would they mind turning it off?
The noble and learned Lord, Lord Woolf, said that other legal Members of your Lordships’ House were not able to be present today. That is a pity, because I thought that I had amassed a good legal team in the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Judge, to support some of my amendments. I wonder what comments they might have made on what the noble and learned Lord, Lord Woolf, said.
I find myself in support of what the noble Lord, Lord Lansley, said. I would be interested to hear the Minister’s response to the question whether market approval of a device also means that it has therapeutic approval. I know that the noble Lord, Lord Kakkar, has an amendment on the therapeutic values of devices.
I do not find myself in total agreement with what the Government have produced and I do not think that Amendment 2 is satisfactory. Let me try to explain and we will see what the comments are. The amendments are about promoting public safety and insert into Clauses 1, 8 and 12 a new subsection (1A), so that the Secretary of State may only make regulations under those clauses where
“satisfied that they would promote the health and safety of the public.”
However, this is coupled with the insertion of the words “considering whether they would” to replace the start of subsection (2) in each clause. That means that, in the decision on whether the regulations would promote the health and safety of the public, the appropriate authority must have regard to the safety of medicines—or veterinary medicines or medical devices—their availability and the
“attractiveness of the relevant part of the UK as a place”
to conduct clinical trials or supply medicines, or develop or supply veterinary medicines or medical devices. That would be the effect of the amendments. That construction is open to the interpretation that the “attractiveness” of the UK is to be treated as part of what promotes public safety; the Minister might want to comment on that. If so, the amendment would not address the concern—indeed, it would appear to prevent the argument being made—that attractiveness and the safety of medicines and medical devices can sometimes be in conflict and that considerations of attractiveness undermine considerations of safety. This is in line with the Government’s repeated assertion that attractiveness cannot be in conflict with safety. In essence, the amendment appears to make little substantive change.
Lord O'Shaughnessy (Con)
My Lords, my only intention in speaking on this group is to ask a question. Given the flag raised by my noble friend Lord Lansley in his Amendment 76, I am glad that I am not the only one with the question, which is whether the concept of medical devices inherently includes their therapeutic usage. My understanding is that they are regulated as medical devices, not simply devices, and therefore the way in which we regulate and risk-stratify them as we regulate them inherently includes therapeutic use. The fact that my noble friend raised the question in his amendment made me slightly worried, so I seek the Minister’s reassurance on that point.
I have also become aware during this discussion of another issue worth considering. There has been some debate about the appropriateness of government amendments being approved in Committee. I concur with the view of my noble friend Lord Lansley that a Bill on which only half the Front Benchers agree is better than one on which none agree. I have been in my noble friend’s shoes and have been frustrated, as I know noble Lords opposite have been, by the need to stick to concession strategies, holding back concessions and amendments until Report. I do not agree with that approach. My noble friend has done absolutely the right thing in bringing forward amendments at the earliest possible opportunity, however imperfect they are. The problem with leaving everything to Report is that it is an all-or-nothing approach, as we do not tend to amend at Third Reading, whereas this potentially leaves open the iterative approach that I would like to see more of. Maybe my noble friend has even set a precedent, heaven forbid, in doing this. We would all welcome it as giving more than one opportunity to improve legislation, on Report. I hope that we can agree the government amendments because, as everyone has said, they are an improvement on where we were and we would have another opportunity, if the House felt it necessary, to improve them further on Report.
Baroness Walmsley (LD) [V]
My Lords, I support Amendment 5, which would insert the words
“objective of safeguarding public health by promoting the availability and supply of human medicines”.
While the purpose of the Bill is to bring some sort of order out of the chaos of Brexit, it is vital that we put those words up front. In the first words on page 1, before Clause 1, the purpose of the Bill is described as
“the protection of health and safety, in relation to medical devices”.
Why does it not say, “in relation to medicines and medical devices”? That is why we need Amendment 5.
Government Amendments 2 and 7 are weak, in my view. For example, the words “promote health and safety” in Amendment 2 and “considering whether they would” in Amendments 7 and 72 are well meaning and better than the original but, I dare to say, legally useless.
The word “promote” also appears in government Amendment 68. In contrast, the noble Lord, Lord Lansley, and the noble and learned Lord, Lord Woolf, use the much stronger word “safeguard” in their Amendment 70, which I support. I also support their probing amendment for clarification in Amendment 76 that therapeutic practice is also included. I will be interested to hear whether the Minister can explain whether this is needed or, perhaps, not.
Lord Kakkar (CB) [V]
My Lords, I support Amendments 5 and 70 in the names of the noble Lord, Lord Lansley, and the noble and learned Lord, Lord Woolf. I seek further clarification on the Government’s purpose regarding the amendments proposed by the Minister.
First, what is the rationale for moving away from the current basis on which regulations in this regard exist, which states the purpose of safeguarding public health? Why do the Government not think that appropriate as the basis for legislation for medicines and medical devices? It has been the basis on which regulations have previously existed in domestic legislation and it seems counterintuitive to move away from that purpose, as so clearly explained by the noble Lord, Lord Lansley.
Secondly, there is this question of whether there should be an objective or a subjective test attending the purpose of legislation, all parties having agreed that it is of benefit to move away from simply having a power to clearly defining a purpose. There has been considerable debate and discussion about what is considered the frequent use of judicial review now and how in some way it undermines the position of Parliament and is less than helpful more generally in our country. It seems therefore intuitive for a Government who have concerns about what is sometimes considered excessive use of judicial review to try to provide legislation that would make it less necessary and less frequently turned to.
The noble and learned Lord, Lord Woolf, made the point that clarity is essential. Surely an element of clarity would be to have in place an objective test—to safeguard public health—rather than, as currently, merely being “satisfied”. The need that the Secretary of State can make regulations if he is satisfied, as we have heard in this debate, is much more subjective and therefore must be open to much more frequent challenge.
Lord Sharkey (LD) [V]
My Lords, I have only just learned that if we do not pass the government amendments in this group, we put at risk the required legislative consent order for Northern Ireland. I had intended to oppose Amendments 2, 7 and 14; I did not understand why Amendment 2 was necessary or had any real force or meaning—in any case, I much preferred Amendment 5 —and Amendment 7 seemed downright confusing, since its net effect is to impose an obligation on the Minister to have regard to certain things when considering making regulations but no obligation to consider the specified things when actually making these regulations.
I have spoken to the Minister and will now not oppose the government amendments. However, I feel that we have been bounced. I first realised the Government’s intention to move when I read today’s Chair’s guidance and I understood that there was a Northern Ireland problem when I was given, about 40 minutes ago, a copy of the note from the noble Lord, Lord Bethell, to the noble Lord, Lord Lansley, from yesterday. We were not copied in on that note. I strongly feel that this is all very unsatisfactory.
The Minister has not really answered the question that I asked him in our impromptu interval of why we need to rush. Could he explain why delaying the start of the legislative consent order process until Report would be a problem? It is still not clear to me. I trust the Minister’s assessment but I do not understand how he arrived at it. In his note to the noble Lord, Lord Lansley, he says, for example, that the delay would mean that we could not meet some unspecified timing objective but he prays in aid the notion that the minimum interval between Committee and Report is a contributing factor. We can change that interval; we could choose. Could the Minister explain again why it is necessary to do this today?
Baroness Jolly (LD) [V]
My Lords, this has been a useful debate on health and safety when making regs. The Government have tried to strengthen this with their amendments in this group. My noble friend Lord Sharkey just spoke about that; I too will look at them in the light of Committee and determine what to come back with on Report.
On government Amendments 2, 7 and 68, we should have these regulations only if we are absolutely satisfied that they would promote health and safety. Government amendments 51, 54 and 56 are all about the promotion of one or more of health and welfare of animals, health and safety of the public, and the environment. There is a clear connection with animals and the environment; has the Minister spoken to Defra and BEIS about these amendments?
I also wonder that we are not discussing those medical devices that are joint veterinary and medical devices. As I said at Second Reading, veterinary medicine is becoming much more sophisticated and slightly less agricultural—that is not the right way to describe it, but it is now very high-tech in certain areas. Could the Minister outline the legal situation here, as, when we are discussing medical devices, veterinary devices are not included? Clearly this should fall within the scope of the Bill but, as I see it, there are no amendments covering that.
Moving to the amendments from the noble Lord, Lord Lansley, and the noble and learned Lord, Lord Woolf, I supported Amendment 5. We have left the EU, but I see no reason why we cannot use its regulation if we think it cannot be improved on. I was happy to put my name to this amendment and agree that subjective measures are nowhere near as effective as objective ones. This is an area where objectivity is much more important than subjectivity.
The amendment elegantly reflects the objective of safeguarding the public health element in EU regulations. A Secretary of State has a duty to maximise the public health of our English population. I am sure it is not written down anywhere, but that is absolutely what he or she is responsible for doing. As such, I firmly believe that this amendment belongs in the Bill. My noble friend Lady Walmsley spoke powerfully about Amendment 5; we should really consider her arguments when we determine what we will do on Report.
My final point is on the objective of Amendment 70 to
“safeguard public health through the supply of medical devices.”
This amendment elegantly reflects the objective of safeguarding public health in EU regulations. There is much to look at in this group. I am sure that we will determine what comes back on Report later in the day.
Baroness Thornton (Lab)
Like the noble Lord, Lord Sharkey, I shall have a minor moan. It is normal practice to give fellow Peers sight of government amendments at least on the day are put down, so even though the Bill team had not managed to discuss their intention with Opposition parties and other noble Lords involved in Committee, we received the letter from the Minister explaining the amendments on Thursday. I hope the Minister and the Bill team will not continue to leave things so late. I remind the Minister that he has a whole Bill team and a department at his disposal. Other noble Lords write their own speeches, do their own research and need more time to give amendments due consideration. I am fortunate to have some excellent support and we work very hard on our side to get our amendments down as early as possible to give other noble Lords the opportunity to consider them and discuss them with us. The Government should always bear in mind the unequal nature of resourcing in this place.
We need to see these amendments for what they are. Of course, they are mostly worthy and we welcome the improvement, but essentially, to echo the words of the noble Lord, Lord Patel, they are there to placate and circumvent. We are late in the day in beginning to understand the nature of these amendments and we now understand the urgency of them as a result of our earlier discussions, for which I thank the Minister and his team. We are waiting for reassurance from the Minister about what happens at the next stage.
The noble Lord, Lord Lansley, made some very important and pertinent points, particularly about the difference between the objective test and the subjective test. It is clever and very important. He is on the side of objectivity and the Government’s amendments are definitely on the side of subjectivity. I agree with him that Amendment 2 is not as good as his Amendment 5. The noble and learned Lord, Lord Woolf, also said something very pertinent and quite correct about not giving blank cheques. He accepts what the Government are offering, but made the point that further discussions are needed and an amendment might be needed as we move forward.
I say to the noble Lord, Lord O’Shaughnessy, that I do not have a principled objection to government amendments coming forward; it is just that we need to know the context for them. The noble Lords, Lord Lansley and Lord Kakkar, and others, including the noble Baroness, Lady Jolly, made a very important point about safeguarding public health, and I hope the Minister will be able to address it. I can probably feel an amendment coming on on that one.
Lord Bethell (Con)
My Lords, I am enormously grateful to my noble friend Lord Lansley and the noble and learned Lord, Lord Woolf, for Amendments 5 and 70. I greatly appreciate their scrutiny and contribution on the way in which regulations under the Bill might be made. I am grateful to my noble friend for his constructive dialogue with my officials. His experience and expertise in making legislation on health matters is a real benefit to all of us.
My noble friend and the noble and learned Lord, Lord Woolf, have drawn on the framework of legislation in the EU context. I am grateful for their explanatory statement on the basis of the amendment. My noble friend knows that I pressed very hard to see whether this is something we could accept. The challenge your Lordships have set me is why, if this framework exists in EU legislation, is it too constricting for the Bill? The answer is that examples of significant recent EU legislation in relation to human medicines, clinical trials and medical devices include: directive 2001/83/EC, regulation 726/2004, regulation 536/2014, and regulation 2017/745. In other words, while citing the aim of safeguarding public health in Article 168, on public health, of the Treaty on the Functioning of the European Union, these pieces of legislation were also made in reliance upon Article 114 of the treaty, being measures for the approximation of laws which have as their objective the establishment and functioning of the internal market. To make that point again, safeguarding public health is not the only objective of the EU legislation in relation to medicinal products and medical devices. That is why we have a challenge in this area and why we have posited our amendment.
I shall say something about the other government amendments, specifically replying to the noble Lords, Lord Hunt and Lord Sharkey, and other noble Lords who commented on them. The overall timing of the Bill means that currently, it cannot reach Report any earlier than mid-November. If we start the consent process with Northern Ireland then, it will add a minimum of two months past the end of the Bill’s timeline. To explain to the noble Lord, Lord Sharkey, we need to start the consent process now in order to make further changes. The Government need to demonstrate that this is a policy they wish to make in order for Northern Ireland to get that process properly under way. We have written to Northern Ireland seeking consent to make changes. Parts 1 and 2 of the Bill are transferred to Northern Ireland. I sought consent from Northern Ireland on the Bill as a whole when the Bill was introduced, and again after the change made on Report to Clause 16.
We sought to make government amendments at the earliest opportunity to respond to the DPRRC, partly to demonstrate how significantly we take that report and partly to start this process. That process has now started, but it has not concluded. It does not preclude noble Lords from further consideration and, as my noble friend Lord Lansley, indicated, the Bill has moved. The process of consent is unavoidably three months long in order for the Northern Ireland Assembly to conduct its work. That is why we have had to start now. In reply to the noble Lord, Lord Hunt, I can supplement the legislative consent Motion at a later date.
I will listen. I understand and acknowledge that the noble Baroness sees this as the beginning, not the end, and I acknowledge that she will return to the issue on Report. Accepting these amendments today does not prevent her doing so, and I will continue to listen.
I completely hear what the noble Lord, Lord Hunt, says about engagement with the MHRA. I would be glad to arrange a suitable engagement with June Raine from the MHRA and parliamentarians to discuss these points.
To the noble Lord, Lord Patel, I confirm that the efficacy of a medical device is assessed as part of the process of obtaining a CE certificate. The therapeutic value of a device is not part of the CE certificate assessment; that is a function carried out by NICE. On the point made by the noble Baroness, Lady Barker, on the food chain, I would be glad to arrange a follow-up discussion on the veterinary medicines directorate with the relevant Defra Minister. To the noble Baroness, Lady Jolly, Defra and BEIS are content with this amendment. To the noble Baroness, Lady Walmsley, the medical devices section of the overarching bit at the beginning of the Bill is a carry-on from the sentencing enforcement, and in Part 3 enforcement is in relation to medical devices only. I do not think these are reasons to rewrite the purpose.
I obviously hope to win the argument on some of this, but that will come from extensive engagement and thorough communication going forward, for which I thank noble Lords. I therefore hope that the noble Baroness feels able to accept these reassurances, and I am grateful that my noble friend considers this sufficient reassurance not to move his amendments.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
I have received a request to speak after the Minister from the noble Lord, Lord O’Shaughnessy.
Lord O’Shaughnessy (Con)
I thank my noble friend for addressing the point about therapeutic use, but I think I am slightly more confused now than I was before. He talked about NICE, but of course, NICE does not assess every medical device and assesses from a health economics perspective, as opposed to a purely regulatory, safety and efficacy perspective. It is not something that need detain us, but perhaps he could follow up afterwards with a bit more detail.
Baroness Thornton
“( ) In making regulations under subsection (1), the appropriate authority must have regard to the desirability of—
(a) regulatory alignment with the European Medicines Agency’s medicines regulation;
(b) regulatory alignment with EU clinical trials regulations;
(c) recognition of and participation in the European Medicines Agency’s medicines licensing processes.”
Member’s explanatory statement
This amendment requires the appropriate authority to have regard to the desirability of regulatory alignment with EU regulations.
Baroness Thornton (Lab)
My Lords, in many ways this group of amendments is at the heart of the Bill. The Minister will know that there is real anxiety among stakeholders, be they large or small pharma, researchers or patient groups, particularly now that we might face a no-deal exit at the end of this year. Life sciences companies have concerns about the administrative and cost implications of having to file for marketing authorisation with a separate national licensing authority after Brexit. It will be important to consult closely with the industry—industry groups, but also individual companies that have specific expertise in high tech areas—to ensure that the regulatory regime is robust, internationally competitive and fit for future scientific breakthroughs.
The amendments in my name and that of my noble friend Lord Hunt require the appropriate authority to have regard to the desirability and necessity of regulatory alignment with EU regulations. The amendments in the name of the noble Lord, Lord Patel, the noble and learned Lord, Lord Mackay of Clashfern, the noble Baroness, Lady Finlay, the noble Lord, Lord Lansley, the noble Baroness, Lady Jolly and the noble Lord, Lord Kakkar, in this group have similar objectives.
The UK via the MHRA plays a leading role in developing the clinical trials regulation, which came into force in 2014. Due to the length of the implementation period of the regulation, the UK is not currently committed to implementing it in full following the end of the transition period. Failing to implement this longstanding legislative proposal would create significant uncertainty for life science companies.
I am grateful for all the briefing we have received over the last few months from organisations and companies which have a great deal of interest at stake in the Bill. For example, Silence Therapeutics wants to make ground-breaking treatments available to patients in the UK as quickly as possible and to conduct clinical trials in the UK. In order to ensure that the UK remains a competitive and attractive destination for clinical trials, it thinks the Medicines and Medical Devices Bill should provide for continuing alignment with EU clinical trials regulations—the UK was involved in the development of that—and, in the immediate term, ensure harmonisation of clinical trial and medicines regulatory processes, while enabling international collaboration for the benefit of patients, at the end of the transition period. It also thinks the Bill should adopt an approach to clinical trials that will allow the UK to lead the world in innovation while assuring patient safety standards. These seem to me to be reasonable tests of this legislation and indicate the challenge it faces.
The danger is that the European Medicines Agency covers 25% of global pharmaceutical sales and the UK on its own makes up only 3%. The odds are that companies will want to submit applications for new drugs to the EMA before the MHRA, meaning that the UK will lose its advantage and UK patients will risk getting slower access to the latest medicines. While the Bill could help maintain patient access to new medicines and UK access to pan-European clinical trials, its capacity to achieve this will be subject to the shape of the future relationship between the UK and the EU.
On medicine access, will the Bill allow the Government to establish new regulations on marketing authorisations for new medicines? If so, how and when? Does a no-deal outcome mean an independent UK marketing authorisation process, along the lines set out in the Medicine and Healthcare products Regulatory Agency’s plans for a no-deal outcome which came out in 2018 and 2019 and which some of us lived through. Is this what might be used? Alternatively, could the UK choose unilaterally to continue to recognise a new European marketing authorisation as valid? Has that been considered? Depending on the outcome of UK-EU negotiations, what will happen if the MHRA is unable to participate and contribute its expertise in the European Medicines Agency’s marketing authorisation process?
On clinical trials, will the Government replicate the EU’s clinical trial application system, thereby reducing the administrative burden on UK-EU collaboration? This would be necessary if the MHRA had to develop a separate clinical trial application system that would operate in parallel to the EU’s. Is this the case?
Given the influence that the UK-EU future relationship will have on how the Bill’s powers can be used, will the Minister guarantee to encourage, update and consult the medical research sector as negotiations progress? Are the Government doing so already? Perhaps the Minister can give some positive reassurance by describing some of the recent discussions and negotiations. I am aware that this is in line with the ethos of Clause 40, which requires the Government to consult relevant people and organisations when proposing regulatory changes.
Treatments that utilise innovative techniques such as gene silencing are often used to treat rare diseases. These affect limited numbers of people and are often used in areas of unmet need, where no effective treatment options are available. The number of patients with a rare disease in an individual country, such as the UK, is likely to be low by definition, but for clinical trials to work—the House has discussed this many times—they require a large number of patients to take part. As a result, these trials are conducted across multiple countries.
Unified and streamlined international processes are essential to ensure that the application and authorisation processes for these clinical trials can continue to work effectively and at pace. By implementing the clinical trials regulation, the UK can remain eligible for access to the central EU portals and processes for clinical trials, which ensure that they can recruit enough patients from different countries to be successful. These processes include clinical trial submissions, reporting and authorisation requirements and, particularly importantly, inclusion in patient registries.
Lord Hunt of Kings Heath (Lab)
My Lords, I support the two amendments in the name of my noble friend Lady Thornton. I have also put my name to Amendment 22 from the noble Baroness, Lady Finlay—she is currently in the internal markets Bill Second Reading debate—which links this to a definition of attractiveness, and to Amendment 39 in the name of the noble Lord, Lord Patel, which focuses on clinical trials for rare diseases and the importance of alignment with the European Medicines Agency.
At the end of this debate, I hope we will have a better idea of the Government’s approach to the regulation of medicines and medical devices. I do not want to repeat myself, but, as my noble friend said, the big question seems to be that at the moment the EMA covers 25% of global pharmaceutical sales and the UK on its own makes up 3%. We know that the NHS is a very poor customer in terms of adopting new medicines. The UK market is pretty hopeless for pharma. If we are not going to be aligned to the EMA, what will this mean for UK pharma in terms of future investment? My guess is that it will snap off that investment.
This is the big issue, which we do not yet understand. What is the Government’s aim? Is it the idea that a no-deal Brexit is a good thing and UK pharma will survive with a hopeless home market and all the problems of dealing with Europe? Countries will clearly not come to the UK first when they have the EMA next door, unless we offer fast-track licensing, which brings us back to patient safety, which is why the two link so much together.
I hope that this time the Minister will give us some idea of what the Government are aiming for. The same applies to medical devices, although there are some specific opportunities, because at the moment the MHRA has no involvement in the pre-market phase of medical device development. Is the intention that the UK develops a proactive regulatory role for devices that is more akin to the licensing of medicines? If so, what will be the implications for industry and patient safety? Clearly, there have been many issues about medical devices in the past which have not gone through such a robust regulatory regime. Is it the intention that the UK goes through a more extensive regime in the future under its own steam? What will the general implications be?
Again, we know that Covid-19 is having an impact on clinical trials, a significant number of which have been paused. It is my understanding that only 45% of studies are currently open to recruitment and only 36% of them have successfully recruited patients since 1 June. The ABHI has highlighted the need for a sustainable plan and aims to return clinical research to pre-pandemic levels by spring next year.
This is important because, despite the size and growth of the global market for clinical research, the UK’s share of clinical trial applications and patient recruits has fallen since 2016. The UK is now falling behind the US, Germany and Spain for phase 3 commercial clinical trials. What is to be done about that? What is the Government’s approach? Again, how does this relate to the future regulation of clinical trials?
I hope that the Government’s intention is to stimulate the UK’s clinical research environment, but part of that must be enabling multi-state UK-EU trials to continue. The idea that we can have multi-state trials that do not involve some agreement with the EU seems fanciful in the extreme. Again, at this stage, we are entitled to know from the Government exactly what they intend.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
I call the noble Lord, Lord Sharkey.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
Could the noble Lord please unmute his microphone?
Lord Sharkey (LD) [V]
Can you hear me now? Yes? Good. Noble Lords will be relieved to hear that I will not start again. I will speak to Amendments 34, 36 and 37.
Clause 4 deals with clinical trials, which delivered £1.5 billion in GVA and £335 million to the NHS in 2018-19. They are an absolutely critical part of UK life sciences and part of what makes the UK a global leader in medical research. Anything that reduces the number or share of clinical trials in the UK weakens that leadership and could delay access to new drugs or treatments.
In its briefing, the APBI points out that our share of clinical trial applications and patient recruits has fallen since 2016. As the noble Lord, Lord Hunt, said, we now rank behind the US, Germany and Spain for phase 3 trials—and Covid has had a dramatic effect. The University of Southampton has published research showing that 1,500 clinical trials of new drugs and treatments for cancers, heart disease and other serious illnesses have been permanently closed down in Britain, with a further 9,000 suspended.
The Government know all this and acknowledge the importance of clinical trials. Given that, Clause 4 is a surprisingly weak response. It does not require the Government to do anything at all. It simply says that they may regulate—it does not say how they may regulate—and lists the areas in which they may regulate. This is another example of the abuse of secondary legislation. It gives unspecified policy-changing powers to Ministers without saying what these policies might be, except that they should do no harm—not a very demanding qualification.
When questioned about this and asked which bits of the CTR they will carry across, the Government’s response is, “The elements that are in the UK’s best interests.” These best interests are to be identified after consultation with interested parties. This all seems unnecessarily feeble. Researchers, commercial and academic, need certainty and stability as soon as possible. Ideally, they would like the provisions of the new UK regime to incorporate all possible provisions of the CTR as they come into force. We know what these provisions are. We know all the thinking behind them. The UK played a central part in their construction in the first place. Our amendments try to give some clarity and certainty to the situation.
Amendment 34 would replace “may” with “must”. It would oblige the Government to do something and does not just give them the power to do something if they feel like it. Substituting “must” for “may” would mean that the Government must make provision corresponding or similar to provision in the CTR.
Amendment 36 would modify this requirement slightly to acknowledge that we cannot adopt certain provisions of the CTR. These are the provisions that relate to the EU clinical trials information system and the assessment model involving co-ordinated decision-making on multi-state trials. Amendment 36 would add “where possible” to the requirement to make provision corresponding to or similar to provision in the CTR to allow for this.
Amendment 37 specifies two features of the CTR that the Government must incorporate. These are specified because they are new and very important, and for the avoidance of doubt about the meaning of “corresponding to” or “similar”. The two new features are the new definition of clinical trials and the allowing of co-sponsorship. In its briefing, CRUK notes that the MHRA has had considerable input in the new definition of clinical trials. It notes in particular that the new definition expands the scope of low-risk trials and excludes altogether some studies, such as pure pharmacology studies that are focused on how medicines work rather than on the extent to which they do. The CTR also defines and allows co-sponsorship, where two or more sponsors across multiple countries may share responsibilities. CRUK regards this as a very positive move, allowing for more flexibility in trial set-up and helping to foster collaboration. We helped to design both these new features. We should ensure that they are incorporated into our new regulatory regime.
Lord Lansley (Con)
My Lords, I am glad to follow the noble Lord, Lord Sharkey, because he made some important points and it saves me having to make the same points less well.
The purpose of Amendment 35—in my name and that of the noble Lord, Lord Kakkar—is precisely to explore the issues that the noble Lords, Lord Sharkey and Lord Hunt, raised. I am concerned that, as it stands, the provision may mean that we do not align sufficiently with the clinical trials regulations as they exist in the European Union. That is a great pity because we have gone to an enormous amount of trouble to try to improve the clinical trials regulations in the European Union; indeed, we arrived at a point where they were significantly better than the previous regulations. To depart from them now seems a retrograde step.
We cannot be sure that we will stay aligned with those regulations for ever but having the objective of seeking to have our clinical trials regulations correspond to those in the European Union opens the option for us to be in the clinical trials information system. If we start to diverge from the EU clinical trials regulations, I am not sure how we can then be incorporated into that system. That automatically means significant difficulties in trying to manage multi-state clinical trials in Europe with a view to an authorisation process through the European Medicines Agency because the information system will, I think, be an essential pre-condition for marketing authorisation applications to the EMA. The purpose of Amendment 35 is precisely to explore this issue. What do the Government mean by “or similar”? Do they intend to diverge or not? If they intend not to diverge and to retain corresponding regulations, that is excellent. If they intend to do otherwise, that is not so good.
I do not intend to enter into the argument about aligning with the European Medicines Agency for the simple reason that we have been here before. We legislated in the Trade Bill in the last Session to align ourselves with the agency and to participate in its processes. Unfortunately, I do not think that that is going to be available to us, so legislating for it in the United Kingdom will be, I am afraid, without effect. I will focus on the Clinical Trials Information System because there is likely to be a willingness and interest on the part of our European partners to retain the United Kingdom in this process. I hope that is so, that we might be able to attain that, and that that will be the Government’s objective.
Lord Kakkar (CB) [V]
My Lords, I shall speak in support of the amendment in the name of the noble Lord, Lord Lansley, to which I have added my name. Important arguments have been made with regard to the need to ensure that we can move away from the clinical trials directive which is currently the basis for such legislation in our country, and to adopt the clinical trials regulation to which our regulatory authorities have made such an important contribution over recent years.
On previous occasions Her Majesty’s Government, with specific regard to the 2018 EU withdrawal agreement Bill and the 2018 Trade Bill, made clear commitments that we should implement the clinical trials regulation in full as part of a negotiated agreement incorporating its legislative and non-legislative provisions; or, in the event that no agreement can be reached, that an element of the regulation would be adopted to the greatest extent possible on a unilateral basis in domestic legislation. We have received further reassurances in terms of the withdrawal agreement Act that the Government would give priority to taking the necessary steps to bring into UK law without delay all the relevant parts of the EU clinical trials regulation that were within the control of the United Kingdom. With regard to the Trade Bill, in September 2018, the House was reassured in the strongest possible terms by Her Majesty’s Government that a commitment was being made to implementing the regulation. However, when the Bill before us was considered in the other place, no such commitment was made and therefore, this probing amendment is vital.
I know that arguments have been made that not all the elements of the regulation are within the power of Her Majesty’s Government to implement, but as we have heard from the noble Lord, Lord Lansley, there is the opportunity to deal with the clinical trials portal and information system in a different way and to design, as other amendments propose, a system that might be agreeable. Arguments have also been made that the clinical trials regulation itself, although a substantial improvement on the current directive, is not perfect, and that the GCP and ICH guidance to which the clinical trials regulation makes reference need themselves to be advanced. Work is being undertaken in that regard.
The European clinical trials regulation provides for referring to guidance on the operational delivery of clinical trials or other guidance, so that should not be seen as an impediment. The real concern here is that while, unfortunately, impediments and hurdles to the adoption of the clinical trials regulation may be identified, that would be the wrong thing to do. The regulation is important. The current clinical research legislation under which we labour in our country is not ideal, which is why we have this regulation. On many occasions, Her Majesty’s Government have committed to the adoption of the regulation, so can the Minister indicate why the opportunity provided by this Bill should not be taken to fulfil those undertakings and thus provide us with the greatest possible certainty regarding the conduct of clinical research in our country? This is vitally important to patients, to the economy and to sustaining a viable life sciences ecosystem.
Lord Patel (CB) [V]
My Lords, I support Amendment 38, in the name of the noble Baroness, Lady Thornton, to which I have added my name. I shall also speak to Amendment 39. I am grateful to the noble Lord, Lord Hunt, who has already spoken, for lending his support. I have listened carefully, and I support what has been said about the issues raised, particularly about whether we remain aligned with the EU trials mechanism or whether we are to be part of that mechanism.
During the EU withdrawal debate this issue was discussed at length. In fact, there was an earlier opportunity for the amendment to be put—as noble Lords may remember, it was widely supported—but I withdrew it, because the then Minister, the noble Lord, Lord Callanan, said that at an appropriate time, when legislation was brought in, the Government would address the issue. By that I supposed he meant that they would address the issue of remaining part of the EU clinical trials regime—but this Bill does not do that.
What options are available to the United Kingdom? One of them, of course, is to remain and participate in the EU clinical trials regime, if that is possible. An alternative is silent participation, as in the EEA model. That would mean that we could not vote, we could not lead projects and we could not raise objections. The third option is to be independent and aligned. The noble Lord, Lord Lansley, referred to that, and I agree with him that the important part of the EU clinical trials regime is its portal—a portal that the UK played a major part in developing—through which companies can apply for clinical trials.
The fourth option is to be independent and divergent: the UK would create a new clinical trials system. There is no time to do that by the end of 2020, but over time the UK could create a new system and build alliances. However, the risks need to be clearly understood, and balanced. Where will the companies go? Will they go where they have a bigger market, and a bigger opportunity, with larger numbers of patients for the trials, or will they conduct their trials in the United Kingdom?
There might be novel ways to approach this, and I understand that the MRHA is discussing and trying to develop a novel way of conducting clinical trials, which might be more attractive to companies. But of course, as we do not know what those are and we are not being told what they are, we cannot comment on them.
Currently, what looks like the best option is to be part of the EU clinical trials mechanism. With clinical trials for rare diseases, it is even more important for the UK to remain aligned with, or to be part of, the EU processes for rare diseases in relation to trials, to the data that will be available, and to medicines—for example, treatments developed for muscular dystrophy and metabolic disorders.
About 3.5 million people in the UK suffer at some point from one of the 7,000 or so rare diseases. The number for which treatment is available is small; hence the great need for collaborative research, data collection and the development of medicines, because a larger population is needed for clinical trials. Companies such as Silence Therapeutics, which the noble Baroness, Lady Thornton, mentioned, use gene silencing technologies for developing novel therapies for rare diseases. Others, such as Sarepta, use gene therapy for developing medicines. Companies such as Gilead Sciences are developing CAR T therapy; it was the first to introduce CAR T therapy for cancers in the United Kingdom. All those companies have said that they would wish to remain in the United Kingdom to do their trials, if the environment was right.
The treatments that will utilise innovative techniques, such as gene silencing, are often used to treat rare diseases that affect a limited number of people, as I said. The number of patients with a rare disease in an individual country such as the UK is likely to be low by definition. However, for clinical trials to work, they require large numbers. Unified and streamlined international processes are essential to ensure that the application authorisation processes of these clinical trials can continue to work both effectively and at pace.
By implementing the clinical trials regulation, the UK can remain eligible for access to the central EU portals and processes for clinical trials, which ensure that clinical trials can recruit enough patients for rare diseases and include submissions, reporting and authorisation requirements and, particularly importantly, inclusion in patient registries. Those were developed as part of the EU-wide MHRA initiative to develop registries for rare diseases.
The UK should also seek to maintain alignment with patient safety and pharmacovigilance standards, as mentioned by the noble Baroness, Lady Thornton, to give patients and clinicians confidence in trials that are conducted in the UK and to support the UK’s ability to host trials that need to take place in multiple countries. Without this level of alignment, it is likely that clinical trials, particularly for innovative treatments such as gene silencing, will not be able to go ahead in the United Kingdom, denying UK patients access to new treatment options at an early stage.
I will end by saying a few words in support of Amendment 125 in the name of the noble Baroness, Lady Jolly. Given the global nature of the Human Medicines Regulations, the UK should be a member of the ICH—the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use. Having recently joined as an observer on Project Orbis and the Access Consortium, the UK can work towards providing a leadership role on global regulatory standards, and it is more likely to do that if it is part of the EU clinical trials mechanism.
Baroness Barker (LD)
My Lords, the noble Lord, Lord Hunt of Kings Heath, succinctly set out what we all know: post Brexit, the UK as a market will be significantly less attractive than it was as part of a single regulatory system for the development of medicines and clinical trials. The economics of that are inescapable. However, it is also true, as the noble Lord, Lord Lansley, said, that however much some of us may wish that we continued to be aligned with what will inevitably be a developing clinical trials basis in Europe, it may not be within our gift to do so. However, what we can do, and what all the amendments in this group attempt to do, is encourage the Government to come clean about the extent to which they will seek in future to maintain an ongoing alignment with those clinical trials regulations in Europe.
The noble Lord, Lord Patel, mentioned—as I intend to—the announcement last week of the UK participation in the Orbis trials, which are the new mechanism for fast-tracking cancer treatments, with players from the US, Canada and Australia. I still think that, given the history of this country as a leading player in the life sciences and biosciences fields, and given the amount of investment in research that we have traditionally had and which we must seek to maintain in the NHS and within our universities, if we do not signal at this stage a willingness to keep the regulations in place and ensure that we remain aligned with the European system, we stand to lose a great deal—not least involvement in the clinical trials information system. The Government would be well advised to take some, if not all, of these amendments, which all seek to do the same thing.
Lord O’Shaughnessy (Con)
The noble Baroness, Lady Thornton, got to the heart of this when she said that these discussions are central to our debate on the Bill and its purpose.
I preface my comments on the amendments by drawing on my experience as a Minister with responsibility for preparing the health and social care sector for Brexit and for medicine regulation. During that time, I spent hours and hours—days and days—of time with pharma and medical device companies, patients and others. There was a consistent message from almost all of them about the desirability of remaining part of the EU family if possible and the importance of the MHRA and our notified bodies as regulators within that regime. I, together with others, worked extremely hard to make sure that that was recognised in the withdrawal agreement that was agreed at the time. We managed to create a special category of safety products. For those who remember back two or three years, there were chemicals, pharmaceuticals and medical devices in the withdrawal agreement and, indeed, the political declaration. I worked very hard to achieve that position and supported it.
It might also be worth reminding noble Lords that Parliament passed up the opportunity to agree that withdrawal agreement. It did not succeed. That has led to a different Government with a different agenda and with a majority, which might be something for us all to reflect on.
I make those points only so that noble Lords will understand that my concerns with the amendments on aligning with the EMA and European regulation in general are not ideological but practical. Actually, this is a very heterogenous group of amendments: it ranges from alignment through to collaboration to similarity where possible. When considering the issues around this, we need to tread very carefully as to what we commit ourselves to. The fact is that, as negotiations have progressed, it has become completely clear that the European Commission will not tolerate any meaningful associate membership: you are either in or you are out, and there is no possibility of the UK participating in making the rules that bind it. Clearly, being in is not compatible with leaving the European Union, so the question that falls to us is what we do when we are out. What should we do as a sovereign regulator that is not part of the EMA?
This is where I disagree with those amendments that seek to align us with the EMA. The truth is that we cannot have the best of both worlds; we cannot—as the Prime Minister might put it—have our cake and eat it. We cannot be in and take advantage of the opportunities that being out gives us. Tying ourselves in advance and in perpetuity to EU regulation over which we have no control or, critically, judgment of quality, would be a big mistake.
It is quite right that we should seek to mitigate the negative impacts of leaving the EMA family. I have never sought to sugar-coat those—I do not take a Panglossian view of the consequences—but tying ourselves in such a way is not the way to do it. Multiple stringent regulators in the world do just as good a job, if not better, as our MHRA—in Japan, Switzerland, Canada, Singapore and bits of the EFTA. We should as a nation be seeking to accept licensing applications and modelling our regulatory structures on all and any of those that we think are the best. That is the way to take advantage of our freedoms and give us the best possible opportunity of getting innovative medicines and products as they come on to market in any market in the world.
We do not need, as the noble Lord, Lord Hunt, and others, said, to create our own bespoke, novel, difficult regulatory system that puts up more barriers to innovation; nor should we tie ourselves to one other regulatory regime. I use just one example to exemplify why I think that is true. It is a well-worn example but is worth rehearsing: the introduction of the HPV vaccine. That was something that most regulators in the EMA family did not want to proceed with. The MHRA provided a very compelling case for us to do so. European countries did so. The effect of that in England alone has been to reduce HPV infections among 16 to 21 year-old women—the figures are a couple of years out of date but are probably still accurate—by 86%. Bear in mind that HPV causes 80% of cervical cancers among women. We might be tying ourselves to things that we regret and which cause harm; I know that that is not something that anyone would want to do.
I note from the ABPI’s briefing—obviously, I have worked closely with it—that it does not call for alignment with the EMA. It calls for making sure that
“the information or data required by the EU regulator is consistent with other leading regulators around the world and benchmarked against them for speed and approval.”
It also calls for the UK to apply for full membership of the ICH, as the amendment in the name of the noble Baroness, Lady Jolly, calls for—I quite agree with that—and generally to look to provide leadership on developing global regulatory standards in human medicines.
I utterly understand the impulse. The Government have partly got themselves into this difficult situation by creating a vacuum into which people are seeking to put policy. That is completely understandable but it would be a mistake to tie ourselves to one particular regulator. It may not be quite as true of clinical trials—I defer to the expertise of others—although I note that the ABPI briefing paper does not talk about the clinical trials directive; instead, it uses a much broader palette and says that future clinical trials and regulations in the UK should both support and enable international collaboration.
I know that that is not the only position and that people take a different view, but as we move forward, we will want to tread carefully over which regulators we seek to collaborate with, emulate and draw on, rather than tying ourselves to an in-perpetuity relationship that we may come to regret on occasion.
Baroness Walmsley (LD) [V]
My Lords, Amendment 3 makes clear the desirability of alignment with the EMA and the EU clinical trials regulations. It sets out early in the Bill the store for those of us who feel that the advantages we have gained from such alignment must not be sacrificed on the altar of some mistaken ideology of this failed Government. I point out to the noble Lord, Lord O’Shaughnessy, that we managed to introduce the HPV vaccine before we left the European Union.
Amendment 22 attempts to define the rather vague expression “attractiveness”. We have other definitions in later clauses; we certainly need to choose one of them but I will leave my preference for a later debate.
I support Amendments 34 to 39 to Clause 4 on clinical trials. As my noble friend Lord Sharkey pointed out, they tighten up the wording in the Bill to emphasise the benefits and avoid the damage of diversion from EU clinical trials regulations. British patients benefit from alignment, British bioscience research and development benefits, and the whole system is worth millions of pounds to the Exchequer. I and other noble Lords have received briefings from a number of organisations working on behalf of patients, such as the British Heart Foundation, emphasising that any diversion from these regulations will affect the rapid availability of new medicines and treatments to British patients. They are also concerned to protect the large amount of EU research funding that they currently receive. Diversion could also affect, to use the Government’s favourite word, the attractiveness of the UK as a place to conduct clinical trials. The problem is that the Government have not told us what they might want to change unilaterally in future, as a number of noble Lords have pointed out. I invite the Minister to tell us now.
Amendment 39 asks the Government to establish a clinical trials portal that aligns us with the EMA regulations for medicines for rare diseases. This is particularly important if we are independent from the EU as our population of 68 million is so much smaller than the EU population of more than 400 million, which would make it harder to find a big enough cohort of people with rare diseases for a clinical trial. The noble Lord, Lord Patel, pointed that out.
The EU clinical trials portal, which will come into play with the new and improved EU clinical trials regulations in 2022, was to a great extent designed by British participants. This shows how important it is considered to be by British scientists because it makes applications for clinical trials so much easier and less time-consuming. In its previous inquiry, the Science and Technology Committee heard from a number of witnesses about the issues with the current system, which wastes a lot of their time. So, like the noble Lord, Lord Lansley, I feel sad to know that we will be out of the system by the time the improvements are put in place.
Our current alignment also encourages British scientists to go abroad to broaden their expertise and EU scientists to come here and become part of our very successful research teams. I know the Government are in favour of that because I heard Amanda Solloway, the Science Minister in BEIS, say so last week to your Lordships’ Science and Technology Select Committee. I hope, therefore, the Minister will be minded to accept the amendment.
Baroness Masham of Ilton (CB) [V]
My Lords, I support this group of amendments, especially Amendment 22, but I first congratulate the Minister on his stamina and enthusiasm at this incredibly difficult time. I hope he will be able to answer some of our questions.
I spoke at Second Reading of the need to provide an attractive life science environment for researchers coming from abroad. If we are to recruit the brightest and the best to work in research and clinical trials with the highest standards, we must improve. How will this be achieved? Should they not feel welcome and needed?
Can the Minister assure your Lordships that there will be no barriers to access to medicines for UK citizens?
How can we still have a regulatory leadership role following the UK’s exit from the European Union and the European Medicines Agency? We must not become isolated. I hope we will still collaborate with the EMA and other international regulators. We desperately need new medicines for the very rare diseases. There is nothing more frustrating than other countries having medicines which are denied to people living in England.
I hope the Government will accept the need to incorporate these points, which have been expressed today, to make the Bill clearer and more positive and will put their own amendments down on Report to further improve it.
Baroness Sheehan (LD) [V]
My Lords, I will speak to Amendment 125 in the name of my noble friend Lady Jolly. Like other amendments, it aims to probe the Government on their plans for future regulatory alignment with the European Union following Brexit. It also seeks to ensure that we seek full membership of any bodies or agencies that help safeguard regulatory alignment and standards in medicines and medical devices.
The EU and UK markets for medicines and medical devices are closely linked. According to the Association of the British Pharmaceutical Industry, at least 45 million packs of medicines are exported monthly from the UK to the EU, and 37 million packs come the other way. The UK also relies heavily on the EU for its supply of medical devices, with more than half of its 5 billion imported medical technology originating in the EU.
The European Medicines Agency provides a centralised approval procedure for licensing to allow pharmaceutical companies to submit a single marketing authorisation which, once granted, is valid across the EU and EEA. Given its role in harmonising the regulation of clinical trials, about which we have heard much during this debate, it is clear that divergence would have a major impact on people in the UK and the EU. With respect to medicines, should the UK develop a significantly different regulatory process to the EMA for medicines regulation, the increased regulatory burden on pharmaceutical companies could lead them to prioritise the much larger EEA market over the UK’s. This could cause delays in new drugs being made available for patients in the UK and vice versa. What is the Government’s analysis of potential delays? Is it in the order of 12 to 24 months, as some have said?
Baroness Jolly (LD) [V]
It was almost inevitable, looking at the amendments that were coming up and knowing the people who would be discussing them in Committee, that this was going to be one of the most interesting debates. It has been fascinating and well informed. The amendments relate to our future relationship with the EMA and other international organisations after Brexit. My Amendment 125 in this group is on future regulatory alignment; I am grateful to my noble friend Lady Sheehan for her contribution.
The Government have not been forthcoming on whether they will pursue regulatory alignment and, more importantly, what the implications of not doing so would be. I would be grateful if the Minister clarified that second point. Our clinical trials are hugely important and widely respected. The clinical trials information system is critically important; the noble Lord, Lord Lansley, made that vital point. What aspect of the role of the EMA are we trying to replace? It has four parts: to facilitate development and access to medicines; to evaluate applications for marketing authorisations; to monitor the safety of medicines across their life cycle; and to provide information to healthcare professionals and patients. We need urgent clarification on how the future information system will work, who will host it, how it will be staffed and how we will share our research.
As the noble Lord, Lord Patel, said, we do not have a large enough population for significant research without partners. Are we clear that we could work with the FDA in the US—or, indeed, with the TGA in Australia? Would that give us a sufficient body of people from which to take on our research? Perhaps. Are there any moves to seek full membership of the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use? I am sure that the Minister will have the answers but the regulations must have regard to the desirability of alignment, somehow or other, with the rest of the world. We cannot work as a small unit—perfectly formed, maybe, but we are small compared with the US, Europe and other groupings.
How is this going to be measured and monitored? The noble Lord, Lord Hunt, spoke about the fast-track licensing of medicines and devices. The point he made so clearly is that public safety has to be paramount so we cannot rush this sort of thing. We have to get it right; if people have to wait, so be it. It has been interesting to hear the reflections of the noble Lord, Lord O’Shaughnessy, because he was sitting in the hot seat of the department. I wonder whether he is glad that he is not there now.
The other interesting amendment concerns the definition of attractiveness, which included collaboration with the EMA. The noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Finlay of Llandaff, attempted a definition. I am sure that if we were all given a piece of paper and asked to write down our definition of attractiveness, there would probably be as many answers as there are people in the debate today. I would like a definition from the Minister: how is this to be measured and by which body?
Without a doubt, under the provisions of Amendment 34, regulations must be made, while under Amendments 35 and 36, they should correspond with the EU clinical trials regulations. Amendment 38 provides that we must continue our collaboration with the EU in whatever form we can manage between us. We also need to look hard at clinical trials portals, not only with the EU but with our other partners in future.
Lord Bethell (Con)
My Lords, as the Minister for Innovation, I am very keen on the UK’s continued leadership in this area; I have made it something of a personal cause. I am very proud of the fact that the MHRA approves around 950 medicinal trials a year, over half of which are multinational.
We know that once an early phase trial is established in this country, the industry is more likely to keep its later phase multi-country trials here. I would say to the noble Lord, Lord Hunt, and others who have questioned this point, that I can confirm that the purpose of the measures in this Bill are absolutely to build on our established strengths so that the UK has the opportunity to anchor international drug development in this country and grow that capability. I am committed to international standards, international partnerships and multi-country clinical trials. It is of course important that we work with our international partners both within the EU and globally to the benefit of patients. I assure noble Lords emphatically that we are committed to international co-operation.
However, I do not agree that our future relationships will be furthered by mandating the consideration of alignment with EU regulations and the European Medicines Agency. The UK has a long track record of jointly tackling global challenges with strong international links already in place between research and innovation communities. The UK works closely with many other regulators; those relationships are underpinned by many shared international standards. The EU bases its regulations on exactly those standards, as do we, and we will continue to do this going forward.
As a number of noble Lords have noted, we have the opportunity to create a better regulatory framework. The feedback from the industry is that an agile, proportionate UK system with familiar data submission requirements would increase the UK’s attractiveness as a place to conduct multinational studies, even if we are operating outside the EU’s network. My noble friend Lord O’Shaughnessy’s quote from the ABPI made this point. The powers in the Bill as it stands will allow us to develop exactly that kind of system.
Progress is already happening. The MHRA and the Health Research Authority are already taking steps to streamline the approvals process for UK clinical trials and are currently piloting a new process that has been shown to reduce overall approval times by more than 30%. I say to the noble Lord, Lord Sharkey, that this change does not rule out co-operation. Data generated in a UK clinical trial will continue to be admissible to support regulatory activity in the EU—and, indeed, globally. We can also look at how we can go further in making clinical trials and their results transparent and visible to the public. Co-operation does not require alignment.
Amendment 3 in the name of the noble Baroness, Lady Thornton, also suggests considering alignment with EU licensing processes. In the short term, the MHRA has already taken steps to recognise for two years future EMA decisions for medicine licences approved through the centralised authorisation procedure from January 2021. In the long term, there are opportunities to establish new UK routes to market, such as a new expedited pathway for innovative products, and to establish shorter assessment timeframes.
We have the ability to make corresponding or similar provisions to the EU CTR, but Amendment 38 would oblige us to align. Amendment 35, in the name of my noble friend Lord Lansley, does something similar. My noble friend makes the point that we have the opportunity to do better than the EU CTR, and that is very much our intention. That regulation replaces current separate regulatory authority and ethics approvals with a single national decision for a trial. The UK could adopt a similar methodology and associated data requirements for approvals, but in a much quicker timeframe. We have already introduced the combined ways for a working pilot to streamline approvals by the MHRA and ethics committees, and industry has told us that our scheme is one of the most appealing among the various pilot schemes in the EU, leading to a reported 30% reduction in timelines. The UK may wish to go further and develop our existing national system to further adapt requirements according to risk so as to reduce unnecessary burdens, such as academic trials involving a marketed product already in common usage.
In his Amendment 49, the noble Lord, Lord Sharkey, suggests that there would be benefits in adopting certain definitions in the EU CTR. These include the EU’s revised definition of a clinical trial and co-sponsorship set out in the EU clinical trials regulations. Under the EU CTR, this new definition of clinical trials is an attempt to avoid current variation in interpretations in different member states. Whether this will have the intended effect remains to be seen. EU legislation already includes a definition of a clinical trial, and the MHRA offers trial sponsors free advice on whether their study meets that definition, to ensure a consistent interpretation. If we wished to amend our definition of a clinical trial corresponding to that in the EU CTR, the Bill as drafted would enable that.
My noble friend Lord Lansley is right that the EU CTR introduces a single submission portal and co-assessment model, but I confirm that member states involved still have to individually authorise the trial, and therefore one or more member states could refuse authorisation. The portal is an IT system, the method of delivery. This does not mean centralised EU approval of a trial. Where a member state has national restrictions that require separate approvals outside the scope of the EU CTR, the sponsor would still have to seek the approval separately of the individual member state, in addition to the processes for seeking authorisation for the trial through the EU portal under the EU CTR. Industry has told us that if the UK has a rapid approval system, the lack of access to the EU portal is not a particular issue.
Amendment 52 introduced by the noble Lord, Lord Patel, suggests provision to develop a clinical trials portal that aligns with the European Medicines Agency for medicines for rare diseases. The EMA’s IT system does not address complex trial designs, such as umbrella, basket and platform trials that involve the use of master protocols. These are the very trial designs that have delivered the UK’s successes in Covid-19 research. On the EU portal, it is also extremely unlikely that the EU would agree to UK involvement, even if one were to request it, given that it is for EU member states and EEA countries. There are many other reasons why the UK is such an attractive place to run global rare disease trials: our world-class research infrastructure and centres for excellence, and so on and so forth.
The Deputy Chairman of Committees (Lord Bates) (Con)
I have received a request to speak after the Minister from the noble Lord, Lord Patel.
Lord Patel (CB) [V]
My Lords, the Minister referred to the large number of trials that are started in the United Kingdom. Can he say how many phase 3 trials have been started here? He also referred to the platform that the MHRA has developed with regard to Covid that accelerated the delivery of drugs, which is correct. However, that is not the same as a platform for rare diseases.
I agree that the licensing that was done at speed, within six months, would normally have taken two years: for instance, the licensing of the use of Remdesivir, produced by Gilead Sciences for the treatment of Covid-19. However, that is not the same as the noble Lord’s implication that it could be used for rare diseases. Those require a larger database, which Covid had, because there is no shortage of Covid data. Furthermore, he said that the EU portal means that individual countries have to approve. That is correct, but the approval is a speedier process because it has gone through the portal, unlike before.
Lord Bethell (Con)
My Lords, I will be happy to write to the noble Lord with the precise figures for phase 3 trials. However, he is right that they are incredibly important. The Bill must defend our position on phase 3 trials, which are very much the sharp end of the clinical trials process.
The learning from RECOVERY is that it is not a direct read-across to rare diseases. The noble Lord is right that in rare disease trials, we are often trying to drill down into very small communities, whereas 113,000 signed up for RECOVERY, and tens of thousands took some of the drugs that went through the trial process. However, it is the general capability of being able to run significant platforms, manage ethics at speed, get regulatory sign-off for these trials, and have a clinical trials regime which suits many different purposes. That is our objective, that is why we are putting through these reforms, and that is why we believe that the Bill can support a modernisation of our clinical trials regime.
On the European trials process, the noble Lord is entirely right that the portal contributes to speedy processes. However, it is not the only way of having a speedy sign-off of trials through Europe; we believe there are other ways of doing that.
Baroness Thornton (Lab)
Responding to the very last thing that the Minister said, he will have to tell us what those other ways are during the course of this discussion.
This has been a well-informed debate, as I assumed it would be. I think I was right in saying that this issue is at the heart of the Bill and how we move forward. My noble friend Lord Hunt—I thank him for his support —was quite right that this is the big issue. As the noble Lord, Lord Sharkey, said, this is the start of the discussion that we are going to have about attractiveness and where that lies and how it can express itself.
The noble Lord, Lord Lansley, put his finger on various important issues to do with clinical trials. He asked the key question, which I do not think the Minister answered. It is: if we diverge, what will that mean and how will it happen? I did not hear an answer to that question. The answer will determine what some of us do next as we move forward with this Bill. The noble Lord, Lord Kakkar, was completely correct when he said that it is vital that we get this right for the future of life sciences in the UK.
I am grateful to the noble Lord, Lord Patel, for his support for our amendments. He reminded us that we had this discussion during the passage of the main Brexit legislation, when we were told that it was not the appropriate place to such a discussion so the amendment was withdrawn. Now, at the last minute, this must be the place where we have these discussions and come to some conclusion on them.
The noble Lord, Lord O’Shaughnessy, is right. As we strike out on our own as a country, we will need new relationships and we will need to take advantage of what is on offer in the rest of the world. The transition will be very important because what happens in the meantime is vital. We will also need to ensure patient safety in this laissez-faire world, as the noble Lord explained, for example, if we decide to ignore the portal and strike out without it.
I do not doubt for a moment the Minister’s emphatic commitment to making this a success, but as we move forward, this Committee will need to understand much more than what the Minister has told us so far on the risks and opportunities. My final request to the Minister is that we will need a cross-party meeting of some depth—possibly more than one—to discuss this matter with his Bill team and the MHRA. We had such a meeting. It feels as if it was aeons ago, but I think that it was in February, perhaps March. Anyway, it was before we went into lockdown. We absolutely will need meetings and discussions before we move on to the next stage of the Bill. On that basis, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Bates) (Con)
We now come to the group beginning with Amendment 4. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the course of the debate.
Amendment 4
Lord Hunt of Kings Heath
“( ) The power under subsection (1) may not be exercised to—
(a) create a criminal offence of failing to comply with a provision made in regulations; or
(b) modify penalties for existing criminal offences.”
Member’s explanatory statement
This probing amendment would remove provisions for criminal offences to be created by delegated legislation. The DPRRC considered this an inappropriate delegation of power.
Lord Hunt of Kings Heath (Lab)
I have added my name to Amendments 4, 52 and 69, which would remove the provision for criminal offences to be created by delegated legislation.
The Government are developing a reputation for riding roughshod over the law, personal liberties and the role of lawyers. Indeed, the Internal Market Bill, debate on which is taking place in the Chamber today, is a reflection of that.
I am afraid that this Bill continues that trend, as indicated by the Delegated Powers and Regulatory Reform Committee in its very direct criticism of the criminal offence provisions. The committee drew attention to provisions in the Bill which give Ministers powers to create and modify imprisonable offences by statutory instrument. Thus regulations under Clauses 1 and 8 may create a criminal offence of failing to comply with provision made in such regulations that is punishable by imprisonment up to two years. Regulations under Clauses 1 and 8 may also amend the dozens of offence-creating provisions in the existing regulations. Regulations under Clause 12 may create new criminal offences relating to medical devices that are punishable by imprisonment for up to one year. Schedule 2 inserts a new regulation 60A and a new schedule into the 2002 regulations which make it a criminal offence, punishable by imprisonment for up to one year, to breach any of the provisions in the 2002 regulations that are listed in the new schedule. It goes on: Clause 14(1)(d) provides that regulations under Clause 12 may amend the new Schedule 30.
The powers conferred in all these provisions give rise to two concerns. As the Select Committee reported, it has previously expressed the view that it expects a compelling justification for the ingredients of a criminal offence to be set by delegated legislation. The powers in Clauses 1, 8 and 12 would allow Ministers to create completely new criminal offences and make changes to the ingredients of existing offences, yet the memorandum does not appear to contain any justification at all for this. The committee also points out that it has also said that where the penalty for a criminal offence may be set by delegated legislation, it would expect the maximum penalty to be included in the Bill, save in exceptional circumstances.
While the Bill limits the maximum penalty for offences created by regulations under Clauses 1 and 8, it is unclear whether this limit also applies to the many existing medicines offences which could be modified by regulations under Clause 1 or Clause 8. Again, the memorandum does not appear to shed any light on this. The Minister in his Amendments 43, 44, 64 and 65 has attempted to soften the pill by ensuring that regulations under Clause 1 (1) and Clause 8 (1) may not provide for an offence to be punishable with a sentence of more than two years. That is obviously welcome, but I do not think it goes far enough. From my reading of the amendments—no doubt we will hear about them later—they do not deal with the other substantial concern of the committee that the powers in Clauses 1, 8 and 12 would allow Ministers to create completely new criminal offences and make changes to the ingredients of existing offences. Given that, I do not think we can allow these delegated powers to be retained in the Bill. I beg to move.
Lord Patel (CB) [V]
My Lords, I shall speak to Amendments 42 and 63, in the name of the noble Baroness, Lady Thornton, to which I added my name and to which the noble Lord, Lord Hunt of Kings Heath, has just alluded. I also have my name to Amendment 92 in the name of the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Judge. Noble Lords can immediately tell that I must be the tenth reserve speaking on this important amendment, but the noble Lord, Lord Hunt of Kings Heath, has laid out very clearly the problems with the government amendments that were brought in and the powers they seek.
I shall be brief on this as the Constitution Committee report spelled it out in its last line:
“The delegated powers to create and adjust criminal offences in this Bill are constitutionally unacceptable.”
It was making a constitutional point.
As the noble Lord, Lord Pannick, who is a member of the Constitution Committee, cannot be here, I shall speak on his behalf. Paragraph 21 of the Constitution Committee’s report states:
“We have concluded previously that ‘the creation of criminal offences through delegated powers is constitutionally unacceptable’, save for exceptional circumstances. The delegated powers to create and adjust criminal offences in this Bill are constitutionally unacceptable.”
The noble Lord, Lord Pannick, went on to say that the response of the Minister, the noble Lord, Lord Bethel, that regulations cannot be used to provide for an offence to be punishable with a sentence of imprisonment of more than two years is not satisfactory. A sentence of imprisonment of up to two years is a very serious matter. Parliament, not Ministers, should decide when such a potential sentence should be available to the courts.
Lord Sharkey (LD) [V]
My Lords, we strongly support Amendments 4, 42, 52 and 92 in this group.
The proposal in the Bill to create new criminal offences by statutory instrument is completely unacceptable. It is a matter of basic principle that the creation of new criminal offences requires proper parliamentary scrutiny. The delegated powers affirmative procedure does not provide this or anything like it. This ought not to be controversial. The Government’s own list of the areas in which it is appropriate to use delegated legislation does not include the creation of criminal offences.
Our Constitution Committee has made its position very clear. It considers the use of delegated legislation to formulate policy or create new criminal offences or public bodies constitutionally unacceptable. The Government propose to do the first two of those things in this Bill; it is dismaying that they should so directly and bluntly ignore the conclusion of the Constitution Committee.
The Government appear, however, to have felt the need to modify their initial position somewhat. Their amendments in this group preserve the power to create new criminal offences by statutory instrument, but now cap any sentence for breach at two years. That is a category error. Our objection is to the creation of criminal offences by delegated powers. The length of the sentence attached is completely irrelevant and I am amazed that the Government think that capping the sentence might make the creation of criminal offences proposal more acceptable.
There is an obvious and fundamental principle at stake here. Criminal offences, no matter what penalties are attached, should not be created without full parliamentary scrutiny. They should not be created by the use of delegated powers. I urge the Minister to think again and to remove the offending provisions from the Bill. If he is disinclined to do that, I hope that the House will insist on Report.
Lord Kakkar (CB) [V]
My Lords, I very much support what the noble Lord, Lord Sharkey, has just said. In so doing, I support Amendments 4, 42, 52, 63, 69 and 92 in this group.
It seems counterintuitive at the very least for a Government to come forward with proposals to give a Minister powers using a delegated provision to create new criminal offences and, when challenged, to justify the position by saying, “Well, we will limit the sanction to two years’ imprisonment.” This completely misses the point, as we heard from the noble Lord, Lord Sharkey. There is a clear principle at stake here, which has been well described by the Constitution Committee in its report on this legislation. Very simply, it offends liberty and the functioning of our democracy that a Government can propose to create criminal offences that would deny a citizen their liberty for one day, let alone a maximum of two years, and feel that there should not be proper parliamentary scrutiny in the accepted fashion for the creation of criminal offences. Her Majesty’s Government should think very carefully about what they propose to do here and bring their own amendments beyond the government amendments suggested in this group.
Baroness Barker (LD)
My Lords, I just want to add to what my noble friend Lord Sharkey said. This is a matter of principle; from the two reports by the two committees that have been cited and from the Second Reading debate, the Government can be in no doubt about the strength of feeling on it. In the light of those, the Government’s response in the government amendments in this group is, frankly, rather pathetic and not at all acceptable.
The Bill represents an enormous upheaval for one of the critical areas of our industry. The pharmaceutical industry is of immense importance to this country. Apart from anything else, to add criminal offences created through delegated powers by means of a Bill that is so spare and lacking in detail does a huge disservice to people who want to continue to pursue not just high-quality but ethical production of badly needed medicines in this country and within international frameworks. If the best the Government can do is to table the amendments in this group, they do the industry a great disservice.
Baroness Thornton (Lab)
I do not think that I need to say much in response to the remarks that were, I think, unanimous in their support for my amendment and the other amendments in the group. The cap on the sentence is not a good enough response by the Government. Earlier in our debates, I made a remark about amendments designed to circumvent; I am afraid that the government amendments before us are exactly that kind of amendment. They will not serve, I am afraid.
Unless the Government are prepared, as I hope they are, to table amendments that actually solve the problems and address the issues raised by the Constitution Committee and the Delegated Powers and Regulatory Reform Committee—they could not have been clearer on this issue: in this country, we do not set up criminal offences and their sentences by delegated legislation—there is nothing more for me to say, other than that I hope the Government will think again.
Baroness Penn (Con)
My Lords, it is perhaps appropriate if I begin by speaking to the government amendments—Amendments 43, 44, 64 and 65 in the name of my noble friend Lord Bethell —in this group. In doing so, I thank my noble friend Lord Blencathra for his committee’s report. As previously noted, we have listened to that report, and the changes that we propose through these amendments are intended to address the specific concern in that report regarding penalties for existing criminal offences.
As drafted, Clause 5(1)(b) already provides a restriction limiting the maximum penalty to imprisonment for two years when creating a criminal offence. The DPRRC asked us to explain whether the penalties for existing offences could be amended when there was no maximum specified in the Bill. I want to be clear that we do not intend to increase the penalties for existing offences.
Amendments 43 and 44 would work together to amend Clause 5. They make it clear that, under Clause 1, we may not make regulations that provide for a criminal offence to be punishable by more than two years’ imprisonment. This will apply to both new and existing criminal offences. For veterinary medicines, Amendments 64 and 65 seek to achieve the same by amending Clause 10.
The government amendments will, I hope, remove any concern that powers in Clauses 1 or 8 could be used to make regulations extending sentences for existing offences beyond two years’ imprisonment.
I now turn to Amendment 4 and the other amendments in this group to which noble Lords have spoken. The ability to enforce breaches of the regime governing medicines is a power originally conferred on the Secretary of State in the interest of protecting public health. This was introduced by the Medicines Act 1968 and provisions around offences are found throughout the Human Medicines Regulations 2012. They are also contained in the Veterinary Medicines Regulations 2013.
Offences deter potentially harmful activity and make it possible to take punitive measures against those whose actions put people, animals and the environment at risk. As we make necessary updates to the regulatory requirements, we must be able to remain consistent with the current enforcement regime, which already imposes criminal sanctions. It would not be right that a person may face a criminal sanction for breaching current requirements but not for breaching new regulatory requirements, for example relating to novel technologies and medicines. As with other changes to provisions, making changes to offences will be subject to the draft affirmative procedure, and we will make offences proportionate and necessary. It is imperative that we are able to balance novel regulation with enforcement of that regulation.
It cannot be ignored that crime involving medicines is increasing. Furthermore, criminal activities adapt to new environments and technology. In recent months we have seen opportunistic criminals selling online unauthorised and unapproved medicines and devices for the treatment, prevention or diagnosis of Covid-19, including antimalarials, self-testing kits, “miracle cures” and “antiviral misting sprays”, which could cause harm and unnecessary stress to patients. Enforcement capabilities must be able to keep pace with criminal exploitation. Delegated powers afford us our continued ability to enforce the regulatory requirements for medicines and devices for public protection. To be effective, they must be enforceable.
The Veterinary Medicines Regulations 2013 contain numerous criminal offences for breaches of the regulations; again, this is for the purposes of enforcement. The Veterinary Medicines Directorate’s enforcement strategy is risk-based; it focuses on proportionality, consistency, transparency and targeting. The VMD works with businesses and individuals to assist them in complying with the legislation through the provision of advice and guidance. However, where necessary the VMD will use more formal means of enforcement to secure compliance. It is critical that we have the delegated powers to enforce this.
We have always been clear that we are trying to provide greater clarity on how to enforce the regulations on medical devices. The regulator’s ability to have teeth when we are looking to raise medical device safety standards in future is essential. The report from my noble friend Lady Cumberlege tells us that.
The Bill is also clear on the maximum time limit for imprisonment, which applies to any new criminal offence introduced. This limit matches the current system for devices, where criminal offences for medical devices are already punishable for up to six months. The devices regulations are in place to protect public health; breaches of those regulations put people at risk and can cause significant harm. It is only appropriate that there is a clear consequence for any such actions, including potential criminal prosecutions. We will of course have regulations subject to the duty to consult at Clause 41, which will mean the public have the opportunity to comment on the necessity and proportionality of the approach.
I hope the necessity of enforcing the new regulations, and the safeguards the government amendments have provided, persuade the noble Lord to withdraw his Amendment 4 and others not to move theirs.
The Deputy Chairman of Committees (Lord Bates) (Con)
I have received no requests to speak after the Minister, so I call the noble Lord, Lord Hunt of Kings Heath, to respond to the debate on his amendment.
Lord Hunt of Kings Heath (Lab)
I first thank my noble friend Lady Thornton for her words in support of the amendment and the noble Lord, Lord Patel, who was hoping to field an impressive cast list in this debate. I thought he did very well; I have always thought he would make a first-class lawyer—he should take that as a compliment.
At the heart of it, as he and the noble Lord, Lord Sharkey, said, this is a constitutional point: the advice we have had from a House of Lords Select Committee is that what the Government are proposing is constitutionally unacceptable. While the Minister’s amendments are always welcome, the fact remains that the Bill, after the Government’s amendments, would allow Ministers to create completely new criminal offences and make changes to existing offences. The Minister kindly explained this, but here we get to the heart of this Bill and the problem that many of us have with it. She talked about novel regulation and the need to keep pace with developments. I understand that.
The Deputy Chairman of Committees (Lord Bates) (Con)
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.
Amendment 6
Lord Sharkey
“( ) Regulations made under subsection (1) are subject, in relation to regulations made by the Secretary of State, to the super-affirmative procedure set out in section (Super-affirmative procedure), in relation to regulations made by a Northern Ireland department, to section (Super-affirmative procedure: Northern Ireland), and, in relation to regulations of the Secretary of State and a Northern Ireland department acting jointly, to both.”
Member’s explanatory statement
This amendment, and the amendments to page 5 line 12, page 7 line 22 and page 9 line 27 in the name of Lord Sharkey, replace the existing affirmative procedure with a super-affirmative procedure in order to increase parliamentary scrutiny.
Lord Sharkey (LD) [V]
My Lords, Amendment 6 deals with human medicines. Amendments 53, 71 and 98 in the group make the same provisions as Amendment 6 but for veterinary medicines, medical devices and information systems. I will also speak to Amendments 143 and 144, which deal with the mechanisms that make Amendments 6, 53, 71 and 98 work. Our Amendments 135, 136 and 142 would replace the negative procedure in cases of urgency with the “made affirmative” procedure. I shall not speak to these because the Minister has more or less conceded the point in his new amendments.
Amendment 6 is in my name and those of the noble Lord, Lord Forsyth of Drumlean, the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Andrews. I am immensely grateful for their support and regret that they cannot be present today because they are all speaking at the internal market Bill Second Reading in the Chamber. It is extremely unhelpful that the Government have scheduled two significant Bills for the same time slots. They should be decoupled to prevent future clashes.
Amendment 6 and its equivalents deal with the non-urgent scrutiny procedures currently set out in the Bill. They replace, in Parts 1, 2 and 3, the affirmative procedure for delegated powers with the super-affirmative procedure set out in Amendments 143 and 144 later in the Bill. The purpose of these amendments, taken as a whole, is to restore an element of parliamentary scrutiny to a Bill which so conspicuously lacks it.
This is a skeleton Bill. Parts 1, 2 and 3 contain no policy detail but give the Minister effective carte blanche. The Minister is given almost unfettered power to remake our human medicines, our veterinary medicines and our medical devices regimes. The reports of the DPRR Committee and the Constitution Committee were highly critical of this approach. At Second Reading, the noble Lord, Lord Blencathra, chair of the DPRRC and speaking for it, said that
“the structure of the Bill is absolutely atrocious and an affront to parliamentary democracy.”
He went on to say that his committee was
“deeply concerned not only by the Government’s failure to provide sufficient justification for the adoption of a ‘skeleton bill’ approach—which would give Ministers sweeping powers to almost completely re-write the existing regulatory regimes … but also by their failure to acknowledge the breadth of the powers that the Bill would confer.”
He concluded:
“Parliament is effectively bypassed; that is a sick joke of good law.”—[Official Report, 2/9/20; cols. 415-16.]
Despite all this, it is likely that the Minister will choose to represent the proposed use of the affirmative procedure in this Bill as meaningful parliamentary scrutiny, but it is emphatically not that. Parliament cannot amend SIs and this House has voted down affirmative SIs just four times in the past 70 years. The Constitution Committee in its 2018 report The Legislative Process: the Delegation of Powers noted:
“Without a genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s secondary legislation. This is constitutionally unacceptable.”
Affirmative SIs do not constitute meaningful parliamentary scrutiny, and the Government’s promise of wide, but unspecified, consultation on the powers in the Bill does not somehow magically restore parliamentary scrutiny. Parliament is still bypassed.
There is a delegated legislation procedure that allows for significant parliamentary scrutiny. This procedure, which comes in several flavours, is known to the Government as “exceptional procedures” and to Erskine May, in Part 4 Chapter 31.14, as the “super-affirmative procedure”. This is what our amendments propose should replace the existing affirmative procedures written into Parts 1, 2 and 3. Erskine May characterises the super-affirmative procedure as follows:
“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 notes that
“the power to amend the proposed instrument remains with the Minister: the two Houses and their committees can only recommend changes, not make them.”
Our amendments follow this pattern and are more generally based on the variant of the procedure used in the Public Bodies Act 2011. Amendments 143 and 144 set out the details and the stages. First, the Secretary of State must lay before Parliament a draft of the proposed regulations and a document explaining them; secondly, he or she must request a committee of either House whose remit includes health, science or technology to report on the draft regulations within 30 days; and thirdly, in proposing a draft statutory instrument containing the regulations, the Secretary of State must take account of any representations, any resolution of either House and any recommendations of the committee to which the draft was referred. After the expiry of the 30-day period, the Secretary of State may lay before Parliament regulations in terms of the original or a revised draft. The Secretary of State must also state what representations, recommendations or resolutions were made in the 30-day period and give details of any such. He or she must also explain any changes made in a revised draft. After that, the normal affirmative procedure continues.
The Library records that the last insertion in a Bill of the super-affirmative procedure was by the Government themselves in October 2017 in the Financial Claims and Guidance Bill. When they are not doing it themselves, the Government traditionally put forward any of or all three routine objections to the use of super-affirmatives. The first is that it is unnecessary because the use of the affirmative procedure provides sufficient parliamentary scrutiny. Sometimes, this objection is elaborated by praying in aid extensive consultation. I remind the Minister of the DPRRC’s remarks in paragraph 45 of its report on the Bill where it says that
“we are concerned at consultation being presented as a substitute for Parliamentary scrutiny.”
It is quite obviously untrue that the affirmative procedure allows any kind of effective scrutiny.
The second routine objection is that the super-affirmative procedure is cumbersome. I take this to mean only that this procedure is more elaborate than the affirmative procedure, which is, of course, the whole point. It is necessarily more elaborate because it provides for actual scrutiny where the affirmative procedure does not. The third routine objection is that it all takes too long. This has force only if there is some imminent deadline. The Minister may argue that there is such a deadline at midnight on 31 December. At this point, the Government lose the powers conferred by Section 2(2) of the European Communities Act to modify the regimes, but does this really present a deadline? I leave aside here the issue of whether this Bill will have been passed by then, given its very slow progress and the sparse future scheduling.
The impact assessment helpfully sets out, in Annexe B, the number of times the Section 2(2) powers have been used. Between 2013 and 2019 they generated a total of 11 SIs. In each of the last four years they have generated just one SI. This is not an avalanche. Nothing in these figures shows urgency. Nothing suggests we need to rush regime changes by excluding scrutiny provisions from the Bill. Nothing suggests that using the super-affirmative procedure would cause significant delay or disadvantage.
The impact assessment notes explicitly, on page 5:
“policy development is at an early stage”.
This was in June. If policy development has made progress since then, perhaps the Minister can now tell the Committee what policy changes he intends to propose, using the delegated powers in Parts 1, 2 and 3.
If policy development has not made progress, it is vital that when it does, and sees daylight in SIs, those SIs are scrutinised as fully as possible, as the super-affirmative procedure permits. In the event that a policy or technical change is required urgently, the provisions of this Bill, with the latest Government amendment, should allow the use of the “made affirmative” procedure.
This is a skeleton Bill. It is an attempt to bypass Parliamentary scrutiny. It contains no policy details and has no special claim to urgency as a reason for limiting scrutiny. The affirmative procedure is not meaningful scrutiny, as our Constitution Committee has pointed out—but the super-affirmative procedure is. That is what these amendments propose. Parliament should not be bypassed. I beg to move.
Lord Kakkar (CB) [V]
My Lords, I support the noble Lord, Lord Sharkey, and everything he has said in moving Amendment 6. These are clear matters of principle, and although one must accept that government Amendment 133 is an attempt to provide concessions on them, the noble Lord has set out clearly why adoption of even the affirmative procedure will not provide sufficient scope for appropriate scrutiny of what may turn out to be exceedingly important regulations.
The argument for adoption of the super-affirmative procedure has been well made, and I shall not repeat all the noble Lord’s arguments, save to say that in moving his amendment he also dealt with all the potential arguments that could be put against what is proposed in the amendments. In those circumstances, bearing in mind the importance of the issues that the legislation will cover, and the deep anxieties already expressed in Committee about the nature of the Bill, both in practical terms and in terms of its constitutional implications, Her Majesty’s Government should seriously consider accepting these important amendments.
Lord Patel (CB) [V]
My Lords, Amendments 137 and 138 in this group are in my name. They have partly been answered by government Amendment 133, and I shall speak about all three. My amendments are probing amendments, which would prevent regulation exercise in respect of Clauses 6 and 15 in relation to the disapplication of certain provisions in the medicines and medical devices regulations where there is a serious risk to public health. The reasons for this are the same as those set out earlier on the amendment tabled by the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt of Kings Heath.
The Government do not require the negative procedure to intervene swiftly in emergency scenarios, as the affirmative procedure is available, and safeguards parliamentary scrutiny. That is what the amendment is about. The Government have tried to respond to it, to some extent, through their Amendment 133, which removes subsections (3) to (9) of Clause 42 and inserts instead many new subsections, including a table detailing which specific provisions will be subject to the negative procedure, the “made affirmative” procedure and the draft affirmative procedure.
Baroness Jolly (LD) [V]
I speak in support of these amendments in the names of my noble friend Lord Sharkey and other eminent noble Lords. I confess that I had not heard of the super-affirmative procedure until my noble friend sat me down and talked me through it, and it struck me as being eminently sensible and doable, and this is exactly the right sort of Bill—or the regulations contained herein are exactly the right sort—for the super-affirmative procedure. I ask all noble Lords to support this amendment and those who support it.
Baroness Thornton (Lab)
My Lords, I thank the noble Lord, Lord Sharkey, for his comprehensive introduction to this group of amendments, particularly those that he is supporting.
We are minus at least four noble Lords from this debate because of the clash with the other Bill. I have certainly made my view known to the usual channels in the next booth that we cannot continue to discuss this Bill in those circumstances because we will be missing too many people who have a stake in the Bill and amendments down. I cannot imagine what the noble Lord, Lord Forsyth, is saying to his own Benches about this—actually, I probably can, and it will not be polite, I suspect. He put his name down to this amendment and, presumably, found out that he was not allowed to speak in both the Second Reading debate and in this Committee at the same time. I can see why that rule is there, but we are finding that this really does not work.
While the affirmative procedure offers nothing like the scrutiny given to a Bill, which typically goes through several substantive stages in each House and can be amended, we agree wholeheartedly with the DPRRC’s view that Clauses 1, 8 and 12 contain inappropriate delegations of power. We are where we are, and we therefore take the view that the affirmative procedure should apply. Amendment 134 provides for all regulations to be made subject to the draft affirmative procedure rather than the negative procedure and for urgent regulations to be subject to the made affirmative procedure rather than negative procedure.
Both the DPRR Committee and the Constitution Committee have expressed considerable concern at the inappropriate use of the negative procedure in this Bill. For example, Clause 2(1)(n) provides that regulations under Clause 1 may make provision about prohibitions relating to the supply of human medicines. Clause 42(9) provides for such regulations to be subject to the negative procedure. The explanation given for this in the memorandum, which I think I referred to in the very first debate in this Committee, is as follows:
“proposals to make changes to existing provisions, or to introduce new provisions enabling the supply, administration or prescribing of medicines are made to reflect shifts in best practice following extensive consideration and scrutiny by the relevant professional bodies.”
The DPRRC found this an unconvincing explanation. I probably do as well. It noted:
“It isn’t clear why consultation with relevant professional bodies lessens the requirement for scrutiny in Parliament. Indeed, if proposed changes are sufficiently important for there to be extensive consideration and scrutiny by professional bodies, this supports requiring the higher level of scrutiny in Parliament that the affirmative procedure affords. Furthermore, the prohibitions to which clause 2(1)(n) applies are sufficiently important that breach of them is a criminal offence (punishable, in the case of 4 of the 5 prohibitions, by imprisonment for up to two years). Even accepting the appropriateness of the delegation of powers in clause 1, we take the view that the affirmative procedure should apply. The consultation requirement imposed by clause 41 of the Bill is to be welcomed but we are concerned at consultation being presented as a substitute for Parliamentary scrutiny. On the contrary, if the exercise of the power is of sufficient importance to merit extensive consultation, it is of sufficient importance to warrant the higher level of Parliamentary scrutiny which the affirmative procedure affords.”
The committee also highlighted and raised concerns about Clause 9(1)(f), which provides that regulations under Clause 8 may make provision about the categories of person who may apply for veterinary medicines. The EM states:
“any proposals to make changes to existing powers or to introduce new powers for veterinary professionals to supply, administer or prescribe medicines will be subject to extensive consideration and scrutiny by professional bodies”.
Again, the committee found this unconvincing for the same reason, and took the view that the affirmative procedure still applies. I must say, I wholeheartedly agree with its assessment. As it says,
“if the exercise of the power is of sufficient importance to merit extensive consultation, it is of sufficient importance to warrant the higher level of Parliamentary scrutiny which the affirmative procedure affords.”
My amendment also addressed the egregious provisions of Clause 42 that provide that where any such regulation needs to be made urgently to protect the public from imminent risk of serious harm to health, the negative procedure applies instead. The Government’s justification for departing from the affirmative procedure was that:
“It is appropriate for regulations made in these circumstances to be subject to the negative resolution so that they can come into force immediately and provide an efficient means of addressing an imminent serious public health risk. We expect that such regulations would only need to be in place for a very short period of time, potentially shorter than it would take to schedule and hold debates”.
This is wholly inadequate.
The DPRRC stated:
“We are wholly dissatisfied by departments repeatedly arguing for powers otherwise subject to the affirmative procedure to be subject to the negative procedure where there is a need to act quickly, and seeking to justify this without acknowledging the existence of the made affirmative procedure … Even accepting the appropriateness of the delegation of powers in clauses 1 and 12, if the affirmative procedure provides the appropriate level of Parliamentary scrutiny for regulations made in reliance on clauses 6 or 15 in non-urgent cases then, in the absence of cogent reasons for the negative procedure to apply in urgent cases, we take the view that the made affirmative procedure should apply in urgent cases.”
The Constitution Committee concurred, recommending that
“the emergency powers in this Bill are subject to the made affirmative procedure, rather than the negative procedure, such that Parliament is required actively to approve them.”
The Minister will be well aware that regulations under the “made affirmative” procedure can be made and laid as expeditiously as can regulations subject to the negative procedure. They can also be laid during a parliamentary recess, unlike draft affirmative instruments. Quite frankly, it is insulting that the Government have the gall to argue for emergency powers to be subject to less scrutiny under the negative procedure, especially in the current climate when hundreds of emergency regulations have been introduced with considerable haste using the “made affirmative” procedure. Can the Minister say how this dereliction ever made it into the Bill, never mind through the Commons? I imagine that the Minister might be quite embarrassed to put her name to the Bill, which is perhaps why the Government have introduced Amendment 133 at the 11th hour.
I also speak in support of the super-affirmative amendments in the name of the Lord, Lord Sharkey. They are supported by Members across the House—including my noble friend Lady Andrews who is not here to give her support although she is extremely enthusiastic about this amendment.
Given that this is a skeleton Bill, the use of the super-affirmative procedure seems a sensible and proportionate mechanism. In this case, it would allow relevant parliamentary committees, in consultation with stakeholders, 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 has been used effectively by Governments of all colours, who recognise that it allows them flexibility when they need to bring forward regulations, while consultation and scrutiny happen before any amendments come to the House by affirmative resolution.
That is particularly important given that many areas in which we expect regulations to be laid, ranging from life sciences and clinical trials to hub and spoke pharmaceutical models, could make the contents of the SIs—and, in the absence of policy details in the Bill, even examples of draft regulation that have been published in respect of other Brexit legislation—controversial. I hope that the Minister recognises the merit of this proposal.
Baroness Penn (Con)
My Lords, I will begin by speaking to government Amendment 133 on behalf of my noble friend Lord Bethell. It provides significant changes that I know many will welcome. We have listened to the concerns raised about parliamentary scrutiny on emergency powers. I assure noble Lords that we have carefully considered their views and the different amendments that have been put forward on this topic.
As a result, government Amendment 133 would change applicable parliamentary procedure for reactive emergency regulations to the “made affirmative” procedure. It also provides that regulations about prescribing, advertising, packaging and labelling in relation to human and veterinary medicines will no longer be subject to the negative resolution procedure, but instead to the draft affirmative procedure. Using the “made affirmative” procedure when making regulations reactively in emergency situations affords the Government the required speed and flexibility to react to emergencies while providing that Parliament can scrutinise what has been done and why. When we make the regulations proactively, we must demonstrate the need to protect the public from the risk of serious harm; these regulations will be subject to the draft affirmative procedure.
It is important to acknowledge that the emergency powers are not intended to be used. However, as the noble Baroness, Lady Thornton, said, we are in a situation where we are currently using emergency powers, so she is correct that the “made affirmative” procedure has been put to good effect during the current pandemic. None the less, these powers are a measure of last resort to protect the public from the risk of serious harm to health.
We want to avoid using the powers reactively where possible. It is already a condition in the regulations that the situation must be accompanied by a declaration of the urgent need to protect against the imminent risk of serious harm to health. I note the questions asked by the noble Lord, Lord Patel, about the definition of that statement. I will write to him further on that matter.
The Deputy Chairman of Committees (Lord Bates) (Con)
My Lords, I have received one request to speak after the Minister. I call the noble Lord, Lord Patel.
Lord Patel (CB) [V]
I thank the Minister most sincerely for her extensive response. I understand some of the points she made. I am also grateful that she is going to write to me and other noble Lords about the definitions that I questioned in my speech.
I accept that at times the Government will need to have powers in emergencies, but some of the examples the Minister gave were not really emergencies. I made the point that in such situations government Amendment 133 and the table do not allow for parliamentary scrutiny. The fact that there is no sunset clause means that the Government will have power to make regulations under both the negative and the affirmative procedure for evermore. That cannot be right. Yes, there will be a learning process, but there should be more ability for Parliament to scrutinise.
The Deputy Chairman of Committees (Lord Bates) (Con)
I call the Minister to respond to the point made by the noble Lord, Lord Patel.
Baroness Penn (Con)
My Lords, I believe that the noble Lord’s comments reflect the themes that we are discussing throughout our scrutiny of the Bill. I certainly take them on board with regard to this group of amendments, I believe that we have discussed them before and will discuss them again on other groups of amendments.
The Deputy Chairman of Committees (Lord Bates) (Con)
Finally, I call the noble Lord, Lord Sharkey, to respond to the debate on his amendment.
Lord Sharkey (LD) [V]
I am grateful for the support of the noble Lord, Lord Kakkar, and the noble Baronesses, Lady Jolly and Lady Thornton, but I am disappointed that the Minister still seems to regard the affirmative procedure as constituting effective scrutiny. Let me briefly quote again the Constitution Committee, which says:
“Without a genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s secondary legislation. This is constitutionally unacceptable.”
Neither the DPRRC nor the Constitution Committee agrees with the Government’s position on this, I think largely because it is obviously wrong. I am also disappointed that the Government seem to continue to believe that extensive consultation is equivalent to or a substitute for parliamentary scrutiny—another obviously wrong position, as the DPRRC makes clear.
As to the objection that the super-affirmative procedure is too cumbersome or lengthy, neither of these objections could have any weight unless there were some urgency. As I have explained, there is not; even if there were to be, the “made affirmative” procedure would kick in and take care of it.
As I remarked in the opening group this afternoon, at the root of all this is a desire by the Government to take powers to make policy before they have decided what that policy is. This is not only perverse but evades parliamentary scrutiny and bypasses Parliament. We will return to this issue on Report. In the meantime, I beg leave to withdraw my amendment.
Lord Bethell
Member’s explanatory statement
This amendment requires the appropriate authority to have regard to the factors mentioned in subsection (2)(a), (b) and (c) of Clause 1 in considering whether regulations made under subsection (1) would promote the health and safety of the public.
The Deputy Chairman of Committees (Lord Bates) (Con)
We now come to the group beginning with Amendment 8. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. I call the noble Baroness, Lady Thornton.
Baroness Thornton (Lab)
May I ask for some clarification? Normally in Committee—under normal life, as it were—we would not start another group that would take at least three-quarters of an hour or so if we knew we were going to rise at a set time. I want some guidance as to why we will start this group now, when we know that we will not finish it within the time allowed. We might get through my speech and the next one, but that will be it. I am looking for guidance, Lord Chair.
The Deputy Chairman of Committees (Lord Bates) (Con)
Weighty matters of this nature are dealt with by the usual channels; the Government Whip will respond.
Baroness Penn (Con)
My Lords, I understand that the need to rise at a set time is part of the needs of the hybrid House. With other Grand Committees that have taken place in this circumstance, we have made progress on groups and had to adjourn mid-group. That is incredibly important in order to make progress on legislation when we are operating to time-constrained sessions.
Baroness Thornton (Lab)
I have to register my objection to that. If we want a proper debate, this is not just about people making timed speeches; it is about a debate. A debate should be a coherent whole, not one or two speeches and then continuing after maybe a week’s break. Would I be allowed to make my opening speech again when we go back on the second day of Committee?
Baroness Penn (Con)
My Lords, we would not have a second opening speech. If the noble Baroness has strong objections, we can adjourn.
Baroness Thornton (Lab)
I think we should. This is an important debate and we need it as a whole debate. I would be very grateful if that could be considered. I promise to make a small speech when we restart.
The Deputy Chairman of Committees (Lord Bates) (Con)
That concludes the work of the Committee this afternoon. The Committee stands adjourned. I remind Members to sanitise their desks and chairs before leaving the Room.
House of Lords
Introduction: Lord Dodds of Duncairn
Arrangement of Business
The Lord Speaker (Lord Fowler)
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, respecting social distancing, others are participating remotely, but all Members will be treated equally. Oral Questions will now commence. Please can those asking supplementary questions keep them short and confined to two points? I ask that Ministers’ answers are also brief.
Historic Statues
(4 years, 1 month ago)
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Baroness Deech
To ask Her Majesty’s Government what assessment they have made of the future of historic statues in England.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, there are approximately 12,000 outdoor statues in England. In the region of 3,500 are protected as, or as part of, listed buildings; of those, 473 are of historical figures. The future of the vast majority of these historic statues is the responsibility of the owners, usually local authorities. The government policy on historic public statues is quite clear: they should not be removed but retained, with a fuller contextualisation on the background and history of those commemorated provided; this is summarised as “retain and explain”.
Baroness Deech (CB) [V]
My Lords, the wish on the part of some to eradicate our past, in the belief that it is evil, does not justify vandalism. I am dismayed to see re-evaluation, often uninformed, of the contribution of historical figures, most of whom have both good and less good elements. For example, there are strong reasons to take away the prominent position enjoyed by Richard the Lionheart outside our own front door but I am content to walk by him every day, knowing that the study of history places him in context. Likewise, with Cecil Rhodes in my home city, I maintain that he did more good than bad and should not be sacrificed to current concerns, but should be joined by a statue of Mandela. Will the Minister do all she can to stop the destruction of important historical statues?
Baroness Barran (Con)
The noble Baroness gives some very helpful examples. The Government share her concern, particularly at some of the scenes we have seen recently, which have been deeply troubling. It is very unfortunate when figures such as Churchill have to be boarded up to avoid desecration. The Government continue to prioritise this.
Lord Browne of Ladyton (Lab) [V]
Webster’s Dictionary’s definition of putting someone on a pedestal is
“to think of someone as a perfect person with no faults: to admire someone greatly”.
The erection of a statue is not an objective act, but a subjective judgment of an individual’s historical contribution. Does the Minister agree that just as the civic leadership of communities most often decided who should have a statue placed on a pedestal in public places, their modern equivalents, not Ministers, should be trusted to decide whose statues are representative of a community’s current values?
Baroness Barran (Con)
Obviously local authorities are primarily responsible in this area and will take the view of their community into consideration, but my understanding is that for the most contested examples there has been not a uniform community view, but a divided one.
Lord Oates (LD)
My Lords, I declare my interest as an ambassador of the charitable education and arts project, The World Reimagined. Does the Minister agree that people would be more likely to accept existing statues if we showed greater recognition of the full history of our country? In 1682, William Godwyn proposed a statue in London to prominently acknowledge the injustice suffered by enslaved Africans. Does the Minister not agree that, 350 years on, it is well past time that a national memorial should be constructed in London to commemorate the millions of Africans enslaved under British rule?
Baroness Barran (Con)
The noble Lord is right when he talks about a full history of our country, and we hope our approach of retain and explain goes some way to addressing that, but he is also right that there is a place for new statues expressing many different issues, both permanent and temporary installations, such as the fourth plinth in Trafalgar Square.
Baroness Blackwood of North Oxford (Con) [V]
My Lords, while I in no way condone criminal damage, I note that our historical statues signally fail to recognise the contribution of women to the scientific and medical advances we enjoy today. In fact, research by the campaigner Caroline Criado-Perez suggests that there are only 158 statues of women. Of those, 110 feature mythical or allegorical women, 46 depict royals and 14 show the Virgin Mary. Does the Minister agree that, rather than myths, princesses or virgins, we should invest in a few statues that commemorate some of our great female innovators and role models, such as Dorothy Hodgkin, Ada Lovelace and Jocelyn Bell Burnell? There are many to choose from and they would be a great addition to our landscape.
Baroness Barran (Con)
My noble friend is absolutely right. There is plenty of room for more women of extraordinary talent and contribution to be represented in that way. Indeed, more broadly, we welcome the recent decision by English Heritage to unveil the portrait of Sara Forbes Bonetta during this Black History Month.
Lord Woolley of Woodford (CB) [V]
My Lords, assessment of our statues in England is not a culture war, as some would like to say, but rather an honest appraisal about who we put on a pedestal to be revered. While we understand that no one is perfect, and this is not an attempt to rewrite history, rather to better understand it, some statues would be better placed in a museum with their full context explained, rather than showcased in a grandiose way. Therefore, will Her Majesty’s Government create a task force on historical statues that will assess the actions of people honoured and decide what to do with their statues?
Baroness Barran (Con)
I am not aware that there are plans for a task force as the noble Lord suggests, but I am happy to take that back to the department. Obviously, move versus remove versus retain and explain has been carefully considered. Our view is that retain and explain is the best approach. My right honourable friend the Secretary of State will shortly have an online round table to discuss many of these issues with key stakeholders and arm’s-length bodies.
Lord Stevenson of Balmacara (Lab)
My Lords, we welcome the Government’s suggestion that the policy should be retain and explain. I think that gets across the point very well. Does the Minister agree that resolving this issue might be an opportunity for collaborative work with schools? What would children make of the way our local communities currently view local history through their statues? Will she pursue this with her colleagues?
Baroness Barran (Con)
The noble Lord’s suggestion chimes very well with our approach. It would be enlightening to hear what children think: they normally tell us the truth. I am happy to pick that up with colleagues.
Lord Wallace of Saltaire (LD) [V]
My Lords, is this not exactly an area where national government should resist interfering too strongly? Most of the statues in Bradford are of local people—Samuel Lister, Titus Salt, WE Forster, JB Priestley—and we are having a local discussion about the appropriateness of the statute of Sir Robert Peel, with petition and counterpetition. That is encouraging local debate about our history. Should this not be left to local communities and local authorities? Central government, which already tells local government far too much about what it should do, should leave well alone.
Baroness Barran (Con)
It is perhaps worth separating out the different issues here. The noble Lord is right that many issues, as he has described, relate to and fall within the responsibility of local government. Where central government has been clear in setting out its position is in relation to publicly funded institutions, where we have stressed their need for impartiality.
Baroness Uddin (Non-Afl)
My Lords, on 17 December 2015, I drew to the attention of this House the brutal legacy of slavery which led to the establishment of Buxton memorial fountain just across from the Chamber. Colonisation across the globe was a trade of human misery, of men and women, families, communities and nations, shredded, bound and pillaged, against any claim of decency and human dignity, rights and justice that we rightly hold today. Will the Minister consider requesting the Lord Speaker and the Speaker in the other place to set up a commission to examine how we honour and celebrate the freedom fighters and leaders of the movement who stood up valiantly against the degradation of colonisation and the inhuman slavery of human people?
Baroness Barran (Con)
The noble Baroness raises important points, but I feel that they are for Parliament to decide rather than the department.
Lord Lexden (Con)
My Lords, I endorse the view that historical understanding is best assisted by the provision of full and unbiased information about those commemorated in statues, rather than by the removal or knocking down of these memorials. As regards Sir Robert Peel, who was mentioned by the noble Lord, Lord Wallace of Saltaire, should we not note that he was a life-long opponent of slavery and the slave trade and sent the British Navy to the coast of west Africa to help suppress it?
Baroness Barran (Con)
I am happy to note that and to note that all of us as human beings are complicated, and our history reflects that complexity.
The Lord Speaker (Lord Fowler)
My Lords, the time for this Question has now elapsed. We now come to the second Oral Question.
Project for the Registration of Children as British Citizens v Home Office
(4 years, 1 month ago)
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Lord Alton of Liverpool
To ask Her Majesty’s Government what estimate they have made of the costs of their decision to appeal the decision of the High Court on 19 December 2019 in Project for the Registration of Children as British Citizens versus Home Office.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, we do not comment on ongoing litigation. Administrative costs are not recorded against particular legal cases, and as the litigation is ongoing we are not able to provide an accurate assessment of the legal costs at this time.
Lord Alton of Liverpool (CB)
My Lords, is it not passing strange that the Home Office can calculate the difference between the £640 that it costs to administer the citizenship fee and the £1,012 that it actually charges, even to children in care, but cannot assess the legal costs of contesting the High Court’s judgment? Instead of racking up lawyers’ fees and subsidising the immigration system with what Sajid Javid rightly called huge citizenship fees, should it not be reviewing this policy as noble Lords from right across your Lordships’ Chamber have argued?
Baroness Williams of Trafford (Con)
My Lords, the Immigration Act 2014 allowed for the review of fees. I can give the noble Lord a general figure, which is that just over £2 billion was generated from visa, immigration and nationality income and passport fees in 2019-20. The cost of BICS, the borders, immigration and citizenship system, was £3.18 billion.
The Lord Bishop of London
My Lords, the judgment in December 2019 highlighted that the Home Office application fee to register a British citizen was £1,012 for children, even though the Home Office estimated the cost of processing applications for registration as £372. Putting a financial barrier on being able to access one’s rights is a clear barrier to one’s access to justice. What assessment have Her Majesty’s Government made of the number of people whose rights are limited by the level of the fee that has been set?
Baroness Williams of Trafford (Con)
There are areas for fee waivers, and children in care may well have their citizenship fees paid for them. I reiterate my previous point that just over £2.9 billion is generated in fees, whereas the cost of BICS is over £3 billion.
Baroness Altmann (Con)
My Lords, I am delighted that there are some exemptions for children, both those born before 2006 and those born after. Does my noble friend agree that this is not about immigration but about children with the right to register as citizens and potentially denying them their right to register if they cannot fund more than £1,000? I encourage my noble friend, who I know is compassionate about this issue and about children in general, to urge the department to perhaps consider again.
Baroness Williams of Trafford (Con)
I agree with my noble friend that we do not underestimate the significance of the issue of fees for child citizenship and registration as a British citizen to both Members of the House and to those affected. As I said earlier, we keep those fees under review.
Baroness Butler-Sloss (CB)
Are those children whose families do not have enough money to pay for British citizenship to which they are entitled liable to be deported when they become 18?
Baroness Williams of Trafford (Con)
The noble and learned Baroness is so fixated on what I was going to reply that she is stuck to the spot.
Baroness Williams of Trafford (Con)
It is quite all right. Destitution and the inability to pay a fee—I have mentioned children in care—would not be a preventative factor for people gaining leave to remain in this country. Where an applicant can pay the whole immigration fee but none or only part of the immigration health surcharge, the immigration fee will be required and an exemption will be applied to the immigration health surcharge. As the noble and learned Baroness can see, there are a number of areas in which fees can be waived.
Baroness Primarolo (Lab) [V]
My Lords, will the Minister tell the House whether the Home Office carried out a children’s best interest assessment of the Government’s policy on fees in light of the original judgment? If it did not, can she explain to the House why it was not conducted?
Baroness Williams of Trafford (Con)
The noble Baroness will forgive me if I do not talk about the case in point, because there is ongoing litigation. We will look at the judgment with interest and see what is to be done from there.
Lord Paddick (LD)
My Lords, can the Minister explain why the Government want the immigration system to be self-funding in a way that no other government department is? Controlling immigration is of benefit to all citizens and should therefore be paid for by all citizens.
Baroness Williams of Trafford (Con)
The whole rationale behind the fee is to pay for the costs of the border, and not everyone goes through the border. I take the noble Lord’s point, of course, that maintaining a strong border is a cost to everyone.
Baroness Gardner of Parkes (Con) [V]
My Lords, can the Minister tell me whether the Government have assessed how many people forgo registering for British citizenship for themselves and their families as they cannot afford it? How this might contribute to their sense of belonging and well-being is important. It is over £1,000 per person, and £4,000 for two adults and two children. What can be done to help with that finance?
Baroness Williams of Trafford (Con)
As I mentioned earlier, there are waivers for certain groups of people, particularly children in care. I cannot tell my noble friend how many people did not apply or register last year, but I can say how many did. There were 49,000 applications for registration in 2019, and nearly 46,000 of those were granted, of which over 34,000 were for minors.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I entirely agree with the comments of the noble Baroness, Lady Altmann. Can the Minister tell the House whether she believes it is right that the immigration system is subsidised by children who are born in Britain and have lived their entire life in Britain and have the right to be British? I think it is wrong, grossly unfair and risks pricing children out of their legitimate rights. There are numerous examples of when the Government have refused to let other bodies recover their costs. I have asked many times here why local bodies cannot recover their planning costs—but the Government constantly refuse to do that.
Baroness Williams of Trafford (Con)
As I said to my noble friend, and say to the noble Lord now, we do not underestimate the significance of that cost, to either an individual or a family. We keep the fees under review, and, for children and their well-being, there are a number of exceptions to fees for applications for leave to remain.
Lord Roberts of Llandudno (LD) [V]
My Lords, is this not just one other example of the feeling of hostility: that the Government, the Home Office and the immigration system are against us? Not only that, but imagine how full of worry and anxiety somebody facing deportation or tribunal is. This makes us one of the most inhospitable of countries. Is it not time to revise again the British Nationality Act 1981?
Baroness Williams of Trafford (Con)
My Lords, I refer the noble Lord to when the fees were last agreed. They were set out in Section 68(9) of the Immigration Act 2014, during the coalition Government.
Baroness Lister of Burtersett (Lab) [V]
My Lords, could the Minister confirm that the “task and finish” exercise which she promised at Report stage of the immigration Bill will address the barriers to children registering their citizenship, as covered in my amendment, and that the outcome will be reported to your Lordships’ House?
Baroness Williams of Trafford (Con)
On Report, I promised to meet with noble Lords. I called it “task and finish”, but I am still thinking of the best way to set that up. And yes, I would like to report some of the findings of that discussion to your Lordships’ House.
The Lord Speaker (Lord Fowler)
My Lords, the time allowed for this Question has elapsed. We now come to the third Oral Question.
Gender Recognition Act 2004
(4 years, 1 month ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government, further to the Written Ministerial Statement by Baroness Berridge on 22 September (HLWS457), what further advice they intend to give to public bodies following the conclusion of the review of the Gender Recognition Act 2004.
The Parliamentary Under-Secretary of State, Department for Education and Department for International Trade (Baroness Berridge) (Con)
My Lords, the Government recently announced our response to and the results of the consultation on the Gender Recognition Act. We are now focusing on digitising and streamlining the process, and reducing the fee. We hope these changes will make the process less bureaucratic for transgender people. At this stage, we are not proposing further legislative guidance, but we will keep this under review.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, does the Minister accept that in sensitive discussions about the interaction between the Gender Recognition Act and the Equality Act, those most affected, namely women and transgender people, should have freedom to speak, and that intimidation and no-platforming are not acceptable? Will the Government reiterate their belief in the importance of single-sex places provided by the Equality Act, and make it clear to public bodies that it is not acceptable to insist on gender-neutral services at the expense of providing women-only safe spaces in refuges and rape crisis centres?
Baroness Berridge (Con)
My Lords, I agree with the noble Lord that freedom of speech in this area, on all sides, needs to be conducted in a manner that is respectful of people with very differing views. Yes, the Equality Act has an exemption, so that single-sex spaces can be provided and, where justified, somebody can be refused access to that space.
Lord Triesman (Lab) [V]
My Lords, I am sure that, today, the Minister will explicitly commit the Government to sticking to the statutory definitions required for collecting data on sex discrimination and will guide ACAS to do so. Since gender identification would not provide reliable data for the statistical analysis needed to understand historical patterns, what advice will the Government give to ensure complete clarity in the data required to comply with the legislation? Given the comparable difficulty in defining gender if it relies solely on self-identity, will the Government commit to advising the NHS on the specific rights of women who do not have male bodies to access single-sex wards and medical facilities?
Baroness Berridge (Con)
My Lords, as I have outlined, the NHS, as a public body, knows that it is the Equality Act that outlines its provision of services, and so single-sex wards can be provided. There is specific NHS guidance that, at present, states that transgender people should be accommodated according to their presentation but that decisions need to be made in the best interests of patients. We leave it to front-line clinicians, who are aware of the circumstances on their wards and in their hospitals, to make those decisions.
Lord Cashman (Non-Afl) [V]
My Lords, I welcome the statement by the Minister, particularly on freedom of information. Trans women and men have found themselves vilified, deeply misrepresented and defamed, and seen, in total, as a threat, when all they want to do is get on with their lives, harming no one. Great harm has been done to them and their families—and, sadly, by some Members of your Lordships’ House. Therefore, I ask the Minister this: given that many trans people face routine discrimination in public services, what steps will she take to ensure that public services are equipped to support trans people, including through staff training?
Baroness Berridge (Con)
My Lords, it is deeply regretful that there has been vilification on both sides of this debate. We hope to move on from this consultation and that both sides can respect the differing views. The consultation made it clear that health service provision was a concern; there is specific training now through the Royal College of Physicians to ensure that medical practitioners are more alert to the issues of transgender people.
Baroness Nicholson of Winterbourne (Con)
My Lords, I thank the Minister for the excellent educational material on sexual education for children in schools, which her department recently published. En passant, I congratulate the noble Baroness, Lady Falkner, on her nomination as the next chair of the Equal Opportunities Commission. This material brings into sharp relief the previous advice that the Government seem to have been given by the Equal Opportunities Commission, which led the Department for Education to publish a decade-long sequence of materials, which vary greatly from the current new guidance. Is the Minister willing to have a meeting with me to discuss the detailed points of issue that I have raised?
Baroness Berridge (Con)
My Lords, I, too, congratulate the noble Baroness, Lady Falkner, on her appointment. I would be happy to meet with the noble Baroness. It is key to remember that the relationships and health education guidance that the department has put out was put out partly in response to the IICSA inquiry, which recommended that relationships education was a way to protect children so they would know what was a healthy relationship and when someone was perhaps approaching them for ulterior motives.
Baroness Barker (LD)
My Lords, the Question asked by the noble Lord, Lord Hunt of Kings Heath, and the terms in which it was asked, emanates directly from a campaign supported by, among others, the Heritage Foundation in America, which intends to deny trans women in particular the equality and dignity that they deserve. Can the Minister tell the House whether there is any evidence—as opposed to assertion—that public services are in any doubt about how to ensure the safety of women and trans women in public services under the terms of the Equality Act as it exists now?
Baroness Berridge (Con)
My Lords, the data is not collected centrally. A number of providers, including public providers, are making use of the single-sex space exemption. It must not be forgotten that people are electing a gender-specific service—a single-sex toilet, for example—each and every day, and in the overwhelming majority of situations there is not a problem. The Government do not want to interfere with that.
Lord Herbert of South Downs (Con)
My Lords, I draw attention to my interests as set out in the register. I welcome the Government’s improvements to the healthcare of trans people. In drawing up policy in relation to this sensitive issue, can the Minister ensure that the Government will always be guided by a careful assessment of the evidence, including the global evidence of best practice in this area and a proper regard to the human rights and dignities of every individual, and will always reject any invitation to fight or join in a culture war on this issue from whichever side, such as we have seen far too often in debate over the last few months?
Baroness Berridge (Con)
My Lords, I can only agree with my noble friend and thank him that he is to chair the international conference for LGBT, which was in the manifesto. I hope that we can exhibit at that conference a manner of disagreeing respectfully with one another when views differ on each side.
Baroness Grey-Thompson (CB) [V]
What advice will Her Majesty’s Government give to sports bodies, when national policies differ from those of international federations?
Baroness Berridge (Con)
My Lords, the Equality Act made a specific exemption, as I am sure the noble Baroness is aware, so national sporting bodies could set their own criteria for participation in sport. We are not currently aware of any disparity between national and international guidance and governing bodies, but if the noble Baroness knows of specific examples, can she please write to me? I will then endeavour to see whether the UK Government have a role in that.
Baroness Wilcox of Newport (Lab) [V]
My Lords, the consultation strongly favoured legislative reform of the Gender Recognition Act 2004, yet the Government have failed to take steps towards a process of gender recognition for trans people that is straightforward, accessible and de-medicalised. What assurance can the Minister give that, in digitising the gender recognition application process, the Government can ensure that the medical component of the process is streamlined and focuses on the legal requirements of the Act, removing the need for intrusive, degrading and unnecessarily detailed medical reports that are so distressing to the trans community?
Baroness Berridge (Con)
My Lords, the Government are keen to streamline this process and make it as kind and fair as possible. I hear the comments made by the noble Baroness regarding medical evidence; that is a matter for clinicians. But she is correct that we do not want an overly complex paper system to become an overly complex digital system, so part of this is ensuring that the process is simplified before it is digitised.
Baroness Grender (LD) [V]
Is the Minister aware that some local authorities have withdrawn trans-inclusive guidance to schools because of threats of judicial reviews? Does she agree that the safety and welfare of schoolchildren should never be used as a political football by campaigns, and is she concerned that some such campaigns do just that and do not declare their sources of support and funding?
Baroness Berridge (Con)
My Lords, the department has put out comprehensive resources for health education in primary schools and health and sex education at secondary schools, has resourced teachers, and had a commitment in the manifesto in relation to avoiding bullying. We hope that as a result of this consultation, both sides can live in peace with one another and disagree properly without undue recourse to the courts.
The Lord Speaker (Lord Fowler)
My Lords, the time allowed for this Question has elapsed.
Trains: East Midlands
(4 years, 1 month ago)
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Lord Bradshaw
To ask Her Majesty’s Government what plans they have to decrease journey times for trains that use the Nottingham to Lincoln corridor to connect with other cities in the East Midlands.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, Midlands Connect is working with Network Rail to develop two line-speed improvement proposals between Lincoln and Nottingham, as part of its role in promoting strategic transport investment across the Midlands region. One proposal is to reduce journey times for passenger services between Lincoln and Newark. An investment decision will be made on the proposal following completion of its business case.
Lord Bradshaw (LD) [V]
I wish to widen the scope of that. I am very pleased to hear of the improvements between Newark and Lincoln, but my Question was concerned with the overall journey times between Lincoln, Nottingham, Derby, Leicester and Birmingham. The average journey by train being at about 30 miles per hour. What further improvements do the Government envisage?
Baroness Vere of Norbiton (Con)
My Lords, the Government envisage a number of further improvements across the wider area that the noble Lord mentions, particularly on the Newark to Nottingham stretch. Midlands Connect and Network Rail are looking at a feasibility study which may see an improvement in times by three minutes. As the noble Lord will know, the issue there is the flat crossing at Newark, where it crosses the east coast main line. More broadly, the Government are doing an awful lot of work in the Midlands as they develop HS2.
Lord Berkeley (Lab) [V]
My Lords, I thank the Minister for the interesting answers that she gave the noble Lord, Lord Bradshaw. Do the Government intend that the upgrades in timing, which will need infrastructure improvements between Birmingham, Nottingham, Newark and the flat junction for freight, and beyond, will be part of the integrated rail plan recently announced by the Government? They would bring local and regional benefits much sooner than the construction of HS2 East, which apparently has now been paused.
Baroness Vere of Norbiton (Con)
The integrated rail plan announced in February 2020 will look at the delivery of high-speed rail alongside all the other rail enhancements across the Midlands, including the Midlands rail hub. Network Rail is already developing work in this area, including connectivity improvements between Birmingham and Nottingham.
Lord Ravensdale (CB)
My Lords, I declare my interest as co-chair of the Midlands Engine All-Party Parliamentary Group. Rail is playing a vital role in levelling up the Midlands and capitalising regional developments. A dedicated ministerial champion to drive this key programme forward within government would be hugely beneficial. Is that something that the Government will consider?
Baroness Vere of Norbiton (Con)
The Government take their relationship with Midlands Engine and Midlands Connect extremely seriously, and I have had a number of meetings with them. On transport for the east Midlands, the Transport Secretary, Grant Shapps, announced on 3 September a new collaborative agreement between local leaders in the east Midlands and the department. We have created two new posts within the department specifically for the east Midlands to provide a more influential role when it comes to rail service enhancement decisions.
Baroness Randerson (LD) [V]
My Lords, 79% of workers in the East Midlands travel to work by car, and only 1% by rail. Contrast this with London where 27% go by car and 46% by rail and Tube. London shows that that revolution is achievable. Does the Minister accept that to cope with road congestion, pollution, climate change and ill health the Government must prioritise investment now for much-improved commuter train services in the East Midlands? It needs a lot more than a three-minute time improvement; it needs a massive change of approach from the Government.
Baroness Vere of Norbiton (Con)
The Government are committed to making improvements to East Midlands commuter travel. The noble Baroness is absolutely right: if we are to get people out of their cars, we need them on the trains. Of course one of our priorities is improving the safety of staff and passengers on trains. We have extra staff to manage flows, extra signage and extra cleaning. I hope that she will agree that if people want to travel to work in the East Midlands by train, they should do so.
Lord Rosser (Lab) [V]
First, what is government spending on transport overall in the East Midlands region per head of population, compared with the national average on transport per head of population? Secondly, what specific progress has been made over the last five months towards reopening the line from Leicester to Burton to passengers, following the government announcement last May of a fund for feasibility studies on the reopening of lines?
Baroness Vere of Norbiton (Con)
The last figures that I have for investment in transport are £268 per head in the East Midlands compared to £474 per head across England, so there is much more to be done. The steps that the Department for Transport has taken recently will aim to level up the East Midlands in the amount of investment in infrastructure. The line between Leicester and Burton—I believe it is known as the Ivanhoe line—is part of the Restoring Your Railway programme, so the reintroduction of passenger services is being considered. Development of these plans has been funded, and the Department for Transport and Network Rail are working on it with the promoters of the scheme to provide the guidance and support that they need to get a strategic outline business case.
Lord Loomba (CB) [V]
My Lords, ensuring better train services is key to achieving the levelling-up agenda across the whole country. It is paramount for jobs and growth that passengers and businesses using train networks have good, reliable and fast services. Also, part of tackling climate change is encouraging greater use of public transport, given that the road networks linking cities in the area are congested and polluted. What assessment have the Government taken on increasing train timetable options for passengers from Lincoln, with a view to ensuring greater usage?
Baroness Vere of Norbiton (Con)
I believe I have been able to explain that between Lincoln and Nottingham an awful lot of work is going on—to improve not only the time taken to travel between those two places but the frequency of the trains. For example, I reassure the noble Lord that, in addition to the measures I have already spoken about, there are plans to see two new services in each direction from May 2021, and then three more services after that each way from 2022.
Lord Scriven (LD)
My Lords, my noble friend Lord Bradshaw pointed out that on the wider regional network the average speed is 30 mph, which is not competitive for freight and businesses, and not good for the environment. The Minister pointed out that there will be a three-minute improvement, but can we come back to speed? In five years’ time, when the arrangements that she mentioned will have been made, what will be the average speed on this line per journey? If she does not have those figures to hand, could she please write to me with them?
Baroness Vere of Norbiton (Con)
The noble Lord will not be surprised to know that I do not have the average speed figures to hand, but one look at that line tells you that there are quite a number of stations, and they bring down the overall average speed. For example, on the Newark to Nottingham section, the new signalling system will allow speeds of up to 90 mph. It is key to get the trains moving much faster between the stations, although I accept that the average speed will be significantly below that.
The Deputy Speaker (Baroness Henig) (Lab)
My Lords, all supplementary questions have been asked.
High Speed Rail (West Midlands-Crewe) Bill
(4 years, 1 month ago)
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Baroness Vere of Norbiton
That the Bill be recommitted to a Grand Committee.
United Kingdom Internal Market Bill
Monday 19th October 2020
(4 years, 1 month ago)
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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.