United Kingdom Internal Market Bill

Baroness Bowles of Berkhamsted Excerpts

Consideration of Commons amendments
Monday 14th December 2020 Lords Chamber

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I shall speak to Motion G1 and move my Amendment 50E to Clause 50. At this stage I am minded to seek the opinion of the House, particularly because I wonder whether the House wants to have a conscience vote on some of these issues. I have found the Government’s response to our deliberations worrying. I remain concerned that the damage to the union that will come about as a result of their refusal to commit to a process of codesign of a future subsidy regime will come back to haunt us all.

We are of course a revising Chamber. We asked the Commons to think again, and after many hours of debate we gave clear messages through large majorities on key aspects of the Bill. We have seen some concessions and they were essential changes, but the huge problem of the current approach to the devolved Administrations remains unresolved. Given the Government’s current difficulties with the pandemic and unknowns over the end of the transition period, less than three weeks away, I fear that any stand-off with the devolved Administrations will compound and massively magnify them by fuelling the break-up of our union within only a few years. I say this because, as someone living in Wales and with family in Scotland, I see the Bill acting as a recruiting sergeant for separatist movements.

It is imperative to recognise the common frameworks, and we have signalled that clearly. As part of “taking back control”, the devolved institutions must have at least as much latitude—or call it “control”—as they felt they had within the EU to deal with the question of state aid. To establish durable intergovernmental working with the devolved Administrations, there must be clarity and certainty that the differing needs across the UK will be acknowledged and are seen as a joint responsibility that listens from the ground up and gives decision-making to the devolved Administrations.

As I understand it, neither Parliament nor the devolved Administrations had legislated on state aid in the past as these decisions were taken at EU level and regulations were directly applicable. Now that the EU mechanisms have been removed, it is still unclear where the decision-making now happens. State aid was not on the list of reserved powers and it has never been tested in the courts; indeed, such a test would do untold damage to relations between the constituent nations of the United Kingdom.

I hope I misheard the Minister, or that it was a slip of the tongue. If I heard him say “dissolved competence” instead of “devolved competence”, I am really worried.

My noble friends and I have listened to the objections that three years is too long to wait to put a framework in place, so we have reduced it to 18 months and I am currently minded to seek the opinion of the House on this. Eighteen months is scarcely longer than it would take the Government to consult on a framework and bring forward the legislation to enact it. This could be far speedier should the Government accept the offer from the Scottish and Welsh Governments to proceed rapidly on developing a clear process for them to be part of the codesign of state aid, establishing the consensus through a seat at the table from the outset of such deliberations.

Of course, I share the House’s clearly stated support, restated again today, for the common frameworks process. That is essential, and I do not wish to jeopardise that in any way, as we must move forward together. Yet I believe that the Government will try to say that state aid is already reserved—in fact, I believe that is what I have already heard—and that to include it in the common framework process might somehow jeopardise that position of constitutional principle.

I would be very happy to accept a clear assurance that the Government will make every effort to ensure that the consent of the devolved Governments to a subsidy regime will be secured and will make a statement to Parliament when introducing the necessary legislation if they should override that process. To summarise, I believe that this House will want to hear that the Government will seek to agree with the devolved Governments any new subsidy framework and will explain to Parliament whether they have succeeded or not and, if not, why not. I believe that that is the minimum we can expect. I beg to move.

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I will speak to my Amendment 50F and Motion G2, which I may wish to move. I also support Amendment 50E and Motion G1. Amendment 50F looks to the stage at which there may be changes to state aid provisions, whether that be changes in definitions, remedies, or the scope of exemptions, or introducing conditions or time limits on approval. I agree with the Minister that at the moment they are gone, but might not alternatives be introduced, or some aspects reintroduced? I think that would also constitute a change.

The EU state aid provisions were indeed the subject of a statutory instrument recently, and they end at the end of the transition period. But, as the Minister has informed us previously, the UK will follow WTO rules and consult and report on whether any wider scope is to be introduced. If the outcome is a recommendation for going wider—some kind of policy change—it begs the question of how it will be introduced.

My proposal is not made instead of consultations and approvals with the devolved Administrations, which we support; it is in recognition that the full range of public authorities and businesses are affected wherever they may be. Therefore, the detail of how any post-consultation policy change is implemented is of significant interest.

The withdrawal Act was used to make the changes that happen at the end of the transition period. But it would seem inappropriate for that to be used for any new policy. A new policy other than moving to the WTO default should surely have the scrutiny of primary legislation.

I know the Minister may say that how policy is to be implemented can be a point in consultation, but my submission is more constitutional than convenience. Parliament should be able to scrutinise and amend, and to spot those weaknesses and problems that this House in particular has the experience to iron out, especially at the first time around of making independent, post-Brexit state aid rules.

Therefore, my Amendment 50F seeks to put on the face of the Bill that changes to the test for harmful subsidy remedies, the scope for exemptions or the conditions or time limits on approvals may not be done by regulation. I do not seek to prevent policy change being made by the Secretary of State; I am just saying that, at least first time around, it should be made by primary legislation. It may be that the Minister can put my mind at rest, and I await his response with interest.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I will speak briefly in support of the eloquent and persuasive speech of my noble friend Lady Finlay in moving the amendment in Motion G1. First, I thank the Minister for his letter of Friday, which makes clear the Government’s wish for a constructive and collaborative relationship with the devolved Governments on state aid control and that the clause does not cut across the power of the devolved Governments to provide state aid or to determine how it is provided; it seeks only to restrict the distortive effects. With those thanks comes one short observation and two questions.

My observation is this: the proposal is very modest and not to the devolved institutions’ liking because, at the end of the period put forward in this amendment, it would nevertheless reserve a matter that the devolved Governments are right in saying is devolved. Of the many strengths of the proposal, it would provide a means for agreeing the regime and ensuring that it does not go forward without any risk of unilateral attack by a devolved institution. Surely the prize of agreement and strengthening the union is worth having.

I now pose my two questions to the Minister. First, the devolution statutes are now all framed based on reserved powers. That means that, if the UK Government have not reserved something, it is devolved. The power to control state aid is not reserved. If it were, these amendments would be unnecessary. This amendment therefore plainly changes the devolved settlements by removing a power that the devolved Governments have and transferring it to the UK Government. In those circumstances, I ask why the UK Government would not work together with them, consult them before the Bill was produced and try to find a common solution to that which I have always accepted as an absolute necessity: a unified state aid control regime. I fear it is an example of Westminster saying that it knows best, rather than working with the devolved Administrations.

Secondly, if the desire was to work together but, at the same time, provide a means of subsidy control, why, when changing the scheme of devolution, was a commitment not made in the Bill to work together with the devolved Administrations to develop the new regime? These questions seek to show that much could have been done to proceed in a way that strengthens the union, for that is the point of these amendments: to ensure that the UK Government work together with the devolved Administrations.

It is therefore necessary to ask the Minister a general question: how serious are the UK Government in their claims that the devolved legislatures and Governments will be fully involved in developing the subsidy regime? There are many important questions, particularly the role of the CMA as an independent regulator and not an adviser to the UK Government. I am grateful to the Minister for his letter and the constructive conversations we have had, but I join the noble Baronesses in asking for these further assurances and hope we receive them.

--- Later in debate ---

Tabled by

[Baroness Bowles of Berkhamsted]

At end insert “but do propose Amendment 50F in lieu—

50F: After Clause 50, insert the following new Clause—


“State aid


The Secretary of State may not, by exercise of powers under this or any other enactment, make any changes to the test for a harmful subsidy, remedies, the scope of exemptions and conditions or time limits on approvals.””

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I have put down my marker on this point. It is not going away, and nor am I. I thank the noble Lords who spoke in favour of the principle which I laid out but, for now, this Motion is not moved.

Motion G2 (as an amendment to Motion G) not moved.

Customs Safety and Security Procedures (EU Exit) Regulations 2020

Baroness Bowles of Berkhamsted Excerpts

Thursday 10th December 2020 Grand Committee

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, as the noble Lord, Lord Moynihan, has already reminded us, the news yesterday and today has highlighted fullness at our ports due to Covid, Christmas and Brexit stockpiling and a build-up of empty containers here while Asian exporters have a shortage. It is a useful reminder that logistics must be thought out well ahead—they are only going to get more complicated from January.

This SI is about outgoing not incoming goods, but I have a few questions about how it works and what can be taken into consideration. On the face of it, it looks simple enough: if there is disruption, flow rate can be made simpler by waiving pre-departure notices or modifying the time limits for submissions; it can be done on specific sectors and types of goods or at specific places to allow targeted mitigation; and the power lasts only six months.

Paragraph 2.2 of the Explanatory Memorandum says that the powers can be used only for border disruption, and paragraph 2.6 narrows that to:

“in the event that requirements for pre-departure declarations cause border disruption”.

However, I cannot find an exactly corresponding provision in the regulations. Regulation 2(2) states that it is

“to relieve disruption at or near places from which goods are directly removed from Great Britain”,

but it makes no mention as to cause. I presume that the legislation is correct and, therefore, that wider causes of disruption could trigger the use of the power even if that is not the current intention. Perhaps the Minister can confirm that. If the Explanatory Memorandum reflects the intent in practice, why does it not make that clear? Is it intended to have a wider contingency, or is it that it is difficult to assert causality in legislation? I understand that but, if so, why not draft the Explanatory Memorandum accordingly and give the causes more as practical examples of intention?

Looking at the legislation rather than the Explanatory Memorandum, and given the present circumstance that I just mentioned about congestion caused by imports, would a similar event, maybe through knock-on effects, qualify as a disruption near a place where goods are removed from Great Britain, because the ports have both incoming and outgoing goods? Do queues in Kent, incomplete or full Farage lorry parks count as a disruption near a place where goods are removed from Great Britain? Could, and would, this provision be used because of events that have no relation to the export of goods, such as civil protest or industrial action? If a major cause is congestion, what steps are being taken to distribute both exports and imports to other ports with capacity, to minimise the need for these powers and congestion in general? Can that be done at short notice?

A previous statutory instrument on no-deal planning made it clear that the waiver would be exercised only in relation to exports to countries where previously there was no need for documentation—basically the EU—but there is no similar mention or emphasis here. Presumably this means that waivers can be in respect of any and all countries. If that is the case, are there some countries for which there would never be a waiver because of greater security concerns? What international provisions are there about disruption? Is there anything in SAFE to enable this kind of suspension for disruption and are there examples of when and why it been done elsewhere?

I turn to a more general point: alongside requiring pre-departure declarations, there is a provision for risk assessment time, which is in Article 264 of EU Regulation 952/2013. The SI makes provision for that to be stipulated in connection with notices relating to the time limit for lodging pre-departure declarations. What is the usual current risk assessment time? Obviously it does not apply at the moment for EU goods, but it applies elsewhere, so there must be some available information. Is there a uniform target time? What is the time relationship between when the pre-departure declaration must be lodged and the risk assessment time?

Finally, what is the timescale for changing or bringing out a notice? How quickly would it be disseminated and expected to have an effect, and for what duration would it typically be expected to run? What happens to the live animal aspects, which the Minister mentioned, saying that they would use the same documentation? If the documentation is suspended, what happens to checks on live animals: are they abandoned, or will they run separately?

I do not really have any fundamental objection to the SI but, as the Minister will be able to tell from my questions, more surrounding information is really needed to put it in proper operational context. Brexit is an extraordinary event, but it is of some comfort to know whether international norms cater for extraordinary events or whether contingency measures that we have to take cause strain to those norms and, therefore, to other international relationships.

Spending Review 2020

Baroness Bowles of Berkhamsted Excerpts

Thursday 3rd December 2020 Grand Committee

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, the Government’s spending on Covid has been generous—even if some has gone awry—and I do not underestimate the change in mindset that it needed in the Treasury. But lessons of history show that switching too soon into restoring finances slows recovery. The UK was not first in, or alone in, amassing Covid-related debt, and nor does it have to prove a point as it did in the financial crisis. Central banks are no longer seeing low interest rates as an abnormal blip and the IMF advises against an early return to austerity—so why take fright and cut previous growth plans now?

Much of the UK’s social infrastructure is already underfunded. Social care has been left on an unsustainable footing by Governments of all stripes, and universal credit has been cut to below liveable amounts. These are not bleeding-heart views but among the conclusions of reports from the Lords Economic Affairs Committee, chaired by the noble Lord, Lord Forsyth, of which I am a member. The very least that should be done on universal credit is to maintain the £20 increase. Post-Covid and post-Brexit life is not going to be any cheaper, and we cannot build a recovery on the backs of hungry children.

Over 1 million people are still not getting the care they need. Training more people to deliver social care and creating a valued career path can be a key route to providing jobs for the future. With an ageing population, it is time to turn the problem of social infrastructure into part of the solution. Building social infrastructure is faster at job creation than building physical infra- structure, and both are deserving.

Future of Financial Services

Baroness Bowles of Berkhamsted Excerpts

Wednesday 11th November 2020 Lords Chamber

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I refer to my interests in the register.

A lot of time was used up seeking equivalence, and now it is right to move on with reforms and new matters. But what is the overall timeline, and will there be more democratic oversight than mere devolving of power? I welcome the unilateral equivalence decisions the UK has made. Many of them show that equivalence can benefit the granter; it is not all about benefits to those receiving equivalence.

I would also like to pursue the matter of pension funds investing in infrastructure. It is something we have envied in Australia and Canada for a long time. Has the Treasury considered how much more could be unleashed if there were not a systemic obsession of regulators with risk-free, liquid investment in government bonds? Post-Covid, is that not an even more outdated comfort blanket, which robs both public and pensioners?

[Lord Agnew of Oulton (Con)]

To reassure the noble Baroness, full disclosure will be made on any further progress with equivalence. The new Finance Bill, just starting its progress through both Chambers, will give opportunities to noble Lords to contribute.

On the issue of pension fund asset allocation, I agree that we have been too focused on pushing too many assets into government gilts or equivalent instruments and that enormous opportunity exists for investment in UK infrastructure.

Equivalence Determinations for Financial Services (Amendment etc.) (EU Exit) Regulations 2020

Baroness Bowles of Berkhamsted Excerpts

Wednesday 2nd September 2020 Grand Committee

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I refer to my interest set out in the register as a director of the London Stock Exchange.

I thank the Minister for introducing the regulations, but I admit that I got off to a bad start when looking at them. Helpful though it is to have tables in the schedule, I found it very awkward to have the regulations themselves drafted as an adjunct to a table that requires simultaneous viewing on different pages. I thought that I was in a puzzle book and having to take a cheat peek at the answers at the back.

First, I must consult the Schedule 1 list in the 2019 SI, and then I must cross-reference to table 1 in Schedule 1 of this SI—although it is unclear from reading Regulation 3 whether this refers to Schedule 1 of the 2019 instrument, as has just been referenced, or, as happens to be the case, Schedule 1 of this SI. I can find that out by discovering that Schedule 1 of the 2019 SI does not have a table. I must then repeatedly consult the table and look at each column to find out which paragraph of Schedules 2 and 3 and Schedule 1 of the 2019 SI are relevant. All of these instructions distract greatly from the clarity of Schedules 2 and 3, which really did not need all this obfuscation.

Aside from the structure, the SI seems to do what is necessary—although I reckon that it should have been part of the 2019 regulations to give regulators clarity. Unfortunately, this is all part of a patchwork that replicates, and makes even more confusing, the already tangled web of EU equivalence provisions that has evolved over time.

I hope that one day soon an overarching policy will be outlined on how the UK will balance openness, competitiveness, security and public interest in our future equivalence regime. This must reflect the needs not just of financial service companies in large countries but also the real economy companies that they serve, and encompass issues such as enabling trade at reasonable cost for the less developed countries. There can be a lot more to equivalence than first meets the eye, as was eventually realised with EMIR. At times, the benefits of equivalence may be needed within the country giving equivalence rather than the country gaining equivalence.

A similar point can be found in one of the fixes in today’s SI, which creates equivalence-determining powers so that where EU legislation says a third country has to have a recognition regime, we have one that qualifies. For us, this is fine, but the subtext of the EU requirement is a reciprocity requirement, and it is the sort of provision that needs care before imposing in any generic way, should that idea arise in the future.

It has been discussed previously, and in the context of authorisations, that regulators have been busy making various co-operation arrangements with third-country regulators where they did not already exist. It would be good to have an update on the progress of those agreements and how complete they are, including the business volume covered and the countries or instances where requirements are being waived.

Finally, a lot of energy and time has been expended researching, debating and hoping for a broad equivalence deal with the EU on financial services. Maybe that kept some in the City sweet and had to be heard and tried, but it has always been my informed view that that was unrealistic. Taken collectively, and in practice, equivalence for the EU is not really a matter of co-operation; it is yielded only when essential or aimed at promoting EU regulatory prevalence. Both those tendencies meant that resisting giving the UK equivalence was always going to be tested to destruction. It is what rises from the destruction that will be interesting, but it is not a sit-and-wait game.

Finance Bill

Baroness Bowles of Berkhamsted Excerpts

2nd reading & Committee negatived & 3rd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard) & Committee negatived (Hansard): House of Lords
Friday 17th July 2020 Lords Chamber

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, the expansion of IR35 has been postponed for a year. That is a small mercy, but a fair balance between the employed and the self-employed needs a more thorough reckoning. First, for the same reasons as now, the economy will not be in sufficient shape by next year to take the IR35 risk to workforce flexibility, nor for companies to take the burden.

Secondly, the fix is simply a tax fix that ignores the reality, recognised by both the Office of Tax Simplification and the Taylor review: that there is a set of flexible, dependent workers who are part way between being employed and self-employed. The Government are roping them in to tax and NI as if they were employed, on the basis of tax fairness, but leaving them out in the cold when it comes to employment rights and benefits, which is clearly unfair if they pay the same.

Thirdly, along with the aid given to the self-employed during lockdown, the Chancellor has indicated that a revision of national insurance and the coverage it provides for the self-employed might be necessary. This must apply vice versa, to the situation of the self-employed and the dependent worker: you must get the security that you pay for. Notably, many self-employed have been left out of grant-based help, ironically because they are not companies.

Fourthly, there is no fair solution, other than banning dependent workers, if this is not taken in the round alongside employment and social security rights.

Fifthly, contract workers have other expenses that can be imposed on them by their clients. How are these to be treated? They can include public liability insurance and giving indemnities to the client. They come as part of the package terms, which often include unreasonable contract terms that are not applied to employees. What protections will the Government bring in to defend taxpayers equally?

There are more points to make but time is short. As a veteran of proceedings on the Corporate Insolvency and Governance Bill, I share now, as I did then, the concerns expressed by my noble friend Lady Burt about the new preferential status for HMRC in insolvency, making it even wider in scope than before the Enterprise Act 2002. The arguments about it relating to tax paid by employees and held by the company do not wash, given that the company does not apply that logic to pension schemes in the hierarchy.

National Risk Register

Baroness Bowles of Berkhamsted Excerpts

Thursday 4th June 2020 Lords Chamber

[Lord True]

My Lords, the time for learning lessons, which is certainly ongoing, is also for the future. At the moment, the Government are concentrating every muscle and effort on protecting the people of this country against the virus and saving lives.

[Baroness Bowles of Berkhamsted (LD)]

What consideration of the risk register and preparedness plans is made in policy and financial decisions?

Covid-19: Economy

Baroness Bowles of Berkhamsted Excerpts

Thursday 4th June 2020 Lords Chamber

[Baroness Bowles of Berkhamsted (LD)]

Pandemics, like wars, change the path of history. This one has not only put into focus where austerity went too far but also changed perception of the role of the state, both here and internationally. Already, there are serious and credible suggestions for a post-war type of investment, taking advantage of low or negative interest rates to invest faster and more than was envisaged pre-pandemic. We will not be the only ones doing this, which adds a competitiveness angle.

Strategic self-sufficiency should pay a greater part, bringing environmental benefit along with security. The pandemic has also taught us that personal space matters. Inadequate and high-density housing, over- crowded public transport and excessive commuting are all promoters of illness, lost productivity and social misery as well as spreaders in pandemics; this affects, and infects, everyone in the end, and so it must change.

More economic support for business will be necessary, but it must work in a distributed and reinforcing way. Last week, the FT reported that Rolls-Royce threatened to chop any supplier that cannot give it a 15% discount. The same article points out that big manufacturers demanding cuts from suppliers are simultaneously using their need to support the supply chain as one of their pleadings to Ministers. I hope that the Minister has spotted this hypocrisy, and that BEIS will make it clear that help is for sharing and that squeezing the pips out of supply chains, unreasonable discount demands and paying late will count against them.

Beyond Brexit (European Union Committee Report)

Baroness Bowles of Berkhamsted Excerpts

Tuesday 12th May 2020 Lords Chamber

[Baroness Bowles of Berkhamsted (LD)]

My Lords, beyond the time when we must follow EU rules, engagement and influence remain important. That is common sense wherever we have large trading relationships, but there is nowhere in the world more open and organised for receiving input than the EU. Beyond committees and agencies, Brussels is awash with consultations, conferences and evidence sessions. Good speakers are sought from around the world, and a well-presented case can be very influential. It is serious work. My record was speaking at six such sessions in one day, and making several speeches in a week was common. Getting the tone and content right is of paramount importance, and claiming that we are best in the world is not it. “World’s best” is often claimed in this House. We do not always believe it, even if we want to, but I have also head it in Brussels from Ministers and officials in multinational settings, listening in horror as it jeopardised relationships and carefully crafted compromises. I am glad UKREP is getting bigger, but I query whether it is enough and hope that those appointed are recognised, not passed over, when returning to London.

Co-ordination with industry is also welcome. We do not have the government and industry solidarity on policy that some countries display, and I doubt we ever will, but collective strategic activity is very effective. Others have long done it and at a larger scale.

Finally, one effectiveness factor that should not be underestimated is transparency to Parliament and the public. There is nothing as persuasive to any argument as their endorsements genuinely obtained.

Income Equality and Sustainability

Baroness Bowles of Berkhamsted Excerpts

Wednesday 6th May 2020 Lords Chamber

[Baroness Bowles of Berkhamsted (LD)]

My Lords, income inequality is accompanied by a lack of security and inequalities in health and longevity. Keeping the poorest poor is not good value for society or the state. The financial crisis slightly levelled incomes but left millennials comparatively disadvantaged, and now they are the ones most likely to have younger children, hit by school closures and cut off from grandparental help.

Indices now show that inequality is back on the rise, and the pandemic has already created its own economic inequalities—those who can work and those who cannot, those qualifying for grants or furlough payments and those who are not, those who will have jobs to return to and those who will not.

In January, a World Economic Forum report indicated that increasing social mobility—a key driver of income inequality—could benefit the UK economy by $130 billion by 2030. Tell me a better way to help recovery.

We can use what we have learned in lockdown for good. The “new normal” should treasure the positives, keep them and reinforce them. Work from home has been enabled for so many more people—use that to enable a more sustainable work/life balance, cut transport, and open more jobs to the disabled, carers and other people who have not been given the chance to work entirely from home.

We can have a green recovery, a caring recovery, a better shared recovery—and find that it pays its way. Will the Government seize that opportunity?