Levelling-up and Regeneration Bill

Debate between Baroness Finlay of Llandaff and Lord Hope of Craighead

Committee stage
Monday 20th February 2023 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I added my name to Amendment 17, which was so well introduced by my noble and learned friend Lord Thomas of Cwmgiedd. I will add a few words to emphasise points he has already made. I should declare an interest here: I co-chair the Bevan Commission, which advises the Welsh Government on health issues.

It is incredibly important to recognise that the Governments of Wales, Scotland and, to a certain extent—one hopes it will be fully restored—Northern Ireland have legislative-making powers. Several Acts of Parliament have given them specific powers that have expanded, and they can write their strategy and the way it will be implemented. That is completely different and goes much further than any regions in England, which are quite separate.

The point of this amendment is to move away from simply consultation, which might sound nice and tokenistic and involve signing off, to actually having proper co-production. It needs to be in the Bill to ensure that whichever Government is in place in future, as this legislation sits on the statute book, the relevant Governments will work together to meet whatever the missions are that are then determined over time.

It is important to look, as has already been referred to, at page 121 of the White Paper, which stresses that

“two of the missions are overarching, outcomes-based measures of success for levelling up”.

These are boosting living standards and pay and improving measures of well-being across every part of the UK. The Well-being of Future Generations (Wales) Act 2015 has been viewed as really ground-breaking and leading the way for Wales—way ahead of other parts of the United Kingdom. It has influenced the way decisions are made in many walks of life, which people living outside Wales are completely unaware of.

The remaining missions are viewed as intermediate outcomes. As has already been said:

“Unless otherwise specified, the missions apply across the whole of the UK. Devolution settlements mean the policy levers for achieving aspects of these missions are devolved to administrations in Scotland, Wales and Northern Ireland.”


I really worry about that wording, because it is not strong enough to recognise the strategic responsibilities and the responsibilities of the devolved Governments in making legislation to fundamentally influence the way that people within their own nations live.

My concern is that, if we do not move completely to co-production of the way these missions are to be interpreted, we will end up with increasing fragmentation across the United Kingdom, rather than increasing coming together. As has already been said, one hopes that there is a glimmer of light, that we might actually be back to consolidating as a United Kingdom: the four nations working together really well, recognising differences, respecting different policies and all wanting the best for the well-being of the whole population of the whole of the United Kingdom. That is what levelling up should be about. It should be about benefiting everybody.

If arguments ensue over the way in which something is perceived to be being directed, or not, there will be dissent, which could be a recipe for a disaster—and it is completely avoidable. I therefore hope that the Government will look favourably on these amendments and table an amendment of their own later to ensure that that co-production is in place.

To illustrate this, a comment that really struck me was at the end of the White Paper, where there are all the ambitions for the different regions and nations—they are there for Scotland and they are there for Wales. However, it struck me as slightly odd that they were all put in together, rather than having the devolved nations separately and then the regions of England stated. This is not to criticise the ambitions—we all need ambitions and things to aim for to improve—but I think that the differentiation between Governments who have primary and secondary legislation responsibilities and the ability of local authorities to move money around in different ways needs to be included in the Bill.

[Lord Hope of Craighead (CB)]

My Lords, I have put my name to Amendments 22 and 23, with the name of the noble Baroness, Lady Hayman of Ullock. These deal with the issue of consent, which I think is crucial to the way in which this problem should be addressed.

Living where I do, north of the border, one of the things that I tend to do when confronted with a Bill is to look at the clause near the end which describes its extent. As happened in the case of this Bill, I started at the front and read through Part 1 and then on into the other parts and so on. When I came to the extent provision, I was astonished to find that Part 1 applied to Scotland, Wales and Northern Ireland, because there is not a hint in the wording of Part 1 that these different Administrations exist. They are not mentioned at all; there is no mention whatever of consultation. That is the reason why, when I saw these amendments, I was extremely grateful to the noble Baroness for raising this issue of consent.

I am also a member of the Constitution Committee, which examined the way in which the whole of the United Kingdom is governed. One of the issues we of course looked at was devolution. There were two words at the start of our report which highlighted the message we wished to convey: “respect” and “co-operation”. The Government welcomed our report, and I think they recognised the value of these two words. However, look at Part 1 and ask yourself what it is saying about Scotland, Wales and Northern Ireland; I see very little sign of respect and certainly no sign of co-operation at all. That is a matter of extreme concern, which is why I think it is necessary for some reference to be made as to how the relationships between the United Kingdom Government and the devolved Administrations are to be dealt with.

Mention has been made of the nature of devolution to these different parts of the United Kingdom. I should mention one aspect which is special to Scotland: it has tax-raising powers that it exercises. We in Scotland pay our own tax—at a higher rate, I may say—to fund the matters that the Scottish Government deal with. These include health, housing, education and crime, which are all matters listed in the annexe to the White Paper. This raises the question as to how you can possible reconcile the spending aims of the Scottish Government, which are evolved so that they make up their budget for tax-raising, with the United Kingdom spending money in those same areas without consultation. With the prospect of two bodies spending money in the same areas, which they have the power to do, it would be very strange indeed if they did not at least consult with each other to see that they were not duplicating effort. Consultation is not merely a matter of proper governance; it is a matter of common sense.

That having been said, there are aspects of the levelling-up list which I very much welcome. Mention was made at the very beginning of our debate of the extent to which it was hoped that money could be spent in Scotland to level up in that area. There are certainly aspects of the list—well-being, skills, digital connectivity, transport and so on—where money could be spent without, as it were, duplicating effort in areas which are plainly devolved to the Scottish Government. There is at least something here that I welcome, but without the provision of consultation to avoid confusion and duplication of effort, I do not see how the matter can be properly handled. I am very much in support of the two amendments I have mentioned.

Professional Qualifications Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord Hope of Craighead

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, like others who have spoken, I strongly support these amendments. I am most grateful for the most comprehensive speech by the noble Baroness, Lady Randerson, who laid out clearly what the issues are, both in terms of the constitutional conflict that is in the Bill at the moment, and the consequences of it, and also the consequences for services within Wales. I think these also apply to Scotland, but I should declare an interest as someone who lives and works in Wales—that is the area of my own experience. I ask the Minister to explain quite clearly why the draft of the Bill was given to the Welsh Government only a week before it was published, and why the final version was not seen before it was laid on 12 May. To me, that does not feel like consultation or like any attempt to find a consensus agreement with devolved Administrations at all.

There is a concern that the skills shortages are being linked to the trade policy agenda, and how the new obligations on regulators could be moved and adjusted because they are driven by some trade policy, rather than by the need to ensure that we have safe and effective high-standard services for people within our nation. Although Clause 14 confers regulation-making powers on the appropriate national authority, these are exercisable only concurrently with the Secretary of State and Lord Chancellor. That seems to make it possible that the Secretary of State or Lord Chancellor could legislate in devolved areas and would not be required to obtain the Minister’s consent to those regulations. I understand that the Minister stated in a letter that these powers would not normally be used, but the problem is that once this is in legislation, such assurances do not carry any weight at all, and they are not binding on this or any subsequent UK Government. So it would seem that there are really serious risks, as the noble Lord, Lord Bruce of Bennachie, outlined.

In the event that there needs to be regulatory compromise in the interests of trade—I cannot think of a specific example, but I see the confusion and conflict between these two areas—will the Minister confirm that any such regulatory compromise will be notified to Parliament, to ensure that there is parliamentary accountability for any pressure put on to compromise any standards? We have heard in this debate already about the importance of common frameworks, but I will finish by advocating that the Government look very carefully at these amendments and make sure that they do not drive a further wedge between the four nations, because the consequences really do not bear thinking about. I certainly agree with those who say that they create an additional threat to the cohesiveness of the union.

[Lord Hope of Craighead (CB)]

My Lords, the Minister assured the House earlier this afternoon that the autonomy of the regulators would be respected. I am sure we all take the Minister’s assurance at face value and fully understand what he is getting at, but one of the many problems that lurks within the Bill and the wide regulation-making power it creates is the risk of causing collateral damage by careless or inadvertent wording or insufficient research before the power is exercised. As I said at Second Reading, the centralised systems that the Bill seeks to create will work only if the diversity that exists across the United Kingdom is fully respected. That is especially true where the devolved Administrations are concerned.

My own experience is confined to the systems for regulation of the legal profession in Scotland, but it is a guide to how the regulatory systems among the professions may differ from each other. In my cases, they involve not just one but two regulators working together, and there are different systems for the two branches of the legal profession in Scotland. For the Law Society of Scotland, which regulates solicitors, it is the society itself, working together with the Lord President of the Court of Session. For the Faculty of Advocates, it is the Court of Session itself, whose functions are then delegated to the Lord President of the faculty. The message that these two examples conveys is that it cannot be assumed that the regulatory systems that currently exist are alike in all cases, or even in most, so great care is needed to ensure that what is being done fits the requirements and practices of the profession that is being regulated.

This brings me to Amendments 13, 24, 35 and 40, in the name of the noble Baroness, Lady McIntosh, to which I have added my name. The point that each of these amendments is making is that prior consultation with the devolved Administrations and the regulators is essential before the regulation-making powers in Clauses 1(4), 3(3) and 5(2) are exercised. I shall say a little more about each of these subsections.

Clause 1(4), which is about providing for individuals with overseas experience and qualifications to be treated as having UK qualifications, really has to be read with Clause 1(5), which sets out a list of the many provisions that may be made in the exercise of the Clause 1 power. They are very wide-ranging. Paragraphs (f) and (g) in the list are of particular concern, as they are so wide in their scope. The words “guidance” in (f) and “other duties” in (g), which are not otherwise qualified, leave a huge amount to the discretion of the national authority.

United Kingdom Internal Market Bill

Debate between Baroness Finlay of Llandaff and Lord Hope of Craighead

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 18th November 2020 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, I wish to move the first of three amendments in this group, which consists of Amendments 1, 38 and 51. They address the rules for the mutual recognition of goods in Part 1 of the Bill, of services in Part 2 and of professional qualifications in Part 3. They are all directed to the same essential point: the relationship between the common frameworks process and the internal market that the Bill seeks to create. Underlying this is a question which goes to the heart of the relationship between the Governments of the four nations in this United Kingdom.

There are two ways in which our internal market can be created. Is this to be a market created by all four nations working together, as they are doing through the common frameworks process, or is it to be created by imposition from Westminster, as the Bill seeks to do? If it is the latter, do the Government really support devolution, as the Prime Minister is now asking us to believe? Actions speak louder than words. How the Government respond to these amendments will tell us where the truth lies.

I am grateful to those noble Lords who have joined with me in proposing these amendments. I should make it clear that I intend to divide the House if the Minister is unable to give me an assurance that the Government accept the principle that lies behind the amendments and will come back at Third Reading with amendments of their own that give effect to it.

The noble Lord, Lord True, has said several times that the market access principles are designed not to replace but to complement the common frameworks. I am sure that he will not mind when I say that he was not the first to use that expression, nor, since it is not his word, if I tell him what I think of it.

The word “complements” is in the White Paper. The noble Lord assured us that the Government remain committed to the common frameworks programme. I would like to take him at his word, but what does he mean by that? Are the market access principles that the Bill sets out really complementary to each other, as he has indicated? It is hard to see how that can be, unless the Bill itself tells us how these two systems are to work together towards the same aim. As it is, when you consider the effect of the market principles on that programme, to say that they complement each other seems a complete misuse of language. My amendments seek to bring the two together, in a way that fully respects the devolution settlement while allowing the principles to operate fully in all the other areas that the common frameworks do not touch.

Without going over again all the ground that I covered in Committee, I should remind your Lordships that the common frameworks process has its origin in an agreement reached at a meeting of the Joint Ministerial Council in 2017. Something had to be done to create a harmonious working relationship between them all when we left the EU. The devolved nations had been able, within the limits of EU law, to fulfil their responsibilities as devolved Governments to formulate and apply policies that best suited their local circumstances. So it was agreed that they and the United Kingdom Government would work together through common frameworks in order to enable the functioning of the UK internal market, while—this was a crucial part of the agreement—acknowledging policy divergence. Therefore, each devolved Administration was to retain the ability to diverge from the harmonised rules in their territory within the mandate given to them by the devolution settlement, after consulting the relevant policy group to see whether a common outcome could be reached and agreed to. Now, three years later, and without the agreement of the JMC or any of the devolved nations, we have this Bill.

Not only does the Bill ignore the common frameworks process but it destroys one of the key elements in that process that brought the devolved Administrations into it in the first place: it destroys policy divergence. It destroys those Administrations’ ability through that process to serve the interests of their own people, and to innovate. The common frameworks operate by working out solutions by agreement between the four nations. If a policy divergence is sought, it has to be agreed to. The market access principles system, on the contrary, does not operate by agreement; it is hard edged. It is a set of strict statutory rules which, apart from the few limited exceptions, do not allow for any divergence at all.

A policy aim which is designed to deal with serious threats to human, animal or plant health will be protected by the exclusion in Schedule 1, but that exclusion is narrowly drawn—threats to the environment, for example, are not mentioned. So policy aims giving effect to advances in the science relating to biodegradable plastics, for example, are outside its scope. As time goes on, there will be others which one party to the common frameworks system would like to put into effect. Business is nothing if it is not dynamic, so there must be room for improvement in what we do across all four nations. The common frameworks system should be allowed to develop but, under the Bill as it stands, all of that will be inhibited by rigid rules.

It does not have to be that way. Our amendments seek to go to the heart of the problem. They assume that a requirement is enacted by a devolved Administration that has been agreed by all four nations under a common framework. They assume that it is being enacted to give effect to a policy formed within its own part of the UK, which the other nations, having assessed its effect on the market as whole, are willing to accept. The question is: how can that requirement retain its effect if traders from another part of the UK can simply ignore it when trading across the border? There is nothing that a trading standards officer—or a court, for that matter—could do to prevent that. This is an invitation to traders—who operate, after all, in their own commercial interests according to the rules of the marketplace—to disregard the requirement as they please when they cross the border.

The devolved Administrations deplore the fact that a process that all four nations have agreed to is at risk of being undermined in this way. The Welsh Government have indicated that they cannot agree to this. The Scottish Parliament has refused to consent to it. Others will speak for Northern Ireland. How can this be a UK internal market when it does not have the support of the other nations? Please do not say that there is widespread support for this Bill. That is not an answer to the very precise question that I am raising, which the White Paper said nothing about at all.

Our amendments seek to do no more than allow the two systems to live together. It will enable them both to work together towards the same common aim. In that way the market principles will truly complement the common frameworks, instead of undermining them and calling into question the whole process. Had it not been for the devolved settlements—for devolution itself—there would have been no problem. We would have been a single Administration and there would have been no need for this Bill at all. But we cannot turn the clock back. Devising rules for this internal market requires us to accept the constitutional arrangements that now exist. It is the genius of the common frameworks that a way was found, by agreement, of doing that. That is what our amendments are all about. They are no wider than is necessary. They are not seeking to undermine the Bill. I beg to move.

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

My Lords, in this group I wish to speak in particular to Amendment 1, which my noble and learned friend Lord Hope of Craighead has explained most eloquently. In Committee, the Government tried to assure us that Parts 1 to 3 of the Bill were somehow compatible with or complementary to the common frameworks process, that the Government were fully committed to that process, and that the intention of the Bill was to fill in the gaps where common frameworks did not operate. But we had no explanation of how the common frameworks process and the market access principles would work alongside each other. No real-world example was cited that the existing common frameworks process did not or could not address in the future.

For example, we were told that different building standards would tie the construction industry in knots. But there are already different building standards, including the excellent requirement in Wales that builders must install fire suppression systems in all new residential premises. This was introduced 14 years ago by the then National Assembly, and guidance to the sector on it runs to several hundred pages—understandable for a measure that will save lives. Has the construction industry been campaigning against devolution as a result? No. Then there was the risk to the English supply of malting barley to Scotland from divergent restrictions on pesticides. That case folded when the noble Lord, Lord Purvis of Tweed, pointed out that the use of fertilisers and pesticides was one of the extremely rare explicit exclusions from the market access principle.

United Kingdom Internal Market Bill

Debate between Baroness Finlay of Llandaff and Lord Hope of Craighead

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 2nd November 2020 Lords Chamber

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

My Lords, it is a pleasure to follow the noble Lord, Lord Bruce of Bennachie, and my noble and learned friend Lord Thomas of Cwmgiedd, who has explained, from a constitutional perspective, why Clause 48 has very little to commend it. I will illustrate why the powers that Ministers want to take for themselves might, in practical terms, be dangerous and damaging.

Under the last Labour Government, the Labour-led National Assembly chose to go in a different direction on education, which was one of the ways in which the late Rhodri Morgan put clear water between his Government, reflecting the unique circumstances of Wales, and the Government in London. The Welsh Government eschewed moves to establish foundation schools, academies and free schools. They have maintained the central role of local authorities in funding and supporting all schools, arguing, not least in rural areas, that an unplanned proliferation of schools would damage the viability of all educational establishments. They have vigorously championed comprehensive education. Whether or not you support this approach, the current Welsh Government have a mandate for it, supported by Plaid Cymru, meaning that more than two-thirds of Members of the Senedd back this policy.

Were the powers in Clause 48 to be granted, the UK Government could choose to fund free schools across Wales. This would positively undermine the policies backed by a majority of the Members of the Senedd and, more relevant still, a majority of the electorate. Even if the funding for such an initiative was genuinely additional to the block grant—I ask the Minister to give an unequivocal guarantee that that would be the case—such an intervention, even though it would give extra money, would undermine the Welsh Government’s education policy. A free school in an area such as Denbighshire could easily dramatically impact on the viability of local maintained schools. This does not seem right.

The cleanest way of dealing with and preventing this threat would be to remove the clause from the Bill. Nevertheless, for my part, I would be prepared to support alternative approaches. At the heart of this is the question of the so-called shared prosperity fund, which I am afraid some in the devolved nations suspect is a way of reallocating the funds that should come their way, especially to west Wales, to benefit the prosperity of England. The proposal of the noble Lord, Lord Stevenson, to establish a shared prosperity commission would dispel such suspicions by allocating replacement funds on the basis of need, not politics. However, as my noble and learned friend Lord Thomas explained, the onus really is on the Minister to give an explanation, which has been lacking to date, of why these powers are needed now when they have never been needed before.

[Lord Hope of Craighead (CB) [V]]

My Lords, I join the previous three speakers in giving notice of my intention to oppose the question that Clause 48 should stand part of the Bill. The grounds for my opposition to Clause 48 are based on paragraph 4(1) of Part 3 of Schedule 5 to the Scotland Act 1998. This is, after all, a devolution issue. That paragraph provides:

“This Schedule does not reserve giving financial assistance to commercial activities for the purpose of promoting or sustaining economic development or employment.”


In other words, it is within devolved competence for Scottish Ministers to provide financial assistance for these purposes. The same is true, I understand, of Welsh Ministers and in Northern Ireland.

The geographical reach of this provision is indicated by the fact that it applies to the whole of the UK. The power being sought would seem to cut across the powers of the devolved Administrations to provide this assistance in accordance with their own policies and order of preferences, although I appreciate that it extends over a wider field of activities. Providing assistance for reasons not at one with those policies and preferences would cut across the devolution settlements and for that reason be regrettable. I was very impressed by the example which the noble Baroness, Lady Finlay of Llandaff, gave of how it could interfere with preferences felt in Wales, and no doubt examples could be found in the other devolved Administrations.

More importantly, I, like others, am looking for further information about how this clause is intended to operate. As the noble Lord, Lord Stevenson of Balmacara, asked, what is the plan? Is it the intention that there should be consultation with the devolved Administrations before this power is exercised? If so, what weight will be given to any concerns that they may have? There is no attempt that I can see in the Bill to repeal the paragraph of Schedule 5 to the Scotland Act 1998 to which I referred, so presumably that power is to survive along with the power being given by this clause. To what extent, with regard to purpose and the amount of money involved, is this intended to reproduce within the UK what until now has been forthcoming from the EU? Can we expect the same amount of benefit to be spread among the nations as we have received hitherto? Will the ability of the devolved Administrations to use the powers reserved to them by the provision I quoted be limited in any way when this clause is brought into effect? If so, is that the intention? How are the funds which may be made available to be divided up between the nations? Can we be given any clarity on that point?

I hope that the Minister can shed more light on how this power is intended to operate, but at the moment, from what we have seen so far, it seems to cut across the devolution settlement and to be highly objectionable on that ground.

European Union (Withdrawal Agreement) Bill

Debate between Baroness Finlay of Llandaff and Lord Hope of Craighead

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, like others who have spoken about devolution, I have made many points and will not repeat them. However, it is important that the Government do not misinterpret the vote to leave the EU on the back of the slogan of “taking back control” as a vote for yet more concentration of power in the hands of people who work within a mile or so of this building. People want a sense of direct influence over their lives and things that really matter to them.

The amendment simply supports the status quo of the Sewel convention. It respects the relationship between Westminster, the Scottish Parliament and the Senedd. I urge the Government to recognise that it does nothing to constrain their agility in negotiating or their ability to negotiate. If the culture change that the noble Lord, Lord Howarth, spoke about so eloquently today is to happen, surely we must recognise that there are Governments other than the one in this Chamber and at the other end of this building.

[Lord Hope of Craighead (CB)]

My Lords, I should like to reply to the point made by the noble Duke, the Duke of Montrose. I think he suggested that the inclusion of this amendment in the Bill would render the convention justiciable, and that there was something about it that would attract the attention of the judiciary. I have lived with the Sewel convention for a very long time, particularly with the amendment to the Scotland Act, now enshrined in Section 28(8). One of the points made by the Smith commission was that it wanted the Sewel convention to be given statutory effect. I am afraid that that battle was lost because, as Section 28(8) of the Scotland Act puts it, it remains a convention. Indeed, it was made perfectly clear by the Supreme Court when it considered the matter that it is not justiciable; it is simply a convention.

For my part—having, as I say, lived with the convention repeatedly through the 1918 Act—I relied on assurances by Ministers that they would respect the convention. It was not actually written into the Act, as I recall. So, for my part, I shall listen very carefully to what the Minister has to say, because in the past this has been handled by Ministers giving assurances that the House has respected. I am not certain that it is necessary to write it in in this way, but if I do not get that kind of assurance, I might go with the amendment. The words that the Minister uses will be extremely important to me in deciding what to do.