United Kingdom Internal Market Bill

Baroness McIntosh of Hudnall Excerpts

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

[Lord Randall of Uxbridge (Con) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Whitty. I too want to speak in support of Amendment 11, in the name of the noble Baroness, Lady Boycott, which I was pleased to add my name to. We have just heard from the noble Lord, Lord Whitty, who also signed the amendment and has astutely and eloquently put the case for it.

I apologise that I was not able to join your Lordships’ deliberations in Committee, but, from reading Hansard, I see that my noble friend the Minister stated:

“The current list of legitimate aims will … align in many cases with the protection of the environment … expanding the list … beyond the current list would increase the grounds on which goods from one part of the UK could face discrimination in another … but with each addition steadily eroding the benefits that we all enjoy of the UK internal market. Expanding the list would also make discrimination easier to create and implement within the internal market.”—[Official Report, 28/10/20; col. 338.]


With respect, I disagree with that. Amendment 11 adds the protection of environmental standards to the shortlist of what constitutes a legitimate aim. It is imperative that, at a time when most acknowledge that we are in a climate and nature crisis, the protection of environmental standards should be considered a legitimate aim—indeed, as the noble Lord, Lord Whitty, said, it is probably the most important legitimate aim—and that we can do so without it being treated as indirect discrimination.

As we have also heard today, the Government have unveiled a series of measures that are ground-breaking and very ambitious, and I do not doubt that the Government take environmental standards very seriously. I hope that this amendment will give them an opportunity to give more power to their elbow. This, I believe, is a very achievable ask and I hope that my noble friend the Minister will agree that it will help to ensure that the internal market supports the achievement of environment and climate goals and targets at this crucial time.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

I call the next speaker, the noble Baroness, Lady Boycott, although I am not completely convinced that she is with us. No, she is not, so I will move on to the next speaker, the noble Lord, Lord Wigley.

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The absence of trade barriers is also crucially important when the UK comes to negotiate new trade treaties. Our negotiating strength would be seriously undermined if the Government were not able to be clear about how the UK’s own market works internally and how access would work for trade counterparties. International trade is most definitely not a devolved competence, and nor should it be if we want to stand on the world trade stage as a major player. I hope that all noble Lords would align themselves with that aim now that we have left the EU. Schedule 1 contains some significant exclusions from the market access principles. I urge noble Lords not to make exclusions from the internal market so great that, as these amendments have the capacity to do, they kill the infant internal market in its cradle.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Lord, Lord Cormack, has withdrawn from this debate, so I call the noble Baroness, Lady Clark of Kilwinning.

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The Bill aims to ensure frictionless trade, movement and investment between all nations of the UK, and these amendments would, in our view, compromise our ability to achieve that objective. For the reasons I have provided, I therefore cannot support these amendments and I hope the noble Lord will feel able to withdraw his amendment.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have received no requests to ask the Minister any short question, so I call the noble Lord, Lord Stevenson of Balmacara.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I thank everyone who has spoken in this debate for their thoughtful and often powerful contributions. It has been a wide-ranging debate and a very interesting one. It has raised new dimensions in our debate today, and for the ones we will have in succeeding days on Report.

It made me think of two things that I want to share with the House in concluding. A lot of the problems with the Bill arise from the accelerated timetable it has gone through. The feeling I am left with after this debate is that if there had been more time for debate prior to its publication, we would not be facing the rather uncomfortable tension between the wish to maximise consumer benefit and reduce barriers to trade, which has been expressed by a number of speakers and which we fully support, and being unable to respond to local wishes in parts of the country on issues that matter to local people. We want there to be competition not only in raising standards but in innovation and finding new ways of dealing with issues of public policy that may arise.

Interestingly, various derogations and exemptions that appear in the amendments in this group mimic the concerns expressed during the Trade Bill, which we will return to later this year, and which were resolved in the Agriculture Bill, with the Government conceding that there needed to be a statement on the standards of environment, animal welfare and animal production standards in relation to the agricultural trade and products. If you add public health, social and labour standards, we are back with the lists that appear in today’s amendments. I wonder why that is; I do not really have an answer. However, it might be worth more consideration. I will look carefully at Hansard to see whether we can find a common thread that might be picked up in later amendments, and on which it might be worth pushing for further debate if we can—or perhaps to a vote.

In passing, I am sorry that the noble Baroness, Lady Noakes, whose contributions are always of interest, was foxed by the term “cultural expression”. I believe that is the term used when state aid is used to support activities that would otherwise not be possible. A reference here would be the horse race betting levy, which would otherwise be banned, or the support that this Government brought in to support the film industry, animation, high-end drama and other aspects of cultural life, building on work done initially by the Labour Government. I think that is where it comes from. If it is valid for anyone in the public sector or an elected organisation to wish to see more work, investment and activity in the green economy, for example, as the Prime Minister announced today, it is just as appropriate to say that there could be support for cultural expressions, the term used to talk about the culture industries.

The general feeling is that the Bill is too tightly constrained around how the market access provisions will work—so much so that there may be disbenefits to consumers unless people in different parts of the country can respond differently to issues they feel strongly about. As I said, I will read Hansard, but I feel that while the common frameworks will be able to carry most of the load of the issues raised today, they will not take us all the way and it may be necessary to return to this issue at some stage. In the interim, I beg leave to withdraw the amendment.

Amendment 11 not moved.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

I should inform the House that if Amendment 12 is agreed then I cannot call Amendment 13. Does the noble Baroness, Lady Andrews, wish to move Amendment 12 formally?

Amendment 12

Moved by

United Kingdom Internal Market Bill

Baroness McIntosh of Hudnall Excerpts

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

The noble Baroness, Lady Noakes, got it right when she worried about the danger to the CMA if the OIM, even without the powers I think it should have, were bolted on to the CMA as it currently is. So my model would be Ofcom or even the National Audit Office. The only argument against this seems to be the injunction not to create new quangos—which, coming from a Government who are about to establish the Trade and Agriculture Commission on a permanent basis, feels a bit rich. I beg to move.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Lords, Lord Hain, Lord Cormack and Lord Empey, have all withdrawn their names from this debate, so I call the next speaker, the noble Baroness, Lady Bowles of Berkhamsted.

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

My Lords, I listened with interest to the noble Lord, Lord Stevenson. The separate grouping of these amendments has put an additional focus on some of the intent.

I see the merit in taking time to get it a bit more right and use regulations for the detail, but it seems to me that the moment to legislate is still when there has been agreement between the four nations, rather than in a fixed time period. I am not sure that I condone such a wide ability to amend any Act—could the Act or Acts not perhaps be named?—although I acknowledge that the purpose is limited. However, those are details; I accept the principle and direction the noble Lord is suggesting.

Concerning the new schedule in Amendment 131, I still question the ratio of six Secretary of State appointments to one each for the devolved Administrations, especially in the absence of introducing a regional element for England. Quite controversially, the new schedule also creates powers for the OIM to deal with distortive or harmful subsidies and subsidy races.

Such a provision is the elephant in the room if it is not done at some stage. Third countries could launch trade remedies complaints against the UK if they were affected by distortive or harmful subsidies. From that perspective, it is of great benefit to have a body that is seen to be independent overseeing those matters, rather than being at the political level of government, which is where it seems to be held at the moment. It is the opposite side of, but with the same logic as, the Trade Remedies Authority needing to be seen to be independent. However, regarding the four nations, the scope of intervention would be wider than would interest third countries, unless there is some corresponding agreement with third countries or the EU.

I am not actually sure how it would all work out. As yet, because I have concerns about the CMA—although I accept that looking at subsidies might be something it is better adjusted to do—it will be a little while before I could slip in this enormous power without resolving all the other issues that remain, including powers, unless the noble Lord is suggesting that this is all that the OIM can do. Anyway, I think that there are some good things and some bad things in there, and it is interesting food for thought.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

I call the noble Baroness, Lady Jones of Moulsecoomb.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, the Government are certainly getting a lot of advice during the passage of this Bill. As the noble Lord, Lord Cormack, said, they really ought to know that they do not have all the answers. So I do hope that the Minister listens.

The amendments in this group follow perfectly the Government’s announcement that they are putting the trade commission on a statutory footing. If the Government want to run an internal market, surely it is right to create a fully functioning governance body for that purpose. Merely tagging on a few functions to the Competition and Markets Authority shows a weakness of purpose and a lack of understanding of exactly how everything should run. Giving the new office for the internal market the power to investigate distortive and harmful subsidies could have a powerful impact on wiping out the implicit and explicit subsidies for fossil fuels, particularly unconventional oil and gas fracking. These implicit and explicit subsidies include a streamlined planning process and no requirement for the company to make a bond, unlike the landfill industry, equating to the government underwriting of the clean-up of fossil fuel sites in the event of corporate bankruptcy. So once again taxpayers would pay to clean up other people’s mess.

Just to be clear, the journalist at Drill Or Drop? suggests that the OIM can comment on controversial issues such as fracking, which, as we all know, is a dangerous, polluting, expensive, intrusive and—in view of our global need to limit our carbon emissions—unnecessary process. The OIM could give advice contrary to the devolved Administrations’ decisions. Can the Minister tell me if that is true?

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

I apologise to the Committee and very personally to the noble Lord, Lord Judd, whom I omitted to call before the noble Baroness, Lady Jones. So I call the noble Lord now.

[Lord Judd (Lab) [V]]

Thank you. My Lords, I will be brief. I just want to say how much I commend the amendments from my noble friend Lord Stevenson. He is setting out principles which are very important, rather than just the general purpose, and for that we should be grateful. I would also like to put on record that I am glad that he has taken, on previous amendments, the point that what we must be aiming for in all this is a situation in which there is a sense of shared ownership and the shared involvement of all the parts of the United Kingdom.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I appreciate the comments made in the debate and I appreciate that these amendments seek to correct, improve and debate the issue. Indeed, that is the role of this Committee. Given that, I take issue with the last point made by the noble Lord, Lord Fox.

Amendments 115 and 131 would bring in fundamental changes to the statutory basis for the Office for the Internal Market. They propose making the office a separate, standalone public body, thereby removing its Crown status. The noble Lord, Lord Stevenson of Balmacara, suggested that the new OIM should use Ofcom or the National Audit Office as a model. This would fundamentally change the nature of the OIM. It would change its funding model and would ask it to operate like a regulator, although it is not intended to act as one.

It has already been explained that the Government have concluded that the CMA is best suited to house the Office for the Internal Market to perform these functions, and the reasons were set out in the Government’s consultation response. I will again emphasise the key points. The CMA has built up a wealth of expertise and experience that makes it a natural fit to take on these additional functions. It has a global reputation for promoting competition for the benefit of consumers and for ensuring that markets work well for consumers, businesses and the economy. We will come on to discuss the concerns of the noble Baroness, Lady Hayter, about the interests of consumers being reflected in the OIM.

The Office for the Internal Market will build on the CMA’s existing technical and economic expertise which will now support the further development of the UK internal market. My noble friend Lady McIntosh asked how we can guarantee the independence of the OIM and ensure that we carry the devolved nations with us. The OIM will be independent and will operate at arm’s length from the Government and the devolved Administrations. It will not be an enforcement body and it will not be able to override the decisions of any of the Administrations. As noble Lords will know, the Government are continuing their engagement with the devolved Administrations as the functions are developed further.

In the last group, the noble Lord, Lord Purvis, asked what the incentives are for the devolved Administrations to use the OIM. All of the devolved Administrations have an interest in the smooth functioning of the internal market and the development of effective regulation to support it. The Government are confident that all the Administrations and legislatures will value the expertise and advice of the OIM and the authority of the evidence base that it will build up.

The noble Baroness, Lady Jones, asked whether the OIM will give advice on the decisions made by the devolved authorities. I assure the noble Baroness that the non-binding advice of the OIM will provide a complementary and expert resource to help facilitate better regulation and, should it be requested, this will include regulation developed by the devolved Administrations as well as by the UK Government. The OIM will be independent and will operate at arm’s length from the Government and the devolved Administrations. As I have said, it will not be an enforcement body and it will not be able to override the decisions of any of the Administrations.

An earlier grouping addressed the involvement of the devolved Administrations in the panel membership of the office. I will therefore say briefly that the direct devolved Administration appointments to the panel of the OIM would risk its effective and independent operation. Appointments to the body will be made by open and fair competition and the chair through the robust procedures of the Public Appointments Commission and the Cabinet Office, which operates across the jurisdictions of all of the devolved Administrations.

I turn to UK subsidy control. Clause 50 reserves to the UK the exclusive ability to legislate for a UK subsidy control regime in the future. It is an issue of national economic importance as it is essential to supporting the smooth functioning of the UK’s internal market. We will debate the detail of subsidy control reservation in a later grouping, but I will cover it briefly now. On 9 September, the Government published a statement regarding the future of subsidy control. In that statement, we committed to publishing guidance on the international commitments that will apply to the UK on 1 January 2021, before the end of the year. This will cover World Trade Organization rules on subsidies and any commitments we have made in free trade agreements.

We also set out our intention to publish a consultation in the coming months on whether we should go further than our WTO and international commitments. This will include consulting on whether any further legislation should be put in place. The amendment would create uncertainty and fundamentally undermine the future consultation which will be the mechanism through which decisions regarding future regulations for UK subsidy controls will be made.

In addition, it should be noted that the function of the office for the internal market will be to provide non-binding technical advice, monitoring and reporting on the health of the internal market. It is not the Government’s intention to give it a range of enforcement and regulatory powers, which the proposed new schedule would do in respect of UK subsidy control.

My noble friend Lord True said on an earlier group of amendments said that, in line with GDPR, not all respondents had consented to sharing their views, so publishing only a subset of the consultation would not offer an accurate enough reflection.

For the reasons set out now and earlier, I am not able to accept this amendment. I hope that the noble Lord will therefore withdraw it.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have had no request to speak after the Minister, so I call the noble Lord, Lord Stevenson of Balmacara.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I thank those who have spoken in support of the amendments, particularly the noble Baroness, Lady Bowles, who accepted the principles despite having doubts about some of the factual points, and the noble Baroness, Lady McIntosh, for covering a lot of ground and raising questions that will need to be addressed by Ministers. In fact, I do not think that they were addressed in the response this evening. I thank my noble friend Lord Judd for bouncing back after having been ignored and making some very good points about why it is important to seek principles as we go through the Bill, because they are sadly lacking at the moment. The legislation seems a formulaic response, almost an early policy draft of what one might do if one were to regulate an internal market. It does not smack of having had a lot of discussion and debate or even wider consultation. The Government do not seem to have in mind a process whereby they can arrive at a solution to the problem of how we get shared ownership and trust into a system which is broadly voluntary in its basis without it looking as though it is a top-down, heavy-handed approach. There may be political advantages in that in the short term, but in the long term it is not the way to go.

This was a probing amendment to which we heard some responses, but there are still one or two to come. I am left with the feeling that, whatever we call the body and wherever we locate it, if it is capable only of providing non-binding advice and has no powers, it leaves the question of who will police the whole system. What happens, for instance, if the devolved Administration in Scotland decide they want to do something in particular in relation to whisky, chicken or flour—and we now know an awful lot about flour adulteration? Who will police that? Will it be BEIS? If so, can the Government really say, hand on heart, that the right way to approach what is effectively a devolution issue is through a top-down, UK Government-organised structure? I wonder. I beg leave to withdraw the amendment.

United Kingdom Internal Market Bill

Baroness McIntosh of Hudnall Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 26th October 2020 Lords Chamber

I know that when noble Lords say that they are trying to be helpful, Ministers roll their eyes. But I put it to the Minister that so serious are the threats implicit in this Bill, and such is the anxiety that it has created, that these amendments offer a way forward that would meet the Government’s objectives and remove that anxiety. It would be a dignified way forward and I think it would command the support of the House. I look forward to the Minister’s response to the questions that have been asked around the House—and I look forward to him accepting these amendments.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Lords, Lord Naseby and Lord Cormack, have withdrawn. I therefore call the next speaker, the noble Lord, Lord Rooker.

[Lord Rooker (Lab) [V]]

I was attracted to speak to this group of amendments by Amendments 5, 11 and 53, in the name of the noble and learned Lord, Lord Hope of Craighead, and, as I have listened to the debate, I have begun to wonder even more why the Bill is required in the first place. At the risk of upsetting my good and noble friend Lord Foulkes—and I certainly do not want to get involved in Scottish internal politics; that is my caveat for what I am about to say—as a Minister in MAFF, Northern Ireland and Defra, and as chair of the Food Standards Agency, I worked very closely with several Ministers in the Scottish Government, and I always found them totally professional and focused on the issue at hand at the time.

Nobody has asked me to make a speech today on this matter, but I am going to raise matters raised by Food Standards Scotland in consultation in August and in the recent letter in October. The very reason the Food Standards Agency and Food Standards Scotland exist is to ensure that policy formation, regulation and enforcement in relation to protection of consumers’ interests are clearly separated from those responsible for food industry growth and promotion. Food Standards Scotland says the Bill blurs that distinction, which has been in place since the FSA was formed after the BSE crisis in the 1990s. Both the FSA and the FSS have a legal duty to

“protect public health from risks which may arise in connection with the consumption of food”.

That comes from the Food Standards Act 1999 and the Food Scotland Act 2015.

Only a few weeks ago, the UK Government confirmed in their report on the common frameworks that the powers they have to restrict devolved competence under Section 12 of the European Union (Withdrawal Agreement) Act—referred to by the noble Lord, Lord Dunlop—had not been used precisely because

“significant progress is being made across policy areas to establish common frameworks in collaboration with the devolved administrations.”

No party has ever expressed the need for, or provided evidence in support of, a statutory framework to regulate the UK internal market in the way that this Bill tries to do.

It is worth pointing out that the current internal market makes provision to allow the devolved Governments to impose conditions such as labelling and composition requirements or price mechanisms on food business operators in order to meet a public health objective, provided that the proposal meets an overriding public interest test. The Bill makes no equivalent provision and, indeed, makes clear that business cost is the primary driver, with no consideration of either public health costs or non-financial consumer interests and protection. The Bill does not advance the protection of consumers, other than in cost reduction. If consumer interest is defined solely by cost, it is inevitable that it will drive down standards, because lower standards are less costly.

I will briefly deploy three examples of existing responsible policy-making that is fully in line with current UK market issues and industry pressures. They are all evidence based, taking account of industry impacts as well as consumer interests. These three examples of why the present arrangements work were all given in August to the Business Secretary, Alok Sharma, by Food Standards Scotland—to which he has never responded.

The first is the fortification of flour with folic acid to improve pregnancies affected by neural tube defects. This policy has been advocated for some time by the Scientific Advisory Committee on Nutrition and I have raised it in your Lordships’ House on several occasions since November 2013. In the absence of UK Government action, Food Standards Scotland was asked by the Government there to carry out an assessment for Scottish Ministers. It did, and concluded that the nature of the UK market was such that all flour would require fortification and differentiation in product lines was not possible. Food Standards Scotland concluded that a separate Scottish solution should not be followed. UK-wide action is currently under consideration, of course.

The second example is the prohibition of the sale of raw drinking milk in Scotland. The original wide ban has been continued in Scotland, based on illness and deaths and the advice of the Advisory Committee on the Microbiological Safety of Food. Controls in England, Wales and Northern Ireland are less restrictive than in Scotland, so different rules apply. The current system works, and Food Standards Scotland is at a complete loss to understand why the Bill appears to save the existing unique provisions; it is clear that future provisions introduced on public health grounds are not protected. In other words, what will be saved now would not be protected if further provisions were introduced. The Government are making assertions that, without legislative underpinning, unnecessary regulatory barriers could emerge between different parts of the UK. The Government have given not a shred of evidence to support this assertion.

The third example concerns allergen information for consumers on “prepacked for direct sale” foods—that is a unique type of food. Working with Defra, the Food Standards Agency and Food Standards Scotland developed proposals to improve information following the tragic death of a teenager eating a baguette containing undeclared sesame seeds. Four options were considered as part of a UK-wide consultation. In short, option 4 was recommended as in the best interests of consumers, even though option 1 was the cheapest for industry. Under the Bill, if, for example, one of the bodies had opted for option 3—slightly less than option 4—the body that had chosen option 4 would have to go for option 3. Worse still, using the Competition and Markets Authority, it is likely that option 1, which was simply aimed at raising consumer confidence without regulation, would be chosen. It would be the cheapest for industry but the most unsafe for the consumer. These three examples of responsible policy-making show that the current common frameworks system should be used, and be shown to fail, before we move to the mutual recognition system outlined in Clause 2.

Finally, as was referred to earlier, diet conditions might in future require labelling of, for example, high fat and high sugar on public health grounds. This can work perfectly well under the current arrangements. Under the Bill, however, one part of the UK could be lobbied to reduce information on packaging which other parts would be required to follow. I cannot support the lowest common denominator; it is unsafe for consumers. I hope that, in due course, the noble and learned Lord, Lord Hope, will press his solution.

United Kingdom Internal Market Bill

Baroness McIntosh of Hudnall Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[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.

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[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.

Trade Bill

Baroness McIntosh of Hudnall Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 8th October 2020 Grand Committee

Amendment 27 not moved.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

We now come to the group beginning with Amendment 28. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.

Amendment 28

Moved by

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[Baroness Kramer (LD) [V]]

My Lords, I will be exceedingly brief. My noble friend Lord Purvis of Tweed has made the case and I am not able to better it. I just want to raise an underlying principle. I suspect that every Member of this House is very cautious of any power that enables the Government by regulation to change primary legislation of any kind. Where it is necessary to provide that power, there should generally be a principle that the time period is as short as possible and that power is as limited as possible. Otherwise, we begin to compromise the whole concept of primary legislation and the purpose and meaning of parliamentary legislation.

Three years is surely a perfectly adequate time to be able to make any implementing changes necessary as continuity agreements are negotiated and signed. The underlying principle is one that the House needs to pay attention to. Setting precedents allowing an entire Parliament to pass during which period powers are given to a Government to override primary legislation through regulation, even if it is in a constrained environment, is a principle that we must absolutely challenge.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

The next speaker is the noble Lord, Lord Rooker. I will call him once more; if he does not appear, we will move on. No. I call the noble Lord, Lord Bassam of Brighton.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, Labour supports the amendments in this group. As we heard, Amendment 28 seeks to reinsert a government amendment made to the previous Trade Bill, which would reduce from five years to three years the period during which the EU FTAs can be rolled over and in which previously rolled-over FTAs can be reamended. Amendment 29 would reinsert another government amendment from last year. If the Government decide to extend the period in which to make regulations under Clause 2, any such period should not be more than three years.

In commentary, I must say that I am surprised that these sunset provisions are not already included. As the noble Lord, Lord Purvis, explained, the Government themselves made the changes last time round. Only last year, they committed to reducing from five years to three years the length of the period in which the implementation power can be used. My argument is simple. Let us put these amendments back in the Bill, so that the Minister can demonstrate the same faith in the department and in the Government as previous Ministers did to complete these rollover agreements in a timely fashion.

What has changed? Why do we face the prospect of not having these rollover periods? What is the problem with having the sunset clause as it is? If it was right last time, surely it must be right this time. I am drawn to sharing the suspicion of the noble Lord, Lord Purvis, that the advent of a larger majority has made the Government think that they do not need these provisions, but that cannot be right either. When this was discussed the last time round, the Government said that the period would be renewable by agreement in both Houses of Parliament and that they were committed to engaging the devolved Administrations in that decision-making process in advance. I hope that those points still stand and I look forward to the Minister confirming that they do, as that seems a sensible way forward, which I am sure would find agreement on all sides of the House.

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Given this strong record on scrutiny of continuity agreements and the essential nature of the use of the power over the sunset clause, I invite noble Lords not to press these amendments.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Stevenson of Balmacara.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I was delighted to hear from the Minister that a new trade agreement has entered the books. Could he confirm that the same arrangements that apply to the Japan agreement will apply to that agreement in respect of the ability of the International Trade Committee and the EU International Agreements Sub-Committee to have view of the documentation and to make a response to Parliament, should they wish to do so?

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My final sentence, almost literally, is to agree with my noble friend Lady Kramer. She was indicating that if the purpose of these powers is to implement agreements, then three years is an appropriate amount of time for us to know if there have been any major difficulties, and whether a new agreement should be made.

We will of course reflect on what the Minister has said. No doubt as we discuss the next group, which includes Amendment 36, the Minister will have a response with regard to the duty for the Government to report “any significant differences” between proposed agreements and those that existed with the European Union. I am pretty certain that he will, given our discussion during the adjournment for the Division. I look forward to hearing that but, for the moment, I will reflect on what he has said and beg leave to withdraw the amendment in my name.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

It is open to the Minister to respond to the question earlier, should he wish to do so. If he does not, is it your Lordships’ pleasure that the amendment be withdrawn?

Amendment 28 withdrawn.

Clause 2 agreed.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, we now come to the group beginning with Amendment 35. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.

Amendment 35

Moved by

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[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Lord, Lord McNally, has withdrawn, so I call the noble Baroness, Lady Fairhead.

[Baroness Fairhead (Con)]

My Lords, before I turn to the amendments, I will begin by welcoming my noble friend the Minister to the House most warmly, as this is the first time that I have spoken on the Trade Bill since he assumed his role. As I have been participating both remotely and in person, I congratulate him not only on his clear grip of the subject matter but on the assuredness with which he has steered the Bill through. I am particularly struck by the effective working relationships that he appears to have developed with my noble friends and with Members across the House. I have little doubt that, combined with his experience and superb track record, this will enable him to be a very effective and enormously respected Member of this House.

I am delighted that the Trade Bill has returned to your Lordships’ House, not because we shed much blood, sweat and tears over its previous incarceration—although we did—but because it is an important Bill for the UK, her businesses and her people. It creates important tools that we will need for the UK to step into the future as a strong, independent and high-integrity trading partner. I am also happy that it remains, in the words of my noble friend the Minister, all about continuity and certainty—two elements that businesses large and small, up and down the country, really value.

However, that does not mean that the Bill cannot be made even better. As I have said on the Floor of the House and as the noble Lord, Lord Stevenson of Balmacara, rightly recalled last week, it is my view that

“no legislation passes the scrutiny of this House without being improved”.—[Official Report, 6/3/19; col. 615.]

That is why I want to speak to Amendments 57 and 63 in particular, and to address the issues of transparency, engagement and parliamentary scrutiny. I have one question and one request for the Minister, both of which I will come to.

I want to be clear that I am not speaking about transparency, engagement and scrutiny of continuity trade agreements that are expected to have no significant changes. I agree with my noble friend the Minister that they have already undergone rigorous scrutiny in both the EU and the UK, and I am content that the Government will continue to publish parliamentary reports for the remainder of such agreements that are transitioning. Further, I note that any secondary legislation required to implement these agreements will be subject to the affirmative procedure, requiring debates in both Houses. However, it is here that I have my question. Can my noble friend confirm that this Bill’s scrutiny provisions apply exclusively to continuity trade agreements and cannot be used for future trade agreements, for it strikes me that the wording could be construed as so doing?

Turning to the future free trade agreements, a number of your Lordships have highlighted the importance and extensive reach of modern FTAs. They cover areas far beyond trade alone and include, among others, geopolitical commitments and environmental, food and other standards. Your Lordships have also highlighted the transparency and genuine engagement permitted by the previous scrutiny process to bodies such as civil groups, industry bodies, trade unions and many more, not least the devolved nations. Let us be clear: transparency with no ability to engage is a much weaker proposition.

Finally, a number of your Lordships, including my noble friend Lord Lilley, the noble Lords, Lord Kerr of Kinlochard and Lord Purvis of Tweed, and the noble Baroness, Lady Kramer, have previously highlighted—as did my noble friend Lord Lansley today—the benefit of having a rigorous scrutiny process which, properly structured, can have the benefit of strengthening, not weakening, one’s negotiating hand. To be clear, I am not suggesting any change to the fundamental constitutional principle that underpins the negotiation of all international treaties, including FTAs: that the making and amending of, and withdrawing from, such treaties is a royal prerogative function.

However, taking all this into account, I continue to believe that further detail and improvement is required in both transparency and engagement with wider audiences and enhanced parliamentary scrutiny. I shall direct my comments to two main amendments: Amendment 57 in the names of the noble Lord, Lord Stevenson of Balmacara, and the noble Baroness, Lady Finlay of Llandaff, and Amendment 63 in the names of my noble friend Lord Lansley and the noble Baroness, Lady Jones of Moulsecoomb, as they aim to address these issues. They have been laid out elegantly by those who have put them forward. On Amendment 63, I agree strongly with words of the noble and learned Lord, Lord Goldsmith, that the ability to have a debate, if an issue has been raised on any of the future FTAs, is important. On Amendment 57, I support some, but not all, of its provisions. I very strongly support the need to consult. I am not fully seized by the concept of a mandate rather than objectives, but I think there are elements in Amendment 57 that should be considered and pondered by the Government.

Let me turn to transparency and engagement. Clearly, transparency needs to respect the commercial, confidential elements of negotiations. That said, interested parties across the UK need to have sufficient information in a timely fashion about the areas of discussion, the ability to submit their views and objectives and clear mechanisms for feeding in and engaging. The Government have established a number of bodies to enable this to happen: the Strategic Trade Advisory Group and 11 sector-based trade advisory groups. This is a terrific start, but I encourage the Government to ensure that those bodies are kept under review, to ensure that the appropriate, rich level of engagement is achieved to enable businesses to contribute.

Turning to parliamentary scrutiny, I realise that the Command Paper of February 2019 is not binding on this Government, but I am happy to observe that it has been complied with in practice. It is an excellent base from which to build. It required the previous Government to produce an outline approach to negotiations, including its objectives, and it had to be accompanied by a detailed economic analysis. It also committed the Government to publishing progress reports after each negotiating round, and annual trade reports across all live negotiations.

Smart Meters

Baroness McIntosh of Hudnall Excerpts

Monday 8th July 2019 Lords Chamber

[Lord Henley]

My Lords, the Government’s commitment was to make sure that all premises were offered smart meters, but the noble Countess points out a problem with mobile reception—it affects me in the north-west of England—and it is certainly something that we will have to look at.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, the noble Lord said in reply to the noble Baroness, Lady Maddock, that savings of £1.8 billion are expected to be generated through the use of smart meters—if I have got that figure wrong, I apologise. Will he translate that into a figure that might mean rather more to people who have smart meters—for instance, the percentage reduction in their bills that they might expect if they have a smart meter installed?

[Lord Henley]

My Lords, the figure I quoted was bill savings of some £1.2 billion, but I accept that the noble Baroness misheard me. We expect a net benefit of some £5.7 billion from the rollout as a whole. Again, I would prefer to write to the noble Baroness with estimates as to what individuals could save, but obviously, it will depend on how the individual makes use of the smart meter. The point of the smart meter is that it makes it easier for the individual to keep an eye on their electricity or gas use and therefore to make the appropriate savings we would all like, both in the use of energy, which is important, and in money for the individual.

Patents (Amendment) (EU Exit) Regulations 2018

Baroness McIntosh of Hudnall Excerpts

Monday 14th January 2019 Grand Committee

[Lord Henley]

Will the noble Lord sit down? I have not given way to him. The noble Lord can make his point when I have given way.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, it might be for the convenience of the Committee if I were to put the Question so that the debate can then continue.

[Lord Adonis]

My Lords, I do not think it is for the convenience of the Committee, because the noble Lord has just made a direct allegation that I was not present in my place to listen to his response. The reason is that I was speaking in the debate on the EU withdrawal agreement in the Chamber. I have made the point to the Whips, including on our side, that it is highly unsatisfactory for the debate to be taking place in the Grand Committee on regulations concerning exactly the same matters as are being debated in the Chamber. It is not possible, even for the noble Lord with his considerable abilities, to be present in two places at once. It is because I wished to participate to the debate—it is a discourtesy to the House that I am not able to be present for most of it, because I am fulfilling my duties in the Grand Committee—that I was not here. I hope the noble Lord will withdraw the remark he just made, which appeared to imply—maybe because he was not aware that I was in the Chamber—that I was not fulfilling my duties. After he has noted that I was not here because I was in the Chamber, I think he needs to answer this point to begin with. Otherwise, I will continue interrupting until he actually gives us some information on what consultation took place on this regulation—before we can properly consider it and whether we think the consultation that took place was adequate.

Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018

Baroness McIntosh of Hudnall Excerpts

Monday 14th January 2019 Grand Committee

[Lord Henley]

If it is necessary that there be no-deal SIs, then yes, there will be a no-deal SI. I am advised that that is the case, so there will be scope for the noble Lord to have another debate on this issue. I look forward very much to that happening. Whether my noble friend Lord Bates looks forward to that is another matter, but he has other matters to deal with.

Finally, the noble Lord, Lord Stevenson, asked about the practical benefits that this SI proposes: why should we agree to this proposal when the EU could get flooded with parallel imports from the EEA? The approach simply ensures that what happens currently will continue after exit day, and allows for IP-protected goods in the secondary markets to continue to be imported from the EU, including medicines. This will ensure continued consumer confidence and resilience of the supply of goods into the UK. That will be the continuation of the current situation; there is no reason to anticipate any increase in parallel traded goods after exit.

I hope I have dealt with all the points that I tried to deal with; I have also given an assurance that I will write on other matters. I beg to move.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, it might be helpful, as this is the first instrument that the Committee has considered this afternoon, if I remind the Committee that the Motion is to consider the draft instrument and that it will be the subject of an approval Motion before the House in any event, whatever the decision of the Grand Committee. I also remind the Committee that a single voice of not content will negative the Motion.

The Question is that this Motion be agreed to. As many as are of that opinion will say “Content”; to the contrary “Not content”.

[Lord Adonis]

Not content.

Higher Education and Research Bill

Baroness McIntosh of Hudnall Excerpts

Committee: 7th sitting (Hansard): House of Lords
Monday 30th January 2017 Lords Chamber

[Baroness Brown of Cambridge (CB)]

My Lords, in moving the amendment, which is also in the name of my noble friends Lord Krebs, Lord Mair and Lord Broers, I will speak also to Amendments 481A, 481B to 481D, 482A and 482B.

Bringing the research councils, Innovate UK and Research England together in one organisation, UKRI, opens the possibility of achieving some important benefits, in particular in the areas of: interdisciplinary and cross-disciplinary research, which have not always been well served by the current structure of the research councils, and where many researchers attest that some of the most exciting and potentially far-reaching current developments are happening today; in further improving the links between academia and business; and in making a stronger case to government about the importance of research and innovation to the future success of the UK, to secure the levels of funding that will keep the UK at the top of the league tables for our research while moving us up in terms of innovation—the kind of achievement we have seen today, with the recently announced funding, which we have all been celebrating—thereby ensuring that our outstanding research translates into profitable business for the UK. That is all positive, but for this to be successful the new UKRI organisation will need the existing councils to maintain their own strengths and their diversity while it works more effectively across the councils. The amendments in this group focus on ensuring that we preserve the good things about the councils today while adding the benefits UKRI can bring.

Amendment 479A relates to the structure of the individual councils. Today, they have distinguished independent chairs working with chief executives and relatively large councils made up of distinguished academics, businesspeople and other members. The independent chair is in line with Sir Adrian Cadbury’s advice on governance in his 1992 report: it avoids the concentration of power in one individual, while allowing the chief executive to both present to, and listen to, the high-quality debate at council meetings, without at the same time having to manage the meeting; it ensures that views which the chief executive may not agree with are well aired and discussed; that all relevant issues are included on the agenda; and that all council members are enabled to play their full part. Sir Adrian was looking at the problems of the finance sector but the general principles are valid here too. If these councils are to be engaged in important business, as we all intend they should be, these principles are of particular concern. The presence of an independent chair, rather than a research council head in the role as executive chair, will give the council roles higher perceived status than simply of an advisory board reporting directly to the chief executive. That will help to maintain the high quality of individuals who compete for appointment to these roles. It will also give the chief executive a critical friend and mentor and provide the council with a senior independent voice into the chief executive of UKRI if the council is concerned about the way things are going.

That is particularly important as regards the independent chair of Innovate UK. At Second Reading, many speakers from all sides of the House, including the noble Baronesses, Lady Neville-Jones, Lady Young of Old Scone, Lady Garden and Lady Rock, and my noble friends Lord Mair and Lord Broers, emphasised the importance of maintaining the business focus of Innovate UK. This was captured in the royal charter of its predecessor, the Technology Strategy Board, which was a body established,

“for purposes connected with research into, and the development and exploitation of, science, technology and new ideas”,

for the benefit of,

“those engaging in business activities in Our United Kingdom”.

Amendment 481A would ensure that the independent chair of Innovate UK came from business, along with the majority of ordinary council members, in line with the earlier remarks of the noble Earl, Lord Selborne. Amendments 481B to 481D would introduce consequential changes.

Amendment 482A would require UKRI to establish an executive committee including all the councils’ chief executives. This seems, in any case, very likely to be something that any new chief executive of UKRI would want to do, but putting it on the face of the Bill, giving it recognition as a key part of the governance and indeed the intelligence of UKRI, would reassure the community in relation to the ongoing importance of the individual research councils. It would also emphasise the important and influential roles of the heads of the new research councils. I beg to move.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I must remind the Committee that, if this amendment is agreed to, I cannot call Amendments 480 and 481 by reason of pre-emption.

[Lord Willis of Knaresborough]

My Lords, I wish to speak to Amendments 480 and 481, which stand in my name and that of my noble friend Lord Sharkey. Before doing so, I offer support to the noble Baroness, Lady Brown of Cambridge, particularly for proposed new paragraph (a) in Amendment 479A, which would insert a requirement for a non-executive chair for each of the new research councils. I totally agree with the point she made. Having worked under two non-executive chairs at NERC, I know that the advantage they bring to the challenge facing the chief executive and to leading the board in terms of that challenge is of fundamental importance, and doing so would be difficult without it. I await the Minister’s response on why the Government have chosen the route of an executive rather than a non-executive chair. That is a huge departure from the way in which we have approached the research councils in the past.

I confess that I tabled Amendments 480 and 481 to try to tease out from the Minister why the councils should consist of between five and nine members rather than between nine and 13, eight and 14 or some other number. There does not seem to be a clear explanation as to why those numbers have been chosen. I admit that I generally prefer to have small boards—of one person, if possible—because they are likely to be far more effective, efficient and dynamic, but there is clearly an optimum size depending on the nature, the mission, the budget, the governance and the expectation of the organisation.

The Bill—wrongly, I think—assumes that each of the new research councils will be exactly the same, but they will not; they will have very different aspirations, albeit a general one in terms of promoting research. The current research councils have memberships ranging from 10 on the ESRC to 17 on the EPSRC, and that is entirely possible because the Science and Technology Act 1965 did not say anything about numbers. I suggest to the Minister that, rather than adopt an amendment of this sort, it may be better to remove this requirement altogether and to allow the newly formed research councils, with guidance from the Secretary of State—we are very keen on that—to decide what number of members would work well for each one.

Amendment 481, the second amendment in my name in this group, is perhaps more significant. The one thing I have learned while I have been on a council—sorry, I have learned a lot of things; that sounded awful. But one of the most important things I have learned is the value of the lay members who come along to challenge the executive, and indeed the council, in ways that I did not think were possible. That has been particularly important as our research council has tried to remove our research institutes into different governance arrangements. It has been hugely important to have people who actually understand the machinations of changing governance and financial structures and who are able to look at complex organisations working with each other. Therefore, Amendment 481 says that on every research council there should be a minimum number of lay members to allow that challenge. If you had a board of five, it would be very difficult to say what the minimum number should be. I accept that four is a purely arbitrary number, and I look forward to the Minister’s response.