United Kingdom Internal Market Bill

Debate between Baroness Ritchie of Downpatrick and Lord Foulkes of Cumnock

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Monday 23rd November 2020 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I apologise for the fact that I am having to appear electronically, rather than be there in person, for logistical reasons. I am sorry not to be able to engage in a bit of banter with the noble Lord, Lord Cormack, for example, and in particular with the Minister, the noble Lord, Lord Callanan, with whom I have had a few exchanges of interest in the past. Nevertheless, I am very happy to speak today in support of the amendments in the name of the noble Baroness, Lady McIntosh, and myself.

These amendments would require—the important word—the UK Government to consult with the devolved Administrations in the areas described. Thankfully, the Government seem to be moving in that direction, as we see from Amendment 14. For once, I thank the noble Lord, Lord Callanan, for accepting that. In Amendment 15, my noble friend Lady Hayter on the Opposition Front Bench, and others, add a requirement to seek approval from the devolved Administrations while allowing the UK Government to go ahead if that is not obtained within a month. I will support that amendment if there is a Division on it, because it puts extra pressure on the Government to find agreements. There is in fact no difference in principle between the amendments, but they underline the need for some greater understanding of the nature and the extent of devolution. However, I repeat what others, including the noble Baroness, Lady Finlay, said, that we would prefer that the Bill had not seen the light of day and hope the Government and the Commons might think again in the light of their overwhelming defeat here in the Lords.

Meanwhile, we need to consider how these matters are dealt with if the Government do not take our advice and press ahead with the Bill. Some in Scotland, principally the SNP, have described the transfer of responsibilities from the European Union as a “Westminster power grab”. while the UK Government see it as a “power surge” to the devolved Administrations. The fact is that neither is the reality or correct. In truth, we were all willing to see common standards for the whole of the UK decided as part of the European Union common market, with some reservations as appropriate. Now we need to determine how we deal with all these powers in what will effectively be a UK common market.

There is however a constitutional difference between the European Union and the United Kingdom. Whereas the European Union is a federation of sovereign states, as we know, the UK has been a unitary state for centuries but has rightly decided to devolve some powers to three of its constituent parts over the past two decades. I support that and agreed with it, but we are still coming to terms with the new reality, and it is proving more difficult for some than for others.

In areas where there has been devolution of powers, those transferred from the European Union should of course go to the devolved Administrations as long as it can be done without any real distortion of the United Kingdom’s internal market operation. In our amendments, there is provision for them to be consulted, but not, of course, to have a veto, which I believe to be correct. However, there needs to be genuine consultation and, sadly, as my noble friend Lord Hain said, that has not been the case with the current UK Government, who have fuelled resentment and nationalist movements in the three nations.

Finally, I hope that the Minister will spell out in greater detail in his reply the procedures by which the Government intend to consult—the arrangements for consultation; secondly, how they will take account of those consultations within Westminster and Whitehall; and, finally, confirm that they will publish reasons if they are unwilling to accept the views of the devolved Administrations. That is the least that the devolved Administrations can expect, and I hope it will not be too difficult for the UK Government to do so.

I look forward to the rest of the debate and hope that when we get to Amendment 15, if there is a Division, the House of Lords will once again show its good sense.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, first, I thank the Minister for his statement at the beginning of this group, in which he indicated that he had made an error in winding-up last week on Amendment 24, which was in my name and those of the noble Lord, Lord Hain, and the noble Baronesses, Lady Suttie and Lady Bennett of Manor Castle.

I have listened to what the Minister said today. I wrote to him at the weekend about what was said on broadcast TV, which I quote:

“If the employment law requirement were to meet that test, they would not be disapplied because they had discriminatory effect.”


When the Official Report appeared, it stated:

“If the employment law requirement were to meet that test, they would not be disapplied unless they had discriminatory effects.”


The difference between “because” and “unless” leads to direct opposites, and that requires further clarification from the Minister and from the Minister who will hold the meeting. I thank him for indicating that he will facilitate that meeting with the members of both the Human Rights Commission and the Equality Commission in Northern Ireland on this issue.

As the noble Baroness, Lady Hayter of Kentish Town, stated, if we are not satisfied with the outcome of that meeting—it is important that it takes place prior to Third Reading—I would seek to bring that issue back then. For the purposes of clarification, I think I need to point out that the withdrawal Act 2020 implemented Articles 2 and 13 faithfully. Clauses 5, 6 and 8 of the Bill threaten that implementation by allowing changes to legislation implementing the obligation to keep Northern Ireland in line with equality law in future. It does this by providing that such legislation cannot be challenged on the basis that it is indirectly discriminatory. Until last week, the Government had said that Clauses 5, 6 and 8 did not apply to such legislation. The Minister’s statement today makes it clear that they will apply and may be used to challenge legislation implementing the Article 13 obligation.

United Kingdom Internal Market Bill

Debate between Baroness Ritchie of Downpatrick and Lord Foulkes of Cumnock

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

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I speak in support of both amendments in this group. The noble Baroness, Lady McIntosh of Pickering, has already explained the purpose of Amendment 6. Amendment 24 is in my name and those of the noble Baronesses, Lady Suttie and Lady Bennett of Manor Castle, and the noble Lord, Lord Hain.

We have been contacted by the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission, which have agreed to act as a dedicated mechanism responsible for the monitoring, supervising, advising and reporting on and enforcing the UK’s commitment, under Article 2 of the Northern Ireland protocol to the withdrawal agreement from the end of the transition period. They believe that this amendment is needed to ensure that the Bill is brought into compliance with the UK’s obligation under Article 2 of the protocol to the EU/UK withdrawal agreement.

The problem with the Bill as currently drafted arises when Clause 5 is read in conjunction with Clause 6. The commissions’ research only came to light while we were in Committee, as they were awaiting senior counsel’s advice, hence the only opportunity to have brought forward this amendment is now, on Report. I thank all noble Lords who have signed the amendment and hope that your Lordships’ House accepts that explanation.

Clause 5(1) provides that:

“The non-discrimination principle for goods is the principle that the sale of goods in one part of the United Kingdom should not be affected by relevant requirements that directly or indirectly discriminate against goods that have a relevant connection with another part of the United Kingdom.”


It may appear, on superficial reading, that Clause 5 applies only to goods and not, for example, to statutory requirements regarding employment conditions. This is incorrect, however, because Clause 6(3) provides details of what constitutes “relevant requirements” for the purposes of Clause 5(1):

“A statutory provision is within the scope of the non-discrimination principle if it relates to any one or more of the following—


(a) the circumstances or manner in which goods are sold (such as where, when, by whom, to whom, or the price or other terms on which they may be sold);


(b) the transportation, storage, handling or display of goods;


(c) the inspection, assessment, registration, certification, approval or authorisation of the goods or any similar dealing with them;


(d) the conduct or regulation of businesses that engage in the sale of certain goods or types of goods.”


The effect of these provisions, therefore, is to bring statutory provisions regarding employment conditions, including legislation regulating wages, which apply to those selling goods, within the scope of the non-discrimination requirement in Clause 5(1). This means that equality legislation regarding employment conditions introduced in Northern Ireland in order to comply with the non-diminution requirement in Article 2 of the protocol must be protected.

If there is a challenge to such employment legislation, it is not clear that the legislation can be defended on the grounds that it can, as set out in Clause 8 of the Bill,

“reasonably be considered a necessary means of achieving a legitimate aim.”

Clause 8 defines what constitutes a legitimate aim. This appears to be an exhaustive list and does not include, for example, compliance with an international treaty as a legitimate aim. To illustrate the potential impact of the Bill on the Article 2 obligation, I will set out an example of additional requirements on employers in Northern Ireland that could be introduced as a result of changes to the Annexe 1 directives that deal with the wide panoply of equality directives that could be challenged under the Bill. It is not possible to predict the exact nature and extent of future EU changes to the Annexe 1 equality directives, including new obligations on employers.

However, taking into consideration EU equality law changes already made, recent European Commission proposals and plausible future scenarios, there is a reasonable prospect that over time, the Annexe 1 directives dealing with all equality matters may be updated, amended or replaced, and additional EU requirements on employers introduced. Employers in Great Britain may consider that these changes negatively impact on their businesses and influence an employer’s decision to employ staff in Northern Ireland, and thus to provide goods in Northern Ireland, and would therefore be challengeable as indirectly discriminatory under the Bill. The equal pay example can be characterised with the EU amending or replacing the existing equal treatment directive to incorporate extended equal pay obligations on employers.

As a result of these additional requirements, an employer in Great Britain with a predominantly female workforce could decide not to employ staff in Northern Ireland and could consider that there is more limited market access in Northern Ireland than in Great Britain. Using the indirect discrimination prohibition in the Bill, the employer could challenge legislation enacted by the Northern Ireland Assembly to comply with these new obligations. Other examples could be given relating to disability discrimination, race equality, equal pay audits and gender pay reporting.

To comply with Article 2 of the protocol, there is a need to ensure that any such additional requirements on employers in Northern Ireland, introduced to keep Northern Ireland equality law aligned with future EU changes to the equality directives in Annexe 1, cannot be challenged as indirectly discriminatory under the Bill. I therefore urge the Government to accept this amendment and ask the Minister to accept a letter from me, on behalf of the Northern Ireland Human Rights Commission and the Equality Commission, which will outline in depth their main concerns about this issue. Will he meet with us and the other signatories to the amendment to discuss these issues? I honestly believe that the amendment would provide legal clarity and certainty, including for employers who have responsibility under Article 2 of the protocol.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I am delighted to speak in support of Amendment 6, moved so well by the indefatigable noble Baroness, Lady McIntosh, who has done such a good job in moving amendments in Committee and on Report. I endorse the tribute that she gave earlier to the equally indefatigable Michael Clancy of the Law Society of Scotland, who has helped us draft these amendments and examine the Bill in detail. It must be a greatly satisfying reward for his hard work to see some of his suggestions incorporated into legislation. I am sure we all endorse the thanks to him.

I underline one point made by the noble Baroness, Lady McIntosh. The amendment emphasises that the lack of effect relates only to the discriminatory element of the statutory requirement and does not otherwise affect its validity. I hope the Minister will therefore feel able to accept the amendment. I am sure he would not want to encourage discrimination in any form.