United Kingdom Internal Market Bill

Lord Foulkes of Cumnock Excerpts

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

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Andrews, and I would like to congratulate her and her committee for all the work they have done in connection with common frameworks. I would also like to express my support for the amendments in this group and, in particular, Amendment 1, for the eloquent reasons set out by the noble and learned Lord, Lord Hope of Craighead, and my noble and learned friend Lord Mackay of Clashfern. I would also like to recognise and pay tribute to the work they did in instigating the common frameworks, and to note the role of the Joint Ministerial Committee on EU Negotiations in agreeing in 2017 to create the common frameworks.

If the noble and learned Lord, Lord Hope, is minded to press this amendment to a vote, I intend to support it, for two principal reasons. One is the advanced stages of discussions on the common frameworks that have been reached, as a number of noble Lords have said, and which have proved quite fruitful; the other is the lateness of this Bill and the proceedings, and the poor consultation of the devolved nations.

In progressing these arguments, I would like to refer briefly to the eighth European Union (Withdrawal) Act and Common Frameworks report and the revised analysis, which were published on 24 September. They go into some detail about the policy areas that have been covered and conclude that, in total, there are 40 active framework areas—18 legislative and 22 non-legislative. They go on to state that in some instances, policy areas include a mixture of reserved and devolved competence, including where technical standards that derive from EU law are relevant. These policy areas include four that the UK Government believe are reserved, which are subject to ongoing discussion with the devolved Administrations.

The noble and learned Lord, Lord Hope of Craighead, in moving his amendment, and the noble and learned Lord, Lord Mackay of Clashfern, and others have referred to the environmental aspects. I have a particular interest in this as I am fortunate enough to be a member of the EU Environment Sub-Committee. Paragraph 1.21 of the latest report, to which I have just referred, states:

“There have been regular Frameworks Project Team meetings between officials in the UK Government and the devolved administrations, where productive collaborative work continues.”


Examples are then given. Paragraph 1.22 states:

“Multiple meetings have taken place between officials in the Department for Environment, Food and Rural Affairs (DEFRA) and their counterparts in the devolved administrations. These include working group meetings … on Animal Health and Welfare,”


plant health,

“Waste … Chemicals and Pesticides, and Fisheries.”

The noble and learned Lord, Lord Hope of Craighead, specifically mentioned the need to recognise conditions relating to the environment where divergences and different threats need to be established. He noted that there is no specific reference to the environment in the exclusions given in Schedule 1.

As I mentioned at Second Reading, for all these reasons it is bewildering that the Government have parted from the very advanced discussions of the common frameworks process. I would like to pay tribute to and thank those involved in them, particularly the Defra officials, who, in addition to all they have had to deal with at this time, have worked closely with their counterparts in the devolved Administrations.

Unless I hear a very strong argument from the Minister as to how the progress that has been made can be accommodated, I will support Amendment 1 and the other amendments in this group.

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

My Lords, I am one of no fewer than seven members of the Common Frameworks Scrutiny Committee, including our chair, the noble Baroness, Lady Andrews, who we have already heard from, and the mover of this amendment, who are participating in this debate, which shows our interest—one of those interests you do not need to declare. I call it a debate but I fear that, sadly, even more so than usual, because of the hybrid nature of our proceedings, it is more a series of statements. That is a great pity and I look forward to the day when we can get back to all sitting round this Chamber and having a proper debate.

I also speak as a strong supporter of devolution since the early 1960s, when, as some of my colleagues here, who are nearly as old as I am, will recall, to be a supporter of devolution was not the most popular thing to be in the Labour Party. We had to work very hard to persuade the party to move in that direction. I say that now to put into context what I will say later, but I sound a cautionary note. People sometimes get on to a bandwagon, and it goes faster and faster, more and more people jump on, and they do not always know which direction it is going in and what the consequences and all the implications are.

We have had devolution for a very long time in Scotland, but mostly it was administrative devolution. We have had a different educational service for a long time. As my noble and learned friend Lord Falconer and the noble Baroness, Lady McIntosh, who is a Scots advocate—not practising, as she keeps reminding us—could tell us, we have had a Scots law system that is entirely different. We have had that for decades—indeed, in some cases for centuries. However, for so long, legislation in Scotland was dealt with at Westminster right at the end of lots of other legislation, as a sort of afterthought or codicil. There was little time spent on it, or interest in it. I was a Member of Parliament, along with the noble Lord, Lord Cormack, and others who will remember that it was not the main business we were dealing with. That is why we pushed hard.

The main argument in favour of a Scottish Parliament was to provide democratic accountability in relation to the administrative devolution that had already taken place. But we always understood—this is what I think some people have forgotten—that Westminster remained and remains ultimately responsible for the good government of the whole United Kingdom. That is something never to forget. Some people want us to forget it, but it is very important. We have a sort of quasi-federal system. It was supposed to develop throughout the whole United Kingdom, but the proposal that the Labour Government put forward for devolution in the north-east of England was ill thought out. It was put forward at a bad time and did not get through. Had we had devolution for the whole United Kingdom things would be very different from the way they are at the moment.

The other thing is that devolution is completely different from independence. The two are completely separate concepts, and it is important never to forget that. It is in the interests of the SNP, the nationalists, to obfuscate, to muddy the waters, to pretend that one and the other are very similar, and to say, “Don’t worry”. Boris Johnson, our Prime Minister, recently showed that he does not understand devolution, but beware: equally, the SNP does not want us to understand devolution and is not using it as it is meant to be used, to benefit the people and improve the conditions of the people in Scotland.

Someone—I think the noble Lord, Lord Bourne—raised earlier that when we have Governments of similar political persuasions in Scotland and in the rest of the United Kingdom there are sometimes substantial difficulties. I know exactly that situation: I was Minister of State for Scotland in the United Kingdom Government and I dealt with an Administration in Scotland that was run by the Labour Party in coalition with the Liberal Democrats. We worked very well together. I used to meet weekly with Ministers in the Scottish Government. We had discussions about free personal care and how it should be funded. They were good, positive discussions and we all understood the position exactly.

I acknowledge as much as anyone—after all, I was a Member of the Scottish Parliament for four years, so I saw it as an MSP—the importance of involving the Scottish, Welsh and Northern Irish Parliaments and Governments, consulting where appropriate, giving them powers, allowing them total control over all the devolved areas and having them involved in other areas through the legislative consent Motions and the Sewel convention. I know that, and I felt it myself. But it is equally important to remember that each of the devolved Governments are not always right. Sometimes I think that some people assume that they are always right. I worry sometimes that we in Westminster do not want to be seen as big brothers, or to impose on or upset them, so we take what they say as gospel. We give them a veto where it is not appropriate. Sometimes I wonder whether those who came late to supporting devolution are the strongest advocates of taking account of their concerns: it is the zeal of the convert, perhaps.

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[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I have received a request to ask a short question of elucidation from the noble Lord, Lord Foulkes of Cumnock.

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

My Lords, at a time when the role and, indeed, the very existence of this House is under increasing scrutiny, would the Minister agree that the fact that he has put his name to Amendment 2, and that he and the Government have accepted the spirit of many of the amendments that were moved in Committee, underlines the value of this second Chamber as a revising Chamber and that that is something that should be broadcast widely?

[Lord Callanan (Con)]

I agree with the noble Lord, actually. If you look at the degree of scrutiny with which this House has portrayed this Bill, as opposed to the degree of scrutiny in the other place, you see the value of the debates we have here.

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[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.

[Lord Hain (Lab) [V]]

My Lords, I too wish to speak to Amendment 24, so ably addressed by my noble friend Lady Ritchie of Downpatrick, to which I have added my name. As she said, the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission have explained why the amendment is necessary. It ensures that any legislation introduced in Northern Ireland after the UK leaves the EU must comply with the UK Government’s obligations under the withdrawal agreement: to implement in Northern Ireland certain amendments to, or replacements of, EU law, where this is necessary to ensure continued compliance with the principle of non-diminution under Article 2 of the protocol; and to keep Northern Ireland law in alignment with EU amendments to, or replacements of, the listed equality directives in Annexe 1 to the protocol.

The commissions have briefed us and are concerned about the Bill’s effect on the UK’s obligations under Article 2 of the protocol, in which the UK Government have committed to ensuring that there will be no diminution in Northern Ireland of vitally important rights, safeguards or equality of opportunity specified in the relevant part of the Belfast/Good Friday agreement, resulting from the UK’s exit from the EU. This commitment is binding on the UK Government and Parliament, the Northern Ireland Executive and the Assembly, as a matter of international law.

EU law, particularly EU anti-discrimination law, has formed an important part of the framework for delivering the guarantees on rights and equality set out in the Belfast/Good Friday agreement, and for ensuring that rights and equality protections continue to be upheld in Northern Ireland. However, after the end of the transition period, individuals would be able to bring challenges to the Article 2(1) commitment directly before the domestic courts and take judicial review proceedings to challenge the compatibility of Northern Ireland Executive or Assembly actions or legislation with the Article 2(1) commitment. If the Northern Ireland Assembly failed to introduce legislation required to ensure that Northern Ireland law was in alignment with EU amendments to, or replacements of, the listed equality directives in Annexe 1 to the protocol, that failure could be challenged by individuals. Such challenges would mean that individuals would not be able to benefit from any additional EU equality rights provided for under legislation implemented in Northern Ireland so as to ensure compliance with Article 2.

That could create considerable opportunity for sectarian mischief of the kind that has sadly bedevilled politics in Northern Ireland, despite the massive progress made in the last two decades. The provisions of the United Kingdom Internal Market Bill could undermine these obligations and commitments. For example, Article 13(3) of the protocol ensures equality legislation in Northern Ireland which, as my noble friend Lady Ritchie said, places additional requirements on employers in Northern Ireland, which is so important, given the discrimination historically practised against Catholics.

However, because there is no requirement under the withdrawal agreement for the UK Government to make similar changes to the equality legislation in Great Britain, there is the possibility that there could be greater equality requirements on employers in Northern Ireland than on employers in Great Britain. There is therefore a possibility that an employer in Great Britain may decide not to employ staff in Northern Ireland and, as a result, could consider that there is more limited market access in the provision of goods and services in Northern Ireland than in Great Britain.

Ministers have shown during Brexit a casual and, I am afraid, sometimes contemptuous disregard for its impact on Northern Ireland, but establishing really strong equality and human rights legislation has been crucial to eliminating the deep and historic grievances, suffered by the Catholic population especially, that provided fertile ground for paramilitarism. The stakes are very high—hence this important amendment, which I very much hope the Minister, when he replies, will support.

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[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am grateful to have this opportunity to move the amendment standing in my name and that of the noble Lord, Lord Foulkes. I thank him for kindly supporting the amendments. I shall speak also to Amendments 13, 33, 44, 60 and 74.

Amendment 9 requires the Secretary of State to publish the results of the consultation referred to in Clause 6(7) and to give reasons for any decision reached. The reason for this is the history of the Bill, which we are told was drafted at pace, and had an unusually short overall consultation period of one month. I understand the responses to the consultation were published on the same day as the Bill. There was no prior consultation on drafts of the Bill, which I understand is a most unusual procedure. Once again, I am obliged to the Law Society of Scotland for its assistance in drafting these amendments.

The obligation on the Secretary of State to consult the devolved Administrations is welcome, but the clause currently lacks any obligation on the Secretary of State to report the outcome of the consultation with reasons for the decision. In the interests of transparency, the Government should make public the outcome of the consultation for that reason. I hope the Minister in winding up this debate will see fit to do that.

The other amendments in the group all relate to the super-affirmative resolution procedure. Amendment 13 adapts Clause 8 to this; Amendment 33, Clause 17; and Amendment 44, Clause 20. Amendment 60 creates a new schedule on the super-affirmative procedure and Amendment 74 creates a new clause setting out the scrutiny procedure in certain urgent cases. The reason why the amendment seeks to introduce the super-affirmative resolution procedure, the supportive schedule and the new clause, as I have mentioned, is to up the level of parliamentary scrutiny applicable to regulations under these clauses and the new schedule, which is currently by the affirmative resolution procedure. This is partly for the reason that I gave earlier: woeful time was given, in quite unusual circumstances, in which to draft the Bill. Changing the scope of the relevant clauses, in my view, that of the Law Society and of the noble Lord, Lord Foulkes, may have significant consequences. It is much more beneficial to use the super-affirmative resolution procedure, because it enables longer consultation and for the views of interested parties to be taken into account.

I mentioned Erskine May previously in Committee. Paragraph 31.14 describes the super-affirmative procedure as having

“been implemented in enactments where an exceptionally high degree of scrutiny is thought appropriate, for instance, for the scrutiny of certain items of delegated legislation made, or proposed to be made, under ‘Henry VIII’ powers… The super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form.”

In the view of the Law Society of Scotland, with which I concur, the Bill is of profound constitutional significance. As paragraph 4 of the Constitution Committee report indicates, we need as much scrutiny of the Executive as possible. Deploying the procedure that I propose, as set out in these amendments, will achieve a better outcome than simply keeping the Bill in its present form, with the usual affirmative procedure.

I was delighted by the debate that we enjoyed in Committee on the earlier manifestation of this amendment, as summed up by the noble Lord, Lord Thomas, in his objection. He said he could not “support the precise method” adopted. There may be many approaches to the super-affirmative resolution procedure, but the schedule that accompanies this amendment contains a detailed procedure. The noble Lord, Lord Thomas, also noted that:

“If a Minister wishes to exercise his powers under the Bill, there is no requirement under the noble Baroness’s proposed schedule that scrutiny of his proposed amendment to primary legislation should in any way involve the devolved Administrations; no mechanism is proposed. It is true that, in paragraph 5, the Secretary of State must have regard to ‘representations’, but there is no indication from whom the representations would or should come.”


Since the Minister’s power undoubtedly includes the possibility that the proposals will, at the very least, impinge on the devolution settlement, the noble Lord goes on to say that:

“I would be more supportive of this proposal if it required as part of the super-affirmative procedure that, in the periods of 30, 40 or 60 days during which the proposals would be looked at in Westminster, there were a requirement that the devolved Administrations should at the very least be consulted, preferably that their consent to the proposals should be a necessary prerequisite. It is not enough that the Minister should ‘have regard to representations’.”—[Official Report, 28/10/20; col. 279.]


I am delighted to say that the schedule now provides a requirement to receive representations from and to consult with the devolved Administrations. We have also proposed a new clause in Amendment 74, which will deal with cases of urgency when regulations need to be presented. I am further encouraged by the fact that I understand from private discussions that the Liberal Democrats are minded to support the super-affirmative procedure, but I have had less success with the Official Opposition. There is still time for them to change their mind. On this basis, and with these brief remarks, I beg to move.

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

My Lords, I am very pleased once again to support the noble Baroness, Lady McIntosh. I want to speak briefly to three of the amendments. I will say first that the regulation-making powers in this Bill cover very significant areas. They are not minor matters. They really are important and that is why they need scrutiny. As I said earlier, the House of Lords does the work that we do best in scrutinising these issues.

I will deal first with Amendment 13. In Clause 8, the Secretary of State can under subsection (7) make regulations

“to add, vary or to remove”

a legitimate aim. That is key in defining a relevant requirement which indirectly discriminates. A legitimate aim is defined in subsection (6) as either

“(a) the protection of the life or health of”

human animals—oh, sorry, it is

“humans, animals or plants,”

not human animals; well, human animals, other animals and plants. The second legitimate aim is

“(b) the protection of public safety or security.”

Perhaps the Minister in his reply could shed light on which of these the Government would seek to amend in the future. That would be helpful.

The second amendment I want to refer to is Amendment 60. Particularly to my noble friend on the Front Bench, I commend this idea of the super-affirmative resolution. The noble Baroness, Lady McIntosh, said she has not yet got the support of the Labour Official Opposition. Once my colleagues scrutinise this in more detail, I am sure they will come round to supporting it. The super-affirmative resolution is described in Amendment 60. It provides for the laying of draft regulations and an explanatory statement by the Secretary of State to consult the devolved Administrations and to have regard to their representations and the representations of other persons, and to allow for additional time for parliamentary consideration. That is to “have regard to” these representations. The importance of the Secretary of State’s powers under the Bill requires better scrutiny than the affirmative or negative resolution procedure. We know that and know that they are not particularly helpful ways of scrutinising legislation.

The super-affirmative procedure as defined in this schedule provides better parliamentary scrutiny, allows engagement with the devolved Administrations and enables proper consultation. Holding the Government to account is important when such regulations are being made. I hope my noble friend will come round to the view that she will at least take it away and have a look and see if, at a later stage, all Labour Members can support the super-affirmative resolution.

Amendment 74 allows the scrutiny of statutory instruments containing regulations under the Bill in such a way as to allow for their urgent implementation, rather than following the super-affirmative procedure. There was concern that the super-affirmative procedure would take too much time, and this amendment provides for issues that need to be dealt with quickly. Regulations can be made under this provision only if the Secretary of State makes a declaration that he or she is

“of the opinion that, by reason of urgency, it is necessary to make the regulations without a draft being approved under”

the super-affirmative resolution procedure. The regulations will be limited in time, under proposed new subsection (4), to a period of 28 days, unless

“the instrument is approved by a resolution of each House of Parliament.”

I hope that the Minister will consider the amendments carefully and I have great pleasure in supporting the noble Baroness, Lady McIntosh, in her amendments.