United Kingdom Internal Market Bill

Lord Foulkes of Cumnock Excerpts

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

[Lord Hain (Lab)]

My Lords, although I welcome the Minister’s moving of government Amendments 14, 36 and 45, I still wish to speak in support of Amendments 15, 20, 27, 34 and 46, to which I have added my name.

As the noble Baroness, Lady Finlay, said, these are modest amendments which are almost painstaking in their attempts to be reasonable. They balance the right of the devolved Governments to be asked for their consent if and when Ministers want to use Henry VIII powers to clamp down still further on the very narrow exceptions to the market access principles, with the right of the UK Parliament to act if it believes that one or more of the devolved Governments are unreasonably delaying or blocking such changes. I am happy to put my name to these amendments, but the fact that they are so modest highlights the parlous state of the union. We are faced with a Government who are so paranoid about the potential threat of a nationalist veto to their plans that they are prepared to provoke the very thing they fear: the collapse of the house of cards which is our so-called current constitution.

The noble Lord, Lord Hennessy of Nympsfield, coined the phrase “the good chaps theory of government” as a description of the way the governance of this country functioned in the absence of a codified constitution. We are faced with a Government who have defenestrated the good chaps with an insurrectionist zeal that makes Robespierre appear a model of restraint. They are unapologetic when found by the Supreme Court to be violating the constitutional rights of Parliament, responding by attacking the judiciary; they use constructive dismissal as a routine way of neutering the Civil Service; they give consultancy contracts on a breath-taking scale to their friends and relations without any proper procurement; and they tolerate a Cabinet Minister with the brass neck to remain in one of the highest offices of state after being found to have broken the Ministerial Code by bullying her officials—the list goes on.

If we are to defend devolution and indeed the future viability of the union—which I believe your Lordships’ House has repeatedly shown it wishes to do—we need to compel the Government to respect the rights of the devolved Governments and legislatures. That is why it is so important that the market access principles should be brought into play only if this House and the other place are convinced that a real-world threat has emerged to the internal market which cannot be addressed by the common frameworks. That is why the consent of the devolved institutions to legislative devices which might limit their rights should always be required. Let us be in no doubt that that is precisely what the Bill would do. Even without using the Henry VIII powers to which these consent provisions would apply, the Bill poses a real and present danger to the capacity of the devolved Governments to do what they have been elected to do.

In Committee, many Members raised the issue of single-use plastics. The Welsh Government have consulted on a proposal to ban nine types of these items—a move in line with their recognition of the climate emergency which would be fully possible under EU law, and which is very broadly supported in Wales. Ministers did not give a clear answer as to whether legislation of this sort would be possible if the Bill was enacted. However, in the policy statements published on the Department for Business, Energy and Industrial Strategy—BEIS—website last week, the issue is now crystal clear. To quote from one:

“Conversely, non-pricing policies that place an outright ban on goods being sold, for example a ban on single-use plastics, would be caught by mutual recognition. Devolved administrations could introduce a ban on the sale of a particular good, but the ban would only cover local products produced in that part of the UK (or those imported into that territory from outside the UK). Devolved administrations could not enforce that ban against sellers of goods produced in, or imported into, other parts of the UK.”


That is a quote from an official government website. Will the Minister please confirm on the record that this official BEIS advice is accurate, because its implications are pretty serious? If it is, would he explain how this is consistent with his and his colleagues’ previous assertions that the Bill does no more than replace constraints that existed by virtue of our membership of the EU?

The Bill is a tale of two halves. The one half consists of legitimate fears on the part of the devolved institutions that their role and powers are in real jeopardy, and the other of bogus claims that the devolved Parliaments are lying in wait to sabotage the union as the chimes of Big Ben welcome in the New Year. We must face down the half-truths of this unscrupulous and power-hungry Government and defend the rights of the devolved institutions, as these modest amendments seek to do.

[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.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, in moving Amendment 39 I will speak also to Amendment 40, relating to Clauses 19 and 20. The amendments clarify the meaning of Clause 19(1) regarding the effect of a statutory requirement under Clause 16 and a similar provision in Clause 20 on indirect discrimination.

If I understood the Minister correctly, in summing up the debate on the amendment of my noble friend Lady Neville-Rolfe, he said that the service provider and regulatory requirement were, in his view, deemed limited enough in scope not to cause barriers to trade. I would like to probe and penetrate his thinking further.

The Law Society has drafted—and I am delighted to thank my noble friend Lord Foulkes of Cumnock for supporting these two amendments—the insertion, at the end, that no effect is only

“to the extent that it directly discriminates against the service provider”

in Clause 19, or indirectly in Clause 20.

When this was debated in Committee with earlier amendments, we expressed reservations about the meaning of “no effect” as it lacked clarity. In summing up the debate on Amendments 81 and 84, my noble friend Lord Callanan said:

“In Clause 21, a legislative requirement is one imposed ‘by, or by virtue of, legislation’.”


He went on to say:

“This extends beyond legislation to rules produced by bodies with powers delegated to them in respect of a particular field of regulation, and it may include licences or requirements contained therein. My noble friend’s Amendments 81 and 84 would appear to have the same effect. However, in my view, the term ‘of no effect’ is the more appropriate to apply in respect of a licence or a non-legislative rule.”—[Official Report, 28/10/20; col. 358.]


Having taken note of my noble friend Lord Callanan’s comments, I now seek to clarify that lack of effect would relate only to that element of the regulatory requirement that directly, or in the case of Clause 20, indirectly, discriminates against a service provider. It is hoped that the Government accept this amendment, as it is meant as a helpful clarification of Clause 19, and the related amendment to Clause 20. I beg to move.

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

My Lords, I hesitate to add to the excellent introduction that—if I may call her this—my noble friend Lady McIntosh of Pickering gave, except for one thing. We are dealing here with, in one case, direct discrimination and, in another, indirect discrimination, and only in these circumstances. Noble Lords will recall that, in a debate last week, as we were vividly reminded by the noble Baroness, Lady Ritchie of Downpatrick, the Minister got into a fankle—if I may be excused for using a Scottish word—on the question of discrimination. I hope that he will spell out these two areas carefully, so that the House is clear exactly what the Government think about this.

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

My Lords, I do not have a great deal to add to what has been said by the previous speakers. It is an unfortunate circumstance that the word “regulation” appears in multi-use in legislative and indeed non-legislative meaning; it can be a set of regulations or an individual regulation in a set. So I understand the concerns raised that it might be possible for regulation, or regulatory requirements, to span both a discriminatory measure and a non-discriminatory measure. Therefore, I think it would be helpful for the wording in Clauses 19(1) and 20(1), which use the slightly ambiguous term “regulatory requirement”, to refine it down, so as to disapply only the discriminatory part. There could be other ways to rework that wording to give the same effect, but it would be useful to put it beyond doubt because the word “regulation” is really rather confusing.