Strikes (Minimum Service Levels) Bill

Debate between Lord Fox and Baroness Noakes

Committee stage
Thursday 23rd March 2023 Lords Chamber

[Baroness Noakes (Con)]

My Lords, it seems to me that the noble Lords, Lord Fox and Lord Hendy, are finding yet another way to try to deprive the Bill of any effect. In their own ways, they are trying to make it entirely voluntary to take part in the provision of minimum service levels, if requested by an employer. That runs completely counter to the policy intent of the Bill.

If noble Lords think that the Bill needs to be modified in some way to reflect their concerns, it is incumbent on them to produce amendments which find a practical way through that. To simply, in effect, make compliance with a minimum service level work notice voluntary is unacceptable in the context of the Bill. Although I understand the points that the noble Baroness, Lady Chakrabarti, makes, those issues are already covered by discrimination law. The concern she has about being selected on the grounds of sex, sexual orientation or race is already covered by discrimination law and does not need to be protected again in the Bill.

[Lord Fox (LD)]

Does the noble Baroness accept that in Committee, there are two sorts of amendments: there are amendments which are very practical and designed to be used as a template for changing the Bill, and there are probing amendments? I point out that I made it very clear that the latest two groups I was speaking to were probing amendments. On that basis, I think her criticism is invalid.

Strikes (Minimum Service Levels) Bill

Debate between Lord Fox and Baroness Noakes

Committee stage
Thursday 9th March 2023 Lords Chamber

[Baroness Noakes (Con)]

My Lords, it is quite difficult to follow that speech. I do not think that anybody would want to encourage the dissipation of the Green Party in any Government, so the noble Baroness’s ideas will not go very far.

I will not talk about the NHS, which all noble Lords have spoken about so far; I will address only Amendment 13 tabled by the noble Lord, Lord Fox, but not in the context of the NHS, to which he addressed all his remarks.

[Lord Fox (LD)]

No, I did not.

[Baroness Noakes (Con)]

The amendment says:

“Levels of service set by regulations … may not exceed the lowest actual level of service … on any day”


in the previous 12 months. Let us take the example of train services. If we have the system closed because there is a lot of snow—which, I gather, there is at the moment in the north of England—the answer under the noble Lord’s amendment would be that the minimum level of service was no service. If one of the days in the previous 12 months had been a strike day, the answer might be no service. If any of the days in the previous 12 months were on a weekend or a bank holiday, which of course they would be, the answer would always be a very low level of service, which would not necessarily meet a minimum level of service for the workday population trying to get to work. I suggest to the noble Lord, Lord Fox, that his amendment is not correctly drawn.

Procurement Bill [HL]

Debate between Lord Fox and Baroness Noakes

Committee stage
Monday 24th October 2022 Grand Committee

[Baroness Noakes (Con)]

My Lords, I have several amendments in this group. The first is Amendment 264, a probing amendment to find out why standstill periods, which are generally required by Clause 49, are not required for light-touch contracts or those awarded in dynamic markets. My amendment would achieve this by deleting paragraphs (d) and (e) from Clause 49(3).

As my noble friend just explained, the standstill period is a short pause after the publication of the contract award notice in order to allow an agreed bidder the opportunity to complain about a contract before the contract is finalised. This is a sensible part of the framework because challenging a contract after it has commenced is much less effective and is best avoided. The purpose of my amendment is to ask my noble friend to say what public policy grounds would deprive unsuccessful bidders of the opportunity to challenge contract awards under the light-touch or dynamic market regimes. What specifically are the features of those regimes that are suitable to override the rights of unsuccessful bidders, compared with other contracts?

My next amendments, Amendments 477 to 480, would have the effect of ensuring that procurement oversight extends to all procurement covered by the Bill. Clause 96 allows for investigations into compliance with the Bill, but excludes government departments, Welsh Ministers, Northern Ireland departments and utilities from its scope. My simple question to my noble friend is: why? She cannot possibly tell me that these contracting authorities are such paragons of virtue when it comes to procurement that they would always comply with the Bill. Government departments do not have a perfect track record on procurement and, in my view, ought to be capable of being investigated.

My final amendment in this group, Amendment 482, concerns the recommendations that can be made following a Clause 96 investigation. Clause 97(3) says that these recommendations “must not relate to” how to comply with the procurement objectives set out in Clause 11; must not recommend how the contracting authority should have regard to the Section 12 national procurement policy statement; and must not say how the authority should

“exercise a discretion in relation to a particular procurement.”

I can just about understand the last one, because recommendations should not interfere with

“discretion in relation to a particular procurement”,

but I do not understand why recommendations have to steer clear of procurement objectives or the NPPS. What is the point of making recommendations if the heart of the procurement rules, to be found in Clauses 11 and 12, are off limits? For example, is value for money off limits in an investigation because it is an objective within Clause 11? I cannot understand why that should be excluded. My amendment is to delete subsection (3) on a probing basis, to give my noble friend the opportunity to explain what all this is about.

[Lord Fox (LD)]

My Lords, I speak in place of my noble friend Lord Wallace on Amendments 349A, 349B and 353A, all of which refer to and reflect on the procurement review unit. On page 13 of Transforming Public Procurement: Government Response to Consultation, at points 46 to 49, the Government say:

“We have revised the proposals for this new unit. It will be known as the Procurement Review Unit (PRU), sitting within the Cabinet Office and will be made up of a small team of civil servants.”


They go on to detail quite fully what the PRU is—I will come back to its role and autonomy in a minute—but where is it in the Bill? Amendment 349A seeks to replace “An appropriate authority” with the promised “Procurement Review Unit”. Amendment 349B would give a role for the procurement review unit to advise. More specifically, in Amendment 353A we seek the insertion of the nature of the procurement review unit.

All these amendments are trying to probe where the Government got to between the consultation and the drafting of this legislation, and why in effect there is no PRU in the Bill. What happened to it and who has got it? When the Minister no doubt notices and reinserts it on our behalf, what will its role and its level of autonomy be? How many teeth are the Government prepared to give this PRU, and will it essentially have those teeth drawn? Essentially, where is it?

Procurement Bill [HL]

Debate between Lord Fox and Baroness Noakes

Committee stage
Monday 4th July 2022 Grand Committee

[Baroness Noakes (Con)]

We have not received it.

[Lord Fox (LD)]

I will correct my speech. It has not even been received by all the interested parties, which makes it worse.

Furthermore, to date, the Cabinet Office has not provided proper explanatory statements for each of the new government amendments. There is nothing in the current Marshalled List. The eighth group, which we had planned to debate today, contains a group of amendments that was wholly absent from the Minister’s original letter and the table that some, if not all, of us received when that letter came. Essentially, we have had no time—hours, at best—to consider these amendments.

More than that, the Minister stressed the value of the external community and the input we get from interested parties in this legislation. Those interested parties have not had a little time to consider these amendments; they have had no time. They are not on the record for those bodies that can feed in and positively reinforce your Lordships’ legislative process. We are missing all that. So never mind the unintended consequences of this legislation—we do not even know what the intended consequences are.

For this reason, I put the Minister on a warning that I will object to each of his amendments. When the Question on Amendment 1 is put, I will be not content. My understanding of the process is that, in Grand Committee, this will mean that the amendment will need to be withdrawn.

Advanced Research and Invention Agency Bill

Debate between Lord Fox and Baroness Noakes

Committee stage
Monday 22nd November 2021 Grand Committee

[Lord Fox (LD)]

My Lords, this is the last group of amendments in Committee, and it is probably just as well, because if the Minister has any more jelly babies I suspect he will go into a coma. We have established through both our useful meetings with him and Second Reading that the framework agreement is a crucial document to point the way to how ARIA will operate and its future relationships. Without knowledge of that document, we are being asked to approve all manner of clauses, as we just have, that set ARIA in motion before we know how it will operate—actually, before we know what it is.

With Amendment 47, my noble friend Lord Clement-Jones and I are offering the Minister an alternative to the Government’s magical mystery tour approach. Remember that this tour comes with a ticket price of £800 million of taxpayers’ money—and that is just the start. The Minister is loading us on to his metaphorical charabanc, ready to go who knows where, flat cap in place. The amendment is intended to remove some of that mystery. Thanks to it, before the vehicle can be put in gear, we must at least be told where we are going.

I have perhaps laboured that image a little much but, as I said, it is the last group. More prosaically, the amendment would require the Secretary of State to publish a copy of ARIA’s framework agreement before regulations can be made to commence the substantive parts of the Bill. It continues our theme of ensuring that Parliament has sight of, and an appropriate say in, the progress of this important institute, and it would do so without impeding ARIA’s progress or meddling with its future. In this way, the Minister can remove the mystery without harming the magic, so I beg to move.

[Baroness Noakes (Con)]

If ARIA does not exist until the Act is commenced, how can there be a framework agreement that involves ARIA being a party to the agreement to be tabled before the commencement of the Act?

Advanced Research and Invention Agency Bill

Debate between Lord Fox and Baroness Noakes

Committee stage
Wednesday 17th November 2021 Grand Committee

[Lord Callanan (Con)]

I will write to the noble Lord with the legal details he requires.

[Baroness Noakes (Con)]

My Lords, I can probably help the noble Lord, Lord Fox. In the case of public corporations created by statute, it is quite common that they are the members. It is not usually drafted as if the board is a separate legal entity.

[Lord Fox (LD)]

The non-execs and execs, or just the non-execs?

[Baroness Noakes (Con)]

No, the members. The members are executive and non-executive, as defined. They comprise the body. That is quite normal in public sector formulations. While I referred to the board when I introduced my amendments, that is not set out in legislation because they are the members. In common parlance, I was talking about the creation of the board of the agency.

I thank noble Lords for their support and their contributions to this short debate, and I welcome the noble Lord, Lord Morse, to our deliberations. I heard what the Minister had to say. He has decided that there will be four executives and therefore a minimum board size of nine, but I do not think he really engaged with the substance of my arguments on why the potential for 15—or, indeed, more because the Bill does not limit the size of the board to 15—which was a little disappointing.

When the Minister dealt with whether or not there could be payments for pensions or gratuities to non-executives, he said that the Government do not intend to do that but are going to put it in anyway. Actually, this is really old drafting, which I can point to in many old statutes, which have not been used for many years, for very good reason, and there really is no need to carry on drafting in this way.

I could go on but I am not going to answer the individual points made by the Minister in response to my speech. I hope he will go away and read more carefully the content of the debate because I think there are some issues that he did not deal with in his reply, and I will certainly read his remarks more carefully when I see them in Hansard. I anticipate returning to some of these issues on Report. In the meantime, I beg leave to withdraw my amendment.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, I can probably help the noble Viscount. It is a shame that the noble Lord, Lord Morse, has not stayed with us. I think what I am about to say was referred to in the opening remarks of the noble Baroness, Lady Chapman.

Because the Comptroller and Auditor-General is specified as the person to examine, certify and report on the statement of accounts, the National Audit Act 1983 gives the Comptroller and Auditor-General the power to do value-for-money audits in the way that the National Audit Office does for all government and public departments. The power therefore already exists and there is no need for Amendment 11, as I think the noble Baroness herself conceded; it is simply not an issue. A power for the Comptroller and Auditor-General to carry out a value-for-money audit will exist and the audit will be carried out in the normal way that the National Audit Office undertakes its value-for-money audits.

[Lord Fox (LD)]

Again, this is an interesting group of amendments, and the noble Baroness, Lady Chapman, and the noble Lord, Lord Ravensdale, should be congratulated on tabling them. Bearing in mind what the noble Baroness, Lady Noakes, has just said, I was already planning to focus on Amendments 12, 13 and 14 and not to talk to Amendment 11, and that is probably a good idea.

However, I say to the noble Lord, Lord Browne, that I do not think his work was wasted because one way or another he has managed to uncover the fact that the Government have decided deliberately to exclude this requirement that they expect every other central government purchase to meet. The Minister has a serious question to answer as to why that is being left out.

Amendments 12, 13 and 14 cover an important issue. I do not think we need to underline, after the week or 10 days that we have just had, why it is in the interests of ARIA itself for it to be seen that there is no conflict and there are no issues around where the money is being spent. In a sense, these amendments or versions of them, will help ARIA in its own housekeeping. Of course, the Electoral Commission will register donors. As the noble Baroness, Lady Chapman says, we then need a list of all the companies and then to go to Companies House to find out who is registered as being in control of those companies. Making it easier also makes it clearer to the ARIA administration what it is dealing with.

I go back to the statutory instrument that we are not debating today, which talks about conflict of interest—so it is clearly relevant. It says that a member of ARIA must disclose any “relevant interests” promptly on appointment. The trouble with that is that I do not think that many people can consider their donations to be a relevant interest, but they are relevant with respect to an organisation of this nature. So something clearer needs to be spelled out, either in the statutory instrument or in the primary legislation. I would prefer it to be in the primary legislation.

When that is done, in listing the companies that are being supported, I suspect that the Minister is going to stand up, in the same way as he is going to stand up when we debate the freedom of information stuff, and say, “This work needs to be kept under wraps and kept secret”. There is a balance to run on this, and if there is an issue we need to find a third-party agency to scrutinise it on behalf of Parliament. But to hide specifically through national security or proprietorial security is wrong, because in that darkness—even if abuses are not happening—the perception of abuse will happen, which will harm ARIA before it even starts.

Professional Qualifications Bill [HL]

Debate between Lord Fox and Baroness Noakes

Report stage
Tuesday 9th November 2021 Lords Chamber

[Lord Fox (LD)]

On the subject of Amendment 11, I have full sympathy with the point made by the noble Lord, Lord Lansley. If my noble friend Lord Purvis were to speak, he would remind the Committee that at the outset we were promised primary legislation for trade deals, and I am gratified that at least two noble Lords will be keeping an eye on the overall process.

In Committee, back in July, the very first amendment that we discussed, in my name and that of my noble friend Lord Purvis, was very similar to Amendment 15. Its purpose from the outset was to protect the autonomy of the regulators. In that respect we are both delighted that the Minister has listened and, through the process of discussion, has come up with Amendment 12. It does a lot of the heavy lifting in dealing with what I referred to earlier as the Trojan horse of suspicion.

In protecting regulatory authorities from Clauses 1, 3 and 4, the amendment very much creates a situation where they are allowed to go about their business in the way that we want. It is for that reason that I took the unusual step—at least, unusual for me—of countersigning the Government’s amendment, which clearly indicates our support from these Benches for what we see as a welcome and important addition to the Bill.

[Baroness Noakes (Con)]

My Lords, throughout our consideration of the Bill I have been critical of my noble friend the Minister and the Government for riding roughshod over regulatory autonomy, so I very much welcome Amendment 12 in his name and that of the noble Lord, Lord Fox.

I have a residual concern. While this protects the autonomy of regulators over whom they may admit to practise in their profession, there may still be a concern that significant costs will be loaded on to regulators from having to comply with the obligation to consider individuals or institutions overseas, because that is what has been negotiated as part of a trade treaty, which would result in a considerable cost for the predictable outcome of not approving those individuals or institutions, and those costs would inevitably be borne by UK professionals because there is nowhere else for costs to go. To some extent, therefore, I was unhappy with the formulation of Amendment 12. However, taking it in combination with the amendment that we have already considered relating to consultation with regulators, I have to hope that the Government would never proceed with regulations that imposed unreasonable burdens on UK-regulated professionals in the pursuit of something that would not be achievable, in terms of the recognition of individuals within an overseas profession. I think that taken together those amendments are okay, but I have a residual concern that burdens might end up on professionals.

Professional Qualifications Bill [HL]

Debate between Lord Fox and Baroness Noakes

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I will be brief. I support the Government’s amendments in this group and the amendment in the name of my noble friend Lord Lansley. Initially, I thought that his amendment was attached to the word “only”, which is often misused in the English language—most often as an inappropriate or misplaced modifier. Initially I thought my noble friend was going to say that it was a misplaced modifier. However, I listened to what he said, and he raised a very substantive concern about the drafting of the clause. Like other noble Lords, I hope that my noble friend the Minister will agree to take this away and look at it and, if necessary, bring an amendment back on Report to make proper sense of his new amendments.

Of course, there is a slight problem: once we have amended a Bill, we are not supposed to go back and amend it again at later stages. However, I think that if my noble friend were clear enough from the Dispatch Box today that he will look at this, it would not cause a problem.

My noble friend Lord Lansley may well have noted that, in our Conservative notes on the amendments that we are considering today, his Amendment 11 was described as an opposition amendment. I know that my noble friend has not always toed the party line—he is not alone in that—but I have never regarded him as the Opposition. I share this with the Committee in the hope that it will improve my noble friend’s street cred.

[Lord Fox (LD)]

My Lords, I join noble Lords in congratulating the Minister on moving quickly on this. I also congratulate the GMC and the Nursing and Midwifery Council on moving quickly in terms of raising this issue with Her Majesty’s Government. Reflecting back on some of the things we heard in the debate on the first group of amendments, it seems that there are other professional groups in regulated professions that still have outstanding issues. I hope that the Minister can confirm that his door is just as widely open for them to bring their issues forward, albeit somewhat later, so that we can clear them up.

The Minister talked about whether we were assuaged and then stated that the Secretary of State for Health could bring forward statutory instruments concerning the health profession. We knew that. What we do not know, and what has not yet been answered, is how conditions set and laws made by this Bill that reflect on the consultation—as the noble Lord, Lord Purvis, set out frankly, this Bill and the DHSC consultation are travelling in highly contradictory directions—will affect the consultation and the health professions. It is that direction that we are more interested in, rather than the opposite.

I associate myself with the comments made by my noble friend Lady Garden of Frognal. These amendments are welcome. I note that, along with the noble Baroness, Lady Finlay of Llandaff, we expect to debate the word “substantially” later because we have some concerns around that. I also note her point about future regulators, so to speak. My assumption is that those regulators will be established by a different process somewhere else but, in order to add those additional regulators to this Bill, we will be seeing some more of the Minister’s statutory instruments in future. Perhaps the Minister can be clear about how future new regulators will be added to the terms of this Bill.

The noble Baroness, Lady Noakes, does not regard the noble Lord, Lord Lansley, as the Opposition, and I kind of do not, either. In this respect, I think the Minister would do well to listen to his very wise advice.

National Security and Investment Bill

Debate between Lord Fox and Baroness Noakes

Committee stage
Tuesday 9th March 2021 Grand Committee

[Baroness Noakes (Con)]

My Lords, I strongly support the amendments in this group, which seek to set up a fast-track process. Anything that can make the processes more friendly to help non-problematic business transactions is welcome. I am very worried about the impact that this Bill, which I support in principle, will have on the UK’s reputation as a good place to invest, and I echo what other noble Lords have already said today. That is why we have to work to make the operation of the Bill as painless as possible for transactions that fundamentally do not raise concerns.

I am less sure about the other amendments in this group. I understand the desire to protect SMEs and start-ups from the full force of the Bill. I do not believe that national security risks can be sized by reference to a point in time, monetary value of current assets or turnover of a business. So I do not support Amendments 20 and 24 in the name of my noble friend Lord Leigh of Hurley.

Similarly, I am not convinced about restricting qualifying assets outside the UK to those in connection with activities carried out in the UK, as envisaged by my noble friend Lord Hodgson of Astley Abbotts in Amendment 26. I do see a need to be able to focus on supply chains as well as on activities carried out in the UK, and I would not want to deprive the Government of the ability to do that if genuine national security issues arose.

[Lord Fox (LD)]

My Lords, the noble Lord, Lord Leigh, is correct to say that the Bill is far more important than the outside world seems to realise. When I have been speaking externally, I have been trying to remind people of the Bill’s existence and the need for them to read it. Perhaps we should adopt the policy of the Ancient Mariner and stop in one in three in the street and tell them about it because it does not seem that the message is getting through. Perhaps we will just have to work on their behalf.

A strong case has been made by the proponents of Amendments 20 and 24. When the Minister, the noble Lord, Lord Callanan, speaks on a number of different issues, he often talks about flexibility and keeping options open. This seems another example of where the Government are seeking to keep their options open and, as the noble Baroness, Lady Noakes, set out, there might or might not be good reason for that. When I sat on your Lordships’ Science and Technology Committee, it held an inquiry into the challenge of scale-up and the need for patient capital and for money to come in. It is very clear that the United Kingdom has a way to travel in getting the sort of funding that we are talking about for these scale-up situations. I am interested to hear from the Minister what sensitivity studies have been done on this. How much work has been done in talking to the investment and venture capital community about how it views it? Perhaps the Minister could write to us with the evidence has been received about its reception and the Government’s impression of it. I am persuaded that there is an issue. The question is how big an issue it is, given that we have a suboptimal venture capital regime in this country for this sort of scale-up. How badly and to what extent would damage be wrought?

I read Amendment 25 differently from the noble Lord, Lord Lansley. I read the words “examples include” to mean that that is not exclusive and I think the noble Lord has what he wants without having to put the words in. Perhaps the Minister can clarify that.

I find myself in complete agreement with Amendments 52A, 55A, 64A and 67A. If these transactions are not supposed to be impacted by this, let us get them out of the system as quickly as possible. The doctrine expressed by the noble Baroness, Lady Noakes, about the workability of the regime, the amount of friction it introduces and our responsibility to remove that friction wherever possible is completely correct, so those four amendments deserve noble Lords’ complete support.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, I am glad that the noble Lord, Lord Clement-Jones, cleared up the position of Amendment 26 in the previous group, because I struggled, when I came to this group, to work out what else there was to say. I put my name down anyway to see what would emerge from previous speakers.

I said on the previous group that I had concerns about confining the Government’s powers to exclude those outside the UK that provide goods or services to the UK, because I believe that the Government should have as wide a definition as possible. I absolutely believe in making the processes of the Bill move as smoothly as possible and I do not want to add to what I believe will be the big burden of voluntary notifications. But, when it comes to defining where the Government could act, we need to be broad in our approach. If there is one such potential acquisition only, I would still say that it is worth having the power to go there, because these are serious issues about the national security of our land.

[Lord Fox (LD)]

This follows on quite well. Throughout this debate and lots of debates about Bills, we hear your Lordships use the phrase “unintended consequences”. Actually, giving the department credit, I assume that this is an intended rather than an unintended consequence, so I would like the Minister to explain exactly what it is seeking to achieve or prevent happening. What past examples would have been arrested, had this law been available then? Being a practical person, that would help me and others to understand what the Government are getting at.

This clearly does not have extraterritorial reach, as my noble friend Lord Clement-Jones said. It seeks to deal with all activities when it might be better to separate and segment them. I take the point of the noble Baroness, Lady Noakes; it would help us if we understood what the Government are getting at with this wording.

National Security and Investment Bill

Debate between Lord Fox and Baroness Noakes

Committee stage & Lords Hansard
Tuesday 2nd March 2021 Grand Committee

[Lord Fox (LD)]

My Lords, Amendment 1 is in my name and that of my noble friend Lord Clement-Jones. At Second Reading the Minister described the Bill as

“a major upgrade to the Government’s powers to screen certain acquisitions on national security grounds”,

which builds substantially on the Enterprise Act 2002. It certainly is, but perhaps in the Bill we are dealing with architect’s drawing of the upgrade, rather than a 3D model.

First, let me say without equivocation that those of us on our Benches see the need the Government to scrutinise potentially sensitive transactions, and we think that an upgrade is timely and sensible. However, as the Minister has acknowledged, there is the rub. Defining what is sensitive and what is a transaction of concern are key to the effective operation of the Bill. As we progress through the amendments ahead of us, I would say that virtually all seek to better define the operational process of the new investment security unit within BEIS and to ensure that the disquiet it has caused is alleviated.

At Second Reading, the Minister spoke about reflecting

“the modern economic and investment landscape in the UK.”—[Official Report, 4/2/21; col. 2332.]

In fact, what is proposed here is culturally different from what successive Governments have practised. Blair, Cameron—including and excluding us—through May to Johnson have all, so far, rightly or wrongly, pursued a distinctly hands-off approach. It is not hard to understand the alarm that the Bill might cause in the outside world.

Its publishing sends a message about the future nature of interventionism. This concern comes not just from the traditional free traders of the City but from universities, industry trade associations and sectors as wide as space and bioscience. The abiding link to these academic and industrial concerns is that these are, by necessity, international and collaborative activities.

The overwhelming concern coming from all sides of the House in that Second Reading debate was how this unit was to operate effectively without stifling innovation, scaring off capital and becoming a proxy for wider strategic considerations. It is with this in mind that my noble friend Lord Clement-Jones and I penned this first amendment, which sets out the objective of the Act. By exclusion, it also sets out what is not the objective of the Act and thus what is within and not within the purview of the investment security unit. It is designed to send clear messages about how this Bill will operate in practice.

Looking at the amendment in detail, first, in making regulations under proposed subsection (1), the Secretary of State’s overarching objective must be safeguarding national security. This is reinforced by proposed subsection (2). There is no controversy here, given that this is the purpose of the Bill, and on their own the subsections would offer nothing new. That is down to proposed subsection (3), which would add that

“The Secretary of State must also have regard to the effect of the application of this Act,”


on other things. In our case we have listed:

“technology investment … the research and innovation environment … and … business opportunities for small and medium-sized enterprises.”

We put those three there, because in our view these areas are key elements of our national security. I am happy to debate what should be on that list, but I will explain why we put these in the amendment.

Technology investment is key to keeping ahead of the security arms race, and it is reasonable that the Secretary of State and, by extension, the unit in BEIS would have regard to this technology base. Similarly, the research and innovation environment is needed to deliver that technology leadership. Without vibrancy in investment here our future security is compromised. Finally, in many cases it is the SMEs that bring true innovation to all the 17 sectors on the Minister’s list. They take technology to market and must not be disproportionately disadvantaged by the application of this Bill.

This amendment is designed to send two messages. One is internal, seeking to influence the nascent culture of the investment security unit to ensure that it recognises publicly what elements contribute to the delivery of national security. The second is an external message to the market, our universities and our innovative businesses, big and small. They need to know that these issues are in the Government’s mind when they are making security decisions. They need to be reassured that this is a vehicle to help to reassure them. The Minister may well say “trust me”, and of course I do, but what of future Ministers and future Governments? This amendment would ensure that the Government have regard to the conditions and the culture that will deliver national security and investment in that security. I beg to move.

[Baroness Noakes (Con)]

My Lords, in principle, I do not support proposed new clauses such as this, whether they are called objective clauses or purpose clauses. I have tabled them myself in the past, but they are usually not much more than an excuse for another Second Reading debate, and we had a little of that in the introduction from the noble Lord, Lord Fox.

Amendment 1 could be positively harmful. It confines national security to “economic and social harm”. The obvious item omitted is physical harm, but other harms could be missing. Purpose or objective clauses would be used as an aid to interpretation of the main body of the Act so, if they are there, they have to be comprehensive in their drafting if they are not to act as a constraint on the operation of the Bill.

Similarly, the “have regard” matters in proposed new subsection (3) could act as a constraint on the Secretary of State. The noble Lord, Lord Fox, explained the rationale for his list, but I could not see why “technology investment” was singled out compared to other kinds of investment—for example, in manufacturing capability or intellectual property. What exactly is meant by “research and innovation environment” is unclear from the drafting, and is the omission of “development”, which is the normal companion to “research”, significant or not? Singling out SMEs, which we are all aware are important to our economy, implies that larger enterprises are not important in the considerations.

There is a good reason why Bills do not often contain purpose or objective clauses. They are traps for the unwary and can do more harm than good.

United Kingdom Internal Market Bill

Debate between Lord Fox and Baroness Noakes

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

[Baroness Noakes (Con)]

My Lords, I start by saying how much I agree with what a number of noble Lords have said about the nature of debate in this sterile House, and I hope that we can certainly move on. I think it is important to say that because, as noble Lords might expect, I am not going to be saying much else which will find favour with other noble Lords who have spoken in this debate.

I respect the concerns about protecting the powers of the devolved Administrations which lie behind the amendments in this group, but I believe that these amendments would not be helpful in the context of the internal market and might well be very harmful. There is no exact correlation between what the common frameworks cover and the UK’s internal market covered by the Bill. Indeed, the functioning of the internal market is only one of six objectives of the common frameworks programme. Not every common framework will have a UK internal market dimension, and not every aspect of the UK internal market is included in the common frameworks programme.

So if Amendment 1 is agreed to, we will have uncertainty from day one about which bits of the common frameworks would override the market access principles. Uncertainty kills businesses. Uncertainty might be resolved only by the courts, and that could take five, maybe 10, years to bring to conclusion. Businesses cannot in general cope with timeframes of that nature, and that is especially true in today’s lockdown-harmed business environment.

The common frameworks are by their very nature detailed and specific. They are practical solutions to well-defined problems, such as compliance with international obligations. They do, however, have two big weaknesses. First, they have no guiding star, or no guiding principle, and they cannot, by their nature, cope with future change. By contrast, the internal market enshrined in the Bill is based on the overarching and enduring principles of market access, namely, mutual recognition and non-discrimination.

I am very clear that businesses want the Government to deliver an internal market which has as few barriers to trade as possible. They do not want to have to master thousands of pages of common frameworks, which may or may not impact the internal market, just to do business 10 miles away if that is over one of the UK’s internal borders. I have to say to the noble Baroness, Lady Randerson, that I have never even heard of the Aldersgate Group she referred to as representing business opinion, and I do not believe it represents the opinion of the whole business community.

In Committee, I urged noble Lords to consider the provisions of the Bill through the lens of businesses and individuals who will be trying to live, work and trade within the United Kingdom—that is what the Bill is about. By viewing the Bill through the lens of what the devolved Administrations think they might lose in terms of devolved competence, I believe that they may end up inflicting acts of self-harm on the people and businesses in their own territories.

I remind noble Lords of the high degree of dependence of the devolved nations on trade with other parts of the United Kingdom. This is an issue for Scottish businesses and residents, Welsh businesses and residents and Northern Ireland businesses and residents. It is important but not such a big issue for English businesses and residents. If trade is made more difficult, the result, as night follows day, will be higher cost and less choice for consumers. At a time of economic stress, that does not seem a sensible route to follow.

I have heard many arguments of principle adduced by the supporters of the amendments, but I have heard less about the practical issues. We heard about Scottish concerns on minimum alcohol pricing, but that was debunked in Committee. I believe that building regulations are a new red herring that has been introduced and will not conflict with the Bill. The Bill does not outlaw every variation within the UK, as some have tried to suggest. More importantly, I am still waiting to hear what will make life better for the businesses and residents of the devolved nations if the amendments are passed.

More than 90% of UK small and medium-sized enterprises, and nearly 60% of large businesses, trade only within the UK. That is the scale of the issues we are facing with the amendments. I hope that noble Lords will not jeopardise the aims of an internal market which works for the whole of the United Kingdom by pressing the amendments.

[Lord Fox (LD)]

My Lords, the noble Baroness, Lady Noakes, is right: I found cause to agree with her opening statement, as I did with the noble Lords, Lord Foulkes and Lord Cormack, and others. The need to have proper debate—not least to allow the noble Lord, Lord Foulkes, to go back to his heckling—would add to the debate.

Congratulations should go to the proposers of the amendments and to the noble and learned Lord, Lord Falconer and my noble friend Lord Newby, who have managed to create a debate which gives your Lordships a proper choice. That choice centres around the words “mutual respect”, because the Bill as it stands, unamended, is disrespectful to the devolved authorities and to the process of devolution. The amendment gives your Lordships a chance to build that respect back into the Bill.

On many occasions, Ministers have freely used the word “complement” and expressed the view that the common frameworks complement the process devised by the Bill. Unless those common frameworks can be built into the Bill, and unless the Minister can explicitly explain how they complement, there is no complementary process; there is replacement, which I believe is sought by the Bill. The noble Lord, Lord Naseby, spoke of the common frameworks as if they were some Bolshevik plot. I remind him that they were the policies of a Conservative Government whom he probably supported and voted for at some point in the recent past.

The amendments give an opportunity to put respect back into the Bill, but there is also a practical element to them. We should remember, as we were reminded by, I believe, the noble and learned Lord, Lord Mackay, that trade and the internal market are flexible: they move, they change. The common frameworks are designed to be a flexible, living document. As many Peers have pointed out, they are also there to manage divergence. The common frameworks are there to manage divergence and, as we have heard from a number of speakers, not least my noble friend Lady Randerson, that divergence delivers innovation, progress and better things for this country.

My noble and learned friend Lord Wallace brought up something very important. In the words of the Minister, the Bill seeks to do that which the common frameworks do not do. The common frameworks do that which is being transferred from the European Union. Therefore, the Bill is trying to do more than was being transferred from the European Union. This is a zero-sum game. Where is that power coming from? It is being reserved by the Government from what was previously devolved. My noble and learned friend showed that that is the clear plan that sits underneath the Bill.