Trade Bill

Lord Hope of Craighead Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th March 2019 Lords Chamber

That convention is now underpinned by statute in devolution Acts. We are simply asking for the same level of protection so that regulations arising from trade agreements are provided with exactly the same protection as in the Scotland Act 2016. The implications of the continuity agreement and the regulations that will come from both that and new trade agreements are important. It would be most helpful if the Minister could update the House on where the current discussions are regarding those areas. From the Scottish Government’s correspondence with the Lord Speaker, we know that there is continuing disagreement, but it did not go into much detail on where we are on those areas. In addition to responding to the point made by the noble Lord, Lord Stevenson, the Minister providing further information on the state of play on those aspects—to continue the cricket analogy—would be helpful.

[Lord Hope of Craighead (CB)]

My Lords, I add my support to Amendment 28. I hope not to repeat too many of the points already made.

The Minister may have seen the letter from Mike Russell, dated 11 March 2019, to which the noble Lord, Lord Purvis, referred. He draws attention to the fact that the Scottish Parliament is not prepared to give its consent to the Trade Bill as presently drafted, which is a matter of some concern. It is not just being obstructive; it is taking a measured position based on Clause 2 of the Scotland Act 2016, to which the noble Lord, Lord Purvis, also referred. In his letter, Mike Russell said, as the Scottish Government has pointed out, that many of the 24 policy areas currently identified as potentially subject to such regulations are highly relevant in terms of future trade deals, for example food and feed safety, animal health and welfare, agriculture, environmental policy, food labelling, procurement and fisheries management. It is vital that the Scottish Government and Parliament should be able to protect and advance Scotland’s interests and approach in these areas. It is concerning that the Bill as drafted does not mention either consent or consultation. I hope that the Minister will feel able to look at this matter more carefully before we reach Third Reading.

I will make two further points. First, the wording of Amendment 28, adopting the formula in the Scotland Act, uses the word “consent”. I recall long arguments, when we were debating the European Union (Withdrawal) Act, about whether the word “consent” should be included in its various provisions involving interaction with the devolved authorities. The matter was resolved, in connection with the frameworks in relation to trade, by using the word “consult” instead of the word “consent”.

Personally, I would argue that we should adopt the forms in the Scotland Act, but the fact that the word “consult” was used in the amendment to the Healthcare (International Arrangements) Bill, to which the noble Lord, Lord Stevenson, referred, might be worth some reflection on the Minister’s part. As the noble Lord pointed out, the formula used in Amendment 15 to that Bill, which was an insertion after Clause 4, was:

“Before making regulations under section 2 that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority on that provision”.


That does not go as far as the Scottish Government wish, but at least it is a step in the right direction. As that amendment was moved by a Minister to a closely related Bill—it is part of the general package that we are considering, which is all related to our departure from the EU—I hope that the Minister and his Bill team will give careful consideration as to whether, if the Minister is not prepared to accept the formula in Amendment 28, that formula should be adopted instead. The difference between “consent” and “consult” is quite significant—but consultation, at least, would go a substantial way to meeting the concerns of the Scottish Government in these very important areas.

I shall add one further point. I was in the Grand Committee the other day looking at a statutory instrument that had been made by a UK Minister, and it contained a substantial number of amendments to Scottish legislation made by the Scottish Parliament. I asked why that was being done in a UK SI, rather than being dealt with by the Scottish Parliament. When one looked at the description in the back about consultation, one saw that it was defective, because it did not make it clear that the Scottish Government had been consulted. That was an example of a statutory instrument made by a Minister, on which one would have thought that consultation was essential—indeed, during discussions on the withdrawal Bill I was assured that the Sewel convention would be applied—yet the narrative was incomplete. That may have been simply a technical error, but it illustrates how easy it is to overlook the need for consultation, at least, unless that is on the face of the statute. So I warmly support the points made by the two noble Lords in support of the amendment. If the matter is to be taken away, I hope that the Government will come back on Third Reading with something to address this important issue.

[Viscount Younger of Leckie]

My Lords, I thank the noble Lord, Lord Stevenson, for this amendment, and for his scrutiny of the devolution provisions in the Bill throughout its passage. I also thank the noble Lord, Lord Purvis, and the noble and learned Lord, Lord Hope, for his points, which I will address later. Ensuring that the Bill works for the whole of the UK remains a priority for the Government, so I am pleased to inform your Lordships that yesterday the National Assembly for Wales voted in favour of granting consent to the Bill. I ask that this House consider that when weighing the scrutiny of the Bill in the context of the devolution settlements.

The practical purpose of the amendment is that the UK Government should, as a matter of course, seek the agreement of the devolved Administrations prior to legislating in areas of devolved competence. This is not, in principle, an area of contention; rather, the question is whether this should be on the face of the Bill. I reiterate that the UK Government are committed to not normally using the powers in the Bill to legislate in areas of devolved competence without the consent of the relevant devolved Administrations, and certainly not without first consulting them.

We have respected the role of the devolved Administrations through our programme of engagement with them, government amendments in the other place and my renewed commitment today. The Government will maintain this commitment. More broadly, the UK Government have been working productively and collaboratively with the devolved Administrations on a number of fronts. UK government officials are working with devolved Administration officials to revise the common frameworks analysis and take into account progress on framework areas since March 2018. The Government anticipate publishing a further iteration of this analysis shortly.

During our debates on this legislation, there have been many areas of agreement between us and noble Lords on the opposite Bench. Indeed, the noble Lord, Lord Stevenson, was correct to say in Committee that the use of the powers in devolved areas is,

“more complicated than can be dealt with within the confines of the Trade Bill.”—[Official Report, 23/1/19; col. 724.]

Additionally, the amendment risks setting a precedent whereby competence for policy-making is defined outside the established devolution settlements. It seeks to go further than the convention already recognised in the most recent Scotland and Wales Acts, and could require the court to make a decision on whether or not we were in normal circumstances. I do not believe it is the intention of this House to introduce new legal uncertainty to our statute book.

The Supreme Court made it clear in the judgment on the Miller case that it does not believe it is appropriate for the courts to police the Sewel convention, as it does not lie within the constitutional remit of the judiciary. By inviting this potential judicial scrutiny, the amendment could obstruct the programme of continuity that the Bill seeks to deliver, as the use of the powers could be substantially delayed, to the detriment of the UK as a whole.

I shall now deal with the point raised by the noble Lord, Lord Stevenson, when he mentioned the Healthcare (International Arrangements) Bill. As he knows, I was not involved with that Bill, but I hope that I can help. The amendment to that Bill requires the Secretary of State only to consult. Amendment 28 involves a consent requirement. Those are very different—and this plays into the point made by the noble and learned Lord, Lord Hope. For reasons that we have set out, the consent requirement would create a legal test for the courts, and therefore uncertainty. The powers in the healthcare Bill are different, too. The benefit of the concurrent powers in the Trade Bill is that they allow for the relevant Administrations to legislate themselves where a matter falls under devolved competence, and also allows Ministers of the Crown to make regulations for the whole UK when that makes sense.

As well as the benefits to the devolved Administrations of the concurrent powers, we have made repeated commitments on the Floor of both Houses always to consult the relevant devolved Administration. To take up the point raised by the noble and learned Lord, Lord Hope, about creating legal uncertainty, although the amendment includes the word “convention” in its title, it uses words that appear designed to turn the convention into a legal test. It uses the words “may not normally”, which appear designed to make that a legal rule justiciable by the courts. This could be a substantial block on the use of the Clause 1 and 2 powers, and could lead to delay through litigation, or, ultimately, to a block on the use of the powers if the court judged the situation to be normal. This could allow a challenger the power to withhold consent to the implementation of part of an agreement, meaning that the UK could not bring it into force until the matter was resolved.

--- Later in debate ---

[Lord Hope of Craighead]

I return to the word “normally”, to which the Minister drew attention. I recognise that in its judgment in the Miller case, the Supreme Court made it quite difficult for anyone to take a case before the court based on the use of the word “normally”. Indeed, the convention itself is not justiciable. In a way, that shows the sense of the formula that is used in the Healthcare (International Arrangements) Bill because that does not use the word “normally”. It just states that the Secretary of State “must consult”. If one is asking for consent, a higher level of co-operation is a useful qualification. “Normally” requires consent. But consultation is a sine qua non of proper legislation where the devolved Administrations are concerned. I would have thought that the formula in the amendment would not give rise to the same concern, which is why I suggest that the Minister considers very carefully whether, in this Bill, it would not be appropriate to adopt the same provision.

I appreciate what the Minister says about the consent of the Welsh Assembly, but it is a matter of some concern: the Scottish Government are particularly sensitive in relation to these issues and it would be a pity to say to the Scottish Government that just because the Welsh have agreed the Scots should just accept the provisions. They are making their own arguments based on what they know is important to them. Therefore, I hope that the Minister will pay very close attention to the point made.

[Lord Stevenson of Balmacara]

My Lords, this has been a useful little debate and I am grateful to the noble Viscount, Lord Younger, for raising all the points that he did and giving such a full response. But may I check with him that he said—it will be in Hansard—that he would be happy to have further discussions about the issue? I appeal to him and his good sense. Given that we are already in debate with him and his officials on a number of issues, this could with advantage be added to the list. It is not that we have any particular reason to want to bring it back in any aggressive form at Third Reading, but the issues raised are worth further discussion, particularly because the Government have chosen to legislate in the Healthcare (International Arrangements) Bill and that, irrespective of whether or not it has direct read-across to the Trade Bill, will have set a standard. We have to be careful that we are not either missing or exceeding that in a way that would be detrimental to any future discussions on trade.

I am willing not to press this amendment if we can be absolutely clear that there will be further discussions, because this point has not been fully resolved. But I give an undertaking that this is in no sense trying to make things difficult for the Government. It would be worth going a further round to get this right.