Professional Qualifications Bill [HL]

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 22nd June 2021 Lords Chamber

I will not comment further on the list issue, because a lot has already been said very competently by other speakers, particularly by the noble Baronesses, Lady Noakes and Lady Hayter, and the noble Lord, Lord Purvis. I will not add to that, but there is a problem, which we may discuss in a later amendment about the list.

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure to follow my noble friend Lord Patel. I too wish to support all the amendments in this group, but I shall particularly mention Amendments 45 and 46, in the name of the noble Baroness, Lady Noakes. I like these amendments because they are directed precisely to an issue which affects two of the regulatory functions that I had when I was Lord President of the Court of Session in Scotland, as I mentioned at Second Reading.

The word “regulator” is defined in Clause 16 as meaning a

“a person having functions under legislation that relate to the regulation of the profession in the United Kingdom”—

a broad definition. The Lord President is such a person. But he does not exercise those functions on his own. His function, in essence, is to supervise or oversee the other regulator which in each case is the professional body itself. The definition does not draw that distinction, but it is relevant to what Clauses 8 and 9 require the regulators to do. The information to which Clause 8 refers is held by the professional bodies, not by the Lord President.

Amendment 45 addresses itself exactly to the function that the Lord President can perform, which is to ensure that the professional body does what Clause 8 requires. That makes very good sense. There is no need for him to duplicate what the professional bodies are asked to do—which, if the Bill remains as it is, would be its effect. All that is needed is to identify what the Lord President should do as overseer to ensure that the information is made available. The same is true as regards Clause 9. Here too duplication of what the professional body is being asked to do is unnecessary. What Amendment 46 requires of the Lord President is just the kind of thing that he does frequently throughout the year to ensure that the professional body is doing what it is required to do.

For these reasons, I am grateful—indeed very grateful —to the noble Baroness for bringing these amendments forward. I do not need to comment, for the reasons that the noble Lord, Lord Patel, gave, on Amendments 63 and 68. I hope that the Minister will recognise that the amendments to which I have been speaking make very good sense and will improve the Bill, which in its present form is, for reasons I have hinted at, highly unsatisfactory. I hope that he will feel able to accept them.

[Lord Davies of Brixton (Lab) [V]]

My Lords, I declare my interest as a member of a profession, as listed in the register of interests. I support Amendment 63, tabled by my noble friend Lady Hayter. It is entirely reasonable that it should be clear to which professions this legislation should apply—in addition to architects, who get their own bit in the Bill—so I commend my noble friend’s diligent work.

However, I have a question about what counts as a regulated profession. I know this issue comes up under Clause 16, but it is clearly important in the context of the amendment. Clause 16 tells us that

“‘regulated profession’ means a profession that is regulated by law in the United Kingdom”

and draws our attention to Clause 16(3), which says:

“For the purposes of this Act, a profession is regulated by law in the United Kingdom … if by reason of legislation … individuals are entitled to practise the profession in the United Kingdom … or … individuals are entitled to practise the profession in the United Kingdom, or in that part of it, only if … they have certain qualifications or experience, or … they meet an alternative condition or requirement.”


All that tells us, in effect, is that a regulated profession is a profession that is regulated by law. I find this difficult without a comprehensive index of all the legislation that might be caught by that definition, particularly given the open-ended Clause 16(3)(b)(ii) at the end about meeting

“an alternative condition or requirement”.

So this question is relevant to the amendment. Could the Minister tell us a bit more about what is envisaged might be covered by that part of the definition?

Let us start from the other end. What professions might be covered by the Bill and is there a useful definition that covers them? My noble friend Lady Hayter has helpfully provided us all with a list. The list is interesting in itself, making clear the extraordinary hodge-podge nature of the Bill. Clearly, it is not a list based on a rational assessment of the needs for legal recognition; it is probably a combination of historical accidents. My question is: how do I, other noble Lords and, most relevant, the Government really know which professions are covered by the Bill, given the breadth of the requirement to meet an “alternative condition or requirement”?

How do we know there is not buried somewhere in past legislation a condition or requirement that applies before an individual can practise their profession? I mentioned this issue at Second Reading. Here is an example: there are requirements in the legislation covering both pensions and life insurance that an actuary can sign off on certain statutory reports only if they have been approved by the relevant government Minister—invariably, the Secretary of State. Does that count as regulation? If so, should various Secretaries of State be included in the list of regulators? Perhaps the Minister could address this issue. I do not ambitiously expect an immediate response, but a considered response would be helpful.

Professional Qualifications Bill [HL]

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, like others who have spoken, I strongly support these amendments. I am most grateful for the most comprehensive speech by the noble Baroness, Lady Randerson, who laid out clearly what the issues are, both in terms of the constitutional conflict that is in the Bill at the moment, and the consequences of it, and also the consequences for services within Wales. I think these also apply to Scotland, but I should declare an interest as someone who lives and works in Wales—that is the area of my own experience. I ask the Minister to explain quite clearly why the draft of the Bill was given to the Welsh Government only a week before it was published, and why the final version was not seen before it was laid on 12 May. To me, that does not feel like consultation or like any attempt to find a consensus agreement with devolved Administrations at all.

There is a concern that the skills shortages are being linked to the trade policy agenda, and how the new obligations on regulators could be moved and adjusted because they are driven by some trade policy, rather than by the need to ensure that we have safe and effective high-standard services for people within our nation. Although Clause 14 confers regulation-making powers on the appropriate national authority, these are exercisable only concurrently with the Secretary of State and Lord Chancellor. That seems to make it possible that the Secretary of State or Lord Chancellor could legislate in devolved areas and would not be required to obtain the Minister’s consent to those regulations. I understand that the Minister stated in a letter that these powers would not normally be used, but the problem is that once this is in legislation, such assurances do not carry any weight at all, and they are not binding on this or any subsequent UK Government. So it would seem that there are really serious risks, as the noble Lord, Lord Bruce of Bennachie, outlined.

In the event that there needs to be regulatory compromise in the interests of trade—I cannot think of a specific example, but I see the confusion and conflict between these two areas—will the Minister confirm that any such regulatory compromise will be notified to Parliament, to ensure that there is parliamentary accountability for any pressure put on to compromise any standards? We have heard in this debate already about the importance of common frameworks, but I will finish by advocating that the Government look very carefully at these amendments and make sure that they do not drive a further wedge between the four nations, because the consequences really do not bear thinking about. I certainly agree with those who say that they create an additional threat to the cohesiveness of the union.

[Lord Hope of Craighead (CB)]

My Lords, the Minister assured the House earlier this afternoon that the autonomy of the regulators would be respected. I am sure we all take the Minister’s assurance at face value and fully understand what he is getting at, but one of the many problems that lurks within the Bill and the wide regulation-making power it creates is the risk of causing collateral damage by careless or inadvertent wording or insufficient research before the power is exercised. As I said at Second Reading, the centralised systems that the Bill seeks to create will work only if the diversity that exists across the United Kingdom is fully respected. That is especially true where the devolved Administrations are concerned.

My own experience is confined to the systems for regulation of the legal profession in Scotland, but it is a guide to how the regulatory systems among the professions may differ from each other. In my cases, they involve not just one but two regulators working together, and there are different systems for the two branches of the legal profession in Scotland. For the Law Society of Scotland, which regulates solicitors, it is the society itself, working together with the Lord President of the Court of Session. For the Faculty of Advocates, it is the Court of Session itself, whose functions are then delegated to the Lord President of the faculty. The message that these two examples conveys is that it cannot be assumed that the regulatory systems that currently exist are alike in all cases, or even in most, so great care is needed to ensure that what is being done fits the requirements and practices of the profession that is being regulated.

This brings me to Amendments 13, 24, 35 and 40, in the name of the noble Baroness, Lady McIntosh, to which I have added my name. The point that each of these amendments is making is that prior consultation with the devolved Administrations and the regulators is essential before the regulation-making powers in Clauses 1(4), 3(3) and 5(2) are exercised. I shall say a little more about each of these subsections.

Clause 1(4), which is about providing for individuals with overseas experience and qualifications to be treated as having UK qualifications, really has to be read with Clause 1(5), which sets out a list of the many provisions that may be made in the exercise of the Clause 1 power. They are very wide-ranging. Paragraphs (f) and (g) in the list are of particular concern, as they are so wide in their scope. The words “guidance” in (f) and “other duties” in (g), which are not otherwise qualified, leave a huge amount to the discretion of the national authority.

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[Baroness Noakes (Con)]

My Lords, I will be brief. The requirement in these amendments for regulations to be published in draft form and consulted on is sensible, for the reasons that the noble Baroness has given. I just do not see why they are confined to this so-called priority list, because any profession that could be brought within the ambit of Clause 1 or Clause 3 should be treated in the same way. While we can sympathise with the medical professions and vets being priority groups over such mundane things as auditors and farriers, in practice any profession that might be impacted by these sorts of regulations, and could therefore have its standards impacted, ought to be covered in a consultation process.

I do not think the consultation process, as drafted in these amendments, should be confined to the regulators, because it is not just the regulators themselves that would be impacted by any regulations made under these clauses; so would the professionals operating in those regulated professions and all the other groups affected by them. I support consultation being in the Bill because of the unusual nature of the powers the Bill is taking, but I do not think it should be confined to the so-called priority groups.

[Lord Hope of Craighead (CB)]

My Lords, I have added my name to Amendment 27, which is principally in the name of the noble Baroness, Lady Hayter of Kentish Town. There is a lot to be said in this particularly obscure Bill for the publication of regulations in advance of their being made, so that people can see them in draft and consider them before they take effect. Regulators themselves would of course be consulted if this amendment is passed, but publication gives the opportunity for the wider public to scrutinise them, and no doubt inform this House and the other place, before the crucial point comes when the regulations are made. So I support this particular amendment.

There is a lot of force in the point just made by the noble Baroness, Lady Noakes, that to confine this provision to the priority professions perhaps misses the point. Perhaps there should be a requirement across the board. There are other important professions that are not in this list. I am not claiming this particularly for the legal profession, as there are certainly other professions that are absent from this list, given the enormously long list of people who are within the purview of this Bill. The amendment may be a starting point but, for what it is worth, I support it.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, it is a pleasure to follow the noble and learned Lord. I put my name to these amendments because I regard full and transparent consultation as very important. At its heart, the integrity and independence of our regulators is at stake. The problem is that the Bill gives far too many powers to Ministers. In the previous debate the Minister said that future trade agreements will not compromise standards. I wonder what our farmers and fishers think of that. We know that the Government are desperate for trade deals and that they have a track record of carelessness about their details. Clause 3 gives Ministers a completely free hand when it comes to trade agreements.

This debate is also set in the context of the independence of health regulators and fears that it may be compromised. Earlier, the noble Lord, Lord Purvis, made a cogent analysis of the interrelationship, or lack of it, between this Bill and the current extensive consultation by the Department of Health and Social Care on the reform of the health regulatory bodies. Those proposals are extensive and, as suggested by the noble Lord, Lord Purvis, give extensive powers to each regulator to streamline its own processes. I support that, because the public will benefit from more streamlined approaches to fitness to practise, which will deal with issues more quickly.

However, alongside this, it is widely expected that the forthcoming NHS Bill announced in the Queen’s Speech will contain extensive provisions on the very same regulatory bodies in health that we are talking about today. One provision will be to allow Ministers, by regulation, to abolish a regulator and establish others. I have huge reservations about this, because surely it puts their independence at risk if, on a whim, a Minister can get rid of a regulator that they do not like. When you put that prospect together with this Bill, alarm bells start to ring. Consultation is not everything, but it is a safeguard. My noble friend’s amendment would provide one such safeguard that I believe we need.

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

My Lords, Amendment 23 in my name deletes Clause 3(2)(c), which provides regulations under this clause and relates to the charging of fees. That is at odds with the terms of Section 31(4) of the European Union (Future Relationship) Act 2020, which provides that no fees should be charged. That Act does not allow for the imposition of fees in regulations designed to implement the trade and co-operation agreement. So this is a probing amendment that gives the Government the opportunity to explain why they have a completely different approach in the Professional Qualifications Bill from that in the future relationship Act. I look forward to hearing how the Minister can explain that away.

Amendment 47 has also been signed by the noble and learned Lord, Lord Hope, who will be much better at explaining it than I could ever be.

[Lord Hope of Craighead (CB)]

I am very grateful for that invitation but before I get to the amendment tabled by the noble Lord, Lord Foulkes, I support what the noble Baroness, Lady McIntosh, has said in support of Amendment 16 about the need for

“reciprocal arrangements with other jurisdictions, including individual Member States of the European Union, for those with UK qualifications”.

This amendment is of particular interest to the legal professions in this country, in view of the achievements that were made right across the board in all three jurisdictions—Northern Ireland, Scotland and England and Wales—in that respect while we were in the EU.

I am quite sure that the professions do not want to lose the benefit which those arrangements were able to achieve. There is a gap here that the trade and co-operation agreement with the EU has left unfilled. Amendment 16 goes some way to addressing and filling the gap in the interests of those who would like to benefit from the kind of arrangements we previously had under the European Union.

Coming to Amendment 47 in the name of noble Lord, Lord Foulkes, it seeks to clarify the provision in Clause 9(4) about the risk that the duty of a regulator to provide information may contravene the data protection legislation. The same point arises in Clause 10(7), which is the subject of another amendment by the noble Lord, Amendment 50. Unfortunately, it is not in this group but will arise later on. Perhaps one is addressing the same point this evening. It also arises in regard to Clause 7(5), which raises exactly the same point. The Minister will appreciate that one is dealing here with a duty to disclose information. It begs the questions: first, does it breach any restriction under rules or contract, for example, or, secondly, does it breach the data protection legislation?

Concentrating on Clause 9, its structure is really quite interesting because it provides the duty in its subsection (2). It is a duty to provide

“any information … that is held by the first regulator … that relates to the individual”

and

“that … is requested by the second regulator.”

Then we come to its subsection (3), which says:

“A disclosure of information under this section does not breach … any obligation of confidence owed by the first regulator, or … any other restriction on the disclosure of information (however imposed).”


Those words are perfectly clear. They provide a complete answer—a complete defence—to a claim for breach of contract or a claim that the rules have been breached. For example, if I objected to the information being released by the first regulator that related to me on the ground that I had entered into a contract preventing the release of that information, I would simply be deprived of my contractual right to complain, because that is exactly what subsection (3) says.

The problem is subsection (4) which says:

“Nothing in this section requires the making of a disclosure which contravenes the data protection legislation”.


If that subsection had said that no disclosure which contravenes the data protection legislation shall be made, or words to the same effect, it would mean that, despite the firm duty in the earlier part of the clause, one was simply not required to disclose anything which would breach the data protection legislation. However, it does not say that; it just says that nothing requires you to do it.

Professional Qualifications Bill [HL]

Lord Hope of Craighead Excerpts

2nd reading
Tuesday 25th May 2021 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure for a lawyer to follow a speech by an actuary. My concern is about the way the Bill will affect the legal profession in Scotland. I must declare an interest as I am a non-practising member of the Faculty of Advocates. At a previous stage of my career, when I was Lord President of the Court of Session, I had some responsibility for the regulation of the solicitors’ profession in Scotland and before that, when I was Dean of the Faculty of Advocates, for the regulation of members of the Scottish Bar.

The new framework which this Bill seeks to create is needed and, in principle, it is to be welcomed. The current interim system for the recognition of professional qualifications and experience from overseas derives from the UK’s membership of the EU, so what we need now is a new framework that will meet the demands for professional services within the UK in the future, which is what Clauses 5 and 6 are about. Qualifications and experience gained outside the UK need to be recognised here where there is a demand that cannot otherwise be met without unreasonable delays and charges. We must be able to implement new international agreements about the recognition of professional qualifications that will enable us to do that. The broad aim of providing regulators with a consistent set of powers that will maintain standards is to be welcomed too.

However, regulation of professions is a complex business. As many noble Lords have said, the Explanatory Notes tell us that there are more than 160 professions in the UK and that they are regulated by a network of more than 50 regulators, and there is a range of other professions that are regulated voluntarily. This is a huge canvas. The noble Lord, Lord Palmer of Childs Hill, was not overstating matters when he referred to icebergs and albatrosses. The centralised systems which this Bill seeks to create will work only if the diversity that exists across the UK is fully respected. I use the plural word “systems” because, while the regulation of architects, auditors and most health professionals, but not social work and social care, is a reserved matter under the devolution systems, the regulation of many others is devolved. The need to recognise diversity does not end there. The variety of regulatory systems across the professions within the devolved Administrations needs to be fully recognised and respected too.

I suggest that consultation with the professions will be essential before the regulation-making powers are exercised. The Bill is remarkably silent about this. There is no mention of consultation anywhere in the Bill, or in the Explanatory Notes either, so far as I can see. I hope that the Minister can explain why that is so. If consultation is expected, why does the Bill not say that consultation is required?

As regulation of the legal professions in Scotland is wholly devolved, the appropriate authority in their case will be Scottish Ministers. It will be for them to decide whether the test which Clause 2(2) sets out is met—that is, to enable demand for legal services to be met without unreasonable delay or charges. That does not seem to be the situation at present. It is difficult to know how readily that test will be met in future in the case of legal services, so we must assume that that matter will arise sooner or later. Annexe A to the Explanatory Notes tells us that a legislative consent Motion will be sought from the Scottish Parliament. I suspect that that is in the future because there has been an election and the Scottish Parliament has only recently resumed its work. So far so good, but we need to be sure how the system that is being created will work for the legal professions in Scotland before that stage is reached.

The Law Society of Scotland already has in place a system of regulations made under the Solicitors (Scotland) Act 1980 for the recognition of international candidates seeking to requalify in Scotland to practise as solicitors. It is likely that they will need some amendment if they are to give full effect to the provisions in Clause 1. The process for amending regulations made under that Act is lengthy, and it requires the concurrence of the Lord President. As I understand the definition in Clause 16, he is a regulator for the purposes of the Bill. One would want to be sure that he would at least be consulted before the power in Clause 3 to implement is exercised, in view of the overriding responsibility that he has over that branch of the legal profession and the highly sensitive nature of this clause, to which the noble Baroness, Lady Noakes, has drawn our attention. Then there is the question of who would be the specified regulator for the purposes of Clause 1. I hope that it would be the Law Society of Scotland itself, which handles the day-to-day detail, not the Lord President, as the other regulator. The provisions in Clauses 8(4) and (5) seem to support this approach. Does the Minister agree with that?

The Faculty of Advocates, to which all practising members of the Scottish Bar must belong, has a different system. Regulation of the faculty is provided for by Section 120 of the Legal Services (Scotland) Act 2010. It states that the Court of Session is responsible for prescribing the criteria for admission to the faculty but that its responsibilities are exercisable on its behalf by the Lord President or the faculty. Here, too, one would want to be sure that this rather complex system is fully respected by the Scottish Minsters before the power in Clause 3 is exercised. Consultation with the Lord President and the faculty must surely be a prerequisite, as they seem to be regulators within the meaning of Clause 16. Here, too, is the question of which of them will be the specified regulator for the purpose of Clause 1. I do not expect the Minister to provide a conclusive answer to that question, although any comment he might feel able to offer would be very welcome, but the Scottish Minsters will certainly have to answer it, and they would be wise to consult before the power is exercised.

I have one or two other short points. I welcome the provisions about the exchange of information in Clause 9, which will be of particular interest to the legal professions in the various jurisdictions in the UK, and the provisions in Clause 10. As for Clause 7, on the assistance centre, it would be helpful if the advice and assistance that is to be provided could be extended to providing information about visa and work permit requirements as well as entry requirements for the profession. Also, as this is to be a UK body, should the devolved Administrations not be consulted on the arrangements that are being made before it is set up? We must assume that at least some referrals for its help and guidance may come from the devolved nations.

Clauses 7(5), 9(4) and 10(7) state that the duty these clauses impose can be taken into account in determining whether any disclosure would breach the Data Protection Act 2018. This, as worded, does not seem to be much of a protection. Would it not be better to say that the existence of that duty is a defence?

Overall, this is a necessary Bill, but I suggest that more thought needs to be given to how it will work in practice.

United Kingdom Internal Market Bill

Lord Hope of Craighead Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 9th December 2020 Lords Chamber

Moved by

[Lord Hope of Craighead]

At end insert “and do propose Amendments 1B, 1C and 1D in lieu—

1B: After Clause 1, insert the following new Clause—
“Common frameworks process
(1) The United Kingdom market access principles shall not apply to any statutory provision or requirement that gives effect to a decision to diverge from harmonised rules that has been agreed through the common frameworks process and states that its purpose is to give effect to that agreement.
(2) No regulations may be made by a Minister of the Crown with regard to a matter that is under consideration under the common frameworks process while that process in relation to that matter is still in progress.
(3) The common frameworks process is a means, established by the Joint Committee on European Negotiations, by which a measure of regulatory consistency to enable a functioning internal market within the United Kingdom may be mutually agreed between the United Kingdom and the devolved governments.”

1D: Clause 25, page 19, line 13, at end insert—
“( ) Section 22(2) does not apply if the provision has been agreed through the common frameworks process and it states that its purpose is to give effect to that agreement.””

[Lord Hope of Craighead (CB) [V]]

My Lords, I shall speak to Amendments 1B, 1C and 1D in lieu, which are in my name. The fact that the Commons have disagreed with your Lordships’ amendments about the common frameworks process is a matter for regret, but they were good enough to give us a clear and simple reason. They told us that these amendments

“will create legal uncertainty, which would be disruptive to business.”

I took this to be a reference to what the noble Lord, Lord True, said when we were considering these amendments on Report:

“No one could know for sure, until the question was determined in court, whether a regulation or requirement, or a combination of regulations or requirements, was giving effect to an agreement reached within a common framework. There would be uncertainty as to whether or not the market access principles applied”.—[Official Report, 18/11/20; col. 1466.]


I can well understand the point that he and the other House are making, but I do not believe that it is incapable of being met, so I have added some words of my own to each of my proposed amendments to suggest how this could be done.

To be given the benefit of exemption from the market access principles, the regulation or exemption would need to state that it was their purpose to give effect to an agreement that had been reached through the common frameworks process. It seems to me that, if this were to be stated in the relevant instrument, the problem that the noble Lord referred to on Report would be overcome: everyone would know what it was and why it was there. No doubt there are other and better ways of achieving this, but my point is that, if there really is a will on the Government’s part to make this system work, a solution can be found. There is surely room for further discussion on this issue; the door must be kept open—and I am encouraged by some of the points that the noble Lord, Lord True, made in opening this debate. I ask your Lordships to invite the Commons to think again, and I will be seeking the opinion of the House as to whether we should do so.

Of course, I appreciate that it is not as simple as that; there are important issues of principle too. The Parliamentary Under-Secretary, Paul Scully, said in the other place that to legislate the common frameworks into the Bill would,

“not sit well with the flexible and voluntary nature of the common frameworks programme.”—[Official Report, Commons, 7/12/20; col. 601.]

I appreciate, as has been stressed many times in your Lordships’ House, that the whole purpose of the market access principles is to enable traders to do business without internal barriers to trade across the UK. It is about

“a job, someone’s pay packet at the end of the week”,

as the Minister, Chloe Smith, said in evidence to the Common Frameworks Scrutiny Committee last week. But it all depends on how this is done.

It has to be said, too, that the issues about market access and the problems it may create are not all one way. Spare a thought for the trader in one of the devolved nations who has to have regard to the relevant requirements of all the other parts of the UK when considering whether a good which does not meet his own area’s requirements is something that he can properly market in his own area. It is not sunshine and roses for everyone.

Simply to say that the market access principles do not apply to an agreed decision, which is all that my amendments seek to do, does not seem to me to justify the concern that this would deprive the common frameworks process of its flexible and voluntary nature. Whether a given policy divergence really does create what amounts to a barrier, given its purpose, nature and effect, should be a matter for examination and assessment: that is what the common frameworks process is designed for. It is not about creating barriers, but about allowing for policy divergence in ways that are found, by agreement, to be consistent with the internal market.

--- Later in debate ---

But the certainty provided by this Bill, which has been sent to us by the other place, is what businesses and citizens across the United Kingdom need. I hope your Lordships’ House will come to agree that this is something we must provide.

[Lord Hope of Craighead (CB) [V]]

My Lords, I am grateful to all noble Lords who have contributed to this debate. I must say that I entirely agree with the noble Lord, Lord True, that we need to create and indeed preserve a coherent internal market. I do not think anything I said in my presentation, or anything in the aims I am seeking to achieve through my amendments, is in any way in conflict with that overriding aim. It is all a matter of finding a solution that is consistent with that and with the devolution system to which the noble Baroness, Lady Hayter, spoke so movingly this afternoon.

I think the noble Lord, Lord True, will agree that the noble Lord, Lord Adonis, did raise an interesting point about subsections (2) of my Amendments 1B and 1C. All I can say to the noble Lord is that I would rather not go into the details at this stage in the debate. It is, among all the things I have raised in my amendments, a subject for further consideration and discussion—if, as I hope, discussions will continue. It was with that aim that my amendment was framed for debate this afternoon.

I think we all know what the issues are; they have been thoroughly debated several times. It is time for a decision. With reference to Amendments 1B, 1C and 1D, I wish to test the opinion of the House.

Trade Bill

Lord Hope of Craighead Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 7th December 2020 Lords Chamber

[Lord Curry of Kirkharle (CB) [V]]

My Lords, I fully endorse the wise comments of the noble Lords, Lord Collins, Lord Alton and Lord Blencathra, and the remarks made just now by the noble Baroness, Lady Northover. I fully support these amendments and will reserve my comments for the debate on Amendment 9 in the next group.

[Lord Hope of Craighead (CB) [V]]

My Lords, I will speak in support of Amendment 8; I also support Amendment 10 in the name of the noble Lord, Lord Blencathra. In response to his kind invitation, I say to him that I do not think that the reference in his proposed new schedule to other human rights weakens the argument in any way. I hope that he rests assured that that is the position, and that his amendment stands as a good amendment that should be carefully considered.

I do not believe that this country has been at all at fault in its support for the international treaties and obligations with reference to human rights to which the amendment refers. Indeed, we have led the way from the very start in the international campaign for the protection of human rights that began more than seven decades ago. Legislation has been brought forward with the minimum of delay on each occasion to incorporate each of the protections and rights into our domestic law. Nevertheless, there are gaps in the mechanisms for giving effect to our international obligations. With the exception of the UN Convention against Torture, which enables the contracting parties to bring proceedings against any persons within their jurisdiction for acts of torture, wherever they were committed, and some extensions of the reach of the European Convention on Human Rights that have resulted from decisions of the European Court in Strasbourg, the contracting parties can deal only with offending acts that are committed within their own territories. They can deal only with persons who have infringed their provisions; they cannot deal with acts, however egregious, committed by states. The fact is, however, that some of the most horrific infringements have been committed by state actors, to which the noble Lord, Lord Alton, referred, with the encouragement and support of the states themselves. The prospect of those states bringing the perpetrators to justice is remote. The result is that there are places across the world where those who are crying out for the benefit of internationally recognised human rights are without any effective protection whatever.

Quite how to meet this problem has puzzled many minds: it is not easy to find a workable solution, but we cannot stand idly by. We have to do the best we can. The amendment that follows, Amendment 9 in the name of the noble Lord, Lord Alton of Liverpool, offers one way in the case of the international crime of genocide. This amendment, which reaches out more widely across a whole range of violations affecting our international human rights and obligations and, happily, has the support of the noble Lord, Lord Alton, too, offers another. It fits in neatly with the aims and purposes of this Bill. Furthermore, the way it seeks to give effect to our international obligations should serve as an example to other state parties that have joined with us in the endeavour to extend the protection of fundamental human rights throughout the world. The amendment would show leadership in an area of human affairs where this is much needed. I hope very much, therefore, that the Minister will feel able to accept it.

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

The noble Baroness, Lady Blackstone, has withdrawn, so I call the noble Baroness, Lady McIntosh of Pickering.

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[Lord Cormack (Con)]

My Lords, I echo the final words of the noble Baroness, Lady Northover, and implore my noble friend on the Front Bench to heed what she said.

I will begin on a personal note: 75 years ago, at the time of the VE celebrations, my parents took me, a six year-old boy, to see newsreels. Among them was Belsen. My mother’s instinctive reaction was to put her arm in front of my eyes; my father’s reaction was to sit me on his knee and say, “The boy must see what evil people can do.” It is one of my earliest and most vivid memories.

As a newly elected Member of the other place, 25 years later, at the invitation of the late Greville Janner, whose memory I honour, I became the first chairman of the all-party group—there were very few in those days—for the release of Soviet Jewry. I spoke on the telephone to those who had been to the gulags. I was refused a visa to Soviet Russia, but we smuggled out a volume of the Jewish scriptures for a young boy’s bar mitzvah gift. His father had been in the gulag. About 25 years after that, as chairman of the All-Party Group for Bosnia, I saw what happened in Srebrenica, which was almost the same time as those ghastly massacres in Rwanda.

Those who have brought this amendment before your Lordships’ House tonight have done us all a great service. The precision of the amendment is its most commending feature, because it concentrates on what the noble Baroness, Lady Kennedy, rightly referred to as the ultimate and most heinous of crimes: genocide.

A week ago, we debated that peculiarly named Covert Human Intelligence Sources (Criminal Conduct) Bill. We had an amendment, on which a number of us spoke, which would forbid the authorising of young people under the age of 18 from committing crimes. I will certainly continue to support my amendment or others on that subject.

Why, my Lords? Because it is wrong. If anything is wrong on a gargantuan scale, it is of course genocide. We cannot and must not be fobbed off with an answer from the Front Bench that says that it is too difficult, that the wording of the amendment is wrong or that it does not fit in. Some of those excuses have already been rehearsed by those such as the noble Lord, Lord Alton, who has been pressing for the amendment, which I am also doing.

The Prime Minister talks very proudly of “global Britain”. Global Britain must have a moral compass. Global Britain must not sacrifice its national integrity. The country that was responsible for the abolition of the slave trade and the abolition of slavery throughout the British dominions, in 1807 and 1833 respectively, must draw upon that proud heritage. What is happening in China to the Uighurs, as we have just been reminded in a very moving speech, is despicable and appalling. I believe that we should ensure that those who can pronounce on these things are able to pronounce on this. Is it genocide? I do not believe that there is any doubt that it is right that it should be a legal judgment and pronouncement; if such a pronouncement is made, it is absolutely right that we should not seek to trade on preferential terms with the People’s Republic of China—a great country with a great and civilised people who are having things perpetrated in their name that are the very negation of civilisation.

I say to my noble friend Lady Noakes and others that business does matter, but lives matter more: black lives, white lives, Chinese lives, Muslim lives and Christian lives—all lives matter. We should not in any way be complicit, even tangentially, in turning a blind eye to some of the most evil deeds that have been perpetrated in the past 50 years. I support this amendment.

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Cormack, and his very moving speech. I wish to support this amendment. It presents your Lordships with an alternative way of dealing with the international crime of genocide from that which was considered under Amendment 8. I have noted the concerns expressed by the noble Lord, Lord Lansley, about handing the matter over to the courts. However, as the noble Lord, Lord Cormack, has just pointed out, there is a legal issue here that needs to be determined. There are complicated issues of fact as well that need to be carefully assessed, so any idea that this is not a matter for the courts really is misplaced. We need to consider this alternative.

As I said when noble Lords considered this amendment in Committee, the campaign to root out genocide and bring its perpetrators to justice is a hard struggle. The problem is that the weakness of the enforcement mechanisms in the UN Convention on the Prevention and Punishment of the Crime of Genocide means that the convention is simply not up to the job. Of course, we must be grateful for the declaration in Article 1 that genocide is a crime under international law and for the width of the definition of this crime in Article 2. We can also be sure that the United Kingdom, as one of the contracting parties, will play its full part in bringing to justice any individual who can be brought within the jurisdiction of our courts so that they can be punished for their part in this crime. But there are gaps which the UN convention leaves open. Its object remains largely unfulfilled and we have to face the fact that the international institutions are falling short too.

Of course, the vast majority of countries around the world do not practise genocide. They needed no persuasion when the convention was open for signature that they must refrain from it. The problem is with the minority, those states which have no conscience in this matter and which still engage in this horrific crime with impunity. The noble Lord, Lord Alton, who is such a steadfast advocate in this field, has reminded us once again that the struggle to fill those gaps cannot be allowed to fail.

The procedure that the noble Lord has chosen had my full support in Committee and it has my full support here, too. I remind your Lordships that it seems to have two very important advantages, which deserve to be emphasised once again. The first is that it meets the requirement that there must be a person, or a group of persons, with a relevant interest to bring the matter before the court. The persons described in the amendment will almost certainly satisfy that requirement. The second is that the procedure it seeks to introduce must allow for due process, with a hearing in open court, in full accordance with the rule of law.

I believe that this object will be achieved. It means that notice of the proceedings will be served on the Secretary of State and on a representative of the other signatory of the bilateral agreement, both of whom must have the right of reply. That will ensure that they can present their cases to the court, thus enabling the court to scrutinise and test all the competing arguments. If the argument of the interested persons is upheld, the “preliminary determination” that the amendment refers to will amount to a direction to the Secretary of State that the United Kingdom must withdraw from the agreement; in the case of a bilateral agreement that will mean, in effect, that the agreement will be revoked.

Withdrawing from an international agreement in circumstances which the agreement itself does not provide for is a sensitive and difficult matter. That is especially so where it is not being suggested that any provisions of the agreement itself have been breached, but I believe that the noble Lord and his cosignatories are right not to have been deflected by these and other similar problems from persevering with this amendment. The strength of their position lies in the—if your Lordships will forgive me for using Latin—jus cogens erga omnes nature of the obligation under international law to prevent and punish acts of genocide.

That expression was used by Lord Bingham of Cornhill in the Appellate Committee of this House in A v Secretary of State (No 2) in 2005, when he was examining the obligation relating to torture under international law. What this means in our context is that the obligation to prevent and punish genocide is a peremptory obligation under international law. Not only that—as Lord Bingham said, it requires us to do more. It requires states to do all they can within lawful means to bring genocide to an end. As it binds all states, it is an obligation which lies at the heart of the relationships that states undertake with each other. It is the kind of obligation that goes without saying. The fact that an agreement does not refer to it does not mean that it does not exist or that it can be forgotten about.

The conclusion that has been drawn from the propositions that I have just summarised involves difficult and overlapping areas of law. The question of whether they provide an answer to an objection that the course which the amendment seeks to follow has no place in a trade agreement is an open question and it needs to be addressed. I believe that it is not capable of sound resolution simply by a debate in this House. It is best resolved by a court after hearing full and carefully reasoned argument from all sides. If that happens, the judgment—the determination—that is issued will carry with it great authority which will resonate throughout the world in a way that we need to be sure is done in order to further the cause of eliminating genocide. That is what this amendment provides for and it is why it has my full support.

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

The noble Lord, Lord Blencathra, and the noble Baroness, Lady Blackstone, have both withdrawn from speaking to this amendment, so I call the noble Lord, Lord Curry of Kirkharle.

United Kingdom Internal Market Bill

Lord Hope of Craighead Excerpts

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

Moved by

[Lord Hope of Craighead]

1: After Clause 1, insert the following new Clause—
“Common frameworks process
(1) The United Kingdom market access principles shall not apply to any statutory provision or requirement that gives effect to a decision to diverge from harmonised rules that has been agreed through the common frameworks process.(2) No regulations may be made by a Minister of the Crown with regard to a matter that is under consideration under the common frameworks process while that process in relation to that matter is still in progress.(3) The “common frameworks process” is a means, established by the Joint Ministerial Committee on European Negotiations, by which a measure of regulatory consistency to enable a functioning internal market within the United Kingdom may be mutually agreed between the United Kingdom and devolved governments.”

[Lord Hope of Craighead (CB) [V]]

My Lords, I wish to move the first of three amendments in this group, which consists of Amendments 1, 38 and 51. They address the rules for the mutual recognition of goods in Part 1 of the Bill, of services in Part 2 and of professional qualifications in Part 3. They are all directed to the same essential point: the relationship between the common frameworks process and the internal market that the Bill seeks to create. Underlying this is a question which goes to the heart of the relationship between the Governments of the four nations in this United Kingdom.

There are two ways in which our internal market can be created. Is this to be a market created by all four nations working together, as they are doing through the common frameworks process, or is it to be created by imposition from Westminster, as the Bill seeks to do? If it is the latter, do the Government really support devolution, as the Prime Minister is now asking us to believe? Actions speak louder than words. How the Government respond to these amendments will tell us where the truth lies.

I am grateful to those noble Lords who have joined with me in proposing these amendments. I should make it clear that I intend to divide the House if the Minister is unable to give me an assurance that the Government accept the principle that lies behind the amendments and will come back at Third Reading with amendments of their own that give effect to it.

The noble Lord, Lord True, has said several times that the market access principles are designed not to replace but to complement the common frameworks. I am sure that he will not mind when I say that he was not the first to use that expression, nor, since it is not his word, if I tell him what I think of it.

The word “complements” is in the White Paper. The noble Lord assured us that the Government remain committed to the common frameworks programme. I would like to take him at his word, but what does he mean by that? Are the market access principles that the Bill sets out really complementary to each other, as he has indicated? It is hard to see how that can be, unless the Bill itself tells us how these two systems are to work together towards the same aim. As it is, when you consider the effect of the market principles on that programme, to say that they complement each other seems a complete misuse of language. My amendments seek to bring the two together, in a way that fully respects the devolution settlement while allowing the principles to operate fully in all the other areas that the common frameworks do not touch.

Without going over again all the ground that I covered in Committee, I should remind your Lordships that the common frameworks process has its origin in an agreement reached at a meeting of the Joint Ministerial Council in 2017. Something had to be done to create a harmonious working relationship between them all when we left the EU. The devolved nations had been able, within the limits of EU law, to fulfil their responsibilities as devolved Governments to formulate and apply policies that best suited their local circumstances. So it was agreed that they and the United Kingdom Government would work together through common frameworks in order to enable the functioning of the UK internal market, while—this was a crucial part of the agreement—acknowledging policy divergence. Therefore, each devolved Administration was to retain the ability to diverge from the harmonised rules in their territory within the mandate given to them by the devolution settlement, after consulting the relevant policy group to see whether a common outcome could be reached and agreed to. Now, three years later, and without the agreement of the JMC or any of the devolved nations, we have this Bill.

Not only does the Bill ignore the common frameworks process but it destroys one of the key elements in that process that brought the devolved Administrations into it in the first place: it destroys policy divergence. It destroys those Administrations’ ability through that process to serve the interests of their own people, and to innovate. The common frameworks operate by working out solutions by agreement between the four nations. If a policy divergence is sought, it has to be agreed to. The market access principles system, on the contrary, does not operate by agreement; it is hard edged. It is a set of strict statutory rules which, apart from the few limited exceptions, do not allow for any divergence at all.

A policy aim which is designed to deal with serious threats to human, animal or plant health will be protected by the exclusion in Schedule 1, but that exclusion is narrowly drawn—threats to the environment, for example, are not mentioned. So policy aims giving effect to advances in the science relating to biodegradable plastics, for example, are outside its scope. As time goes on, there will be others which one party to the common frameworks system would like to put into effect. Business is nothing if it is not dynamic, so there must be room for improvement in what we do across all four nations. The common frameworks system should be allowed to develop but, under the Bill as it stands, all of that will be inhibited by rigid rules.

It does not have to be that way. Our amendments seek to go to the heart of the problem. They assume that a requirement is enacted by a devolved Administration that has been agreed by all four nations under a common framework. They assume that it is being enacted to give effect to a policy formed within its own part of the UK, which the other nations, having assessed its effect on the market as whole, are willing to accept. The question is: how can that requirement retain its effect if traders from another part of the UK can simply ignore it when trading across the border? There is nothing that a trading standards officer—or a court, for that matter—could do to prevent that. This is an invitation to traders—who operate, after all, in their own commercial interests according to the rules of the marketplace—to disregard the requirement as they please when they cross the border.

The devolved Administrations deplore the fact that a process that all four nations have agreed to is at risk of being undermined in this way. The Welsh Government have indicated that they cannot agree to this. The Scottish Parliament has refused to consent to it. Others will speak for Northern Ireland. How can this be a UK internal market when it does not have the support of the other nations? Please do not say that there is widespread support for this Bill. That is not an answer to the very precise question that I am raising, which the White Paper said nothing about at all.

Our amendments seek to do no more than allow the two systems to live together. It will enable them both to work together towards the same common aim. In that way the market principles will truly complement the common frameworks, instead of undermining them and calling into question the whole process. Had it not been for the devolved settlements—for devolution itself—there would have been no problem. We would have been a single Administration and there would have been no need for this Bill at all. But we cannot turn the clock back. Devising rules for this internal market requires us to accept the constitutional arrangements that now exist. It is the genius of the common frameworks that a way was found, by agreement, of doing that. That is what our amendments are all about. They are no wider than is necessary. They are not seeking to undermine the Bill. I beg to move.

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, in this group I wish to speak in particular to Amendment 1, which my noble and learned friend Lord Hope of Craighead has explained most eloquently. In Committee, the Government tried to assure us that Parts 1 to 3 of the Bill were somehow compatible with or complementary to the common frameworks process, that the Government were fully committed to that process, and that the intention of the Bill was to fill in the gaps where common frameworks did not operate. But we had no explanation of how the common frameworks process and the market access principles would work alongside each other. No real-world example was cited that the existing common frameworks process did not or could not address in the future.

For example, we were told that different building standards would tie the construction industry in knots. But there are already different building standards, including the excellent requirement in Wales that builders must install fire suppression systems in all new residential premises. This was introduced 14 years ago by the then National Assembly, and guidance to the sector on it runs to several hundred pages—understandable for a measure that will save lives. Has the construction industry been campaigning against devolution as a result? No. Then there was the risk to the English supply of malting barley to Scotland from divergent restrictions on pesticides. That case folded when the noble Lord, Lord Purvis of Tweed, pointed out that the use of fertilisers and pesticides was one of the extremely rare explicit exclusions from the market access principle.

--- Later in debate ---

[Lord True (Con)]

My Lords, I am not sure that is directly relevant to the subject matter of the Bill. I thought I had in fact made the point that imputation of motive and intent is a political choice that should be exercised wisely. This Government’s intention in this Bill is in no way to undermine the devolution settlement and I have restated, from this Dispatch Box, our commitment to the common frameworks. As for opinion polls, if I were a Liberal Democrat I would not live by them.

[Lord Hope of Craighead (CB) [V]]

[Inaudible.]—perspectives have offered support to what these amendments seek to do. Picking up a point made by the noble Lord, Lord Cormack—sitting on my own in my little room, participating virtually—I too very much regret that it has not been possible for us all to join together in the Chamber. I see the value of the points he was making about introducing some more lively spirit among those in the Chamber, so there could be a real atmosphere of debate, which even remotely we would be able to enjoy.

I listened very carefully to what the noble Lord, Lord True, said. He expressed his position, as always, very clearly in careful language. I think, on a fair reading, that the clauses in Parts 1 and 2 are more absolute in their effect than he was making out, and I do not accept the criticisms that he makes of the amendments’ effect. Of course, I do not claim that the amendment I have put forward is a final solution; there was always an option open to the Government. If they thought the amendments could be improved upon or altered to meet some of the points that the Minister made, that could have been done—but there was no such offer forthcoming from him, for reasons that I understand.

The question was whether the devolved nations should continue to be free to develop and apply market policies within their devolution mandate which have secured agreement under the common frameworks process, or whether that freedom should simply be brushed aside, as the Bill really seeks to do. It is difficult to avoid the conclusion that this Government regard devolution as an inconvenience that can simply be ignored when they want to. I regret that very much indeed. I am a unionist and I believe in the union and all that it stands for, and all the values that I hope it will continue to give us in future. But I am afraid we see here an uncompromising, careless and centralist style of government, which divides our United Kingdom into pieces at a time when harmony is most needed. That has no place in our democracy.

I know that the Minister will reflect very carefully on what has been said today, and I hope that he will do his best to persuade those at the heart of government to think again, but what he has said in his reply leaves me with no alternative. I seek to test the opinion of the House on my amendment.

United Kingdom Internal Market Bill

Lord Hope of Craighead Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 2nd November 2020 Lords Chamber

[Lord Empey (UUP) [V]]

My Lords, as the noble Lord, Lord Hain, has said, much of the debate on this group has coincided with the next group and Amendment 131, and with what I was going to say on that group, so I will not exercise my right to speak then.

The word “confidence” has been used consistently, and it is the one thing currently missing. We do not have the support of any of the devolved Administrations for these measures, and it worries me that if we follow the same pattern in future, areas of conflict will arise, because there is no consensus on what we are trying to do. I take the point made by my noble friend Lady Noakes that this is a UK-wide body and you cannot expect the United Kingdom Government to be held to ransom by any of the devolved Administrations. I would not wish to see that.

Equally, however, we have, in our haphazard way—I have drawn the attention of the House to this before—provided devolutionary powers to these regions. As I said last week, we have a collision between the powers of the devolved institutions and what we are now trying to create. It makes sense, therefore—whichever way the Minister intends it in practice—to ensure that the devolved regions feel confident that they have someone at the table, in this new body, who understands their local circumstances and will speak up on their behalf, as well as exercising the UK-wide powers.

I must say that as far as my own region is concerned, while the Government will not allow the truth to pass their lips, from both the economic and state-aid points of view Northern Ireland is left in the European Union. We will be operating on EU state-aid rules and operating an EU regulatory regime. While we are all on the same page today, over time there will be differences. I do not believe, nor I do see any evidence, that Whitehall fully understands that. If we want proof of that, we were told a year ago to tear up any pieces of paper we were given and throw them in the bin; on 1 July we were provided with £25 million to ensure that our traders could deal with the paperwork and the administrative burden that they were going to be confronted with; and by 29 August that had risen to £355 million.

It is perfectly clear that there is a border in the Irish Sea, there are differences and the regime that businesses in Northern Ireland will have to operate under could well be very different over time, so having representation on this body is the minimum that we wish to achieve. I do not want to see a veto—I do not want to see a body that is crippled by disagreement—but people have to be realistic: if you give powers to the devolved Administrations then you cannot be surprised if they take offence when Whitehall says, “We know best and we will do things that you don’t agree with”.

I would say that we have created our own problems. I would like to see in response to some of these probing amendments the Minister address the point about how we get buy-in if we do not have broadly-based representation on the body that understands the different social, legal and economic contexts, particularly when one part of our United Kingdom is left under EU regulations and state-aid rules. I look forward to what the Minister has to say in that regard because we want to succeed. We have to move forward coherently and with restored confidence, because I have never seen it at a lower ebb than it is today. It would be so much better if the JMC were functioning as it was originally intended and if it were a forum where we could jointly work together on solving our problems. What we have achieved at the moment is a stand-off with the devolved Administrations, none of which support this legislation.

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Empey. I support Amendments 117 and 125, to which four noble Lords with a special interest in Wales have put their names. I should like to add a Scottish point of view when I say that the amendments that they propose have everything to commend them, and the arguments that they put forward are ones that I entirely endorse and support.

The key point underlying both these amendments was expressed by the noble Baroness, Lady Bowles of Berkhamsted, when she said that these matters should be consensual and the body taking the decision should represent all four nations. Whatever the structure of that body, and indeed whichever body we are talking about—the options are before us in these various amendments—it has to command the confidence of all four nations.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Bruce of Bennachie, and my noble and learned friend Lord Thomas of Cwmgiedd, who has explained, from a constitutional perspective, why Clause 48 has very little to commend it. I will illustrate why the powers that Ministers want to take for themselves might, in practical terms, be dangerous and damaging.

Under the last Labour Government, the Labour-led National Assembly chose to go in a different direction on education, which was one of the ways in which the late Rhodri Morgan put clear water between his Government, reflecting the unique circumstances of Wales, and the Government in London. The Welsh Government eschewed moves to establish foundation schools, academies and free schools. They have maintained the central role of local authorities in funding and supporting all schools, arguing, not least in rural areas, that an unplanned proliferation of schools would damage the viability of all educational establishments. They have vigorously championed comprehensive education. Whether or not you support this approach, the current Welsh Government have a mandate for it, supported by Plaid Cymru, meaning that more than two-thirds of Members of the Senedd back this policy.

Were the powers in Clause 48 to be granted, the UK Government could choose to fund free schools across Wales. This would positively undermine the policies backed by a majority of the Members of the Senedd and, more relevant still, a majority of the electorate. Even if the funding for such an initiative was genuinely additional to the block grant—I ask the Minister to give an unequivocal guarantee that that would be the case—such an intervention, even though it would give extra money, would undermine the Welsh Government’s education policy. A free school in an area such as Denbighshire could easily dramatically impact on the viability of local maintained schools. This does not seem right.

The cleanest way of dealing with and preventing this threat would be to remove the clause from the Bill. Nevertheless, for my part, I would be prepared to support alternative approaches. At the heart of this is the question of the so-called shared prosperity fund, which I am afraid some in the devolved nations suspect is a way of reallocating the funds that should come their way, especially to west Wales, to benefit the prosperity of England. The proposal of the noble Lord, Lord Stevenson, to establish a shared prosperity commission would dispel such suspicions by allocating replacement funds on the basis of need, not politics. However, as my noble and learned friend Lord Thomas explained, the onus really is on the Minister to give an explanation, which has been lacking to date, of why these powers are needed now when they have never been needed before.

[Lord Hope of Craighead (CB) [V]]

My Lords, I join the previous three speakers in giving notice of my intention to oppose the question that Clause 48 should stand part of the Bill. The grounds for my opposition to Clause 48 are based on paragraph 4(1) of Part 3 of Schedule 5 to the Scotland Act 1998. This is, after all, a devolution issue. That paragraph provides:

“This Schedule does not reserve giving financial assistance to commercial activities for the purpose of promoting or sustaining economic development or employment.”


In other words, it is within devolved competence for Scottish Ministers to provide financial assistance for these purposes. The same is true, I understand, of Welsh Ministers and in Northern Ireland.

The geographical reach of this provision is indicated by the fact that it applies to the whole of the UK. The power being sought would seem to cut across the powers of the devolved Administrations to provide this assistance in accordance with their own policies and order of preferences, although I appreciate that it extends over a wider field of activities. Providing assistance for reasons not at one with those policies and preferences would cut across the devolution settlements and for that reason be regrettable. I was very impressed by the example which the noble Baroness, Lady Finlay of Llandaff, gave of how it could interfere with preferences felt in Wales, and no doubt examples could be found in the other devolved Administrations.

More importantly, I, like others, am looking for further information about how this clause is intended to operate. As the noble Lord, Lord Stevenson of Balmacara, asked, what is the plan? Is it the intention that there should be consultation with the devolved Administrations before this power is exercised? If so, what weight will be given to any concerns that they may have? There is no attempt that I can see in the Bill to repeal the paragraph of Schedule 5 to the Scotland Act 1998 to which I referred, so presumably that power is to survive along with the power being given by this clause. To what extent, with regard to purpose and the amount of money involved, is this intended to reproduce within the UK what until now has been forthcoming from the EU? Can we expect the same amount of benefit to be spread among the nations as we have received hitherto? Will the ability of the devolved Administrations to use the powers reserved to them by the provision I quoted be limited in any way when this clause is brought into effect? If so, is that the intention? How are the funds which may be made available to be divided up between the nations? Can we be given any clarity on that point?

I hope that the Minister can shed more light on how this power is intended to operate, but at the moment, from what we have seen so far, it seems to cut across the devolution settlement and to be highly objectionable on that ground.

United Kingdom Internal Market Bill

Lord Hope of Craighead Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 28th October 2020 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I would like to remind the Committee of two things about this Bill. First, the Bill is to facilitate trade between all parts of the United Kingdom, not make it harder. Secondly, businesses favour barrier-free trade. That was the very clear message that came from the consultation on the White Paper during the summer. We should be trying to minimise the possibility of barriers being put up to trade within the United Kingdom.

If we allow exclusions of goods from mutual recognition, that will inevitably lead to higher costs. This is analysed in quite considerable detail in the internal market White Paper. Costs generally end up being borne by consumers. Excluding goods can also result in businesses deciding to withdraw from certain markets, which can in turn restrict consumer choice. I know the noble Baroness, Lady Hayter, is keen on consumer protection; she reminded us of that on the first day of Committee. Restricting trade tends to operate against consumer interests, so we should be very careful in trying to put amendments to the Bill that make trade more difficult. I also remind noble Lords that restricting trade is more likely to hit the devolved Administrations’ economies because of their greater dependence on exporting to the rest of the United Kingdom.

I want to comment on a couple of the amendments in this group, Amendments 7 and 8. The noble Baroness, Lady Hayter, said that Amendment 7 was a probing amendment, but by seeking to exclude imports into any part of the United Kingdom we are reducing the internal market rules to a very parochial interpretation. It seems to ignore the plain fact of commercial life, which is that there are complex supply chains and complex distribution logistics. It is of course the way we have been living in the EU; at the moment, we are quite accustomed to importing in one place and those imports being accepted throughout the rest of the community.

It also seems to me that the noble Baroness’s amendment would, in effect, impact exports between different parts of the United Kingdom. For example, if something was exported to Wales and imported to England, it would stop it then being imported into Scotland with the protection of the internal market Bill. That does not seem to make any kind of sense. It is pretty clear from the impact assessment that Wales and Scotland in particular are reliant on intermediate goods coming from other parts of the United Kingdom.

The noble Lord, Lord Rooker, spoke to Amendment 8. I did not follow what he said about pig semen because I do not think that, by any definition, pig semen is an animal feedstuff. I did have a chance to check the definition of “animal feedstuff” while he was speaking, and it is not. Perhaps we can put that to one side. We have to understand that if we try to exclude food and animal feedstuffs from the UK internal market mutual recognition rules, this will again potentially impact the devolved Administrations the most, given their import and export profiles. For example, if you look at Wales’s agri-food chain, you will see that 48% of agricultural inputs to Welsh food manufacturers come from the rest of the UK and 31% of food and drink sold in Wales comes from the rest of the UK. We should be thinking really hard about who we are likely to hurt when we put amendments such as this in the Bill, which restrict barrier-free trade.

[Lord Hope of Craighead (CB) [V]]

My Lords, I support Amendment 7 in the name of the noble Baroness, Lady Hayter, and Amendment 21 in the name of the noble Baroness, Lady Finlay.

I shall start with Amendment 7. First of all, I entirely agree with the noble Baroness, Lady Noakes, that importing and exporting goods is part of the commercial life of this country. That applies across all parts of the United Kingdom, and one can well understand the point that she makes about the importance for the devolved Administrations of maintaining that system with as little interference as possible. However, the point to which Amendment 7 draws attention is a matter of real concern to the devolved Administrations. As she explained, its effect appears to be to deny them any involvement in decisions on the importation of goods from overseas, to which they might wish to take objection. Various horror stories are of course passed around as one discusses this issue, but I am not concentrating on them so much as I am on the simple lack of ability to contribute to a discussion as to whether or not these goods should be imported.

If one was talking about legislation, I suppose one would say the Sewel principle would apply and consultation would take place, but there appears to be nothing that allows for that. The effect of the way the provision is worded is that something that comes in can take the benefit of the principles and pass without any kind of control to the devolved Administrations, without their having any say. That is of real concern. This is a probing amendment, but it requires some explanation of what place, if any, the devolved Administrations have in trying to resist the importation into, and transmission across borders within, the UK of goods to which, for one reason or another, they might wish to take exception.

That covers Amendment 7. As for Amendment 21, I was attracted by what the noble Lord, Lord German, said about the dual carriageway—the parallel lines—for a particular reason, which I have not mentioned before but must be emphasised. The common frameworks are living arrangements. There is no point at which one can strictly say that a framework has come to an end, although I confess that my own amendment suggests that it could happen. These frameworks are open to subsequent discussion and revisiting as things change. For example, much of the UK emissions trading system is based on EU law and treaty arrangements that could change. If that happened, the framework would be revisited, and, no doubt, different policy decisions may need to be taken. The same is true of the hazardous substances framework.

One has to bear in mind these are two living instruments working side by side: the UK internal market and the common frameworks system. The fact that, as the Bill has it at the moment, there is no means by which they can communicate with each other, is a matter of real concern, because it affects the whole structure of how these things co-operate and will co-operate in the future, in ways we cannot yet predict. That underlines the importance of trying to find a solution to the point I drew attention to on Monday of making some arrangement whereby the decisions taken, based on common framework decisions, to legislate in the devolved Administrations are protected against the effect of the market principles, particularly the non-discrimination principle, which has very broad reach indeed.

The great value of the amendment of the noble Baroness, Lady Finlay, is that it has drawn attention once again to that very real problem. It requires some response from the Minister so that we can have some idea of how he thinks these two parallel carriageways, stretching out into the future, will ever meet and co-operate with one another.

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure to follow the noble and learned Lord and to agree with the thrust of his argument, which he made very well. The noble Baroness, Lady Noakes, made the valid point that the purpose of our internal UK economy is to have as few barriers as possible while recognising that we are an entity of four nations with distinct areas that can make their own policies. That is not new. The Agriculture Act 1970 had different applications within the Scottish, English and Welsh agricultural sectors. So many of the areas we are talking about within these groups predate the European Union, so the principle that we have had a different approach in many of the component nations is valid.

The Government, however, have introduced this new concept, which means, for example, that the UK’s biggest food and drink export, whisky, could now be open to a great problem because a decision made by one country, Scotland, could act against the interests of farmers in England who provide products to serve that. It is the barley question, which the Minister has referred to and on which I have asked questions before. As the noble Lord, Lord True, indicated, in summing up the debate on the previous group on Monday and correcting the noble Lord, Lord Callanan, that is an area that will be covered by a legislative framework.

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[Baroness Andrews (Lab)]

My Lords, the amendments in my name in this group are for the most part identical to those of the noble Lord, Lord Fox, although in some cases they are wider in their supplementary implications. It goes without saying that I agree with everything he said—and everything that I suspect the noble Lord, Lord Thomas of Gresford, is about to say—about the whole range of excessive and inappropriate delegations. Of course, my amendments follow the advice of the DPRRC; I declare an interest as a member of that committee.

I will make a few general points about what the Government are trying to do in these clauses and how they have justified them. I speak for myself but I suspect that I also speak for many members of the committee —certainly for our distinguished chair—when I say that we have reached a point of almost total exasperation with the Bill. The DPRRC was set up in 1992 to monitor and control the excesses of executive power and the temptation for Ministers and officials to try to avoid parliamentary interference and take inappropriate powers. So it is hardly new, but in recent years, we have been sorely tested— not least on the limits of our vocabulary. Indeed, the DPRRC has described these powers as “extraordinary” and “unprecedented”.

We have seen the increasing use of skeleton Bills and statutory instruments not for the delivery of policy but for the design of policy and for carrying the principles of legislation within the secondary framework. Most recently, we have seen mounting evidence of a Government that will go to endless lengths to avoid scrutiny. This Bill is in a class of its own because of the sheer volume and significance of the Henry VIII powers. Of the 12 delegated powers in the Bill, seven are Henry VIII powers, allowing Ministers to amend or repeal significant provisions of the Bill itself, as well as other primary and secondary legislation. We used to protest when only one Henry VIII power turned up in a Bill.

It sets a different tone, too, because the delegated powers memorandum, in its attempt to justify why these powers to expedite the mutual recognition principle and the non-discriminatory principle are necessary, does not even bother to try to find a convincing justification for the powers taken. In the clauses relating to my Amendments 13, 28, 39 and 47, for example, the explanations for using statutory instruments to amend Acts of Parliament cite the need for speed and flexibility to respond to unforeseen developments—the known unknowns and so on—respond to stakeholders and provide certainty. These are profoundly lazy and threadbare arguments, and Ministers and officials know that. I consider that contempt of Parliament. Secondary legislation does not guarantee speed, flexibility or certainty. Primary legislation, as we know from dealing with the pandemic, can be introduced at the speed of light and amended. Indeed, the Government have conceded in their own arguments that the Secretary of State is not required to declare that the making of regulations is required as a matter of urgency, so urgency is a false trail too.

This disingenuous use of language offered in the memorandum in regard to Clause 6(5) is a case in point. It argues that Ministers need to be able to respond swiftly to future-proof the operation of these principles so that they can be changed as and when Ministers decide that it is necessary. The DPRRC dismisses this as an attempt to completely rewrite the non-discrimination principle. When the Government argue that there is no way that they can change the definition of legitimate aims attached to the non-discrimination principles in Clause 8 other than by secondary legislation, they seem to have completely forgotten that such a thing as primary legislation exists. Indeed, in Schedule 2, for example, the assumption is that only secondary legislation is fit for purpose when it comes to making future amendments.

The powers that my amendments seek to remove are described by the DPRRC as inappropriate and ones that should be removed; the Constitution Committee endorses that. “Inappropriate” may seem rather feeble in the parliamentary lexicon; in fact, it could not be more powerful. Among other synonyms, it means unseemly, unbecoming, lacking in propriety, ill-judged and out of order. Nowhere are those and many other epithets more appropriate than what these clauses have to say about the devolution settlement. For in Clauses 3(10) and 6(7), in relation to mutual recognition and non-discrimination —the two main pillars of market access—there is the explicit instruction that, before making regulations, the Secretary of State must consult the Ministers of the devolved assemblies. The Government are required not to seek consent but merely to consult, so they

“can act without the need to introduce new primary legislation or to obtain the consent of the devolved administrations (the Minister being only under a duty to consult) even though the proper functioning of the internal market is essential to all the administrations of the UK.”

That is a direct quote from the DPRRC.

That most eloquently brings us to the fracture at the heart of the Bill, and to the reason for taking these inappropriate powers which removes them from the full attention of Parliament. It comes back to what the Government insist is the purpose of the Bill—to secure, despite the promise and the purpose of common frameworks, that the internal market will need a new regulatory structure flexible enough to meet the unforeseen demands in the future, notwithstanding that they cannot tell us what those demands are likely to be or explain how they are going to prevent lower common standards permitted by law in this Bill, or why the common frameworks are not sufficient in themselves to prevent that, or why the Bill cannot be amended in such a way as to ensure a tight fit between the common frameworks and the common purposes of the Bill. These inappropriate powers are seen as necessary to expedite what might happen in the future, notwithstanding the impact on the devolved nations or the devolved settlements, the role of Parliament, the balance of powers expressed in appropriate legislation or the integrity of the process itself.

There is a great deal at stake in this Bill, as has been said many times already in the process of the Bill. They are grave matters, and they have been drawn to the attention of this House by the two most senior scrutiny committees. I hope the Minister will find he can agree with me that these powers are offensive as well as unnecessary, and that they will be removed.

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Andrews. I am not a member of the Delegated Powers Committee and never have been, so I think I can, without any embarrassment, praise the work which that committee does so often on behalf of the House and, in particular, the reports it has made in respect of the Bill we are considering today. The issue which it raises, of course, is a very serious one, and it has been very well explained in its own report and spoken to by both the noble Lord, Lord Fox, and the noble Baroness, Lady Andrews. I do not want to say very much more about it. The important point is revealed when you look at the subsection which introduces the power to make regulations in the case we are looking at, first of all in Clause 3(8). There is absolutely no qualification whatever to indicate the purpose for which that power may be exercised. It is a totally unqualified power, which may be used without any control from anybody as to the way in which the power is being exercised.

Twenty years ago, this House was looking at, among other things, the Scotland Bill. It is very interesting for the historian to compare the way in which delegated powers are conferred by that Bill with the way in which they are being conferred by this Bill. Both of them were major pieces of legislation, designed to lay the structure for the future governance of this country. On the part of the Scotland Bill, of course, it was very obvious because it was the first step toward devolution; it had to be carefully crafted, and yet it was moving into an uncertain world. The many powers to make legislation by delegated legislation are all carefully described, so that one knows exactly the purpose for which that power could be used. As the Bill went through both Houses, the reason for the power and the scope that was given to Ministers to use it was carefully scrutinised by both Houses.

We do not have that benefit in this case, in a Bill which is designed to settle the internal market—a Bill of equal importance and, perhaps I might say, equal difficulty. Nevertheless, they have in common that they are major pieces of legislation, and yet, in this case, the power we have to legislate and to scrutinise legislation is really being opened up to Ministers to deal with, without any control whatever. That is the basic flaw which runs through all of the clauses to which these amendments draw attention.

There is, of course, the point that the noble Baroness mentioned, that all that has been required with the devolved Administrations—or the Ministers in the devolved Administrations—is that they be consulted, not consent. That is not in keeping with the Sewel convention, although that is qualified by the word “normally”. I would have thought that in this case, because of the scope of the powers, consent would be appropriate here, because there is no other way of controlling what the power may be used for. That is the reason why the absence of a provision for consent is so important in these cases.

Without saying any more, I must say that I fully support the points that have already been made on these very important amendments.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The noble Baroness, Lady Noakes, has withdrawn, so I now call the noble Lord, Lord Thomas of Gresford.

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[Lord German (LD)]

My Lords, the noble Baroness, Lady Finlay, is detained in another part of your Lordships’ House. I will move Amendment 15 and speak to Amendments 30 and 64 in this group, which attempt to place one limitation on the extraordinary and extensive Henry VIII powers that we were talking about in the last group: namely, they require the consent of the devolved Administrations to using those powers. Amendments 15 and 30 would impose this requirement in relation to Ministers’ power to remove or, more worryingly, add to the statutory requirements that are

“within the scope of the mutual recognition principle”

and “the non-discrimination principle”, respectively. Amendment 64 would require devolved consent for any guidance issued in respect of Part 1.

I must say that I am very attracted to the amendments tabled by my noble friend Lord Fox, which would simply strike out the Henry VIII powers in Clauses 3 and 6. As your Lordships will know, these have been strongly condemned by the Delegated Powers and Regulatory Reform Committee—a matter to which I will return later.

Without amendments such as these, it would be possible for the Government to strip back still further the very limited exemptions that these clauses provide for, which are far more limited than is currently the case with EU law, where the principles of subsidiarity and proportionality apply alongside far broader public policy exemptions. I remind your Lordships and the Government that they are working on the basis of principles that they repeated last month and established in October 2017—that they would move forward under

“established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent”.

Those words, “without their consent”, represent a principle to which the Government have signed up. That is why the amendments of the noble Baronesses, Lady Hayter and Lady McIntosh, seek to engage with the devolved Administrations but do not require the Government to achieve their consent.

Obviously, either amendment would be preferable to the current problem, but the issue is that it would be easy for the Government to demonstrate that they had sought the consent of the devolved Administrations on a wholly unreasonable proposal, and the fact that it had not been forthcoming would have no relevance at all. Therefore, the Government could report that they had consulted the devolved Administrations and tick the box required without even attempting to address their concerns.

I return to the issue of secondary legislation; that is the source of these amendments because the powers are so sweeping and there is no restriction on, or knowledge of, what they will deal with. As noble Lords may be aware, three committees of your Lordships’ House have expressed concern about these matters. The Delegated Powers and Regulatory Reform Committee, the Secondary Legislation Scrutiny Committee and the Constitution Committee all wrote to the Lord President of the Council, the Leader of the House of Commons, who has government responsibility for the way in which delegated powers are used.

In Jacob Rees-Mogg’s reply of 19 October, he said:

“I agree that Bills with substantial powers, though sometimes essential, should not be a tool to cover imperfect policy development. As a Government, we must have a clear direction and be able to explain to both Parliament and our constituents how we are fulfilling the promises of our manifesto. I can see that extensive use of delegated powers can hinder rather than help us in that. Therefore, I am happy to consider issuing communications to Secretaries of State on this matter, encouraging them to minimise the use of delegated powers where possible”.


I ask the Minister: has the Lord President of the Council, the Leader of the House of Commons, consulted him on the matters that he is putting before us today? If so, will he heed that warning from Jacob Rees-Mogg?

The other matter that concerns me, which my noble friend Lord Purvis talked about, is the extent to which the powers can be used in a variety of ways. I reflect on the environmental aspects, which the noble Lord, Lord Callanan, just talked about, in relation to the recycling of materials, which is one of the issues on which the Government may wish to introduce regulations. The reason for that might well be that they have a concern about the environment, such as the nature of plastic film or single-use plastics; they might want to introduce those requirements.

However, it could go the other way and make the problem worse. For example, you might stop a devolved authority banning the use of plastic spoons or using plastic film on fresh food. The Government have admitted that they want to carry through all those health and environmental considerations by saying that they are looking at the recycling of materials as something that it might touch in the future.

Therefore, it seems to me that we have grave concerns about the way changes in these areas will be implemented. If we follow the advice of Jacob Rees-Mogg, then, certainly, we would not seek these powers in this Bill at this time because they do not include the policy intent that is to be provided. In these amendments, we can ensure that the consent of the devolved Administrations is given and that we can address and seek their approval, but it would be far better if we did not have these delegated powers at all.

[Lord Hope of Craighead (CB) [V]]

My Lords, as the noble Lord, Lord German, just said, it would be far better if we did not have these provisions in the Bill at all, but one must assume that they may remain. That is why these amendments, particularly Amendments 15 and 30, to which I have added my name, address the provision which talks about consultation but does not mention the word “consent”.

I have two requests for the Minister; I will not elaborate further on what the noble Lord, Lord German, said in his very helpful introduction to this group. First, would he be good enough to repeat, in the context to which these amendments refer, the assurance he has already given that the Sewel convention principles will be applied without any hesitation in regard to consultation?

Secondly, will the Minister consider whether it would not be wise, in view of the importance of the clauses in which these provisions appear, to adopt the system used, he will recall, in the European Union (Withdrawal) Act 2018 when considering the system of seeking the consent of the devolved Administrations—Assemblies, Senates and Parliaments—to the modification of EU law? He may recall that Ministers were given power to restrict the powers of the devolved Administrations to modify EU law in certain respects by delegated legislation. Provided for in Part 1 of Schedule 3 was a system whereby the Parliaments, Senate and Assembly were given an opportunity to provide consent. The wording in the Scotland provision was:

“A Minister of the Crown must not lay for approval before each House of the Parliament of the United Kingdom a draft of a statutory instrument containing”


the relevant

“regulations … unless … the Scottish Parliament has made a consent decision in relation to the laying of the draft, or … the 40 day period has ended without the Parliament having made such a decision.”


If it came to the point of there being no consent, when the Minister of the Crown laid this draft, as mentioned, before either House, he would be required to explain his decision to lay it without the consent of the Parliament.

That system was arrived at after a great deal of discussion in the 2018 Act; it is quite a useful one that might well be thought appropriate in this case to reduce the element of dismay which the devolved Administrations are feeling about how they are being treated by these provisions—all that has been provided for is consultation. They would at least have an opportunity in their legislatures to consider whether consent should be given. Of course, if they fail to give it within 40 days, ultimately the Minister can go ahead, provided he explains why he is doing so. There is no amendment to this effect, but this is an opportunity for the noble Lord to consider whether it would not be wise to soften the blow that has been felt by the devolved Administrations by adopting that system, which was so carefully worked out and eventually accepted in the 2018 Act.

Beyond that, I support everything the noble Lord, Lord German, has said in support of the amendments to which he has spoken.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord German, and the noble and learned Lord, Lord Hope of Craighead. I thank them both for setting out detailed consideration of this rather long list of amendments, the length reflecting the levels of concern in the Committee about this area of the Bill.

I will speak to a series of amendments in this group to which I have attached my name, Amendments 15 and 64 in the name of the noble Baroness, Lady Finlay of Llandaff, and Amendments 16, 41, 48, 74 and 99 in the name of the noble Baroness, Lady Hayter of Kentish Town. I apologise to your Lordships for not taking part at Second Reading. My name was down to speak, but I was caught up in the collision with the Medicines and Medical Devices Bill, which also prevented me from taking part in earlier Committee sittings.

That is not the only crucial political collision we are encountering at the moment. As a former newspaper editor, I am well aware of the problem of the media being able to focus on only one issue at a time. I sought to place an article about the environmental issues in the medicines Bill with a major news outlet, and was told “No, we’ve already run too many articles on this Bill.” We are at risk of falling into the same problem with this Bill.

I can identify at least three major areas that could in normal circumstances expect attention from the serious media. Rightfully getting top billing are the Part 5 issues that we expect to get to on the final day of this Committee’s deliberations. The second area, which would normally get massive amounts of attention, is the clauses that provide powers even greater than those of Henry VIII, as the noble Baroness, Lady Andrews, the noble and learned Lord, Lord Hope of Craighead, and others spoke to so powerfully earlier today. As a former journalist, I have a shorthand for that—Henry VIII on steroids. I share the liking of the noble Lord, Lord German, for the amendments that wipe those out altogether.

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[Lord Young of Cookham (Con)]

My Lords, Amendments 39A, 47A and 52A are in my name and those of the noble Baroness, Lady Northover, and the noble Lord, Lord Faulkner of Worcester. They have the support of Cancer Research UK, the Faculty of Public Health and the British Heart Foundation along with Action on Smoking and Health and the Alcohol Health Alliance UK, for whose briefing I am grateful.

The amendments address some of the concerns expressed by the Scottish and Welsh Governments over the Bill, regarding a risk of a race to the bottom in relation to public health. They also complement amendments in earlier debates that sought to restore the flexibility that exists under the common framework for legitimate variations in approach within the component parts of the UK—a common theme that has run through our debates this week—so my amendments are another pair of braces for the belt of the noble Baroness, Lady Finlay.

The noble Lord, Lord Anderson, in a remarkable speech, mentioned public health. Public health is an essential part of this debate; Covid has finally brought home to us the importance of what was previously the Cinderella service of our healthcare system. To quote the Secretary of State for Health:

“The first responsibility of any government is the protection of its citizens, and threats to public health are among the most important of all.”


So it is critical that the provision of market access is balanced against the ability of Governments to protect the health of their citizens.

With regard to goods, the Bill describes exemptions in two places: Clause 8(3) and in the list of legitimate aims, including the protection of human, plant or animal health, public safety, along with a number of other more specific exclusions in Schedule 1. In both instances the Secretary of State can amend the core principles of the Bill, which are quite rightly enshrined in primary legislation, and he can do so by regulation. Again, that has been a consistent theme throughout our debate.

The House of Lords Delegated Powers and Regulatory Reform Committee has raised serious concerns that the power included in Part 1 to amend, repeal or otherwise modify legislation by regulation is inappropriate as drafted and should be removed from the Bill. The Marshalled List is full of amendments raising objections to these powers. My amendments focus specifically on the impact on public health.

The ability to alter these regulations matters. Take, for example, minimum unit pricing for alcohol, as currently exists in Scotland and Wales. The Government have argued that new policies similar to minimum unit pricing would be possible under the Bill because they are covered by the non-discrimination principle, so there is a pathway through which they might be justified. Minimum unit pricing might be a necessary means of achieving the legitimate aim of protecting human health. In future, though, through a simple affirmative resolution procedure the Secretary of State could modify that list of legitimate aims to remove the justification of protecting human health so that that was no longer the case. That is an insufficient safeguard for future legislation to protect our health, and the amendment would prevent that. The reach of market principles is so broad that a number of other potential policies, including regulations to restrict the availability of alcohol, attempts to raise the age of purchase for cigarettes, restrictions on children buying sugary drinks and other legitimate public health measures, could all be similarly vulnerable.

I turn briefly to Amendment 52A, which aims to expand the reach of the public health exclusions listed above. The proposals contained in the initial White Paper would have posed more potential risks for public health, but the Government have listened and have put in the protection of being a

“necessary means of achieving a legitimate aim”,

as I mentioned earlier. This is very welcome, but the protections are unevenly applied, allowing legislation that aims to protect our health and safety to be justified in some instances only. This is because the Bill contains two market access principles, non-discrimination on the one hand and mutual recognition on the other. Currently, only non-discrimination can be overridden by a policy that is shown to be necessary to pursue a legitimate aim. Mutual recognition contains no such clause. This is different from the status quo, where a general exclusion for the protection of human health against a broad range of other aims exists. It is in that respect a step backwards, a point made by the noble Baroness, Lady Finlay. This difference is significant, as mutual recognition covers characteristics of goods such as packaging, content and labelling, all key areas of public health.

To take one example, 40 years ago, when I was a Health Minister under Margaret Thatcher, I argued for a health warning not just on cigarette packs but on individual cigarettes. If, for example, the Welsh Government legislated to do exactly that, I would be delighted to see it implemented but, because this is subject to mutual recognition, Wales would be unable to require it for cigarettes coming into Wales from other parts of the UK, even if they were originally produced overseas. A range of similar examples includes calorie labelling on alcohol, as proposed by the Department of Health and Social Care; including information about the medical officer’s low-risk guidelines, something that Scotland has expressed some interest in legislating on; improved front-of-pack warnings on cigarettes; or even policies such as restricting the amount of sugar in goods sold in Scotland. That was an example given in the Scottish Government’s legislative consent memorandum.

Finally, this could also impact on England. Let us take, for example, the current plans of the Department of Health and Social Care to consult on requiring calorie labels on alcohol products to help reduce obesity in England. Once more, if England implemented this requirement, it would not be able to enforce it on alcohol sold in England but produced, or even first imported, into other parts of the UK.

We have made great strides forward in public health, in part because the swiftest moving parts of our union have been able to lead the others. England led the way on restricting tobacco displays in shops. Scotland and Wales are ahead on policies such as minimum unit pricing. This lack of a broad public health exclusion risks this advantage being inverted and our pace being locked into the slowest moving of our constituent parts. I know that the Minister will have taken note of the concerns raised by noble Lords in this debate and that he will endeavour to meet them, but I hope that between now and Report there will be discussions with a view to finding acceptable amendments that do not prejudice the key pursuit of legitimate public health objectives.

[Lord Hope of Craighead (CB) [V]]

My Lords, I am in sympathy with the words just uttered by the noble Lord, Lord Young of Cookham, but I wish to speak to my own amendment, Amendment 36, and I am grateful to the noble Baroness, Lady Finlay, for her support.

My amendment is concerned with the meaning of words and, to some extent, achieving compatibility, as far as possible, with devolution legislation. It is directed to the definition of the expression “legitimate aim” in Clause 8(6), which sets out two aims, one of which is

“(a) the protection of the life or health of humans, animals or plants”.

If the draftsman of the Bill was to look at Part 1 of Schedule 5 to the Scotland Act 1998, under heading C5 he would find similar words set out in one of the exceptions to the reserved powers; that is, exceptions which mean that the things described are within the devolved competences of the Scottish Parliament. It refers to the

“protection of animal products, plants and plant products for the purposes of protecting human, animal or plant health, animal welfare or the environment.”

My point is that what one finds in subsection (6)(a) takes part of what is found in that provision but misses out some other important words. The phrase I quoted from the Scotland Act draws a distinction between animal health and animal welfare. There is some basis for that distinction because there are things that are designed to achieve the welfare of animals that are not directly related to their state of health. So there is some force in considering the addition of “animal welfare” to the formula in that provision. It also refers to the environment, and nowadays, thinking of all the concerns we have about the environment, I would have thought one could, without damaging the purposes of the Bill, include the words “protection of the environment” within the formula of the clause.

These are drafting points. I draw them, if the Minister will forgive me, more to the attention of the Bill team and the draftsman of the Bill to see whether he can find room for including words in my amendment. It is to make sure that they cover what I take to be the broad aim of the language; it is the kind of discussion we might have had, had we been given time, around a table, discussing how those particular provisions should be framed.

I am not trying to damage the Bill or adjust it in any more significant way; I just want to see that the language used covers the aim of the provision fully and completely. It is on that basis that I brought forward this amendment.

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

I am grateful for the opportunity to speak in this interesting debate on these particular amendments, many of which I support. I will limit my remarks to Amendment 37 in my name; I am grateful to the noble Baroness, Lady Bowles of Berkhamsted, for her support in co-signing.

The purpose of Amendment 37 is to bring the definition of “legitimate aim” set out in this clause in line with the source of EU law as contained in articles 34 to 36 of the Treaty on the Functioning of the European Union. In particular, I refer to article 36 of that treaty, which states:

“The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified”


on the grounds I set out in my little Amendment 37. It goes on to say:

“Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”


For reasons similar to those set out by the noble and learned Lord, Lord Hope, in speaking to his Amendment 36, I think that it will be helpful to have

“public morality, public policy … the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property”

brought into Clause 8. This would be a drafting improvement, so I also make a plea to the drafting team in that regard.

I listened with great interest to what the noble and learned Lord, Lord Hope, said on adding the regulation of animal welfare. It goes to his point in a debate earlier this week on the link between this Bill and the Agriculture Bill, particularly regarding the marketing standards covered by Clause 39 of the Agriculture Bill. It would help enormously if we could have some seamless references across different Bills—in this case, the Agriculture Bill and the Bill before us this evening, the UK Internal Market Bill.

With those few remarks, I am grateful to have my noble friend consider favourably Amendment 37.

United Kingdom Internal Market Bill

Lord Hope of Craighead Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 26th October 2020 Lords Chamber

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

My Lords, I support Amendments 1 and 2, to which I have lent my name; they are probing amendments to ask the Government a number of questions. The concept of the internal market in European Union terms is relatively recent: we have only had the single market since 1992. Of course, devolution followed some five years later, so both are still relatively new in terms of the British constitution.

British competition rules are loosely based on—and generally have always reflected—the original competition rules of the EU treaty on state aid in Articles 85, 86 and 92. The noble Baroness, Lady Hayter, has been right to highlight that, in what we have been used to in terms of both EU competition rules and British competition law as applied by the CMA, what is missing in the Bill is a reference to consumers. The flip side of competition policy to make sure that companies behave well is to ensure fair competition as well as protection of the consumer. I wonder whether leaving out any reference to consumers, both here and in later parts of the Bill, was deliberate. Why is there is no specific reference to consumers in the Bill, as Amendments 1 and 112 would provide?

 

Equally, Amendment 1 relates to safeguarding and the environment. That begs another question. We are told that our current regulations setting out food safety can always be changed by secondary legislation and that we do not need an Act of Parliament to do so. But that could lead to the situation—particularly if it remains devolved, and the Government have repeatedly stated that this is their intention—where we have to ask: to what extent will divergence be tolerated? For example, if the Food Standards Agency of England made substantial changes to our food safety requirements, would Food Standards Scotland simply diverge and not necessarily follow those changes? In future, could a product produced in Scotland, meeting Scottish environmental and animal welfare standards—I will be supporting the forthcoming amendments regarding those—still be allowed to be imported into England if it no longer met those same standards? This seems to be an obvious potential crisis for Scottish, Northern Irish and Welsh farmers some way down the road. The Government might want to rethink their idea of not having UK-wide standards. I would be most grateful if, when summing up, my noble friend could turn his attention to that potential conflict and the potential for divergence.

Turning to proportionality and subsidiarity, I absolutely agree with Amendment 2, to which I have lent my name, and later amendments. The Bill must clearly set out only what is necessary to achieve its stated objectives. My noble friend will probably answer that this is self-evident, but it bears repetition. Personally, I see some merit in having it on the face of the Bill. The principle of subsidiarity might seem clear now, but I ask my noble friend to consider the horrific situation, some five or 10 years down the road, when we may face a federal Britain. What impact would that have on subsidiarity?

On procurement, does my noble friend share my concern that despite all the potential benefits around procurement provisions that I envisage us enjoying by leaving the European Union—for example, we would no longer be bound by the threshold of €136,000, beyond which any public contract must be put out for tender, meaning that we could source many more of our English, Scottish, Welsh and Northern Irish foods into public institutions such as schools, hospitals, prisons and others—we have completely lost that advantage because through the Trade Bill we are joining the Agreement on Government Procurement, which, surprisingly, has exactly the same threshold of $135,000? We seem to be jumping out of the frying pan and into the fire, without getting all the opportunities that were promised to our farmers by leaving the European Union, such as sourcing more local food to schools, hospitals and other public institutions. That will in fact not come about, because we will be bound by international rules on public procurement. Have the Government done a cost-benefit analysis on how much competition we will face from other providers to source their foods into our public institutions, as opposed to the potential benefits our farmers might have from tendering in other international jurisdictions to source our home-produced food there?

I look forward to hearing my noble friend’s reply to this little debate.

[Lord Hope of Craighead (CB) [V]]

My Lords, I want to add a few words in support of Amendment 2. Proportionality and subsidiarity are part of the language of EU law which, while relatively new in historical terms, we are now very familiar with. It would be a mistake to think that as we reach the end of the transition period, we should leave these concepts behind. Proportionality, after all, is deeply embedded in our own public law, and has been for decades. It has long since been recognised that black-letter law alone is not a good guide to the way in which public law and public affairs should be administered. One simple example can be found in the civil litigation rules, where the word appears to make it clear that the courts should seek to obtain a just result with appropriate speed and expense in giving effect to the rules that are set out in the document. The point is that individual facts and circumstances vary greatly across the spectrum. Proportionality allows them to be taken into account and avoids blunt decisions where a greater need is to fit the facts together with the rule to find a suitable result that will achieve the desired object.

Subsidiarity too is now deeply ingrained in our constitutional arrangements. It is part of the thinking behind devolution, and the word is used with reference not only to Wales, Northern Ireland and Scotland but to devolution throughout England. The great advantage of this is that local decisions are best taken with regard for local circumstances. For them to be taken centrally sometimes misses the point and leads to solutions that are inappropriate given the local circumstances. It is a useful tool best used in the administration of our affairs to make sure that things are properly organised across the whole of our United Kingdom, which, after all, is what our new internal market is all about.

Both these principles are sound and appropriate guides as to how the two basic principles which are set out in Clause 1 should be administered. I support the argument that, somehow, these principles should find a place in the Bill. Quite how that is done I leave to the draftsmen, but Amendment 2 is at least an important start to make sure that the significance and relevance of these principles are appropriately recognised.

[Baroness Noakes (Con)]

My Lords, I offer a few comments on these amendments. It seems to me that Amendment 1 has the effect of confining the concept of the internal market to consumers and the environment. That completely misses the point. If we go back to the Government’s White Paper in July, we see they were clear that the policy objectives were economic opportunities across the UK, increasing competitiveness and making the UK the best place to do business, thereby supporting the general welfare, prosperity and economic security of all UK citizens. The amendment in the name of the noble Baroness puts the cart before the horse, trying to make that an overarching requirement when it should be a consequence of achieving all the other things.

I emphasise that this is about frictionless business—about making it easy to do business across the UK. In all our debates, we should not lose sight of the importance of this to the devolved nations. About 60% of the exports of Scotland and Wales go to the rest of the United Kingdom; for Northern Ireland, it is a fraction below 50%. They are important to those economies. We are trying to create an environment in which trade can prosper and grow within the UK, without barriers, which will in turn allow the other objectives to be achieved—for example, the protection of consumers and supporting the general welfare of the country.

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Moved by

[Lord Hope of Craighead]

5: After Clause 1, insert the following new Clause—
“Common frameworks process
(1) The United Kingdom market access principles shall only apply to subjects within a description listed in Schedule (Common frameworks) when the common frameworks process in relation to that subject has been exhausted.(2) The common frameworks process is a means by a measure of regulatory consistency in relation to policy areas within devolved competence may be mutually agreed between the United Kingdom and devolved governments.”

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[Lord Hope of Craighead (CB) [V]]

My Lords, I wish to speak to Amendments 5, 11 and 53 in this group, which are in my name and, in the case of Amendment 5, that of the noble Lord, Lord Wigley. They are directed to an issue that, as we have heard, lies at the heart of the way the internal market is to operate in the best interests of all parts of the United Kingdom. The problem to which they and all the other amendments in this group are directed is this: how can the common frameworks programme fit in with the centrally driven market principles laid out in the Bill?

I must declare an interest in the common frameworks programme, as I am a member of the Common Frameworks Scrutiny Committee, chaired by the noble Baroness, Lady Andrews. For us, scrutiny of a number of these frameworks is already work in progress. So we are looking for an answer to that question, too, quite apart from the need to address it for the purposes of the Bill.

I shall introduce this subject as succinctly as I can, but the issue is one of fundamental importance to the devolved Administrations and to the future progress of the Bill, so I hope I shall be forgiven if I take some time to say what common frameworks are and why they matter. The common frameworks are a means by which the UK and the devolved Governments can agree on a measure of consistency across the United Kingdom for those policy areas returned to us from the EU that are within devolved competence. The process has been going on since the European Union (Withdrawal) Act 2018, which mandated it, was enacted. It is founded on the principles that were agreed by the JMC at its meeting in 2017, to which the noble Lord, Lord Dunlop, referred in the previous group.

To begin with, the UK Government identified 142 distinct areas that might need to be addressed. While we were within the EU, legal and regulatory consistency was maintained across the UK in these areas by EU law—but EU law does not insist on complete regulatory uniformity. The degree to which this has to be so depends on the nature of EU law in each given area. In some cases, minimum standards are set by EU law, leaving a measure of discretion to member states. In other areas, EU law is more prescriptive, leaving little room for variation. The devolved settlements were arrived at against that background. The key to their success is that they allowed for policy divergence within the UK in areas that were not reserved to Westminster.

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[Lord True (Con)]

My Lords, I should have acknowledged the very thoughtful speeches of the noble Lords, Lord Bruce and Lord Stevenson. I hoped that I had made clear that the common frameworks process would continue. I was asked to give an example of how circumstances might change in the future and how matters that need to be addressed might arise. The emergence of an unregulated new technology might be another example. However, I think it is better that we address these questions in the further discussions that we might have.

So far as pace is concerned, the transition period ends at the end of the year and there is a need to provide a climate of certainty for business when the EU system falls away. Therefore, I do not resile from the fact that it was necessary and sensible for the Government to bring proposals before Parliament to address the post-31 December situation.

[Lord Hope of Craighead (CB) [V]]

My Lords, first, I thank the Minister for his courteous and careful reply. I also thank all noble Lords who have contributed to this fascinating and very well-informed debate. I shall not attempt to sum it up because the noble Lord, Lord Bruce of Bennachie, did that very ably for me in his contribution before the interval.

I was very grateful to the Minister for his kind opening words. Of course, I am disappointed that there is not more of an indication of movement on his part, but he said that he would consider the arguments, which I am sure he will, and that he was open to further engagement and discussion—for my part, I certainly am, and I am sure that others across the Committee are too. Of course, there is not much point in those discussions unless he has a rather more open mind in appreciating the problems than he has indicated so far.

One point mentioned from time to time was the fact that this measure, and indeed the White Paper that preceded it, emerged with very little consultation with the devolved Administrations. I hope that the noble Lord will forgive me but I have the feeling that there was a certain amount of lack of consultation across the Government.

If I may offer the Minister a little bedtime reading, there is a clause in another Bill which is still before Parliament that illustrates the problem: Clause 39 of the Agriculture Bill. I do not suppose that the Minister knows what I am talking about so I will say a few words about it. It may help him—the Minister sitting in Westminster, looking at the matter from the other side of the fence—to see how things appear from the perspective of the devolved Administrations.

Clause 39 attempts to set marketing standards. It lays down a basis for the setting of market standards in relation to agricultural products that are marketed in England. It contains a long list of matters that will be covered by regulations—there are 15 of them. I will not go through the list, but one or two of them are important. They refer to regulations or cover matters about the type of farming and production methods, as to the use of certain substances and practices—one might think of pesticides, additions of flour—packaging and so on. At the discussions on the Agriculture Bill, I asked the Minister what this means for the farmers in Wales, Scotland and Northern Ireland, given the volume of goods that they move for marketing in England, since these are matters that have been set for all goods marketed in England. There is no reference in this clause to consultation, let alone consent, and my suggestion was that there should be, on the face of the Bill, a provision that if these standards are to be set and people coming from other parts of the UK are obliged to comply with them, then surely that would have to be done with consent. I do not think that the Minister responding to me had any idea that the Internal Market Bill was on the horizon. I mentioned that the White Paper had just come out, but I got no response from him about that either.

The effect of the mutual principles set out in Clause 2 solves the problem as far as farmers in Wales and Scotland are concerned. They need not trouble themselves about regulations, additives, pesticides, packaging, production methods and so on, because they have a complete opening to the market. The question is: is there any point in going through this huge list and laying down carefully regulated provisions for England when the Minister knows perfectly well that people can come from the other parts of the UK under his Bill and ignore them? I am not talking about a lowering of standards, but about different standards which are not provided for. That is the kind of problem that I mean. Can the Minister look at this before he goes to sleep tonight, think it through and see how it looks from the other side of the fence? These are really big issues. Although the Bill is still going through ping-pong, I wonder whether Clause 39 can survive and whether the regulation- making power in that clause will ever be exercised.

These are fundamental points and, to be honest, I do not think that the Minister has really grasped the importance of them. I would like to think that he will, and I look forward to further discussions with him before Report. For the time being, however, I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

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In closing, we should remember that the transition period ends on 31 December, and we must be able to look after the economic interests of all four countries of the UK from 1 January next year. That is why the Bill has been brought forward. While this has been an interesting debate, I will not be supporting the amendment as it stands.

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Neville-Rolfe. I found myself in agreement with some of what she was saying, and I respect very much the background in business and marketing from which she comes, which of course is of great value to the House in this discussion. She said that we were all agreed on the need for a fully functioning internal market and, as I tried to make clear in my speech, I am in absolute agreement with that aim. Obviously, everything we would do is working towards that aim, despite the differences of perspective across the various nations of the United Kingdom.

The noble Baroness said that a brief reference might be a way of making the devolved Administrations more comfortable. For my part, I have been trying to adopt a light-touch approach, which may not be too far away from what she is talking about—but it would have to be pointed enough to meet the concerns of the devolved Administrations and give them the assurance that they need for the future. So in a way I find myself in a rather frustrating position. I cannot believe that we are all that far apart, but the gulf that divides us at the moment is very deep. I would love to find a ladder, or something, that would take us across this gulf and solve the problem. That is why I am certainly open to discussion.

Before I go any further, I should say that I am entirely behind the noble Baroness, Lady Finlay of Llandaff, on the principles that lie behind her amendment. Indeed, I am extremely grateful to the Welsh Government, who have done so much to inform us about the background to the issue and who have done a great deal of drafting work to show us what amendments might be made to work to solve the problem as they see it. Although they look very different, my own amendments were inspired by the work that they have done, and I owe a considerable debt of gratitude to them for that, and for their generosity when I indicated that I would want to take a rather different approach in the way that the amendments should be worded. The principles behind us are exactly the same and, for that reason, I entirely support, in principle, the amendment in the name of the noble Baroness and applaud the way in which she introduced it.

This issue is simply not going to go away. We will be pursuing it in various ways on Report. For the time being, I encourage the Minister to appreciate that there is some force in the point made by noble Baroness, Lady Neville-Rolfe. If her approach were adopted, one could see this frustrating gap narrowing slightly—and I would love to see it closed over so that we could solve the problem completely, to the satisfaction of both sides.

[The Deputy Chairman of Committees (The Earl of Kinnoull) (Non-Afl)]

I call the noble and learned Lord, Lord Morris of Aberavon. Do we have Lord Morris of Aberavon? We will move on.

United Kingdom Internal Market Bill

Lord Hope of Craighead Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a real pleasure to follow such an impressive speech by the noble Lord, Lord Barwell. For myself, I wish to concentrate on the consequences of this Bill for the devolution settlement. I am aware that this issue might seem to be a sideshow compared with Part 5 of the Bill—perhaps a moment, especially for those of your Lordships who, like me, are participating virtually, to go away and do something else. However, like so many others, I urge your Lordships to take notice of it and take it very seriously.

Frictionless trade across all parts of the United Kingdom is, of course, what we all wish and must aim for, but this depends on the principles of co-operation and on mutual trust between all four nations. As presently drafted, the Bill and the way it has been introduced is deeply damaging to those principles. Mutual trust between the nations has never been lower than it is now: Scotland has refused to give legislative consent to the Bill and Wales, as we have heard, has indicated that it cannot give consent to the Bill in its present form. Of course, this Parliament can do what it likes, but a different approach is essential if the union is to hold together against a growing trend towards fragmentation that will—if this Government are not very careful—bring our precious union to an end.

The devolution settlements were guided by the market access principles of proportionality and subsidiarity that operate under EU law. There was room for a carefully worked out devolution of legislative power which enabled the devolved authorities to pursue their own legitimate policy aims as to the sale of goods where, in their judgment, this was in the public interest. Nobody doubts that the way this freedom has been handled works well at present. It is not in any way a barrier to trade between our nations; on the contrary, it has real benefits. It enables new trading policies to be tried out in one area before the rest. The Bill itself accepts that such divergences as exist at present can remain.

However, the Bill seeks to replace the freedom to develop local standards or separate policy aims in the future with centrally driven, overriding market principles. It does not seek to repeal the various exceptions to the list of reserved powers that are set out in the statutes, but its effect would be the same, as there would be no stopping traders bringing goods in from other areas that do not conform to the home area’s rules. The devolved powers are rendered worthless by this new system. UK Ministers are given powers to do things which contravene the devolution settlements without consultation, let alone consent. The opportunity to create an internal market by agreement through the continued development of common frameworks—about which the noble Baroness, Lady Andrews, spoke so well earlier today—is being undermined because it is being ignored. The common frameworks are not even mentioned in the Bill.

The effect of the Bill has been described as a “power grab” by the Scottish National Party. I am not given to hyperbole—which I thought this was—but now, having read the Bill and the well-founded and withering report of the Constitution Committee, I can see why this expression is being used by them and now in Wales too. There is something very far wrong here; that is the challenge that we face. We do not need this Bill, but if we have to have it, it must be put right.