United Kingdom Internal Market Bill

Debate between Lord Purvis of Tweed and Lord Cormack

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

[Lord Purvis of Tweed (LD)]

My Lords, I agree with the first point made by the noble Baroness, Lady Noakes, who said that this group of amendments and this debate are about whether it is necessary and desirable to agree with the Government on the definition of mutual recognition and non-discrimination. The question is therefore whether the Government have made their case sufficiently that the Bill’s definitions meet the criteria that the White Paper sets out for the functioning of the single market, which is something that we all value.

I think that the Government have made a less than convincing case on the necessity of these definitions. However, even if it were necessary to make a strategic case for defining these market access principles, such a case was not set out in the consultation, the White Paper, the Commons stages or the Minister’s speech on Second Reading. Have the Government explained why they have deviated from our current approach or from the approach we had before we joined the European Union? We had a functioning single market before we joined the EU and while we were members, as we do now, and it has served our country well. Even before devolution, our internal market before we joined the EU allowed for different laws and approaches and historic divergences in many areas, including in economic development, trading standards and other areas linked to the economy. The question is why the Government have decided to move away from the earlier British approach or the British approach as it was adapted and adopted through the European Union.

Before I turn to the matter of definitions, I want to speak to Amendment 59 on procurement. Noble Lords who took part in the early Committee sittings on the Trade Bill will recall that we debated the procurement aspects. I specifically asked why procurement was mentioned in the White Paper but not in this legislation. The noble Baroness, Lady Hayter, has also asked that question, and I hope the Minister will give us a clear answer. As the noble Baroness, Lady Noakes, indicated, if procurement continues to be a devolved matter—as it has been, in many respects, under the framework of the European standards and the GPA international agreement—and the Scottish Government, for example, wish to have a procurement policy within an overall framework which sets standards for infrastructure or public buildings used for health or education, every supplier will have to meet those standards. That would not necessarily be discriminating against Scottish, English or Welsh construction firms; it would be a standard that they would be expected to meet. I fear that the Government want to have a uniform standard for the delivery of procurement policy across the United Kingdom. That would be worrying because it would be a significant move away from the flexibility we have had within the approach taken by the European Union.

There has been an assessment of the current approach taken within the EU single market—which we have left—which was updated in April 2020 in Regulation 2019/515. The current approach has a well-defined assessment procedure to be followed by competent authorities when assessing goods, which the Government’s approach lacks. The current approach has obligatory elements to be included in an administrative decision that restricts or denies market access. However, that is left open to UK Ministers to decide in a vacuum, and thus is lacking in the Government’s approach. Our current approach offers a voluntary mutual recognition declaration which businesses can use to demonstrate that their products are lawfully marketed in one EU country in a business-friendly, problem-solving procedure through the European single digital gateway for businesses and service providers on how this operates. These important aspects are missing in the new approach. I think it is therefore justifiable to ask on behalf of businesses across the UK which need to prepare for this, why the Government are not ready.

As will become clear in the debates on following groups, the Government are not ready for the implementation of this because the framework relationships are not yet in place. But even if they were, the Government have also failed to state why the nature and scope of the application of these market access principles are different from what we have understood and worked with for many years. For example, as Professor Nicola McEwen of Edinburgh University pointed out, the definition of indirect discrimination is not the same and is now more complicated than EU law. Not only that, Professor McEwen highlighted the circumstances in which mutual recognition rather than the non-discrimination rule will apply, or vice versa, which is different from the position under EU law. It is unclear how certain types of trading rules would be classified. She gives an interesting example of restrictions on the use rather than the sale or marketing of a product, such as the current ban on the use of electric shock training collars in Wales. There is no consistency in the Government’s approach on that. In further groups of amendments we will also need to explore why the range of exclusions and exceptions from the mutual recognition and non-discrimination principles is significantly narrower than under EU law.

The Government should tell us why the UK’s new approach is far more restrictive and more bureaucratic than the position we are moving away from. With a more restrictive approach, and without the previous flexibility that had been obvious in some areas, businesses, service providers and public authorities will have a much more burdensome single market to operate. The Government have presented no justification whatever for that. My noble and learned friend Lord Wallace of Tankerness raised this issue at Second Reading. In a reply, the Minister said why the Government are taking a different approach:

“The market access principles have been designed to take account of the UK’s unique circumstances, reflecting that our market consists of four highly integrated, highly aligned parts. Conversely, EU provisions deal with 27 countries, all with diverse histories, cultures, and competing marketing priorities”.


I note that the Government do not think that our nations have a diverse history and culture, but they most definitely do. If they did not, we would not have had devolution in the first place. However, it does not follow that our current approach, even with devolution, has been more streamlined, and the Government seek to have a more complicated approach going forward.

My noble and learned friend asked about subsidiarity and proportionality, and the Minister replied as follows, which is interesting, given the very well-argued speech of the noble and learned Lord, Lord Hope of Craighead. He said:

“Turning to your comment on subsidiarity and proportionality, we have now left the EU and are free to organise our internal market in a way that is better suited to the UK’s unique constitutional arrangements and common law system.”


The noble and learned Lord, Lord Hope, stated categorically that these approaches of subsidiarity and proportionality are deeply embedded in our constitutional arrangements, so why have the Government chosen to move away from them? I fail to understand why they are even changing their position from that of the frameworks agreement that had been in place. Regarding the principles agreed among all the nations, the second paragraph of the agreement on common frameworks states:

“Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore”—


this is the second bullet point—

“maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory, as is afforded by current EU rules”.

So the Government agreed with the devolved nations that the current flexibilities and approach afforded by current EU rules would continue to apply, but this Bill argues that they will not. Given that this has implications for Scotland’s decision on minimum unit pricing or for a live case of the deposit return scheme that has been put in place, there are considerable concerns about why the Government have opted not to include environmental objectives in these restrictions.

I will close with another point on the environmental side. Can the Minister clarify the position on the relevant requirements for environmental aspects, which were formulated before this Bill but have yet to come into force? The Scottish deposit return scheme, which has been legislated for but is due to come into force in 2022, would, on my reading, come within the scope of this legislation. It has been made but is not yet in force. That legislation was fully compliant with the European approach because of the environmental objectives. Is it the Government’s intention that the Scottish deposit return scheme regulations will now be within the scope of this Bill? If not, this is just one example of why there are real difficulties with the Government not following the common-sense approach. The UK operated a single market before joining the EU and during its membership of the EU, and indeed our approach allowed for devolution to be accommodated within it. Why are the Government putting that at risk with their approach to these market principles, which are more restrictive, less certain, more bureaucratic and less clear? Why are they not seeking continuity?

[Lord Cormack (Con)]

My Lords, in that extraordinary vote on Tuesday last, your Lordships’ House indicated what it felt about the most objectionable part of the Bill, and I hope that we will have a chance to develop those arguments further next week. However, the noble Baroness, Lady Hayter, was right in her opening words to remind us that, although they are the overwhelming matters of concern in the Bill, they are not the only ones. Indeed, I find myself echoing what a number of your Lordships said in last week’s debate: what is the point of this Bill in its present form?

I draw your Lordships’ attention to the very trenchant comments in the devastating report of our Constitution Committee published last week. It indicated the committee’s unanimous real concern on the whole issue of devolution. Way back in the 1970s, I was not an advocate of devolution, and I sometimes think that my fears have come to pass. However, the fact is that we have devolution, and we cannot ignore what we have or we will truly endanger the future of the union, and that we must not do. Therefore, I very much hope that when my noble friend comes to wind up this debate, he will make it quite plain that he has taken on board our Constitution Committee’s comments on devolution.

Arrangement of Business

Debate between Lord Purvis of Tweed and Lord Cormack

Tuesday 3rd September 2019 Lords Chamber

[Lord Cormack (Con)]

My Lords, I do not always agree with my noble friend Lord Forsyth of Drumlean, but I entirely endorse what he said about guillotines in your Lordships’ House. However, I wish to ask a different question of my noble friend, to whom I also offer warm congratulations, as I offer warm felicitations to my noble friend Lord Taylor of Holbeach. On Thursday, two important debates are down in the names of private Members. Clearly, between them they will take some five hours. Should urgent business be brought before your Lordships’ House, having been endorsed in another place, can my noble friend assure the House that the business will be rearranged? It really would be utterly absurd if we did not begin a debate on a crucial national emergency until something like 6 pm on a Thursday, especially as the Friday sitting has now been cancelled. We have a duty to look at things carefully, and we should also look at them when we are not all too exhausted.

[Lord Purvis of Tweed (LD)]

My Lords, in Questions, the noble Earl, Lord Howe, gave the impression that the only business we would be expected to consider after Prorogation—and presumably after debate on the then Queen’s Speech—is a withdrawal Bill. But there is currently a great deal of legislation that needs to be completed, including, as the Government themselves have said, the Trade Bill. As the then Minister said in March:

“This Bill is essential to providing continuity and certainty for UK businesses as we leave the EU”.—[Official Report, 6/3/19; col. 615.]


Can the Chief Whip give clarity as to what the status of this legislation is, because some of it may not be able to be carried over into a new Session after Prorogation? If legislation such as the Trade Bill is essential for British businesses that require legal cover to conduct business with European enterprises and European businesses which currently conduct business within the UK, they will have no legal cover because we will not have time for the Commons to consider Lords amendments of the Trade Bill that this House passed with large majorities.