United Kingdom Internal Market Bill

Baroness Andrews Excerpts

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

[Baroness Andrews (Lab) [V]]

My Lords, it is with great pleasure that I join with others in welcoming my noble friend Lady Hayman to this House and congratulate her on her speech. I am sure we will hear many marvellous speeches from her, and it has been good to hear her in this remarkable debate this afternoon.

In respect of Part 5 of the Bill, I would simply say that the recent amendment in the name of the noble and learned Lord, Lord Judge, speaks entirely for me. The changes that are made in this Bill in another place—which simply make Parliament an accomplice in breaking the rule of law—are totally unacceptable.

I want to focus on the risks in the Bill, and particularly on the way it threatens to restrict the existing powers of the devolved Administrations by imposing overriding constraints on the scope of the common frameworks. I declare my interest as chair of the Common Frameworks Scrutiny Committee. For the past three years, and in the context of the incorporation of European law, the four countries of the UK have worked hard to create new consensual common frameworks specifically in order to secure a well-functioning internal market. Of the 40 or so frameworks in progress, some will carry their own legislative competence, but they will all, as appropriate, have their own dispute mechanisms in place. This has been done on a collaborative basis, by agreeing common standards across agriculture, the environment, health and safety—all balanced by respect for the devolved Administrations, in the future as in the past, to diverge in detail, as they see fit.

This managed divergence has led, and will lead in the future, to welcome innovations: not least, for example, for Scotland to introduce minimum alcohol pricing, or Wales a more rigorous approach to single plastics or to refusing GM products—so far, so good. The genius of the process is that co-operation and flexibility have built a stronger foundation of trust between the four nations, just at a time when intergovernmental arrangements have been at their most challenging. Despite the brake on progress caused by the no-deal preparations and now the pandemic, we expect five frameworks to be agreed in the next few months, and more to follow shortly.

This Bill, according to the chairs of both the Constitution Committee and the European Union Committee, threatens to frustrate and disrupt progress made so far and undermine future co-operation, because it does indeed—despite what the Minister has said—provide the Government with powers to alter the competences of the devolved Administrations. Scotland has already withheld consent; Wales and Northern Ireland are deeply provoked. Specifically, the provisions for mutual recognition and non-discrimination would generally require that goods and services that could be legally sold or provided in one part of the UK would have the same legal right to be put on the market in every other part. Forget chlorinated chicken; Wales could not even require different labelling to show the higher levels of fats in a food product. If England were to allow hormones in beef cattle, Scotland could not prevent the import and sale of such cattle. Unlike the European precedent, the only goal is to remove potential barriers to trade at all expense. All other public policy goals are abandoned.

The restraints on devolution set out in these extraordinary and unprecedented delegated powers came as a shock to the devolved Governments. Far from the powers being designed for co-operation, the devolved Governments were not even consulted. They see this as creating new risks, as well as being an attempt to reduce their powers. So my fundamental question to the Minister, once again, is: why is this Bill necessary? What is there to gain from it that cannot be achieved by the common framework principles and process? Why take these risks? It cannot be because the Bill will provide a dispute mechanism, because each framework already has that to resolve differences.

Today the Government received a unique and stern warning from church leaders across the UK not to risk destroying the trust that binds the four countries. I hope that the Minister will not only listen to what the House is saying but will have the wisdom and grace to change the Government’s mind.

United Kingdom Internal Market Bill

Baroness Andrews Excerpts

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

[Lord Dunlop (Con) [V]]

My Lords, I support the group of amendments tabled by the noble and learned Lord, Lord Hope. They address a central question: how does this Bill sit alongside the common frameworks process? Common frameworks are the process established to ensure that once the UK has left the EU’s legal orbit, policy and regulatory divergence does not damage the seamless operation of the UK’s domestic market. Unimpeded trade within the UK is something we all agree on.

The common frameworks process was initiated while I was still a Northern Ireland and Scotland Office Minister. The frameworks analysis informing it—the latest iteration of which was published only last month—provides a full assessment of the risk areas arising from EU powers flowing back directly from Brussels to Edinburgh, Cardiff and Belfast. As the noble and learned Lord, Lord Hope, explained, the latest analysis identifies 154 policy areas—115 are deemed to require no further action and 22 require a non-legislative framework, leaving just 18 identified as needing such a legislative framework. Examples in the latest analysis include food standards and labelling, mutual recognition of professional standards, the provision of services, and chemicals and pesticides. As an aside, I am even more confused about the position on pesticides than I was before. When winding up, perhaps the Minister could clarify whether chemicals and pesticides will be a legislative framework. I thought I heard my noble friend Lord Callanan say that it would be a voluntary agreement, from which the devolved Administrations could walk away.

So far as one can tell, this process of common frameworks is making progress—though more slowly than originally intended as a result of Covid. Seven will be in place by the end of the year with a joint commitment from all Governments to deliver the remainder during 2021.

In its detailed report on the Bill, the Constitution Committee concluded:

“The Government has failed to explain why a combination of retained EU law, its existing powers to amend that law, and common frameworks could not provide the certainty required at the end of the transition period to secure an effective internal market.”


When responding to the Second Reading debate, my noble friend Lord True argued that common frameworks are insufficient because they are sector-specific and cannot guarantee the integrity of the entire market. In responding to this debate, I hope that my noble friend will take the opportunity to explain in greater detail the Government’s concerns and the rationale for the approach adopted in the Bill.

There are three specific points that I hope the Minister will address, relating to necessity, urgency and proportionality. First, on necessity, my noble friend Lord True said in his wind-up speech last week:

“The Bill ensures that areas without a common framework will still benefit from the regulatory underpinning and, crucially, market coherence will be provided for issues that fall around, or between, individual sector-focused frameworks.”—[Official Report, 20/10/20; col. 1427.]


I am puzzled by this explanation, as my understanding has always been that the portfolio of legislative and non-legislative frameworks was intended to represent a comprehensive package for managing the identified risks of divergence arising from EU exit. As I have already mentioned, many of the areas identified to be covered by frameworks are cross-cutting, and not simply sectoral, such as public procurement, recognition of professional standards and the provision of services in general. Therefore, can the Minister be more specific in identifying what the issues are that the Government are so concerned about that fall in and around individual sectors, which have not already been identified in the common frameworks analysis?

Secondly, on urgency, I hope the Minister will explain why the Government are legislating in such haste. Yes, this is a major and important piece of economic legislation, but it is also a Bill with significant constitutional implications, not least for the stability of our devolution arrangements and the future of the union. This matters because there are important gaps in the scheme created by this Bill. For example, where in this scheme are the conclusions from the review of intergovernmental relations? When will the review be concluded and published, associated as it is with the work on common frameworks? How will the provisions of the Bill be enforced, and how will disputes between the UK Government and the devolved Administrations be managed?

The timetable for the Bill appears to be predicated on the end of the transition period on 31 December this year, but what is the real risk of regulatory divergence between then and the completion of the common frameworks process in 2021? The House is aware that the European Union (Withdrawal) Act 2018 already confers on Ministers so-called Section 12 powers to freeze devolved competence in relation to EU retained law. It is worth reminding ourselves of its provisions. Ministers can make regulations to restrict the ability of devolved Administrations to change EU retained law for up to two years after our formal exit from the EU. Should they make such regulations, these could remain in force for up to a further five years, so by my reckoning to January 2027. Therefore, on the face of it, there is ample time for the Government to put in place—in co-operation with the devolved Administrations—the necessary protections in the form of common frameworks and the associated intergovernmental architecture to protect the seamless operation of the UK domestic market. In light of the existing legislative protections that are already in place, will the Minister explain the need to legislate on this accelerated timetable, which, as we have heard, has not allowed sufficient time for more than the most cursory consultation? On the subject of consultation, can the Minister confirm whether all the responses to the consultation have been published? If not, will he give a commitment today that they will all be published in full and in short order?

Thirdly, and finally, on proportionality, the Government may be motivated in bringing forward this Bill by Mr Rumsfeld’s famous “unknown unknowns”. Ministers may indeed be confident that a portfolio of common frameworks can do most of the job, but still want to put in place an insurance policy to cater for unforeseen circumstances or to have a mechanism for monitoring the cumulative effects of policy and regulatory differences, which on their own may be entirely harmless. That is fair enough, but if that is so, then is not the scheme in this Bill the wrong way around? Instead of effectively overriding from the outset the practical ability of devolved Administrations to regulate differently to reflect local priorities and to suit local circumstances—and in the process potentially compromising a core benefit of devolution—would it not have been preferable for the Bill to provide a safety net of last resort? Would that not provide a better balancing of the needs of free trade within the UK with the need to respect the roles and responsibilities of the devolved institutions? Would not this create better incentives for all parties to agree sooner rather than later the full package of common frameworks? We all agree with the aims of this Bill. However, I suspect the Government will need to do more to convince the House that the legislative scheme in the Bill is the best way to achieve those aims.

[Baroness Andrews (Lab) [V]]

My Lords, it is a great pleasure to follow the noble Lord, Lord Dunlop, and indeed to agree with much of what he said. I support the amendments in the name of my noble and learned friend Lord Hope.

I should declare an interest as the chair of the Common Frameworks Scrutiny Committee. The House will judge that I have a formidable group of Peers to do the work, and we have heard from some of them this evening. It has been splendid to hear so much exposure given to common frameworks because, as many other noble Lords have said, the Bill is silent on them.

It is a particular pleasure for me personally to support these amendments because they are a model of clarity and common sense. They track the history and purpose of, and the co-operation involved in, the common frameworks in the context of our membership of and exit from Europe, holding firm to the principle and practice of devolution.

The Government are silent on the common frameworks and silent on the years of hard negotiation that has gone into them so far to ensure that the principles that govern them bear fruit. I am surprised at that silence because in everything that the Ministers have said so far—and they have said it informally in communications with us, which we very much welcome—they have insisted that they still support the principles of the common frameworks and their role in stabilising the internal market, yet in effect these clauses drive a stake through them.

As my noble and learned friend Lord Hope said, the common frameworks allow for reconciliation across an enormous range of highly sensitive areas of policy—from the safety of baby milk to protections relating to the location and storage of hazardous waste, to maintaining future emissions trading. It has been a slow and careful process because the dispute mechanisms and the legislative frameworks have to be resilient if the internal market is to work with integrity in the future.

As the noble Lord, Lord Dunlop, said, at Second Reading the Minister defended these clauses in the Bill on the grounds that this matter needs regulatory underpinning, because there are issues that fall around and in between the frameworks. First, as he also said, they are not entirely sector based, but the real puzzle for all of us is where these identifiable gaps are. If there are indeed gaps, could not other frameworks be developed as appropriate? We already have the models in front of us. Therefore, like the noble Lord, Lord Dunlop, I would be very interested if the Minister could now tell us in more detail what these issues are that fall around or between the individual sectors. What is the problem to be solved here?

The best clue that we have is that the Minister has suggested that the Bill is needed in case there are future developments that cut across seamless trade. Again, it is impossible to know what the Government think is likely to happen, why they cannot share that with us and why such developments cannot be accommodated. So far, no Minister and no officials, in formal and informal conversations, has come up with an instance of what this means.

It is the more frustrating because, by definition, the frameworks are dynamic. They will be under regular review—they are work in progress. If there is a push for further divergence, the reconciliation and dispute processes kick in. The union becomes the stronger because it acknowledges that culture, demography, local economics and geography drive diversity. If the Government fear that somehow, and at some point, unacceptable barriers to trade will be erected across the union, surely the frameworks are the solution and not the problem.

The Bill is important. It is also important not to exaggerate, but I believe that these clauses will exact an enormous price if they are not amended, as my noble and learned friend Lord Hope suggests. The mutual recognition principle becomes the default position, no matter what the devolved nations hope to achieve. The Government argue that, for example, we have the highest environmental standards in the world. Indeed, we might, but how can these be upheld in a highly competitive market where cheaper food invites cutting standards? How can each nation continue to drive down salt content in food if a cheaper product with a higher salt content becomes available for sale across the UK?

--- Later in debate ---

[Lord German (LD)]

My Lords, these amendments have been prepared by the Welsh Government and have their support; I am pleased to support them. The Welsh Government, as noble Lords know, are committed to the union of the United Kingdom. These proposals before us today seek to find a route through in the way that the Bill has been put together. In fact, they intend to put the horse before the cart rather than the cart before the horse. In the discussions that we had on the previous group and subsequently, there have been for me some very puzzling matters, and I am trying to work out quite where the Government have placed themselves.

First, on timing, the Government seem to argue that we must have the Bill in place in its entirety so that on 1 January they can move forward and have something absolutely concrete to work from. I will come back to that point in a moment. The second point is that the Government have not been able to find any way to describe something which falls outside the area of the structure.



In the last round of amendments, the Minister described additives for flour. Flour and additives are part of the common framework on nutrition. I am told that the three frameworks which are already on the way to early delivery and will be fully operational by the end of the year cover nutrition, hazardous substances and emissions.

I am puzzled why the Government are not able to provide any specific examples of what falls outside the framework, apart from “the future”. We do not know what the future is, but as it arrives we will sort out legislation and frameworks as we move along. That is bound to happen.

Timing is another puzzle because the Government do not want to proceed with the common frameworks as the underpinning structure for this Bill. They seem to want to use what the noble Baroness, Lady Finlay, called a blunderbuss. Battle axe might be another way of putting it. Basically, they do not want the co-operative approach which has been at the forefront of these frameworks.

In September, the Government published their view of the frameworks. Right at the front—on the first page—were the principles which the Government are now seeking to break about the way in which they intend to govern, and about giving and not taking away powers from the devolved Administrations. They were right at the top of the Government’s own papers as recently as last month. If the Government want to put them front and centre, but need something temporary, why not say so? Why not put in a sunset clause, or some form of clause which says this will be a temporary measure until particular frameworks are in place?

The Government’s position is not defensible inside Wales as I know it. The Welsh Government have sought to bring forward a proposal which meets the Government’s aspirations. It says, “Put the common frameworks first and then, if there is any dispute whatever, use the backstop which is being put into this Bill through regulations.” We all want to see an alteration to the way in which they have been carried out and for there to be adequate consultation and debate.

My concern is that I am not certain that the Government know where they are going. I am not certain that they know what they mean by “putting the common frameworks front and centre”. Is this a timing issue? I hope that the Government will be able to answer all these questions.

I want to talk briefly about the one-use plastic teaspoon. They will be banned next year by the Welsh Government, through the Welsh Assembly, because they are bad for the environment and do not degrade in the soil. One-use cutlery is damaging for us as a country and for our environment. However, if that legislation is passed, there is nothing to stop a whole generation of English single-use plastic spoon manufacturers bringing them across the border and distributing and selling them wholesale in Wales. This is an extreme example, but it illustrates that there are bound to be some divergences if the power exists. If, as a Government, you have been given powers and you want to enable them, but you find you are being stopped because of this sort of extraordinary behaviour by a Government somewhere else, that is not going to help the union. The union of this United Kingdom is to be treasured, but to treasure it you have to respect it. I do not believe that the Government are doing so in this Bill. So I ask them all those questions about the direction in which they are going. Will they try to outline whether these frameworks will be placed front and centre? Is it a timing issue? Can they come up with some examples—one would do—which would tell us where the gaps are?

[Baroness Andrews (Lab) [V]]

My Lords, I can speak more briefly to this amendment than the one I spoke to earlier, because my arguments will be much the same. What attracts me particularly about this amendment is that it once again asks the Government to look at the possibility of putting in the Bill the process whereby the Bill becomes the default position and the common frameworks process has to be exhausted before the market principles kick in. I have said before that I think that this is logical. It helps the Government to achieve their own objectives.

When the Minister replied to the previous debate, it was very welcome to hear him say that he was prepared to give more thought to things he had heard the House say this evening. He seemed to think that this process of exhaustion was somehow going to be rather difficult and messy to achieve. From what we have seen in the Common Frameworks Scrutiny Committee, the dispute resolutions are worked out very clearly and in detail. I do not see a problem with that process at all and I would be happy to talk to the Minister about it. If he is worried about that, we can provide some reassurance and, as we scrutinise it, there may be some things we can do to improve the process. If it is a technical problem, then that is what we are here to solve. If it is a problem in principle, then we need to know; he needs to tell us.

The rest of the amendment is slightly more legislative in structure than the amendments from the noble and learned Lord, Lord Hope of Craighead, but I continue to support it in principle because it flags up the significance of common frameworks and the importance of the need for a fit between the Bill and the common frameworks.

The noble Baroness, Lady Finlay, asked me whether we had come across any areas where there was deadlock or difficulty in securing agreement. In the summaries of the frameworks that we have seen so far, and in the one completed framework, we have not seen anything that would alert us to the fact that there is a continuing problem. The problem that the framework negotiators have is the unsettled nature of European negotiations and the issues posed by this Bill itself. They are bound to be waiting for resolutions of different sorts. The processes that they are establishing are clear, transparent and robust. As I say, they offer a solution in practical terms, as well as, frankly, in ethical and political terms, as far as the Government are concerned.

With that, I simply say that I am pleased to support the amendment in principle. I look forward to the Minister, the noble Lord, Lord Callanan, having another go at some of these very specific questions that I think we have a right to hear some answers to.

[Baroness Neville-Rolfe (Con) [V]]

My Lords, I will speak to Amendment 6. I have already expressed some concerns about delays and problems that could arise in trying to satisfy devolutionary feelings beyond the existing devolution settlements and the withdrawal Act, which have already given many powers to Scotland, Wales and Northern Ireland.

We need always to bear in mind the need for a well-functioning single UK market. That is in the interests of citizens, and of charities and businesses which operate across the borders of Northern Ireland, Scotland, Wales and England. My noble friend Lady Noakes cited some figures which bear repeating. I think she said that 60% of Welsh and Scottish exports and 49% of Northern Ireland exports come to other parts of the UK. Incidentally, I was glad to hear my noble friend the Minister committing the Government to high regulatory standards.

We heard from the noble and learned Lord, Lord Hope, in an impressive speech, and from the Minister in an equally persuasive one, about the role of common frameworks in relation to Amendment 5. I heard what my noble friend the Minister said, but it may be that a brief reference to these common frameworks could make everyone more comfortable with this Bill—I was thinking of an annual report on how they are working and how consultations have progressed. It seems odd, given their importance, that there is no reference to them at all.

United Kingdom Internal Market Bill

Baroness Andrews Excerpts

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

[Lord Fox (LD)]

My Lords, in moving Amendment 12, I will also speak to Amendments 27, 38, 46, 72, 97 and 160 in my name. These amendments would remove the Bill’s regulation-making power, which is fully in line with the recommendations of the Delegated Powers and Regulatory Reform Committee. Its report is a comprehensive review of these issues; your Lordships will be pleased to hear that I will therefore not reiterate them at length. Later, we will hear the wise words of my noble friend Lord Thomas of Gresford, who will describe that your Lordships’ House is approaching a watershed on this issue. He is of course right; this train has been coming down the tracks for some time.

A while ago, the noble and learned Lord, Lord Judge, gave a lecture at King’s College London entitled “Ceding Power to the Executive: The Resurrection of Henry VIII”. He made the stark point that parliamentary sovereignty is the antithesis of executive sovereignty. The two concepts are mutually contradictory. The democratic process is not meant to give—and our constitutional arrangements are not meant to provide us with—executive sovereignty. The burden of the noble and learned Lord’s argument was that Henry VIII powers, although paradoxically conferred upon the Executive by none other than Parliament, are an affront to parliamentary sovereignty. That lecture was held in 2016. Since then, we have seen an acceleration of the erosion of parliamentary sovereignty through these means.

As the House of Lords Constitution Committee put it in its report of the Strathclyde review some five years ago:

“Delegated powers in primary legislation have increasingly been drafted in broad and poorly-defined language that has permitted successive governments to use delegated legislation to address issues of policy and principle, rather than points of an administrative or technical nature.”


This Bill pushes that envelope yet further. The Delegated Powers and Regulatory Reform Committee was clear. It described some of the powers in that report as either “extraordinary” or “unprecedented”. To justify these extraordinary and unprecedented powers, the Government cite the need for legislation to evolve. The possibility of unknown unknowns required a yet unknowable legislative response and a yearning for law-making speed. None of these justifications is extraordinary and none of them is unprecedented.

I beg to move.

[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.

United Kingdom Internal Market Bill

Baroness Andrews Excerpts

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

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I am delighted to follow the noble and learned Lord, Lord Wallace of Tankerness and I support the amendments in this group in the name of the noble and learned Lord, Lord Hope of Craighead. I declare an interest as a member of the Common Frameworks Scrutiny Committee.

The purpose of this important group of amendments is to safeguard the common frameworks process and ensure that it is placed in legislation. The common frameworks process cannot be bypassed by attempts by the Government to impose themselves on the constitutional devolution settlements. I agree with the premise that the amendments seek to ensure that primacy and due recognition are given to the common frameworks and that they are enshrined in legislation. They should not be perceived by the Government as a means of conflict with the internal market Bill. As the noble and learned Lord, Lord Falconer of Thoroton, has said, there has to be frictionless trade and divergence by agreement. The best way to capture that is by ensuring that common frameworks sit within the legislation itself.

Common frameworks are built on the assumption that consent and agreement can be reached between Westminster and the three devolved Administrations and that they should not be undermined. The process of common frameworks should be respected and honoured in the legislation and should not be eclipsed in any way. It is interesting that in our Common Frameworks Select Committee yesterday Professor McEwen said that the process of common frameworks has sufficient flexibility to allow divergence. That builds on the comment of the noble and learned Lord, Lord Falconer. In Committee, it was said that the legislation is seeking to jettison the common frameworks process that was started in October 2017. In many ways it is a common approach to managing divergence, a point made to our committee last week by the Welsh Counsel General, Jeremy Miles.

The Governments have been working on a primacy or a hierarchy of Governments in this to develop common frameworks in areas where they agree it is necessary to replace EU regulations with shared EU regulations or non-legislative frameworks. The Joint Ministerial Committee made clear that common frameworks will be established where they are necessary in order to, among other things, enable the functioning of the UK internal market while acknowledging policy divergence. These points have been made by earlier speakers today. It was clear from listening to the Ministers from the Scottish and Welsh Governments last week that, although they come from different political perspectives, they see the benefits of working together in partnership to manage divergence on certain policy issues through the common frameworks. So why would the Government want to nullify that process? It is surely eminently complementary that they can work together in legislation with the regulations of the United Kingdom Internal Market Bill.

I make a plea to the Government and the Minister to change their minds and make such provisions for common frameworks in the legislation. By abstracting the internal market from these frameworks and pushing ahead unilaterally, against opposition from the devolved authorities in Scotland and Wales, the UK Government are putting the common frameworks and devolution arrangements at risk. Coming from Northern Ireland, I fully recognise that there will be divergence anyway in Northern Ireland because certain measures to do with electricity transmission and the agri-food industry will be subject to the rules of the Northern Ireland protocol. What is the Government’s view of the devolution settlements? Do they view the devolved Administrations as subordinate or equal to Westminster, which I believe they should be? Common frameworks should be allowed to work; they are an innovative process to manage divergence.

Like the noble Lord, Lord Wigley, I hope that the Minister is in a conciliatory mood today and that he can accept Amendment 1 and Amendments 38 and 51 which are consequential. The noble Lord, Lord True, said that the Bill and common frameworks are complementary as they work together to deal with future divergence. The best way to deal with that is, surely, in the internal market Bill. That would eradicate the frustrations and any difficulties, which is an important thing to do.

[Baroness Andrews (Lab) [V]]

My Lords, I will speak briefly in support of the amendment in the name of the noble and learned Lord, Lord Hope of Craighead. Before I do so, I thank the noble Lord, Lord True, for his graciousness in coming to speak to the Common Frameworks Scrutiny Committee, which I have the privilege of chairing, and I follow my esteemed colleague the noble Baroness, Lady Ritchie of Downpatrick, in her speech.

The Committee has since taken evidence from Ministers and leading academics across Scotland, Wales and Northern Ireland. I have to tell the Minister that we have found no evidence whatever to support the Government’s claim that the Bill is complementary to the common frameworks. We have heard, time and again, of the deep anxiety on all sides that the Bill undermines them in principle and practice and that, most significantly, it will do serious harm to trust and confidence between the four Governments, as the House has already heard this afternoon. In the words of many witnesses, those relationships have never been worse. We have heard from those witnesses of many examples of how the common frameworks themselves, in pioneering innovative, collaborative ways of working across the nations, have brought a new common purpose and are, in that way, improving relationships.

My first question to the Minister has been asked already: is this not in itself a prize worth keeping? That unity of purpose which makes it possible for two systems to live together to make the internal market stronger and more innovative is at the heart of the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, which he introduced, as usual, in a measured style and with devastating power. The amendment encapsulates both the principles and the purpose of the common frameworks as a means of managing the internal market, but in a rational and predictable way by managing the future divergent policy choices made by the four countries in a post-Brexit world, as they have for many years in the past.

Divergence is the signature and symbol of devolution and a mark of confidence in the right to make choices in each country, in law, which are appropriate to each nation. Doing that brings clarity and stability in the trade in goods and services across the internal market by agreement. The amendment simply asks the Government to change the Bill so that when the common frameworks have reached agreement on divergence, whether in goods or services, that is not demolished or overridden by the operation of the Bill.

No matter what examples the Minister gives, or whatever rationale he finds, this is the effect of legislation made in Westminster. Governments may be equal, but Parliaments are not. The Minister may say that nothing is being taken away from the powers of the devolved Governments in these clauses, and he is right. The Bill does not need to do that. Its effect, however, is the same, because future legislation in Wales which would, say, have enabled the abolition of a further six types of single-use plastic—which is the ambition—would not be able to be put into effect as long as other manufacturers of plastic goods are able, as they will be under the principles of mutual recognition and non-discrimination, to bring their goods for sale in Wales.

I shall ask the Minister a direct question, and I would very much appreciate a direct answer. Was the Welsh Attorney-General right when he told the Common Frameworks Scrutiny Committee that the legislative preferences in the Senedd could not be enforced on the ground in Wales—that we would not be able to enforce the ban on the extra six plastic products if this Bill came into force? “Enforcement” is the key word. The noble and learned Lord, Lord Hope, was eloquent on how difficult is going to be for trading officers and the courts to know how to enforce it. There is no certainty here, yet certainty is at the heart of the Government’s argument. All this very modest amendment is asking is for the Government to acknowledge this and stop dodging this reality.

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Moved by

[Baroness Andrews]

2: Clause 3, page 3, line 25, leave out subsections (8) to (10)

[Baroness Andrews (Lab) [V]]

My Lords, I shall speak also to the other amendments in this group which stand in my name and those of other noble Lords. I am very grateful that such a distinguished group of noble Lords have supported them.

Since my amendments were tabled, the noble Lord, Lord Callanan, has, to my pleasure, added his name to Amendment 2. He will, of course, make his own arguments clear on why he supports this amendment, and I look forward to hearing them. However, I hope to change his mind just a little further in this debate and to say a few words in respect of the amendments as they now stand.

We had a very powerful debate in Committee, when it was made absolutely clear that the majority of your Lordships agreed with the combined censure of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee that the Government had taken unprecedented and unnecessary Henry VIII powers in this Bill—powers that were too wide, too vague, opportunistic and altogether so inappropriate that the best thing to do was to remove them from the Bill entirely.

I have to declare an interest in the Delegated Powers Committee. It was set up more than three decades ago and has, particularly in the past few years, recorded the casual and accelerating abuse of the parliamentary process.

Both committees dismissed the arguments that the Government made originally in support of these extraordinary clauses as contemptuous of Parliament. They pointed out that the argument that secondary legislation could offer more speed and flexibility to deal with things that just might happen in the future were both specious and dangerous.

In particular, they referred to Clauses 3 and 6, which are the twin pillars of the archaeology of market access—mutual recognition in Clause 3 and non-discrimination in Clause 6. They said that they contained Henry VIII powers which, in each case, allowed Ministers to alter the definition of the key requirements of the Bill—for example, the fundamental nature of what is traded, and the characteristics of goods and matters related to, for instance, their inspection and production—and, in each case, to rewrite those principles substantially in secondary legislation. The DPRRC said that both clauses suffered from the same defects and both proposed to make future amendments merely by consulting the devolved Administrations but without seeking their consent.

The committee was equally clear that both clauses were conjoined and equally egregious, and that the relevant subsections in both should be removed. That is just what my Amendments 2 and 7 would do. Therefore, I was really delighted that the Government had clearly respected the weight of the argument of the committee and had agreed to withdraw completely subsections (8) to (10) of Clause 3.

In his letter to the Delegated Powers and Regulatory Reform Committee on 12 November, the Minister said that the Government had done so because they recognised

“the strength of Peers’ concerns about the number and extent of delegated powers, and therefore”

are

“prepared to remove this power.”

So far, so very good, but, sadly, and for reasons that I really cannot explain, the Government have not recognised the committee’s identical and equally grave concerns in relation to Clause 6. They merely said that they are

“fully committed to ensuring that the use of the power in clause 6(5) is subject to effective oversight and consultation.”

I really do not want to be churlish about this; I want to persuade the Government to do the consistent and logical thing. My first question to the Minister is: if they recognise the problem with Clause 3, why cannot the same grace and logic be applied to Clause 6? What is different about Clause 6? The substance of Clause 6(3) deals with slightly different aspects of trade but ones that are no less important and cover, in some paragraphs, exactly the same areas, such as inspection. Therefore, why should the non-discrimination aspect be treated differently from market recognition and be subject only to the uncertain and retrospective review that the Government offer? The Minister’s letter is silent as to the reason, but I have some hope that this evening, with encouragement, he might be prepared to reconsider whether it would not make better sense to treat these two clauses consistently, in the same way, and to remove both sets of subsections from the Bill, rather than introduce a whole new set of anomalies.

There is another reason why he might want to think again about Amendment 7. Much of the debate on the whole Bill turns on the impact it has had, from start to finish, on the future of the devolution settlements and the respect given to the devolved and equal Governments. We have just finished a debate on that point on Amendment 1—the way in which the Bill impacts on the freedom that the devolved Administrations have to apply their legitimate and different legislation. I will not repeat what I said on earlier amendments, but, as the DPRRC report puts it:

“Clause 3(4) equally affects all the administrations of the UK. If it turns out to be defective, it should be for Parliament to correct it rather than Ministers at Westminster.”


However, with these clauses the Government can act without the need to introduce new primary legislation or to obtain the consent of the devolved Administrations, the Minister being under a duty only to consult, even though the proper functioning of the internal market is essential to all the Administrations of the UK.

The identical language is applied in Clause 6, so that, I argue, is a very powerful ethical, legal and political case for removing the relevant subsections from both Clauses 3 and 6. These powers of consultation without consent stand out as a failure to understand what the Delegated Powers Committee spells out quite clearly: that this part of the Bill marginalises the devolved Governments. I simply do not understand why the Government do not grasp the significance of that.

The other amendments in my name in this group, Amendments 12, 17, 31 and 42, deal with different ways in which secondary legislation is used to deal with other, related matters in the Bill—indirect discrimination, for example. Amendments 12 and 42 concern the list of legitimate aims; Amendment 17 concerns the powers to amend Schedule 1 in relation to provisions excluded from the application of the market access principles; and Amendment 31 deals with the power to amend Schedule 2 to add, amend or remove services or requirements to or from those currently excluded from principles of mutual recognition and non-discrimination. Each of those amendments, again, reflects the egregious way in which secondary legislation has been seen as a point of first resort.

The Government have responded to the committee’s recommendations, according to the detailed letter that the noble Lord, Lord Callanan, sent to it, by tabling amendments that will provide for additional consultation with the devolved Administrations. Those amendments are not in this group, but I simply say that “consultation” is a very slippery word and a slippery concept, unless it means conducting a serious and independent consultation and taking account of and acting on the findings. If it does not, it is meaningless. To consult is not to seek consent, which is what the devolved Governments seek and are entitled to.

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[Lord Callanan (Con)]

I agree with the noble Lord, actually. If you look at the degree of scrutiny with which this House has portrayed this Bill, as opposed to the degree of scrutiny in the other place, you see the value of the debates we have here.

[Baroness Andrews (Lab) [V]]

I am very grateful indeed to everyone who has taken part in this debate, particularly those noble Lords who signed my amendments. It has been a very useful and illuminating debate. I am grateful to the Minister for his detailed responses and, particularly, the information he has provided on the review. Retrospective reviews are always too late to improve or perfect what has happened, but I understand that this is a useful step forward, and I look forward to more detail.

I am afraid I am unable to accept his explanation of the difference between Amendments 2 and 7 in relation to the two clauses. I was struck by the use of the term “non-essential” powers, which was applied to Amendment 2 to Clause 3 and which has enabled the Government to sign the amendment, but made them unable, in the same sense, to apply the same logic to Clause 6.

Very briefly, I will read what the Delegated Powers Committee report actually said about Clause 6, which deals with non-discrimination:

“It suffers from similar defects”


to Clause 5. The report continues:

“The Government say … that the power in Clause 6(5) is necessary to ‘future-proof’ the operation of the non-discrimination principle. They might have said ‘to completely re-write’ the non-discrimination principle.”


We believe that the extreme degree of freedom that these powers give Ministers to go back almost to the drawing board and rewrite their own legislation by way of secondary legislation is so dangerous. Although the Minister has made a case for the distinction, I am afraid it is not one I can accept. Therefore, he will not be surprised when I say that I shall press Amendment 7 to a vote when we reach its place on the Marshalled List.

I say again that I am extremely grateful that the Government have responded so positively to the arguments of the DPRRC, the Constitution Committee and your Lordships, supported Amendment 2 and brought forward these other amendments, as outlined by the Minister this afternoon and in his letter. I beg to move.

Amendment 2 agreed.

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Moved by

[Baroness Andrews]

7: Clause 6, page 5, line 23, leave out subsections (5) to (7)

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

I should inform the House that, if Amendment 7 is agreed to, I cannot call Amendment 8. Does the noble Baroness wish to move Amendment 7 formally?

[Baroness Andrews (Lab) [V]]

My Lords, I have spoken to this in an earlier group, and I anticipated that I would be pressing the Minister. I intend to test the opinion of the House on Amendment 7.

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Moved by

[Baroness Andrews]

12: Clause 8, page 7, line 1, leave out subsections (7) and (8)

[Baroness Andrews (Lab) [V]]

My Lords, I spoke to this amendment in an earlier group. I beg to move.

Amendment 12 agreed.