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.