United Kingdom Internal Market Bill

Baroness Bowles of Berkhamsted Excerpts

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

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I concur with the comments of my noble friend Lord German, the noble and learned Lord, Lord Hope, and others concerning consent and what might be termed the proper conduct of devolution. But I will limit my remarks to the amendments in the name of the noble Baroness, Lady McIntosh, relating to the publication of decisions, to which I added my name, not for the purpose of signalling that I am satisfied with consulting rather than obtaining consent, but because I want to flag up that there must be transparency.

It is difficult to tell from provisions throughout this Bill how transparent various procedures will be, which raises my concern that they may not be very transparent at all. The internal market is a matter of significant public interest, and while individuals may not bury themselves in the minutiae, they will feel the impact. There are various organisations on the front line of helping consumers and small businesses to understand laws and their rights. Therefore, whatever the procedure, there should be publication of the proceedings that are formulating the structure of the internal market.

I have amendments on transparency elsewhere relating to the CMA and the OIM, and they are part of the same theme. If the consumer voice is to be heard and articulated by consumer organisations, access to information is paramount. Otherwise, interventions and understanding may come too late.

[Lord Wigley (PC) [V]]

My Lords, I agree with the noble Baroness, Lady Bowles, on transparency, and I look forward to coming to those points later. I am pleased to speak to this group of amendments, and in particular to Amendments 30 and 64, to which I have added my name, and to Amendments 75A and 100A, which stand in my name.

Perhaps I should first make it clear that I support Amendment 15 in the name of the noble Baroness, Lady Finlay of Llandaff, moved by the noble Lord, Lord German, which stipulates that not only should the UK Government consult the devolved Governments but that they must obtain their consent. I would have added my name to that amendment had other colleagues not got there first. I agree with the noble Lord, Lord German, that it would be far better if we did not have these powers in the Bill at all. I also believe that the points made by the noble Baroness, Lady Bennett, go to the heart of why devolution of power was made in the first place and is still very much needed.

Amendment 16 does not go as far as Amendment 15. It advocates the need to seek consent of the devolved Administrations but it does not impose a requirement to obtain that consent. Amendment 17, likewise, does not go as far as Amendment 15, in that it again requires the Government to publish the result of consultation, so the implication is that the UK Government may well consult the devolved Governments and then blithely ignore their viewpoints. There is, as the noble Lord, Lord German, implied, no earthly point in having a consultation system if the UK Government may then, willy-nilly, totally ignore the devolved Governments’ viewpoints.

I now turn to the group of amendments that relates to Clause 12. Amendment 64 in the name of the noble Baroness, Lady Hayter, requires the UK Government Minister, in this context, to consult and seek the consent of the devolved Governments. Likewise, Amendment 75 in the name of the noble Baroness, Lady McIntosh, requires the Minister to consult the devolved Governments. But both these amendments give the appearance of consulting the devolved Governments but place no obligation whatever on the Minister to take any notice of the response elicited. The Minister can happily consult then blithely ignore the views of the devolved Governments. That is not good enough. Indeed, it is highly dangerous. It gives the appearance of consultation without providing the substance of a requirement to respect the outcome of any such process. In reality, this plays out a charade of having a joint approach between the four nations and provides an open road for the UK Government Minister to totally ignore the views of the devolved Governments.

My Amendment 75A simply requires the Minister, with regard to subsection (2), to consult and obtain the consent of the devolved Governments. I readily recognise that the UK Government may argue that the devolved Governments should not have a veto over the Westminster approach. That is something I recognise and respect, but the implication is that Westminster should have such a veto. In regard to devolved functions, the whole point is that the four nations should have the right to make their own policies. That is what devolution is about. The Government seem to take the Orwellian approach that all four nations are equal but one is a little bit more equal than the others.

My Amendment 100A applies the same principle to the consultation issues relating to Clause 20(7) and the need for the Minister also to obtain the consent of devolved Governments in that regard. What this comes down to, yet again, is the need to have an acceptable mechanism to resolve disagreements, to have the common frameworks to which we have resorted on so many other occasions and not to take the approach that the Government of England—which it is for the devolved function—always has the right, by dint of its respective size, to overrule the other four nations. If such a mechanism were in place, we would not have to put ourselves through the pain of raising these questions on every occasion that the issue of consultation between the Minister and the devolved authorities arises. I implore the Minister to bring forward an amendment on Report that would obviate the need for us to return to these issues, time after time. Until such a change to the Government’s approach is forthcoming, we will have no choice but to press amendments along the lines of this group at a later stage.

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[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.

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I added my name to Amendment 37, tabled by the noble Baroness, Lady McIntosh. However, there are several other amendments on the same theme, all highlighting important considerations that should be legitimate aims. The legitimate aims in Amendment 37 have been in use from the EU treaties, as the noble Baroness, Lady McIntosh, explained. That makes a starting point: they have been tried and tested as well as embodying the status quo, even though, as the noble Baroness, Lady Finlay, and the noble Lord, Lord Young, explained, in the EU, they apply in a wider context to mutual recognition as well.

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[Lord German (LD)]

My Lords, I happen to have spent 10 years of my life working on the mutual recognition of qualifications in Europe. I left that role and, 20 years after that, it was applied to about only four or five professions across Europe. Trying to understand where people are able to employ the appropriate skills, knowledge, understanding and practice in another surrounding is an amazingly complex area. That surrounding might have a different framework of regulation and perhaps a different framework of operation.

The intention to have mutual recognition of qualifications is fine, but the timing for putting it in place is not fine, because the Government want it to happen very rapidly. It seems to me that the most sensible way of doing this would be to try to work through the professions in relation to their activities, trying to make sure that, where there are barriers, those are reduced, or where there are barriers that are appropriate, they are not legislated for by accident in advance.

The noble Baroness, Lady Finlay, has already talked about the Welsh language. There is a very interesting debate to be had about professions that can or cannot operate through the medium of Welsh. It depends on the services being provided and on the context of where those services are provided. A profession operating in a context that is different in different parts of the United Kingdom will have different requirements because of the geography, culture or operation of the services that are to be provided. Therefore, my request to the Government is that they step back a little, take some time, concentrate on trying to fix the things that they can fix and, for goodness’ sake, allow this thing to mature properly before going in with legislation that will be doomed to failure in the end.

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, on the next group I will explain that the drafting of some clauses of Part 3 is complex and not as straightforward as it could be. One way or another, it would be useful to have a statement clarifying whether the end result is the status quo, either as a general objective or for certain circumstances.

However, as the hour is late, and as I will elaborate a specific instance on Monday, I do not need to say any more, other than to support what has been said by my noble friends Lord Fox and Lord German. This appears to be a rather complex topic. Maybe taking time to sort it out and make sure that the drafting is as clear as possible would be a good exercise.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, as we grope our way through the Bill and get to what seem even more complex and difficult to understand parts of it, we seem to reach a point where the Bill either does not add anything or is currently so badly drafted that it might destroy what we currently have. I may be being harsh, and I realise that I am asking quite a lot of the Minister, who has probably not been directly involved in any of these parts of the Bill, or concerned with some of the issues we had to deal with earlier this evening, but it seems to me that with every group, and every minute we spend on the Bill, there is a growing understanding that, as the noble Lord, Lord German, said, the Government are trying to push ahead with something that does not take the trick, as far as we are concerned, in relation to the issues before us.

The Government need to step back, take their time, concentrate on the things that they and only they can do, and encourage those who have other responsibilities that bear on what we are talking about to develop them, and out of the gloom will emerge—because they are the answer—the common frameworks. Why do the Government not realise that that is where we are heading? Why do they not get it into their heads that we need to stop being so concerned about the possibilities—the far ranges and the sunny uplands—that may be available in some nirvana they have yet to describe accurately, and work from where we are to try to get somewhere sensible in the time we have?