United Kingdom Internal Market Bill

Baroness Finlay of Llandaff Excerpts

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

The outstanding virtue of the common frameworks process is the carefully nuanced way in which it addresses each issue while respecting the devolution settlements. The solutions that it can produce by agreement between all the nations should not be inhibited or neutralised by this Bill. My amendments are designed to do no more than is necessary to achieve that important aim. I beg to move.

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

My Lords, I support almost all the amendments in this group—particularly those tabled and introduced with such great clarity by my noble and learned friend Lord Hope—because they all tend in the same direction: to narrow the focus of the Bill on to areas where agreement cannot be reached with the devolved Governments, on ways of managing the tension between safeguarding the internal market and safeguarding the rights of the devolved institutions to take measures they have been elected to take. I shall address these issues myself later in the debate.

My role in this group is more specific: to explain why I believe that Clause 51 should not stand part of the Bill. Clause 51, regrettably, reflects the general powers of the Bill—powers which are sweeping in the Bill’s attack on the very nature of devolution. The clause would make the whole of the Bill a “protected enactment”. In other words, it would prevent a devolved legislature amending any part of the legislation as it applies in a devolved nation, even if that change would otherwise be within devolved competence.

There is precedent for that, but those precedents reflect the fact that such protection should be applied only to legislation of fundamental importance to the constitution or to human rights. Currently, only the Human Rights Act, the Civil Contingencies Act and the soon to be revoked European Communities Act are protected in their entirety. Even in the case of the European Union (Withdrawal) Act, the Government undertook a clause-by-clause analysis of the Bill to set out the case why some clauses, but not every clause, should be protected. Not only is this Bill clearly not of an equivalent weight to those that I have named; the Explanatory Memorandum even claims that this is an economic Bill, not a constitutional one. That is worryingly inconsistent. If the Bill is not constitutional, there is no justification for making any part of it a protected enactment.

I therefore ask the Minister to explain why each and every clause in the Bill should be protected. Can he please explain why the Bill shows indifference to the whole edifice of devolved government? This House needs a clause-by-clause analysis and explanation of the Bill. That is what happened with the European Union (Withdrawal) Bill, as it then was. Now we need a sound justification, before Report, for the rationale behind the Government’s asking Parliament to pass legislation that requires it to be protected in its entirety, and an explanation of the adverse consequences that would result if it is not protected when it becomes an Act of Parliament.

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Moved by

[Baroness Finlay of Llandaff]

6: After Clause 1, insert the following new Clause—
“Legislation to which market access principles apply
(1) Legislation on market access principles may only apply—(a) when the common frameworks process in respect of subjects within a description listed in Schedule (Subjects to which market access principles may be applied) has been exhausted, and(b) only so far as it relates to a subject specified in regulations made by the Secretary of State.(2) Regulations under subsection (1) may specify a subject only if it is within a description listed in Schedule (Subjects to which market access principles may be applied).(3) The Secretary of State may by regulations amend Schedule (Subjects to which market access principles may be applied).(4) Regulations under this section are subject to the affirmative resolution procedure.(5) Before laying a draft of a statutory instrument containing regulations under this section before either House of Parliament, the Secretary of State must give notice of the proposed regulations to—(a) each devolved authority, and(b) the Competition and Markets Authority.(6) The Secretary of State may not lay the draft instrument before either House of Parliament until—(a) the Secretary of State has received—(i) a statement in relation to the proposed regulations from each devolved authority, and(ii) a report or advice on the proposed regulations from the Competition and Markets Authority, or(b) the period of 12 months beginning with the day on which notice was given under subsection (5) has ended.(7) When a draft of a statutory instrument containing regulations under this section is laid before either House of Parliament, the Secretary of State must at the same time lay before that House copies of any statements, report or advice mentioned in subsection (6)(a).(8) In this section, “devolved authority” means—(a) the Scottish Ministers;(b) the Welsh Ministers;(c) the Department for the Economy in Northern Ireland.”Member’s explanatory statement
This amendment means that the United Kingdom market access principles only apply after the process for agreeing common frameworks has been exhausted. It introduces a new Schedule, inserted by another amendment in the name of Baroness Finlay, listing the subjects to which the common frameworks apply and for which regulations may be made if common frameworks are not agreed.

[Baroness Finlay of Llandaff (CB)]

My Lords, I have tabled both the amendments in this group. Amendment 6 is arguably the most important of all the amendments that I have laid, because it aims to do what many of the amendments in the previous group also intended to achieve. In the light of the disappointing ministerial response to the amendments in the previous group, so superbly introduced by my noble and learned friend Lord Hope of Craighead, it could be said that I am having another go, in a more watertight way. Amendment 6 puts common frameworks on the face of the Bill. Amendment 44 is consequential on Amendment 6, since it would make the point at which the regulations came into force the trigger point from which the market access principles would apply. I assure the Government that these amendments are drafted with the Welsh Government, who want the process on the face of the Bill.

I am grateful to the Minister for meeting me and other Peers last week and for his letter of yesterday. In it he states:

“The common frameworks programme was designed to find effective, pragmatic and flexible ways of working with the devolved administrations. The purpose of frameworks is to ensure that intra-UK policy-making is based on agreed structures for cooperation across the UK. They are voluntary in nature and allow the UK Government and devolved administrations the opportunity to find common approaches to the exercise of powers returning from the EU. One of the main benefits of the programme is its inherent flexibility to adapt to changing circumstances.


Enshrining common frameworks in legislation would remove the voluntary element on which the common frameworks programme is based. As frameworks are developed jointly with the devolved administrations, any change of this nature which departs from the agreed principles of the programme would need to be agreed with the devolved administrations. It would also likely eliminate the flexibility which makes frameworks effective in managing intergovernmental policy development in the long term.”


I agree that they are voluntary, but without them in this Bill it reads rather like a blunderbuss, sweeping over all in its path. That is precisely why the devolved Government in Cardiff want common frameworks to be the starting point for this legislation, not hidden away and never referred to, like the first Mrs Rochester. These principles of frameworks were first agreed in October 2017. More than 150 areas have been identified where EU law intersects with devolved competence, including 24 areas, now narrowed down to 18, where legislation may be needed. Thirteen of them are well on their way for early delivery. In the Minister’s response to the first group of amendments today, he flagged up that there will be “dozens of new powers” and responsibilities for the devolved Governments—I hope I have quoted his words correctly. This will inevitably mean wider divergence and, I suggest, is an even stronger reason for an agreed mechanism to find consensus and avoid the situation outlined by the example of flour. Only when that hits the buffers should Parliament step in.

The reason they need to be in the Bill—I believe that Scotland would strongly support this approach—is that they provide an agreed framework, whereas the Bill as drafted empowers the imposition of market access principles across all areas of economic activity, regardless of whether divergence between the devolved nations on a specific issue would pose a threat to the coherence of the internal market. It ignores the frameworks process that has been developed. It seems to assume such frameworks will fail without spending time listening to both sides to reach agreement, which may—let us be realistic—be an agreed compromise. It fails, if I may draw on John Lennon, to “give peace a chance”. It may not be the intention—though some may fear it may be—to launch a full-frontal attack on the current system of devolution, but whether it is or not, its approach feels overbearing and intolerant of difference.

This amendment and equivalent ones in respect of Parts 2 and 3 reverse the burden of proof. This would require the frameworks to be worked through properly, not in a tokenistic way. Failure to reach agreement would trigger action. It would create a system where the market access principles could then be brought into effect by affirmative resolution of this House and the other place. The principles would then, and only then, apply to specified areas of economic activity: areas where attempts to agree a common framework by negotiation between the four Governments of these islands had failed and where the Government could make a credible argument that there was a threat to the economic coherence and well-being of the United Kingdom.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

I am afraid that the noble Lord has the advantage of me in that I have not seen that bit of the food standards framework. I would rather look at his question again in Hansard tomorrow and reply to him in detail. I do not think that I am able to give him a full answer now.

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

My Lords, I am most grateful to all noble Lords who have spoken. I am grateful to the Minister for her response but it is disappointing.

I must say that I appreciate the noble Lord, Lord German, pressing the Government on why they cannot specify any examples of potential disruption to the internal market, because we really need to hear those. Perhaps the Minister might write to me with some of those specific points following this debate. I note that the noble Baroness, Lady Andrews, confirmed that there is no evidence that common frameworks are breaking down, nor that there is an inability to be fast.

I can see that the timing in the amendment needs to be looked at and renegotiated, and I am sure that would not be a problem. I know that the Welsh Government are sincerely committed to bridging the gap that the noble and learned Lord, Lord Hope, outlined so clearly; at the moment it is a chasm, but it can be bridged.

I agree with the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Naseby, that we all want the UK to prosper and things to work, but we must find a way to make them work by not splitting the UK, which is what the Bill seems to be doing at the moment.

I am grateful for confirmation from the noble Baroness, Lady Randerson, and the noble Lord, Lord Stevenson, of cross-party support for this approach. I have to agree with the noble Baroness that there is little evidence of the Government’s good will towards devolution in the Bill as drafted, and that at the moment the logic of the Government’s approach is quite difficult to discern.

The amendment was a genuine attempt to restore confidence between the central Westminster Government and the devolved Governments. I hope we will return to it because I think we need to. This was a hand of peace, an olive branch, and we must return to it later on Report. For the moment, though, pending further discussions and negotiations, I beg leave to withdraw the amendment.

Amendment 6 withdrawn.