United Kingdom Internal Market Bill

Debate between Baroness Hayter of Kentish Town and Lord Beith

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

[Lord Beith (LD) [V]]

My Lords, apart from the interesting diversion by the noble Baroness, Lady Jones, into wider issues affecting the House, there has been an air of unanimity in this debate. There has been unanimous support for the amendment moved by the noble Baroness, Lady Andrews, and appreciation of the clear way in which she expounded the need for it. Of course, she is referring to Amendment 7 rather than Amendment 2.

It is unusual for my name and for that of the noble Lord, Lord Callanan, to appear on the same amendment, although we have always had cordial relations. I welcome the Government’s acceptance of the case put to them—at least for this part of the Bill. On government Amendments 29 and 47, it would be churlish not to welcome the review of how delegated powers are used, but this does not answer the case against these powers being in the Bill at all. A number of speeches made that point very strongly.

Henry VIII powers—the Government’s ability to change statute law by means of secondary legislation—are repugnant in all but the narrowest of cases. They have become habitual—a “galloping tendency”, as the noble Lord, Lord Carlile described them. They present Parliament with law that cannot be amended in almost all instances. They are not subject to effective parliamentary scrutiny, partly because of the Government’s control of the Commons agenda and timetable. They can be applied to devolved areas without consent, as the noble Baroness, Lady Andrews, pointed out. From the Government’s point of view, and from the standpoint of legal certainty, it should be remembered that secondary legislation is open to legal challenge in a way that primary legislation is not.

What range of powers are we looking at in these amendments? Amendment 7 would remove a very wide power in Clause 6, allowing the Secretary of State by regulation to change the Act that this Bill will eventually become so as to vary, remove or add to parts of subsection (3). That subsection defines the statutory provisions relating to what is within the scope of the non-discrimination principle. It includes goods, transportation, display, certification and the conduct of businesses. That is where the Government’s offer of a review comes in, but I do not believe this meets the case for amending primary legislation by means of secondary legislation. It is wrong in principle and unnecessary in practice because primary legislation can be brought forward. Parliament can act quickly, and it is generally within the Government’s ability to ensure that it does so.

Secondary legislation is incapable of amendment by Parliament and not open to adequate scrutiny. That is why the Constitution Committee, of which I am a member, and the Delegated Powers Committee have so often argued against the excessive use of secondary legislation, particularly in its Henry VIII form, and I think the case is a very powerful one. It is like the sea trying to wash away a piece of particularly hard rock: we occasionally make some progress with it but before very long we find that we are unable to effectively resist the Government’s permanent tendency to create powers of this kind.

If the noble Baroness decides to test the opinion of the House on this matter, Liberal Democrats will support her amendment.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, as I have said before, the women in the House always get a bit nervous when we talk about Henry VIII. We have only to go outside and see what happened to some of Henry VIII’s women to remind us that we are a bit uncomfortable with him.

The debate has made clear why the amendments in the name of my noble friend Lady Andrews and fellow members of our always brilliant Delegated Powers Committee should be heeded. Indeed, the unanswered question, posed by my noble friend, is why the Government have not removed the powers in Clause 6 in the way that they have now agreed to remove them in Clause 3. Why the inconsistency? What is the difference between them? Our Delegated Powers Committee certainly did not distinguish between the two pillars of the internal market—market access and non-discrimination— so we do not understand why the Government have taken such a different view on those. Without a stunning, innovative answer—the Minister looks as though he may have one, but there was none such in his letter of 12 November to the Delegated Powers Committee—when we come to Amendment 7 a little later, we will throw our weight behind it to remove the sections which, as the noble Lord, Lord Beith, has just set out, give overwhelming power to Ministers. Furthermore, as my noble friend Lady Andrews says, if these are meant to be just backstop powers to correct as yet-unknown deficiencies, then, given that Clause 13 affects all parts of the UK, it should be for Parliament, not Ministers in Westminster, to make any correction, with the full panoply of safeguards that come with primary legislation for input from the two Houses as well as from the devolved legislatures.

It is really not good enough—in a Bill which, after all, they must have known for four years they would need—for the Government at this stage still to be so unsure that they have thought of everything and drafted correctly that they need to accord to themselves these extraordinary powers to amend important parts of what will then be an Act of Parliament. That was never the purpose of secondary legislation. Indeed, as the Minister will know, we feel that it is likely that the proposed use of these ministerial powers is more the result of the Government’s tendency to rely on them rather on than proper primary legislation on a wide variety of measures. Indeed, as the noble Baroness, Lady Meacher, noted, so common has this become that my noble friend Lady Taylor of Bolton wrote on behalf of the Constitution Committee to Mr Rees-Mogg on 9 November suggesting how to diminish the practice, while the noble Lords, Lord Hodgson and Lord Blencathra, from the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee respectively, similarly wrote to Mr Rees-Mogg on 10 November, specifically with concerns about “skeleton bills and skeleton provision”, noting his acknowledgement that delegated powers

“should not be ‘a tool to cover imperfect policy development’”

and reiterating the need for the Government “at all times” to

“fully justify the appropriateness of delegated powers”.

I fail to hear such justification for these particular powers. Therefore, while welcoming the Government’s support for Amendment 2, we will support Amendments 7, 12 and the others in this group.

I am delighted that, because of the acceptance of Amendment 2, my Amendment 4 is pre-empted. For those who do not follow all this, Amendment 4 would have amended subsections (8) to (11), which was a regulation-making power. We were seeking to give the delegated legislatures a say over that. But clearly, as those powers have come out, my Amendment 4 luckily is pre-empted and not needed. However, we will return to similar amendments next week. For the moment, we welcome the moves of the Government on Amendment 2 and, in due course, unless the Minister comes up with a stunning answer in the next few minutes, we will support Amendment 7 in its place.

--- Later in debate ---

[Lord Beith (LD) [V]]

My Lords, in answer to the noble Lord, Lord Naseby, the fact that the super-affirmative powers have not been very widely used in the past is really no excuse for not using them where they are an appropriate way of dealing with important statutory instruments and providing a higher level of scrutiny. If the noble Baroness, Lady Neville-Rolfe, doubts the need for more use of the procedure, she should recall all those occasions when we have felt that a statutory instrument should be amended but have had no capacity to do so, and our dislike of a particular feature of it was not sufficient to justify blocking it or turning it down—something, of course, that this House very rarely does. It does address, although not by providing power of amendment, the lack of amendment power which is a characteristic of almost the whole of the statutory instrument system.

An alternative to heckling is the constructive tabling of an amendment, so we should welcome that, and I think that the noble Baroness, Lady McIntosh, and the noble Lord, Lord Foulkes—this new coalition, the Foulkes-McIntosh group—have done us a service in bringing this matter forward. If you worry, as I have done over many years, about the inadequacy of our procedures for dealing with statutory instruments, especially those which try to change primary legislation, super-affirmative procedure, as its name suggests, is better than ordinary affirmative procedure and better still than negative procedure, because it opens up fresh opportunities for how the matter can be dealt with. Because it takes more time, there should be some caution over which things we think it is right to use it for, but it could be much more usefully employed than it has been in recent years. Of course, it is not a single procedure; it is a category of procedure which is usually spelled out individually in the legislation which employs it, as in this case—and the noble Baroness, Lady McIntosh, has improved and added to the process in the version of it that is now before us.

The procedure allows for measured consideration. Sometimes measured consideration is impossible because of urgency, but things are not always as urgent as the Government say they are. Usually the urgency has arisen from the fact that the Government have taken too long dealing with it and have brought it to the House at a very late stage. Throughout the coronavirus epidemic we have had all these occasions when the House has suddenly been told that something is very urgent which the Government have been dealing with for weeks, and probably even announced many days previously, but are now giving the House minimum time to address. The Government cannot always claim that there is an inherent urgency in the situation; rather, they have created urgency by delay at their stages of the process.

Where measured consideration is appropriate, the super-affirmative procedures allow for it and allow the House to suggest amendments to a Bill, which the Government can then go back and consider. I think it has advantages and would have advantages for some of the processes in this Bill. So it is not the wild suggestion that the noble Lord, Lord Naseby, and the noble Baroness, Lady Neville-Rolfe, seem to think that it is. I think it has many advantages which ought to be deployed in circumstances such as this.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this debate raises an important and much wider issue about how statutory instruments are dealt with and how much consultation goes into them. When we discuss them in the Moses Room, the Minister often hears from all of us: “Who did you consult and can we hear the feedback?” There are some really important general lessons to take from that, because, as all of us who have dealt with statutory instruments will know, often someone gets in touch at the very last moment to say that a statutory instrument does not work for their industry or their sector. Usually it is an issue of practicality rather than the policy, but by then it is too late, which is immensely frustrating.

The problem with the Bill is that we should not have these powers when dealing with policy. It goes back to what I said in the earlier debate: statutory instruments were never meant to be about policy shifts, but about the practicalities or some adjustment. In a way these amendments, whether right or wrong, are wrongly focused. We should not be saying, “These things need lots of scrutiny because they are terribly important.” If they are terribly important they should not be using these powers.

It will not come as a surprise that I much prefer the amendments in my name that we will get to later, since Amendments 4 and 5 were pre-empted. They are also about the internal market. We are talking about regulations that affect the other parts of the United Kingdom, and very few, if any, would have no effect. Our other amendments propose that regulation-making will need the consent of the devolved Administrations unless that has not been possible within a month. In that case this Parliament will be able to put them through, but with a reason why it is doing so without the consent of the devolved Administrations. This is interesting, and in a way has a much shorter term than this amendment. It is more focused and specifically looks at this Bill, which is about producing regulations that affect the other four nations. I am sorry, but I prefer my amendments to these ones. The issue of scrutiny of statutory instruments is serious. Maybe we can get a better practice so that we do not end up with stuff that is not quite fit for purpose, and which it is then too late to do anything about.