United Kingdom Internal Market Bill

Baroness McIntosh of Pickering Excerpts

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

It is self-evident why it was banned, although I will not go into the detail. We were feeding animal protein back to animals, and we discovered that that is not a very good thing to do. In terms of giving to animals what we might call food waste that humans have wasted, we have to be particularly careful, because it cost this country billions of pounds in 2001 to deal with the foot-and-mouth outbreak that was traced back to pigswill manufacturing. This is a fundamental issue and I want to know how it is going to be prevented from reoccurring if the operation of Clause 2 is left as it is. I will leave it there.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am delighted to follow the noble Baroness, Lady Hayter, and the noble Lord, Lord Rooker. I shall speak to my own amendments but I have a question following on from what they have both said which relates to an earlier debate, particularly when in summing up the noble and learned Lord, Lord Hope of Craighead, linked Clause 39 of the Agriculture Bill to the clause relating to the movement and mutual recognition of goods.

Clause 39 of the Agriculture Bill relates to marketing standards, and I have a specific question to put to my noble friend the Minister that I hope he will address head on in view of the remarks made by both the previous speakers. If, in the course of events in the new internal market arrangements under this Bill, the Food Standards Agency with responsibility for England came out with different provisions to Food Standards Scotland, and in the event that the latter adopted different rules for, especially, animal products, food and animal feed, how would that impact on the free movement of goods? Could it eventually mean that there was no longer any mutual recognition, and Scottish goods could not pass into England or other parts of the United Kingdom in those circumstances? Would the same apply if the Food Standards Agency in England produced different rules to other parts of the United Kingdom? It is extremely important that we understand those impacts.

I will now speak briefly to my Amendments 20, 22, 26 and 45. I am extremely grateful for the extensive briefing I have obtained from the Law Society of Scotland and for its drafting of these amendments, which are probing in nature but address some key issues. Amendment 20 is a probing amendment to seek the Government’s interpretation of Clause 4(2)(b). Clause 4 purports to mean that certain regulatory divergences that currently exist will continue to be able to be enforced against goods produced in or imported into other parts of the United Kingdom and would not be able to be so enforced were they introduced after the mutual recognition principle comes into force. However, the Law Society of Scotland has noticed that, in order for a statutory requirement in a part of the United Kingdom not to be a relevant requirement for the purposes of mutual recognition, the conditions in subsection (2) must be met.

There are two conditions in subsection (2), and my comments will relate specifically to subsection (2)(b), which provides:

“The conditions are that, on the relevant day … there was no corresponding requirement in force in each of the other three parts of the United Kingdom.”


What provisions do the Government imagine will be captured by the current terms of Clause 4? For example, food and feed law is mainly derived from EU law, and, in terms of the European Union (Withdrawal) Act 2018, this body of law is retained EU law, implemented throughout the UK. Are Scottish food and feed regulations, and, by implication, all retained EU law, excluded from the application of the mutual recognition principle because there are corresponding requirements implementing the same EU obligation, albeit in slightly different terms, to fit into the relevant law in each of the other parts of the United Kingdom? How does the mutual recognition principle relate to common frameworks? My Amendment 22 simply has a consequential effect, following on from the deletion of Clause 4(2)(b), making the necessary changes there.

Amendment 26 probes the meaning of Clause 5(3), regarding the effect of a statutory requirement under Clause 6. It appears that Clause 5(3) would render a statutory provision in devolved legislation “of no effect”. This lacks clarity. Am I right in thinking that the statutory requirement is valid? Is it valid but cannot be enforced? Is it voidable? It is also not clear regarding the application, if any, of Clause 5(3) if the statutory provision is in an Act of Parliament that applies to England only. I would be grateful if the Minister would take this opportunity to clarify this.

The amendment applies the statutory language that exists in Section 29 of the Scotland Act 1998 to Clause 5(3) in an effort to bring clarity to the point. Section 29(1) provides:

“An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.”


It is not the intention of this amendment to amend the Scotland Act 1998 but rather to say that that Act provides, in my view, much clearer language than the Bill. These statutory provisions could be challenged by private parties and will presumably also be a basis for challenging devolved legislation. Assuming the inability to modify the Bill under Clause 51, it will in all cases prohibit legislation that is contrary to its principles. Presumably that is the intention, but it is not the clearest way that that outcome could have been achieved, so I am grateful for this opportunity to seek clarification.

Finally, Amendment 45 is a probing amendment, looking to understand a phrase the Government have used: “substantive change”. What do they interpret as substantive change in connection with changes to statutory requirements? I am grateful for this opportunity to speak to these probing amendments.

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

My Lords, Amendment 21 in my name is effectively consequential on the changes I have already proposed to ensure that the market access principles are only applied once regulations have been brought forward, relating to a specific type of goods, when it has proved impossible to reach agreement through the common frameworks process.

The Bill proposes that legislation already in place at the time Part 1 of the Bill comes into force cannot be caught by the market access principles—at least where the restrictions imposed by that legislation are not ones that exist across the United Kingdom. This amendment would simply apply that same principle in the context of a process whereby the market access principles could only be switched on by regulations approved by both Houses, meaning that restrictions to the exercise of devolved powers would only be switched on in specific areas where the Government have made regulations to that effect. In other words, the rules on non-discrimination would apply only where a devolved legislature sought to introduce new statutory requirements in the particular area covered by the regulations. This seems to be both logical and respectful of devolved competencies.

I also record my support for other amendments in this group, notably Amendments 7 and 8, which seek to limit the mutual recognition principle in ways that seem thoroughly appropriate, and Amendment 20 in the name of the noble Baroness, Lady McIntosh. This last amendment touches on an important point and would, on its own, if adopted, broaden the scope of the exemption for prior legislation. It seems to me—and please correct me if my understanding is wrong—that this would address one of my major concerns, which is that the legislation seeks to prevent regulation that increases standards but does not impede regulation that lowers them.

The Bill as currently constructed would mean that, if this Parliament decided to legislate in England for the current ban on the use of hormones in beef cattle to be removed, for example, then the fact that a ban had previously existed in Wales and Scotland could not be invoked to prevent the sale of such beef in those nations. This is because the condition in Clause 4(2)(b) would require the Welsh and Scottish Governments to demonstrate that a “corresponding requirement” had not previously existed in England.

In a letter from the Minister that I received just as we started this debate, he stresses, if I have understood it correctly, that a potential for harmful regulatory divergence did not exist during our membership of the EU, but, at the end of the transition period, that will change and create a significant risk of harmful divergence between the four nations. He goes on to write that the Government have consulted widely on the proposals and have had overwhelming support from businesses and industry organisations on the steps they have outlined to protect our internal market from discriminatory behaviours.

I would be most grateful if the Minister could kindly tell us, either today or in a letter following today’s debate, details of the results of that consultation because I think it is important that those of us speaking to amendments really understand the background of the results that came in. I will be most interested in the Minister’s reply to all the amendments in this group, particularly Amendment 20.

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[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have had a further request to speak after the Minister from the noble Baroness, Lady McIntosh of Pickering.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am struggling to understand the Minister’s reply on Amendments 26 and 45. I am particularly concerned about Amendment 26, which is a probing amendment and simply asks for greater clarity, which I do not think we have had. Is he saying that the statutory requirement has no effect? Does he mean that it is valid or not? Is it enforceable? I am trying to avoid a situation where there is any doubt whatever, and court action might be taken. I do not quite understand his answer that the possibility of court action is excluded if, in the view of others, a statutory requirement has effect and could, therefore, be actionable.

[Lord Callanan (Con)]

No, it does not mean that the requirement is to be treated as though it never had any legal effect. Rather, it allows the continued operation of the requirement, except to the extent that it has discriminatory effect.

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[Lord Callanan (Con)]

I apologise in advance if noble Lords are in for more technical explanations. We will take together the minor technical amendments in my name to Clauses 3 and 4. All involve drafting improvements or clarifying technicalities. None of these amendments results in a change of policy, but they need full and proper scrutiny in this Chamber and noble Lords deserve an explanation of the improvements that they make to the Bill.

First, I turn to Amendment 9. This clarifies Clause 3 by identifying what is a relevant requirement in relation to a specific case where particular goods are sold. Without this amendment, there could be ambiguity as to whether a requirement needs to apply to all sales of all goods to be a relevant requirement. For example, where a business has produced a tin of biscuits in Scotland and seeks to rely on the mutual recognition principle to sell them in England, this amendment makes it clear that the relevant requirements are those that would apply to the sale of the biscuits in England and to the equivalent, hypothetical sale of the biscuits in Scotland, Northern Ireland or Wales. Requirements that apply to other sales of other goods—for example, requirements that apply to the auctioning of a painting—would not be relevant requirements in this context. Without this amendment, there is a risk of legal uncertainty over which requirements are relevant. This could create confusion, costs and inconvenience for businesses.

Amendment 10 provides similar clarification. It emphasises that subsection (2), which defines and therefore enables one to identify a relevant requirement in relation to a particular sale, makes relevant requirements only in relation that sale. Requirements are not relevant in any general way; they are relevant only in relation to the sale in question.

Amendment 18 clarifies that Clause 4(1)(a) refers to a specific sale of goods, rather than a hypothetical sale of goods. It makes clear that we are referring to an actual sale of goods and not to a hypothetical sale. As a result, the amendment removes any potential ambiguity around which existing statutory requirements are excluded from the mutual recognition principle. This amendment also ensures consistency with Clause 3(1), as proposed to be amended by Amendment 9—also in my name. Once again, we are considering requirements which apply specifically to a particular sale—for example, the requirements that would apply to the sale of a tin of biscuits in England, as per my previous example, but not all requirements that might apply to any other sales of goods. This makes clear which statutory requirements might be excluded, if the conditions in Clause 4(2) are met.

Amendment 19 corrects a small drafting error in Clause 4(1)(a). This paragraph refers to “a” part of the United Kingdom when it should refer to “the” part of the UK mentioned in the opening words of the subsection. It removes any ambiguity around which part of the United Kingdom is being referred to in Clause 4(1)(a), so that there can be no doubt that when we are considering English requirements, we are considering how they apply in relation to a sale in England. Without this amendment, there could be confusion over whether we are referring to just those requirements which apply in England or to requirements which could apply in any part of the UK.

Finally in this group, Amendment 23 aligns the language used in Clause 4(2) and 4(5). Both provisions refer to a hypothetical sale on a particular day, rather than to an actual sale. These subsections set out the conditions for when an existing requirement will be excluded from mutual recognition. Both should refer to a hypothetical sale on the relevant day. This amendment clears up the ambiguity by making it clear that both subsections refer to a hypothetical sale, rather than to an actual sale. Aligning the language in this way will make the drafting of this clause clearer and will avoid any confusion over why the wording is different in Clause 4(2) and 4(5) when both should refer to a hypothetical and not to an actual sale.

Taking again the example of the sale of a tin of biscuits, Clause 4(2) and 4(5) refer to the statutory requirements around the sale of biscuits, which would have been enforced in different parts of the UK on the relevant day, which is the day before this Bill comes into force, if the tin of biscuits had been sold on that day. This means that we will always be talking about a hypothetical sale here, and the amendment to Clause 4(5) makes this clear. Without this amendment, it is not clear that Clause 4(5) is referring to a hypothetical sale, which may cause confusion. I beg to move.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am interested to know why the Minister felt that these amendments needed to be moved at this time; what provoked that? Furthermore, who decides—and in what circumstances—what is a hypothetical sale, as opposed to a real sale?

[Lord Liddle (Lab)]

I have no wish to add to the general confusion.

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Does the noble Lord, Lord Callanan, agree with his colleague in that terminology?

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I welcome this opportunity to agree with what has been said by previous speakers, and particularly thank those who have contributed to this debate through the 24th report of the Delegated Powers and Regulatory Reform Committee, and the noble Lord, Lord Fox, and the noble Baroness, Lady Andrews, for putting into effect the conclusions of that report. The report is indeed striking in its conclusions, and in particular in the power of the language used. I think students of constitutional law will be watching these deliberations very closely to see whether this is a new trend on the part of the Government or a one-off.

My understanding is that the Bill is in large measure to deal with the political fallout of the Government agreeing to the EU withdrawal agreement and the Northern Ireland protocol. Perhaps I am wrong, but that is my understanding. My further understanding is that, when Parliament agrees to delegate powers to the Executive, it does so on the strict understanding that the Government will act on behalf of Parliament with respect for the rule of law and parliamentary democracy. Clearly, in all five parts of the Bill, this is stretched to breaking point. As has been said, the reliance in the Bill on the sweeping Henry VIII clauses is breath-taking. So I entirely echo what has been said by previous speakers and find that I have great sympathy with the amendments.

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

My Lords, it is always a pleasure to follow the noble Baroness, Lady McIntosh of Pickering, and to agree with the amendments in the names of my noble friend Lady Andrews and the noble Lord, Lord Fox. For me, the Delegated Powers and Regulatory Reform Committee is particularly instructive, because it has issued a very scathing report which states quite clearly that, in the absence of a convincing justification for the Henry VIII powers in those clauses, the power is inappropriate and should be removed from the Bill.

The noble Baroness, Lady McIntosh of Pickering, said that perhaps the Government wish to use these powers to get their way in terms of the withdrawal agreement—an international agreement which they signed only one year ago with the European Union—and to undermine the Northern Ireland protocol, which in turn could undermine another international agreement, the Good Friday agreement. I say to the noble Lord, Lord Callanan, that the people of Ireland, north and south, who voted for that agreement and who by and large support the principle behind the Northern Ireland protocol—to prevent a hard border on the island of Ireland and to prevent any further turmoil, trauma, distress or levels of terrorism—will not take kindly to any of that.

I was also very taken with the words—referred to by the noble Lord, Lord Fox—of the noble and learned Lord, Lord Judge, a few years ago about parliamentary sovereignty. Yes, parliamentary sovereignty is the antithesis of executive sovereignty, and I do recall, as a former Minister in the Northern Ireland Executive, that I was always told that the Executive are accountable to Parliament. Can the Minister advise the House whether there has been consultation of any kind with the devolved Administrations? I know that Scotland and Wales have so far refused to give legislative consent to the Bill, because they clearly see the powers within it as totally egregious in terms of what they can do, and in terms of no consent being required from them and no real consultation. I also know that in the Northern Ireland Assembly there was a majority vote against the UK Internal Market Bill.

I believe that there are three different issues with these powers. Giving too much power to Ministers to change the rules of the UK internal market via regulations without proper parliamentary scrutiny is wrong. It is interesting to note that the regulations in these clauses require first a consultation with the devolved counterparts, so there is a need to obtain their consent to such regulations, but that consent is clearly absent. That is what Amendments 13 and 28 are all about.

The Bill also has an extremely narrow understanding of exceptions to these principles. If we compare it with the EU internal market where other objectives such as environmental improvement can be used, at least in certain cases, to restrict mutual recognition and keep more ambitious domestic rules, we see that the Secretary of State also has the power to add, vary or remove exceptions, as set out later in Clause 8 for non-discrimination and in Clause 10 for all the principles to which Amendment 47 refers.

There is no doubt that the UK Internal Market Bill will become a protected environment that the devolved Administrations will be unable to repeal or modify. That is why these amendments tabled by the noble Baroness, Lady Andrews, and the noble Lord, Lord Fox, are apt and timely. They should be supported because both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee believe that the use of these powers is wrong.

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Moved by

[Baroness McIntosh of Pickering]

14: Clause 3, page 3, line 27, leave out subsection (9) and insert—
“(9) Regulations under subsection (8) are subject to super-affirmative resolution procedure (see Schedule (Super-affirmative resolution procedure)).”Member’s explanatory statement
This amendment ensures that regulations under subsection (8) are subject to super- affirmative resolution procedure and introduces the supportive Schedule in respect of super-affirmative resolution procedure.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am grateful to have this opportunity to speak to these amendments, which in large measure refer to the possibility of introducing the super-affirmative resolution procedure in the parts of the Bill where it is deemed most necessary. Again, I thank the Law Society of Scotland for briefing me so well and for assisting me in drafting these amendments for our consideration.

Paragraph 31.14 of Erskine May states:

“The super-affirmative procedure has been implemented in enactments where an exceptionally high degree of scrutiny is thought appropriate, for instance, for the scrutiny of certain items of delegated legislation made, or proposed to be made, under ‘Henry VIII’ powers. Sometimes it is the only procedure available and sometimes the responsible Minister is given a choice of order-making powers that includes the procedure, a choice that can be constrained at a preliminary stage by either House.”


I remind noble Lords that the super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. It is important to note that the power to amend the proposed instrument remains with the Minister.

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[Lord True (Con)]

My Lords, I note and hear what the noble Lord has said, but I think he would allow me not to enter into speculative discussions. I have put to the Committee a response to a question—a response provided to me to advise the Committee. As for its application, that is a matter that would be speculative and could be considered further. I will stand by the words that I put before the Committee.

[Baroness McIntosh of Pickering (Con) [V]]

I thank all noble Lords who have spoken in this debate. I was grateful for the opportunity to probe the extent to which this procedure of super-affirmative resolution may be more appropriate.

My noble friend Lord Naseby might not think that this is a matter of life and death, but if you are dealing with perishable goods—particularly animals and their movement over what will be internal borders—that might be the case. I part company with my noble friend on the EU-Japan agreement; it actually does not go that far. My understanding is that what was heralded as a bigger market for cheese, which will be very welcome, relies on the EU allowing us to use what is left of its quota that it does not wish to use. It is the leftovers—the crumbs under the table. It could be very helpful to our cheese producers, but it is not quite as straightforward as one might first think.

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The House is really dripping with irony today, as noted earlier, with the Government and their allies lauding the benefits of free unencumbered trade while slicing that off from the continent. I look forward to the Minister’s answer to how dictatorship from Westminster over the other nations squares with taking back control.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am delighted to speak to a number of amendments in my name but also to lend my support to Amendment 16, which I have co-signed, in the name of the noble Baroness, Lady Hayter of Kentish Town. It is essential that we seek the consent of the devolved Administrations in these circumstances, rather than just simply consult, for the reasons the noble Lord, Lord German, gave in moving his Amendment 15 and those alluded to by the noble Lord, Lord Thomas of Gresford, in the earlier debate. I hope that the Government and my noble friend the Minister will look favourably on the request that we should seek the consent of the devolved Administrations.

Again, I am grateful to the Law Society for its drafting of and briefing on the amendments I have put forward. In Amendments 17 and 31, I am seeking greater transparency and inviting the Secretary of State to publish the results of the consultation and give reasons for any decision reached.

I pray in aid the conclusions of the Constitution Committee report on the Bill, at paragraphs 76 to 79, which criticise the powers set out in Clause 3(8) in particular. Paragraph 78 states the following:

“The Government should explain how the consultation process for amending the relevant requirements for goods would work and how disputes would be resolved.”


At paragraph 79, it says:

“We agree with the DPRRC that the power in clause 3(8) has not been justified and should be removed from the Bill.”


I seek to oblige the Secretary of State to consult the devolved Administrations but also to go further and make public, in the interests of transparency, the results of the consultation and the reasons for any decision taken on the basis of that consultation.

Similarly, my Amendment 42, asks for consultation with the devolved Administrations in a host of circumstances, before, as my explanatory statement refers to,

“amending the list of legitimate aims.”

Amendment 43 says that, in relation to Clause 8:

“The Secretary of State must publish the results of the consultation and give reasons for any decision reached.”


Amendment 49 seeks consultation with the devolved Administrations before amending Schedule 1. Amendment 62 seeks consultation with the devolved Administrations before preparing guidance under Clause 12. Amendment 65 is a consequential amendment. Amendment 75 seeks that consultation be sought with the devolved Administrations before amending Schedule 2.

Finally, Amendment 100 seeks consultation with the devolved Administrations before the definition of “legitimate aim” in Clause 26 is amended. I refer here to both the definition of “legitimate aim” being amended and to the guidance having earlier been published. With those remarks, I urge my noble friend and the House to look favourably on these amendments.

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Moved by

[Baroness McIntosh of Pickering]

32: Clause 7, page 5, line 41, leave out “actual or hypothetical”
Member’s explanatory statement
This amendment probes the description of local goods in Clause 7(3).

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I perhaps need to correct something. I may have mis-spoken when I spoke to Amendments 17, 31 and 42. Of course I meant to refer to the devolved Administrations, as is written in the amendments. I apologise if I did not say that on every occasion, but obviously I was referring to consultation with the devolved Administrations. I am grateful for the opportunity to correct that.

I am delighted to have a short debate on whether Clause 7 should stand part and, within that, Amendment 32 in my name. Clause 7 makes provisions relating to “direct discrimination”, and, among these, Clause 7(1) sets out:

“A relevant requirement directly discriminates against incoming goods if, for the reason that the goods have the relevant connection with the originating part, the requirement applies to, or in relation to, the incoming goods in a way—(a) in which it does not or would not apply to local goods, and (b) that puts the incoming goods at a disadvantage compared to local goods.”


Subsection (2) states:

“Goods are put at a disadvantage if it is made in any way more difficult, or less attractive, to sell or buy the goods or do anything in connection with their sale.”


The particular difficulty I have in Clause 7 is subsection (3), and in particular:

“‘Local goods’, for the purposes of this section, are actual or hypothetical goods”.


The purpose of Amendment 32 is to probe the description of local goods and, in particular, what actually constitutes “hypothetical goods”.

Again, I am grateful to the Law Society of Scotland for its help in briefing and preparing me and drafting this amendment. It has concerns about the definition of “local goods” within this purpose, including actual or hypothetical goods. It is very strange that there is no definition of hypothetical goods, and the opportunity that my Amendment 32 creates is to simply ask the Government what they mean by “hypothetical goods” and why on earth we are using such an expression in these circumstances. I am sure it will give my noble friend the opportunity to return to his favourite tin or box of biscuits in this regard.

I will also raise a question that my noble friend Lord Callanan did not answer in summing up an earlier debate, when I asked who decides what is hypothetical? So I will take this opportunity briefly to ask my noble friend the Minister why we have inserted “hypothetical goods” in this clause? What on earth does this mean, and who determines what is hypothetical and what is real? With those few remarks I beg leave to move Amendment 32.

[Lord Naseby (Con) [V]]

My Lords, I cannot presume to know what my noble friend on the Front Bench is going to define as “hypothetical”, other than to say that I spent 15 years of my life in the marketing profession, as I have already said to your Lordships. In that time, I worked with food manufacturers and pharmaceutical, agrochemical and household-product companies. Each of those markets, and many others, will have on its list test-marketing activities with different strengths, varieties, perfume levels and activity levels: a whole host of variables.

The companies will not know which is the actual product they are going to market—and they might not even market it at all—so, at a certain point in time, those products are hypothetical. They are not registered under a trade name: they are test markets and, quite frankly, that is the normal process for consumer goods. So, as far as I am concerned—and I do not think that I need to speak at great length on this—this is perfectly understandable to anybody who has worked in the pharmaceutical, agrochemical, household-product or food world, or any other product category.

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[Baroness McIntosh of Pickering (Con) [V]]

I am grateful to all noble Lords who have contributed to this little debate, which I hope wins the prize for the shortest debate during the passage of the Bill. I am grateful for the attempt of my noble friend Lord Naseby to give us the benefit of his marketing experience and take a stab at what is meant here, but I am very much in line with the noble Lords, Lord Fox and Lord Stevenson, in that I think it would help to have an explanation in the Bill. Many Bills include definitions, and it would help if this was one such.

One hypothetical example that springs to mind is that, in the days before cloning, one would never have thought that a cloned animal could be bred in the way that Dolly the sheep was by the Roslin Institute, which is part of the University of Edinburgh. As my noble friend has gone to the trouble of explaining—I hope I understand it a little better—in the final analysis, it is for the courts to determine. It is regrettable that we do not have a definition in the Bill that would save court time and legal fees, going forward.

I very much enjoyed the contribution from the noble Lord, Lord Stevenson, particularly his hypothetical question about how this would apply to virtual sales. I do not think we have had an answer to that, so I would be grateful if the Minister could write to us.

Generally, the difficulty I have with Clause 7 has been eased, to some extent, by the explanation from the Minister. As my noble and learned friend Lord Mackay said in an earlier debate, a lot of EU law has been passed over and retained. The non-discrimination part of EU law, under the treaties, is on the grounds of nationality and is inherently clearer. The complicated process we have come up with in Clause 7 could be summed up by how no one can discriminate against a good—or a service in a later part of the Bill—simply because it comes from a different nation of the United Kingdom. That could have been explained more clearly, but I am grateful for the opportunity to have had this little debate and the explanation, as far as it went, from my noble friend Lady Bloomfield. At this stage, I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

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[Lord Hope of Craighead (CB) [V]]

My Lords, I am in sympathy with the words just uttered by the noble Lord, Lord Young of Cookham, but I wish to speak to my own amendment, Amendment 36, and I am grateful to the noble Baroness, Lady Finlay, for her support.

My amendment is concerned with the meaning of words and, to some extent, achieving compatibility, as far as possible, with devolution legislation. It is directed to the definition of the expression “legitimate aim” in Clause 8(6), which sets out two aims, one of which is

“(a) the protection of the life or health of humans, animals or plants”.

If the draftsman of the Bill was to look at Part 1 of Schedule 5 to the Scotland Act 1998, under heading C5 he would find similar words set out in one of the exceptions to the reserved powers; that is, exceptions which mean that the things described are within the devolved competences of the Scottish Parliament. It refers to the

“protection of animal products, plants and plant products for the purposes of protecting human, animal or plant health, animal welfare or the environment.”

My point is that what one finds in subsection (6)(a) takes part of what is found in that provision but misses out some other important words. The phrase I quoted from the Scotland Act draws a distinction between animal health and animal welfare. There is some basis for that distinction because there are things that are designed to achieve the welfare of animals that are not directly related to their state of health. So there is some force in considering the addition of “animal welfare” to the formula in that provision. It also refers to the environment, and nowadays, thinking of all the concerns we have about the environment, I would have thought one could, without damaging the purposes of the Bill, include the words “protection of the environment” within the formula of the clause.

These are drafting points. I draw them, if the Minister will forgive me, more to the attention of the Bill team and the draftsman of the Bill to see whether he can find room for including words in my amendment. It is to make sure that they cover what I take to be the broad aim of the language; it is the kind of discussion we might have had, had we been given time, around a table, discussing how those particular provisions should be framed.

I am not trying to damage the Bill or adjust it in any more significant way; I just want to see that the language used covers the aim of the provision fully and completely. It is on that basis that I brought forward this amendment.

[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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Moved by

[Baroness McIntosh of Pickering]

66: Clause 14, page 9, line 13, leave out subsection (4) and insert—
“(4) “Sale” has the meaning given in section 61 of the Sale of Goods Act 1979.”Member’s explanatory statement
This amendment brings Clause 14 into conformity with the existing law of sale.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am grateful for this opportunity to speak also to Amendment 67. I am grateful to the Law Society for its help, as with other amendments, including Amendment 37, in preparing and drafting them.

The amendment looks at bringing Clause 14 into conformity with the existing law of sale. The reason for this is that the Sale of Goods Act 1979 defines a contract of sale of goods as,

“a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.”

It further defines an “agreement to sell” as a contract of sale whereby,

“the transfer of the property in the goods is to take place at a future time or subject to some condition later to be fulfilled”.

The introduction of a new definition of “sale” as set out in the Bill, without reference to the Sale of Goods Act 1979, could produce confusion and lack of clarity among traders and consumers alike. I should be grateful if the Minister could explain the reasons for the Government departing from the definitions of “sale” in that Act to avoid any confusion.

Similarly, Amendment 67 would leave out Clause 14(6)(c). This has the effect that I have just set out. Clause 14(6) applies to other means of transferring possession or property unrelated to sale, including barter or exchange, leasing or hiring, and gift. I would be grateful if the Minister could explain why the Government are seeking to extend the Bill to these transactions, in particular to gifts, which transfer ownership of the item donated without payment or consideration. With those few remarks, I would be grateful to hear from my noble friend why these changes are being sought in the Bill. I beg to move.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

Having looked at that question, I would rather write to the noble and learned Lord giving a full answer—but I will do so very speedily, before we come to the next stage.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am grateful to have had this little debate. I am particularly grateful to the noble Lord, Lord Purvis, and the noble and learned Lord, Lord Falconer, for identifying even more issues than I and the Law Society of Scotland had done.

I thank my noble friend Lady Bloomfield for her answers, as far as they went, but, bearing in mind in particular the way that procedure operates in this place as opposed to the other place, it is extremely important that we have a very full letter. Perhaps she could write to the three of us who have contributed, as well as putting a copy of her letter in the Library, before we get anywhere close to the next stage.

I would like to, and still do not, understand why we are bringing in a new definition of “sale” that has a different meaning from that in the Sale of Goods Act 1979. I do not know whether my noble friend is saying that we are widening the definition to include what is generally understood in EU law, but I do not recognise any of this from what is before us in the Bill, so I would be grateful if my noble friend could write to me and say what, precisely, is the legal basis for widening and changing the definition in the way that the Government have in that regard.

I am grateful to the noble Lord, Lord Purvis, for the definitions that he gave and the illustrations that he posted as being a particular problem north of the border. I am also grateful to the noble and learned Lord, Lord Falconer of Thoroton, because I think this is absolutely vital: none of us here this evening wants to put up barriers to trade between the four nations of the United Kingdom. However, it is absolutely essential that we have clarity on the face of the Bill for the reasons that the noble and learned Lord, Lord Falconer of Thoroton, has given: we do not wish to have to resort to private-law actions before the courts—that, surely, is not acceptable. I quite understand that the Government have had to bring this Bill forward in something of a hurry, but I am here this evening to help them identify these issues.

Certainly, I am now even more confused as to why Clause 14(6)(c) has been introduced, particularly as regards the noble and learned Lord, Lord Falconer of Thoroton, referring to Clause 8(6) in this regard. However, rather than delay proceedings this evening, I will say that it would be extremely helpful to have a written understanding from my noble friend Lady Bloomfield as to why we are in this position this evening. With those remarks, I beg leave to withdraw Amendment 66 at this stage.

Amendment 66 withdrawn.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

The noble Lord, Lord German, is not taking part in this group, so I call the next speaker, the noble Baroness, Lady McIntosh of Pickering.

[Baroness McIntosh of Pickering (Con) [V]]

I will speak briefly to several amendments in this group. Regarding Amendment 70, again I raise the question of substantial change, and whether that means a “significant amendment”. I am seeking clarification on the part of the Bill to which this refers.

Amendment 81 would delete “of no effect”, as would Amendment 84. Can the Minister say what that means when replying? It is very unclear. I am again grateful to the Law Society of Scotland for its help in putting forward and drafting these amendments.

In Amendment 92, what is meant by “less attractive”? In my view, to put a service provider at a disadvantage is a serious matter in a Bill such as this. Using a phrase such as “less attractive” as part of the assessment of disadvantage is subjective and lacks clarity. I would be very grateful if, when summing up, the Minister could just clarify what his understanding of “less attractive” is.

I turn to my Amendments 103 and 103A. Amendment 103, which would take out “mainly” and insert “substantially”, is a probing amendment to understand the meaning of “mainly” in connection with the gathering of experience—for example, in relation to Clause 23(7). In my view, Clause (23)(7)(b) requires further definition. How should “mainly” be measured? Will it be by the time spent as a proportion of the whole qualifying experience or by some other measure? How will this experience be recorded and verified?

The same questions arise in regard to that aspect of the experience obtained elsewhere than in the UK. The purpose of my Amendment 103A is to ask whether we are excluding all other experience than that obtained in the UK. I pray in aid my own experience, where I practised law in Brussels in two different situations. Would that experience, and the experience of others as well, qualify for the purposes of the Bill? I am grateful for the opportunity to move these probing amendments and I look forward to the Minister’s clarification of these points.

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

My Lords, I want to speak to this group of amendments for two simple reasons. First, services are incredibly important to the UK and to all four nations within it. As I said on Amendment 4, they are vital to the success of our economy, making up more than 80% of GDP. They range from financial services, mentioned by the noble Baroness, Lady Hayter, which I believe now provide more jobs outside London than in the City, to arts and entertainment of every kind. Invisibles, including legal and accountancy services where we have world-leading expertise, represent more export value than goods.

Secondly, I am mystified by the clauses on services, which are the subject of these amendments. The arrangements seem to work well currently. No doubt some protection is provided by the carryover of EU rules under the withdrawal Acts, which are relatively light touch because attempts to align local rules within the EU on services were also light touch.

We are forcing on to the service industries apparently new rules and new exemptions linked to the principles of mutual recognition and non-discrimination. There could potentially be a whole load of bureaucracy and regulation associated with this activity, which business, the service sector and regulators will need to understand. Lobbyists may try to secure new rules that benefit narrow interests, as they do in Brussels now. Moreover, as someone who takes a morbid and forensic interest in these things, I find the impact assessment—welcome though it is in principle—extremely disappointing. These are usually very helpful to Committee discussions, but the assessment asserts on page 2 that

“the cost savings to businesses, consumers and the wider UK economy would be expected to significantly offset any costs imposed by this legislation, translating into a net benefit to the UK economy.”

The small and micro business assessment on page 37, a section to which I always pay the greatest attention as small business is the lifeblood of this country and key to its dynamism, says:

“Due to a lack of historical need, there is a shortage of data on businesses trading between different parts of the UK. It has therefore not been possible to identify the volume of such businesses who operate across borders, nor the extent to which they benefit because of the hypothetical nature of the future regulatory regimes.”


So we have no evidence to justify the new powers, nor an assessment of their consequences. We almost seem to be creating borders for services where none existed before, which is surely the opposite of what we want.

We need to understand better how this part of the Bill will work, but the material presented so far has stumped me, as a business operator who has worked in various industries across the UK and the world. In that connection, let me ask a simple question on marketing activity, which is not listed in the schedules: would I be permitted to discriminate in favour of a company that was Welsh to help with the marketing of Welsh products or would I have to take time to listen to pitches from English-owned—or, indeed, US or Canadian-owned—companies?

In response to a number of understandable probing amendments in this group, can my noble friend the Minister kindly justify the provisions simply, with some good worked examples relating to significant service sectors, and assuage my fears? I must say, at this point in time, I am confused and therefore concerned.