United Kingdom Internal Market Bill

Baroness McIntosh of Pickering Excerpts

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

It is not too late for the Government to salvage this situation. The Minister has heard many persuasive arguments from many senior Members of this House already this afternoon. Ministers in this House are always trusted to do their best to prevent the worst consequences and to act on principle. This amendment offers the Government a dignified option that would remove the threat of a major national disruption. I have no doubt that the House will support the amendment this evening. I hope, with all sincerity, that the Minister can show some flexibility.

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

My Lords, it is a pleasure to follow the noble Baroness, Lady Andrews, and I would like to congratulate her and her committee for all the work they have done in connection with common frameworks. I would also like to express my support for the amendments in this group and, in particular, Amendment 1, for the eloquent reasons set out by the noble and learned Lord, Lord Hope of Craighead, and my noble and learned friend Lord Mackay of Clashfern. I would also like to recognise and pay tribute to the work they did in instigating the common frameworks, and to note the role of the Joint Ministerial Committee on EU Negotiations in agreeing in 2017 to create the common frameworks.

If the noble and learned Lord, Lord Hope, is minded to press this amendment to a vote, I intend to support it, for two principal reasons. One is the advanced stages of discussions on the common frameworks that have been reached, as a number of noble Lords have said, and which have proved quite fruitful; the other is the lateness of this Bill and the proceedings, and the poor consultation of the devolved nations.

In progressing these arguments, I would like to refer briefly to the eighth European Union (Withdrawal) Act and Common Frameworks report and the revised analysis, which were published on 24 September. They go into some detail about the policy areas that have been covered and conclude that, in total, there are 40 active framework areas—18 legislative and 22 non-legislative. They go on to state that in some instances, policy areas include a mixture of reserved and devolved competence, including where technical standards that derive from EU law are relevant. These policy areas include four that the UK Government believe are reserved, which are subject to ongoing discussion with the devolved Administrations.

The noble and learned Lord, Lord Hope of Craighead, in moving his amendment, and the noble and learned Lord, Lord Mackay of Clashfern, and others have referred to the environmental aspects. I have a particular interest in this as I am fortunate enough to be a member of the EU Environment Sub-Committee. Paragraph 1.21 of the latest report, to which I have just referred, states:

“There have been regular Frameworks Project Team meetings between officials in the UK Government and the devolved administrations, where productive collaborative work continues.”


Examples are then given. Paragraph 1.22 states:

“Multiple meetings have taken place between officials in the Department for Environment, Food and Rural Affairs (DEFRA) and their counterparts in the devolved administrations. These include working group meetings … on Animal Health and Welfare,”


plant health,

“Waste … Chemicals and Pesticides, and Fisheries.”

The noble and learned Lord, Lord Hope of Craighead, specifically mentioned the need to recognise conditions relating to the environment where divergences and different threats need to be established. He noted that there is no specific reference to the environment in the exclusions given in Schedule 1.

As I mentioned at Second Reading, for all these reasons it is bewildering that the Government have parted from the very advanced discussions of the common frameworks process. I would like to pay tribute to and thank those involved in them, particularly the Defra officials, who, in addition to all they have had to deal with at this time, have worked closely with their counterparts in the devolved Administrations.

Unless I hear a very strong argument from the Minister as to how the progress that has been made can be accommodated, I will support Amendment 1 and the other amendments in this group.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I am one of no fewer than seven members of the Common Frameworks Scrutiny Committee, including our chair, the noble Baroness, Lady Andrews, who we have already heard from, and the mover of this amendment, who are participating in this debate, which shows our interest—one of those interests you do not need to declare. I call it a debate but I fear that, sadly, even more so than usual, because of the hybrid nature of our proceedings, it is more a series of statements. That is a great pity and I look forward to the day when we can get back to all sitting round this Chamber and having a proper debate.

I also speak as a strong supporter of devolution since the early 1960s, when, as some of my colleagues here, who are nearly as old as I am, will recall, to be a supporter of devolution was not the most popular thing to be in the Labour Party. We had to work very hard to persuade the party to move in that direction. I say that now to put into context what I will say later, but I sound a cautionary note. People sometimes get on to a bandwagon, and it goes faster and faster, more and more people jump on, and they do not always know which direction it is going in and what the consequences and all the implications are.

We have had devolution for a very long time in Scotland, but mostly it was administrative devolution. We have had a different educational service for a long time. As my noble and learned friend Lord Falconer and the noble Baroness, Lady McIntosh, who is a Scots advocate—not practising, as she keeps reminding us—could tell us, we have had a Scots law system that is entirely different. We have had that for decades—indeed, in some cases for centuries. However, for so long, legislation in Scotland was dealt with at Westminster right at the end of lots of other legislation, as a sort of afterthought or codicil. There was little time spent on it, or interest in it. I was a Member of Parliament, along with the noble Lord, Lord Cormack, and others who will remember that it was not the main business we were dealing with. That is why we pushed hard.

The main argument in favour of a Scottish Parliament was to provide democratic accountability in relation to the administrative devolution that had already taken place. But we always understood—this is what I think some people have forgotten—that Westminster remained and remains ultimately responsible for the good government of the whole United Kingdom. That is something never to forget. Some people want us to forget it, but it is very important. We have a sort of quasi-federal system. It was supposed to develop throughout the whole United Kingdom, but the proposal that the Labour Government put forward for devolution in the north-east of England was ill thought out. It was put forward at a bad time and did not get through. Had we had devolution for the whole United Kingdom things would be very different from the way they are at the moment.

The other thing is that devolution is completely different from independence. The two are completely separate concepts, and it is important never to forget that. It is in the interests of the SNP, the nationalists, to obfuscate, to muddy the waters, to pretend that one and the other are very similar, and to say, “Don’t worry”. Boris Johnson, our Prime Minister, recently showed that he does not understand devolution, but beware: equally, the SNP does not want us to understand devolution and is not using it as it is meant to be used, to benefit the people and improve the conditions of the people in Scotland.

Someone—I think the noble Lord, Lord Bourne—raised earlier that when we have Governments of similar political persuasions in Scotland and in the rest of the United Kingdom there are sometimes substantial difficulties. I know exactly that situation: I was Minister of State for Scotland in the United Kingdom Government and I dealt with an Administration in Scotland that was run by the Labour Party in coalition with the Liberal Democrats. We worked very well together. I used to meet weekly with Ministers in the Scottish Government. We had discussions about free personal care and how it should be funded. They were good, positive discussions and we all understood the position exactly.

I acknowledge as much as anyone—after all, I was a Member of the Scottish Parliament for four years, so I saw it as an MSP—the importance of involving the Scottish, Welsh and Northern Irish Parliaments and Governments, consulting where appropriate, giving them powers, allowing them total control over all the devolved areas and having them involved in other areas through the legislative consent Motions and the Sewel convention. I know that, and I felt it myself. But it is equally important to remember that each of the devolved Governments are not always right. Sometimes I think that some people assume that they are always right. I worry sometimes that we in Westminster do not want to be seen as big brothers, or to impose on or upset them, so we take what they say as gospel. We give them a veto where it is not appropriate. Sometimes I wonder whether those who came late to supporting devolution are the strongest advocates of taking account of their concerns: it is the zeal of the convert, perhaps.

--- Later in debate ---

[Lord Carlile of Berriew (CB) [V]]

My Lords, it is a pleasure to follow the speeches by the noble Baronesses, Lady Andrews and Lady Meacher, who have spoken with such cogency. I agree with them.

My name appears on Amendments 2, 7, 12, 17, 31 and 42 for two reasons. The first is that I was there at the beginning of devolution in Wales and have watched it develop in ways that were described earlier this afternoon by other noble Lords. It has been successful; it has brought the people of Wales much closer to government and resulted in faster decision-making than we ever had in the old days when the nearest we had to devolution, when I was a Member of another place, was the Welsh Grand Committee.

The second reason why I speak in favour of these amendments is a more general one. I have watched with surprise, and sometimes despair, the galloping tendency of government—and it has been successive Governments—to take more executive power through secondary legislation. Henry VIII must be very surprised, if he is aware of it at all, that his powers are being asked for so frequently and when they are not necessary.

I want to focus on Amendment 7 for I, like the noble Baronesses who have just spoken, welcome the addition of the name of the noble Lord, Lord Callanan, to Amendment 2. That is truly welcome. When I first saw it, I thought it showed a thorough recognition of the issues at stake because it is a significant concession. All that we are asking on this side of the debate is consistency with regard to the non-discrimination principle. That principle is of as fundamental importance as the mutual recognition principle for markets to which the noble Lord, Lord Callanan, has signed up in Amendment 2. They are plainly legislative siblings—indeed, they are almost identical twins—since they have a great deal of political and legislative DNA in common. Certainly they are equally important, and they are of equal moment in the devolved parts of the UK. I therefore feel bound to say that I am bemused by the lack of logic displayed by the Government’s failure to agree to Amendment 7 having agreed to Amendment 2.

I was talking earlier about the way in which devolution has worked. I can put that point very simply. These days in Wales, about which I know more than Scotland, legislative changes are brought about in real time as decisions become necessary. They are not always right—legislative changes are never always right—but at least there is an understanding by the public, those involved in politics in Wales and public servants in Wales that it is possible to make change. By that process, one has given a new self-respect regarding the way in which Wales is governed to elected Members, public officials and those who elect the elected Members.

What is still in Clause 6, the requirement for consultation without consent, is, unfortunately, a fig-leaf. It does not provide any reality to the role of Wales—on which I speak particularly—in this process because it can be overridden. Yes, reasons have to be given, but it is not very difficult to construct reasons. It relegates the devolved regions to a negligible role on matters directly affecting their interests. If it were necessary to do that, if that relegation could truly be demonstrated intellectually and logically as necessary, then I would be willing to support it, but I see no such explanation. Allowing executive powers in this way goes far beyond what is necessary.

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

My Lords, I am delighted to follow the noble Lord, Lord Carlile of Berriew. I congratulate the noble Baroness, Lady Andrews, and other noble Lords on tabling these amendments. I thank my noble friend Lord Callanan for supporting Amendment 2 and, in particular, for adopting government Amendment 35 as his own. I thank the Law Society of Scotland for its help, both in briefing me and in helping me to draft an earlier form of this amendment. I want to single out for praise Michael Clancy, whom I have known for many years. He works tirelessly on behalf of the Law Society of Scotland, and Scotland more broadly, to ensure that both Houses of Parliament and other sectors of Scotland are in tune with the constitutional implications of their thinking. I also thank my noble friend Lord Callanan for tabling government Amendments 29 and 47. They are inclusive in reaching out to consult the devolved Administrations.

Amendment 2 lays to rest the dangers of many of the original provisions in this Bill—particularly in relation to secondary legislation and Henry VIII powers— that did not find favour with your Lordships’ House. I remind the House of my interest as a non-practising member of the Faculty of Advocates. I shall pursue a similar line of thought to that expressed by the noble Baroness, Lady Andrews, in moving Amendment 2. I welcome government Amendments 29, 35 and 47, but perhaps we need to persuade the Government to move similarly further in other parts of the Bill. I shall seek to do so when the time comes. I congratulate my noble friends Lord Callanan and Lord True on their letter and thank them for listening to our concerns.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is always a pleasure to follow the noble Baroness, Lady McIntosh of Pickering. The noble Baroness, Lady Andrews, made a superb opening speech. I also agree with everything said by the noble Baroness, Lady Meacher. They were two superb speeches.

I want to raise something that the noble Lord, Lord Cormack, said in the last debate and with which I strongly disagree. He said that there is no debate in this House. This is an absolute fallacy. A normal debate is when one side puts its argument and the other side responds. What the noble Lord meant by “lively debate” is rude interruption. I do not see why we should accept that as normal debate; it simply is not. When I was first in this House, I found it extremely difficult because some rather nasty Peers interrupted my early speeches. It was very distracting for me and for those listening to me. I disagree completely with that concept of a debate. The reason we have no debate in this House is that we all agree that the Government’s legislation is rubbish. That is why there is no argument. Even the noble Lord agrees with the noble Lords, Lord Foulkes and Lord Fox. We are all agreeing, apart from—well, sometimes the Minister agrees.

How dare anyone suggest that people in this Chamber have more of a right to speak than those outside? I have kept away from this House because I did not want to risk my life or other people’s. I care about this very much. Why should people in this red and gold bubble think they are entitled to a different sort of debate? I am here now only because I am so angry about some of the Bills coming through and I cannot express my fury well enough virtually and remotely; it does not come across through the screen. I do not want to be here. I am here only because it is the best way to get my point across. Those staying away are being more rational.

--- Later in debate ---

Moved by

[Baroness McIntosh of Pickering]

6: Clause 5, page 4, line 29, after “part” insert “only”
Member’s explanatory statement
This amendment clarifies the meaning of Clause 5(3) regarding the effect of a statutory requirement under Clause 6.

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

My Lords, it gives me great pleasure to speak to and move Amendment 6, which I hope is self-explanatory. It seeks to clarify the meaning of Clause 5(3), regarding the effect of the statutory requirement under Clause 6. It should have read, just for greater clarification, “A relevant requirement (see section 6) is of no effect in the destination part but only if, and to the extent that”. That is a compromise we reached for greater understanding of the text.

The effect of Clause 5(3) will be to render a discriminatory statutory provision in UK or devolved legislation of no effect. I warmly thank the noble Lord, Lord Foulkes, for co-signing this amendment. In Committee, we had reservations about the meaning of “no effect”, because it lacked clarity. That was the view put forward by the Law Society of Scotland, which has helped me to draft this amendment.

My noble friend Lord Callanan confirmed in Committee that:

“Clause 5(3) will operate so that any future requirements that fall within the scope of the non-discrimination principle will be of no effect to the extent that they are discriminatory. For the benefit of the lawyers, this does not mean that the requirement is to be treated as if it never had any legal effect. Rather, it allows the continued operation of the requirement, except to the extent that it has discriminatory effects.”


The amendment therefore seeks to emphasise that the lack of effect relates only to the discriminatory element of the statutory requirement and does not otherwise affect the validity of the requirement. I hope that my noble friend will take the opportunity to confirm that that is the case.

There is also concern about the application of Clause 5(3) to a statutory provision in an Act of Parliament. My noble friend Lord Callanan confirmed that:

“As the Bill deals with trade across the whole of the United Kingdom, the intention is that this will apply to all legislation: secondary legislation, primary legislation passed by devolved legislatures and legislation passed by the UK Parliament.”—[Official Report, 28/10/20; col. 251.]


Under Clause 49, legislation means, inter alia, primary legislation, which includes an Act of Parliament. Therefore, we know that this provision means that such an Act will be of no effect to the extent that it is discriminatory under the Bill. I am minded to repeat the words of the noble Lord, Lord Beith, who mentioned that secondary legislation can be open to interpretation by the courts. I would be most grateful if my noble friend could clarify and further benefit us with his understanding of this provision.

I also comment briefly on Amendment 24 in the name of the noble Baroness, Lady Ritchie of Downpatrick, and others, with which I have some sympathy, as it ensures continued compliance with the principle of non-regression in Article 2 of the Northern Ireland protocol. That is a worthy aim, and I admire the enthusiasm and energy with which the noble Baroness, Lady Ritchie, has pursued this in the interests of her nation. With those few remarks, I beg to move and wait to hear the response of my noble friend to this little debate.

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

My Lords, I speak in support of both amendments in this group. The noble Baroness, Lady McIntosh of Pickering, has already explained the purpose of Amendment 6. Amendment 24 is in my name and those of the noble Baronesses, Lady Suttie and Lady Bennett of Manor Castle, and the noble Lord, Lord Hain.

We have been contacted by the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission, which have agreed to act as a dedicated mechanism responsible for the monitoring, supervising, advising and reporting on and enforcing the UK’s commitment, under Article 2 of the Northern Ireland protocol to the withdrawal agreement from the end of the transition period. They believe that this amendment is needed to ensure that the Bill is brought into compliance with the UK’s obligation under Article 2 of the protocol to the EU/UK withdrawal agreement.

The problem with the Bill as currently drafted arises when Clause 5 is read in conjunction with Clause 6. The commissions’ research only came to light while we were in Committee, as they were awaiting senior counsel’s advice, hence the only opportunity to have brought forward this amendment is now, on Report. I thank all noble Lords who have signed the amendment and hope that your Lordships’ House accepts that explanation.

Clause 5(1) provides that:

“The non-discrimination principle for goods is the principle that the sale of goods in one part of the United Kingdom should not be affected by relevant requirements that directly or indirectly discriminate against goods that have a relevant connection with another part of the United Kingdom.”


It may appear, on superficial reading, that Clause 5 applies only to goods and not, for example, to statutory requirements regarding employment conditions. This is incorrect, however, because Clause 6(3) provides details of what constitutes “relevant requirements” for the purposes of Clause 5(1):

“A statutory provision is within the scope of the non-discrimination principle if it relates to any one or more of the following—


(a) the circumstances or manner in which goods are sold (such as where, when, by whom, to whom, or the price or other terms on which they may be sold);


(b) the transportation, storage, handling or display of goods;


(c) the inspection, assessment, registration, certification, approval or authorisation of the goods or any similar dealing with them;


(d) the conduct or regulation of businesses that engage in the sale of certain goods or types of goods.”


The effect of these provisions, therefore, is to bring statutory provisions regarding employment conditions, including legislation regulating wages, which apply to those selling goods, within the scope of the non-discrimination requirement in Clause 5(1). This means that equality legislation regarding employment conditions introduced in Northern Ireland in order to comply with the non-diminution requirement in Article 2 of the protocol must be protected.

If there is a challenge to such employment legislation, it is not clear that the legislation can be defended on the grounds that it can, as set out in Clause 8 of the Bill,

“reasonably be considered a necessary means of achieving a legitimate aim.”

Clause 8 defines what constitutes a legitimate aim. This appears to be an exhaustive list and does not include, for example, compliance with an international treaty as a legitimate aim. To illustrate the potential impact of the Bill on the Article 2 obligation, I will set out an example of additional requirements on employers in Northern Ireland that could be introduced as a result of changes to the Annexe 1 directives that deal with the wide panoply of equality directives that could be challenged under the Bill. It is not possible to predict the exact nature and extent of future EU changes to the Annexe 1 equality directives, including new obligations on employers.

However, taking into consideration EU equality law changes already made, recent European Commission proposals and plausible future scenarios, there is a reasonable prospect that over time, the Annexe 1 directives dealing with all equality matters may be updated, amended or replaced, and additional EU requirements on employers introduced. Employers in Great Britain may consider that these changes negatively impact on their businesses and influence an employer’s decision to employ staff in Northern Ireland, and thus to provide goods in Northern Ireland, and would therefore be challengeable as indirectly discriminatory under the Bill. The equal pay example can be characterised with the EU amending or replacing the existing equal treatment directive to incorporate extended equal pay obligations on employers.

As a result of these additional requirements, an employer in Great Britain with a predominantly female workforce could decide not to employ staff in Northern Ireland and could consider that there is more limited market access in Northern Ireland than in Great Britain. Using the indirect discrimination prohibition in the Bill, the employer could challenge legislation enacted by the Northern Ireland Assembly to comply with these new obligations. Other examples could be given relating to disability discrimination, race equality, equal pay audits and gender pay reporting.

To comply with Article 2 of the protocol, there is a need to ensure that any such additional requirements on employers in Northern Ireland, introduced to keep Northern Ireland equality law aligned with future EU changes to the equality directives in Annexe 1, cannot be challenged as indirectly discriminatory under the Bill. I therefore urge the Government to accept this amendment and ask the Minister to accept a letter from me, on behalf of the Northern Ireland Human Rights Commission and the Equality Commission, which will outline in depth their main concerns about this issue. Will he meet with us and the other signatories to the amendment to discuss these issues? I honestly believe that the amendment would provide legal clarity and certainty, including for employers who have responsibility under Article 2 of the protocol.

--- Later in debate ---

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

I call the Baroness, Lady McIntosh of Pickering.

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

My Lords, I am grateful to those who have spoken in support of this amendment—

[Baroness Penn (Con)]

My Lords, I believe that a noble Lord gave notice that he wanted to speak after the Minister.

--- Later in debate ---

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

My Lords, once again I thank all those who have spoken in this debate, in particular my noble friend Lord Callanan for trying to explain the Government’s position. The Bill could be made clearer if the words that the noble Lord, Lord Foulkes, and I want to introduce were added to it. I part company from the Minister in saying that, actually, I do not see that this proposal would interfere with other legislation. There remains confusion, but I am not minded to press this to a vote at this stage.

I thank all those who have spoken, particularly the noble Lords, Lord Foulkes and Lord Stevenson, and convey their thanks also to the Law Society of Scotland. I am sorry for Michael Clancy that we have not had more success on this occasion. I also thank the noble Baroness, Lady Ritchie, for so clearly setting out her Amendment 24, which has great merit. At this stage, I beg leave to withdraw my amendment.

Amendment 6 withdrawn.

--- Later in debate ---

Moved by

[Baroness McIntosh of Pickering]

9: Clause 6, page 5, line 29, at end insert—
“( ) The Secretary of State must publish the results of the consultation and give reasons for any decision reached.”Member’s explanatory statement
This amendment requires the Secretary of State to publish the results of the consultation and give reasons for any decision reached.

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

My Lords, I am grateful to have this opportunity to move the amendment standing in my name and that of the noble Lord, Lord Foulkes. I thank him for kindly supporting the amendments. I shall speak also to Amendments 13, 33, 44, 60 and 74.

Amendment 9 requires the Secretary of State to publish the results of the consultation referred to in Clause 6(7) and to give reasons for any decision reached. The reason for this is the history of the Bill, which we are told was drafted at pace, and had an unusually short overall consultation period of one month. I understand the responses to the consultation were published on the same day as the Bill. There was no prior consultation on drafts of the Bill, which I understand is a most unusual procedure. Once again, I am obliged to the Law Society of Scotland for its assistance in drafting these amendments.

The obligation on the Secretary of State to consult the devolved Administrations is welcome, but the clause currently lacks any obligation on the Secretary of State to report the outcome of the consultation with reasons for the decision. In the interests of transparency, the Government should make public the outcome of the consultation for that reason. I hope the Minister in winding up this debate will see fit to do that.

The other amendments in the group all relate to the super-affirmative resolution procedure. Amendment 13 adapts Clause 8 to this; Amendment 33, Clause 17; and Amendment 44, Clause 20. Amendment 60 creates a new schedule on the super-affirmative procedure and Amendment 74 creates a new clause setting out the scrutiny procedure in certain urgent cases. The reason why the amendment seeks to introduce the super-affirmative resolution procedure, the supportive schedule and the new clause, as I have mentioned, is to up the level of parliamentary scrutiny applicable to regulations under these clauses and the new schedule, which is currently by the affirmative resolution procedure. This is partly for the reason that I gave earlier: woeful time was given, in quite unusual circumstances, in which to draft the Bill. Changing the scope of the relevant clauses, in my view, that of the Law Society and of the noble Lord, Lord Foulkes, may have significant consequences. It is much more beneficial to use the super-affirmative resolution procedure, because it enables longer consultation and for the views of interested parties to be taken into account.

I mentioned Erskine May previously in Committee. Paragraph 31.14 describes the super-affirmative procedure as having

“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… 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.”

In the view of the Law Society of Scotland, with which I concur, the Bill is of profound constitutional significance. As paragraph 4 of the Constitution Committee report indicates, we need as much scrutiny of the Executive as possible. Deploying the procedure that I propose, as set out in these amendments, will achieve a better outcome than simply keeping the Bill in its present form, with the usual affirmative procedure.

I was delighted by the debate that we enjoyed in Committee on the earlier manifestation of this amendment, as summed up by the noble Lord, Lord Thomas, in his objection. He said he could not “support the precise method” adopted. There may be many approaches to the super-affirmative resolution procedure, but the schedule that accompanies this amendment contains a detailed procedure. The noble Lord, Lord Thomas, also noted that:

“If a Minister wishes to exercise his powers under the Bill, there is no requirement under the noble Baroness’s proposed schedule that scrutiny of his proposed amendment to primary legislation should in any way involve the devolved Administrations; no mechanism is proposed. It is true that, in paragraph 5, the Secretary of State must have regard to ‘representations’, but there is no indication from whom the representations would or should come.”


Since the Minister’s power undoubtedly includes the possibility that the proposals will, at the very least, impinge on the devolution settlement, the noble Lord goes on to say that:

“I would be more supportive of this proposal if it required as part of the super-affirmative procedure that, in the periods of 30, 40 or 60 days during which the proposals would be looked at in Westminster, there were a requirement that the devolved Administrations should at the very least be consulted, preferably that their consent to the proposals should be a necessary prerequisite. It is not enough that the Minister should ‘have regard to representations’.”—[Official Report, 28/10/20; col. 279.]


I am delighted to say that the schedule now provides a requirement to receive representations from and to consult with the devolved Administrations. We have also proposed a new clause in Amendment 74, which will deal with cases of urgency when regulations need to be presented. I am further encouraged by the fact that I understand from private discussions that the Liberal Democrats are minded to support the super-affirmative procedure, but I have had less success with the Official Opposition. There is still time for them to change their mind. On this basis, and with these brief remarks, I beg to move.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I am very pleased once again to support the noble Baroness, Lady McIntosh. I want to speak briefly to three of the amendments. I will say first that the regulation-making powers in this Bill cover very significant areas. They are not minor matters. They really are important and that is why they need scrutiny. As I said earlier, the House of Lords does the work that we do best in scrutinising these issues.

I will deal first with Amendment 13. In Clause 8, the Secretary of State can under subsection (7) make regulations

“to add, vary or to remove”

a legitimate aim. That is key in defining a relevant requirement which indirectly discriminates. A legitimate aim is defined in subsection (6) as either

“(a) the protection of the life or health of”

human animals—oh, sorry, it is

“humans, animals or plants,”

not human animals; well, human animals, other animals and plants. The second legitimate aim is

“(b) the protection of public safety or security.”

Perhaps the Minister in his reply could shed light on which of these the Government would seek to amend in the future. That would be helpful.

The second amendment I want to refer to is Amendment 60. Particularly to my noble friend on the Front Bench, I commend this idea of the super-affirmative resolution. The noble Baroness, Lady McIntosh, said she has not yet got the support of the Labour Official Opposition. Once my colleagues scrutinise this in more detail, I am sure they will come round to supporting it. The super-affirmative resolution is described in Amendment 60. It provides for the laying of draft regulations and an explanatory statement by the Secretary of State to consult the devolved Administrations and to have regard to their representations and the representations of other persons, and to allow for additional time for parliamentary consideration. That is to “have regard to” these representations. The importance of the Secretary of State’s powers under the Bill requires better scrutiny than the affirmative or negative resolution procedure. We know that and know that they are not particularly helpful ways of scrutinising legislation.

The super-affirmative procedure as defined in this schedule provides better parliamentary scrutiny, allows engagement with the devolved Administrations and enables proper consultation. Holding the Government to account is important when such regulations are being made. I hope my noble friend will come round to the view that she will at least take it away and have a look and see if, at a later stage, all Labour Members can support the super-affirmative resolution.

Amendment 74 allows the scrutiny of statutory instruments containing regulations under the Bill in such a way as to allow for their urgent implementation, rather than following the super-affirmative procedure. There was concern that the super-affirmative procedure would take too much time, and this amendment provides for issues that need to be dealt with quickly. Regulations can be made under this provision only if the Secretary of State makes a declaration that he or she is

“of the opinion that, by reason of urgency, it is necessary to make the regulations without a draft being approved under”

the super-affirmative resolution procedure. The regulations will be limited in time, under proposed new subsection (4), to a period of 28 days, unless

“the instrument is approved by a resolution of each House of Parliament.”

I hope that the Minister will consider the amendments carefully and I have great pleasure in supporting the noble Baroness, Lady McIntosh, in her amendments.

--- Later in debate ---

Amendment 9 now refers—I always defer to the wisdom of your Lordships—to Clause 6(5) to (7), including a reference to consultations, which your Lordships have just voted to remove. So the reference to consultations in this amendment is to sections that are no longer in the Bill. Looking at the intent of the amendment, it requires publication of the results of consultation on the exercise of the powers that were in Clause 6. Well, devolved Administrations and indeed the Secretary of State are perfectly free to publish their responses if they so choose, but the Government do not believe that that choice should be made for them in the Bill. Therefore, even if the amendment still made sense in the new context, there is no need for the stipulation in it. As it no longer makes sense in context, following your Lordships’ amendment to the Bill a few minutes ago, and it does not seem to be a good way to make law to send to the other place, as it were, a floating amendment which refers to consultations which are no longer within the clause, I hope that my noble friend will withdraw her amendment.

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

My Lords, I am grateful to all those who have spoken, particularly the noble Lords, Lord Foulkes and Lord Beith, for indicating in principle their support for the super-affirmative procedure. I note especially the comment by the noble Lord, Lord Beith, that just because a procedure has never been used, there is no reason not to use it in this case for the purposes of primary legislation.

I am slightly disappointed that my noble friend Lord True, in responding to this debate, does not seem to get the strength of feeling, certainly north of the border, about the rather peremptory fashion in which the Bill was introduced, with only one month for consultation to be had as opposed to the normal longer period. I hope this is something that we can discuss in connection not just with this Bill but with other Bills as well: my clear understanding is that the Government always used to publish in full the responses to their consultation procedures. I used to find it enormously helpful, as a shadow Minister in the other place, to go through and dissect comments that had been made, and I used to table amendments on the basis of those. So I can see that there might be a reason why my noble friend might not wish to publish the full responses.

I was also disappointed that my noble friend said the Government would “consult appropriately”. I am not entirely sure from this little debate, given the background, the pace at which the Bill was introduced and the shorter consultation period than one might have expected, that that has necessarily been achieved. I note his comments that there will be other opportunities at this and later stages to consider how best to achieve the aims of these amendments. With those remarks, at this stage I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

--- Later in debate ---

[Lord Teverson (LD) [V]]

My Lords, I will speak to Amendment 11 in the name of the noble Baroness, Lady Boycott, although I am very much in favour of the amendments in the name of the noble Lord, Lord Stevenson, as well.

Devolution has not been a disaster in Scotland, Wales, Northern Ireland or, indeed, London. It has strengthened the United Kingdom, our economy and our society. My great fear is that the overwhelming application of the market access principle—with those few exceptions: life or health of humans, animals and pets or public safety and security—is far too restrictive and will mean that important parts of devolution erode and disappear over time.

As with Amendment 11 in the name of the noble Baroness, Lady Boycott, I am particularly concerned about the environment, including climate change. I will be brief on this. We heard arguments in Committee that the most important thing was maintaining strong competition in the United Kingdom. I agree with that, but, like all things in market economies, that needs to be constrained in certain ways. While we need market competition to remain strong, it is equally important in a modern economy that innovation can take place. Competition in environmental regulation and some of these other areas is equally important to stimulate innovations in the nations of the United Kingdom that others can follow when they are successful. I see that as a key part of this process: being able to keep at the same time the different ways in which the nations of the United Kingdom can interpret environmental and climate change needs.

I am delighted that the Minister responding is the noble Lord, Lord Callanan, who is the Government’s Minister for Climate Change. I am sure he will be absolutely persuaded by these arguments that we need these environmental innovations to help with climate change as we move forward—as the Prime Minister wants us to, as he showed in his 10-point plan today—and to make sure we keep that progress and do it in the many ways the nations of the United Kingdom wish.

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

My Lords, I am most grateful for this opportunity to follow the noble Lord, Lord Teverson, who chairs our EU Environment Sub-Committee so expertly and courteously.

I take this opportunity in supporting Amendments 10 and 11—I would marginally prefer Amendment 10, but presumably they are for debating purposes—briefly to ask my noble friend Lord Callanan whether our understanding of the Bill as currently drafted is correct, in that it appears to be very tightly and prescriptively drawn, as so expertly indicated by the noble Lords, Lord Stevenson and Lord Anderson. Would protection of the environment or the labelling provisions proposed by my noble friend Lord Young of Cookham be permitted? Is my noble friend Lady Neville-Rolfe correct that, for example, the labelling provisions set out by my noble friend Lord Young would already be allowed?

My understanding is that member states such as Denmark can already provide additional information for consumers, such as the calorie content of beers and other foods, and that we have not gone that far yet. Would that be permitted under the Bill as currently drafted, or do we need the amendments in this group to be moved? That would greatly assist me understand how exactly the provisions in the Bill as drafted are to be interpreted.

[Baroness Noakes (Con)]

My Lords, I am sure that the supporters of these amendments are motivated only by the desire to enable the devolved Administrations to do the right thing in environmental protection and all the other fine things mentioned in these amendments, though I must say to the noble Lord, Lord Stevenson, that I have absolutely no idea what “cultural expression”, as mentioned in Amendment 21, has to do with the internal market.

I appeal to noble Lords to remember that the aim of this Bill is to ensure that the UK’s internal market operates on a frictionless basis and allows businesses to trade in the UK with the minimum of barriers as they do now. This helps businesses in all parts of the UK operate successfully and profitably, which supports the aim I hope we all share of a healthily growing economy. More importantly, it delivers for consumers because trade barriers tend to increase costs and reduce consumer choice.

I have to say that this is not a question of whether a particular regulatory rule will itself increase costs. We can argue all day about whether, say, increasing environmental regulation will increase or reduce costs for consumers. That is not the point; the point is about having different environmental regulations in one part of the United Kingdom compared with other parts and whether that will work in the interests of consumers or against them. The answer to that is clear. If such regulations have the effect of erecting further trade barriers, the consumer takes the hit.