United Kingdom Internal Market Bill

Baroness Ritchie of Downpatrick Excerpts

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

The amendments therefore provide much-needed safeguards for the protection of two international agreements that the United Kingdom has entered into and ratified freely—namely, the Belfast/Good Friday agreement and the Northern Ireland protocol within the EU withdrawal agreement—and with them continued peace and security for the people of Northern Ireland. I urge your Lordships’ House to support these amendments, and so important are they that I will seek to discuss with colleagues dividing on Report.

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

My Lords, it is a pleasure to follow my noble and honourable friend Lord Hain, who is instructive in this regard as a former Secretary of State for Northern Ireland, and who has quite clearly shown the need for these amendments as safeguards to protect the Good Friday agreement and the withdrawal agreement, with direct reference to the Northern Ireland/Ireland protocol.

As somebody who grew up in Northern Ireland and comes from a democratic nationalist tradition but seeks reconciliation with my unionist neighbours, I am in absolutely no doubt that the Bill as currently drafted in terms of trade could cause innumerable problems for north-south co-operation, east-west co-operation between Ireland and Britain, and internal co-operation in terms of the need to build relations between unionists and nationalists—the very thing that the Belfast/Good Friday agreement, as an international treaty, sought to address.

As the noble Lord, Lord Hain, has referred to, in that regard we had the support of the European Union, underscored by peace funds underscored by the United States of America. It is significant that the front runner and others, such as the US envoy to Northern Ireland, have quite clearly stated that this current Bill, with the fracturing of the agreement and the fracturing of the Northern Ireland protocol, could imperil the Good Friday agreement and imperil those relationships. They would not countenance, at this stage, the Bill remaining in its current form, with particular reference to Part 5 on a trade deal with the UK. That is a particular warning signal from one of the biggest Administrations in our global world.

These amendments focus on the need to ensure that the provisions of the Bill cannot be enacted unless they are compliant with the Good Friday/Belfast agreement and the Northern Ireland protocol—and, as my noble friend Lord Hain said, they do provide that necessary safeguard and protection.

Amendment 3 seeks to ensure that the “UK Market Access: Goods” section—Part 1—will have effect only when the UK is fully compliant with the terms regarding the UK internal market set out in the Northern Ireland protocol and the terms of the Good Friday agreement that are relevant to the UK internal market.

Amendment 157 requests the insertion of a clause specifically about the Good Friday agreement to

“address the unique political circumstances on the island of Ireland … maintain the necessary conditions for continued North-South cooperation … avoid a hard border between Northern Ireland and the Republic of Ireland”—

which is what the Northern Ireland protocol was designed to do, and which is clearly and specifically referred to in the withdrawal agreement that was signed by the Prime Minister last year with the European Union—and

“support, protect or implement the 1998 Good Friday/Belfast Agreement”

in so far as it is relevant to the UK internal market.

Amendment 177 is quite instructive, in that it states in the rubric explanatory section:

“No provisions of this Act come into force unless the United Kingdom is … fully in compliance with … the Northern Ireland Protocol … and … the terms of the Good Friday Agreement which are relevant to the United Kingdom internal market.”


Each of these amendments builds on the others, stressing the importance of the Belfast agreement and the Northern Ireland protocol to British-Irish relations and underscoring the bipartisan approach between Britain and Ireland that I have already referred to. In fact, the protocol stresses the essential elements of strands 2 and 3 of the Belfast agreement in respect of north-south economic co-operation and British-Irish relations. So it is important: we need to utilise the machinery of the Good Friday agreement to develop such relations as the North/South Ministerial Council and the British-Irish Council.

It does sadden me that the Government insist that they are trying to protect the Good Friday agreement. Nothing could be further from the truth, because in actual fact, through this United Kingdom Internal Market Bill, the Government are quite specifically fracturing that agreement and fracturing the withdrawal agreement that they signed up to this time last year.

The European Union Committee report, which was published some 14 days ago, has also been particularly instructive in relation to this issue. The committee states that there has been an “inherent tension” at the heart of the Northern Ireland protocol from the outset, due to the divergent expectations of the two parties: for the Government, it is

“maintaining the territorial integrity of the United Kingdom, and its internal market”

and for the EU it is

“to maintain the integrity of the Single Market and the customs union.”

Originally, the idea was to negotiate, in good faith, a pragmatic compromise, providing proportionate safeguards to protect the 1998 Good Friday agreement in all its dimensions. The Lords European Union Committee argues that, instead, the Bill elevates one element—the integrity of the UK internal market—above the others. That is the danger with this particular Bill.

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[Lord Hain (Lab)]

My Lords, it is a pleasure to follow my noble friend, with whose speech I completely agree. I speak to Amendment 175, which is also in the names of the noble Baronesses, Lady Altmann, Lady Suttie and Lady Ritchie. It ensures that no regulations may be made under the ensuing Act affecting matters that were within the devolved competence of Scottish Ministers, Welsh Ministers or a Northern Ireland department prior to 31 January 2020, unless a common framework on the United Kingdom internal market or the relevant aspect of it has been agreed between the United Kingdom Government and the relevant devolved Administration or Administrations. In this respect, I agree with all the speeches so far, which began so eloquently and compellingly with the noble and learned Lord, Lord Hope.

Sadly, the Government believe that the best method to achieve their objectives in negotiations with an international partner is to stick out their metaphorical tongue and say that, if they do not cave in, they will tear up an agreement made less than a year ago, even when Britain has more to lose than the EU if there is no agreement. Despite the Sewel convention that the UK Parliament

“will not normally legislate with regard to devolved matters without the consent”

of the devolved legislatures, the Government chose to ignore that all three devolved legislatures denied consent to the EU (Withdrawal Agreement) Bill. I suppose we should not be surprised that, when it comes to the devolved nations of these islands, the Government seem to believe that they hold all the cards and have nothing to lose—apart from, perhaps, destroying the United Kingdom once and for all.

The Government claimed, in their White Paper published in July 2020, that the proposals for the UK internal market would provide frictionless trade, fair competition and protection for businesses and consumers in the UK. However, as pointed out by the think tank UK in a Changing Europe, there is no urgency to introduce such internal market rules because all parts of the UK have been within the integrated EU single market for decades; we have all been together.

The provisions of the Bill are highly controversial. Those in relation to the Northern Ireland protocol have provoked legal action by the European Union and could yet undermine the basis for an EU-UK trade deal. Others cut into the ability of the devolved Governments in Scotland and Wales to regulate economic activity. Not surprisingly, the Scottish Parliament has voted against consent to the Bill, which it said

“constrains the competence of the Scottish Parliament and breaches international law.”

The Welsh Government have recommended that the Senedd follows suit.

So far as Northern Ireland is concerned, what is finally agreed—or not—at a UK-EU level will have far more impact on Northern Ireland’s trade with the rest of the UK than will this Bill. That is because the powers of the Northern Ireland Assembly are already constrained by the Ireland/Northern Ireland protocol, under which Northern Ireland will continue to follow the same EU rules on goods and on customs that it follows now.

For this reason, the market access principles set out in the Bill will not deliver unhindered trade within the UK, as Brexit itself will introduce such friction. After 31 January, the greater Great Britain’s divergence from EU rules in a race to the bottom, the greater the friction on the movement of goods from Great Britain into Northern Ireland, as goods will not be allowed into Northern Ireland unless they meet EU standards. There will also be an impact in the other direction, as lower standards in Great Britain would put Northern Ireland goods at a competitive disadvantage.

These market access measures in the Bill therefore appear to be a power grab against the devolved authorities, especially those of Scotland and Wales. This is because the provisions of the Bill will narrow the territorial scope of devolved legislation, which will apply only to goods produced in that territory, not to those imported from other parts of the UK. The Bill includes a much more restricted set of public policy justifications for exemptions from the market access principles than is permitted under EU law. This, as acknowledged in the business department’s impact assessment of the internal market White Paper, will curtail the ability of the Scottish and Welsh Governments to introduce targeted measures, for example, for social and environmental objectives.

Without the protection of these amendments, therefore, the market access principles will significantly undermine the ability of the devolved Administrations to address their own local needs or political preferences, which is surely the whole purpose of devolution. The Welsh Government have confirmed:

“The Bill automatically applies market access principles without requiring intergovernmental agreements, which will effectively nullify/override Welsh rules on product standards, environmental standards and professional qualifications.”


Referring to “this unnecessary Bill”, the Scottish Government called it an “unprecedented threat” to the Scottish Parliament’s powers. For example, if lower food and environmental standards were allowed elsewhere in the UK, Scotland would be forced to accept them. They also noted that, under the proposals, the UK would take over key devolved spending powers and

“the devolved policy of state aid”.

As for Northern Ireland, the UK Government have ignored a Motion passed by the Assembly in June, calling for an extension to the transition period. Matthew O’Toole, a Member of the Northern Ireland Assembly for the SDLP, has said that the Bill may go down in history

“as one of the most disreputable and damaging pieces of legislation ever proposed at Westminster”

on the grounds that

“it jeopardises all the protections against a hardened border between the north and south”

and that it has undermined trust in one of the signatory parties to the Good Friday agreement.

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In 2017, despite deep differences on Brexit, the UK and the devolved Governments announced that they had agreed the principles that would guide the development of common frameworks to set out a common UK or GB approach, and to managing the internal market. The UK Government reiterated their commitment to respect the devolution settlements. Common frameworks are not mentioned in the Bill and it is unclear whether regulatory rules established through the common frameworks process would be subject to the market access principles. For example, the Nutrition Related Labelling, Composition and Standards Provisional Common Framework, published on 9 October, notes

“The framework arrangements within this framework will also link into any future arrangements for the UK Internal Market.”

However, that does not provide any clarity on how the two will be linked. This programme, which admittedly is as yet a largely subterranean creature with little visibility to your Lordships’ House, has made good progress. It is true that not all will have completed the process by the end of the transition period, largely thanks to the disastrous negotiation strategy of the Government which led to two abortive sets of no-deal preparations. However, I understand that most if not all have been agreed on a provisional basis and that the devolved Governments have undertaken to fully respect them until they have been through legislative scrutiny.

Moreover, since all parts of the UK will inherit retained EU law, it is completely misleading to claim that there will somehow be a dangerous void in the statute book without this Bill. The only void there will be is where the UK Government want to leave one, notably on state aid policy. What there would be in the absence of this Bill is a restraint on the UK Government being able to tear up retained EU law on environmental standards, food standards, the mutual recognition of qualifications, and would de facto force the devolved Governments to follow suit. That is why this is so objectionable. If pressed, this Bill would undermine the good progress made in many of the areas where common frameworks are being developed, and it is not clear how the provisions of the Bill and the common frameworks could function alongside each other. I hope that the Minister will respond to that point.

I shall take just two examples. If this Parliament decided to permit English farmers to use certain antibiotics that are currently banned for treating animal disease, the sale of English products containing those antibiotics could not be prevented in Wales unless the Welsh Government could demonstrate an immediate threat to public health rather than the slow erosion of antimicrobial resistance. If Scotland wanted to introduce a new requirement for headteachers to obtain a specialist qualification in identifying and dealing with mental health issues in young people, the Scottish Government would struggle to prevent an English or Welsh teacher without that specialist qualification being appointed to a headteacher post in Scotland. For this reason, I wholly endorse the other Cross-Bench amendments suggested by the Welsh Government and tabled by the noble Baroness, Lady Finlay, and others, which would restrict the application of the so-called market access principles to areas where negotiations over common frameworks have broken down. This would give the Government every incentive to work with the devolved institutions to agree common frameworks and the chance to come back to this House and the other place if they believe that a devolved Government were attempting to wield a veto. Surely the way forward is to negotiate common framework agreements in all areas where the UK Government feel they have an interest, but which cover areas within devolved government competences. That is what the amendment seeks to achieve, and for the life of me, I cannot comprehend why the Government will not accept it. Perhaps the noble Lord the Minister will explain.

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

My Lords, I declare an interest as a member of the Common Frameworks Scrutiny Select Committee, ably chaired by the noble Baroness, Lady Andrews. The noble Lord, Lord Foulkes, and the noble and learned Lord, Lord Hope of Craighead, are also members of the committee. I am a signatory to Amendment 175 along with the noble Lord, Lord Hain, and the noble Baronesses, Lady Altmann and Lady Suttie. The specific purpose of the amendment, as ably demonstrated by the noble Lord, Lord Hain, is to state that no new UK regulations can be made affecting any area that devolved prior to Brexit, including any area with cross-border impacts, without a common framework agreement with the devolved Governments concerned.

As has already been explained, these amendments, particularly this one and others in this group, focus on the primacy of the common frameworks and the importance of devolution. In many instances, throughout this Bill, the Government seem intent on power grabs from devolution to bring power directly to Whitehall. Quite clearly, the aim of our Amendment 175 is to protect devolution. I can think of those special devolution arrangements in Northern Ireland—of which I was once a part as a member the Northern Ireland Assembly and also as a former Minister—that arose out of the Northern Ireland Act 1998 and as a consequence of the Good Friday Agreement. They were based around those interlocking sets of three relationships within Northern Ireland: between north and south on the island and east-west between Ireland and Britain, and the accompanying infrastructure arrangements. These were reflected in the Northern Ireland protocol, and in the Withdrawal Agreement that the Government now seem intent on scuppering through this UK Internal Market Bill.

Interestingly—as the noble and learned Lord, Lord Hope of Craighead, and others have referred to—this Bill does not contain common frameworks. I was at a recent briefing with others, such as the noble and learned Lord, Lord Hope. It was very well organised by the Minister and the noble Lord, Lord Callanan. It was attended by the Minister for the constitution, Chloe Smith. She indicated that the reason why the frameworks were not in the legislation is because they are not all legislative. I found that reason very odd, but also very hollow and flimsy. As the Centre on Constitutional Change has stated, common frameworks are not mentioned in the Bill and it is unclear whether regulatory rules established through the common frameworks process will be subject to the market access principles. This is an issue that has also been addressed by the Lords Constitution Committee and by a group of academics for the Centre on Constitutional Change in their paper entitled UK Internal Market Bill Devolution and the Union, which was published last week.

To go back to the Lords Constitution Committee, it states at point 15 in its conclusions that:

“The Government should explain why the Bill does not mention common frameworks and how it expects the arrangements for the UK internal market will relate to the common frameworks.”


It further states at point 16 that:

“The Government has failed to explain why a combination of retained EU law, its existing powers to amend that law, and common frameworks could not provide the certainty required at the end of the transition period to secure an effective UK internal market. Such an approach would obviate the need for the Bill.”


Academics for the Centre on Constitutional Change who published their paper last week stated:

“By abstracting the internal market from these frameworks and pushing ahead unilaterally against opposition from the authorities in Scotland and Wales, the UK Government is putting the common frameworks approach at risk.”


They also state that the market access principles in the Bill weaken devolution, reduce divergence and risk undermining the objectives and principles that have guided frameworks discussions.

The market access principles within the Bill undermine devolution competences in two ways. The UK Internal Market Bill itself will become a protected enactment, which the devolved legislatures will be unable to repeal or modify—hence our Amendment 175.

The Bill also narrows the territorial scope of devolved legislation. Currently, devolved legislation applies to all relevant activity within the devolved territory. This will no longer be the case as a result of this Bill, if it is enacted. The effect of the market access principles would, therefore, significantly undermine the purpose of devolution, which was to enable the devolved nations and regions to legislate according to their own local needs and political preferences. While I am supporting and speaking to Amendment 175, I also support other amendments in this group because they clearly specify the importance of devolution and, above all, the common frameworks scheme.

[Baroness Altmann (Con) [V]]

My Lords, I have added my name to Amendment 175 in this group, led and excellently explained by the noble Lord, Lord Hain, and in the names of the noble Baronesses, Lady Ritchie of Downpatrick and Lady Suttie. I also support Amendments 5, 11 and 53, so excellently moved and spoken to by the noble and learned Lord, Lord Hope, and others that seek similar objectives.

This is not a party-political matter. Our devolution settlement was originally pioneered by a Labour Government, then deepened and extended by the Conservatives—as explained by my noble friend Lord Dunlop—and clearly supported by the Liberal Democrats, giving the devolved Administrations additional powers. As other noble Lords have said, common frameworks are important and our existing carefully crafted settlements have kept our union united. Surely, a successful devolution of power cannot consist of dictating to the constituent nations what will happen, informing them what they have to agree to and then saying that they have been consulted, so all is agreed. This is how the measures in this Bill have clearly been perceived by the devolved Parliaments.

We are a federal nation, comprising four proud countries. Until now, our devolution settlement has allowed divergence, even on matters such as taxation, where Scotland has different tax rates. These divergences have been well accepted across the country and ensure clear powers for each of our constituent nations. I will ask my noble friend two questions. First, is he able to confirm that the Government respect and accept the devolution settlement, which has served our United Kingdom so well? Secondly, Amendment 75 and others in this group merely insert proposals to ensure that future regulations will be introduced with a consensual approach. Could my noble friend explain the Government’s objection to such a consensual approach?