United Kingdom Internal Market Bill

Baroness Ritchie of Downpatrick Excerpts

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

[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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[Lord Naseby (Con) [V]]

I thank my noble and learned friend Lord Mackay. He certainly has a very practical sense of the law, which not all lawyers have. He is right: it is an internal market; the relationships between England, Scotland, Wales and Northern Ireland are usually very close and we all have a common cause, perhaps not in rugby, but in most things. Nevertheless, I repeat that the words used in the Bill are pretty strong. It does not say that, in making regulations, the Secretary of State “may” or “should”, as we see occasionally in law; it uses the word “must”, which is a strong word. He “must consult”; there is no option. That is quite right—absolutely right, but we need to remember what “consult” means.

It is not a soft verb. Its component parts, in my view, involve seeking out information or advice, depending on the subject matter. It means doing one’s best to find out what the views are, to have an interchange and to take into consideration all aspects of the particular action proposed. It is not a dictatorship or anything like that, and I would not believe that any Secretary of State, of any Government, would view it that way. I personally think it is as strong as it needs to be. The addition of “obtain the consent of” in place of “consult” is a threat; there are no two ways about it. When I was in local government and the leader of a local authority, if I had had some legislation in front of me that said, “You have to obtain our consent”, I would dig my heels in. Do not bother about the other 31 local authorities in London—just dig your heels in and that will foul it all up.

That is not what this is all about, so I am not in favour of Amendment 15. I think, though, that the noble Lord, Lord Hain, and my noble and learned friend Lord Mackay have taken the argument a bit further. The noble Lord, Lord Hain, was talking about a qualified majority, when one part of the nation dug its heels in for some reason, and maybe we should look at that. My noble and learned friend Lord Mackay put forward how Parliament might be brought in at a higher level in something that was particularly difficult. There is merit in looking at both aspects, but I just think the amendment before us, Amendment 15, is over the top.

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

My Lords, it is a pleasure to take part in this fascinating debate, which is very much legal in content. I support the principles enunciated by the noble Lord, Lord German, and the noble and learned Lord, Lord Hope of Craighead. Like him, I would like to ask the Minister, the noble Lord, Lord True, what the Government’s view is of the Sewel convention. What is the Government’s view of devolution?

I speak as someone who was once a Minister in the devolved Administration in Northern Ireland. I dealt with legislative consent Motions all the time. The connection between the consultation and the devolved Administration was vital, particularly on benefits, where we operated the principle of parity.

I support all these amendments because they pivot the debate on the issue of seeking the consent of the devolved Administrations and the level of consultation. If the Government are serious about respecting devolution and honouring the Sewel convention, they should accept these amendments. It is my fear that this Bill is really about a power grab and Henry VIII powers. Unlike the noble Lord, Lord Naseby, who is obviously batting for the Government as a Back-Bencher, I do not think these amendments are meant as a threat to the legislation or to the Government. We must always remember that the Executive should be accountable to Parliament. The words of the noble and learned Lord, Lord Judge, in his treatise on this are very germane on this issue.

The Bill is peppered with many provisions where the Government seem intent on undermining devolution and the devolution settlements. This demonstrates a lack of respect for them and the work they do. Do the Government believe in and subscribe to devolution, or are they trying, by stealth and secondary legislation, to be an integrationist Government? In this regard, I refer to a report from the Lords Constitution Committee, which states:

“As the operation of the devolution arrangements and the respective power of the devolved institutions are constitutional matters, we would expect to see them amended by primary rather than secondary legislation or by using a statutory procedure that requires the consent of the devolved legislatures”.


I ask the Minister: when are the Government going to come back to that position? The Constitution Committee is also instructive about the role of consultation. Point 5 of its summary of conclusions and recommendations states:

“The lack of specificity about the consultation requirements in the Bill is problematic. The Government must set out the process for consultation with the devolved Administrations on the management and adjustment of the internal market arrangements.”


So be it with the mutual recognition principles for goods.

There is also a lack of reference to the common frameworks, an area that would help to resolve some of these issues. Is that because the Government wish to further control the devolved Administrations? There is a strong case for withdrawing this legislation and going back to the drawing board, while a more suitable intergovernmental approach and better consultation are used to develop an appropriate system of governance.

The Government’s approach in this Bill is about weakening devolution arrangements, hence it is important to achieve and obtain the consent of the devolved Administrations for the mutual recognition principles. I therefore fully support these amendments, which are trying to curb the Henry VIII powers.