All Earl of Kinnoull contributions to the United Kingdom Internal Market Act 2020

Mon 26th October 2020
United Kingdom Internal Market Bill
Lords Chamber

Committee stage
Committee: 1st sitting (Hansard)
Committee: 1st sitting (Hansard): House of Lords
Department for Business, Energy and Industrial Strategy
9 interactions (52 words)
Mon 19th October 2020
3 interactions (464 words)

United Kingdom Internal Market Bill

(Committee stage)
Earl of Kinnoull Excerpts
Lord Hope of Craighead Portrait Lord Hope of Craighead (CB) [V]
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My Lords, it is a pleasure to follow the noble Baroness, Lady Neville-Rolfe. I found myself in agreement with some of what she was saying, and I respect very much the background in business and marketing from which she comes, which of course is of great value to the House in this discussion. She said that we were all agreed on the need for a fully functioning internal market and, as I tried to make clear in my speech, I am in absolute agreement with that aim. Obviously, everything we would do is working towards that aim, despite the differences of perspective across the various nations of the United Kingdom.

The noble Baroness said that a brief reference might be a way of making the devolved Administrations more comfortable. For my part, I have been trying to adopt a light-touch approach, which may not be too far away from what she is talking about—but it would have to be pointed enough to meet the concerns of the devolved Administrations and give them the assurance that they need for the future. So in a way I find myself in a rather frustrating position. I cannot believe that we are all that far apart, but the gulf that divides us at the moment is very deep. I would love to find a ladder, or something, that would take us across this gulf and solve the problem. That is why I am certainly open to discussion.

Before I go any further, I should say that I am entirely behind the noble Baroness, Lady Finlay of Llandaff, on the principles that lie behind her amendment. Indeed, I am extremely grateful to the Welsh Government, who have done so much to inform us about the background to the issue and who have done a great deal of drafting work to show us what amendments might be made to work to solve the problem as they see it. Although they look very different, my own amendments were inspired by the work that they have done, and I owe a considerable debt of gratitude to them for that, and for their generosity when I indicated that I would want to take a rather different approach in the way that the amendments should be worded. The principles behind us are exactly the same and, for that reason, I entirely support, in principle, the amendment in the name of the noble Baroness and applaud the way in which she introduced it.

This issue is simply not going to go away. We will be pursuing it in various ways on Report. For the time being, I encourage the Minister to appreciate that there is some force in the point made by noble Baroness, Lady Neville-Rolfe. If her approach were adopted, one could see this frustrating gap narrowing slightly—and I would love to see it closed over so that we could solve the problem completely, to the satisfaction of both sides.

Earl of Kinnoull Portrait The Deputy Chairman of Committees (The Earl of Kinnoull) (Non-Afl)
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I call the noble and learned Lord, Lord Morris of Aberavon. Do we have Lord Morris of Aberavon? We will move on.

Lord Naseby Portrait Lord Naseby (Con)
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My Lords, I apologise to the House. I understand I was on the list for Amendment 5, but I never applied to speak on that one.

This is an interesting amendment. My colleagues, the noble Baronesses, Lady Noakes and Lady Neville-Rolfe, have already made the point that we are very close to 1 January—in fact, we are 66 days away, by a quick calculation—and so I look at that time dimension against the complications within this proposed new clause.

As I said much earlier in the evening, I am a marketing man by profession; I worked very closely with a large number of manufacturers when I was a senior director in one of the major advertising agencies. I find some of the elements of this amendment, or proposed new clause, too prescriptive. Take subsection (1)(a), where the whole principle is that nothing is going to happen until the

“access principles may be applied”

and have been “exhausted”. We are in a time framework where that is not going to work. It may be necessary, later on, to look at how it does work in principle, and maybe some changes should be made then.

I worry deeply. We are a creative nation. We are in an enormous period of change. One sees now what is happening in the fintech world: it is moving forward at an enormous rate, and it does not want to be stultified by a whole series of restrictions before it can be added to a particular schedule or not. All of us are conscious that there is a whole variety of different companies, across the world, trying to find an answer to Covid-19 through new drugs and vaccines.

Personally, I am terribly practical, and I just do not see the elements of this amendment helping the United Kingdom move forward. There may be bits of it that have some relevance—I am sure there are—and I recognise that they are put forward with a genuineness by people who want things to work. But when I listen to the noble Lord opposite talk about the Welsh Government, and having observed what is happening down in Wales now, one has to say that it is not terribly practical. I am not sure that the credibility of the Welsh Government is very strong in today’s world.

I hope my noble friend on the Front Bench will understand that, perhaps in the future, some of these elements may need to be applied, but, as matters stand today, with 66 days to go, frankly, I do not think that this proposed new clause helps at all.

Earl of Kinnoull Portrait The Deputy Chairman of Committees (The Earl of Kinnoull) (Non-Afl)
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I call the noble and learned Lord, Lord Morris of Aberavon.

Lord Morris of Aberavon Portrait Lord Morris of Aberavon (Lab) [V]
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It has been a most interesting debate. I do not think I have anything to add. I await the Minister’s reply with great interest.

--- Later in debate ---
Baroness Bloomfield of Hinton Waldrist Portrait Baroness Bloomfield of Hinton Waldrist (Con)
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I hate to disappoint the noble Baroness, Lady Andrews, but it falls to me to respond to this debate. I will now speak to the two amendments—Amendment 6 and the consequential Amendment 44—concerned with how UK market access principles, as proposed in the Bill, will apply. I understand that the noble Baroness, Lady Finlay of Llandaff, has tabled these amendments on behalf of the Welsh Government. Accordingly, I would like to begin by thanking the Welsh Government for their positive engagement on this Bill so far. The UK Government look forward to continuing constructive future engagement with the Welsh Government.

As my noble friend Lord True said earlier, we continue to work closely with the Welsh Government to develop common frameworks, in line with the framework principles agreed by the Joint Ministerial Committee (EU Negotiations) in October 2017. I know the Senedd were happy to see the Joint Ministerial Committee provisionally confirm the first two frameworks of the programme on hazardous substances and nutrition. Work continues in earnest to reach further such agreements in the coming months and beyond.

Before I turn to the detail of the amendments, I want briefly to cover the context of the Bill in order to explain the approach the Government took to applying the market access principles. At the risk of repeating the arguments of my noble friend Lord True, now that we have left the EU and as we recover after our fight against Covid, it is vital that we deliver legislation which allows the continuing smooth function of our UK internal market at the end of the transition period. The Bill aims to ensure frictionless trade, movement and investment between all the nations of the UK. The policies that different parts of the UK choose to pursue in the future is a matter for each Administration. The Bill ensures that these local policies can be pursued while maintaining seamless trade in the UK internal market. There is no question of the UK Government intending to bypass the common frameworks; the Bill is intended to complement them.

The approach we have taken in the Bill will give businesses the regulatory clarity and certainty they want. It will ensure that the cost of doing business in the UK stays as low as possible, and without damaging and costly regulatory barriers emerging between the nations of the UK. With this context in mind, I turn to the amendments. They would, in combination, prevent the market access principles from applying at the end of the transition period. The lengthy process they put in place before the principles can apply, including the need to exhaust frameworks discussions, would mean a considerable delay in securing business certainty that trade can continue unhindered within the UK’s internal market. The resulting threat of unmanaged regulatory divergence would not provide the certainty businesses need and could deter businesses that wish to expand and supply customers across the UK. This is not desirable, especially as we continue our recovery from Covid-19.

The amendments would also limit the areas to which the market access principles can apply. Again, this would unduly constrain the scope of the principles and fail to protect the internal market fully. In contrast, the Government’s approach is more comprehensive and ensures that businesses in all sectors can continue to trade across the UK without facing new barriers or discrimination.

The amendments also present a challenge in defining the exhaustion of the frameworks process. In all cases, common frameworks are designed as living arrangements, capable of change by agreement as required. Thus, the process is never wholly exhausted. The new clause also specifies a consultation process with the devolved Administrations and the CMA, or, failing that, a 12-month delay before any regulations can be made specifying areas to which the market access requirement would apply. The Government are already committed to appropriate consultation with the devolved Administrations; however, under the terms of the amendments, the time limits proposed would create unnecessary delay.

The noble Lord, Lord German, asked about the timing of the Bill. Reduced certainty would indeed be a disaster to our recovery from Covid-19. We do not believe that it is acceptable for businesses to have less certainty on trade with their UK supply chain after 1 January 2021 than they have today and have had for centuries. The UK Government are committed to ensuring that the status quo of seamless internal trade is maintained for the shared prosperity and the welfare of people and businesses across all four nations of the UK. Without the internal market, livelihoods would be at risk. There is also the issue of future-proofing the Bill to allow that, for the jobs of the future, mutual recognition will apply across areas that we may know nothing about today, including things such as the artificial intelligence industry.

My noble friend Lady Neville-Rolfe and the noble and learned Lord, Lord Hope, asked whether reference should be made to the common frameworks should be made in the Bill. We already have a statutory obligation to report quarterly on progress on the common frameworks, so there is no need to put this in the Bill as well. Far from being silenced, as the noble Baroness, Lady Randerson, suggested, as she knows, two common frameworks have already been agreed. However, some 38 more have yet to be considered, with only nine or 10 weeks until the end of the transition period. They do indeed provide a very sensible framework, but they remain voluntary. Ultimately, the common frameworks depend on continued co-operation. In spring 2019, the Scottish Government walked away from the internal market project. This legislation is required to provide certainty for business and consumers.

The noble Baroness asked about labelling in Welsh. There is nothing to prevent labelling in Welsh for goods produced in Wales. I was also asked about the use of plastic teaspoons. The Welsh Government can still ban their use, but perhaps not their sale.

For these reasons, and for the uncertainty and confusion that it would generate for businesses and consumers, unfortunately the Government cannot support the amendments in this group and I would ask noble Lords to withdraw or not move them.

Earl of Kinnoull Portrait The Deputy Chairman of Committees (The Earl of Kinnoull) (Non-Afl)
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I have received one request to speak after the Minister. I call the noble Lord, Lord Purvis of Tweed.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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My Lords, I listened very carefully to what the Minister said about the need for certainty, which seems to be the overriding approach. But, having listened to my noble friend Lord German and the noble Baroness, Lady Finlay, I would refer to the Food Standards Agency report, Food and Feed Safety and Hygiene Common Framework Update. Paragraph 3.15 states, in relation to adopting mitigating measures against mutual recognition, which we will discuss in another group on another day, makes a quite interesting point that

“where common approaches are taken, mutual recognition will not apply.”

If that is the case in this Bill, the common approaches across the nations—the mutual recognition and certainty that she indicated—will not apply. But we do not yet have full agreement on all the common frameworks, so how can that apply under this Bill, given that we have not reached the agreements yet? However, the Government’s own position is that mutual recognition will not apply if common approaches are taken on any regulatory changes. So which is it? Is it in this Bill or is it within the common frameworks?

United Kingdom Internal Market Bill

(2nd reading)
Earl of Kinnoull Excerpts
Lord Archbishop of Canterbury Portrait The Archbishop of Canterbury
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My Lords, I look forward to hearing, here and online, the contributions to come, especially the maiden speeches of the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz.

I also concur totally with the powerful and remarkable speech by the noble and learned Lord, Lord Judge. What we are called to do above all in this country, deeply embedded in our Christian culture and history, is to act justly and honestly. We cannot do so if we openly speak of breaking a treaty under international law, reached properly, on which peace in part of the UK relies. My distinguished former colleague Sentamu, who paid with beatings for his defence of law and justice in Uganda would have spoken trenchantly. I regret his absence.

There are some who claim that I and my colleagues who wrote in the FT this morning are misinformed. But the letter—and this intervention—followed the lead of those who have spent their lives seeking peace in Ireland. Peace is surely something of which religious leaders should speak. We also listened to the Select Committee on the Constitution, to all five living former Prime Ministers, two former Conservative leaders, and distinguished judges, including former Presidents of the Supreme Court and the former Lord Chief Justice of England and Wales, to name but a few.

This country has different characteristics and needs in its regions and nations. They must be reflected in all our relationships if the union is to survive. There is no watertight door in relationships between economics and constitutional issues. They overflow from one into the other. The timing of anything that the UK Parliament or Government do in Northern Ireland is always especially significant to relationships. It is particularly so at present. The revived Assembly is scarcely a year old; 2021 is the centenary of the establishment of Stormont and the creation of the border. Much progress has been made since the 1990s in building confidence and peace, yet it is clear from many visits in the last few years, and clear to anyone who listens, that the tensions continue. Peace and reconciliation need continual reinforcement and continual progress. I will therefore be seeking to work with others for amendments which ensure that the process of peace and reconciliation is pursued and that powers exercised under this Bill, when it becomes law, involve consultation amidst the immense complexities of Northern Ireland. I hope we may act on a cross-party basis.

Politics, if it is to draw out the best of us, must be more than just the exercise of binaries, of raw majority power unleashed; it exists to seek truth, to bring diverse peoples together in healthy relationships. Our reputation as a nation, our profoundly good and powerful influence and example, which I know from experience around the world, will suffer great harm if law-breaking is pursued—greater harm than this Bill seeks to prevent. In the Church of England, we are all too clearly aware of the shame that comes with failing morally. Let us not make the same mistake at national level. This House exists to amend and improve legislation, not to derail it, and that must be our urgent aim now.

Earl of Kinnoull Portrait The Earl of Kinnoull (Non-Afl)
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My Lords, it is a great pleasure to follow the most reverend Primate, and I congratulate him and his most reverend colleagues on their very welcome letter today, with which I, too, wholeheartedly agree.

The European Union Committee published our report on the internal market Bill last Friday. It was the 74th Brexit-related report that we have made since the referendum in 2016. It was unanimous, as all the previous reports have been. Once again, I pay tribute to the outstanding committee staff, working all hours as they do, to such a very high standard over such a long period. The report is short. It deals only with Part 5 of the Bill and its interaction with the Government’s implementation of the withdrawal agreement. It was designed to fit together with the excellent report of the Constitution Committee and its wider analysis of the rule of law issues.

I have said before in this Chamber that there is an inherent tension at the heart of the Ireland/Northern Ireland protocol, essentially in marrying up the aspirations of the recitals with the hard legal texts of the articles that follow. The committee reported in June that there was not enough urgency among the parties in the negotiations, who in a pragmatic way need to seek the compromises to sort this out, protecting, first and most importantly, the Belfast/Good Friday agreement and, secondly, the two mighty single markets involved—those of the EU and the UK. That report also dwelt on the multilayered dispute resolution mechanisms contained within the withdrawal agreement. The Bill before us supplants those mechanisms without their ever having been tried out. We have heard already of the Secretary of State’s clear and repeated statement that, in doing so, the Bill breaches international law. The result, as we report, strikes at the heart of the withdrawal agreement and hence poses a threat to the maintenance of the Belfast/Good Friday agreement itself. It is corrosive, too, to the future relationship discussions, as trust has become a casualty of the arrival of Part 5 of the Bill.

We wrote to the Chancellor of the Duchy of Lancaster on 18 September, with nine questions on the situation. To date, we have had no response to that letter and the letter is set out as Appendix 2 of our report. I very much hope that the Minister will carefully cover these nine questions in his response tomorrow. In the absence of convincing answers to these nine questions, the committee recommends removing Part 5 of the Bill.

In closing, I note that the amendment proposed by the noble and learned Lord, Lord Judge, is entirely in keeping with our report. I therefore strongly support it, and for once, and after advice, can follow him into the virtual voting Lobby when he divides the House.

Lord Howard of Lympne Portrait Lord Howard of Lympne (Con)
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My Lords, it is a pleasure to follow the noble Earl, Lord Kinnoull, and I congratulate him on his committee’s report. Like the noble and learned Lord, Lord Judge, with whose every word I agree, I entirely accept that the sovereign Parliament of the United Kingdom has the power to legislate in breach of international law. That is not the issue that this Bill presents. The question is not whether we can so legislate; the question is whether we should so legislate. I do not often quote the President of the European Commission, but then the President of the European Commission does not often quote Margaret Thatcher. What Mrs Thatcher said was this:

“Britain does not break Treaties. It would be bad for Britain, bad for our relations with the rest of the world and bad for any future treaty on trade”.

That says it all.

I was surprised, nay astonished, that my noble friend the Minister did not deal with nor even mention—unless my hearing has totally failed me—that Part 5 is in breach of international law. The admission by the Secretary of State for Northern Ireland in another place that it is in breach was not, as was suggested by one of my noble friends in the recent debate in Grand Committee, merely a “clumsy” form of words: those words were read from a brief; they were prepared; they were premeditated; they were deliberate; they represented the Government’s clear intention, and, as far as I am aware, the Government have not sought to resile from them.

It was suggested that the dispute resolution provisions in the withdrawal agreement would be activated in parallel with the activation of the provisions in the Bill, but I draw your Lordships’ attention to Article 168 of the withdrawal agreement. It is short, so I shall read it in full:

“For any dispute between the Union and the United Kingdom arising under this Agreement, the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.”

The Government may have second thoughts about that article; they may regret that they have signed up to it, but it is too late: they did sign up to it. They are bound by it and they should honour it.

Together with the majority of those who voted in the 2016 referendum, I voted for Brexit. I do not for one moment regret or resile from that vote; I want the United Kingdom to be an independent sovereign state. However, I want it to be an independent sovereign state that holds its head up high in the world, that keeps its word, that upholds the rule of law and that honours its treaty obligations. I want it to be an independent sovereign state that is a beacon unto the nations. I do not want it to be an independent sovereign state that chooses as one of the first assertions of that sovereignty to break its word, to break the law and to renege on a treaty that it signed barely a year ago. I shall vote for the amendment in the name of the noble and learned Lord, Lord Judge, and, if it is put to a vote, that in the name of my noble friend Lord Cormack. I shall vote against the clauses in Part 5 which are in breach of international law, and I urge your Lordships to do likewise.