United Kingdom Internal Market Bill

Lord Mackay of Clashfern Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I congratulate the noble Baroness, Lady Hayman, on an excellent maiden speech and I look forward to many others.

I regard a Bill dealing with this subject as highly desirable, as the present law is principally contained in EU retained law not easily accessible to our citizens. During the discussion on the 2018 withdrawal Bill, the question arose of where powers released by the EU went in the level of our constitution. I took the view that the internal market powers went to the UK Parliament, as legislative authority for them had to go beyond the geographical limitations of the authority of the devolved legislatures, but that it was highly desirable that any exercise of them be the subject of discussion, and if possible agreement, between all four Administrations. The Scottish Minister with whom I was very happy to work closely at that time was optimistic that agreement would be reached. The Joint Ministerial Committee on EU Negotiations was already in place, and intensive work on securing common frameworks as the robust foundation for continuing co-operation has gone well. The Scottish Government have taken a constructive role in that work. Although they have formally taken up a distinct position, their support for independence has not prevented them agreeing to these matters and participating fully in them.

I suggest that this Bill would be greatly improved by providing that any issue to be the subject of a statutory instrument should be discussed in such a committee, and implemented only if it is agreed, or otherwise after a full debate in both Houses of Parliament, and that the Competition and Markets Authority should report to this committee as a matter of course.

United Kingdom Internal Market Bill

Lord Mackay of Clashfern Excerpts

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

[Baroness Humphreys (LD) [V]]

My Lords, I will speak to the amendment to Clause 51 in the name of the noble Baroness, Lady Finlay of Llandaff, to which I have added my name. The amendment opposes this clause standing part of the Bill. In a Bill that stands accused of breaching international law and impacting on devolution settlements, this clause is probably one of the most harmful, in the power that it hands to Ministers, and through them the Executive, to make regulations.

As the Explanatory Memorandum explains, regulations made by Ministers under these powers are to be made by statutory instrument and may be used to amend, repeal or modify the effect of legislation, including Acts of Parliament, which of course include the Government of Wales Act 2006—and, as the noble Baroness, Lady Hayter, has just pointed out, all without consultation with the devolved Administrations.

However, the prime function of this clause, and the whole of Part 7, is to ensure that all clauses of this Bill become protected enactments. It neuters the powers of the devolved legislatures, ensuring that they are unable to put forward Acts in their own Parliaments, in their own areas of devolved competence, to modify this Bill if or when it becomes an Act. This is almost unprecedented. The noble Baroness, Lady Finlay, has already told us that, since devolution, the only other examples of protected enactments covering all sections of an Act are the Human Rights Act and the Civil Contingencies Act.

Even in the case of the withdrawal agreement Bill, which was initially intended as a protected enactment, the UK Government produced a clause-by-clause analysis justifying protected enactment status, which eventually resulted in only a few clauses being protected. Why is this approach not applicable to this Bill? The Welsh Government have asked for a clause-by-clause discussion of why each clause should be protected. I would be grateful if the Minister could outline the Government’s response to this request.

Up to now, the Government have not produced any detailed justification of why protected enactment status is necessary, which exemplifies their cavalier attitude to devolution in general. In Wales this is seen as an assault on our devolution settlement, heralding the return of direct rule from England.

We are faced here with another example, as with the Covid-19 response in England, of Whitehall insisting on managing from the centre rather than understanding and empowering local decision-making. The powers of our devolved legislatures and regional mayors, although limited, seem to be resented and distrusted by the Government, and the automatic response seems to be to claw back control to the centre. My fear is that this Government’s unthinking, knee-jerk reactions all add to the perception that the union is not working for the devolved nations and, as I have said in previous contributions, this is encouraging an increasing percentage of people in Wales to conclude that the future lies in independence.

My colleagues and I on these Liberal Democrat Benches want to see true devolution of power to all four nations, including England, in a federal UK where each nation is equal to the other and treated with equal respect. For our party, the union is important because, as federalists we know, that without a union, federalism cannot exist, but we also know, that without federalism, this union will not exist into the future.

Clause 51 is truly indicative of the UK Government’s attitude towards the devolved parliaments and their powers and the desperate need they seem to have to curtail those powers by a show of strength. It is vital to the devolved nations that this clause does not stand part of this Bill, and if the noble Baroness is minded to reintroduce a similar amendment on Report, she will again have my support.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I am a very strong supporter of the common framework system, explained so well by my noble and learned friend Lord Hope. One of the defects I find in this successful system, which I think was a very good invention at the conclusion of the withdrawal agreement Bill when it was set up, is that it is without formal parliamentary recognition. I do not know with any degree of completeness what sort of results it already has, except in the reports produced in accordance with the statutory requirement. One does not know the exact detail of the decisions made. I hoped that as the principles went along in the common frameworks procedure, the principles to be set up in the Bill for the internal market in the UK would become evident. However, so far, that has not been fully revealed in Parliament. I am very anxious that some form of recognition in Parliament of decisions taken and agreed should be set up. This is the purpose of the new clause that I propose in Amendment 170. I do not stand closely on the wording, but some recognition of what is happening in Parliament and ensuring that it is regarded as part of the law would be a useful addition to the present procedure.

The situation between the devolved Administrations and an internal market was regulated by the European Union, therefore some form of renewal of that may be required. I notice that the Scottish Government have said they would not introduce any changes that would damage the internal market, pending legislation. Of course, that is only on the basis that legislation would be something to which they were able to agree. I am very anxious that the results of what we do now should not damage the arrangements for devolution in a way that would point towards independence.

United Kingdom Internal Market Bill

Lord Mackay of Clashfern Excerpts

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

[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

We seem to have lost connection with the noble Lord, Lord Hain, so I call the noble and learned Lord, Lord Mackay of Clashfern.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I have not tabled many amendments to the Bill—although there are many things on which I might seek reconsideration—because it is important that I confine myself to the principal matters. In this group, my amendment requires that the powers in the Bill are to be used only for the promotion of the internal market. Any idea that the Bill can be used for any other purpose should be clearly outlawed.

It is important to note that while the powers of the European Union in relation to our internal market will stop on 31 December, the retained EU law on our internal market will, of course, remain in place unless and until it is altered. Therefore, the question before the Committee now is about the rules that should apply after 31 December, and the powers that exist to change these in that time. I think it is absolutely clear that the responsibility for the internal market in legislative form must ultimately be with the UK Parliament, but of course the UK Parliament includes representatives from all four countries. Therefore, it is a suitable responsibility to carry. However, the other point is that the existing devolved Administrations and legislatures have responsibility for the laws in their particular areas. Accordingly, it is very important to ensure that, so far as possible, the rules of the internal market should accommodate that and be in agreement throughout the whole United Kingdom—in the devolved Administrations and legislatures also.

Therefore, I agree very much with a great deal of what has been said in support of the amendments in this group. I have an amendment later that suggests that every power that the Secretary of State has should be subject to the rule that they consult the JMC(EN), which I think is the committee responsible for the modification and regeneration of the common frameworks. That system seems to have worked very well, as far as I can gather from what has been said. I suggest that every power that the Secretary of State has to make regulations under the Bill should be subject to being put before that committee, which includes Ministers from the devolved Administrations, before they go forward. If, and only if, there is discontent or disagreement, the matter should then be referred to two debates, one in each House of Parliament, to resolve the matter using the responsibility that they have to solve the matters of the common market.

This is absolutely important. It is extremely important that the union we have is preserved by proper relationships between all the Administrations. I see no reason at all why that should not happen. I know that at least one of the Administrations has a desire to forsake the union, but in the meantime, while they are in the union, it is important that we have the best relationships possible with them, so that there is no feeling of resentment. An internal market is a very important part of the union, and a part that would be damaged if there were any degree of separation, both for the remaining units as well as for the unit that was thinking of leaving. This series of amendments in various forms is very important in the preservation of the union, and I support the principles laid down. I do not concentrate particularly on my own amendment, although I think it is quite important.

United Kingdom Internal Market Bill

Lord Mackay of Clashfern Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 2nd November 2020 Lords Chamber

Moved by

[Lord Mackay of Clashfern (Con)]

114: Clause 30, page 23, line 15, at end insert—
“(3) Before authorising a task group under subsection (1), the CMA must consult the Joint Ministerial Committee on European Negotiations.”

--- Later in debate ---

[Lord Mackay of Clashfern (Con) [V]]

My Lords, the United Kingdom Parliament has a legislative competence to regulate the United Kingdom internal market, but the devolved Administrations have a fundamental interest also. In my view, it is wise to give them a voice in the way it is exercised. This group of amendments is entirely concerned with that. I am assuming that the structures in the Bill are kept as they are, as—as with the last set of amendments—fundamental changes would affect the effect of the amendments I am proposing.

Amendment 114, which I am moving, relates to the task force set up to examine an aspect of the internal market. I am saying that the devolved Administrations should be consulted on that through the Joint Ministerial Committee. Amendment 141 relates to the submission of CMA reports. It is important that this report from the authority looking into it should go to the Joint Ministerial Committee, which has responsibility for the common frameworks. That can include the Ministers from all the devolved Administrations, as well as the UK Minister, and it is extremely important that the report should go to that committee. Admittedly it goes to Parliament, and the members of course are Members of the Parliaments, but the committee as a whole should have the responsibility of having the report given to it.

The third amendment is Amendment 171. The joint committee is a committee which I think—or I understand —functions well; I hope my noble friend the Minister will comment on that when he replies. But, however well it functions, there is the possibility of disagreement. It is absolutely important that when a Minister of the UK Government uses powers to make statutory instruments and applies to Parliament for them, that should be a matter of thorough consultation with the Joint Ministerial Committee. It should come at a time when the formulation is not complete—in other words, at a time when a committee of this sort would be able to discuss the shape of the statutory instrument that would be laid before Parliament. This is a very good way of involving the devolved Administrations in the nitty-gritty, as it were, of the work that will flow from the Bill when it becomes law.

No matter how good a committee is, there is always a possibility of disagreement; I have tried to deal with that. A number of suggestions were made earlier in these debates about how disagreement should be resolved. In my view, the best way of doing it is by putting it to the United Kingdom Parliament, where all the devolved nations are represented constitutionally. If that is to be done, it is essential that it should be by full debate in both Houses of Parliament before a decision is taken. This is preferable to any kind of majority rule, or anything of that sort. It is important that Parliament, including those Members from the devolved Administration countries, has a responsibility in this matter. I think this is the way it should be resolved, and that is my suggestion.

I thoroughly believe that this proposal is fundamental to the smooth working of the internal market Bill in the future. There is always the possibility of misunderstanding unless there is a full discussion of the proposal quite early on. That is part of what I have in mind. I beg to move Amendment 114.

--- Later in debate ---

[Lord True (Con)]

My Lords, I believe I heard my noble friend Lord Callanan addressing this point in the previous group and that there was talk of a letter. I may have misheard but, if such a letter were proposed, I would not want to interpose my rather excessively considerable body between my noble friend’s pen and your Lordships’ House. But I take the point. If it is not covered in the response that my noble friend Lord Callanan has promised, I will address it. I am not pleading for an institutional parsing of the text in my comments, but I repeat that we are jointly exploring a number of options to strengthen the impartiality of the intergovernmental dispute resolution process. We hope it can be carried forward successfully.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I am grateful for the general support for my proposal to require co-operation between the devolved Administrations and the UK Parliament. I am sorry that my good friend, my noble friend Lord Naseby, does not care for it. I am not sure why that is, because I do not think that what I am proposing would damage in any way the independence of those seeking to set up a task force. All I am concerned about is that the task force should be familiar with the various areas of the United Kingdom that will be affected by the dispute in question. However, I have to be thankful for the support of your Lordships for the general principles that I am trying to further.

I am using the JMC (EN) because I understand that, at the moment, it is the body that is running the common frameworks policy. I want to make it absolutely clear that I am strongly supportive of the common frameworks policy and of bringing together in that connection various important matters. The system seems to work well. I am happy to use any organisation that the Government come out with for continuing that work with a degree of friendship.

I indicated in my speech at Second Reading that although the Scottish Government had stood apart from the situation in a formal way, they were apparently encouraging support for trying to resolve the main problems of the internal market in the common frameworks policy. As far as I can make out, that is the position. Needless to say, I got that information from the Scottish Government. It is a description of our situation which shows a certain degree of separation and co-operation at the same time; I very much welcome that co-operation.

The general point of who will eventually run this is a matter that I cannot anticipate. Therefore, when I use the JMC (EN) in my amendments, I am simply using what I understand is the present situation. The Government may well be able to produce a better system and, if they do so, I will be glad of that. In the meantime, I think that there is general acceptance of the view that the devolved Administrations need to be closely involved. After all, in Scotland at least there is a very strong interest in this, because something like 60% of its exports go to the rest of the United Kingdom. An internal market that functions properly and fairly is very much in Scottish interests, and I certainly would like to do everything I can to promote that.

In the light of the very good response I have had from my noble friend Lord True, I am happy to withdraw my amendment.

Amendment 114 withdrawn.

United Kingdom Internal Market Bill

Lord Mackay of Clashfern Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

[Baroness Couttie (Con) [V]]

I, along with several colleagues, sat on the EU Select Committee, so ably chaired by the noble Earl, Lord Kinnoull. We looked closely at Part 5 of the internal market Bill. The report that we produced was the subject of some strong debate among us. The point that we all agreed on was that none of us wanted to see the UK break international law or in any way tarnish the UK’s international reputation for fair play and justice. The noble and learned Lord, Lord Judge, supported by many colleagues, seeks to have the clauses that make up Part 5 removed from this Bill. I am speaking today to support their continued inclusion.

Much has been made of Brandon Lewis’s remark stating that Part 5 of the internal market Bill breaches international law in a “limited and specific way”. However, his is not the only view on this controversial point. Having listened to the arguments put by the noble and learned Lord, Lord Keen, and the Prime Minister and the evidence given by Michael Gove to the committee, it is clear to me that Part 5 may not break international law and is an essential safety net to protect the UK, most specifically in regard to both the economy and peace in Northern Ireland.

My noble friend Lord Lilley has already quoted the ECJ, pointing out that it does not expect EU countries to apply international law unconditionally. Various articles under the Vienna convention allow all countries the freedom to protect their interests and Article 184 is clear that parties must negotiate in good faith.

The withdrawal agreement was signed with contradictory clauses in it that each side thought protected their interests. Clauses that give the UK sovereignty over all its territory, including Northern Ireland, and unfettered access for goods flowing to and from the mainland and Northern Ireland are clearly difficult to reconcile with Northern Ireland remaining inside the EU customs union. The Joint Committee was established to enable resolution of these conflicts in the clauses. One of the key enablers of the proper functioning of the Northern Ireland protocol was the fair and sensible identification of the very small number of goods that were at risk of moving from the mainland to Northern Ireland and then into the EU.

We know that, as part of its negotiation, the EU threatened to withhold third-party status from the UK. The Prime Minister has told us that the EU also threatened to use the Joint Committee to designate all goods moving from the UK to Northern Ireland as being at risk of moving into the EU. The consequence of this is that tariffs will need to be paid on all goods moving from the UK to Northern Ireland; those tariffs will then need to be reclaimed on goods with a need to prove that they were not exported into the Republic of Ireland. This will create extra costs and make some supply chains unviable. It will also divide Northern Ireland from the mainland, which is unacceptable to the unionists—a point made tonight by the noble Lord, Lord Dodds. Clearly this demonstrates that the EU has not been negotiating in good faith and gives the right, under international law, to the UK to take action to protect itself. Part 5 provides this protection.

Some, including my noble friend Lord Howard, have argued that we should use the dispute mechanism in the withdrawal agreement to resolve these issues. This will take time, during which the Northern Ireland economy will be severely impaired and the much-valued and sacrosanct peace undermined. In addition, the final determination under the dispute resolution procedure is made by the ECJ, which not everyone in the UK has full confidence in.

I am pleased to hear that the negotiations have taken a more constructive tone, both concerning third-party status for the UK and the designation of goods at risk, by the Joint Committee. If this continues to be the case, Part 5 will not be needed. I sincerely hope that this proves to be the outcome, but until the negotiations are completed, I cannot support the removal of these clauses.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, first, I want to say how sad I am at the passing of the noble Lord, Lord Sacks, who was a great member of our community in this country and a very excellent Member of our House. It is a very sad day for us. He stood up for faith and he explained faith in a way that very few were able to do.

In my view, the rule of law is a fundamental part of our constitutional arrangements; that extends to international law as well as our domestic law. During my time as Lord Chancellor, I was privileged to visit a number of countries where it was obvious that our national reputation was built on that fact to no small degree. I confess to my reaction of shock when I heard the Secretary of State for Northern Ireland intimate the proposal that is the subject of these amendments. Parliament is, of course, sovereign in domestic law. Since the House of Lords decided in Anisminic that the then common form of clause-protecting decisions from intervention by the courts protected only good decisions, such protective clauses have become rarer.

It is also of fundamental importance in the international effort to preserve peace in the world. Your Lordships will remember the heavy burden borne by the noble and learned Lord, Lord Goldsmith, in having to give advice on the relevant international law relating to Iraq. I find it poignant that we are debating this immediately after our national recognition of the tremendous cost of war inflicted on our nation. I should of course make it clear that there are lawful ways of getting out of a treaty, as provided by the Treaty of Vienna.

I do not wish to take any part in the discussions taking place tonight, including by my predecessor—whom I am glad to follow—into the situation that arises on the present discussion of the protocol. In my opinion, however, the withdrawal agreement, and the Northern Ireland protocol in particular, make it as plain as language can that its provisions are without prejudice to the provisions of the 1998 agreement in respect of the constitutional status of Northern Ireland. That principle can be used in the proper interpretation of the somewhat conflicting provisions that exist in the protocol itself, but the point is that it makes it absolutely plain that the 1998 agreement is to be respected as part of, and as a prerequisite to, the implementation of the agreement. I therefore consider it unnecessary to say, as this part does, that the Government authorise the possible breach of international law.

[Lord Moylan (Con)]

My Lords, it is daunting to speak after the noble and learned Lord, Lord Mackay of Clashfern, and to find myself disagreeing somewhat with a former Lord Chancellor. I am not a lawyer; I feel as though I have stumbled into a convention of highly distinguished lawyers. Had I stumbled into a convention of highly distinguished grocers discussing this subject, they may of course have taken a rather different tone and approach to the practicalities of the matter.

At the heart of this claim about the rule of law is a statement made by the noble and learned Lord, Lord Judge, in his speech at Second Reading, that the rule of law is indivisible. This is not a legal point but a point in the philosophy of law, and it is highly contestable. The implication is that a breach of international law, however small, will lead to, for example, a rising murder rate in Scotland or the reckless parking on double yellow lines of vehicles in Birmingham—or, indeed, that the Government of China might observe their obligations better if we did not pass this Bill.

However, people outside this House understand that that is not how law works. They understand that international law is a distinct realm in which practical relations between states are codified but do not endure if they place intolerable burdens on one party. That brings us to the substance of this part of the Bill: the intolerable demands being placed on the coherence of the United Kingdom by the manner in which the European Union is seeking to interpret and implement the Northern Ireland protocol.

Some noble Lords, in talking about this in relation to another treaty—the Good Friday/Belfast agreement—presented the alternatives as straightforward: either punctilious observation of the Northern Ireland protocol or the return of the bomber and the gunman. In fact, that was very much the gravamen of the speech made by the noble Lord, Lord Hain, at Second Reading. This is a simplistic view of the state of affairs in Ireland; it rests on the fallacy that the Good Friday agreement requires the absence of a goods border on the island of Ireland. As the noble Baroness, Lady Hoey, said, that simply is not true; the Good Friday agreement says nothing at all about goods borders on the island of Ireland. It says a great deal about the principle of consent of both communities—a principle that seems to have gone seriously astray—but about goods borders it says nothing at all.

In those circumstances, when challenged, people who take that view refer not to the text of the Good Friday agreement, where they do not find such a mention, but to its context. You cannot insist on the detailed written text of the Northern Ireland protocol while ignoring the detailed text of the Good Friday agreement and instead appealing to its context. The truth is that we have entered into a mesh of largely conflicting treaties. They do not mesh well, and the question is not whether some of those principles are going to go but which will. I noticed that, when the noble Lord, Lord Newby, spoke, he quite happily cast away the principle of unfettered access of trade between Northern Ireland and Great Britain. He does not believe that it can exist in practice, but that is because he prefers one interpretation of that complex and contradictory agreement to another.

It is an understatement to say the situation in Northern Ireland requires details and nuanced handling. An illustration of that emerged even after that debate, with the breaking news that the First Minister and Deputy First Minister of Northern Ireland, representing the DUP and Sinn Féin, had written jointly to the European Commission to object most strongly to the idea that supermarket vehicles travelling from Britain to Northern Ireland might have to be subject to border checks—but it is entirely within the Northern Ireland protocol that they should be. It is a subtle situation in Northern Ireland; if you can unite the DUP and Sinn Féin on that point, it shows that simplistic views need to be avoided.

What we face is a determination, dating back to 2016, that the EU take economic control of Northern Ireland, despite the fact that even that is contrary both to the Good Friday agreement and the EU treaties themselves, all of which recognise that Northern Ireland is fully part of the sovereign territory of the United Kingdom. I am afraid that too many Members of your Lordships’ House have adopted that view. My own view is that I do not agree with them and that it would be nice if a few more Members of the peerage of the United Kingdom actually spoke up for the United Kingdom.

United Kingdom Internal Market Bill

Lord Mackay of Clashfern Excerpts

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

I ask everyone who is a unionist to think very carefully before voting against these amendments, because a rejection of this approach of mutual respect across the four nations of the UK is a rejection of devolution itself. Rejecting the uniting processes in common frameworks signals a step towards the break-up of the United Kingdom. We left Europe to have the ability to set our own rules. Now let us respect that ability internally and amend this Bill accordingly.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I very much support these amendments. It has been my privilege to often lead the noble and learned Lord, Lord Hope of Craighead, and today I am very glad to follow him.

I want to say a bit about the nature of the common frameworks. They were brought into being in 2017, as the noble and learned Lord, Lord Hope, said, and he and I played some little part in encouraging that to happen. It seemed to us that it would be entirely right to take account of the different views of the devolved nations and bring them together. To a great extent that is what has happened since this system was set up.

The UK internal market is not a fixed law like the laws of the Medes and the Persians. The detail in the part that deals with the Competition and Markets Authority shows that it is intended that the internal market should develop in accordance with circumstances as they develop. It is not a rigid matter. Some mechanism therefore has to be found before allowing change. As I have understood my noble friend Lord True, he has said that the common frameworks are complementary to the Bill—or the other way round, whichever way you like to take it. That was set out quite clearly in the White Paper that preceded the Bill.

The fundamental point is that the UK internal market law will apply in the whole of the UK, but that does not preclude that law allowing for circumstances that may vary from one devolved nation to another. At the moment I live in the very north of Scotland, and I can see that there is a good justification for having somewhat different rules about building regulations relating to temperatures and so on from those in London. That kind of thing is much easier to deal with if it is dealt with by people who know about it in detail, and that is what has happened in the common frameworks over quite a long time. It has been found that a large number of those frameworks do not require any innovation at all in the circumstances, although there are some, which are still under consideration, that require modification as a result of changes in the various conditions that apply across the United Kingdom.

I take it from what my noble friend Lord True, whom I greatly respect, has said on behalf of the Government from the Dispatch Box that those two ways of legislating are complementary. I am anxious that the way they complement each other should be set forth in the Bill because that is an important part of how the UK market Bill will develop. As I said, there is no question but that it is expected to develop and change.

The situation is that the common frameworks are dealt with by a committee set up by principles. So far as I know, and I have sought information on this point, it has worked very well, so why not allow it to continue? All that is required to happen is that the particular result of agreement in the common frameworks will lead to a modification of the United Kingdom Internal Market Bill agreed in the whole of the UK. That seems a very good way of dealing with some kinds of change. The Bill provides for the Competition and Markets Authority to have a function of the same general kind, leading to advice and legislation in Parliament. That is an extremely good and wise way of conducting the business of an internal market, and it makes it clear that the same law applies over the whole of the UK—nothing else but that the law recognises agreed variations suitable to the circumstances of particular nations. I cannot for the life of me see why that is not legislated for in the Bill.

As I have said already, it is said that the two are complementary. There is no provision in the Bill at the moment to say how that complementary relationship is to work. We have sought to do that after a fairly thorough consideration of how it can be done, and that is what this series of amendments is trying to do. If the Government can think of a better way of arranging it then we would be glad to hear it, but we cannot leave it without any consideration at all. If the Bill goes forward without any reference to the common frameworks, it is hard to see how those frameworks affect the issue as they ought to.

I am very much in favour of the amendment, and of the union. All my life I have been concerned with Scotland and I am very anxious that it should remain in the warmth and success of the United Kingdom, which it has done already for a long time. I have personally found that a very great comfort, as your Lordships will understand. So I hope the Government can accept this amendment or, if not, will come forward with a better way of recognising the complementarity of the common frameworks with the Bill and put it in an express form that would be better than this, if they can find one.

[Lord Bourne of Aberystwyth (Con) [V]]

My Lords, I apologise to the House that I was unable to participate in Committee, but I spoke at Second Reading.

I shall speak particularly to Amendment 1. I was pleased to add my name to the signatories to this amendment. The noble and learned Lord, Lord Hope of Craighead, and my noble and learned friend Lord Mackay of Clashfern have unparalleled understanding of the principles and workings of devolution in the United Kingdom today, while my good friend the noble Baroness, Lady of Llandaff, has a very practical grasp of the day-to-day issues and realities of the operation of devolution in a plethora of policy areas, particularly health and palliative care.

My experience of devolution was initially very much at the coalface of the operation of what was then the Welsh Assembly—now the Senedd Cymru, the Welsh Parliament—for 12 years as a Member and a party leader from its establishment. The reality of life was largely driven not by idealism in those early days, and indeed now, but by ensuring that it operated in the best interests of the people of Wales and of the wider UK. I believe that that lodestar is still what guides Members of the Senedd today in making it work effectively.

The year 1999, with the setting up of both the Scottish Parliament and the then Welsh Assembly, represented a very real break with the past. There were of course pressure points between Wales and Westminster, and certainly between Scotland and Westminster, even when the parties in power were the same, which of course they were in the early days, both being Labour. That phenomenon is possibly more acute when the same parties are in power. Over time, those points of friction have decreased and eased. Politicians and officials got used to closer working. There were still points of dispute, of course, but that is the nature of politics. Devolution was extended and deepened by the Conservatives in Wales with a referendum for full powers, which was passed decisively, and the Silk commission report being acted on and introducing new powers from Westminster. There was a new devolution settlement, which has been honoured by successive Governments and needs to continue to be honoured.

Let us flash forward to the withdrawal from the EU and the work of this House and the other place on common frameworks. As was noted by my noble friend Lord Dunlop in Committee, the introduction of common frameworks was a success and agreement was

“reached … in October 2017, between the UK Government, the Scottish and Welsh Governments and the senior civil servant representing the Northern Ireland Executive, on the principles to guide the work on common frameworks.”—[Official Report, 26/10/20; col. 58.]

That approach has delivered on the policy areas that were identified, with very few exceptions, which were all truly exceptional. It is worth restating that the common frameworks have delivered and are delivering.

United Kingdom Internal Market Bill

Lord Mackay of Clashfern Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th November 2020 Lords Chamber

Moved by

[Lord Mackay of Clashfern]

73: After Clause 46, insert the following new Clause—
“Joint Ministerial Committee on European Negotiations: agreement of regulations
(1) Regulations to be made under any provision of this Act must be brought before the Joint Ministerial Committee on European Negotiations for discussion and agreement before they may be laid before Parliament.(2) If the Joint Ministerial Committee on European Negotiations do not agree to the regulations, the Secretary of State must lay before Parliament the reasons for the disagreement, and table a motion in both Houses of Parliament to debate the regulations and disagreement before they are approved.”Member’s explanatory statement
This new Clause seeks to ensure the Joint Ministerial Committee on European Negotiations, representing all four nations, have sight of the regulations made under this Bill.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I am happy to move Amendment 73. It is the same sort of amendment that I moved in Committee, when my noble friend Lord True was kind enough to say that it was a unionist type of amendment and, therefore, could be considered. Since then, the Government have accepted a number of situations covered by my amendment. It has therefore probably served its purpose and I do not propose to put it to a Division.

However, it illustrates what I am anxious to achieve: a degree of co-operation between the devolved Administrations and the Government of the United Kingdom, which will put the Bill in a much happier situation than it appeared to be in at first sight. A good deal has happened already. I just hope that they will go a little further.

I am under a certain restraint, because my computer has decided to restart without giving me any notice. I may not be able to speak at all when my turn comes at the end of this group but, if not, I end in that spirit.

[Lord Purvis of Tweed (LD)]

It is a pleasure to follow the noble and learned Lord and we are grateful that he is more reliable that his technology. In Committee and with this amendment, he has suggested to—and sought to persuade—the Government that there is merit in them thinking again about further consultations on developing the frameworks to the extent that, where they can reach their limit, there would then be the legislative requirement within this Bill.

I will speak to Amendment 75, in my noble friend Lord Fox’s name, which tries to put forward a structure for these discussions and, in effect, to codify it within this legislation—providing that framework, as it were, for the talks that should happen. In so doing, I will display what some colleagues in the House consider my usual characteristic of being rather pernickety—to which I say mea culpa. In our amendment, we reference the “Joint Ministerial Council”; it should refer to the Joint Ministerial Committee, so I admit that that was an error in the drafting.

When we started Committee, we had heard reflections at Second Reading and the concerns of the devolved Administrations about this Bill. At this stage, there is no need to rehearse the concerns; we have done so in Committee and on Report. Ministers—the noble Lords, Lord True and Lord Callanan, and the noble Baroness, Lady Bloomfield, in particular—have been very willing to meet with us and discuss this. We have not always been in agreement; nevertheless, personally speaking, I am grateful for the opportunities to discuss some of these issues with the Ministers.

Ultimately, the House has made the decision that we have not been persuaded by many of the Government’s arguments. Even today, key elements of the legislation have been excised, such as those on spending and subsidy powers. From the government Benches, the noble Baronesses, Lady Noakes and Lady Neville-Rolfe, indicated that it was not appropriate for the OIM to be in the CMA. In a whole series of areas, this House has taken a view that we are concerned about how the Bill had been drafted.

Fundamentally, one of the themes has been a genuine ongoing concern, not fully addressed by government amendments on consultation, that the powers which the Government are taking under this legislation will damage, rather than strengthen, devolution. In particular, they will put at risk one of the areas where we have seen consensus not only within the parties in this House but within the nations and the UK Government: namely, that the frameworks process has been positive, notwithstanding a pause and a disagreement. The amendment of the noble Lord, Lord True, which this House passed with a large majority, the reference that the noble and learned Lord, Lord Mackay of Clashfern, indicated with his amendments and our amendment show that we also wish for that process to see its natural conclusion.

At this stage, we believe there is merit in seeking support for a further set of discussions at a plenary session of the Joint Ministerial Committee, which can agree the principles of the market access and an intergovernmental relationship that will put this on a sound footing for many years to come. That is why we are asking the House to consider a proposal that we believe will allow there to be agreement and consensus, but not a veto.

This is the final thing that I will say. We accept that the operation of the UK market is a shared UK aspect, but it will be a complex set of discussions and potentially contentious. That is why in this amendment we have sought a mechanism to prevent a veto but to allow consensus to be brought about. I know that my noble friends Lord Bruce of Bennachie and Lord Fox will cover the details. Personally, having gone through all the stages of the Bill, I will say that while we recognise Ministers’ willingness to be open, as I have indicated, there is still a case to be made for one further opportunity to seek consensus.

--- Later in debate ---

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

I have received no requests to speak after the Minister. I now call the noble and learned Lord, Lord Mackay of Clashfern.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I am glad to be able to speak to noble Lords, although I cannot now see them. I appreciate what has been said. I do not think it necessarily involves uncertainty about the principles, as my noble friend Lord True suggested. I think it could be quite clear that the principles apply, except so far as they are modified by the common frameworks agreements. That does not in any way make them uncertain. If it were needed, some kind of notice that a common frameworks decision was to become part of the internal market rule would possibly deal with that if it had to be dealt with, but it is perfectly reasonable to think that the common frameworks could work as part of the arrangements in such a way that the results of agreements in the common frameworks are put into effect in the UK internal market rule.

I agree that the internal market is fundamental to the union of the United Kingdom. As has been said, it was the rule right from the first day of the union. I entreat the Government to think carefully about how to engage the common frameworks policy in the rule of the common market in a way that is acceptable and does no harm. I cannot see that it does any harm. It makes it all the more constructive. The internal market rule is a living instrument, which should accommodate degrees of innovation that might well bring forward the whole market in due course. I shall not press my amendment, as I indicated, because I think the Government have already done what I wanted in most of the situations where it would be suitable. I beg leave to withdraw the amendment.

Amendment 73 withdrawn.