United Kingdom Internal Market Bill

Lord Naseby Excerpts

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

Finally, I say to beware of wolves in sheep’s clothing: if you throw meat at them they just ask for more. Beware: it is sometimes better that, from time to time, they be tethered. It is better that, from time to time, we give the people of the countries of the devolved Administrations the opportunity of looking forward to having Governments that look after the interests of the people, not their own political aims and ideals. What we have in Scotland now, sadly, is a Government who put that above everything else. We have seen it in some of the services in education, in the health service and in justice that have been neglected. It is something that I ask colleagues in this debate—I hope it will become more of a debate—to remember.

[Lord Naseby (Con)]

My Lords, it is always a privilege to follow the noble Lord, particularly in his plea that we parliamentarians should debate in depth with all who want to take part in this Chamber. This is my first opportunity to thank colleagues on the Front Bench, my noble friends Lord True and Lord Callanan, for the way they handled Committee stage. It was not an easy Committee; nevertheless, one notes that among the amendments on Report there are a number of government amendments that follow some quite long debates on issues. We should reflect as colleagues and thank them for listening and coming forward with those amendments.

Subject to rereading the debates on the final day, I also hope that it is now recognised in the House that there is nothing illegal about the Bill. Noble Lords may disagree with it and with the politics of it, but its legality is now without question.

I am sure everybody is pleased, as I am, that there appears to be total agreement that the common framework is complementary to this Bill as matters stand and that—we have listened to noble Lords from Wales, Scotland and Northern Ireland—it appears to have worked well. That is to be cherished but, having spent five years in the chair looking at this, I note that it is pretty unusual to have a linkage across one Bill that becomes an Act and another Bill that hopes to become an Act. If there is to be such a linkage, the evidence must be absolutely conclusive, because if you go down that road you will find a clash of interests at some point. As a parliamentarian, for me that is the worst of all worlds.

At some point, arising from the dimensions of some of the contributions today, we may well need a further Bill reflecting some of the issues voiced this afternoon. However, we should not impose a new clause which appears to undermine to a degree the drive of this Bill. We need to reflect that this is a UK government Bill. It is all about the powers of the UK Government, particularly regarding the internal market but nevertheless recognising that the UK Government are responsible for external matters.

This amendment appears to me, having looked at and thought about it quite a lot, to undermine this. I am really concerned that, as it stands today, this may undermine devolution to a degree. I fully accept and understand that we may well want a full debate on a different Bill on the powers that rest with the Northern Ireland, Welsh and Scottish Governments and with the central UK Government, but this is not the Bill for that. I understand people’s concern about it, but this Bill focuses totally—and I believe should continue to focus totally—on making a success of leaving the EU.

[Lord Rooker (Lab) [V]]

My Lords, I reflect from the debate so far that the leadership of the main political parties at Westminster would do themselves a favour if they studied the speech of my noble friend Lord Foulkes. I will not go over the detail, but there were sufficient warnings there from someone who has had experience of the Scottish Parliament, the House of Commons and the House of Lords that really need to be listened to.

The first four speeches, from the noble and learned Lord, Lord Hope, the noble Baroness, Lady Finlay, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Bourne, were masterclasses in argument in favour of the union, going well beyond this amendment. To be honest, I must tell the Minister that this is not a modest amendment, as far as I am concerned; no way is it a modest technical adjustment of the Bill.

This Bill, as was said earlier, destroys policy divergence. It is a one-size-fits-all Bill; to that extent, it is a rejection of devolution. I well remember the examples that my noble friend Lord Foulkes gave, as will the noble Lord, Lord Cormack. Take the 1974-79 Parliament; it was always at 10 o’clock at night that we got Scottish business, on housing and education, and we were on a three-line Whip, with slender government majorities or, most of the time, no government majority. We always thought, “Why can’t Scots deal with this themselves? This is a different legal system, which most of us do not understand.” Moreover, there was never enough time for those representing Scotland, who did understand it, to debate the matters fully. Born out of that was devolution.

My experience, which I will not go into in detail, was as a Minister at the ODPM and MAFF—which had massive contacts with the devolved Administrations simply because of the devolution of food, farming and agriculture—and then at the Food Standards Agency. At the time, the Scottish Government were in effect forced to set up their own food standards agency, as they were entitled to do by the legislation. Wales and Northern Ireland may well do the same—the legislation allows them to do it—because they will be forced into the situation as a result of issues such as this Bill.

I do not quite understand this issue of complementary arrangement. I spent a bit of time while listening to everybody’s speeches going through my dictionaries, thesaurus and everything, and I still do not understand it. There seems to be no connection between the common frameworks set-up and the Bill. If that is the case, I cannot for the life of me see how there can be any complementary arrangements. The Bill overrides the other processes; there is no connection whatever to that extent. Amendment 1 puts in a connection, which is crucial.

In terms of divergence over what is required with imports, the UK Government will take no account of what happens in the common frameworks process if the Bill goes unamended. Again, it will be one size fits all. The trade department will do the trade deals and take no account whatever of any desired or agreed policy divergence between the four constituent parts of the UK.

The Prime Minister has made the position crystal clear. It does not matter how much spin he puts on it or how many weasel words come from him and his acolytes; the fact is that he said that

“devolution has been a disaster north of the border”.

That is a fundamental attack on devolution; it would not matter who was in charge north of the border. He said it was a fundamental mistake of Tony Blair, but he later tied it to the actions of the current Government in Scotland; he did not say that to start with. He was fundamentally opposed to devolution. You cannot compare the devolution of the Mayor of London with what happens in the Governments of Scotland, Wales and Northern Ireland.

The union is at stake. Ministers seem to gloss over this. I think we are on our way to a federal Great Britain. I give full support to this amendment, which is fundamentally required. This is nothing personal, but I have never seen a spark of conciliation from the noble Lord, Lord True—I am sure he will take that from me as an absolute compliment—and I do not expect him to be at all conciliatory to what the noble and learned Lord, Lord Hope, has said, and in due course I expect to vote for the amendment.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

My Lords, I speak to this group of amendments in the name of my noble friend Lady McIntosh of Pickering and the noble Lord, Lord Foulkes of Cumnock, applying a super-affirmative resolution procedure to changes to the reach of Clause 8 on indirect discrimination on services— the goods, equivalent and various other clauses having fallen. Amendment 9 requires publication of the results of consultation and reasons for decisions reached, and Amendment 74 tries to overcome the Minister’s objection to the super-affirmative procedure on the grounds that it could cause needless delay, by providing for rapid approval in cases of urgency.

I agree with the need for consultation and explanation, but I am not sure that this needs to be in the Bill. There should indeed be an opt-out in cases of urgency, but only if this route were to find favour with our House. However, I do not believe that the case has been made that the super-affirmative procedure is needed, certainly not on the scale proposed and in the light of the amendments already made by the Government in respect of mutual recognition of goods.

I echo what the noble Lord, Lord Foulkes, said about the Minister’s readiness to listen to the experts in this House and to make changes to make this legislation work. I was involved in securing the procedures used very selectively in the withdrawal Act, when the then Minister, my noble friend Lord Callanan, was very helpful. I am a practical person, and I have not seen any real evidence here of the need for the use of the super-affirmative procedure. We need much more specific and concrete concerns to justify my noble friend Lady McIntosh of Pickering’s amendment. If the proposers of the amendment are just fearful, that is not enough to merit the super-affirmative procedure.

Perhaps the Minister can provide examples of how the powers in the clauses will be used and, perhaps more important, why he believes that the super-affirmative procedure is over the top in this case. That would sit on the record, Pepper v Hart style, and minimise the risk from the use of the powers in the Bill.

[Lord Naseby (Con)]

My Lords, given my five years in the Chair in the other place, noble Lords will not be surprised that I had a closer look at the super-affirmative procedure, where it has been used and where it should be used.

First, we all acknowledge that this is a very important Bill, which is why there is an affirmative resolution procedure in various clauses. We start with that. Secondly, as noble Lords have said, the super-affirmative procedure involves an additional stage of scrutiny where Parliament considers a proposal for a statutory instrument before it is formally presented—what we call laid. This procedure is used for statutory instruments that are considered to need a particularly high level of scrutiny. That is self-evident, I think.

I then checked where they had been used. The statutory instruments used so far usually amend or repeal Acts of Parliament. Examples would include legislative reform orders, localism orders, public bodies orders, regulatory reform orders and remedial orders. Although I have had only a short time to do it, I have not found it within primary legislation—I stand to be corrected, but I have not found it myself. Indeed, listening to my noble friend proposing that this procedure should be used, it seemed to me that it was a sort of grapeshot approach, scattered throughout the Bill, suggesting that all the bits in these amendments are absolutely vital and must be taken specially. I just do not think that stacks up.

Furthermore, because this Bill is important, and because we are dealing with devolved powers who will be consulted and worked with, it will just add further delay. That is not in the interests of Parliament, business, commerce, or the people of the United Kingdom. So quite frankly, I certainly will not be supporting this at all—I think it is almost out of order.

[Lord Beith (LD) [V]]

My Lords, in answer to the noble Lord, Lord Naseby, the fact that the super-affirmative powers have not been very widely used in the past is really no excuse for not using them where they are an appropriate way of dealing with important statutory instruments and providing a higher level of scrutiny. If the noble Baroness, Lady Neville-Rolfe, doubts the need for more use of the procedure, she should recall all those occasions when we have felt that a statutory instrument should be amended but have had no capacity to do so, and our dislike of a particular feature of it was not sufficient to justify blocking it or turning it down—something, of course, that this House very rarely does. It does address, although not by providing power of amendment, the lack of amendment power which is a characteristic of almost the whole of the statutory instrument system.

An alternative to heckling is the constructive tabling of an amendment, so we should welcome that, and I think that the noble Baroness, Lady McIntosh, and the noble Lord, Lord Foulkes—this new coalition, the Foulkes-McIntosh group—have done us a service in bringing this matter forward. If you worry, as I have done over many years, about the inadequacy of our procedures for dealing with statutory instruments, especially those which try to change primary legislation, super-affirmative procedure, as its name suggests, is better than ordinary affirmative procedure and better still than negative procedure, because it opens up fresh opportunities for how the matter can be dealt with. Because it takes more time, there should be some caution over which things we think it is right to use it for, but it could be much more usefully employed than it has been in recent years. Of course, it is not a single procedure; it is a category of procedure which is usually spelled out individually in the legislation which employs it, as in this case—and the noble Baroness, Lady McIntosh, has improved and added to the process in the version of it that is now before us.

The procedure allows for measured consideration. Sometimes measured consideration is impossible because of urgency, but things are not always as urgent as the Government say they are. Usually the urgency has arisen from the fact that the Government have taken too long dealing with it and have brought it to the House at a very late stage. Throughout the coronavirus epidemic we have had all these occasions when the House has suddenly been told that something is very urgent which the Government have been dealing with for weeks, and probably even announced many days previously, but are now giving the House minimum time to address. The Government cannot always claim that there is an inherent urgency in the situation; rather, they have created urgency by delay at their stages of the process.

Where measured consideration is appropriate, the super-affirmative procedures allow for it and allow the House to suggest amendments to a Bill, which the Government can then go back and consider. I think it has advantages and would have advantages for some of the processes in this Bill. So it is not the wild suggestion that the noble Lord, Lord Naseby, and the noble Baroness, Lady Neville-Rolfe, seem to think that it is. I think it has many advantages which ought to be deployed in circumstances such as this.

--- Later in debate ---

[Baroness Northover (LD) [V]]

My Lords, I support Amendment 10 and other amendments in this group. Powerful arguments have been made this afternoon about devolution. Common frameworks must continue to allow divergences within the devolved Administrations and between them and England. The Bill must not undermine this. The amendment relating to that, in the name of the noble and learned Lord, Lord Hope, was passed overwhelmingly.

At Second Reading the noble and learned Lord, Lord Judge, introduced his regret amendment by expressing shock at the Government’s plans to break international law. At the end of the debate he concluded that, stunned as he had been by these proposals, he had perhaps overlooked the extent to which the Bill also undermined devolution.

In this group we flag up some of the areas in which the devolved Administrations currently have flexibility. The Bill could prevent this, as my noble friend Lady Bowles and others have pointed out. As the noble Lord, Lord Anderson, said, these differences exist in the EU, even with its powerful single market. I am not sure how deliberate the removal of the existing flexibilities has been, or whether this simply reflects that devolution is not in this Government’s DNA.

I agree with what has been said about the environment. I want, briefly, to flag up public health, as did the noble Lord, Lord Young of Cookham. In the middle of a pandemic, this Bill potentially undermines our ability to move forward in this area. We see variations in public health which may well have played a part in encouraging the devolved Administrations to take more ambitious actions. The rates of alcohol-related deaths are more than 60% higher in the most deprived areas than in the least deprived. The highest rates of smoking are consistently found among the most disadvantaged. Scotland has the highest rate of alcohol-related deaths in the United Kingdom. Its Government have introduced a range of policies to address this. The Welsh Government have said that they will do more to extend non-smoking areas. This is also welcome.

These amendments seek to ensure that, when one devolved Administration move ahead of another, they can do so. We hope that they may be able to pull the others along with them. Undermining devolution is clearly one of the fundamental problems with this Bill.

[Lord Naseby (Con)]

My Lords, I respect the views of the noble Baroness who has just spoken, but I have to say that there is little in what she said that I agree with. Amendments 21, 48 and 49 are quite different from Amendments 10 and 11. They go, in my judgment, way beyond what is necessary for a successful free trade market. Really they amount to micromanaging, and on the whole Her Majesty’s Government in any form, whether it be devolved or central, certainly are not terribly good at managing commercial activities. So I suggest that those amendments are unacceptable.

Amendment 11 is one that I warm to because the environment is absolutely crucial. In that context we include climate change, which we know is affecting every nation in the world, so that is a very serious area. Whether this amendment is the right one or not is almost for the Government to decide. I care deeply about the environment. I am privileged to live outside London. I shall drive home tonight, 50 miles to Bedfordshire, and it is a very nice environment there. It is essentially a horticultural one, which brings me to the point that horticulture is changing, not least because we are looking to achieve a fair degree of import substitution. All sorts of new challenges arise from that. We virtually gave up in the glasshouse world, losing out to Holland. There is all sorts of experimentation going on—growing vegetables just in water and so on—but this is not the time to go into that.

I do worry that there are products at the margin, where there is always somebody lobbying against them. Smoking has been mentioned. I have never smoked, but I accept the current situation in which people have the right to smoke if they wish to, and there are clear frameworks in which they can follow that. Pesticides are important in the horticultural world because they affect yields; again, that is a controversial area. So I will listen to my noble friend, particularly on Amendment 11, about which I have a reasonably open mind. I know that the environment is absolutely crucial, but I do not want to see areas of our society and our market squeezed out because of some heavy lobbying from one particular group who do not like the particular industry involved.

[Lord Callanan (Con)]

My Lords, Amendments 10, 11 and 41 would expand the list of legitimate aims used to justify where statutory requirements in one part of the UK can indirectly discriminate against goods or services from another part of the UK. So I will start by saying that the Bill provides an updated, coherent market structure which will help to avoid future complexities and prevent costs being passed on to customers through an increase in prices or a decrease in choices. An expansive list of legitimate aims would increase the potential discrimination faced by businesses or service providers, eroding the benefits of the internal market and creating damaging costs and internal barriers to trade.

The current list in the Bill is targeted to allow nations to meet their respective goals while avoiding unnecessary damage to the internal market—a point that was well made by my noble friend Lady Neville-Rolfe. For example, the Bill already includes the protection of public, plant and animal health, and in some cases, of course, this will align with the protection of the environment. However—I cannot stress this enough—the Government have repeatedly committed to maintaining our world-leading standards across a number of different areas, whether that is in consumer protection, the environment, social and labour standards or public, animal and plant health. The Bill does not undermine the great strides that we have taken in these areas, and we will continue to be at the forefront of improving and protecting our high standards.

Under this Bill, the devolved Administrations will retain the right to legislate in devolved policy areas. Legislative innovation remains a central feature and, indeed, a strength of our union. The Government are committed to ensuring that this power of innovation does not lead to any worry about a possible lowering of standards, by both working with the devolved Administrations via the common frameworks programme and by continuing to uphold our own commitment to the highest possible standards. It is important to remember that the market access principles do not prevent the UK Government or the devolved Administrations adopting divergent rules for goods or services.