United Kingdom Internal Market Bill

Lord Young of Cookham Excerpts

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

[Lord Young of Cookham (Con)]

My Lords, Amendments 39A, 47A and 52A are in my name and those of the noble Baroness, Lady Northover, and the noble Lord, Lord Faulkner of Worcester. They have the support of Cancer Research UK, the Faculty of Public Health and the British Heart Foundation along with Action on Smoking and Health and the Alcohol Health Alliance UK, for whose briefing I am grateful.

The amendments address some of the concerns expressed by the Scottish and Welsh Governments over the Bill, regarding a risk of a race to the bottom in relation to public health. They also complement amendments in earlier debates that sought to restore the flexibility that exists under the common framework for legitimate variations in approach within the component parts of the UK—a common theme that has run through our debates this week—so my amendments are another pair of braces for the belt of the noble Baroness, Lady Finlay.

The noble Lord, Lord Anderson, in a remarkable speech, mentioned public health. Public health is an essential part of this debate; Covid has finally brought home to us the importance of what was previously the Cinderella service of our healthcare system. To quote the Secretary of State for Health:

“The first responsibility of any government is the protection of its citizens, and threats to public health are among the most important of all.”


So it is critical that the provision of market access is balanced against the ability of Governments to protect the health of their citizens.

With regard to goods, the Bill describes exemptions in two places: Clause 8(3) and in the list of legitimate aims, including the protection of human, plant or animal health, public safety, along with a number of other more specific exclusions in Schedule 1. In both instances the Secretary of State can amend the core principles of the Bill, which are quite rightly enshrined in primary legislation, and he can do so by regulation. Again, that has been a consistent theme throughout our debate.

The House of Lords Delegated Powers and Regulatory Reform Committee has raised serious concerns that the power included in Part 1 to amend, repeal or otherwise modify legislation by regulation is inappropriate as drafted and should be removed from the Bill. The Marshalled List is full of amendments raising objections to these powers. My amendments focus specifically on the impact on public health.

The ability to alter these regulations matters. Take, for example, minimum unit pricing for alcohol, as currently exists in Scotland and Wales. The Government have argued that new policies similar to minimum unit pricing would be possible under the Bill because they are covered by the non-discrimination principle, so there is a pathway through which they might be justified. Minimum unit pricing might be a necessary means of achieving the legitimate aim of protecting human health. In future, though, through a simple affirmative resolution procedure the Secretary of State could modify that list of legitimate aims to remove the justification of protecting human health so that that was no longer the case. That is an insufficient safeguard for future legislation to protect our health, and the amendment would prevent that. The reach of market principles is so broad that a number of other potential policies, including regulations to restrict the availability of alcohol, attempts to raise the age of purchase for cigarettes, restrictions on children buying sugary drinks and other legitimate public health measures, could all be similarly vulnerable.

I turn briefly to Amendment 52A, which aims to expand the reach of the public health exclusions listed above. The proposals contained in the initial White Paper would have posed more potential risks for public health, but the Government have listened and have put in the protection of being a

“necessary means of achieving a legitimate aim”,

as I mentioned earlier. This is very welcome, but the protections are unevenly applied, allowing legislation that aims to protect our health and safety to be justified in some instances only. This is because the Bill contains two market access principles, non-discrimination on the one hand and mutual recognition on the other. Currently, only non-discrimination can be overridden by a policy that is shown to be necessary to pursue a legitimate aim. Mutual recognition contains no such clause. This is different from the status quo, where a general exclusion for the protection of human health against a broad range of other aims exists. It is in that respect a step backwards, a point made by the noble Baroness, Lady Finlay. This difference is significant, as mutual recognition covers characteristics of goods such as packaging, content and labelling, all key areas of public health.

To take one example, 40 years ago, when I was a Health Minister under Margaret Thatcher, I argued for a health warning not just on cigarette packs but on individual cigarettes. If, for example, the Welsh Government legislated to do exactly that, I would be delighted to see it implemented but, because this is subject to mutual recognition, Wales would be unable to require it for cigarettes coming into Wales from other parts of the UK, even if they were originally produced overseas. A range of similar examples includes calorie labelling on alcohol, as proposed by the Department of Health and Social Care; including information about the medical officer’s low-risk guidelines, something that Scotland has expressed some interest in legislating on; improved front-of-pack warnings on cigarettes; or even policies such as restricting the amount of sugar in goods sold in Scotland. That was an example given in the Scottish Government’s legislative consent memorandum.

Finally, this could also impact on England. Let us take, for example, the current plans of the Department of Health and Social Care to consult on requiring calorie labels on alcohol products to help reduce obesity in England. Once more, if England implemented this requirement, it would not be able to enforce it on alcohol sold in England but produced, or even first imported, into other parts of the UK.

We have made great strides forward in public health, in part because the swiftest moving parts of our union have been able to lead the others. England led the way on restricting tobacco displays in shops. Scotland and Wales are ahead on policies such as minimum unit pricing. This lack of a broad public health exclusion risks this advantage being inverted and our pace being locked into the slowest moving of our constituent parts. I know that the Minister will have taken note of the concerns raised by noble Lords in this debate and that he will endeavour to meet them, but I hope that between now and Report there will be discussions with a view to finding acceptable amendments that do not prejudice the key pursuit of legitimate public health objectives.

[Lord Hope of Craighead (CB) [V]]

My Lords, I am in sympathy with the words just uttered by the noble Lord, Lord Young of Cookham, but I wish to speak to my own amendment, Amendment 36, and I am grateful to the noble Baroness, Lady Finlay, for her support.

My amendment is concerned with the meaning of words and, to some extent, achieving compatibility, as far as possible, with devolution legislation. It is directed to the definition of the expression “legitimate aim” in Clause 8(6), which sets out two aims, one of which is

“(a) the protection of the life or health of humans, animals or plants”.

If the draftsman of the Bill was to look at Part 1 of Schedule 5 to the Scotland Act 1998, under heading C5 he would find similar words set out in one of the exceptions to the reserved powers; that is, exceptions which mean that the things described are within the devolved competences of the Scottish Parliament. It refers to the

“protection of animal products, plants and plant products for the purposes of protecting human, animal or plant health, animal welfare or the environment.”

My point is that what one finds in subsection (6)(a) takes part of what is found in that provision but misses out some other important words. The phrase I quoted from the Scotland Act draws a distinction between animal health and animal welfare. There is some basis for that distinction because there are things that are designed to achieve the welfare of animals that are not directly related to their state of health. So there is some force in considering the addition of “animal welfare” to the formula in that provision. It also refers to the environment, and nowadays, thinking of all the concerns we have about the environment, I would have thought one could, without damaging the purposes of the Bill, include the words “protection of the environment” within the formula of the clause.

These are drafting points. I draw them, if the Minister will forgive me, more to the attention of the Bill team and the draftsman of the Bill to see whether he can find room for including words in my amendment. It is to make sure that they cover what I take to be the broad aim of the language; it is the kind of discussion we might have had, had we been given time, around a table, discussing how those particular provisions should be framed.

I am not trying to damage the Bill or adjust it in any more significant way; I just want to see that the language used covers the aim of the provision fully and completely. It is on that basis that I brought forward this amendment.

United Kingdom Internal Market Bill

Lord Young of Cookham Excerpts

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

[Lord Young of Cookham (Con)]

My Lords, it is a pleasure to follow the compelling speech of the noble Lord, Lord Anderson. I have added my name to Amendment 10 in the names of the noble Lords, Lord Stevenson of Balmacara and Lord Anderson of Ipswich, and the noble Baroness, Lady Bowles of Berkhamsted.

As I said in Committee, it is essential that all the nations within the UK can pursue effective policies on public health, which is my particular interest. Last Friday, the Public Services Select Committee, of which I am a member, published its first report on the lessons from coronavirus for public services. One of the key recommendations to the Government was that there is an urgent need to recognise the vital role of public health in reducing deep and ongoing inequalities exacerbated by Covid-19. Unamended, the Bill makes that task more difficult.

While the committee welcomed the Government’s commitment to extend healthy life expectancy by five years by 2035, and to narrow the gap between the richest and the poorest, we also recognised that this would be tough to deliver. We called on the Government to wait no longer before publishing their strategy to achieve this manifesto commitment and their response to the Green Paper Advancing Our Health: Prevention in the 2020s, which was due in January this year.

Why is this relevant to these amendments? Currently, the internal market within the UK has the flexibility, through exclusions, to allow different parts of the UK to move at different speeds on public health. England was able to lead the way on restricting tobacco displays in shops; Scotland and Wales are currently ahead on policies such as minimum unit pricing for alcohol. However, the internal market Bill may limit future innovations, as the exclusions are both narrow and narrowly applied to only part of the market access principles.

While policies similar to those I just mentioned might be allowable, it is not difficult to identify future public health policies that would not. For example, in the Explanatory Notes to the Bill, the Government describe how these rules would allow a packet of crisps produced in or imported into any part of the UK to be sold in any other. However, this leaves little space for Governments within the UK to pursue future legislation that aims, for example, to restrict the salt content or size, or even to improve the labelling, of crisp packets. The justification for this is unclear, as articulated in a blog by the Institute for Government.

My view is that leaving the EU should not remove the ability we currently have for different parts of the country to move at different paces. This has meant that we have not had to move at the pace of the slowest, and the different parts of the UK can benefit from the experience of the market leader. The noble Lord, Lord Anderson, made this point well. The Government have failed to explain why their list of exceptions is so much more restrictive than that of the EU or, indeed, the WTO. While the justifications are unclear, the risks are anything but. Unless the Bill is amended, some of this ability to innovate would be lost. This would be a step back for the UK, not a maintaining of the status quo.

The background over the last few years has been to give Holyrood and Cardiff more autonomy, not less. The Bill conflicts with that trend, helping to increase demands for independence and undermining the devolution settlement. It would not limit the ability of just the devolved nations to act, but that of England too. As part of its obesity strategy, the Department of Health and Social Care will consult on requiring calories to be included on alcohol product labels. The mutual recognition principle could hamper this legislation if alcohol produced in the rest of the UK was not required to display calories. Further, if overseas companies wished to avoid displaying calories, they could simply ensure that their imports arrived in another part of the UK before moving them to England for sale. When other noble Lords and I raised our concerns about this in Committee, my noble friend Lord Callanan, responding for the Government, was unyielding. Indeed, he said that the exclusions from market access principles were

“intentionally narrowly drafted, to ensure that there are no unnecessary trade barriers that would ultimately increase costs to businesses and consumers while reducing choice.”—[Official Report, 28/10/20; col. 339.]

The Government have demonstrated that they are willing to listen to the concerns of the House—for example, with the removal of the Secretary of State’s powers to change the scope of the mutual recognition principle—yet in other parts of the Bill they have suggested a relatively small adjustment, with the need to “consult with” but not “gain consent from” the devolved nations before using these powers. There has still been no movement on the limited nature of the public interest exceptions in the Bill, nor am I aware of any discussions on that, as I called for in Committee. That is why the amendments have been brought forward again on Report.

These amendments are supported by a wide range of health organisations: the British Heart Foundation, the British Lung Foundation, Asthma UK, Cancer Research UK, the Faculty of Public Health, the Mental Health Foundation, the Royal Society for Public Health, Action on Smoking and Health, and the Alcohol Health Alliance, for whose briefing I am most grateful.

I very much hope that, even at this late stage, the Bill might be amended and the Government might reflect the concerns that have been so widely shared on this subject.

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I support the general thrust of all the amendments in this group, and I have added my name to Amendments 10 and 21, which relate to goods. I should also have put my name to the services amendments, because both I and my group support those as well.

As was debated in Committee, we already worked under a more generalised public policy, legitimate aim regime while in the EU, and, as the noble Lord, Lord Anderson, said, that provided safety valves, which have now been taken away. In Committee, the Minister argued that the UK internal market was different, and for some reason that meant that it needed to be narrower. I cannot understand why—perhaps because we are closer together—we have to have fewer freedoms because we have left the EU. Therefore, I agree entirely with the drafters of the amendments that there are many more legitimate aims that need to be spelled out.

Realistically, differences will not be introduced into the market without a lot of thought. As my noble friend Lady Humphreys said in Committee, Wales is a good size to experiment with. The noble Lord, Lord Young, gave examples of various nations progressing at different speeds. Differences will survive only when they are practical and when matters of good public policy all deal with specific problems within a particular area, but they should be allowed to be put to a proper test and should not be undermined from the start by immediate get-arounds.

These are important amendments, and I hope that the Government will consider carefully why it is necessary for the Bill to undermine the freedoms currently enjoyed. That is not how Brexit was advertised, whether you were for or against it.