Trade Bill

Viscount Younger of Leckie Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th March 2019 Lords Chamber

Moved by

[Viscount Younger of Leckie]

27: Clause 7, page 5, line 15, leave out subsection (2)

[Viscount Younger of Leckie (Con)]

My Lords, I rise as batsman No. 3 today. This group covers Amendments 27, 28, 29, 30 and 36 to 58. I will speak to Government Amendments 27, 29, 30 and 36 to 58 which are minor, technical amendments. I will then respond to amendment 28 tabled by the noble Lords, Lord Stevenson of Balmacara, and Lord Purvis of Tweed, after they have spoken to their amendment.

To avoid the unnecessary duplication of a provision already in place by virtue of the European Union (Withdrawal) Act, Amendment 27 removes Clause 7(2). Clause 7(2) allows for devolved Administrations to make regulations under section 1(1) or 2(1) of the Trade Bill before exit day provided that those regulations do not come into effect until exit day. This is already provided for by the European Union (Withdrawal) Act, which applies this principle to all Bills passed after the Act in the same Session of Parliament. There will be no change to policy with the removal of Clause 7(2); it merely removes an unnecessary and duplicative provision.

For the Bill to work in the way that is intended, the definition of subordinate legislation must include Acts passed in devolved legislatures as well as in the UK Parliament. This is possible by changing the definition of subordinate legislation from that used in the Interpretation Act 1978 to the more detailed one used in the European Union (Withdrawal) Act. This is the purpose of Amendment 29 which ensures that, where possible, the provisions in the Bill respect the important role of the devolved Administrations.

Turning to Amendments 30 and 36, Clause 8(6) in Part 1 of the Bill sets out a list of definitions of terms found in the Bill, such as “devolved authority”. The amendments will move the definition of domestic law from Schedule 1, paragraph 2(7) to Clause 8(6), where it will sit alongside other definitions that relate to the devolved Administrations. This will make the Bill easier for people to follow.

Turning to Amendments 37 to 43 and 45 to 58, Schedule 1 to the Trade Bill allows joint procedure requirements that derive from outside the Trade Bill still to apply to regulations made under Clauses 1 and 2 of the Bill. By inserting the phrase “acting alone” to appropriate places in Schedules 1 and 2, as Amendments 37 to 43 and 45 to 58 seek to do, we are improving the quality of the legislation by clarifying when the devolved authorities are acting alone as opposed to acting jointly with the UK Government.

Amendment 44 ensures that paragraph 6(4) of Schedule 1 works as intended by applying consultation requirements that would otherwise bind Northern Ireland devolved authorities to regulations made under Clause 1(1) and 2(1). These changes are technical in order to tidy up the Bill, and as such I hope your Lordships will support them.

[Lord Stevenson of Balmacara]

My Lords, it is a test of the abilities of Ministers to be able to breathe life into a list such as that we have just heard. This is a case of drafting amendments beyond the boredom threshold of many people who have to sit through these debates, and I congratulate the noble Viscount on his ability to do that well. I have no objection to the points that he has made and will support them enthusiastically when asked to do so.

In this group, which includes a lot of one-line amendments, is a large amendment dealing with the Sewel convention, which has operated for a number of years in relation to devolved matters in the Assemblies in Scotland, Wales and Northern Ireland—when they meet. It is there because there is concern that the Government have still not bottomed out their arrangements for how all such matters are to be dealt with going forward. While there is no complaint that the convention has not worked well until now, conventions are conventions and there is an argument, at least in principle, that at some point—either now or at some later stage—an attempt should be made to clarify the rules by which it operates and the conditions under which it exists.

I say that particularly because there remains a continuing concern over how the Government attempted to legislate in the withdrawal Bill, in particular on matters being devolved—as they may be under any agreement with the EU or if we crash out—to the UK but for which there was a strongly persuasive case for them going directly to the devolved Administrations. In those circumstances, a great deal of work has been done and a lot of the individual issues have been settled, one way or another. However, a list of matters relating to devolved issues still needs to be resolved so that where they intersect with other geographical locations, there is a workable scheme under which progress can be made.

One issue that arose previously was the extent to which the devolution legislation passed in this House to set up theses bodies could be invoked for issues concerning who has the authority to legislate where a matter is devolved. If a matter is not reserved under the Act, it is devolved, so matters that fall to be devolved must have the consent of the body to which the issue is devolved under the Sewel convention. I am putting this simply; the arrangement is more complex. In the case before us, with trade being such an important issue, we felt that there should be some measure in the Bill to explain exactly the conditions under which the convention would operate and the extent to which it would or would not be concerned. The amendment’s wording is quite clear:

“Regulations made … by a Minister of the Crown may not normally make provision which would be within the devolved competence of a devolved authority”,


unless the Ministers consent. It goes on to say that it would normally be within the devolved competences of the devolved authority, to which conditions are attached. That applies to all areas.

That would have been a very simple introduction to a very simple issue on which I would expect the Minister to respond. However, it will not have escaped the House’s attention that only yesterday, a very similar amendment to another Bill—the Healthcare (International Arrangements) Bill—was moved by the noble Baroness, Lady Manzoor, on behalf of the Government. It covered almost exactly the same territory. It was phrased positively, in a way that the amendment before the House today is not, but it covers the same ground. It said:

“Before making regulations … that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority on that provision”.


It goes on to explain the conditions under which that would operate. The wording is not identical but I would argue that the sensibilities and principles behind this matter are identical to those of that amendment. Does the Minister therefore recognise that, to the extent to which the Government have already considered this issue and legislated for it, it may be in the Government’s best interests to accept Amendment 28, since to do otherwise might cause difficulty for what has already been agreed to in the healthcare Bill? Alternatively, would he agree to meet me and other noble Lords to discuss this, so that we can come back at Third Reading with wording that is consistent with what will soon be in law via the healthcare Bill and appropriate for the Trade Bill?

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[Lord Hope of Craighead (CB)]

My Lords, I add my support to Amendment 28. I hope not to repeat too many of the points already made.

The Minister may have seen the letter from Mike Russell, dated 11 March 2019, to which the noble Lord, Lord Purvis, referred. He draws attention to the fact that the Scottish Parliament is not prepared to give its consent to the Trade Bill as presently drafted, which is a matter of some concern. It is not just being obstructive; it is taking a measured position based on Clause 2 of the Scotland Act 2016, to which the noble Lord, Lord Purvis, also referred. In his letter, Mike Russell said, as the Scottish Government has pointed out, that many of the 24 policy areas currently identified as potentially subject to such regulations are highly relevant in terms of future trade deals, for example food and feed safety, animal health and welfare, agriculture, environmental policy, food labelling, procurement and fisheries management. It is vital that the Scottish Government and Parliament should be able to protect and advance Scotland’s interests and approach in these areas. It is concerning that the Bill as drafted does not mention either consent or consultation. I hope that the Minister will feel able to look at this matter more carefully before we reach Third Reading.

I will make two further points. First, the wording of Amendment 28, adopting the formula in the Scotland Act, uses the word “consent”. I recall long arguments, when we were debating the European Union (Withdrawal) Act, about whether the word “consent” should be included in its various provisions involving interaction with the devolved authorities. The matter was resolved, in connection with the frameworks in relation to trade, by using the word “consult” instead of the word “consent”.

Personally, I would argue that we should adopt the forms in the Scotland Act, but the fact that the word “consult” was used in the amendment to the Healthcare (International Arrangements) Bill, to which the noble Lord, Lord Stevenson, referred, might be worth some reflection on the Minister’s part. As the noble Lord pointed out, the formula used in Amendment 15 to that Bill, which was an insertion after Clause 4, was:

“Before making regulations under section 2 that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority on that provision”.


That does not go as far as the Scottish Government wish, but at least it is a step in the right direction. As that amendment was moved by a Minister to a closely related Bill—it is part of the general package that we are considering, which is all related to our departure from the EU—I hope that the Minister and his Bill team will give careful consideration as to whether, if the Minister is not prepared to accept the formula in Amendment 28, that formula should be adopted instead. The difference between “consent” and “consult” is quite significant—but consultation, at least, would go a substantial way to meeting the concerns of the Scottish Government in these very important areas.

I shall add one further point. I was in the Grand Committee the other day looking at a statutory instrument that had been made by a UK Minister, and it contained a substantial number of amendments to Scottish legislation made by the Scottish Parliament. I asked why that was being done in a UK SI, rather than being dealt with by the Scottish Parliament. When one looked at the description in the back about consultation, one saw that it was defective, because it did not make it clear that the Scottish Government had been consulted. That was an example of a statutory instrument made by a Minister, on which one would have thought that consultation was essential—indeed, during discussions on the withdrawal Bill I was assured that the Sewel convention would be applied—yet the narrative was incomplete. That may have been simply a technical error, but it illustrates how easy it is to overlook the need for consultation, at least, unless that is on the face of the statute. So I warmly support the points made by the two noble Lords in support of the amendment. If the matter is to be taken away, I hope that the Government will come back on Third Reading with something to address this important issue.

[Viscount Younger of Leckie]

My Lords, I thank the noble Lord, Lord Stevenson, for this amendment, and for his scrutiny of the devolution provisions in the Bill throughout its passage. I also thank the noble Lord, Lord Purvis, and the noble and learned Lord, Lord Hope, for his points, which I will address later. Ensuring that the Bill works for the whole of the UK remains a priority for the Government, so I am pleased to inform your Lordships that yesterday the National Assembly for Wales voted in favour of granting consent to the Bill. I ask that this House consider that when weighing the scrutiny of the Bill in the context of the devolution settlements.

The practical purpose of the amendment is that the UK Government should, as a matter of course, seek the agreement of the devolved Administrations prior to legislating in areas of devolved competence. This is not, in principle, an area of contention; rather, the question is whether this should be on the face of the Bill. I reiterate that the UK Government are committed to not normally using the powers in the Bill to legislate in areas of devolved competence without the consent of the relevant devolved Administrations, and certainly not without first consulting them.

We have respected the role of the devolved Administrations through our programme of engagement with them, government amendments in the other place and my renewed commitment today. The Government will maintain this commitment. More broadly, the UK Government have been working productively and collaboratively with the devolved Administrations on a number of fronts. UK government officials are working with devolved Administration officials to revise the common frameworks analysis and take into account progress on framework areas since March 2018. The Government anticipate publishing a further iteration of this analysis shortly.

During our debates on this legislation, there have been many areas of agreement between us and noble Lords on the opposite Bench. Indeed, the noble Lord, Lord Stevenson, was correct to say in Committee that the use of the powers in devolved areas is,

“more complicated than can be dealt with within the confines of the Trade Bill.”—[Official Report, 23/1/19; col. 724.]

Additionally, the amendment risks setting a precedent whereby competence for policy-making is defined outside the established devolution settlements. It seeks to go further than the convention already recognised in the most recent Scotland and Wales Acts, and could require the court to make a decision on whether or not we were in normal circumstances. I do not believe it is the intention of this House to introduce new legal uncertainty to our statute book.

The Supreme Court made it clear in the judgment on the Miller case that it does not believe it is appropriate for the courts to police the Sewel convention, as it does not lie within the constitutional remit of the judiciary. By inviting this potential judicial scrutiny, the amendment could obstruct the programme of continuity that the Bill seeks to deliver, as the use of the powers could be substantially delayed, to the detriment of the UK as a whole.

I shall now deal with the point raised by the noble Lord, Lord Stevenson, when he mentioned the Healthcare (International Arrangements) Bill. As he knows, I was not involved with that Bill, but I hope that I can help. The amendment to that Bill requires the Secretary of State only to consult. Amendment 28 involves a consent requirement. Those are very different—and this plays into the point made by the noble and learned Lord, Lord Hope. For reasons that we have set out, the consent requirement would create a legal test for the courts, and therefore uncertainty. The powers in the healthcare Bill are different, too. The benefit of the concurrent powers in the Trade Bill is that they allow for the relevant Administrations to legislate themselves where a matter falls under devolved competence, and also allows Ministers of the Crown to make regulations for the whole UK when that makes sense.

As well as the benefits to the devolved Administrations of the concurrent powers, we have made repeated commitments on the Floor of both Houses always to consult the relevant devolved Administration. To take up the point raised by the noble and learned Lord, Lord Hope, about creating legal uncertainty, although the amendment includes the word “convention” in its title, it uses words that appear designed to turn the convention into a legal test. It uses the words “may not normally”, which appear designed to make that a legal rule justiciable by the courts. This could be a substantial block on the use of the Clause 1 and 2 powers, and could lead to delay through litigation, or, ultimately, to a block on the use of the powers if the court judged the situation to be normal. This could allow a challenger the power to withhold consent to the implementation of part of an agreement, meaning that the UK could not bring it into force until the matter was resolved.

[Lord Purvis of Tweed]

Clearly, I would always defer to the noble and learned Lord, Lord Hope, on these issues, but I had a slight anxiety when I heard the Minister say from the Dispatch Box that UK Ministers would be allowed to make regulations where they considered that that “made sense”. That is not language that we have become accustomed to in devolution practices over the past 20 years. UK Ministers could say almost all the time that it made sense for them to bring forward such regulations, especially in the context of trade agreements that they themselves had negotiated. But that is not the point. The point is that the legislative competences are not those of UK Ministers, but those of other bodes. All we ask is that the practices that have been developed, which have now been adopted in the Scotland Act—it contains language recognising that the Parliament of the United Kingdom “will not normally legislate”—be continued. That is now well established in statute. I cannot see why the Government say that it would cause problems in a separate statute, because it is already in statute.

[Viscount Younger of Leckie]

I listened carefully to what the noble Lord said. He referred to the point I made about making sense, and legislative efficiency after consultation with the devolved Administrations is what we are looking for. So in effect, I believe that we are on the same side of the fence. But given that we are getting into some quite detailed discussions and debates and my job is to give answers, it may be helpful if we go into such detail outside the Chamber with a further meeting. I have not finished yet, but I hope that so far I have given some reassurance to noble Lords.

Returning to my opening point, the vote yesterday in support of a legislative consent Motion by the National Assembly for Wales is a significant endorsement of the Trade Bill, and I am pleased that the UK Government have been able to meet all of the Welsh Government’s requests to improve the Bill. The Assembly’s vote recognises the UK Government’s meaningful efforts in ensuring that the Bill works for the UK. I hope that I have provided sufficient reassurance on the Government’s commitment, and the potential unintended consequences of this amendment. Therefore, I ask the noble Lord not to press Amendment 28.

--- Later in debate ---

[Lord Stevenson of Balmacara]

My Lords, this has been a useful little debate and I am grateful to the noble Viscount, Lord Younger, for raising all the points that he did and giving such a full response. But may I check with him that he said—it will be in Hansard—that he would be happy to have further discussions about the issue? I appeal to him and his good sense. Given that we are already in debate with him and his officials on a number of issues, this could with advantage be added to the list. It is not that we have any particular reason to want to bring it back in any aggressive form at Third Reading, but the issues raised are worth further discussion, particularly because the Government have chosen to legislate in the Healthcare (International Arrangements) Bill and that, irrespective of whether or not it has direct read-across to the Trade Bill, will have set a standard. We have to be careful that we are not either missing or exceeding that in a way that would be detrimental to any future discussions on trade.

I am willing not to press this amendment if we can be absolutely clear that there will be further discussions, because this point has not been fully resolved. But I give an undertaking that this is in no sense trying to make things difficult for the Government. It would be worth going a further round to get this right.

[Viscount Younger of Leckie]

As I said, I am very happy to be part of further discussions.

[Lord Stevenson of Balmacara]

A further meeting, principally with those who raised points in this debate, would satisfy us. I do not think that we are far apart on this, but if we can work out exactly what we want said in a way that would advance the chances of getting a better result for all concerned, that would be the right way forward.

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[Lord Fox]

My Lords, we have heard many times about the soft power of education as it reaches out around the world. This is a way of collecting hard data about the economic benefit to this country. I cannot see why the Government would be unable to support it.

[Viscount Younger of Leckie]

My Lords, the Government welcome international students, who make a valuable contribution to the UK economically and culturally. They bring greater diversity to university and college campuses and an international dimension to the experience of all students. They also stimulate demand for courses and add to the UK’s impressive research capacity. In the longer term, they offer the prospect of productive business, political, cultural and research links. Of course, they also bring welcome income to UK universities and our wider economy.

We are pleased that the UK remains a highly attractive destination for international students. UK higher education institutions hosted almost 460,000 EU and non-EU students in 2017-18, the highest number on record. There remains no limit on the number of students who can study here, and there are no plans to introduce one.

In the Higher Education and Research Act, there is provision for a faster and simpler route for high-quality new providers to enter the sector and gain degree-awarding powers. This allows the sector to diversify and strengthen its international offer, providing even better opportunities to students from all over the world.

The Department for Education currently publishes data on the value of UK education exports annually. These statistics cover education exports and transnational activity relating to higher education, further education, schools, English language training and products and services. I am grateful for the comments made by the noble Lord, Lord Fox, the noble Earl, Lord Kinnoull, and the noble Baroness, Lady O’Neill. It is important to look at the statistics, and I will start by giving a view of the ones that we already publish. The latest education exports data publication was dated January 2019. It set out that total education exports and transnational education activity were estimated to be worth almost £20 billion in 2016. International students at higher education institutions contributed £11.9 billion in exports through living expenditure and tuition fees alone that year. This accounts for around 60% of the total value of education exports and activity.