Trade Bill

Viscount Younger of Leckie Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 8th October 2020 Grand Committee

[Lord Bruce of Bennachie (LD) [V]]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Hope. The strength of argument he has put behind these amendments and the analysis that he always brings to bear are very forceful. I am grateful to all those who have spoken in this debate, because the Minister should be clear that they have articulated not only a very clear strength of feeling but a really strong force of argument behind all these amendments and the need to maintain the devolution settlement. Of course, all these amendments have devolution at the heart. How it is handled by the UK Government requires a huge sensitivity which, as a number of noble Lords have pointed out, has not always been displayed.

I shall speak specifically to my Amendments 27 and 76, and to Amendment 30, which I have signed. I am grateful to my noble friends Lady Humphreys and Lady Suttie, and the noble Lord, Lord Wigley, for signing Amendment 27, and to the noble Baroness, Lady Bennett, who certainly indicated some support for Amendment 76.

Far-reaching decisions under the Agriculture Bill, the Trade Bill and the forthcoming Internal Market Bill put the devolution settlements and the integrity of the United Kingdom under immense strain. This has been stressed by pretty well every speaker in this debate. It has come about because the umbrella of the European Union, which set the framework, is being removed, so powers that revert to the UK have to take account of the devolution that took place while we were in the EU. Some of the powers are fully devolved and come to the devolved Administrations. Some are reserved. All this requires that the powers that come back to the regions are not overridden. Those that are reserved, are reserved. That is clear. Those that are hybrid are clearly open to debate. But what is emerging is that some that are theoretically devolved are being clawed back by the Government’s interpretation of what is reserved.

These amendments seek to test the Government’s good faith and ensure that decisions that may radically alter the terms of trade for companies, the public sector or individuals within any or all of the devolved Administrations are taken in a fair and objective way. Amendment 27 requires the Government to secure the consent of the devolved legislatures to any regulations under the Bill, and proposed new subsection (6B) suggests that if two of the three devolved legislatures do not consent, the regulation should not proceed. Effectively, this is an exploratory amendment to see to what extent the UK Government respect the settlements and wish to achieve unanimity—or at least, as the noble Lord, Lord Hain, suggested, qualified majority support. I think most of us accept that it would be unreasonable to allow one devolved Administration to have a veto, but it is equally unreasonable to allow the one devolved Administration which is also the UK Government to have a veto over the three devolved Administrations, which is what the Government are proposing in the Bill.

Amendment 78 seeks to embed the role of the Joint Ministerial Committee, which has been underregarded to date. It has brokered the agreement on common frameworks, which will be subject to this House’s new committee, of which I am a member. However, it has not been the vehicle for negotiation and compromise that some had hoped for. It was envisaged by many that it would be the vehicle by which consensus could be secured. The amendment requires it to meet prior to concluding a free trade agreement and to secure the consent of the devolved Administrations.

What we are talking about in practice here is that trade agreements are treaties and treaties are reserved. Under the EU, our devolved Administrations could not, at least before we left, make common cause with subnational Parliaments and Governments across the other 27 member states. We are all familiar with the role of Belgium’s provincial Parliaments in ratifying EU treaties, and nobody in these amendments is seeking to give any of the devolved Administrations in the UK a comparable power—but once the power lies with Westminster and Whitehall, there is no Europe-wide constituency to pursue. There is no consensus to be built up across like-minded legislatures elsewhere, other than the three devolved Administrations, which have different priorities but common values and common concerns.

If the Government chose to conclude an agreement that lowered food standards, perhaps compromising Scotland’s prime beef sector, it would surely be essential that this was agreed by the Scottish Parliament. Indeed, I challenge the Minister to say under what circumstances the Government could justify that without securing such consent. If public procurement was amended to allow elements of the health service to be available for foreign investment, or for previously non-approved drugs to be allowed, or financial regulations to be lowered or changed in ways that were detrimental to Scotland’s important financial services sector, should the people of Scotland and their representatives not be consulted in a meaningful way?

I take on board the point made by the noble and learned Lord, Lord Hope, about whether it should be Ministers or legislatures—but, as he said, that is a matter of detail. The principle is that the voice of Scotland should be taken into account, and the same would apply on comparable issues in Wales and Northern Ireland. Of course, England needs devolution, and if the Government could find a democratic way of consulting the English regions, it could add a valuable balance. But the fact that that has not been done should not be used as an excuse to say that the devolved Administrations cannot expect to have their views given the weight that these amendments are trying to secure.

Ministerial insensitivity and indifference are, frankly, turbocharging nationalism and separatism. Next year’s elections will be hard fought between the extremes of what to me is a fantasy independence agenda and a UK Government cavalier about their claim to be unionist, and another crisis may engulf us all. I therefore urge the Government to wake up, think and engage, and at least to adopt the spirit of these amendments and show respect to the devolution settlement and an understanding of how to secure a positive way of working.

Dispute resolution will be required. The Government should accept that, ideally, we would like to see government amendments which take the spirit of the amendments that have been debated today and put it on the face of the Bill. That would ensure that any disputes are properly handled in an objective, fair and independent way, and that it is not just a matter of the assurance of a Government who, in the Bill, are saying that ultimately, in the event of disagreement within or across the devolved Administrations, the UK Government, representing the English devolved Administration and the UK, will override the wishes of the devolved Administrations. If the Government seek to do that, they will put a huge explosive under the continuing functioning of the United Kingdom.

It is important that the strength of feeling and the strength of argument that these amendments have demonstrated to the Government require a clear vision from government, and for it to be put on the face of the Bill before it is enacted.

[Viscount Younger of Leckie (Con)]

My Lords, as I respond to this continuing debate today, I welcome the opportunity to discuss the important issue of the devolved Administrations’ role in international trade and to demonstrate the significant strides that the Department for International Trade has taken on this matter since the passage of the Trade Bill 2017-19. I have listened to the arguments, and the essence of this debate has been a discussion on the balance between devolved and reserved, and, as the noble Lord, Lord Bruce, said, its link to the test of good faith. There are bound to be differing views on what that balance should be.

During the passage of the previous Trade Bill, the UK Government conducted a significant programme of engagement with the devolved Administrations and your Lordships’ House to ensure that the Bill delivered for all parts of the UK, including regular meetings with devolved Ministers and attending the devolved legislative committees. As a result of this engagement, the UK Government made a number of amendments and commitments to address the devolved Administrations’ concerns. This led the Welsh Parliament to consent to the relevant clauses of that Bill. We are conducting a similar programme of engagement for this Bill and have included all the amendments and restated all our commitments that we made to the devolved Administrations. As a result, the Welsh Government have once again recommended consent to the clauses that were contained in the previous Bill.

However, we have also gone further on this Bill and have made an additional amendment to remove a restriction on the devolved Administrations’ use of the powers in the Bill which the Scottish Government previously objected to. As a consequence, I am pleased that the Scottish Government have now also recommended consent to the Bill, and—to be helpful to the noble Baroness, Lady Ritchie—we are working very hard to ensure that the Northern Ireland Executive also feel able to do so. That the Welsh and Scottish Governments have already recommended consent demonstrates that the Bill is already drafted in a way that respects the devolution settlements. Indeed, in its report on the Bill, the Constitution Committee of your Lordships’ House welcomed the progress that we have made on this matter and made no recommendations for changes to devolution aspects of the Bill, which it might otherwise have done.

On Amendments 26, 27, 31 and 99, as many noble Lords have highlighted already, international trade is a reserved matter under the devolution settlements. However, the noble and learned Lord, Lord Hope, rightly noted at Second Reading and today, in line with the noble Baroness, Lady Humphrey, on Tuesday, that the implementation of international obligations in devolved areas is a devolved matter. We absolutely recognise the devolved Administrations’ competence in this area, which is why the Bill confers powers on them so that they are able to implement our continuity agreements where they touch on devolved matters.

As the noble and learned Lord, Lord Hope, also noted at Second Reading, these are concurrent powers that also allow the UK Government to legislate in devolved areas. We have sought to put in place concurrent powers to provide greater flexibility in how transitioned agreements are implemented, allowing each devolved Administration to implement the agreements independently in some cases, but also allowing the UK Government to legislate on a UK-wide basis where it makes practical sense to do so.

We understand that those powers should be used appropriately, which is why the Government have committed that we will not normally use the concurrent powers to legislate within devolved areas without the consent of the relevant devolved Administration, and never without consulting them first, as the noble and learned Lord, Lord Hope, said. We have also put in place a five-year sunset provision on the concurrent powers in Clause 2, which can be extended for further periods only with the agreement of both Houses of Parliament. We recognise that this would also extend the devolved Administrations’ and the UK Government’s ability to use the powers in devolved areas, and have therefore committed to the devolved Administrations that we will consult them before extending the sunset.

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Moved by

[Viscount Younger of Leckie]

That the debate be adjourned.

[Viscount Younger of Leckie (Con)]

My Lords, with apologies to the remaining speakers, I beg to move that the debate on this amendment be adjourned.

Motion agreed.