House of Lords
Wednesday 28 October 2020
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Carlisle.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, respecting social distancing, while others are participating remotely, but all Members will be treated equally. Oral Questions will now commence. Please can those asking supplementary questions keep them short and confined to two points? I ask that Ministers’ answers are also brief.
Clean Growth Fund
My Lords, the £40 million Clean Growth Fund was launched in May 2020 as a commercially run venture capital fund managed by Clean Growth Investment Management. The fund manager has had over 400 expressions of interest from SMEs and intends to make several investments in UK companies this financial year. The Clean Growth Fund will develop a broad portfolio of companies investing in software and hardware across the power, transport, industry, buildings and waste sectors.
My Lords, I thank the noble Lord for his Answer. We have to invent a way out of the critical climate change emergency that we are in. Thankfully, innovation is playing a major role in finding ways of reversing the unbelievable level of pollution that human activity produces. This is a global problem, though, and it is clear that international co-operation is vital if we are to solve it. Does the Minister not agree that the budget for the Clean Growth Fund should be prioritised, be more transparent and have its remit expanded to work more closely with similar organisations around the world if we are to save our precious planet?
My Lords, I am always sceptical of government picking winners, especially where the issue is not a shortage of private sector investors but too few profitable projects to finance. That said, will my noble friend maintain the Government’s focus on sustainable and resilient supply chains for energy, food, water and raw materials and transparently provide clarity with their co-investors on the criteria that cannot be met exclusively through private sector funding mechanisms?
I declare my interest as a director of the Peers for the Planet group. A Resolution Foundation report out today states that 20% of 18 to 24 year-olds are likely to face unemployment, yet there are huge potential opportunities for employment in the clean energy and climate crisis innovation areas. What are the Government doing to make sure that these young people are able to have the skills that they need to take up what will be an enormous amount of potential job opportunities?
I agree with the noble Baroness that there are tremendous opportunities, but we have a number of other government funds outside of the one that we are discussing today. For instance, the Green Homes Grant scheme has a training element within it, with several million pounds of grants allocated to training providers to provide jobs in exactly the sector that she mentions.
The managing partner of the Clean Growth Fund, Beverley Gower-Jones, has said that the fund will hopefully invest in two companies before the end of the year. This is from among hundreds of applications. Can the Minister explain how the aim of only two companies is reflective of the UK’s bold climate ambitions? How will the taxpayer share in any return and when might that opportunity materialise?
That is two companies this financial year; a number of other companies are in the pipeline. I am sure that the noble Lord would agree that it is proper that the fund manager does the appropriate due diligence to check that the money is well spent and invested properly. There have been 400 expressions of interest and the duration of the fund is over 10 years. It is a commercially driven fund and we hope to get our money back at the end of the day.
Can the Minister say how many local authorities applied for grants from the £2 million from the Clean Growth Fund allocated for improving air quality? How much has gone to London councils and how much has gone to areas outside London?
My Lords, I declare an interest in venture capital, as set out in the register. The Clean Growth Fund is one of several government-sponsored initiatives to support early-stage technology entrepreneurs. Can my noble friend the Minister advise if efforts are being made to share best practices across government departments, so that these initiatives do not operate in entirely independent silos?
My noble friend makes a good point. The BEIS team have been engaging with cross-Whitehall colleagues as the Clean Growth Fund has been developed and launched, including in the Department for International Trade, the Department for Environment, Food and Rural Affairs and the Foreign, Commonwealth and Development Office.
My Lords, while schemes such as the Clean Growth Fund are helping to boost the supply of solar and wind power, less is being done to use heat in the earth as a source of green energy. Geothermic energy is derived from the natural heat of water piped from several thousand feet deep in the ground and is sometimes used for heating homes and offices. Will the Minister look into the possible expansion of its use?
My Lords, when the Clean Growth Fund was launched, the scheme was said to be open to all UK-based companies. Can the Minister confirm that it is indeed open to SMEs in Wales, for which the scheme is very relevant, and can he give an indication of how many of the 400 firms that have expressed an interest are from Wales?
I can reassure the noble Lord that it is open to UK companies. I am pleased to say that Wales is still part of the United Kingdom, so all Welsh companies will be able to benefit. I do not have the precise number of Welsh companies that expressed an interest, but if that information is publicly available I will write to him with it.
I can reassure the noble Lord that the fund is indeed targeted at companies that are commercially viable. It is run by a commercial fund manager and there are private sector investments alongside government investment. The Government play no role in allocating investments, but the fund is looking for commercial investments that will provide a return.
My Lords, I draw attention to my interests in the register. I sincerely hope that the fund will succeed in investing in companies that grow without subsidy, but does my noble friend recall that, in the Government’s Cost of Energy Review, Professor Dieter Helm concluded that the best part of £100 billion spent so far on renewables has been wasted because, as he warned, Governments are not very good at picking winners, but
“losers are very good at picking governments”?
That is indeed a good quote and I agree to a certain extent with my noble friend, but this is a commercial investment, run by a commercial fund manager. My noble friend will be pleased to know that the Government are playing no role in the selection of the investments. There are private sector investors alongside us and the fund manager is running the fund on a commercial basis.
My Lords, as we have limited funds, why do not the Government use the Clean Growth Fund in their efforts to clean up the pollution of the air and the ocean and rid us of the enormous amount of destructive plastics? As our economy is in dire straits, is it not the time for these expensive green plans to be postponed until the economy improves?
The noble Lord makes a good point—we should indeed seek to clean up our environment as much as possible—but, as I said, that is not the purpose of this fund, which is to invest in early-stage green technologies, where a proven funding gap has been shown to exist.
Online Harms: Intimate Images
My Lords, we are committed to making the UK the safest place to be online and to introducing online harms legislation establishing a new duty of care on companies towards users. Activities involving sharing or threatening to share intimate images are captured by the existing offences tackling revenge pornography: harassment, malicious communications, blackmail and coercive or controlling behaviour. However, we have asked the Law Commission to review the law in this area to ensure that victims are properly protected.
I thank my noble friend for that Answer, but I do not think that it is clear that threats to share intimate images online are covered in law. We know that perpetrators of domestic abuse are increasingly using technology and the internet to abuse and control their partners and ex-partners. One in seven young women has experienced this form of abuse. The abuse is happening now. I urge Ministers to take the opportunity of the Domestic Abuse Bill arriving in our Chamber shortly to outlaw threats to share intimate images and not to wait for the Law Commission to report in due course.
At Report in the Commons, as my noble friend probably realises, the Parliamentary Under-Secretary of State for the Home Office set out the Government’s position in relation to existing offences and the need to consider carefully the outcome of the Law Commission’s comprehensive review of law in this area, but the Government will of course consider any similar amendments to that tabled in the Commons proposed in this House very carefully.
My Lords, eight months have now passed since the Government published their Online Harms White Paper. I expect that, as one of its authors, the noble Baroness, Lady Morgan of Cotes, must be a little frustrated at the non-appearance of the legislation it proposed. Does the Minister agree that the greatest threat to online safety is the reluctance of the social media companies to tackle the problem of anonymity, as this encourages people to post vile and hateful material about others without anyone knowing who they are? Will that be dealt with in the government Bill when it eventually appears?
My Lords, the noble Lord is absolutely right. The first response to the Online Harms White Paper came in February; the second is due at any time and then we intend to take those recommendations into legislation next year to alleviate these issues.
My Lords, it is all very well for the Minister to talk about the potential online harms Bill and the Law Commission review, but the problem is that this is an issue affecting a lot of women right now, this minute. She will be aware that Scotland led the way, so the entire United Kingdom is, as ever, doing it slightly differently. It is now illegal in Scotland. One result of Covid has been, as one would imagine, the breakdown of a lot of relationships. Since ex-partners are the primary abusers of online images, is there not a chance to do it now rather than wait for some indefinite point in the future?
My Lords, we are doing it now, with the revenge porn intimate offences that already exist in criminal law. Of course, we will keep a very close eye on how the digital world and IT are moving forward and we will continue, with the Law Commission, to look at these issues.
My Lords, are the Government as concerned as I am about the exponential rise in the use of deepfakes, which are currently overwhelmingly used in pornography? It means that an image can be created to humiliate a victim without that image being real. As my noble friend mentioned the Law Commission review, can the Government make sure that the Law Commission looks at the use of deepfakes and ensures that their malicious use is a sexual offence, so that the victim can remain anonymous, rather than an offence of malicious communications?
The Government absolutely agree that it is important to ensure that the criminal law keeps up with the constant changes in technology and the use of social media in all its forms. That is why the Law Commission’s review of the law relating to taking, making and sharing intimate images specifically includes deepfakes and the creation and dissemination of realistic, manipulative images within their terms of reference.
My Lords, last week the lead for the Crown Prosecution Service on rape said:
“Many teenagers believe that sending explicit photos or videos is part of everyday life.”
What are the Government doing to educate children to resist peer pressure to engage in such activity and to warn teenagers that these images can find their way on to pornography websites and, in the case of younger children, into the hands of paedophiles?
Education is absolutely key to this, which is why there is a new review into how we educate young people in the use of social media now and in the future, as things change. I am sorry that I did not get the second question but I will look in Hansard and write to the noble Lord.
My Lords, I welcome the Minister’s answer to my noble friend Lord Vaizey on deepfakes, but the Sensity AI report has found that tech is being used by a publicly available bot on Telegram to produce deepfakes by apparently undressing photos of clothed women. More than 100,000 women have been targeted and had faked images of them shared publicly. Some of these images appear to be underage, suggesting that the bot is being used to generate and share paedophilic content. I welcome the progress on revenge porn and up-skirting, and I accept the Minister’s comment, but the fact is that the Law Commission review will not report until 2021. There is not yet a specific offence in this area and we risk the tech running ahead of the law and women suffering, so may I press the Minister to take action on this as a matter of urgency? In the meantime, thousands more women and girls will run the risk of finding faked nude images of them irrevocably shared far and wide, and this is unacceptable.
On regulation, I quite agree with my noble friend. We intend to establish in law a new duty of care on companies to ensure that they have robust systems and processes in place to tackle illegal content of their services to keep their users, particularly children, safe.
My Lords, research by Refuge has shown that of women threatened with the release of images or video, 72% were blackmailed by a current or former partner. This is mental torture and domestic abuse. The law is not clear and the Law Commission report is months and months away. Why are the Government reluctant to create clarity and criminalise these threats in the Domestic Abuse Bill? Does she not agree that this Bill is an ideal opportunity to take urgent action on this issue so that victims can be protected sooner and decisively?
My Lords, the police and the courts are well equipped to deal with those who share or threaten to share intimate images, both online and offline. Perhaps the most significant development in this area was the creation of the revenge porn offence, which came into effect in 2005. That has a maximum prison sentence of two years. Since 2005, more than 700 people have been put in prison because of that law.
My Lords, surely the Minister agrees that all the questions raised today are very likely to be raised again when we have the Domestic Abuse Bill. That Bill is a suitable and very current vehicle with which to address those issues. Therefore, can the Minister undertake to look positively at any amendments tabled so that these scourges to our society—particularly to young women—can be addressed?
My Lords, if a teenager clicks on a shared link on a social media platform such as WhatsApp or TikTok, which takes them in turn to the illegal sharing of a rape of a 14 year-old girl on Pornhub, who is culpable right now, today, under the current law that has existed for quite a while—the teenager, their parents, WhatsApp, Pornhub, the ISP or the Government, who have promised urgent laws on harm and age but have so far failed to deliver?
My Lords, things move on very fast. Yes, I quite agree with the noble Baroness that everybody—the education system, the parents and, particularly, the online organisations—is responsible. That is why we will bring forward legislation on online harms very shortly.
My Lords, the Government’s current priority for adult social care is for all recipients of care to receive the support they need throughout the Covid pandemic. While we published a winter plan that looked ahead through winter 2021, we are acutely aware of the long-term challenges to the social care system in England and the importance of reform. Putting social care on a sustainable footing, where everyone is treated with dignity and respect, is one of the biggest challenges our society faces.
I am grateful to my noble friend for that reply, but this is not a happy story. Last year, the Prime Minister said:
“We will fix the crisis in social care once and for all with a clear plan we have prepared to give every older person the dignity and security they deserve.”
A few weeks ago, however, that reply was diluted in a Written Answer that said:
“There are complex questions to address to which we want to give our full considerations in the light of current circumstances.”
That is straight out of “Yes, Minister”. When will we see the clear plan announced 15 months ago, together with a commitment to the necessary funds to redress the imbalance between health and social care, so tragically revealed by the current pandemic?
My Lords, I reassure my noble friend that there is absolutely no dilution in the commitment to a long-term solution. No one in the Chamber would deny that the challenges in this question are extremely complex. The Government are also committed to cross-party talks and everyone in the Chamber recognises that we need a generational solution, not a political fix. In terms of finance, it is undoubtedly the case that the social care system has been under pressure during Covid. That why we have put an enormous number of funds—I could list them—into social care in the past six months. The refinancing of the social care system is one of the items that will undoubtedly be on the agenda.
My Lords, given the long delay in the publication of proposals for the reform of social care, the impact of Covid-19 on carers and care homes, and the implications of reform for the future of the NHS—not to mention the political sensitivity and complexity of the subject, which has been referred to—does the Minister agree that the best way to achieve the cross-party consensus to which he just referred would be through an ad hoc Lords Select Committee, as already proposed from these Benches?
My Lords, the development of a cross-party consensus is one of the great challenges that we have for the future. The mechanism that the right reverend Prelate suggests is imaginative, thoughtful and constructive, which I very much welcome and will take back to the department, but it is for the Prime Minister and the Secretary of State for Health and Social Care to define that precise process. But I completely welcome having our feet held to the fire on this issue. It is a massive priority that is at the top of the Government’s agenda.
My Lords, technology innovations have been used by healthcare professionals in the community during the pandemic. Really, they have flourished and have been shown to be of great benefit to social care. Will the Minister reassure the House that, during the reform of social care, funding is put forward for those innovations to carry on and indeed grow to their full potential?
My noble friend is entirely right. One of the experiences of Covid has been the mobilisation of technology to help those in social care. That has ranged from very basic implementation, such as sending iPads to people in social care so that they can message and video their loved ones when in some form of lockdown, to the work done with broadband providers to ensure that those without it can have access to it, all the way through to the use of the most complex artificial intelligence and big data, to help with diagnosis in social care, and the management of care itself. That commitment to technology will continue and will form an important part of improving the commitment to social care as part of the new regime.
The Royal Commission on long-term social care, chaired by the late lamented Lord Sutherland of Houndwood, reported in 1999. Only two years later, the Scottish Government adopted its main proposal of state support for personal and/or nursing care. How is it that, some 20 years later, successive Governments in the UK have failed to address the issue properly, in the way that the Scottish Government appear to be able to do?
The noble and right reverend Lord is entirely right. There has been a large number of reports on social care, but they have not in themselves brought us closer to a new deal. That is why the Government’s commitment is not necessarily to launch new reviews but to engage in consensus building across the political parties. That consensus building has been lacking in the past and has continually proved to be the stumbling block to reform. The commitment of both the Government and other Benches to those talks is the essential building block of any major reform. I completely pay tribute to the Leader of the Opposition and the Prime Minister for their commitment to those talks.
My Lords, the CQC’s report, The State of Health Care and Adult Social Care in England, was published earlier this month. Last year’s report described social care as being at a “tipping point”, and this year’s makes it clear that Covid has not only exposed but exacerbated existing social care problems and thrown into stark relief the long-standing need for reform, investment and workforce planning, including a new deal for care staff. The CQC stresses that the legacy of Covid for social care must be that these crucial issues are tackled now. Why can this not be a priority for the Government and why can we not have at least a timetable for the publication of the social care reform proposals that the Government keep promising but failing to deliver on?
My Lords, I recognise the power of the CQC’s comments, and its report is indeed powerful. However, I have to be realistic. We are in the midst of a Covid winter, when there are enormous challenges in keeping the show on the road. We have an infection control fund of £600 million invested in social care, which demonstrates both the commitment of the Government to supporting social care and the sheer scale of ensuring that those in social care through this winter are protected from Covid and other influenzas. It just would not be right to launch an important and industry-changing reform process when the focus of everyone in social care is the protection of the vulnerable and our loved ones.
My Lords, the noble Lord, Lord Young of Cookham, is absolutely right to ask this Question on an issue that Covid has highlighted as needing urgent and very long-overdue reform. I am pleased that the Government have plans to work on a cross-party basis to sort out this pressing issue. When does the Minister expect those talks to begin?
Talks are happening in the background in many ways. I cannot give the noble Baroness a precise date, because our focus is very much on managing Covid and learning its lessons, including from the CQC report that the noble Baroness rightly pointed out. But this is a massive priority both for the Government and for opposition parties, and I can reassure the noble Baroness that it will be taken on board at the soonest possible moment.
My Lords, further to the question from the right reverend Prelate the Bishop of Carlisle, the Economic Affairs Committee of this House produced a report on social care that had all-party support and was universally welcomed across the House. That was in July 2019—14 months ago. There has been no proper government response and no opportunity to debate it. How much longer must people in desperate need have to wait for the Government to reach a conclusion? I say to my noble friend that Covid is not an excuse for procrastination but an imperative for urgent action.
My Lords, we all acknowledge the power and intellectual insight of the Economic Affairs Committee report, which was welcomed on the Floor of the House and speaks for itself in terms of its authority and insight. But my noble friend is, I am afraid, not being reasonable when he says that Covid is not an excuse for inaction. There is an enormous focus on the front line and by the management of the NHS and the DHSC on preparing the winter plan, which is ambitious but also extremely stretching. There simply is not the management or political capacity to take on a major generational reform of the entire industry in the midst of this massive epidemic.
Covid-19: Charitably Funded Hospices
My Lords, hospices play an often unseen but hugely valuable role in providing patient care. That is why we provided more than £150 million of extra funding to hospices during the first peak, when hospices across the nation cared for 170,000 patients, thereby helping to protect the NHS and continuing to provide high-quality end-of-life care. We recognise that the second wave presents challenges for hospices. We thank Hospice UK, Marie Curie and all the other groups for their engagement on this important challenge.
My Lords, it is nice to hear the Government thanking the hospice movement. Some 80% of hospices think that they will have to make redundancies. The voluntary sector takes on more than 75% of hospice treatment. If the Government are not going to fund hospices, will they take on the work themselves or are we just going to let people suffer at the end of their lives?
The noble Lord is entirely right. Some £1.54 billion is spent on hospices each year. Of that, £1.2 billion is charitable; I pay tribute to those from the hospice movement who were recognised in the recent Birthday Honours List for supporting that fundraising. Let me assure the noble Lord that the challenge he describes is recognised in the department. The Minister responsible will meet key hospice stakeholders, including from Marie Curie, Sue Ryder, Hospice UK and Together for Short Lives, on 4 November when the challenge that he describes will be discussed.
My Lords, I am a long-standing supporter of Birmingham St Mary’s Hospice. If the current restrictions stay the same as now, the hospice estimates that, by the year’s end, fundraising and retail income will be down by more £1.5 million—and by more if we have a more severe lockdown rule. This is a massive amount for a small charity to make up. The Minister has referred to the support received from the Government via Hospice UK. That was hugely welcome, but the hospice movement needs an immediate second injection of funding, and it needs to know when that will happen. Hospices cannot wait much longer.
My Lords, I completely recognise the note of urgency in the noble Lord’s comments. I also recognise that, as we go into a Covid winter, the hospice movement, which has contributed so much to our response to Covid and brought valuable capacity to the care of the elderly and the vulnerable during the first wave, needs answers. I recognise the funding gap that he describes, in particular the collapse in retail income that many depend on, but I assure the noble Lord that the meeting on 4 November will have these issues on the agenda. The movement should look forward to that meeting as an opportunity to discuss the issues he describes.
My Lords, in my home town of Stockport, St Ann’s Hospice is about to celebrate its 50th anniversary. It is one of the largest and oldest hospices in the country. It has been looking after people across Greater Manchester for half a century, delivering world-class specialist palliative and end-of-life care for thousands of people. St Ann’s Hospice must raise £20,000 every day from voluntary contributions to top up the value of the clinical commissioning group contracts, which provide only a third of the funding. What will the Government do to ensure the levelling up of fair funding in the contract arrangements with local clinical commissioning groups while protecting the all-important charitable status that hospices value so much?
My Lords, the noble Lord is right that 70% of hospices are funded through charitable income with only 30% coming from CCGs. That is why we put in more than £150 million during the first wave and why we have a discussion about future support on the agenda. I reiterate absolutely the points that he made about the contribution of hospices during the first wave and the innovation that many of them brought to the response. I have before me tributes paid to the Mary Ann Evans Hospice in Warwickshire and the St Elizabeth Hospice in Ipswich, which were case studies in bringing in fresh thinking and changes to work practices to support people during the Covid first wave.
My Lords, I declare my former interest as the chair of Hospice UK. Does my noble friend the Minister agree that, even in the crude terms of value for money, because of its extraordinary ability to attract a huge amount of volunteer effort, the hospice movement is almost certainly the most effective sector in our entire healthcare system? Can he assure me that the Government will give full weight to that factor when they consider the urgent need of hospices for further support during this crisis?
I completely endorse my noble friend’s comments. Hospices are often the hubs for huge community efforts to raise money and to create volunteer support for those who are at the end of their lives. They are hugely valued in the healthcare system. The challenge that they face at the moment is recognised and we will meet our responsibilities to them.
I am the vice-president of Hospiscare Exeter. I will follow on from what the noble Lord, Lord Howard, just said. Despite what the Minister has been saying to us, I wonder whether Her Majesty’s Government are sufficiently aware of the extent to which hospices relieve the NHS and social care of the need to look after many terminally ill people by looking after them at home. Hospices dramatically need more financial support to continue with this terribly important initiative.
I assure the noble and learned Baroness that we understand absolutely the contribution of hospices, the value for money that they represent, the role that they play in communities and the incredible sensitivity with which they handle end-of-life and palliative care. I pay tribute to the contribution made by the noble and learned Baroness to the Living Well Dying Well charity and to Hospiscare. It is the contribution of people such as the noble and learned Baroness to the hospice care movement that has made it such a powerful and sensitive supporter of people at their time of most urgent need.
It will be quite clear to the Minister now that virtually every single Member of your Lordships’ House has a local hospice to which they are attached. Mine is St John’s Hospice in St John’s Wood, which has just launched an appeal to recoup a £1.3 million shortfall during the pandemic. Because hospices are being asked to take on more and more patients that they do not have the funding to cover, I hope that the important 4 November meeting will be based on an assessment of the need for continuing support for the sector for the remainder of 2020 and into 2021. Also, what plans do the Government have to ensure that everyone who needs quality palliative and end-of-life care will continue to receive it through and beyond the pandemic?
The noble Baroness will know through her work as a lay member of the NHS Camden Clinical Commissioning Group that hospices are much valued by the healthcare system. I assure her that the agenda for 4 November will include an assessment of the ongoing support that hospices will need through the winter.
Today the director of my local Sue Ryder, told me that she faces a budget shortfall of 43%—almost half—in this financial year because fundraising from shops and other means has fallen. She has already had to make redundancies. However, demand is increasing and she is expecting a tsunami of new patients who missed an early diagnosis of their condition because of the Covid crisis. What are the Government going to do about this both now and in the long term?
The noble Lord is entirely right to cite the challenge being faced by Sue Ryder and other hospice charities that depend on retail income. They face a most difficult and challenging problem; it is one that we acknowledge and recognise. The question of misdiagnosis leading to a bump in arrivals in hospices is not one that I have been conscious or aware of, but I am grateful to the noble Lord for flagging it up for me. I will take that back to the department and, if it is something that we should be focused on, I will write to him accordingly.
My Lords, the manner of our going is as important to the human condition as the good life lived. Hospices have played an important role, in particular those hospices that care for children. The provision for children’s hospices is very patchy across the country, as is their need. At the meeting on 4 November, will the Minister pay particular attention to hospices caring for children and providing the necessary outreach work to families?
The issue raised by the noble Baroness is one that I am aware of. Who can think of a more moving cause than hospices for children? This will be definitely be on the agenda for 4 November and I will raise the issue with my honourable friend the Minister for Social Care.
Arrangement of Business
My Lords, hybrid proceedings will now resume. Some Members are here in the Chamber, respecting social distancing, others are participating remotely, but all Members will be treated equally. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
I will call Members to speak in the order listed in the annexe to today’s list. Members are not permitted to intervene spontaneously; the Chair calls each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted. During the debate on each group, I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request and will call the Minister to reply each time.
The groupings are binding and it will not be possible to degroup an amendment for separate debate. A Member intending to press an amendment already debated to a Division should have given notice in the debate. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make this clear when speaking on the group.
United Kingdom Internal Market Bill
Committee (2nd Day)
Relevant documents: 14th Report from the EU Select Committee, 24th and 26th Reports from the Delegated Powers Committee, 17th Report from the Constitution Committee
We come to the group beginning with Amendment 7. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division should make that clear in the debate.
Clause 2: The mutual recognition principle for goods
7: Clause 2, page 2, line 4, leave out “or imported into”
My Lords, my purpose in moving Amendment 7, which would exclude imported goods, is to emphasise, in rather stark terms perhaps, that the Bill goes considerably further than simply saying that goods made in one part of the UK must be able to be sold in any other part.
As written, it allows any good that one part chooses to import to be sold throughout the UK, with absolutely no say by the Governments or legislatures of the other three countries. So, if Northern Ireland, for any reason, permitted chlorinated chicken to be imported—although I am absolutely confident that it would not—those delightful carcases would automatically have the right to be sold elsewhere in the UK. Similarly, if Scotland accepted a very high salt content in crisps or we in Wales had too much sugar in our chocolate, or anything else like that, we would be able to import those things in any one country and they would automatically have the right to be sold elsewhere.
It could be something that we do not want for all sorts of reasons. For example, England might import something that perhaps does not damage particular producers, consumers or the environment within England but could affect farming, consumers or households elsewhere. With agriculture, we would well understand the problem with sheep farming—hill sheep farming in Wales being more affected. Certain things imported into England could have a more devastating effect somewhere else; nevertheless, once imported into one country, there would be an automatic right for a good to be sold across the kingdom.
When we were in the EU, of course, we had similar rules on what are called “goods on the market”, whereby goods guaranteed as safe, desirable or acceptable in one country could appear in the other 27 markets. However, the difference is that the EU has a system of mutual recognition of checks, standards, assurance and monitoring, as well as the safety alert system, which applies to all member states, so that each nation has confidence that, when something is imported and on the market in one country, it is equally acceptable in any of the other member countries.
It is not that we distrust any of the fellow Governments in the UK—even Mr Johnson’s—but the worry is the denial of the involvement of the other three nations in decisions on what to import by the fourth. Of course, that then impacts on what can be sold on that market, and that is the problem—the lack of that involvement. The noble Lord will understand that this is more of a probing amendment but I think that it needs justifying and some explanation of the risks in relation to imported goods.
Amendment 8, in the name of my noble friend Lord Rooker, who is of course something of an expert on the subject, is more targeted and would exclude food or animal feeding stuffs from the mutual recognition principle. Obviously, I will let him make the case, rather more effectively than I ever could, for himself, but I should say to the Minister that my noble friend’s amendment is absolutely on the button with regard to consumer worries, so he will need some rather robust arguments for that amendment not to be considered on Report. I beg to move.
My Lords, at this stage of the Bill, Amendment 8, like Amendment 7, is a probing amendment, but I should just like to comment as an aside on the reference in the amendment to the definition of “food”. Most of our discussion on food safety centres on the Food Standards Act 1999 and the Food Standards Agency, but the bedrock of food safety in the country is the Food Safety Act 1990. Thirty years on, that Act, introduced by a Conservative Government, has really stood the test of time. The change made in 1999 was to separate policy for protecting consumers from the department at the time—MAFF, the producer department.
I do not want to disappoint my noble friend but I shall deal only with animal feed issues. I took the view that there will be plenty of opportunities to raise food issues—of course, I reserve the right to come back to those—but I want to deal with some animal feed issues. There is no lobby and no brief on this; I am simply using my own experience on some aspects and have made a modest internet search for some numbers. It is a multi-billion pound business, and it is crucial for human and animal safety that it is regulated effectively. There are some matters relating to animals—we are talking about food animals—which are all-island matters and which I am not at all clear about, and the Bill does not make them clear.
Animal disease control is currently an all-island matter on the island of Ireland. I say that for obvious reasons, but does that remain the case under the Bill? That is a point that really needs bringing home. If you looked at the other aspect, particularly in Schedule 1, you would think that we in the UK were isolated. We are not. Northern Ireland is on the island of Ireland, and there are some issues—I will give some other examples—where all-island matters take priority.
Animal feed is an area worth looking at because, to be honest, it is not considered to be as important as food, although of course it is. I recall that when I was at the Food Standards Agency—this was under the then chief executive, Tim Smith, who of course is currently distinguishedly chairing the agriculture trade commission and others—discussions with Thompsons in Belfast, the largest feed mill in Europe, centred on a scheme for controlling animal feed imports into the island of Ireland. This was industry-led and was to be through very few ports indeed. Today Thompsons operates an animal feed joint venture with R&H Hall in the Republic via Origin Enterprises to provide grain and non-grain ingredients to animal feed manufacturers and the flour milling industry across the island of Ireland. I want to know how that is affected by Clause 2.
To give a sense of the importance and scale of livestock, it is much more important to the economies of Northern Ireland and Ireland than it is to the rest of the UK. I will give just one example. If we compare human populations with those of the four-legged food production animals, cattle, sheep and pigs—I have excluded horses, which people can get uncertain about; we slaughter horses for feed but we export them—in the UK the ratio is approximately 0.7 of an animal per person, but in Ireland it is 2.6 animals per person and in Northern Ireland the figure may even be 2.7. So one can see that livestock is much more important to the economies of the island of Ireland than it is to the rest of the UK.
Animal genetics are just as important on an all-island basis. For example, Elite Sires has been Ireland’s leading provider of high-quality pig semen for 30 years. It is the sole provider of DanBred cutting-edge swine genetics on the island of Ireland, based of course on Denmark’s remarkable success in pig production. It delivers what it says—because I could not argue between one sample of swine semen and another—is the best swine semen in the land all over Ireland at the time when the animals are ready. How is that affected by Clause 2?
I mentioned that the safety of feed is important. The Food Standards Agency and Food Standards Scotland are responsible for, and carry out, the function of official controls, to use the technical term, via local authorities. That is the case with most food safety issues as well. However, local authorities, particularly in England, have not in the main taken feed issues as seriously as food. The Food Standards Agency, being aware of that—I am speaking now specifically about England—has taken many steps to try to improve the situation, but the picture in its latest assessment is not a good one. I will give some short quotes from the executive summary of the latest audit for England of the way that local authorities look at animal feed, published as long ago as October 2016. Local authority service plans
“had not adequately taken into account the Agency’s National Enforcement Priorities … There had been only limited implementation of the scheme for earned recognition.”
There was “little evidence” that local authorities
“had reviewed the impact of earned recognition on the delivery of official controls”.
Local authorities were
“using an out of date version of the Association of Chief Trading Standards Officers … risk scoring system”.
Half the local authorities audited
“had incomplete feed registers and databases”,
which are absolutely fundamental to traceability. It said:
“Auditors were unable to assess the effectiveness of formal feed law enforcement actions as none had been carried out in the previous two years”.
Lastly, none of the English local authorities audited had
“any specific documented procedures for assessing the accuracy of official feed reports to the Agency”.
I have to say that if the Government want to check on this situation and there has been no significant improvement in the last few years, that function should probably be removed from English local authorities because they are not up to the job. It is fundamental to human and animal safety.
If Wales or Scotland—I do not know much about the transfer of feed from England to Scotland so I will not go into detail—wanted to give a wide berth to feed checked by some English local authorities that are failing, which would seem sensible, how could they do that under Clause 2? That is a fundamental question. There is evidence from the independent regulator that the system is failing but feed is a tradeable commodity that travels around the country, a bit like animals, so how can it be covered by Clause 2?
My final point relating to animal feed, because I want to be brief, concerns food waste. In some quarters there are calls for the return of pigswill as a means of using food waste. Given that one-third of what we grow is for food production animals and that too much of the other two-thirds is wasted, that is a very seductive argument for those who, like the Greens, think they are trying to save the planet. Pigswill was banned by the UK in 2001 and then in the EU in 2003 but it is still used in some other parts of the world; I know it is used in Japan in particular. Can the Minister confirm in due course that there are no plans to return to its use in the UK? There were rumours, when Michael —we will call him “Green”—Gove was at Defra, in his green mode, that he was giving the idea some thought. What is the WTO view on imports from nations that use pigswill to lower the cost of production?
It is self-evident why it was banned, although I will not go into the detail. We were feeding animal protein back to animals, and we discovered that that is not a very good thing to do. In terms of giving to animals what we might call food waste that humans have wasted, we have to be particularly careful, because it cost this country billions of pounds in 2001 to deal with the foot-and-mouth outbreak that was traced back to pigswill manufacturing. This is a fundamental issue and I want to know how it is going to be prevented from reoccurring if the operation of Clause 2 is left as it is. I will leave it there.
My Lords, I am delighted to follow the noble Baroness, Lady Hayter, and the noble Lord, Lord Rooker. I shall speak to my own amendments but I have a question following on from what they have both said which relates to an earlier debate, particularly when in summing up the noble and learned Lord, Lord Hope of Craighead, linked Clause 39 of the Agriculture Bill to the clause relating to the movement and mutual recognition of goods.
Clause 39 of the Agriculture Bill relates to marketing standards, and I have a specific question to put to my noble friend the Minister that I hope he will address head on in view of the remarks made by both the previous speakers. If, in the course of events in the new internal market arrangements under this Bill, the Food Standards Agency with responsibility for England came out with different provisions to Food Standards Scotland, and in the event that the latter adopted different rules for, especially, animal products, food and animal feed, how would that impact on the free movement of goods? Could it eventually mean that there was no longer any mutual recognition, and Scottish goods could not pass into England or other parts of the United Kingdom in those circumstances? Would the same apply if the Food Standards Agency in England produced different rules to other parts of the United Kingdom? It is extremely important that we understand those impacts.
I will now speak briefly to my Amendments 20, 22, 26 and 45. I am extremely grateful for the extensive briefing I have obtained from the Law Society of Scotland and for its drafting of these amendments, which are probing in nature but address some key issues. Amendment 20 is a probing amendment to seek the Government’s interpretation of Clause 4(2)(b). Clause 4 purports to mean that certain regulatory divergences that currently exist will continue to be able to be enforced against goods produced in or imported into other parts of the United Kingdom and would not be able to be so enforced were they introduced after the mutual recognition principle comes into force. However, the Law Society of Scotland has noticed that, in order for a statutory requirement in a part of the United Kingdom not to be a relevant requirement for the purposes of mutual recognition, the conditions in subsection (2) must be met.
There are two conditions in subsection (2), and my comments will relate specifically to subsection (2)(b), which provides:
“The conditions are that, on the relevant day … there was no corresponding requirement in force in each of the other three parts of the United Kingdom.”
What provisions do the Government imagine will be captured by the current terms of Clause 4? For example, food and feed law is mainly derived from EU law, and, in terms of the European Union (Withdrawal) Act 2018, this body of law is retained EU law, implemented throughout the UK. Are Scottish food and feed regulations, and, by implication, all retained EU law, excluded from the application of the mutual recognition principle because there are corresponding requirements implementing the same EU obligation, albeit in slightly different terms, to fit into the relevant law in each of the other parts of the United Kingdom? How does the mutual recognition principle relate to common frameworks? My Amendment 22 simply has a consequential effect, following on from the deletion of Clause 4(2)(b), making the necessary changes there.
Amendment 26 probes the meaning of Clause 5(3), regarding the effect of a statutory requirement under Clause 6. It appears that Clause 5(3) would render a statutory provision in devolved legislation “of no effect”. This lacks clarity. Am I right in thinking that the statutory requirement is valid? Is it valid but cannot be enforced? Is it voidable? It is also not clear regarding the application, if any, of Clause 5(3) if the statutory provision is in an Act of Parliament that applies to England only. I would be grateful if the Minister would take this opportunity to clarify this.
The amendment applies the statutory language that exists in Section 29 of the Scotland Act 1998 to Clause 5(3) in an effort to bring clarity to the point. Section 29(1) provides:
“An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.”
It is not the intention of this amendment to amend the Scotland Act 1998 but rather to say that that Act provides, in my view, much clearer language than the Bill. These statutory provisions could be challenged by private parties and will presumably also be a basis for challenging devolved legislation. Assuming the inability to modify the Bill under Clause 51, it will in all cases prohibit legislation that is contrary to its principles. Presumably that is the intention, but it is not the clearest way that that outcome could have been achieved, so I am grateful for this opportunity to seek clarification.
Finally, Amendment 45 is a probing amendment, looking to understand a phrase the Government have used: “substantive change”. What do they interpret as substantive change in connection with changes to statutory requirements? I am grateful for this opportunity to speak to these probing amendments.
My Lords, Amendment 21 in my name is effectively consequential on the changes I have already proposed to ensure that the market access principles are only applied once regulations have been brought forward, relating to a specific type of goods, when it has proved impossible to reach agreement through the common frameworks process.
The Bill proposes that legislation already in place at the time Part 1 of the Bill comes into force cannot be caught by the market access principles—at least where the restrictions imposed by that legislation are not ones that exist across the United Kingdom. This amendment would simply apply that same principle in the context of a process whereby the market access principles could only be switched on by regulations approved by both Houses, meaning that restrictions to the exercise of devolved powers would only be switched on in specific areas where the Government have made regulations to that effect. In other words, the rules on non-discrimination would apply only where a devolved legislature sought to introduce new statutory requirements in the particular area covered by the regulations. This seems to be both logical and respectful of devolved competencies.
I also record my support for other amendments in this group, notably Amendments 7 and 8, which seek to limit the mutual recognition principle in ways that seem thoroughly appropriate, and Amendment 20 in the name of the noble Baroness, Lady McIntosh. This last amendment touches on an important point and would, on its own, if adopted, broaden the scope of the exemption for prior legislation. It seems to me—and please correct me if my understanding is wrong—that this would address one of my major concerns, which is that the legislation seeks to prevent regulation that increases standards but does not impede regulation that lowers them.
The Bill as currently constructed would mean that, if this Parliament decided to legislate in England for the current ban on the use of hormones in beef cattle to be removed, for example, then the fact that a ban had previously existed in Wales and Scotland could not be invoked to prevent the sale of such beef in those nations. This is because the condition in Clause 4(2)(b) would require the Welsh and Scottish Governments to demonstrate that a “corresponding requirement” had not previously existed in England.
In a letter from the Minister that I received just as we started this debate, he stresses, if I have understood it correctly, that a potential for harmful regulatory divergence did not exist during our membership of the EU, but, at the end of the transition period, that will change and create a significant risk of harmful divergence between the four nations. He goes on to write that the Government have consulted widely on the proposals and have had overwhelming support from businesses and industry organisations on the steps they have outlined to protect our internal market from discriminatory behaviours.
I would be most grateful if the Minister could kindly tell us, either today or in a letter following today’s debate, details of the results of that consultation because I think it is important that those of us speaking to amendments really understand the background of the results that came in. I will be most interested in the Minister’s reply to all the amendments in this group, particularly Amendment 20.
My Lords, I have added my name to Amendment 21 to which the noble Baroness, Lady Finlay, has spoken. It seems to me that the clarification that the amendment is seeking is to understand whether, where a statutory regulation, rule or law is passed in a devolved Administration, that would exist until such time as the UK Government decided something different. Whether or not that is the intention of the Government, I do not understand.
The difficulty that I face in trying to work out the logical progression and the sequencing of what is happening in this Bill is correlated with the issue that we had on the common frameworks. It seems to me that the Government are moving down a dual carriageway in which one road is the internal market Bill and the other is the common frameworks progression, and between them is a brick wall. I do not understand how you can cross over between one and the other. That is the understanding that I got from the discussion we had in the earlier days in Committee.
The problem is that by the end of this year—I will use this as an example, which I would like the Minister to respond to at the end, if he would—the framework on emissions trading, which is a legislative framework, will be completed. I understand that it is with Ministers for final sign-off, but it has been agreed. If that emissions trading legislative framework is agreed, presumably there will then be legislation. I would like to understand where that legislation fits within the context of this Bill. Clearly, that has been reached by agreement—it has been agreed by all parts, including the United Kingdom Government, that there will be a legislative approach to this particular area of work. Then, of course, there will be a piece of legislation that sits either within this Bill or without it. I would like to know where that legislation will occur: will it be stand-alone legislation or will it be an amendment to the Bill we are discussing today?
There are two other frameworks—one on nutrition and one on hazardous substances—that are also virtually complete. They are non-legislative, and I understand that they will be agreed by Christmas. Take those three areas: on one side we have a legislative proposal and on the other we have a non-legislative proposal that the Government have agreed will be a non-legislative proposal and will therefore not require other legislation. And it will not require this legislation, because that is what the Government have agreed. Perhaps the Government could explain how the two are interconnected.
I understand that the reason for turning down a frameworks-only approach is because there are gaps, but we are yet to find out what the Government have established is a gap. We have asked for a current example that we can use, and I hope that, over the past few days, the Minister has found a current example that he can give us.
It seems to me that the fundamental principle that Amendment 21 is trying to establish absolutely is that, where there has been a legislative agreement or legislation that has been passed by either Wales, Scotland or Northern Ireland, when the Government introduce new legislation or regulations on the back of this legislation, such legislation will look only at the future and not the past and will have no retrospective effect.
My Lords, I would like to remind the Committee of two things about this Bill. First, the Bill is to facilitate trade between all parts of the United Kingdom, not make it harder. Secondly, businesses favour barrier-free trade. That was the very clear message that came from the consultation on the White Paper during the summer. We should be trying to minimise the possibility of barriers being put up to trade within the United Kingdom.
If we allow exclusions of goods from mutual recognition, that will inevitably lead to higher costs. This is analysed in quite considerable detail in the internal market White Paper. Costs generally end up being borne by consumers. Excluding goods can also result in businesses deciding to withdraw from certain markets, which can in turn restrict consumer choice. I know the noble Baroness, Lady Hayter, is keen on consumer protection; she reminded us of that on the first day of Committee. Restricting trade tends to operate against consumer interests, so we should be very careful in trying to put amendments to the Bill that make trade more difficult. I also remind noble Lords that restricting trade is more likely to hit the devolved Administrations’ economies because of their greater dependence on exporting to the rest of the United Kingdom.
I want to comment on a couple of the amendments in this group, Amendments 7 and 8. The noble Baroness, Lady Hayter, said that Amendment 7 was a probing amendment, but by seeking to exclude imports into any part of the United Kingdom we are reducing the internal market rules to a very parochial interpretation. It seems to ignore the plain fact of commercial life, which is that there are complex supply chains and complex distribution logistics. It is of course the way we have been living in the EU; at the moment, we are quite accustomed to importing in one place and those imports being accepted throughout the rest of the community.
It also seems to me that the noble Baroness’s amendment would, in effect, impact exports between different parts of the United Kingdom. For example, if something was exported to Wales and imported to England, it would stop it then being imported into Scotland with the protection of the internal market Bill. That does not seem to make any kind of sense. It is pretty clear from the impact assessment that Wales and Scotland in particular are reliant on intermediate goods coming from other parts of the United Kingdom.
The noble Lord, Lord Rooker, spoke to Amendment 8. I did not follow what he said about pig semen because I do not think that, by any definition, pig semen is an animal feedstuff. I did have a chance to check the definition of “animal feedstuff” while he was speaking, and it is not. Perhaps we can put that to one side. We have to understand that if we try to exclude food and animal feedstuffs from the UK internal market mutual recognition rules, this will again potentially impact the devolved Administrations the most, given their import and export profiles. For example, if you look at Wales’s agri-food chain, you will see that 48% of agricultural inputs to Welsh food manufacturers come from the rest of the UK and 31% of food and drink sold in Wales comes from the rest of the UK. We should be thinking really hard about who we are likely to hurt when we put amendments such as this in the Bill, which restrict barrier-free trade.
My Lords, I support Amendment 7 in the name of the noble Baroness, Lady Hayter, and Amendment 21 in the name of the noble Baroness, Lady Finlay.
I shall start with Amendment 7. First of all, I entirely agree with the noble Baroness, Lady Noakes, that importing and exporting goods is part of the commercial life of this country. That applies across all parts of the United Kingdom, and one can well understand the point that she makes about the importance for the devolved Administrations of maintaining that system with as little interference as possible. However, the point to which Amendment 7 draws attention is a matter of real concern to the devolved Administrations. As she explained, its effect appears to be to deny them any involvement in decisions on the importation of goods from overseas, to which they might wish to take objection. Various horror stories are of course passed around as one discusses this issue, but I am not concentrating on them so much as I am on the simple lack of ability to contribute to a discussion as to whether or not these goods should be imported.
If one was talking about legislation, I suppose one would say the Sewel principle would apply and consultation would take place, but there appears to be nothing that allows for that. The effect of the way the provision is worded is that something that comes in can take the benefit of the principles and pass without any kind of control to the devolved Administrations, without their having any say. That is of real concern. This is a probing amendment, but it requires some explanation of what place, if any, the devolved Administrations have in trying to resist the importation into, and transmission across borders within, the UK of goods to which, for one reason or another, they might wish to take exception.
That covers Amendment 7. As for Amendment 21, I was attracted by what the noble Lord, Lord German, said about the dual carriageway—the parallel lines—for a particular reason, which I have not mentioned before but must be emphasised. The common frameworks are living arrangements. There is no point at which one can strictly say that a framework has come to an end, although I confess that my own amendment suggests that it could happen. These frameworks are open to subsequent discussion and revisiting as things change. For example, much of the UK emissions trading system is based on EU law and treaty arrangements that could change. If that happened, the framework would be revisited, and, no doubt, different policy decisions may need to be taken. The same is true of the hazardous substances framework.
One has to bear in mind these are two living instruments working side by side: the UK internal market and the common frameworks system. The fact that, as the Bill has it at the moment, there is no means by which they can communicate with each other, is a matter of real concern, because it affects the whole structure of how these things co-operate and will co-operate in the future, in ways we cannot yet predict. That underlines the importance of trying to find a solution to the point I drew attention to on Monday of making some arrangement whereby the decisions taken, based on common framework decisions, to legislate in the devolved Administrations are protected against the effect of the market principles, particularly the non-discrimination principle, which has very broad reach indeed.
The great value of the amendment of the noble Baroness, Lady Finlay, is that it has drawn attention once again to that very real problem. It requires some response from the Minister so that we can have some idea of how he thinks these two parallel carriageways, stretching out into the future, will ever meet and co-operate with one another.
My Lords, it is a pleasure to follow the noble and learned Lord and to agree with the thrust of his argument, which he made very well. The noble Baroness, Lady Noakes, made the valid point that the purpose of our internal UK economy is to have as few barriers as possible while recognising that we are an entity of four nations with distinct areas that can make their own policies. That is not new. The Agriculture Act 1970 had different applications within the Scottish, English and Welsh agricultural sectors. So many of the areas we are talking about within these groups predate the European Union, so the principle that we have had a different approach in many of the component nations is valid.
The Government, however, have introduced this new concept, which means, for example, that the UK’s biggest food and drink export, whisky, could now be open to a great problem because a decision made by one country, Scotland, could act against the interests of farmers in England who provide products to serve that. It is the barley question, which the Minister has referred to and on which I have asked questions before. As the noble Lord, Lord True, indicated, in summing up the debate on the previous group on Monday and correcting the noble Lord, Lord Callanan, that is an area that will be covered by a legislative framework.
The noble and learned Lord, Lord Hope, and, to some extent, the Minister, may be correct that while this framework will put in legislation recognising the powers they have had during membership of the European Union, and will continue to have, exercising some of those powers previously would have been permitted, even though it was acting against market access principles, because of environmental objectives. The Government are saying that that should no longer be the case. Until this point, I accept this thrust of the Minister’s argument, but I have been scratching my head about why the Government have inserted an exemption on fertilisers and pesticides as an amendment in the Commons stages. The Minister told me on Monday that if the Scottish Government wish to use some of the powers they have always had to amend the maximum residue level of the use of pesticides, that would now effectively trigger this Act, and that would be disapplied because it would be against market access principles and mutual recognition. That is the argument that has been put forward. Therefore, that would protect English farmers to be able to supply to Scottish distilleries.
Paul Scully, the Minister’s colleague in BEIS, moved an amendment in the House of Commons on 22 September that exempted the use of fertilisers and pesticides from the market mutual recognition principles. The Minister said this in the Commons, which I thought was necessary and is now in Schedule 1, under “Fertilisers and pesticides”:
“That is necessary to allow each part of the UK to prevent the movement and use of certain fertilisers that may be dangerous, and of pesticides unless they have been assessed as safe and authorised for use in that part of the country, thus allowing for local environments to be considered and protected.”—[Official Report, Commons, 22/9/20; col. 895.]
If the Scottish Government, or the UK Government acting on behalf of England, indicated that they chose to not certify the use of a pesticide on, let us say, barley, then under this Bill, it would be exempted from the mutual recognition principles. The Government have created the very problem that the Minister said this Bill is meant to solve in the amendment they passed on 22 September, to allow local environments to be considered and protected. How does the authorisation of the use of fertilisers and pesticides—if they are used, they will be in the product—being exempted from the mutual recognition principles, and creating the problem he outlined to me as potentially existing, fit with what he is saying about the minimum residue levels of that pesticide on that barley? He will be able to answer that question in responding to this, because I think it is wholly inconsistent.
The second thing I wanted to ask for was just a point of clarification from the Minister—this is something I get confused about—on links with the importation of goods. For goods coming into the UK, the Isle of Man is not considered part of the UK by Clause 15, but it does not mention services. I wondered why that would be the case. If goods coming from the Isle of Man are not considered to be within the UK internal market, but services are, I am not sure why that would be the case.
Thirdly, I am grateful to the noble Baroness, Lady McIntosh, for raising, in detail, the question I asked the Minister on Monday. If measures are already in place in another part of the United Kingdom, the mutual recognition principles would not apply. Why is that better than the framework route, which is, by definition, common across the different nations within the UK?
On the point about the definition in Amendment 45 of “substantive”, it would be useful if the Government clarified this. I asked elsewhere where other references to “substantive” are defined and was told that it is in Clause 24 of the Finance (No. 2) Act 2017, with the definition of “equivalent”. It states:
“For the purposes of this Part of this Schedule, arrangements are ‘equivalent’ to one another if they are substantially the same as one another having regard to—(a)their substantive results or intended substantive results”.
Is this the Government’s intended definition of “substantive” in this legislation? The reason why it is important is because we would need to know what is a substantive change to a measure that is in place already.
We know that the Government do not intend to apply the principles for measures that are already in place unless there is something equivalent in another part of the UK, but if there are changes that the Government consider substantive, it would come within the scope of this legislation. One reason this is of concern would be, for example, the minimum unit price in Scotland. That legislation has a sunset clause and must be reviewed before May 2024, so there has to be a successor piece of legislation to this. If the Scottish Government, as a result of the review, indicated that they wished to change the figures—the pricing level—is that a substantive change?
On one reading, it could be fully within a breach of the market regulation principles because it is potentially a dramatic increase or decrease in the minimum unit price. Or is the substantive change to the policy objectives? If there is no substantive change to the policy objectives, how that measure is changed could be quite dramatic but the policy objectives would remain the same. The Bill does not state what the substantive nature of the change would be. Would it be on the impact? I think that the Government’s intention was that it would be a substantive change that had an impact on the single market, because if it were not, the CMA would not be empowered to review and challenge it. Can the Minister clarify that point? Is the substantive change on the policy objectives or on the impact of the single market?
The same will apply for university fees. The Minister said, I believe, that in Scotland, free tuition for Scottish students would not be impacted by this legislation because it is in place at the moment. If the fee level changed, would that be considered a substantive change for Scottish-domiciled students, for example? At the moment, the market access principle of mutual recognition is not for citizens’ rights; it is for the goods or services they either buy or receive. As far as education is concerned, under this legislation, would a university education be considered a good that is purchased or a service that is supplied? Universities are not considered as public authorities under this legislation, at the moment, so any change to that legislation could be challenged.
The point I want to close on is that moving away from the frameworks agreement to the lack of clarity in this legislation fosters vulnerability. Even if the Government do not think at this stage that some of these will fall into foul, it is not just the Government, or any Government, that would have a dispute; it is individual complainants or companies who will be able to go to the courts on this basis. That is why we are trying to ask so many questions. Without a proper framework mechanism for the courts to interpret, at the moment I fear that, with this Bill, there are far too many grey areas that need to be clarified.
The noble Lord, Lord Naseby, has withdrawn, so I call the noble Lord, Lord Inglewood.
My Lords, this is been an interesting debate. These amendments are important, focusing as they do on food, foodstuffs and animal feed, and the legal framework surrounding them in the UK internal market that is about to come into being.
While I have passed a few law exams in my life, I want to come at the issues from a slightly different perspective, as a farmer. I spoke about a number of these matters during the passage of the Agriculture Bill. What I intend to do is along the lines described by the noble Lord, Lord Rooker, in respect of his amendment, which I am pleased to speak to: probe the Government and get a bit deeper into what their actual position and thinking might be. As a number of noble Lords have said, these matters are still pretty unclear.
In the context of the amendment in the name of the noble Lord, Lord Rooker, perhaps I might say that, as a one-time chairman of Carr’s—one of the country’s largest animal feed suppliers—and as a farmer who had his livestock wiped out in the foot and mouth outbreak, I believe that the points he made merit serious consideration.
First, I declare an interest as someone who farms and manages land in Cumbria. I am also involved with a number of organisations that are stakeholders in and consultees on the forthcoming changes in policy across the UK, although I will confine myself principally to England in my remarks. I should also say that I am the chairman of the Cumbria Local Enterprise Partnership. Agriculture is one of the most important industries in the county, both on its own account and for the role it plays in underpinning the visitor economy—as your Lordships will appreciate, that has been very hard hit.
One of the characteristics of the common agricultural policy was its intention, perhaps observed as often in the breach as in anything else, to establish a single market for agricultural products across the Union. One of its purposes was to establish even-handedness across the whole; albeit it was not a homogenous area and, indeed, as I have said already, it was not always successful. Surely this must be one of the aspirations of the UK internal market that we are now considering.
Noble Lords will understand fully that the systems of support for agriculture are evolving as particular outputs of agriculture are being expanded—I do not think that there is much objection to that—and that, as this is a devolved matter, much of the detail is being dealt with at that level. In this context, as was commented on by the previous speaker, Defra is almost exclusively an English department, albeit part of the UK Government. It is clear that the systems of support are being reconfigured quite significantly across the various home nations, in respect both of quantum and of impact, so there will be real variations.
These differences can and will have a real impact on the marketplace. Perhaps the best example I can quote is historical; I hasten to add that I do not expect the Minister to be familiar with the detail, and I expect it may raise a smile. However, the evidence is clear from what happened in the Cumbrian agricultural economy in the 17th and 18th centuries, when the rules of trade relating to the English-Scots border in the period from the Union of Crowns until after the Act of Union varied quite regularly. I draw the House’s attention to Professor Peter Roebuck’s book Cattle Droving through Cumbria 1600-1900, where this is all spelled out. More recently, in my own case, as a boy I went with my father to buy an Ayrshire bull near Lockerbie. When we got it home, we found that its Scottish licence did not allow us to deploy it in England, though fortunately I am glad to be able to tell the House that, after a bit of trouble, we acquired the relevant authorisation and put it to good use.
Setting aside what is, I think, generally accepted as a better settlement for agriculture in Scotland, Wales and Northern Ireland than in England, let us look at what is about to happen. England is hell-bent on phasing out direct payments. I am not opposed to that but doing so as soon as possible is a problem—unlike in Wales, which is not starting until 2022, and Scotland, which I think will start even later, in 2023, because they want time to be able to put their houses in order and get the policy sorted out.
We must not forget that farm income is predominantly derived from the sale of agricultural commodities and is likely to be so in the immediate future. All the evidence that I have been able to glean from appropriate discussions with stakeholders and consultees is that Defra is formulating its policies for the transition in cloud-cuckoo-land. Its sustainable farming systems were described to me by one interlocutor as “nationalisation by micromanagement”—something that the Government are, at the same time, committed to reducing in the context of planning, as is spelled out in the planning White Paper. Another person, discussing the generality, commented, “Well, you’ll go bust quicker taking the money than not doing so.”
There are clearly all kinds of ramifications of these kinds of things but, in the context of the Bill, the UK marketplace for agricultural products, as has been commented on by a number of speakers, is in imminent danger of being seriously distorted because of all the changes that are being considered. It is not even-handed across the union and it becomes a cancer in the market. As such, it merits the serious attention of the UK Government; as I have said, they just happen to be the English generator, and hence also the architect, of some of the forthcoming difficulties. Furthermore, what confidence can English farmers and English agriculture have that the internal market will not be rigged against them? What will the system of market regulation being put in place be able to do about it?
The noble and learned Lord, Lord Morris of Aberavon, has withdrawn, so I call the noble Lord, Lord Liddle.
My Lords, this is a very interesting debate to join. It is a pleasure to welcome the noble Lord, Lord Callanan, to his place, as it were, once again defending an extremely complex and difficult piece of legislation. I hope he will give pretty comprehensive answers to the points raised by my noble friend Lord Rooker, the noble and learned Lord, Lord Hope of Craighead, and the noble Lords, Lord Purvis and Lord Inglewood, because they all had great merit.
I spoke at Second Reading but was not able to attend the first day of Committee because of commitments in Cumbria. In all the furore about the unconstitutional and completely unacceptable clauses of the Bill, the Government have got away with the rest of it, which may not be unconstitutional but is certainly unacceptable. Therefore, this House should expose it to very critical scrutiny.
We need clarification—this is where my noble friend Lady Hayter’s amendment is so important—in very simple and clear language of what the Government mean by mutual recognition and how this will work out. The idea of mutual recognition was an important foundational principle in the history of the European Union and the single market, but only because mutual recognition without anything else is a weapon that results in a race to the bottom. In the single market White Paper put forward by Jacques Delors in the early 1980s, the whole point was that you had to have common standards and harmonisation in a list of certain areas—I think there were 300—to go alongside the principle of mutual recognition.
I have two points to make on this. First, on the position of the devolved authorities and the nations of Britain, do the Government recognise that an essential principle of devolution is that diversity and experimentation are good things, and that it is therefore important that in a devolved settlement the devolved nations should be able to experiment with setting standards in the areas of public health, environment and consumers? This is part of the point of devolution. It is not something the UK Government should seek to prevent. It is very important that the Government make clear their support for the principle of devolution and diversity.
My second general point is the one to which the noble and learned Lord, Lord Hope, drew attention in his support for my noble friend Lady Hayter’s probing amendment: why do the Government include in their general principle this business of goods being imported into the United Kingdom? Does this essentially tell the devolved Administrations that, in any trade agreement that the UK Government negotiate, they will have no say over the standard of goods coming into the UK and would have to accept them whatever they thought about their compatibility with their own aspirations to set standards? That seems to me a fundamental point that needs an answer. This legislation is deeply complex, but we need clarity from the Government on fundamental points.
My Lords, this has been a relatively short debate in terms of the Bill so far, but it has raised some fundamental issues which beg some quite deep and considered answers from the Minister.
When the noble Lord, Lord Inglewood, brought up Cumbrian cattle-driving and we had the noble Lord, Lord Liddle, to follow, I felt we might have had quite a long discussion around that, although we did not. The noble Lord, Lord Inglewood, in characterising Defra as an English department, brought out the Janus face Secretaries of State have in being not only Secretary of State for the United Kingdom but in most cases also Secretary of State for England. Herein lie some of our problems and uncertainties.
The noble Baroness, Lady Hayter, set out and explained very well the issues surrounding mutual recognition. In the noble Lord, Lord Rooker, this House has the benefit of someone with fantastic knowledge and it is important to listen to him. Animal feed is an important area, although it is not always clear. If I may beg your Lordships’ indulgence for a short anecdote, in the mid-1970s our farm was subject to one of the small outbreaks of anthrax, which is very rare—I found the animal that died of it, and it was not a pretty sight. We were put into quarantine—something like lockdown—and it was tracked down to the importation of cheap beans from India. That is why the control of animal food in this country is really important.
In terms of animal feed on the island of Ireland, I was struck that the Government have already exempted the electricity market there—the Minister and I debated this on a statutory instrument—from the overall UK market. They have done that because of the integrated nature of electricity on the island of Ireland; it is an entirely sensible move, of which we approve. It seems to me that animal feed is very similarly integrated and would benefit from a similar island-of-Ireland-wide process. The Minister might like to think about that going forward.
As usual, the noble Baroness, Lady McIntosh, asked a series of excellent and important questions. We need answers to them to understand the objectives of the Bill.
In Amendment 21, the noble Baroness, Lady Finlay, seeks what I think many of us seek to do: to look at this, as somebody mentioned, through the other end of the telescope. This is turning things upside down. Why do we not start with the common frameworks and what is currently working around the devolved authorities and legislate only what needs to be done to create the market we all want? My noble friend Lord German’s twin-track, two-road approach is a very good example. Where is the gap? How do these twin tracks come together? There is no explanation anywhere of how the common frameworks and the Bill are supposed to work together. The only conclusion I can draw is that the common frameworks are allowed somehow to dwindle, because the Government seem to be putting an enormous amount of energy into the Bill.
As usual, the noble Baroness, Lady Noakes, is right: we need to facilitate trade and make it as frictionless as possible across the UK. It is a shame we cannot make it frictionless across the whole of the European Union. The fact is, we have devolution, and the internal market Bill must respect that. At present, it seems that it does not. The noble and learned Lord, Lord Hope, made this point very ably.
As usual, my noble friend Lord Purvis came up with a series of important questions, including Scotch whisky-based ones. He came up with the revelation that there is a complete and absolute internal contradiction in the Bill. The Government brought forward an amendment that causes the following to happen: if England decided to set up its own approval system and started approving active chemicals banned in the EU, Scotland could refuse them. Conversely, Scotland could presumably go further than the EU ban and ban substances which England approved. That is the Government’s position, based on an amendment they brought to the Commons. However, he Minister has said that we must stop this happening, and that the Bill will do that. Something is not right, and the Minister needs to explain what is wrong.
The telling point made by my noble friend Lord Purvis and other noble Lords, including the noble Baroness, Lady McIntosh, is that without clear definitions, it will not be the Government causing the race to the bottom—it will be companies taking this to the courts. That is why we expect from the Minister a very detailed answer to these important questions.
I strongly endorse what has been said by the noble Lord, Lord Fox. This is an incredibly important and rich debate in which detailed answers are required. It has been a very powerful debate because it has identified a range of problems, both of principle and detail, suggesting that either the Bill has not been properly thought out—subject to what the Minister says in answer—or that there are fundamental problems with it.
I strongly echo what was said by the noble Lord, Lord Inglewood, and endorse what the noble Baroness, Lady Noakes, said—we want frictionless trade as much as possible. I do not know about the noble Baroness, but my experience of business is that if every five minutes one is in the courts trying to work out what is allowed and what is not, that is the classic recipe for a lack of certainty. This Bill, as said so accurately by the noble Lord, Lord Purvis, is creating a whole range of private rights not to be discriminated against, to be treated the same in one place as another. Unless the Bill is clear and has a practical impact, it will be an absolute goldmine for lawyers. It is therefore critical there is confidence this has been properly thought through and the principles work. I am dubious— I am not talking about Part 5 but about the internal market provisions.
We had a very important debate on Amendment 7 about imports, tabled by my noble friend Lady Hayter. My noble friend and the noble and learned Lord, Lord Hope, asked why the devolved Assemblies or Parliaments are excluded from having any voice on what is imported. We were treated by my noble friend Lord Rooker and the noble Lord, Lord Inglewood, to an explanation of all the drawbacks of including food and animal foodstuffs in the arrangements. They gave a devastating series of reasons why these are wrong. Could we have detailed answers for the point made by the former chair of the Food Standards Agency? I ask the Minister to convince us if he can that my noble friend was wrong and the Government are right in the way they have approached this.
The amendments which were very powerfully introduced by the noble Baroness, Lady McIntosh, indicated legal issue after legal issue. I draw attention to two where an answer is important. First, how do the measures already in place apply, and why are they better than the common frameworks approach? Secondly, what is meant by substantive change, rather than significant change? That feels like an issue that could be litigated over for a long period of time.
The noble Baroness, Lady Finlay, the noble Lord, Lord German, and the noble and learned Lord Hope, referred to the failure of the Bill so far to make any connection between the market access principles and the common frameworks principle. The noble Lord, Lord German, referred to a motorway, and the noble Baroness, Lady Finlay, called it the blunderbuss approach. The market access process says the lowest level applies; the common frameworks approach is that before legislating, you see whether the four areas can agree. Surely that is the better approach otherwise people will ultimately go to the courts to resolve what their rights are.
The noble Lord, Lord Purvis, drew attention to the apparent inconsistency in the approach the Government took on 22 September by in effect excluding fertilisers and pesticides from the internal market approach, giving rise to the problem the Minister said they were trying to solve in the Bill. I would be very interested to hear the answer. Is the Isle of Man in or out of the UK in terms of services? Are universities providing services? If so, what is the impact of the Bill on them, particularly in relation to the different B structure?
Amendment 61 in my name would delete the first reference in the Bill to any part of the offending Part 5. For the purposes of good management, it is far better that instead of addressing that in this group, we wait until we get to Part 5. Amendment 61 was intended to be a paving amendment to the Part 5 debate, so I will leave that until then.
I thank everybody who has contributed to what has been, as always in this House, a fascinating debate, ranging far and wide, from cattle droving in the 1700s, through to the immense knowledge of the noble Lord, Lord Liddle, on current EU matters. It is good to see him again to take up cudgels across the Dispatch Box. As he knows, I do not agree with him, but I always enjoy debating these matters. I hope that noble Lords will have patience today. I have quite a lot to say—many points have been raised and I intend to go into a lot of the detail. I apologise if my remarks are a little long.
Amendments 7, 8, 20, 21, 22, 26, 32, 45 and 61, all seek to alter or change the application and scope of mutual recognition and non-discrimination for the internal market and goods. The workings of mutual recognition and non-discrimination as applied in this Bill have been carefully designed to suit the UK’s unique constitutional and legal arrangements. We consulted widely on this, based on the Government’s proposals set out in the White Paper in June.
The noble Baroness, Lady Finlay, wanted to know in detail about the consultation. We published for her benefit, a response in full to the White Paper consultation on 9 September and I would be happy to send her a copy. The consultation demonstrated that UK businesses and industry representatives are overwhelmingly supportive of the measures to prevent discriminating behaviours within our internal market. I will set out the rationale why I cannot accept these amendments. I am happy to explain how mutual recognition and non-discrimination work in greater detail.
We have been clear that the UK will do nothing to diminish its reputation as a leading nation when it comes to setting and expecting high standards of its domestic businesses and international trading partners. I know this is a concern that the noble Baroness, Lady Hayter, has expressed on other Bills that we have discussed in relation to EU exit and is what she seeks to address in Amendment 7, but I contend that this simply will not arise.
Removing imported goods from the mutual recognition principle would mean that those goods, simply because of where they were sourced, could not benefit from the same regulatory treatment as goods produced in the United Kingdom. Even when produced to identical specification and quality as domestic products, this discriminatory impact would put imported goods at a conspicuously unfair disadvantage. Under such a discriminatory approach, we would be likely to be in clear breach of our World Trade Organization commitments to treat imports from other countries no less favourably than similar products produced domestically.
This amendment would also create continued uncertainty for importers. Those businesses whose supply chains rely on overseas sourcing could find themselves at a competitive disadvantage. This amendment would not tackle the issue it seeks to address and would have significant negative consequences for the UK if included.
There was considerable discussion of Amendment 8, tabled by the noble Lord, Lord Rooker, which would ensure that food and animal feedstuffs would not fall within scope of the mutual recognition principle. Like my noble friend Lady Noakes, I was slightly struggling to understand the relevance of his comments about pig semen. I think he asked whether pig semen across the island of Ireland would be affected by Clause 2, but I am happy to confirm for his benefit that pig semen will be subject to the same rules as other goods across the island of Ireland and only when it moves from Northern Ireland to Great Britain will it be subject to any checks. On pigswill, I am happy to confirm for him that the Government will not allow the reinstatement of its use.
This amendment could have serious consequences for the food supply chain, as foods sold in one nation could not be sold in another if there were different regulatory requirements, creating significant barriers to trade within the UK. As I have said, the Government remain committed to maintaining the highest standards in food and feed safety. The UK internal market approach will not change the approach to determining food and feed safety and hygiene policy. I can put at rest the noble Lord’s mind and that of the noble Lord, Lord Purvis: Schedule 1 to the Bill contains an exclusion to the market access principles to continue to enable the UK Government and the devolved Administrations to take appropriate risk-management measures to prevent or reduce the movement of unsafe food or feed from one part of the UK to other parts. I will have more to say about that later.
Turning to Amendment 20 and the consequential Amendment 22, tabled by my noble friend Lady McIntosh and relating to the exclusion of certain existing statutory requirements from the mutual recognition principle, Clause 4 ensures that pre-existing regulatory differences within the UK are excluded from the scope of mutual recognition. This is a forward-looking Bill that seeks to ensure that businesses can continue to enjoy the benefits of our well-integrated internal market after the transition period ends on 31 December. Businesses already live with and have adapted to any regulatory differences that currently exist, so mutual recognition does not need to apply retrospectively. In line with this objective, Clause 4(2)(b) ensures that this exclusion is specifically targeted at those areas in which regulatory differences have previously emerged.
This amendment would widen the exclusion to include any statutory requirement that existed prior to the relevant day set out in the Bill, regardless of whether there had been divergence in that area. However, this is not necessary. Mutual recognition has a practical effect only in areas where requirements differ across the UK, which is why the exclusion is targeted at those areas. Regulatory requirements, which are currently harmonised across the UK, do not need to be specifically excluded as the application of mutual recognition will not make any difference to the status quo. Of course, if the existing requirements excluded by Clause 4 are amended in a way that changes the effect or outcome of the legislation, they would then come within the scope of mutual recognition.
Amendment 21 is consequential on Amendment 6, which we discussed previously as part of a wider discussion on market access principles. It would amend the exclusion of pre-existing requirements from the mutual principle if Amendment 6 is also adopted. My noble friend Lady Bloomfield addressed Amendment 6 yesterday in the fifth group but, in brief, these amendments in combination would enable harmful regulatory divergence within the UK internal market into 2021 and beyond. This could lead to new barriers for businesses trading within the UK, instead of clarity and certainty.
The noble Lord, Lord German, and the noble and learned Lord, Lord Hope, asked about any follow-on emissions trading scheme. This is a non-market framework, so it would not be captured by the market access principles as it does not relate to a good or service.
The noble Lord, Lord Purvis, raised a number of questions about fertilisers. I shall give him a detailed reply. To exclude from the principle of mutual recognition as proposed by the Bill the safeguarding decisions of Administrations in relation to the placing on the market of fertilisers would allow each Administration to ban the sale of a fertiliser or impose conditions on that fertiliser in their jurisdiction in response to a risk to the health and safety of humans, animals, plants and the environment. We think it necessary to retain the current ability for the individual nations to take local circumstances into account and immediately to take a fertiliser deemed unsafe off the market in their territory without the risk of that product finding its way back into that territory via another nation. Without that amendment, it could take some time formally to ban a product through legislation—perhaps a couple of years.
The noble Lord also asked about pesticides. Decisions on which pesticides can be authorised to be marketed and sold in each part of the UK are already within devolved competence. All four Administrations work closely together, supported by HSE, and most decisions can be taken jointly by consensus. However, retaining the ability of each Administration to take its own decision where necessary is important, for example, if merely to consider locally specific factors, such as environmental or farming conditions, which can differ across the UK. This has worked well for many years where there has been occasional divergence between different parts of the UK and has not, so far, caused problems. This amendment therefore maintains the current position.
Amendment 26, tabled by my noble friend Lady McIntosh, seeks an explanation of the meaning of Clause 5(3), which I am happy to give. Clause 5(3) will operate so that any future requirements that fall within the scope of the non-discrimination principle will be of no effect to the extent that they are discriminatory. For the benefit of the lawyers, this does not mean that the requirement is to be treated as if it never had any legal effect. Rather, it allows the continued operation of the requirement, except to the extent that it has discriminatory effects. This aims to ensure that businesses can continue in their trade and goods can continue to be sold, despite protectionist measures that might treat goods from one part of the UK more favourably than goods from another. As the Bill deals with trade across the whole of the United Kingdom, the intention is that this will apply to all legislation: secondary legislation, primary legislation passed by devolved legislatures and legislation passed by the UK Parliament.
We believe that this does not require further elaboration in the Bill and is clear that only changes to existing legislation that affect the outcome are in scope. The amendment in question could cause confusion as there may be amendments that are considered “significant”, but do not change the outcome or effect of legislation. Fundamentally, however, the drafting in this clause will allow businesses to continue following the same regulations as they have been accustomed to, as our desire is not to disrupt their operations. That flexibility is important, because we want this provision to catch legislation only to the extent that it produces discriminatory effects. If something is not law, it cannot have any effect. As I said, we want to create a presumption that future Acts of Parliament are subject to this rule, which the current drafting allows.
My noble friend Lady McIntosh also asked whether, if the FSA and FSS had different rules, that would impact on the free movement of goods. The principles of mutual recognition and non-discrimination will apply to goods, including food, feed and animal products. This means that a good that can be lawfully sold in one territory can be lawfully sold in the other territories without having to comply with that other territory’s requirements. The only exclusion from this, as I said earlier, is set out in Schedule 1, which provides for exclusion in emergency scenarios where specific criteria are set out.
The noble Baroness, Lady McIntosh, also tabled Amendment 32. I understand that its purpose is to probe the meaning of “actual or hypothetical goods” in the Bill, and we are happy to provide further information on that. To be clear, though, this amendment would weaken the measures we are introducing to determine where relevant requirements are creating restrictions in a discriminatory way. The inclusion of “actual and hypothetical goods” within this clause is necessary, as it means that the provisions work effectively in scenarios where there are no actual local goods against which impacts on incoming goods can be compared.
To explain further, if a company has a product that is subject to a patent, it can therefore be made by only one company in the UK. If an authority were to regulate against that product because of where it is produced, there could not possibly be a local good to compare it to in order to determine relative disadvantage. Being able to compare it to a hypothetical good addresses this, and allows the rules against direct discrimination to operate properly and protect all businesses across the UK.
The existing wording is also important to deal with situations where arguments could be posited that a local good is similar to, but not the same as, an incoming good, and therefore would not be a good comparator in determining whether discrimination exists. Being able to compare to a hypothetical good that is the same as the incoming good, save for location, enables that determination to take place. I hope the noble and learned Lord, Lord Falconer, is taking careful note of this for his future legal career. This means that regulators can focus on determining whether discrimination might take effect, rather than identifying comparable goods.
Amendment 45 seeks to probe the Government’s understanding of what is meant by “substantive change” in Clause 9. A number of noble Lords have made this point. Clause 9 sets out that all existing statutory requirements will be considered out of scope of the non-discrimination principle for goods. This is to ensure that the non-discrimination principle will not have any reach-back effects on areas of pre-existing legislation.
As I said earlier, under the Government’s proposed approach, existing requirements will not be covered and businesses will have already adjusted to them. However, if these regulations are substantively changed, they would be brought into the scope of the non-discrimination principle for goods to avoid any new barriers arising within the UK. If existing regulation, which would otherwise have been in scope of non-discrimination, is re-enacted in a way that changes the effect or outcome of the legislation, it would then come within the scope of the non-discrimination principle. Where existing legislation receives technical or minor amendments that do not alter the scope of the legislation, that legislation would continue to be out of scope.
We believe that this does not require further elaboration in the Bill and it is clear that only changes to existing legislation that affect the outcome are in scope. The amendment in question could cause confusion, as there may be amendments that are considered significant but do not change the outcome or effect of the legislation. Fundamentally, however, the drafting in this clause will allow businesses to continue following the same regulations that they are accustomed to.
Amendment 61 was tabled by the noble and learned Lord, Lord Falconer. He said we would debate it in a future debate, but I will give him a brief reply now. I highlight that the protocol is clear that nothing contained within it prevents Northern Ireland goods from enjoying unfettered access to the rest of the UK internal market. The Government are committed to ensuring this. Clause 11 gives effect to a key element of the Government’s commitment to unfettered access for Northern Ireland goods to the whole UK internal market by ensuring that they benefit from mutual recognition and are not discriminated against, enabling those goods to be placed on the market in Great Britain without additional approvals.
Clause 11(8) limits the mutual recognition principle to “qualifying Northern Ireland goods”. This section ensures that the benefits of unfettered access are focused on those goods and, to ensure these benefits are felt, the Government have brought forward separate secondary legislation that establishes the definition of a qualifying Northern Ireland good from the end of the transition period. This is part of a phased approach, with a second phase to follow during 2021, which will focus the benefits of the regime on Northern Ireland traders. This clause therefore delivers a key element of our commitment to unfettered access, in line with the clear commitments we have made otherwise.
If the noble and learned Lord’s amendment were passed, there would be no definition of the goods to which any benefits would attach, meaning that Clause 11 would no longer be able to extend the UK internal market access principles to qualifying Northern Ireland goods. This would remove the basis for ensuring unfettered access and, in its place, leave uncertainty for Northern Ireland businesses.
Lastly, I will address the question put by the noble Lord, Lord Purvis, on the Isle of Man. Goods coming from the Isle of Man are not treated as imports for customs purposes. Therefore, the Government make clear, in Part 1, that goods coming from the Isle of Man count as “imported into” for the purposes of market access principles. We do not believe that this is necessary for services. In summary, for all the reasons that I have set out in great detail, we cannot accept any of the amendments tabled. I therefore hope that noble Lords will withdraw or not move them.
I have had a request to speak after the Minister from the noble Lord, Lord Purvis of Tweed.
The Minister did not explain why services from the Isle of Man to the rest of the United Kingdom will be considered within the United Kingdom internal market, but goods coming from the Isle of Man are outside the single market. There are many service providers from the Isle of Man. In fact, financial services are probably a bigger part of the Isle of Man economy than goods for export. I would be grateful if the Minister could explain this. The Minister did not respond to my point about whether these regulations apply to the services that citizens receive for higher education. This is very important within Scotland.
My point to the Minister, I believe, justifies my argument on the good working relationship across the four nations on fertilisers and pesticides. The Minister referenced the justification for the government amendment about the need to work in emergencies. Paragraph 1 of Schedule 1 already has exclusions from market access principles for threats to human, animal and plant health. Emergencies were already covered. The amendment that the Government brought forward was not on emergencies; I looked at the regulations that it covers, which are in paragraph 9 of Schedule 1 on fertilisers and pesticides. The Bill will allow the Scottish Government, and a Welsh Government or UK Government acting for England, to make a different judgment on the advice they get from the single regulator about the safety of a pesticide for, as the Minister Paul Scully said, “movement and use”.
So, if English farmers, under the authority of the regulations in the Bill, decide to use fertilisers on crops—barley—that are unsafe in the view of the Scottish Government, the Bill will allow the Scottish Government to prevent that barley from being used in Scottish distilleries. The Minister said that the whole purpose of the Bill was to prevent that from arising. So he has managed to undermine the entire intent of his argument at Second Reading, which was that the purpose of this legislation was to prevent a barrier from a different decision being made on safety grounds. If this amendment, which the Government brought forward, allows for different decisions to be made on the safety of pesticides used in different parts of the UK, I hope the Minister will reflect on what he said about the justification for the Bill.
I understand the point the noble Lord is making, but I think we are talking at cross purposes. It would allow provisions on unsafe products, but the provisions would be based on advice from the common regulator—so presumably the authorities in England would draw the same conclusion. It does not allow a Minister to dream up a definition of “unsafe” and implement provisions on that.
On the noble Lord’s first point, if he will forgive me, I will write to him.
I have had a further request to speak after the Minister from the noble Baroness, Lady McIntosh of Pickering.
My Lords, I am struggling to understand the Minister’s reply on Amendments 26 and 45. I am particularly concerned about Amendment 26, which is a probing amendment and simply asks for greater clarity, which I do not think we have had. Is he saying that the statutory requirement has no effect? Does he mean that it is valid or not? Is it enforceable? I am trying to avoid a situation where there is any doubt whatever, and court action might be taken. I do not quite understand his answer that the possibility of court action is excluded if, in the view of others, a statutory requirement has effect and could, therefore, be actionable.
My Lords, I think I am Baroness Hayter of Confused. I did not understand that last reply. I thank the Minister for attempting to answer the question, though I have to warn him that I think he is in trouble with the boss. I think he admitted that there would be checks at the border between Northern Ireland and Great Britain on pig semen. The boss said, “No checks, no extra paperwork”. I am now hearing noble Lords say, “New checks”. That is not what the Prime Minister said at that reception. He said, “If there’s a piece of paper, send it to me and I’ll throw it away”. I shall make no comment on semen causing particular problems, but it seems that there would be checks on it.
I shall try to be brief because a lot of points have been raised. I thank all noble Lords who have spoken, particularly those who support the line we are taking. I fear that many of these questions flag up the problem that the Bill was drafted without the full involvement and agreement of the devolved authorities. We may not be where we are if those discussions had taken place beforehand. I think it was the noble Lord, Lord German, who talked about parallel tracks between the common framework and this Bill. It loses not only the consensus approach to the common frameworks that we have discussed before, but the flexibility that the noble Lord, Lord Purvis, mentioned. We want to build on this. I hope the Minister will hear some of these questions and see whether he can give a response that ensures clarity for business, as well as for those operating in this area.
The Minister did not answer on universities and I am not sure he answered about the all-Ireland agreement. A lot of other points were raised about animal feedstuffs and pesticides. It would help if some of those dialogues could continue before we get to Report. It is also worth listening to what my noble friend Lord Liddle said. The Government should stand up and say that they support the maintenance of the devolved settlements, and that they recognise and want to keep diversity where it would still enable us to have an internal market. That sort of statement would be helpful.
I am sorry that the noble Baroness, Lady Noakes, is now not allowed to come back at me for what I am going to say. I partly agree with her. We want trade and believe that it is good, but not at any price—not at the price of safety or the environment. This does not mean that we are not in favour of greater trade with all the benefits that it has brought. I also agree with her that, of course, we favour free, and barrier-free, trade. That is why some of us want a deal with the EU, which has no tariffs or checks, and we wanted to stay as close to it as possible. I know it was not her view that we should stay in. I think I once heard her say—I am happy to correct this at the end if I am wrong—that trading on WTO terms would not be the end of the world. Good, the noble Baroness is nodding, so she confirms that she said it. That, of course, would mean a lot of checks and a stop to free trade.
The issues raised in this debate need further consideration. We have to resolve the question that the noble and learned Lord, Lord Hope, asked. Will there be any input by the devolved authorities into importation by, particularly, the English Government? They will need some comfort over that. I beg leave to withdraw the amendment.
Amendment 7 withdrawn.
Amendment 8 not moved.
Clause 2 agreed.
We now come to the group beginning with Amendment 9. I again remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this, or anything else in this group, to a Division should make this clear in debate.
Clause 3: Relevant requirements for the purposes of section 2
9: Clause 3, page 2, line 21, leave out “any” and insert “a particular”
Member’s explanatory statement
This amendment would clarify that the purpose of Clause 3 is to identify what are the relevant requirements that apply to a specific sale of goods (the word “sale” being defined broadly in Clause 14).
I apologise in advance if noble Lords are in for more technical explanations. We will take together the minor technical amendments in my name to Clauses 3 and 4. All involve drafting improvements or clarifying technicalities. None of these amendments results in a change of policy, but they need full and proper scrutiny in this Chamber and noble Lords deserve an explanation of the improvements that they make to the Bill.
First, I turn to Amendment 9. This clarifies Clause 3 by identifying what is a relevant requirement in relation to a specific case where particular goods are sold. Without this amendment, there could be ambiguity as to whether a requirement needs to apply to all sales of all goods to be a relevant requirement. For example, where a business has produced a tin of biscuits in Scotland and seeks to rely on the mutual recognition principle to sell them in England, this amendment makes it clear that the relevant requirements are those that would apply to the sale of the biscuits in England and to the equivalent, hypothetical sale of the biscuits in Scotland, Northern Ireland or Wales. Requirements that apply to other sales of other goods—for example, requirements that apply to the auctioning of a painting—would not be relevant requirements in this context. Without this amendment, there is a risk of legal uncertainty over which requirements are relevant. This could create confusion, costs and inconvenience for businesses.
Amendment 10 provides similar clarification. It emphasises that subsection (2), which defines and therefore enables one to identify a relevant requirement in relation to a particular sale, makes relevant requirements only in relation that sale. Requirements are not relevant in any general way; they are relevant only in relation to the sale in question.
Amendment 18 clarifies that Clause 4(1)(a) refers to a specific sale of goods, rather than a hypothetical sale of goods. It makes clear that we are referring to an actual sale of goods and not to a hypothetical sale. As a result, the amendment removes any potential ambiguity around which existing statutory requirements are excluded from the mutual recognition principle. This amendment also ensures consistency with Clause 3(1), as proposed to be amended by Amendment 9—also in my name. Once again, we are considering requirements which apply specifically to a particular sale—for example, the requirements that would apply to the sale of a tin of biscuits in England, as per my previous example, but not all requirements that might apply to any other sales of goods. This makes clear which statutory requirements might be excluded, if the conditions in Clause 4(2) are met.
Amendment 19 corrects a small drafting error in Clause 4(1)(a). This paragraph refers to “a” part of the United Kingdom when it should refer to “the” part of the UK mentioned in the opening words of the subsection. It removes any ambiguity around which part of the United Kingdom is being referred to in Clause 4(1)(a), so that there can be no doubt that when we are considering English requirements, we are considering how they apply in relation to a sale in England. Without this amendment, there could be confusion over whether we are referring to just those requirements which apply in England or to requirements which could apply in any part of the UK.
Finally in this group, Amendment 23 aligns the language used in Clause 4(2) and 4(5). Both provisions refer to a hypothetical sale on a particular day, rather than to an actual sale. These subsections set out the conditions for when an existing requirement will be excluded from mutual recognition. Both should refer to a hypothetical sale on the relevant day. This amendment clears up the ambiguity by making it clear that both subsections refer to a hypothetical sale, rather than to an actual sale. Aligning the language in this way will make the drafting of this clause clearer and will avoid any confusion over why the wording is different in Clause 4(2) and 4(5) when both should refer to a hypothetical and not to an actual sale.
Taking again the example of the sale of a tin of biscuits, Clause 4(2) and 4(5) refer to the statutory requirements around the sale of biscuits, which would have been enforced in different parts of the UK on the relevant day, which is the day before this Bill comes into force, if the tin of biscuits had been sold on that day. This means that we will always be talking about a hypothetical sale here, and the amendment to Clause 4(5) makes this clear. Without this amendment, it is not clear that Clause 4(5) is referring to a hypothetical sale, which may cause confusion. I beg to move.
My Lords, I am interested to know why the Minister felt that these amendments needed to be moved at this time; what provoked that? Furthermore, who decides—and in what circumstances—what is a hypothetical sale, as opposed to a real sale?
My Lords, I am grateful to the Minister for clearing this up, because any confusion beforehand may be ongoing. Since he was so clear, perhaps he will not mind my asking a couple more questions.
As the Committee knows, I live on the border, and some of these things are very relevant for traders, especially rural traders living on either side of the border. When I was a Member of the Scottish Parliament, one of the big areas of debate when minimum unit pricing was introduced was the concern about the cross-border selling of alcohol, which avoided the decision being made in Scotland concerning the price of that alcohol. This is not hypothetical; these were real sales. It did not apply to the more expensive malt whiskies et cetera. The minimum unit pricing of alcohol was, by and large, about the low-value alcohol which could be brought across the border in large quantities to be sold in Scotland. That was a valid issue, and a key area of consideration when it was debated by the European court. The justification, which the ability of the public authorities to prevent that happening relied on, was that this was against market access principles but justified on public health grounds. The Government have chosen not to do this, so they will be relying on the market access principles.
Can the Minister clarify something that I genuinely do not know? I am not trying to catch him off guard. On the sale areas of goods, does the Bill permit alcohol for use within Scotland to be sold in Scotland on English grounds? Can alcohol be sold in Scotland by using mutual recognition, to avoid the minimum unit price stipulated for alcohol that is then sold in Scotland? I have a fear that it may be. It will be reassuring if the Minister indicates that this is not the case, because Clause 13 is about the sale of goods complying with local law and states:
“Nothing in this Part prevents goods produced in or imported into a part of the United Kingdom from being sold in another part of the United Kingdom if … the sale complies with any requirements applicable in that other part of the United Kingdom”.
Therefore, if we say that, rather than biscuits, it is gin or vodka, and a policy has a direct impact on the price of that gin or vodka because of the Scottish legislation, then Clause 13 suggests that if that alcohol was brought over from Northumberland and sold in the borders, the selling of it to a wholesaler within the borders would have to be done as if it had taken place in Berwick, Northumberland.
I ask this because there is currently a lot of cross-border trade in agricultural business. Many Scottish producers will sell livestock at the Wooler market in England. A lot of this is happening. It has been worked through with regard to the different agricultural standards. Therefore, I am anxious that Clause 13 could inadvertently be used to bypass what are correct elements.
This leads me to my final question. We will come to the definition of “goods” and “sale” with Amendments 66 and 67, but there is nothing in the definition of “sale”, or the other parts of the Bill, relating to the price. If policies are in place which directly impact on the price of an item to be sold, rather than standards, labelling or marketing, is price also considered within that? I would be very grateful and give him top marks if the Minister can answer those questions clearly.
My Lords, I have mainly technical, minor drafting points, which do not require much discussion. The Minister was consumed during his speech because of the hypothetical tin of biscuits that he brought into play. I am so glad that we do not have details of what pig semen is carried in. I much prefer us sticking with the tin of biscuits as our main metaphor in these issues.
Like the noble Baroness, Lady McIntosh, I wonder why these amendments are being tabled now. After all, the Bill has been through the other place and been republished. Only now are we getting evidence of “scrubbing the text” to ensure that the sorts of issues raised in this group of amendments will not get into the final version of the Bill. It is a minor criticism of a very minor issue, and I am happy to await the answers to the questions raised by the noble Lord, Lord Purvis, which would bear substantial response and will need to be dealt with at the appropriate time.
My Lords, I apologise to noble Lords for hesitating in my answer earlier. There is a danger of this “tin of biscuits” example assuming the same significance that the maiden aunts of the noble Lord, Lord Lisvane, did, during the EU withdrawal Bills. I see smiles from noble Lords who were involved in those debates. However, I am not sure that we should pursue the “pig semen” argument of the noble Lord, Lord Stevenson.
To answer my noble friend Lady McIntosh, these are technical changes relating to drafting errors that became apparent in further studying the text following amendments tabled by noble Lords. Following further examination by government lawyers, the Bill was drafted fairly speedily over the summer. Our intention was to avoid government amendments, but we wanted to hear the replies to the consultation and the White Paper. They are technical and legal clarifications that change none of the policy intent.
I assure the noble Lord, Lord Purvis, that the minimum unit alcohol pricing policy is unaffected, because it is an existing measure that is excluded, and because it is specifically excluded in addition to that, via various clauses. I will write to reassure him of that. Regarding his points about gin and vodka, I am not an expert on the Scottish measure, but I think it affects the retail price of the sale and not wholesale prices, and therefore the product would need to be sold at a different price, as specified in the Scottish measure. However, I consulted officials when we first debated this legislation and was assured that the Scottish measure would be unaffected by this legislation. I am happy to write reassuring the noble Lord on that point.
I have received a request from the noble Baroness, Lady McIntosh of Pickering, to speak after the Minister. My apologies; I gather that is not the case.
Amendment 9 agreed.
10: Clause 3, page 2, line 28, after first “requirement” insert “in relation to the sale”
Member’s explanatory statement
This amendment would clarify that a statutory requirement that meets the conditions in paragraphs (a) and (b) of Clause 3(2) is a relevant requirement in relation to the sale mentioned in Clause 3(1).
Amendment 10 agreed.
Amendment 11 not moved.
We now come to the group beginning with Amendment 12. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press anything in this group to a Division should make that clear in the debate.
12: Clause 3, page 3, line 25, leave out subsection (8)
Member’s explanatory statement
This amendment would remove the Secretary of State’s regulation-making power, as recommended by the Delegated Powers and Regulatory Reform Committee in its 24th Report.
My Lords, in moving Amendment 12, I will also speak to Amendments 27, 38, 46, 72, 97 and 160 in my name. These amendments would remove the Bill’s regulation-making power, which is fully in line with the recommendations of the Delegated Powers and Regulatory Reform Committee. Its report is a comprehensive review of these issues; your Lordships will be pleased to hear that I will therefore not reiterate them at length. Later, we will hear the wise words of my noble friend Lord Thomas of Gresford, who will describe that your Lordships’ House is approaching a watershed on this issue. He is of course right; this train has been coming down the tracks for some time.
A while ago, the noble and learned Lord, Lord Judge, gave a lecture at King’s College London entitled “Ceding Power to the Executive: The Resurrection of Henry VIII”. He made the stark point that parliamentary sovereignty is the antithesis of executive sovereignty. The two concepts are mutually contradictory. The democratic process is not meant to give—and our constitutional arrangements are not meant to provide us with—executive sovereignty. The burden of the noble and learned Lord’s argument was that Henry VIII powers, although paradoxically conferred upon the Executive by none other than Parliament, are an affront to parliamentary sovereignty. That lecture was held in 2016. Since then, we have seen an acceleration of the erosion of parliamentary sovereignty through these means.
As the House of Lords Constitution Committee put it in its report of the Strathclyde review some five years ago:
“Delegated powers in primary legislation have increasingly been drafted in broad and poorly-defined language that has permitted successive governments to use delegated legislation to address issues of policy and principle, rather than points of an administrative or technical nature.”
This Bill pushes that envelope yet further. The Delegated Powers and Regulatory Reform Committee was clear. It described some of the powers in that report as either “extraordinary” or “unprecedented”. To justify these extraordinary and unprecedented powers, the Government cite the need for legislation to evolve. The possibility of unknown unknowns required a yet unknowable legislative response and a yearning for law-making speed. None of these justifications is extraordinary and none of them is unprecedented.
I beg to move.
My Lords, the amendments in my name in this group are for the most part identical to those of the noble Lord, Lord Fox, although in some cases they are wider in their supplementary implications. It goes without saying that I agree with everything he said—and everything that I suspect the noble Lord, Lord Thomas of Gresford, is about to say—about the whole range of excessive and inappropriate delegations. Of course, my amendments follow the advice of the DPRRC; I declare an interest as a member of that committee.
I will make a few general points about what the Government are trying to do in these clauses and how they have justified them. I speak for myself but I suspect that I also speak for many members of the committee —certainly for our distinguished chair—when I say that we have reached a point of almost total exasperation with the Bill. The DPRRC was set up in 1992 to monitor and control the excesses of executive power and the temptation for Ministers and officials to try to avoid parliamentary interference and take inappropriate powers. So it is hardly new, but in recent years, we have been sorely tested— not least on the limits of our vocabulary. Indeed, the DPRRC has described these powers as “extraordinary” and “unprecedented”.
We have seen the increasing use of skeleton Bills and statutory instruments not for the delivery of policy but for the design of policy and for carrying the principles of legislation within the secondary framework. Most recently, we have seen mounting evidence of a Government that will go to endless lengths to avoid scrutiny. This Bill is in a class of its own because of the sheer volume and significance of the Henry VIII powers. Of the 12 delegated powers in the Bill, seven are Henry VIII powers, allowing Ministers to amend or repeal significant provisions of the Bill itself, as well as other primary and secondary legislation. We used to protest when only one Henry VIII power turned up in a Bill.
It sets a different tone, too, because the delegated powers memorandum, in its attempt to justify why these powers to expedite the mutual recognition principle and the non-discriminatory principle are necessary, does not even bother to try to find a convincing justification for the powers taken. In the clauses relating to my Amendments 13, 28, 39 and 47, for example, the explanations for using statutory instruments to amend Acts of Parliament cite the need for speed and flexibility to respond to unforeseen developments—the known unknowns and so on—respond to stakeholders and provide certainty. These are profoundly lazy and threadbare arguments, and Ministers and officials know that. I consider that contempt of Parliament. Secondary legislation does not guarantee speed, flexibility or certainty. Primary legislation, as we know from dealing with the pandemic, can be introduced at the speed of light and amended. Indeed, the Government have conceded in their own arguments that the Secretary of State is not required to declare that the making of regulations is required as a matter of urgency, so urgency is a false trail too.
This disingenuous use of language offered in the memorandum in regard to Clause 6(5) is a case in point. It argues that Ministers need to be able to respond swiftly to future-proof the operation of these principles so that they can be changed as and when Ministers decide that it is necessary. The DPRRC dismisses this as an attempt to completely rewrite the non-discrimination principle. When the Government argue that there is no way that they can change the definition of legitimate aims attached to the non-discrimination principles in Clause 8 other than by secondary legislation, they seem to have completely forgotten that such a thing as primary legislation exists. Indeed, in Schedule 2, for example, the assumption is that only secondary legislation is fit for purpose when it comes to making future amendments.
The powers that my amendments seek to remove are described by the DPRRC as inappropriate and ones that should be removed; the Constitution Committee endorses that. “Inappropriate” may seem rather feeble in the parliamentary lexicon; in fact, it could not be more powerful. Among other synonyms, it means unseemly, unbecoming, lacking in propriety, ill-judged and out of order. Nowhere are those and many other epithets more appropriate than what these clauses have to say about the devolution settlement. For in Clauses 3(10) and 6(7), in relation to mutual recognition and non-discrimination —the two main pillars of market access—there is the explicit instruction that, before making regulations, the Secretary of State must consult the Ministers of the devolved assemblies. The Government are required not to seek consent but merely to consult, so they
“can act without the need to introduce new primary legislation or to obtain the consent of the devolved administrations (the Minister being only under a duty to consult) even though the proper functioning of the internal market is essential to all the administrations of the UK.”
That is a direct quote from the DPRRC.
That most eloquently brings us to the fracture at the heart of the Bill, and to the reason for taking these inappropriate powers which removes them from the full attention of Parliament. It comes back to what the Government insist is the purpose of the Bill—to secure, despite the promise and the purpose of common frameworks, that the internal market will need a new regulatory structure flexible enough to meet the unforeseen demands in the future, notwithstanding that they cannot tell us what those demands are likely to be or explain how they are going to prevent lower common standards permitted by law in this Bill, or why the common frameworks are not sufficient in themselves to prevent that, or why the Bill cannot be amended in such a way as to ensure a tight fit between the common frameworks and the common purposes of the Bill. These inappropriate powers are seen as necessary to expedite what might happen in the future, notwithstanding the impact on the devolved nations or the devolved settlements, the role of Parliament, the balance of powers expressed in appropriate legislation or the integrity of the process itself.
There is a great deal at stake in this Bill, as has been said many times already in the process of the Bill. They are grave matters, and they have been drawn to the attention of this House by the two most senior scrutiny committees. I hope the Minister will find he can agree with me that these powers are offensive as well as unnecessary, and that they will be removed.
My Lords, it is a pleasure to follow the noble Baroness, Lady Andrews. I am not a member of the Delegated Powers Committee and never have been, so I think I can, without any embarrassment, praise the work which that committee does so often on behalf of the House and, in particular, the reports it has made in respect of the Bill we are considering today. The issue which it raises, of course, is a very serious one, and it has been very well explained in its own report and spoken to by both the noble Lord, Lord Fox, and the noble Baroness, Lady Andrews. I do not want to say very much more about it. The important point is revealed when you look at the subsection which introduces the power to make regulations in the case we are looking at, first of all in Clause 3(8). There is absolutely no qualification whatever to indicate the purpose for which that power may be exercised. It is a totally unqualified power, which may be used without any control from anybody as to the way in which the power is being exercised.
Twenty years ago, this House was looking at, among other things, the Scotland Bill. It is very interesting for the historian to compare the way in which delegated powers are conferred by that Bill with the way in which they are being conferred by this Bill. Both of them were major pieces of legislation, designed to lay the structure for the future governance of this country. On the part of the Scotland Bill, of course, it was very obvious because it was the first step toward devolution; it had to be carefully crafted, and yet it was moving into an uncertain world. The many powers to make legislation by delegated legislation are all carefully described, so that one knows exactly the purpose for which that power could be used. As the Bill went through both Houses, the reason for the power and the scope that was given to Ministers to use it was carefully scrutinised by both Houses.
We do not have that benefit in this case, in a Bill which is designed to settle the internal market—a Bill of equal importance and, perhaps I might say, equal difficulty. Nevertheless, they have in common that they are major pieces of legislation, and yet, in this case, the power we have to legislate and to scrutinise legislation is really being opened up to Ministers to deal with, without any control whatever. That is the basic flaw which runs through all of the clauses to which these amendments draw attention.
There is, of course, the point that the noble Baroness mentioned, that all that has been required with the devolved Administrations—or the Ministers in the devolved Administrations—is that they be consulted, not consent. That is not in keeping with the Sewel convention, although that is qualified by the word “normally”. I would have thought that in this case, because of the scope of the powers, consent would be appropriate here, because there is no other way of controlling what the power may be used for. That is the reason why the absence of a provision for consent is so important in these cases.
Without saying any more, I must say that I fully support the points that have already been made on these very important amendments.
The noble Baroness, Lady Noakes, has withdrawn, so I now call the noble Lord, Lord Thomas of Gresford.
My Lords, the House of Lords is coming to a watershed. When we threw out the statutory instrument in relation to tax credits in 2015, the reaction of the Government was to wheel in the noble Lord, Lord Strathclyde, to set up a review. His report advised that the House of Commons should be given the power to overrule this House should it ever have the temerity to do the same thing again. Since then, the Labour Party has followed an unwavering policy of abstaining on fatal amendments to statutory instruments.
The premise of the review of the noble Lord, Lord Strathclyde, was that the issue lay in conflict between this House and the other place. But, as the Constitution Committee pointed out at the time, he had addressed the wrong question—the conflict was really between Parliament as a whole and the Government. Our unwritten constitution is praised for being flexible. If we had rules which were inscribed in a formal written constitution, they would need to be interpreted and given effect to by the Supreme Court. Then, as in the United States of America, all eyes would turn to the backgrounds and values of the judges of that court, and the appointment of Supreme Court justices would become very much under the spotlight, as we have seen in Washington this week.
The Government have taken advantage of the timidity of this House in exercising its undoubted power to strike down statutory instruments. We have now reached the situation where the Government have the gall to seek powers to act unlawfully and contrary to the rule of law, confident that we will grumble mightily but not interfere. In addition to that, the Executive seek power to bypass Parliament in this Bill with a whole series of Henry VIII clauses.
As I sought to explain in a debate on the Agriculture Bill, it was the idea of Thomas Cromwell that that unruly monarch should ignore Parliament and rule by proclamations, as though they were actually Acts of Parliament. But, importantly, even Henry’s proclamations could not interfere with existing rights; it did not give power, as the provisions subject to these amendments to the Bill do, to repeal or modify existing legislation. Henry’s Act lasted only 12 years before it was swept away.
The Delegated Powers and Regulatory Reform Committee has consistently fought against the tendency of this and the previous Government to introduce Henry VIII clauses. This Bill is an egregious example. In the provisions which these amendments seek to strike out, powers are given to Ministers not just to rectify mistakes or trivialities but to introduce policy by ministerial decree and to design policy—as the noble Baroness, Lady Andrews, said a moment ago—most significantly in the sensitive area of the Northern Ireland protocol.
The DPRRC, in its guidance to departments in drafting legislation, in July 2014 laid down expressly that a compelling reason must be given for introducing Henry VIII clauses. The Delegated Powers Memorandum provided by the department for this Bill gives the general reasons for these clauses on this occasion in these terms:
“There will … need to be powers in the Bill to enable the Secretary of State to ensure that the internal market framework can adapt in line with future developments.”
There follows some utter gobbledegook:
“This future proofing will necessitate the ability to make technical and likely unforeseen issues and therefore best suited in secondary legislation.”
That is a meaningless sentence—lazy and threadbare, as the noble Baroness, Lady Andrews, called this sort of language. What does “future proofing” mean? The memorandum goes on:
“There will also need to be powers to enable HM Government to adapt towards the specificities of the Northern Ireland Protocol.”
It concludes by praying in aid the need for speed.
The memorandum sets out its justification for each of the clauses the amendment seeks to strike out in very similar terms. As an illustration, I shall refer simply to the justification given in paragraph 21 of the memorandum for the powers taken in Clause 3(7). It is said that the power taken is necessary to enable the Secretary of State, first, to act swiftly and, secondly, to change the list of statutory requirements that are in scope of the mutual recognition principle if it becomes apparent that the existing list does not effectively deliver the objectives for the UK internal market for goods, including “unfettered access” for goods moving from Northern Ireland to the rest of the UK. That final phrase “unfettered access”, used by the noble Lord, Lord Callanan, with relish in the first debate this afternoon, gives you the clue to the real reason behind these clauses: to break the terms of the Northern Ireland protocol in a manner such that Parliament cannot interfere.
What none of these clauses, made by Westminster ministerial decree, ensure is that there should be any form of agreement by the devolved Administrations to any changes to primary legislation which significantly affect their devolved competences—a point made already by the noble Baroness, Lady Andrews, and the noble and learned Lord, Lord Hope. Noble Lords waiting patiently to get their teeth into the illegalities of Part 5 must not think that that is the only objectionable part of the Bill. If this and subsections with similar terminology are passed, the Secretary of State will have the power by statutory instrument to twiddle about with the existing law of this country and with the provisions of the protocol, as agreed by international treaty, as he thinks fit.
Of course, if Parliament had a robust way of dealing with statutory instruments—if we could amend or throw them out as a check on executive power—it might not be so crucial. But that is not the case. Cowed by the Strathclyde threat, the power we have to say no is never exercised by Her Majesty’s Loyal Opposition—or perhaps they hope that some day, over the rainbow, they may have the opportunity to exercise similar powers themselves. The DPRRC has concluded that the justification of the necessity for speed has not been made out. As a second and most important point, the committee points out that the powers taken are much wider than the justification claimed. The noble and learned Lord, Lord Hope of Craighead, also rightly argued that no purpose, no scope, is defined. I urge—including on Her Majesty’s Opposition—that the time to say no to this proliferation of Henry VIII clauses has now arrived.
I leave the House with the thoughts of Sir Edward Leigh, once a Brexit rebel but now a Tory loyalist, speaking on the other place on Mrs May’s EU withdrawal Bill. He said:
“We have heard a lot about Henry VIII. When I was a rebel, I used to care about these things. Now I am a loyalist, I let the Government get away with it … Henry VIII is a bastard, but he is my kind of bastard”.—[Official Report, Commons, 11/9/17; col.466.]
Does the noble Lord, Lord Callanan, agree with his colleague in that terminology?
My Lords, I welcome this opportunity to agree with what has been said by previous speakers, and particularly thank those who have contributed to this debate through the 24th report of the Delegated Powers and Regulatory Reform Committee, and the noble Lord, Lord Fox, and the noble Baroness, Lady Andrews, for putting into effect the conclusions of that report. The report is indeed striking in its conclusions, and in particular in the power of the language used. I think students of constitutional law will be watching these deliberations very closely to see whether this is a new trend on the part of the Government or a one-off.
My understanding is that the Bill is in large measure to deal with the political fallout of the Government agreeing to the EU withdrawal agreement and the Northern Ireland protocol. Perhaps I am wrong, but that is my understanding. My further understanding is that, when Parliament agrees to delegate powers to the Executive, it does so on the strict understanding that the Government will act on behalf of Parliament with respect for the rule of law and parliamentary democracy. Clearly, in all five parts of the Bill, this is stretched to breaking point. As has been said, the reliance in the Bill on the sweeping Henry VIII clauses is breath-taking. So I entirely echo what has been said by previous speakers and find that I have great sympathy with the amendments.
My Lords, it is always a pleasure to follow the noble Baroness, Lady McIntosh of Pickering, and to agree with the amendments in the names of my noble friend Lady Andrews and the noble Lord, Lord Fox. For me, the Delegated Powers and Regulatory Reform Committee is particularly instructive, because it has issued a very scathing report which states quite clearly that, in the absence of a convincing justification for the Henry VIII powers in those clauses, the power is inappropriate and should be removed from the Bill.
The noble Baroness, Lady McIntosh of Pickering, said that perhaps the Government wish to use these powers to get their way in terms of the withdrawal agreement—an international agreement which they signed only one year ago with the European Union—and to undermine the Northern Ireland protocol, which in turn could undermine another international agreement, the Good Friday agreement. I say to the noble Lord, Lord Callanan, that the people of Ireland, north and south, who voted for that agreement and who by and large support the principle behind the Northern Ireland protocol—to prevent a hard border on the island of Ireland and to prevent any further turmoil, trauma, distress or levels of terrorism—will not take kindly to any of that.
I was also very taken with the words—referred to by the noble Lord, Lord Fox—of the noble and learned Lord, Lord Judge, a few years ago about parliamentary sovereignty. Yes, parliamentary sovereignty is the antithesis of executive sovereignty, and I do recall, as a former Minister in the Northern Ireland Executive, that I was always told that the Executive are accountable to Parliament. Can the Minister advise the House whether there has been consultation of any kind with the devolved Administrations? I know that Scotland and Wales have so far refused to give legislative consent to the Bill, because they clearly see the powers within it as totally egregious in terms of what they can do, and in terms of no consent being required from them and no real consultation. I also know that in the Northern Ireland Assembly there was a majority vote against the UK Internal Market Bill.
I believe that there are three different issues with these powers. Giving too much power to Ministers to change the rules of the UK internal market via regulations without proper parliamentary scrutiny is wrong. It is interesting to note that the regulations in these clauses require first a consultation with the devolved counterparts, so there is a need to obtain their consent to such regulations, but that consent is clearly absent. That is what Amendments 13 and 28 are all about.
The Bill also has an extremely narrow understanding of exceptions to these principles. If we compare it with the EU internal market where other objectives such as environmental improvement can be used, at least in certain cases, to restrict mutual recognition and keep more ambitious domestic rules, we see that the Secretary of State also has the power to add, vary or remove exceptions, as set out later in Clause 8 for non-discrimination and in Clause 10 for all the principles to which Amendment 47 refers.
There is no doubt that the UK Internal Market Bill will become a protected environment that the devolved Administrations will be unable to repeal or modify. That is why these amendments tabled by the noble Baroness, Lady Andrews, and the noble Lord, Lord Fox, are apt and timely. They should be supported because both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee believe that the use of these powers is wrong.
My Lords, we have heard many excellent speeches in this short debate, and I agree in particular with what my noble friend Lady Andrews has said.
I am a member of the Secondary Legislation Scrutiny Committee. The committee shares many of the concerns expressed by the Delegated Powers Committee in its report. However, I would somewhat disagree with the strictures of the noble Lord, Lord Thomas of Gresford, on the behaviour of Her Majesty’s loyal Opposition. We have to be considered and careful about using fatal Motions, but to my knowledge it is certainly not Labour’s position that those fatal powers should never be used.
On the substance of the Trade Bill, the Agriculture Bill and the immigration Bill, I had assumed that the Government are putting extensive delegated powers into the legislation basically because they do not know what their post-Brexit policy is going to be—they do not really have a clue. For instance, they do not have a clue about what national strategy we are going to pursue on trade. Will it be one that maintains our high standards, or will it be one that tries desperately to get trade agreements with the rest of the world that lower standards in order to open markets in the hope that that will compensate for the loss of market access in Europe? I think that the Government do not know. There are deep divisions inside the Conservative Party on where the Government should go on these questions, so the simple thing to do is to put a lot of these policy decisions into delegated powers which Ministers will have to decide on at some future point.
However, in this Bill, I am concerned for a quite different reason: in this case the Government know only too well, in particular on the clauses on the Northern Ireland protocol, what they want to do with the powers that they would have. If we cannot remove those offending Northern Ireland clauses from this Bill, then if delegated legislation comes to this House based on them, we should vote against it every single time, because that is clearly unconstitutional and it would be perfectly within the powers of this House so to do.
My Lords, there is little to add to what my noble friend Lady Andrews and other members of the hard-working, thorough and thoughtful DPRRC have said, along with the noble Lord, Lord Fox, and others who have spoken in the debate. However, I would remind the noble Lord, Lord Thomas, whose party has been in government more recently than we have, that I do not recall any reluctance on the part of the coalition Government to reach for secondary powers when it suited them—but perhaps his memory is rather shorter than mine.
I should say to the Minister that these amendments are pretty much bound to be accepted by the House on Report. That, of course, will leave the Government having to try to defend in the House of Commons in more detail than they have had to thus far why they should gift themselves the most remarkable and far-reaching powers, none of which, as has been said, have they sought to justify by purpose, urgency or anything else. Rather than repeat what the 24th report sets out and what has just been set out so eloquently, I urge the Minister to listen to the wise words and, either after discussion or of his own accord, take these unnecessary and worrying powers out of the Bill.
My noble friend Lord Liddle touched on the powers in Part 5. Obviously we will take those out, but of course the Government might try to put them back in again. We should remember that this group of amendments covers regulations that would, if they manage to keep Part 5 in or return it, be made in some areas of Part 5. These regulations are really serious, due to the current Clause 47(2)(a), which, as everyone will know, gives the status of primary legislation for the purposes of the Human Rights Act to secondary legislation. Inexplicably and extraordinarily, those pieces of secondary legislation would therefore not be able to be struck down if they breached convention rights, rather they would have thrown around them the protective ring that is normally used only for primary legislation. But those measures are regulations that will not have been through the legislative process. They would be introduced as secondary legislation by regulation, but would suddenly be preserved as if having been given the status of primary legislation. That is set out in Clause 47(2)(a)—I hope I have got that right; I have my learned friend next to me, in case I have got it wrong.
Needless to say, the Joint Committee on Human Rights had rather a lot to say about this constitutionally unacceptable ruse. Its members have tabled an appropriate amendment to remove it when we get to Part 5, and quite right too. The Government seem to want to legislate by regulation—unchallengeable in court, therefore —giving it primary status that goes even further than the other Henry VIII powers which were considered by the DPRRC. I have a feeling that the committee met before the insertion of this clause in the Commons—I think I am getting a nod from behind me—which is presumably why the Delegated Powers Committee did not discuss it.
I add a further comment that goes beyond the Bill but is a reflection of what has already been mentioned. I have spoken in the House previously about the book, How Democracies Die, which lists institutional forbearance —along with the rule of law, respect for the opposition and a free press—as a fourth vital element of what the authors call quadrilles, which go beyond democratic elections, on how to have a robust and fully functioning democracy. Institutional forbearance is an interesting term and is defined in the book as,
“the action of restraining from exercising a legal right”,
thereby perhaps avoiding actions which, while within the law, violate its spirit. It is what my former supervisor, the noble Lord, Lord Hennessy, would call the “good chaps” theory of government. I agree that regulation-making powers can be donated to Ministers but the purpose of that was to enable small adjustments to the policy of an Act to be finalised or tweaked without primary legislation. It was not meant to gift big policy decisions—especially not of the sort included in the Bill, which I heard today was hurriedly written over the summer—to the Government with effectively no parliamentary scrutiny or agreement.
Therefore, like my noble friend Lady Andrews, and the noble Lord, Lord Fox—whose extremely useful quote from the noble and learned Lord, Lord Judge, I have not heard before—I am concerned about the extensive, unnecessary and quite unjustified use of Henry VIII powers, not simply in this Bill but in others. It is a worrying pattern that this House has a duty to curtail. I hope that this is the last occasion on which we have to remind Ministers that they should carry out the primary laws as passed by Parliament, not take to themselves powers to make their own laws.
My Lords, I have a sense of déjà vu about this debate. The noble Lord, Lord Liddle, will well remember our debates on the EU (Withdrawal) Bill. These amendments relate to delegated powers included in Parts 1, 2 and 5 of this Bill. I should probably decline the kind opportunity afforded to me by the noble Lord, Lord Thomas, to comment on the parentage of Henry VIII, apart from saying that the noble Baroness, Lady Bloomfield, who is an expert on all these matters, tells me that his parents were Henry VII and Elizabeth of York—officially, at least.
I should say in answer to the noble and learned Lord, Lord Hope of Craighead, and his comments on the Sewel convention that the Government are fully committed to that convention and its associated practices for seeking consent. These powers are purely there to ensure that the legislation works properly and is future proof. There is no intention whatever to use the powers to avoid Sewel processes.
I should like to take this chance to emphasise the importance of these powers for the ongoing dynamism of our internal market, and to emphasise that the Government will not take lightly their responsibility in administering these powers. I am of course listening carefully to what your Lordships say but it is important for me to explain how we intend to use these powers.
The Bill aims to ensure a smooth transition for businesses as they are no longer subject to EU constraints. However, we recognise that this is an ambitious new system and the Government want to make sure that it works as well as possible for businesses and for devolved Administrations. As the system embeds in the functioning of law and trade, we will of course be monitoring this. We will speak to stakeholders and devolved Administrations to ensure that it works as well as possible within our constitutional framework. Where it does not, the Government need to be able to make necessary amendments to the system for the benefit of all parts of the UK. In line with normal arrangements for secondary legislation covering devolved matters, we will of course engage with the devolved Administrations in the spirit of the devolution memorandum of understanding. This system has worked well for 20 years and continues to do so.
I turn to the specifics of the amendments in the group, beginning with Amendments 12, 13, 27 and 28. These amendments seek to remove the ability of the Secretary of State, in consultation with the devolved Administrations, to amend the list of statutory requirements that are in scope of the mutual recognition and non-discrimination principles for goods. I remind noble Lords that with regard to these clauses the power to amend will enable us to carry out practical and useful amendments that might be needed early in the operation of the regime. They will also enable us to respond to business and consumer experience of the principles. For example, there are several types of regulatory requirements currently not covered by the market access principles, such as those on the recycling of goods. If it becomes clear that the exclusion of these categories is creating significant barriers to trade, say by allowing specific, discriminatory and unwarranted restrictions to be enforced that could add to business costs, the power in Clause 6 would provide a means of resolving this by adapting the scope of the non-discrimination principle. To reiterate: these powers are not intended for casual redrafting but simply to enable the provisions to work properly.
We are also fully committed to ensuring that the use of this power is subject to effective oversight and consultation. First, any use of the power would require an affirmative regulation to be made in Parliament. This will ensure that Parliament will be able to scrutinise and vote on any changes. Secondly, consultation with colleagues in the devolved Administrations is required for any change to the relevant requirements. I hope that I have addressed noble Lords’ concerns on those amendments.
Amendments 38 and 39 remove the power to adapt the list of legitimate aims. Again, I must emphasise the importance of ensuring that the Government have the flexibility to adapt and improve the Bill to address any challenges or inconsistencies that arise during the implementation phase. We will, as always, be listening carefully and attentively to business and consumer stakeholders to ensure the UK internal market’s continued smooth functioning and to maximise certainty as we leave the transition period. The current legitimate aims list ensures that Ministers of the UK and the devolved Administrations are not constrained by the rules against indirect discrimination when rapid action is needed—for example, to address a food or feed safety emergency or a public health emergency. The list is narrowly drawn to ensure that limited barriers to free trade can be created and, therefore, Ministers will need the flexibility provided through Clause 8(7) and (8) to respond swiftly to the feedback we get from business and consumer stakeholders.
I am aware that comparisons have been drawn with the EU system, in which there are similar lists, as part of the EU rules. However, we are not in the business of doing a copy and paste of EU rules but designing measures that will work for the United Kingdom. Our view is that it is important to have a limited list and a power to amend, based on feedback from stakeholders. For the reasons that I have set out I am unable to support the amendments and hope that the noble Lord, Lord Fox, and the noble Baroness, Lady Andrews, will withdraw or not move them.
Amendments 46 and 47 remove the Secretary of State’s ability to make regulations to amend Schedule 1, which contains provisions excluded from the application of the market access principle. This may make it impossible for the Government to respond to business and wider stakeholder feedback and act rapidly to adjust the list of exclusions. This would be needed if implementation shows the need for a review, or if further areas are identified that need exclusion due to a shifting economic landscape. This would be the case, for example, if the application of the market access principles to a new technology would pose a threat to public security or the environment. Much like the other powers in the Bill, we are fully committed to ensuring that the use of this power is subject to effective oversight and scrutiny. Again, any use of the power would require an affirmative regulation to be made in Parliament, ensuring that all MPs, from all parts of the UK, can scrutinise and vote on any changes. I therefore hope that noble Lords will understand that for that reason I am unable to accept these amendments.
Amendments 72 and 73 seek to remove the Secretary of State’s regulation-making power in Clause 17, which contains a power to amend Schedule 2 by the affirmative resolution procedure, to add, amend or remove services or requirements to those currently excluded from the principles of mutual recognition and non-discrimination. This is necessary to ensure that the list of exclusions is appropriate and to provide the flexibility to respond to future developments in services regulation. There is also a strictly time-limited power to introduce amendments to Schedule 2 via the “made affirmative” procedure. There is a risk that a situation may arise whereby it appears necessary for a particular service sector to be added urgently to the schedule to prevent that sector being unwittingly brought within scope of the market access principles in a way that could cause undesirable outcomes.
This is, of course, particularly relevant to sectors that are currently not applying the principle of mutual recognition as a result of retained EU law, and therefore such a sudden change could be problematic. This “made affirmative” power is necessary to ensure that the Government are able to maintain the status quo at the end of the transition period where this would be appropriate. These amendments would also mean that the Secretary of State could no longer amend the list of exclusions in Schedule 2 by the normal affirmative resolution procedure. This power is necessary to make any future changes to the schedule, as there may also be some services or requirements which may no longer need to be excluded from the provisions of the Bill. It is important that the services in Schedule 2 be regularly reviewed and altered to reflect changing circumstances, which is what the power in this clause stipulates. For these reasons, therefore, I am unable to accept the amendments from the noble Lord, Lord Fox, and the noble Baroness, Lady Andrews, as they would make it impossible to fulfil the objectives set out above.
Amendments 97 and 98 seek to remove the power in Clause 20 on indirect discrimination in the regulation of services for the Secretary of State to add, vary or remove the legitimate aims. The list of legitimate aims covers a limited range of necessary objectives for regulators, which would justify a requirement that may have an indirectly discriminatory effect. The legitimate aims are the protection of the life or health of humans, animals or plants, the protection of public safety or security, and the efficient administration of justice. The list of legitimate aims is vital, as it clarifies whether a requirement should be considered indirectly discriminatory and, as a result, whether it is justifiable for a requirement to result in a service provider being put at a disadvantage compared to a similar provider from another part of the United Kingdom.
The list, as drafted, is a closed and exhaustive list. However, there is a possibility that the need to add to, remove from, or vary this list might arise in the future: for example, in relation to future types of services regulation that could not have been foreseen at the present time. To allow flexibility to adapt to potential changes in circumstances, a power for the Secretary of State to add, vary or remove additional legitimate aims is crucial. Therefore, I cannot accept these amendments and I hope that noble Lords will not press them.
I turn now to Amendment 160, which seeks to remove the power for Ministers to amend the type of movement to which Clause 43 applies by regulation. The UK Government have been unequivocal in their commitment to unfettered access for qualifying Northern Ireland goods moving to the rest of the UK market, and to guaranteeing this in legislation before the end of the year. The definition of a qualifying Northern Ireland good has been set out in draft secondary legislation, and will maximise certainty and avoid disruption for Northern Ireland businesses moving goods to the rest of the UK at the end of the transition period. This first-phase approach is intended to be a bridge to a longer-lasting regime that will focus its benefits on Northern Ireland businesses. We are working with the Northern Ireland Executive and businesses to ensure that the next phase of the regime, which will come into force during the course of 2021, focuses its benefits specifically on Northern Ireland’s businesses. As part of that, in line with representations made to us by business, we would want to be able to seek to provide the benefits of unfettered access to goods moving from Northern Ireland to Great Britain, however they make that journey. That is the flexibility that the power provides, and it would seem to be against the interest of traders in Northern Ireland to unduly limit that possibility at this time.
I can reassure the noble Lord, Lord Fox, that the power in Clause 43(8) is only intended to be used as part of our phased approach to delivering qualifying status for unfettered access. As such, it would be expected to be exercised alongside any change to the definition of qualifying Northern Ireland goods. However, in order to ensure that there is appropriate flexibility as regards the sequencing and approach to further legislation, the powers are not formally linked in the Bill. Therefore, I am sure that the noble Lord will feel able to withdraw his amendment.
My Lords, as I suspected, the speakers who came after me made a far more powerful case for these amendments than I could have managed. The noble Baroness, Lady Andrews, expressed the exasperation of her committee, and I think we could all feel that exasperation coming through in her speech. In reiterating the report of the Delegated Powers Committee, she gave a powerful and devasting critique of the measures that are sought here.
Similarly, the noble and learned Lord, Lord Hope, highlighted the absence of a purpose for these powers—and I will return to the Minister’s response in a minute. My noble friend Lord Thomas was right to characterise this as an issue between Parliament and the Executive, not between the Lords and the Commons. I am also grateful to the noble Baroness, Lady Hayter, who very clearly made the point that there is seriously bad stuff in this Bill beyond Part 5—if I may paraphrase her thus.
The noble Baronesses, Lady Ritchie and Lady McIntosh, and others shared my position on why the Government might be taking on these powers. I was worried that perhaps the noble Lord, Lord Liddle, was going to be kind to the Government for a moment, but I am happy to say that he, too, shares our view that these powers are being accrued in order to do things, not least to the Northern Ireland situation, that should not be done.
In defending the Bill, the Minister not only sorted out the Tudor family tree but put forward a very detailed response, and he and his team should be thanked for the comprehensive nature of that. If noble Lords will excuse me, I will boil most of his reply down to saying, “We might need to change stuff but we’re not sure why”. That is true for every piece of legislation that ever came before your Lordships’ House, so it is not, in itself, a justification. Further, if the Government need to change the number of things that are on the list, they do not need these levels of powers in order to do that kind of amendment.
Furthermore, your Lordships have talked at length about the value of common frameworks. The noble and learned Lord, Lord Hope, talked about these frameworks being a living process which embraces change—the very sort of change that the Minister is seeking to gain through these draconian powers. So, if the noble Lord is worried about future unknown unknowns, I commend to him and his Government the common framework process. That is what it is there for.
So we have had a preliminary debate, and I sense a lot of unity across the Floor. In a vague moment of upset, I am grateful to the noble Baroness, Lady Hayter, for raising the coalition Government’s bringing forward of secondary legislation of this nature. It came in the Public Bodies Bill. On listening to the response, the coalition Government withdrew that measure and it did not go forward in the legislation. That is precisely what we are asking Her Majesty’s Government to do here. I cannot help thinking that there is sufficient consensus to take this forward to Report, and we will be talking with fellow speakers. In the meantime, I beg leave to withdraw the amendment.
Amendment 12 withdrawn.
Amendment 13 not moved.
We now come to the group beginning with Amendment 14. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate.
14: Clause 3, page 3, line 27, leave out subsection (9) and insert—
“(9) Regulations under subsection (8) are subject to super-affirmative resolution procedure (see Schedule (Super-affirmative resolution procedure)).”Member’s explanatory statement
This amendment ensures that regulations under subsection (8) are subject to super- affirmative resolution procedure and introduces the supportive Schedule in respect of super-affirmative resolution procedure.
My Lords, I am grateful to have this opportunity to speak to these amendments, which in large measure refer to the possibility of introducing the super-affirmative resolution procedure in the parts of the Bill where it is deemed most necessary. Again, I thank the Law Society of Scotland for briefing me so well and for assisting me in drafting these amendments for our consideration.
Paragraph 31.14 of Erskine May states:
“The super-affirmative procedure has been implemented in enactments where an exceptionally high degree of scrutiny is thought appropriate, for instance, for the scrutiny of certain items of delegated legislation made, or proposed to be made, under ‘Henry VIII’ powers. Sometimes it is the only procedure available and sometimes the responsible Minister is given a choice of order-making powers that includes the procedure, a choice that can be constrained at a preliminary stage by either House.”
I remind noble Lords that the super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. It is important to note that the power to amend the proposed instrument remains with the Minister.
In view of the discussion that we have just had, I believe that we have identified a number of areas that would benefit from the super-affirmative procedure. In Amendment 14, I have identified where regulations under Clause 3(8) would be subject to the super-affirmative procedure, and Amendment 133 introduces the supportive schedule in respect of that procedure.
My concern is about the level of parliamentary scrutiny—currently the affirmative resolution procedure —applicable to regulations under Clause 3. Changing the scope of the mutual recognition principle might have significant consequences, and I believe that the super-affirmative resolution procedure is appropriate here. It enables longer consultation and the views of stakeholders to be taken into account, as I quoted from Erskine May. The Bill before us is of such profound constitutional significance that the Constitution Committee report states, at paragraph 4, that we need as much scrutiny of the Executive as possible. Deploying this procedure will achieve a better outcome than simply—in keeping with the Bill—the usual affirmative procedure. Therefore, I submit that Amendment 14 is necessary in this regard.
Amendment 24 is consequential, following on from the drafting of Amendment 14.
Amendment 25 is reminiscent of the discussion that we had on Amendment 45 in an earlier grouping. It is important to note that Amendment 25 goes on to discuss a different formulation, such as the substance of a change. It is curious that in the clause that the amendment seeks to change, once again “substantive change” is not defined. Therefore, we seek greater clarity on the “substance of a change” or a “substantive change”.
Amendment 29 seeks to ensure that regulations under Clause 6, which relates to relevant requirements for the purposes of the non-discrimination principle, should, again, be subject to the super-affirmative procedure. The amendment introduces the supportive schedule in respect of that procedure—again, as set out in Erskine May.
Amendment 40 looks at ensuring that regulations under Clause 8, which relates to the non-discrimination principle, or indirect discrimination, are, again, subject to the super-affirmative resolution procedure, and again it introduces the supportive schedule in respect of that procedure.
Amendment 76 seeks to do the same in respect of regulations under Clause 17, and Amendment 77 seeks to delete Clause 17(4) as a result of Amendment 76.
Amendment 101 seeks to bring the super-affirmative procedure into play in Clause 20. Amendment 133, which inserts the new schedule for the super-affirmative resolution procedure, is consequential to Amendment 101. Amendment 176 sets out that regulations under the Bill will be subject to the super-affirmative resolution procedure, as set out in the schedule relating to that procedure.
We have an opportunity here to introduce this procedure, and I make a plea that we do so. If the amendments in the previous group are not adopted, or even if they are, I put it to your Lordships that the super-affirmative procedure, in terms of the resolution under Erskine May and indeed the schedule, is best placed to allow both Houses to have greater scrutiny than is currently permitted under the Bill. I beg to move.
My Lords, the noble Baroness, Lady Noakes, and the noble Lord, Lord Carlile of Berriew, have both withdrawn, so I now call the noble Lord, Lord Naseby.
My Lords, as colleagues know, I had the privilege of being Deputy Speaker in the House of Commons for five years, and of course Erskine May was my bible. Indeed, one had to refer to it pretty regularly during the Maastricht Bill procedures. Just as an aside, Erskine May went to Bedford School, as I did, and history has it that he was the only Clerk of the House of Commons who managed to get Big Ben silenced in the middle of the night. However, that is by the by.
We are dealing with trade, industry and markets here; we are not dealing with life-threatening situations that obviously require anything that comes forward to be looked at in a practical manner. Only in the last few days, we have had news of the future trade agreement with Japan, which has just been signed. The agreement makes it clear that the deal that has been settled between the UK and Japan goes far beyond our existing agreement with the EU.
However, of relevance to this amendment is a letter which I have received and which went to all Peers. On the second page, under the heading “Parliamentary transparency and scrutiny, next steps”, the letter says,
“we have shared the full UK-Japan Partnership Agreement treaty text with both the International Agreements Sub-Committee in the House of Lords and the International Trade Committee in the House of Commons. This is to aid the committees’ important scrutiny work and the production of reports by them on the agreement.”
That is a practical example, in the last few days, of the way in which the Government are proceeding. I have to say to the noble Lord, Lord Liddle, that that rather shoots the fox that he produced earlier—that nobody knew what they were doing and that they did not have a strategy, et cetera. That is a practical example.
Like my noble friend Lady McIntosh, I looked again this morning at what Erskine May says about the affirmative procedures. They are pretty straightforward. Traditionally, there were three variations. The first is used where something has to take place on an SI immediately—we have seen the need for that in relation to Covid—and there is usually a specified period by which it should not continue. It has obviously expanded since the days when I was in the Chair: then, it was about 40 days, and now, it appears to be almost six months, but that is by the by.
Then there is the more normal procedure in which a draft is laid before both Houses, not to be made and have effect unless one or both Houses present an Address to the Crown praying for the order to be made or for agreement to resolutions approving the draft instrument. Therefore, there is already a whole host of procedures whereby anything that comes forward can be debated before it is voted on. The key thing is that it is voted on.
As I have said in our earlier sessions, I have been a marketing man and a trading man. We really do not want yet another hurdle—in this case, the super-affirmative procedure—that just creates more delay, and to my mind this degree of consultation on an issue that was causing a problem to one of the devolved Assemblies, a particular industry or a particular trade would do that. Any of us in trade or business knows that if you have a problem, you put it to the Government of the day and you say that the present procedures are not working. There are already safeguards, as I have indicated; in my judgment, you certainly do not need yet another layer of safeguard unless it is a matter of life and death.
I am sorry. I have to say to my noble friend that I cannot possibly agree with this; I think that it is way over the top. If it is taken to a vote, I will certainly vote against it.
The noble Lord, Lord Liddle, has withdrawn so I call the noble Lord, Lord Judd.
My Lords, I want to put on record my admiration for the consistent, valiant work done by the noble Baroness, Lady McIntosh of Pickering. She has proved herself over recent weeks as a champion, almost second to none, of the principle of accountability to Parliament, the importance of Parliament and the importance of always being cautious lest power drifts back to the Executive. If we are to have these new arrangements for regulation and supervision, what she has talked about is a prime candidate for this. I believe it is a test of whether the Government really do believe in parliamentary authority and the accountability and supremacy of Parliament, and whether they really believe that there is no attempt by the Executive to take back power. I thank the noble Baroness for having given us another opportunity to raise this, which I hope the Government will take seriously.
I have immense respect for my noble friends who are working so hard and consistently on our behalf on the Bill. The rest of us who have strong feelings therefore have to be very cautious about getting in their way and making generalised statements that hold up proceedings and in the end undermine the effectiveness of what they are trying to do.
I want to make this point: anyone who believes that the Bill is simply about an internal market must face the reality, given that history will judge the effectiveness of this Chamber as a scrutinising Chamber, that it is about more than that. It is about a determined drive, as I see it, by the present Government all the time to increase the powers of the Executive. We must therefore be on our toes strategically if we are not, in our preoccupation with the detail of the Bill, to lose sight of this major challenge that we constantly have to face. I thank the noble Baroness once again.
My Lords, it is always a delight to follow the noble Lord, Lord Judd, who always helps us with his wisdom and experience. I join him in commending this understandable attempt by the noble Baroness, Lady McIntosh of Pickering, to strengthen the scrutiny of any regulations made by the Minister under the proposed Bill, whether in the exercise of Henry VIII powers or otherwise. While I entirely support their purpose, I cannot support the precise method that the noble Baroness puts forward. The trouble is that there is no single super-affirmative procedure; there are, as the noble Lord, Lord Naseby, pointed out, a whole host of procedures.
In paragraph 88 of its report, dated 20 November 2018 and entitled The Legislative Process: The Delegation of Powers, the Constitution Committee pointed out that, over the years, there have been:
“A variety of strengthened scrutiny procedures … specified in individual Acts.”
The Hansard Society’s report, The Devil is in the Detail: Parliament and Delegated Legislation, identified 16 variations of enhanced scrutiny procedures, while the DPRRC said in paragraph 13 of its third report of 2017-19:
“Although these strengthened scrutiny procedures share a number of common features, there are marked differences between the Parliamentary procedures applicable to different powers or categories of powers.”
The Constitution Committee pointed to the view of the Law Society of Scotland, which has already got a mention, that instruments subject to these enhanced procedures
“can attract significant scrutiny which undermines the concept of speed and flexibility which delegated legislation is supposed to represent.”
Indeed, the noble Baroness, Lady Fookes, who chaired the DPRRC when I was a member of it, suggested that Parliament should “standardise these enhanced procedures”.
However, there is a more fundamental problem. If a Minister wishes to exercise his powers under the Bill, there is no requirement under the noble Baroness’s proposed schedule that scrutiny of his proposed amendment to primary legislation should in any way involve the devolved Administrations; no mechanism is proposed. It is true that, in paragraph 5, the Secretary of State must have regard to “representations”, but there is no indication from whom the representations would or should come.
Since the Minister’s powers undoubtedly include the possibility that his proposals would at the very least impinge on the devolution settlement, I would be more supportive of this proposal if it required as part of the super-affirmative procedure that, in the periods of 30, 40 or 60 days during which the proposals would be looked at in Westminster, there were a requirement that the devolved Administrations should at the very least be consulted, preferably that their consent to the proposals should be a necessary prerequisite. It is not enough that the Minister should “have regard to representations”.
That is the problem with the Bill, and it has echoed through all the debates on Monday and today: instead of consultation and consent, we have diktat from the centre without any form of necessary consultation. It is not surprising that both Wales and Scotland have informed the Government that, without significant amendments, legislative consent to the Bill will be withheld. This is not a small point. Negotiations for common frameworks, which would include arrangements for the continuation of the existing internal market, have been proceeding with some success—and these have been negotiations that, hopefully, will result in an agreed solution. If that does not happen in this important area, the scene will be set for conflict that I suggest will rock the unity of the UK to its foundations.
My Lords, I join the noble Lord, Lord Thomas of Gresford, in thanking the Scottish Law Commission for its contribution to this debate; it keeps an eagle eye on issues in front of your Lordships’ House and from time to time delivers material that is very useful to us as we go through our duties.
As the noble Baroness, Lady McIntosh, said, these are probing amendments. They are about the possible uses of super-affirmative procedures and, as she says, relate to issues in the Bill that might well qualify under her heading for a higher degree of scrutiny.
The noble Lord, Lord Thomas, gave us a useful tour d’horizon of the available ways of doing super-affirmative. I agree with him that there is a case to be made here for looking at them in more detail to make sure that they are picked up and looked at regarding their best purpose, but that perhaps is not for today; there are bigger issues here and they should be looked at, but not in this Bill.
My noble friend Lord Judd asked whether the Government really welcome scrutiny or are simply pursuing their normal process—which seems almost inevitable for any Government—to try to obtain absolute control over the legislation they are bringing forward. I suspect the answer to that question is not to be found in providing for better scrutiny. This is a Bill with deeper problems. I do not think that these proposals, although they have their merits, are the right way forward in trying to unscramble those deeper difficulties. I look forward to hearing the Minister respond.
My Lords, I thank my noble friend for tabling her amendments, which relate, as she explained to the Committee, to the implementation of a super-affirmative resolution procedure. This debate is something of a coda to the previous group. It teases at the questions that many of your Lordships raised there and to which my noble friend Lord Callanan responded in some detail, so, if the House will forgive me, I will not repeat those general arguments in relation to these matters, although I repeat that the Government believe that these powers are important for our internal market. As my noble friend Lord Naseby said, we are dealing with trade matters. I repeat that the Government will not take lightly our responsibility in administering these powers.
I thank all those who took part in this debate for the interesting speeches we heard. On a personal note, I always welcome seeing the noble Lord, Lord Judd. I agree with his expression of admiration for noble Lords and Baronesses on the Front Benches opposite for their work on this Bill. Perhaps he will allow me to extend that sentiment to my noble friends Lord Callanan, Lady Scott and Lady Bloomfield and my colleagues.
Pleasantries apart, of course we acknowledge that the Bill gives the Secretary of State the ability to amend the list of legitimate aims, relevant requirements and schedule exclusions through a draft affirmative statutory instrument, with just one time-limited made-affirmative power, which relates to the services exclusions in Clause 17(4). We are fully committed to ensuring that the use of these powers is subject to effective oversight and consultation. That is why any use of the power would require an affirmative regulation to be passed in both Houses of Parliament. This will ensure that Parliament would be able to scrutinise and vote on any changes.
Turning to the substance of my noble friend’s amendments, if we were to accept Amendments 14, 29, 40, 76, 77, 101, 133 and 176, to which my noble friend spoke in this group and which call for the super-affirmative resolution procedure, it would cause unnecessary delay when a change was urgently needed. That point was very forcefully made by my noble friend Lord Naseby in a compelling speech made from the standpoint of his immense experience in chairing the proceedings of the other place.
Although your Lordships’ Delegated Powers Committee had many observations on this legislation, it did not propose the super-affirmative resolution procedure. I repeat: there is a risk of undue delay in a situation that may arise where it appears necessary to act swiftly to prevent undesirable outcomes. My noble friend Lord Callanan gave a number of examples on the previous group. The Government may need to respond quickly and effectively to maintain the status quo after the transition period has ended.
We believe that the draft affirmative resolution procedure—noting that the made-affirmative power is time-limited—offers sufficient parliamentary scrutiny while enabling the Government to act quickly. I therefore ask my noble friend to withdraw the amendment. While I think her amendments attracted the interest of the Committee, and I am grateful to her for bringing them forward, I think it would be fair to say they did not carry the support of the Committee.
As my noble friend has acknowledged, Amendment 24 is consequential so I will not address it in detail. Amendment 25 seeks to probe the Government’s understanding of what is meant by “substantive change” in Clause 4. I can tell my noble friend that it means that any changes that re-enact regulation in a way that changes its outcome count as substantive. Where existing legislation receives technical or minor amendments that do not alter its substance, that does not count as a substantive change.
I hope these responses address the concerns of my noble friend and therefore ask her to withdraw her amendment.
My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Purvis of Tweed.
My Lords, I am grateful for the Minister’s comments on Amendment 25. It was a question linked to the previous group that the noble Lord, Lord Callanan, did not respond to, so I am very grateful that he did.
The Minister talked about how “substantive change” is now defined. We are now in the realm of what the Minister said is a Pepper v Hart moment because what is said on the record at the Dispatch Box is very important, and these measures require a different outcome. The policy outcome intentions of many of these measures might remain the same, but some elements would be different. If the Minister is saying—on minimum unit pricing, for example, or on environmental or public health considerations—that if the intended outcome of the re-enacted or updated requirement remains the same, would that continue to be exempt? That is important because, in both the legislation and the Explanatory Memorandum, that is not so defined. If minimum unit pricing changes the level of the price, or if tuition fees continue but their level changes, if the policy intent is the same, the exemption will carry on—is that the correct understanding?
My Lords, I note and hear what the noble Lord has said, but I think he would allow me not to enter into speculative discussions. I have put to the Committee a response to a question—a response provided to me to advise the Committee. As for its application, that is a matter that would be speculative and could be considered further. I will stand by the words that I put before the Committee.
I thank all noble Lords who have spoken in this debate. I was grateful for the opportunity to probe the extent to which this procedure of super-affirmative resolution may be more appropriate.
My noble friend Lord Naseby might not think that this is a matter of life and death, but if you are dealing with perishable goods—particularly animals and their movement over what will be internal borders—that might be the case. I part company with my noble friend on the EU-Japan agreement; it actually does not go that far. My understanding is that what was heralded as a bigger market for cheese, which will be very welcome, relies on the EU allowing us to use what is left of its quota that it does not wish to use. It is the leftovers—the crumbs under the table. It could be very helpful to our cheese producers, but it is not quite as straightforward as one might first think.
I still persist in saying that there are advantages—I am sorry that I have not taken the Committee with me—to the super-affirmative resolution: namely, having two bites of the cherry and a chance to look at and amend regulations before they are introduced, which I think is deeply flawed in so many instances in this Bill. It would not necessarily lead to a further delay because, as the Delegated Powers and Regulatory Reform Committee has noted, both Houses of Parliament can act extremely quickly when we need to. We just need a reasonable timeline to allow dialogue between the Government and the devolved Administrations.
I thank the noble Lord, Lord Judd, for his kind comments. We are all agreed on accountability and the supremacy of Parliament in that regard. To the noble Lord, Lord Gresford, I say that, if I have not been successful here, I hope he will look favourably on my amendments that will come very shortly, seeking consent as well as consultation in various instances where I believe that is appropriate. I join the noble Lord, Lord Stevenson, in thanking the Law Society of Scotland for giving us this opportunity to look at this.
I also thank my noble friend Lord True for his remarks in summing up and stress, without labouring the point at any length, that the noble Lord, Lord Purvis, has a point, particularly in relation to Clause 8, where the definition of “legitimate aim” could be changed. This can have significant consequences, which I fear, in relation to delegated powers, may not be sufficiently explored by the Secretary of State, the Government and the devolved Administrations. However, I am grateful to have had the opportunity to debate this procedure, which I am sure we can look at on future occasions in future Bills. At this stage, I beg leave to withdraw Amendment 14.
Amendment 14 withdrawn.
We now come to the group beginning with Amendment 15. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment or anything else in this group to a Division should make that clear in the debate. The noble Baroness, Lady Finlay, is having difficulties connecting with us, so I call the noble Lord, Lord German.
15: Clause 3, page 3, line 30, leave out “consult” and insert “obtain the consent of”
Member’s explanatory statement
This amendment requires the Secretary of State to obtain the consent of the devolved administrations before making regulations amending Clause 3(3), which specifies the types of statutory requirement that are within the scope of the mutual recognition principle.
My Lords, the noble Baroness, Lady Finlay, is detained in another part of your Lordships’ House. I will move Amendment 15 and speak to Amendments 30 and 64 in this group, which attempt to place one limitation on the extraordinary and extensive Henry VIII powers that we were talking about in the last group: namely, they require the consent of the devolved Administrations to using those powers. Amendments 15 and 30 would impose this requirement in relation to Ministers’ power to remove or, more worryingly, add to the statutory requirements that are
“within the scope of the mutual recognition principle”
and “the non-discrimination principle”, respectively. Amendment 64 would require devolved consent for any guidance issued in respect of Part 1.
I must say that I am very attracted to the amendments tabled by my noble friend Lord Fox, which would simply strike out the Henry VIII powers in Clauses 3 and 6. As your Lordships will know, these have been strongly condemned by the Delegated Powers and Regulatory Reform Committee—a matter to which I will return later.
Without amendments such as these, it would be possible for the Government to strip back still further the very limited exemptions that these clauses provide for, which are far more limited than is currently the case with EU law, where the principles of subsidiarity and proportionality apply alongside far broader public policy exemptions. I remind your Lordships and the Government that they are working on the basis of principles that they repeated last month and established in October 2017—that they would move forward under
“established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent”.
Those words, “without their consent”, represent a principle to which the Government have signed up. That is why the amendments of the noble Baronesses, Lady Hayter and Lady McIntosh, seek to engage with the devolved Administrations but do not require the Government to achieve their consent.
Obviously, either amendment would be preferable to the current problem, but the issue is that it would be easy for the Government to demonstrate that they had sought the consent of the devolved Administrations on a wholly unreasonable proposal, and the fact that it had not been forthcoming would have no relevance at all. Therefore, the Government could report that they had consulted the devolved Administrations and tick the box required without even attempting to address their concerns.
I return to the issue of secondary legislation; that is the source of these amendments because the powers are so sweeping and there is no restriction on, or knowledge of, what they will deal with. As noble Lords may be aware, three committees of your Lordships’ House have expressed concern about these matters. The Delegated Powers and Regulatory Reform Committee, the Secondary Legislation Scrutiny Committee and the Constitution Committee all wrote to the Lord President of the Council, the Leader of the House of Commons, who has government responsibility for the way in which delegated powers are used.
In Jacob Rees-Mogg’s reply of 19 October, he said:
“I agree that Bills with substantial powers, though sometimes essential, should not be a tool to cover imperfect policy development. As a Government, we must have a clear direction and be able to explain to both Parliament and our constituents how we are fulfilling the promises of our manifesto. I can see that extensive use of delegated powers can hinder rather than help us in that. Therefore, I am happy to consider issuing communications to Secretaries of State on this matter, encouraging them to minimise the use of delegated powers where possible”.
I ask the Minister: has the Lord President of the Council, the Leader of the House of Commons, consulted him on the matters that he is putting before us today? If so, will he heed that warning from Jacob Rees-Mogg?
The other matter that concerns me, which my noble friend Lord Purvis talked about, is the extent to which the powers can be used in a variety of ways. I reflect on the environmental aspects, which the noble Lord, Lord Callanan, just talked about, in relation to the recycling of materials, which is one of the issues on which the Government may wish to introduce regulations. The reason for that might well be that they have a concern about the environment, such as the nature of plastic film or single-use plastics; they might want to introduce those requirements.
However, it could go the other way and make the problem worse. For example, you might stop a devolved authority banning the use of plastic spoons or using plastic film on fresh food. The Government have admitted that they want to carry through all those health and environmental considerations by saying that they are looking at the recycling of materials as something that it might touch in the future.
Therefore, it seems to me that we have grave concerns about the way changes in these areas will be implemented. If we follow the advice of Jacob Rees-Mogg, then, certainly, we would not seek these powers in this Bill at this time because they do not include the policy intent that is to be provided. In these amendments, we can ensure that the consent of the devolved Administrations is given and that we can address and seek their approval, but it would be far better if we did not have these delegated powers at all.
My Lords, as the noble Lord, Lord German, just said, it would be far better if we did not have these provisions in the Bill at all, but one must assume that they may remain. That is why these amendments, particularly Amendments 15 and 30, to which I have added my name, address the provision which talks about consultation but does not mention the word “consent”.
I have two requests for the Minister; I will not elaborate further on what the noble Lord, Lord German, said in his very helpful introduction to this group. First, would he be good enough to repeat, in the context to which these amendments refer, the assurance he has already given that the Sewel convention principles will be applied without any hesitation in regard to consultation?
Secondly, will the Minister consider whether it would not be wise, in view of the importance of the clauses in which these provisions appear, to adopt the system used, he will recall, in the European Union (Withdrawal) Act 2018 when considering the system of seeking the consent of the devolved Administrations—Assemblies, Senates and Parliaments—to the modification of EU law? He may recall that Ministers were given power to restrict the powers of the devolved Administrations to modify EU law in certain respects by delegated legislation. Provided for in Part 1 of Schedule 3 was a system whereby the Parliaments, Senate and Assembly were given an opportunity to provide consent. The wording in the Scotland provision was:
“A Minister of the Crown must not lay for approval before each House of the Parliament of the United Kingdom a draft of a statutory instrument containing”
“regulations … unless … the Scottish Parliament has made a consent decision in relation to the laying of the draft, or … the 40 day period has ended without the Parliament having made such a decision.”
If it came to the point of there being no consent, when the Minister of the Crown laid this draft, as mentioned, before either House, he would be required to explain his decision to lay it without the consent of the Parliament.
That system was arrived at after a great deal of discussion in the 2018 Act; it is quite a useful one that might well be thought appropriate in this case to reduce the element of dismay which the devolved Administrations are feeling about how they are being treated by these provisions—all that has been provided for is consultation. They would at least have an opportunity in their legislatures to consider whether consent should be given. Of course, if they fail to give it within 40 days, ultimately the Minister can go ahead, provided he explains why he is doing so. There is no amendment to this effect, but this is an opportunity for the noble Lord to consider whether it would not be wise to soften the blow that has been felt by the devolved Administrations by adopting that system, which was so carefully worked out and eventually accepted in the 2018 Act.
Beyond that, I support everything the noble Lord, Lord German, has said in support of the amendments to which he has spoken.
My Lords, it is a pleasure to follow the noble Lord, Lord German, and the noble and learned Lord, Lord Hope of Craighead. I thank them both for setting out detailed consideration of this rather long list of amendments, the length reflecting the levels of concern in the Committee about this area of the Bill.
I will speak to a series of amendments in this group to which I have attached my name, Amendments 15 and 64 in the name of the noble Baroness, Lady Finlay of Llandaff, and Amendments 16, 41, 48, 74 and 99 in the name of the noble Baroness, Lady Hayter of Kentish Town. I apologise to your Lordships for not taking part at Second Reading. My name was down to speak, but I was caught up in the collision with the Medicines and Medical Devices Bill, which also prevented me from taking part in earlier Committee sittings.
That is not the only crucial political collision we are encountering at the moment. As a former newspaper editor, I am well aware of the problem of the media being able to focus on only one issue at a time. I sought to place an article about the environmental issues in the medicines Bill with a major news outlet, and was told “No, we’ve already run too many articles on this Bill.” We are at risk of falling into the same problem with this Bill.
I can identify at least three major areas that could in normal circumstances expect attention from the serious media. Rightfully getting top billing are the Part 5 issues that we expect to get to on the final day of this Committee’s deliberations. The second area, which would normally get massive amounts of attention, is the clauses that provide powers even greater than those of Henry VIII, as the noble Baroness, Lady Andrews, the noble and learned Lord, Lord Hope of Craighead, and others spoke to so powerfully earlier today. As a former journalist, I have a shorthand for that—Henry VIII on steroids. I share the liking of the noble Lord, Lord German, for the amendments that wipe those out altogether.
The third serious issue, which has probably got the least attention but is not the least of them, being crucial to issues of democracy and the rule of law, is the riding roughshod over devolved powers—almost wiping out devolution altogether—which these amendments seek to address. Those in the name of the noble Baroness, Lady Finlay, refer to “obtaining consent” on several crucial matters in this Bill. Those in the name of the noble Baroness, Lady Hayter, refer to “seeking consent”. The former wording seems stronger, but the latter is at least a fallback, which is why I have attached my name to both.
Today’s debate has already ranged through real pig semen and metaphorical biscuits, but I will introduce another image—a bridge. Yes, this is a hypothetical bridge; unlike our Prime Minister, building bridges in unlikely and unwanted places is not a passion of mine. I draw here on the historian Joan Wallach Scott, who in her recent book On the Judgment of History reflected on those who assume that history is progressing forwards towards a future golden age and talk about building bridges to that new age, and found there is an assumption that the traffic is only one way.
That has certainly been the expectation and desire of the peoples of Scotland, Wales and Northern Ireland. They have been streaming across the bridge in the direction of control of their own communities and lives, through the mechanisms of democratic parliaments and assemblies which reflect reasonably accurately the views and wishes of the people, as well as being far closer to where those people live. Consequently, to an increasing degree they have taken different paths on social, environmental and many other issues. That, after all, was the point of devolution: to diverge. In an earlier debate, the question was put whether the Government acknowledge the benefits and advantages of divergence; I am not sure that that has been answered. Scotland in particular, which has a separate legal and educational system, has always retained a very distinct identity, something that my later Amendments 79 and 106 address.
I do not believe anyone has raised the point that devolution is not just an issue for three nations of the UK. It is also the hope of many parts of England, from Cornwall to Yorkshire, to head in the same direction, with assemblies or parliaments of their own to take back control from faraway, distant, couldn’t-care-less Westminster. This Bill could severely hamper the freedoms they seek, as well as being an enormous flood sweeping away the existing structures of devolution.
Greener UK has pointed to a simple, very clear example. I was recently commenting on the extremely limited—indeed derisory—“plastics ban” introduced in England, covering three items. The Welsh Government are proposing to introduce a ban on the sale of nine separate single-use plastic items. Unfortunately, under the provisions of this Bill—I would be very interested in the Minister’s comments on this—they could ban only the production of these in Wales, while sale of the items made elsewhere in the UK would be forcibly allowed by this legislation. The Welsh Government have said,
“a ban that could only apply to Welsh-produced plastics would undermine the policy and render it ineffective”.
I can only agree.
I note also that the Centre on Constitutional Change reports:
“The UK Bill includes a much more restricted set of public policy justifications for exemptions from the market access principles than is permitted under EU law.”
Again, powers are being taken away from the devolved Administrations. This is not “take back control”, as the people of Scotland, Wales and Northern Ireland might have hoped for. This is control being lost, Brexit having been imposed on two of the three nations by the English nation’s size of population.
The House is really dripping with irony today, as noted earlier, with the Government and their allies lauding the benefits of free unencumbered trade while slicing that off from the continent. I look forward to the Minister’s answer to how dictatorship from Westminster over the other nations squares with taking back control.
My Lords, I am delighted to speak to a number of amendments in my name but also to lend my support to Amendment 16, which I have co-signed, in the name of the noble Baroness, Lady Hayter of Kentish Town. It is essential that we seek the consent of the devolved Administrations in these circumstances, rather than just simply consult, for the reasons the noble Lord, Lord German, gave in moving his Amendment 15 and those alluded to by the noble Lord, Lord Thomas of Gresford, in the earlier debate. I hope that the Government and my noble friend the Minister will look favourably on the request that we should seek the consent of the devolved Administrations.
Again, I am grateful to the Law Society for its drafting of and briefing on the amendments I have put forward. In Amendments 17 and 31, I am seeking greater transparency and inviting the Secretary of State to publish the results of the consultation and give reasons for any decision reached.
I pray in aid the conclusions of the Constitution Committee report on the Bill, at paragraphs 76 to 79, which criticise the powers set out in Clause 3(8) in particular. Paragraph 78 states the following:
“The Government should explain how the consultation process for amending the relevant requirements for goods would work and how disputes would be resolved.”
At paragraph 79, it says:
“We agree with the DPRRC that the power in clause 3(8) has not been justified and should be removed from the Bill.”
I seek to oblige the Secretary of State to consult the devolved Administrations but also to go further and make public, in the interests of transparency, the results of the consultation and the reasons for any decision taken on the basis of that consultation.
Similarly, my Amendment 42, asks for consultation with the devolved Administrations in a host of circumstances, before, as my explanatory statement refers to,
“amending the list of legitimate aims.”
Amendment 43 says that, in relation to Clause 8:
“The Secretary of State must publish the results of the consultation and give reasons for any decision reached.”
Amendment 49 seeks consultation with the devolved Administrations before amending Schedule 1. Amendment 62 seeks consultation with the devolved Administrations before preparing guidance under Clause 12. Amendment 65 is a consequential amendment. Amendment 75 seeks that consultation be sought with the devolved Administrations before amending Schedule 2.
Finally, Amendment 100 seeks consultation with the devolved Administrations before the definition of “legitimate aim” in Clause 26 is amended. I refer here to both the definition of “legitimate aim” being amended and to the guidance having earlier been published. With those remarks, I urge my noble friend and the House to look favourably on these amendments.
My Lords, I concur with the comments of my noble friend Lord German, the noble and learned Lord, Lord Hope, and others concerning consent and what might be termed the proper conduct of devolution. But I will limit my remarks to the amendments in the name of the noble Baroness, Lady McIntosh, relating to the publication of decisions, to which I added my name, not for the purpose of signalling that I am satisfied with consulting rather than obtaining consent, but because I want to flag up that there must be transparency.
It is difficult to tell from provisions throughout this Bill how transparent various procedures will be, which raises my concern that they may not be very transparent at all. The internal market is a matter of significant public interest, and while individuals may not bury themselves in the minutiae, they will feel the impact. There are various organisations on the front line of helping consumers and small businesses to understand laws and their rights. Therefore, whatever the procedure, there should be publication of the proceedings that are formulating the structure of the internal market.
I have amendments on transparency elsewhere relating to the CMA and the OIM, and they are part of the same theme. If the consumer voice is to be heard and articulated by consumer organisations, access to information is paramount. Otherwise, interventions and understanding may come too late.
My Lords, I agree with the noble Baroness, Lady Bowles, on transparency, and I look forward to coming to those points later. I am pleased to speak to this group of amendments, and in particular to Amendments 30 and 64, to which I have added my name, and to Amendments 75A and 100A, which stand in my name.
Perhaps I should first make it clear that I support Amendment 15 in the name of the noble Baroness, Lady Finlay of Llandaff, moved by the noble Lord, Lord German, which stipulates that not only should the UK Government consult the devolved Governments but that they must obtain their consent. I would have added my name to that amendment had other colleagues not got there first. I agree with the noble Lord, Lord German, that it would be far better if we did not have these powers in the Bill at all. I also believe that the points made by the noble Baroness, Lady Bennett, go to the heart of why devolution of power was made in the first place and is still very much needed.
Amendment 16 does not go as far as Amendment 15. It advocates the need to seek consent of the devolved Administrations but it does not impose a requirement to obtain that consent. Amendment 17, likewise, does not go as far as Amendment 15, in that it again requires the Government to publish the result of consultation, so the implication is that the UK Government may well consult the devolved Governments and then blithely ignore their viewpoints. There is, as the noble Lord, Lord German, implied, no earthly point in having a consultation system if the UK Government may then, willy-nilly, totally ignore the devolved Governments’ viewpoints.
I now turn to the group of amendments that relates to Clause 12. Amendment 64 in the name of the noble Baroness, Lady Hayter, requires the UK Government Minister, in this context, to consult and seek the consent of the devolved Governments. Likewise, Amendment 75 in the name of the noble Baroness, Lady McIntosh, requires the Minister to consult the devolved Governments. But both these amendments give the appearance of consulting the devolved Governments but place no obligation whatever on the Minister to take any notice of the response elicited. The Minister can happily consult then blithely ignore the views of the devolved Governments. That is not good enough. Indeed, it is highly dangerous. It gives the appearance of consultation without providing the substance of a requirement to respect the outcome of any such process. In reality, this plays out a charade of having a joint approach between the four nations and provides an open road for the UK Government Minister to totally ignore the views of the devolved Governments.
My Amendment 75A simply requires the Minister, with regard to subsection (2), to consult and obtain the consent of the devolved Governments. I readily recognise that the UK Government may argue that the devolved Governments should not have a veto over the Westminster approach. That is something I recognise and respect, but the implication is that Westminster should have such a veto. In regard to devolved functions, the whole point is that the four nations should have the right to make their own policies. That is what devolution is about. The Government seem to take the Orwellian approach that all four nations are equal but one is a little bit more equal than the others.
My Amendment 100A applies the same principle to the consultation issues relating to Clause 20(7) and the need for the Minister also to obtain the consent of devolved Governments in that regard. What this comes down to, yet again, is the need to have an acceptable mechanism to resolve disagreements, to have the common frameworks to which we have resorted on so many other occasions and not to take the approach that the Government of England—which it is for the devolved function—always has the right, by dint of its respective size, to overrule the other four nations. If such a mechanism were in place, we would not have to put ourselves through the pain of raising these questions on every occasion that the issue of consultation between the Minister and the devolved authorities arises. I implore the Minister to bring forward an amendment on Report that would obviate the need for us to return to these issues, time after time. Until such a change to the Government’s approach is forthcoming, we will have no choice but to press amendments along the lines of this group at a later stage.
My Lords, as so often, my noble friend Lord Wigley has spoken for the wide consensus on this question in Wales. I will speak specifically in support of Amendments 74, 75 and 99, which seek to ensure that the Henry VIII powers of the Secretary of State to amend the Bill’s provisions relating to market access on mutual recognition, non-discrimination and the “legitimate aim” of regulatory requirements are referred to the devolved Administrations for their consultation and consent. I do so following a series of excellent opening speeches, notably by the noble Lord, Lord German, and the noble and learned Lord, Lord Hope.
The Bill has been justified on the basis that it is intended to support the UK internal market for goods and services once EU rules no longer apply after the transition period ends on 31 December. These rules, derived from EU law, place constraints on the ability of government institutions within the UK to impose constraints on the free movement of goods, as well as people, and significantly reduce the scope for measures that would restrict intra-UK trade. One reason that the UK Government wish to constrain the autonomy of the devolved Administrations in this area is that countries with which the UK is trying to negotiate trade deals may wish to clarify that they have access to the whole UK market, or Great Britain market if the Northern Ireland protocol survives, as it must do.
A White Paper published by the Government in July 2020 claimed that the Bill would provide “frictionless trade”, “fair competition” and protection for businesses and consumers within the UK. To achieve these aims, two market access principles were identified, namely mutual recognition and non-discrimination, which would constrain the ability of all relevant actors within the UK, be they regulators, local authorities or devolved Administrations, to impose new regulations on goods and services. These limit the ability of devolved Governments to regulate economic activity far more than did their EU predecessors. So much for taking back control. Obviously, that does not apply to devolved legislatures, which will lose control under the Bill—to Whitehall.
The UK internal market was initially seen as one strand of work, begun in October 2017 by the four Governments within the UK, to establish a common approach in key policy areas of returned EU rule, referred to as common frameworks, about which I spoke in the last Session. However, it is generally agreed that, by removing the internal market from these discussions and pushing ahead without the agreement of the devolved Authorities, the common framework approach is being completely undermined by the UK Government.
In response to the White Paper, the Welsh Government insisted that any new system must have independent oversight and dispute resolution, and that common rules must be agreed by all four Governments. When the Bill was published, Jeremy Miles, the Welsh Government Counsel General, called it an “attack on democracy”, and the Scottish Constitution Minister pointed out that the concept of mutual recognition could mean that Scotland, for example, would be forced to accept lower food standards—an area that is currently devolved—against its express wishes.
The mutual recognition provisions would, therefore, effectively prevent one part of the UK unilaterally imposing and enforcing requirements, for example for the presentation or characteristics of goods, which are covered by this principle, which also applies to services. There are exceptions under the Northern Ireland protocol. “Manner of sale” requirements, on the other hand, for example governing to whom products may be sold or their price, would not be covered by mutual recognition but by the non-discrimination provisions of the Bill. The exclusion of price from the mutual recognition principle was driven, in part, by arguments in the other place about what the Bill might mean for Scotland’s minimum alcohol pricing regime—subsequently adopted in Wales, more or less—in response to the public health challenge from excessive alcohol consumption.
Schedule 2 contains lists of services that are excluded from the principles of mutual recognition and non-discrimination, such as healthcare, transport and water supply, as well as some privately provided services. Amendments 74 and 75 require the Secretary of State to consult and/or seek the consent of the devolved Administrations before making changes to Schedule 2.
If there is wariness about enabling any one of the devolved nations to exercise a veto—for example, the Scottish nationalists simply refusing to consent to something which would benefit the rest of the UK —leading to deadlock, why, as I have suggested several times in recent debates in your Lordships’ House, do the Government not adopt the Welsh Government’s proposal for a Council of Ministers-type model with a form of qualified majority voting, in place of the current Joint Ministerial Committee, which has been dysfunctional and, frankly, worse than useless? I specifically ask the Minister to respond to this suggestion of the Welsh Government to have a Council of Ministers-type model with qualified majority voting, which could overcome many of the issues involved. This model would require the UK Government, since it represents England with its disproportionately large population and share of GDP, to secure the agreement of at least one devolved Administration before overriding any devolved Administration that wanted to exercise a veto.
The Bill prohibits both direct and indirect discrimination. The latter is permitted if it can reasonably be considered a “legitimate aim”, as defined in the Bill. However, with the Bill as it stands, the Secretary of State can redefine that term by regulations, subject only to an affirmative resolution procedure. Amendment 99 rightly seeks to ensure that there is consultation and consent from the devolved Administrations before doing so. I cannot for the life of me understand why the Government or the Minister, for that matter, would object to that.
New functions will be bestowed on the Competition and Markets Authority—the CMA—to monitor and report on the impact of specific regulations that are considered to potentially have a detrimental effect on the internal market. The Bill also proposes to establish an office for the internal market within the CMA to oversee the application of these principles and the functioning of the internal market. Expert analysis has shown that, whereas EU law had a symmetrical effect upon the UK Parliament and devolved legislatures, the Bill will have an inherently asymmetrical effect as it will become a protected enactment, which the devolved legislatures will be powerless to repeal or modify.
The Bill will also narrow the territorial scope of devolved legislation. Regulations relating to goods, passed by the Senedd, for example, will apply only to goods produced in Wales or imported directly into Wales from outside the UK. They will not apply to goods imported from the rest of the UK. This, as acknowledged by the business department’s impact assessment of the Bill, would reduce the ability of local legislatures to produce targeted social and environmental objectives, so that the intended societal—[Inaudible.]
We seem to have lost connection with the noble Lord, Lord Hain, so I call the noble and learned Lord, Lord Mackay of Clashfern.
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.
My Lords, the noble Lord, Lord Hain, lost his connection, so we shall try him again now. It seems we are still having problems with the noble Lord, so I now call the noble Lord, Lord Naseby.
I thank my noble and learned friend Lord Mackay. He certainly has a very practical sense of the law, which not all lawyers have. He is right: it is an internal market; the relationships between England, Scotland, Wales and Northern Ireland are usually very close and we all have a common cause, perhaps not in rugby, but in most things. Nevertheless, I repeat that the words used in the Bill are pretty strong. It does not say that, in making regulations, the Secretary of State “may” or “should”, as we see occasionally in law; it uses the word “must”, which is a strong word. He “must consult”; there is no option. That is quite right—absolutely right, but we need to remember what “consult” means.
It is not a soft verb. Its component parts, in my view, involve seeking out information or advice, depending on the subject matter. It means doing one’s best to find out what the views are, to have an interchange and to take into consideration all aspects of the particular action proposed. It is not a dictatorship or anything like that, and I would not believe that any Secretary of State, of any Government, would view it that way. I personally think it is as strong as it needs to be. The addition of “obtain the consent of” in place of “consult” is a threat; there are no two ways about it. When I was in local government and the leader of a local authority, if I had had some legislation in front of me that said, “You have to obtain our consent”, I would dig my heels in. Do not bother about the other 31 local authorities in London—just dig your heels in and that will foul it all up.
That is not what this is all about, so I am not in favour of Amendment 15. I think, though, that the noble Lord, Lord Hain, and my noble and learned friend Lord Mackay have taken the argument a bit further. The noble Lord, Lord Hain, was talking about a qualified majority, when one part of the nation dug its heels in for some reason, and maybe we should look at that. My noble and learned friend Lord Mackay put forward how Parliament might be brought in at a higher level in something that was particularly difficult. There is merit in looking at both aspects, but I just think the amendment before us, Amendment 15, is over the top.
My Lords, it is a pleasure to take part in this fascinating debate, which is very much legal in content. I support the principles enunciated by the noble Lord, Lord German, and the noble and learned Lord, Lord Hope of Craighead. Like him, I would like to ask the Minister, the noble Lord, Lord True, what the Government’s view is of the Sewel convention. What is the Government’s view of devolution?
I speak as someone who was once a Minister in the devolved Administration in Northern Ireland. I dealt with legislative consent Motions all the time. The connection between the consultation and the devolved Administration was vital, particularly on benefits, where we operated the principle of parity.
I support all these amendments because they pivot the debate on the issue of seeking the consent of the devolved Administrations and the level of consultation. If the Government are serious about respecting devolution and honouring the Sewel convention, they should accept these amendments. It is my fear that this Bill is really about a power grab and Henry VIII powers. Unlike the noble Lord, Lord Naseby, who is obviously batting for the Government as a Back-Bencher, I do not think these amendments are meant as a threat to the legislation or to the Government. We must always remember that the Executive should be accountable to Parliament. The words of the noble and learned Lord, Lord Judge, in his treatise on this are very germane on this issue.
The Bill is peppered with many provisions where the Government seem intent on undermining devolution and the devolution settlements. This demonstrates a lack of respect for them and the work they do. Do the Government believe in and subscribe to devolution, or are they trying, by stealth and secondary legislation, to be an integrationist Government? In this regard, I refer to a report from the Lords Constitution Committee, which states:
“As the operation of the devolution arrangements and the respective power of the devolved institutions are constitutional matters, we would expect to see them amended by primary rather than secondary legislation or by using a statutory procedure that requires the consent of the devolved legislatures”.
I ask the Minister: when are the Government going to come back to that position? The Constitution Committee is also instructive about the role of consultation. Point 5 of its summary of conclusions and recommendations states:
“The lack of specificity about the consultation requirements in the Bill is problematic. The Government must set out the process for consultation with the devolved Administrations on the management and adjustment of the internal market arrangements.”
So be it with the mutual recognition principles for goods.
There is also a lack of reference to the common frameworks, an area that would help to resolve some of these issues. Is that because the Government wish to further control the devolved Administrations? There is a strong case for withdrawing this legislation and going back to the drawing board, while a more suitable intergovernmental approach and better consultation are used to develop an appropriate system of governance.
The Government’s approach in this Bill is about weakening devolution arrangements, hence it is important to achieve and obtain the consent of the devolved Administrations for the mutual recognition principles. I therefore fully support these amendments, which are trying to curb the Henry VIII powers.
My Lords, I am told that we have the noble Lord, Lord Hain, again.
Thank you, my Lords. I suddenly expired by unilateral mute for reasons that neither the broadcasting hub nor I could understand. I was about to complete what I said so, with the leave of the Committee, I will briefly do so.
The Bill will also narrow the territorial scope of devolved legislation. Regulations relating to goods passed by the Senedd, for example, will apply only to goods produced in Wales or imported directly into Wales from outside the UK. They will not apply to goods imported from the rest of the UK. This, as acknowledged by BEIS’s impact assessment of the Bill, would reduce the ability of local legislatures to pursue targeted social and environmental objectives so that the intended societal benefits “would be forgone”.
It is therefore clear that the market access principles of mutual recognition and non-discrimination set out in the Bill would present a significant threat to the purposes of devolution, which have been democratically established now for nearly two decades. Surely it is not too much to ask that, at the very least, the devolved Administrations should be consulted and their consent sought on the relevant measures in this Bill, as set out in these amendments?
My Lords, there have been many excellent speeches in this debate and I doubt that I have anything much to add.
I commend to the Government that they take note of what was said by the noble and learned Lord, Lord Mackay of Clashfern. This is potentially a critical issue for the future of the United Kingdom. I want to see a United Kingdom survive; I am a passionate supporter of that. That means we must have a well-functioning internal market. However, the Government are making a great meal of this issue, building it up into a much bigger conflict than it needs to be. I urge them to follow the route of reviving and working through the common frameworks that I remember David Lidington proposed as part of the European Union (Withdrawal) Act. I do not see why this new Conservative Government have apparently abandoned the approach that David Lidington took then and are seeking to create a confrontation between the principle of consultation, which they favour, and the principle of consent favoured by the devolved Administrations.
The present Government seem to see Brexit as an opportunity for the assertion of the UK as a unitary state. This is very dangerous for the UK’s future. Take, for example, the structural funds, which play an important part in the Welsh and Scottish economies. Under the devolution settlement, the devolved Administrations were responsible for how structural fund money was spent in their areas. This Government are trying to take that away, establishing new powers to direct investment in Scotland and Wales. The Government are trying to reassert a unitary state. This is the wrong path to be following.
The person I think speaks the most sense on these questions is former Prime Minister Gordon Brown. I want to see us evolving in a federal direction and we cannot do that if we are going to tear up principles that have already been agreed. We are on the verge of making the mistake that the Conservative Party made in the 1880s when it rejected Gladstone’s visionary plan for Irish home rule and we will pay very heavily for the consequences.
My Lords, I am very glad to follow the noble Lord, Lord Liddle, because, not for the first time, he speaks a great deal of powerful good sense. We have to recognise that what is at stake here is the future of the United Kingdom as we now have it and not as we used to have it. As I said when I spoke briefly on Monday, I was not an advocate of Scottish devolution because I saw within it the seeds of disaster, but we have it. The fact that we have a Government in Scotland who are bent on independence adds a real danger and we must not play into the hands of those who would destroy the union.
It is all a question of getting the right balance. Far too often we have not got the right balance. I completely accept that the United Kingdom, which I want to see retained, has a Parliament and a Government which are clearly superior in political power to the devolved Administrations. Bearing in mind that one of those Administrations wishes to separate, I believe there is an enormous amount of good sense in what the noble Lord, Lord Hain, said. He talked about qualified majority voting within a council of Ministers drawn from the United Kingdom Government and the devolved Administrations. I beg my noble friend on the Front Bench to reflect on the wisdom of what the noble Lord, Lord Hain, and my noble and learned friend Lord Mackay of Clashfern, to whom the noble Lord, Lord Liddle, referred, said in very thoughtful, well-considered and powerful speeches.
It is clearly crucial that we consult within the four countries. It is clearly crucial that we recognise that one of the four countries has 80% of the population of the United Kingdom. It is clearly important that no tail wags the dog, but it is equally vital that we treat each other as equals and that Ministers meet and come to sensible decisions which are not seen as impositions. That is why I am so fundamentally opposed, as I always have been, to Henry VIII clauses. That Henry VIII should have been recruited in such large measure by the present Government is extremely unwise. To get immediate domination through a means that can only spawn long-term disaffection is not wise, and we need a Government who are able to practise wisdom at this crucial moment in our history.
We have left the European Union, we are going forward as a United Kingdom and we have got to achieve balance and symmetry and a long-term wisdom which does not lead to the replication of the sort of social division that was created in the 1880s, to which the noble Lord, Lord Liddle, just referred. History does not repeat itself, but it does—or should—teach us lessons and we should seek to derive wisdom from the knowledge of what has happened in the past. I beg my noble friend to consider what has been said in this debate, to reflect on the very wise words which we have had from the noble Lords, Lord German and Lord Liddle, the noble Lord, Lord Hain, in particular, and my noble and learned friend Lord Mackay of Clashfern, and let us try to come to an accommodation.
We need to come together in this country more than we have ever needed to. We must not dismiss opinions because they come from parties other than our own. I am not so starry-eyed as to think that we could have a national Government tomorrow, but we have to treat each other with a degree of respect. We have to recognise that it is just conceivably possible that the other side might have a few good views.
Cromwell was not a man for consensus, but he once said, in the predecessor of the other place: “Conceive it possible, in the bowels of Christ, that you may be mistaken.” My message to the Government this evening is: conceive it possible that you may not have got it quite right, and let us come together to help you to get it right.
My Lords, I declare an interest because I am half English and half Scottish, and proud of it. I am very close to my Scottish family. I have always feared that, in this House in particular, we have underestimated the dangers ahead had devolution not happened. The lessons of Ireland are there, and I believe that the peace and stability of our peoples across the islands of Ireland and Great Britain have been ensured by the process of devolution; I am convinced of that.
When my noble friend Lord Hain says he sometimes does not understand why Ministers do not accept the logic of a particular position that is taken, I think that he is failing to look at the driving force behind all that is happening. As I said in a debate on a previous amendment today, I believe that there is a driving force against everything that I think most of us in this House have believed was vital.
There is a world of difference between the concepts of “consult” and “consent”. What builds up the resentment of the Scottish people, for example—I am sure it is true for Northern Ireland and Wales as well—is the patronising assumption that we will consult the others. Those who emphasise the importance of mutuality in this debate are absolutely right. That means that we meet, in a sense, as equals, and we seek their consent to proposals that we may be making.
The amendment is vital. It is vital not just to this internal market Bill but to recommitting ourselves to peace-building. We always seem to react and try to deal with crises when they have overtaken us. In this case, we had the wisdom to look ahead and do things in time. We will need to reassert the whole process of peace-building, mutual consent and the recognition of people as people, wherever they are with their identity. This amendment is very important indeed.