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United Kingdom Internal Market Bill

Volume 685: debated on Thursday 10 December 2020

Consideration of Lords message

We now come to consideration of the message from the House of Lords on the United Kingdom Internal Market Bill, which is to be considered in accordance with the order of the House of 14 September.

I must draw the House’s attention to the fact that financial privilege is engaged by Lords amendments 48B and 48C. If any Lords amendment engaging financial privilege is agreed to, I will cause the customary entry waiving Commons financial privilege to be entered in the Journal.

Before I call the Minister, I should say that hon. and right hon. Members will be aware that we have one hour for this debate, which means that I will impose an immediate five-minute time limit. However, that may end up being four minutes, depending on how long the Front Benchers take. I just want people to be aware of that.

After Clause 1


With this it will be convenient to consider the following:

That this House agrees with the Lords in their amendments 8B, 8C, 8D, 8F, 8G, 8H, 8J and 8K, but disagrees with the Lords in their amendment 8L, insists on its disagreement with the Lords in their amendments 13 and 56, and proposes amendment (a) to the Bill in lieu of Lords amendments 8L, 13 and 56.

That this House insists on its disagreement with the Lords in their amendments 14 and 52 to 54 but does not insist on its disagreement with the Lords in their amendment 55.

That this House does not insist on its disagreement with the Lords in their amendment 44.

That this House does not insist on its disagreement with the Lords in their amendment 45, and proposes amendment (a) instead of the words left out by the Lords amendment.

That this House does not insist on its disagreement with the Lords in their amendment 47, and proposes amendment (a) to the Bill consequential upon the Lords amendment.

That this House disagrees with the Lords in their amendments 48B and 48C.

That this House agrees with the Lords in their amendment 50B, but disagrees with the Lords in their amendment 50C.

That this House agrees with the Lords in their amendment 51B.

I will try to be brief in going through the amendments—but with some detail, Madam Deputy Speaker—to make sure that others can speak.

I am glad that, since our last debate on the Bill on Monday, there have been a number of very positive developments. I am delighted that the peers in the other place and the Government have worked together constructively to agree on a number of areas. However, it is clear that there are still a number of outstanding issues, which I will address today. I will set out the Government’s rationale and I call on this House to support the Government’s proposals.

I want to start with some of the positive developments, notably on part 5 and Lords reasons 14B, 45B, 52A, 53A, 54A and 55A. The Government have been clear throughout that they were committed to implementing the withdrawal agreement and the Northern Ireland protocol. We were also clear that as a responsible Government we could not allow the economic integrity of the UK’s internal market to inadvertently be compromised by the unintended consequences of the protocol. That is why, through clauses in the Bill, we sought limited and reasonable steps to create a legal safety net by taking powers in reserve, whereby Ministers could guarantee the integrity of the United Kingdom and ensure that the Government were always able to deliver on their commitments to the people of Northern Ireland.

We sought those measures to guard against the possibility of not reaching agreement with the EU at the Joint Committee. As my right hon. Friend the Chancellor of the Duchy of Lancaster and his EU counterpart have reached an agreement in principle, I am pleased to say that the clauses that provided for the safety net are no longer needed and the Government are removing them from the Bill: that is, clauses 44, 45 and 47.

I am pleased that the other place has now also agreed to clauses 42, 43 and 46 and consequential amendments, which are purely about protecting Northern Ireland’s place in the UK customs territory and internal market, delivering unfettered access in line with the Northern Ireland protocol and codifying in legislation existing practice in terms of the Foreign Secretary notifying the European Commission on state aid.

Alongside that, and in line with the agreement in principle, we have tabled a new clause that will require the Secretary of State for Business, Energy and Industrial Strategy to set out guidance for public authorities on how the state aid provisions of the protocol will work in practice, as well as consequential amendments as a result of removing clauses 44, 45 and 47. Guidance must take account of any declarations made by the EU and the Joint Committee, which would include the proposed EU declaration that forms part of the package agreed in principle by the Chancellor of the Duchy of Lancaster. I call on the House to agree with the Government’s approach in this area.

I turn now to amendments 1B, 1C and 1D. Yesterday, noble Lords in the other place once again commended the importance of the Government’s continuing co-operation with the devolved Administrations on the common frameworks programme and reiterated their support for it. I would like to take the opportunity to thank the noble and learned Lord Hope for his considered intervention yesterday, and for all his thoughtful work on the Bill. However, while his new amendments would clarify the interaction between divergence agreed under common frameworks in the market access principles, they would still potentially undermine the certainty that the market access principles are designed to provide for business, because of the possibility of differing interpretations of what is permitted under an agreement. Moreover, as I set out on Monday, the amendments could create a broad exclusions regime. In itself, that denies businesses and consumers much needed clarity about the terms of trade within which they operate.

I would also like to take this opportunity to remind the House that common frameworks are processes for negotiation and reaching agreement, and are not in themselves a policy outcome. Wholesale exclusions from the market access principles of agreement reached through the common frameworks process could therefore lead to the unacceptable risk of harmful trade barriers being erected across the UK. Such barriers could not be erected under the EU system unless justified and notified to the Commission, and they are undesirable in our own UK internal market. For those reasons, I respectfully suggest that the approach put forward in the amendments is not appropriate.

I have said previously that the Government are committed to completing the delivery of the common frameworks programme and protecting these areas of co-operation to the benefit of jobs, people and livelihoods. We welcome the support of hon. and right hon. Members here in achieving that. However, amendments 1B, 1C and 1D have considerable drawbacks and I therefore call on the House to disagree with them.

Let me turn to Lords amendment 8L. I remind the House that, in drafting the Bill, and clause 10 specifically, the Government designed an exclusions approach that achieves a careful balance. It sits within the fundamental framework of the market access principles, which protect the UK’s highly integrated internal market, but allows the Government to remove very targeted and specific policy areas from scope, so it can continue to operate for the particular conditions, where they are needed, under the bespoke constraints that are relevant to those circumstances. Let me repeat the point for emphasis: we agree that there is a need for an exclusions regime, but one that is carefully drafted and provides certainty for business.

I am therefore disappointed that the other place has again voted to upset that careful balance with an altered, but still fundamentally flawed, expansive list. It would render the protections and benefits of the internal market proposals under part 1 meaningless. This would allow unnecessary trade barriers and unjustifiable costs to businesses and consumers.

Amendment 8L captures all kinds of public policy objectives and only requires a new regulation to make a contribution to any of the aims in the list. That means that almost any regulation that the UK Government or the devolved Administrations propose in the future could be excluded from the scope of the market access principles. I therefore call on the House to disagree with amendments 8L, 13 and 56, and agree with the Government’s amendments in lieu.

The Minister refers to the Government amendment, which also refers to consultation and consent. Yesterday, the Senedd voted to withhold consent from the internal market Bill. Its provisions regarding consultation are meaningless. When he says that Wales will be consulted, what we hear is contempt. Will he admit that to press ahead regardless, against the express will of the people of Wales and Welsh democracy, is to follow, as Lord Thomas put it in the other place, the

“discredited principle of ‘Westminster knows best’”?—[Official Report, House of Lords, 25 November 2020; Vol. 808, c. 278.]

We want to work with the Welsh Senedd. We want to work with the Welsh people. We want to work particularly to ensure that Welsh businesses have certainty, and English, Scottish and Northern Irish businesses as well. That is why we need to work at pace to ensure that we have an internal market that works for all come 1 January.

Let me turn to amendments 48B and 48C. It is right, as we leave the transition period, that the UK Government have the right tools to make sure the whole country can benefit from investment, which strengthens the communities, economies and connectivity within and between all parts of the UK. I emphasise once again that this power is in addition to the devolved Administrations’ existing power. It does not take away responsibilities from the devolved Administrations; rather, the power will enable the UK Government to deliver investment more dynamically and in collaboration with the devolved Administrations and other partners.

The Government will work with the devolved Administrations to ensure we can complement their existing and continuing powers, used to support citizens in Scotland, Wales and Northern Ireland. We will also work collaboratively with other crucial partners, including local authorities and wider public and private sector organisations.

If the desire is to work collaboratively, why on earth are the Government rejecting these amendments, which simply ask for consent from the devolved Administrations? That would be collaboration.

I have talked about the fact that we have spoken with the Scottish Government and continue to do so and we are very open to that. What has been frustrating, in terms of collaboration, is that although we have collaborated on common frameworks, the Scottish Government have pulled away from discussions about the internal market, and that started to cause this detachment. But we do want to hold out our hand to make sure we can continue to collaborate in the future to complement, as I said, the existing powers.

I want to touch briefly on the UK shared prosperity fund. This power means that the UK Government can make good on our commitment to the UKSPF. The UK Government intend to work with the devolved Administrations and with local communities to ensure that this power is used to best effect and that the UK shared prosperity fund supports citizens across the UK. Indeed, we have confirmed that the devolved Administrations will be represented on the UK SPF governance structures. The Government will set out further details of the objectives and administration of the shared prosperity fund in the UK-wide investment framework, which will be published in the spring. We will continue to engage the devolved Administrations as we develop the investment framework in advance of its publication.

On the governance of the fund, while the specific arrangements are still being developed there will be governance structures and the DAs will have a place within those structures. That is part of the further work we need to do, and it will go on in consultation with the devolved Administrations and others as we work to set out the framework that we will be publishing in the spring. The Government have been more than clear in their intention to work with the devolved Administrations and therefore do not think that Lords amendments 48B and 48C are necessary. Moreover, as these amendments also alter the financial arrangements made in this House, as we have heard, I call on the House to disagree with them.

I turn to Lords amendment 50C. We are grateful that the other place accepts the reservation of subsidy control. I think we all agree that we should continue the UK-wide approach to subsidy control, and this reservation confirms that in law. However, despite assurances from the Government and a commitment to consult the devolved Administrations on the outcome of our forthcoming consultation, the other place continues to have concerns about how we engage with the devolved Administrations on this particular policy issue. The amendment that it has put forward means that the reservation would not come into force until the Government had agreed a common framework or, if one could not be agreed, no earlier than three years. This would undermine the reservation and would provide an unnecessary delay to the implementation of a future UK-wide subsidy control regime.

The common frameworks programme was designed to operate in policy areas where regulatory powers previously held at EU level intersect with devolved competence. State aid has never been devolved, and the devolved Administrations have never previously been able to set their own subsidy control rules, as this was covered by the EU state aid framework and it has never been included in the common frameworks programme. Therefore, the approach proposed in this amendment would not be appropriate. If the Government were to adopt the amendment, the UK would potentially have to wait three years to decide on a UK-wide approach to subsidy control. That delay would create unacceptable uncertainty for businesses and would damage our efforts to support the UK’s economic recovery from the covid-19 pandemic.

We have listened to concerns regarding the role of the devolved Administrations in the development of proposals for the new subsidy control regime. The Government have tabled an amendment setting out our commitment to consult the devolved Administrations on the Government’s response to the UK subsidy control consultation. I therefore call upon the House to disagree with Lords amendment 50C, as it is inappropriate to link the operation of the reservations proposed by clause 50 to common frameworks, and as we have also addressed the concerns in Lords amendments 50B and 51B. I appreciate the constructive approach that peers in the other place have been taking in discussions with the Government. While the Government cannot agree with the amendments put forward by the other place as they stand, I hope that the other place will reconsider and continue to work with the Government.

I appreciate that the Minister was as brief as he could be, given that he took interventions, but I think we will have to start with a time limit of four minutes rather than five minutes.

I will try to be as brief as I can, Madam Deputy Speaker. I want to say to the Minister that we should note the progress made in the removal of the law-breaking clauses from part 5. What has essentially happened here is that the Joint Committee set up to deal with the outstanding issues on the Northern Ireland protocol has dealt with the issues on the Northern Ireland protocol. We are in a slightly through-the-looking-glass world here. The Chancellor of the Duchy of Lancaster this week described Maroš Šefčovič, the Vice President of the Commission, and his team as displaying

“pragmatism, collaborative spirit and determination to get a deal done that would work for both sides.”—[Official Report, 9 December 2020; Vol. 685, c. 847.]

These are the same people the Prime Minister described in his Second Reading speech in September as being

“willing to go to extreme and unreasonable lengths”.—[Official Report, 14 September 2020; Vol. 680, c. 42.]

He also said that they had engaged in an “extraordinary threat” and refused to take the “revolver off the table”.

There are two conclusions we can draw from this sequence of events. The first is that Mr Šefčovič has changed his whole character, attitude and personality in three months; the other is the Prime Minister has a man who will make up any old nonsense for political advantage. I tend to the latter view.

I am going to make some progress; lots of people want to speak and there is not much time.

With the law-breaking powers that undermined our reputation in the world gone, we are left with the legal but, I believe, deeply flawed proposals for undermining our shared governance at home. I am glad that the other place has, by large majorities, stuck with the insistence on upholding the devolution settlement, particularly in respect of common frameworks. I say to the Minister that this is absolutely critical to the kind of country we want to build post Brexit. We want a functioning UK internal market, but we believe that can be achieved in a way that upholds high standards and allows devolved Governments both to have a voice in setting those standards and to make choices in devolved areas appropriate for each nation. The principle is clear: we have a system of governance based not any more on power hoarded at Westminster but on power shared. That should be respected.

All of that brings me to Lords amendments 1B, 1C and 1D. I hope that in the course of the coming days the Minister, with his colleagues, will reflect on this: the Government say that they support common frameworks, that they are a great innovation and that they are proud of them—and they are a good innovation in many senses—so why not give them legislative backing?

This is quite an arcane debate, so I wish to make it as simple as I can and return the example of single-use plastics, which I mentioned on Monday, to show the difference between the common frameworks approach proposed by Lord Hope and others and the Government’s approach. Environmental policy, including on plastics, is a devolved question. Under the EU rules we currently have, the Welsh Government, for example, could ban the production and sale of single-use plastics in Wales; under the Bill as it stood when it went to the other place, the Government of Wales would not be able to ban their sale because the UK Government do not propose to ban such plastics themselves. Because of the market access principle and the way it is implemented, the lowest standard in one Parliament will be the standard for all, which means that Welsh shops will have to stock these plastics. I do not believe that that respects the devolution principle. The power may be formally devolved, but in essence it is rendered ineffective by the approach taken in the Bill, which takes control back to Westminster. If the Minister can explain why it does respect devolution, perhaps he should do so, but I have not heard a good explanation.

What is the alternative to that? The alternative is the common frameworks approach, which provides a different way forward by attempting to find consensus for high standards among the four nations while respecting devolved powers and the ability to diverge through agreement. That is what Lord Hope’s amendments seek to do, which is why we support those amendments and will, indeed, seek a vote on them.

Lords amendments 8L, 13 and 56 also seek to preserve the ability for there to be higher standards in different nations, where they can be justified. Again, this is about our vision for the future. Instead of a race to the bottom, we want to see a race to the top on standards. We have seen this over the course of devolution: on the smoking ban, plastic bags and a whole range of issues, we have seen experimentation in different nations drive up standards. I say to the Minister that both sets of amendments are the right thing to do to respect the devolution principle, and I believe they are consistent with the internal market that we want to see.

I turn briefly to Lords amendments 48B and 48C, which would oblige agreement with the devolved Administrations before there was spending in devolved areas. If anything, this is a clearer and more simple test of the Government’s real intentions. They say that they believe in devolution. The city deals are worked out jointly with the devolved Administrations; the Government are taking enormously wide powers in the Bill on spending in devolved areas. If this is not about hoarding power to Westminster, the Government can surely agree to the proposal that such spending should have the consent of devolved Administrations. This is about the principle of shared governance. I make the point that that was certainly the case in relation to EU structural funds. The Minister set out some proposals on the shared prosperity fund, but the Bill proposes much wider powers in relation to spending in devolved areas. If this is not a power grab and is not about hoarding power to Westminster, surely it is possible to say, “Yes, this spending should be agreed with the devolved nations.” If the Government refuse to accept the amendment, they slightly give the game away.

I think there is a big picture here, which is that, as I said on Monday, all of us who believe in the United Kingdom must, I believe, go the extra mile to protect devolution. I think it is incredibly important. It is the key to keeping our United Kingdom together, in my view. While we welcome the removal of the offending parts of part 5, this Bill just does a bad job of doing that, I am afraid, and I think the other place is telling the Government that loud and clear. I am very struck, by the way, that the Conservatives who voted for the amendments yesterday—Lord Mackay of Clashfern and Lord Dunlop, to take two examples—are people who are steeped in this issue as Conservatives and are incredibly keen to protect both the devolution settlements and the Union.

I say to the Minister that we want the United Kingdom Internal Market Bill to reach the statute book. It must happen, however, in a way that does not ride roughshod over the way we are governed. I hope very much, for the sake of the United Kingdom and for the sake of respecting the devolution settlements, that the Government will reflect on this over the coming days.

In a nutshell, I am concerned about the fact that the Government have not insisted on this disagreement with respect to the notwithstanding clauses. I do not have time to go into all the detail, but I would simply say this. They remain needed, and I have put down amendments this afternoon to the Taxation (Post-transition Period) Bill for next week for the same reason.

The first thing is that this is to do with sovereignty and with judicial powers. It is to do with the fact that the notwithstanding clauses, with the use of the words “notwithstanding” and “whatsoever”, actually deal with the job effectively, and we should not take them away when we do not even know what the text from the Joint Committee is and we have just in effect been told that decisions are taken. There is this new clause talking about guidance. Guidance on what—on what agreement? We have not seen it, and we do not know what it means. I shall therefore almost certainly abstain on that at the very least.

The second thing is the question of what the right hon. Member for Orkney and Shetland (Mr Carmichael) said yesterday—he knew perfectly well when he used the word “Factortame” what he meant. It is what I have been talking about in respect of, for example, the quashing of Acts of Parliament: the ability of the courts under the rubric of European law to be able to take action to strike down UK law. Those principles may be retained—indeed, I believe it is more than possible that that would actually happen. There is a necessity to ensure that it does not happen when we have had a referendum, we have had Acts of Parliament and we have had section 38 of the European Union (Withdrawal Act) passed, all of which enables us to be able to provide for these notwithstanding clauses.

We should not remove these clauses on the basis of a jeu d’esprit or leave them out on the basis that everything is now all right in respect of these absurd allegations over breaches of international law, which are complete nonsense. Nobody has put forward a single argument in the House of Lords to substantiate the allegation that there is a breach of international law. In fact, the reality is that article 46 of the Vienna convention deals with these matters, and it is therefore perfectly proper for us to keep the clauses. I believe that we need to retain them not just as a safety net or as belt and braces, but because it may well turn out to be necessary to avoid, for example, either the House of Lords or the courts, in extremis, taking action the effect of which would be to undermine the Brexit process. That is the key issue. It is about sovereignty, which the British people have made clear is what they want—the same applies to the red wall seats, as the Labour party knows only too well.

The bottom line, therefore, is that I want an assurance from the Minister that measures will be taken in legislation—in primary legislation—to restore those notwithstanding clauses. I have discussed this with our team in the Whips Office today. I hope the Minister will simply say, “Yes, we will take note of what my hon. Friend has said, and indeed will give effect to it if we find that, at the end of this weekend, it is necessary to return those clauses to the taxation Bill and also, if necessary, to this Bill,” but without prejudicing the safety of the United Kingdom Internal Market Bill in its entirety as it stands at the moment.

This shabby, shambolic, pernicious Bill should never have seen the light of day. It has already been delivered a historic defeat in the Lords—they rightly tore it apart—yet this Government overturned all their amendments and sent the Bill back. No sooner had they done that than there came the press release—as ever, bypassing this House—to say that the Government would be retreating from breaking international law with clauses that should never have been in the Bill in the first place, and that have only served further to diminish this Government and the UK’s already tattered international reputation. They are now reinstating these amendments.

Of course, it is not just the other place that this Tory Government ignore; it is almost everybody. When it comes to devolution and the nations of the UK, they are still determined to ignore the democratically elected Parliaments. As we have already heard, both the Scottish Parliament and the Welsh Senedd have voted to withhold legislative consent on this Bill, yet this Government say that it is about working with the devolved Governments. It is not.

Lords amendments 48B and 48C pretty much deal with the shared prosperity fund that we have heard about. Under these amendments, the Government would have to agree with the devolved Governments on the way in which and where funds would be spent for matters within the devolved competences—roads, health and education, for example. The Government have said that the devolved nations will be represented, but Lord Thomas did not fall for that smoke and mirrors approach from the UK Government. He noted that,

“the clause without my amendments would enable the UK Government to spend in devolved fields and bypass the devolved Governments and Parliaments in Scotland, Wales and Northern Ireland who have been elected to be responsible for those fields. It would, in effect, hollow out the devolution settlements.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1293.]

It is disgraceful that we still do not have details of the shared prosperity fund, just weeks before we leave the EU. I was asking about this in 2017, and we have still not had anything from the Government.

Lords amendments 50B and 50C set out an attempt to agree a common framework, which is a regime that can govern the control of subsidies. Lord Thomas warned that, without this,

“Having changed the settlement for a policy that they have not yet devised, the Government then wish simply to consult…and then announce their decision. That is what I would call ‘way one’—the UK Government way.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1309.]

The SNP will not accept this brazen power grab. State aid must remain a devolved competence.

We welcome the changes through motion C1 in the Lords. The amendment removes the law-breaking clauses from part 5 of the Bill. Lord Judge said:

“They were constitutionally improper and a constitutional aberration. They subverted the rule of law.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1277.]

They have even been knocked down by former Tory leader, Lord Howard.

I am not going to take interventions. We are very short on time, so I am going to press on; sorry.

Lords amendments 8B to 8L, 13A and 56A require the Secretary of State to seek the consent of the devolved Administrations before exercising the powers, setting a time limit for that and a process if consent is withheld. Lord Stevenson said:

“The purpose of our amendment is to preserve the potential for managed policy divergence that is central to the devolution settlement.”

Again, the UK Government just ignore that. Lord Stevenson also noted:

“The Government have failed to explain properly why their list of exceptions is so much more restrictive than that of the EU—well, we can probably work that one out”. —[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1268-69.]

Let us not forget that this covers a huge range of effects for people in Scotland, Wales and Northern Ireland:

“environmental standards and protection…animal welfare…consumer standards, including digital and artificial intelligence privacy rights…employment rights and protections…health and life of humans, animals or plants…protection of public health…equality entitlements, rights and protections.”

It has a massive impact on Scottish public society.

Lords amendments 1B, 1C and 1D seek to protect the role of the common frameworks in the Bill. The Minister thanked Lord Hope, but he was the one who pointed out that

“if there really is a will on the Government’s part to make this system work, a solution can be found.”

He also said:

“Traders from other parts of the UK who had no regard for the higher standard could simply ignore it, irrespective of how simple and easy it was to comply with. That is not where we should be going.”

He concluded:

“A balance needs to be struck here, if devolution is to be respected.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1249-50.]

Time after time after time, Members of the Lords pointed out the massive disrespect and contempt the Government have for the devolution settlement. Baroness Hayter of Kentish Town warned the Government

“to be very careful about clawing back decisions from our now quite long-established devolved settlements.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1256.]

The Scottish Government, by the way, remain fully committed to the common frameworks process, as this Minister knows. I cannot use the language I would like to use in this House about what the Minister repeated, but he knows that the Scottish Government have remained 100% committed to the agreement that was set up to take the process through, and he should correct the record.

This Bill is unwanted and unwarranted and unashamedly undermines devolution. It is an attack on the democratically elected Scottish Parliament and the vast majority of the Scottish public who value it. Since 2014, promises to them have been routinely broken in this place. Their votes and their views have been ignored over Brexit. Now, Scotland will be the only country not to get what it voted for in that referendum. They will in the next one. They know that. The only way to protect their rights and their Parliament is for them to take the next logical step and for Scotland to become an independent nation.

I welcome the fact that the Government have accepted that it was unwise, if I can put it charitably, to have certain clauses in this Bill that might have impugned our international reputation for supporting the rule of law. I welcome the Minister’s approach and that of his colleague Lord True in the other place. The Bill is better off without those clauses. I had sought at the very least to ensure there was a parliamentary lock should such clauses ever be needed, but I hope that through the agreement achieved in the Joint Committee, thanks to the work of my right hon. Friend the Chancellor of the Duchy of Lancaster, they are not needed at all. It is better, therefore, to leave the Bill clean in that way to serve the other important purposes that it does have to achieve.

That is why, with all due respect to my hon. Friend the Member for Stone (Sir William Cash), I trust that the Minister and colleagues will firmly resist any temptation to try to reinstate such clauses, which would be unnecessary, provocative in more ways than one, and unhelpful to the purpose we all seek to achieve.

I read with care the speeches of two former Lord Chief Justices and the former leader of my party, my noble Friend Lord Howard of Lympne, who himself was a distinguished Queen’s counsel with many years in practice before he came into this place. They certainly were not talking nonsense; they were making legitimate and fair points about areas of concern, even though I perhaps was more content to go with the view of David Wolfson QC, who was quoted by Lord Naseby, that the taking of such clauses into the Bill was not of itself a breach of international law until such time as they were brought into force. We are none the less better off not going down that route, so I hope the Minister will resist any temptation to put anything of that kind back into this Bill or into the Taxation (Post-transition Period) Bill, because that would muddy the waters needlessly, legally and politically.

We are going to require political goodwill on all sides to make the coming days and weeks work. Were it ever to be necessary to take such extreme measures in such extreme circumstances that might occur, immediate primary legislation on an emergency basis could of course be done, and that would give the parliamentary lock that I was concerned should exist, but through another form. It is not necessary for us to go down that route now, because, frankly, to try to reinstate the clauses would be fatal to the progress of the Bill, and that would not be in the interests of the Government or anyone else. I thank the Minister for the way in which he and his colleagues have approached this matter.

Nobody else has been giving way, with every respect to my hon. Friend. Other people want to get in. I have said what I have to say. In fairness, he and I could happily go on all day about this in a friendly manner of disagreement, but I think possibly that is for outside the Chamber, rather than in it. I say that in the nicest possible way.

I am pleased to have the opportunity to speak today, having been unable to do so on Monday.

Because of the international law-breaking clauses, I believe that insufficient attention has been given to how this Bill affects the devolution settlements, which is a matter of great regret. Throughout its passage, my colleagues and I have been keen to work constructively on that aspect. Now that the law-breaking parts have been taken out of the legislation, I hope we can ensure that the voices of the devolved nations are listened to.

At earlier stages I tabled amendments to ensure that the devolved Administrations had input into the membership of the Competition and Markets Authority, following the precedent set by the Scotland Act 1998. The Lords have made amendments to the common framework and the functioning of the Office for the Internal Market, and on engagement with the devolved Administrations—amendments that build on the devolution settlement rather than undermine it.

I have found the Government’s rationale for refusing these changes to be highly frustrating. A case in point is the interaction between the common frameworks and the UK internal market. Why do we need this legislation when the common market frameworks have buy-in from all the devolved nations? The Government tell us it is because the internal market deals with cross-sector issues, whereas the common frameworks deal with specific sectors. Yet when the Minister appeared before the Scottish Affairs Committee, I asked him whether he could give an example of a cross-sector issue that the Bill will help to solve. He could not. When he wrote to the Committee on this matter—I am grateful to him for doing so—he said:

“We would refer you to pages 81-83 of the White Paper, which sketch out a cross-sector example in the form of an illustrative supply chain in the agri-food area.”

I think that says it all. The Government cannot provide a real-life example of an affected product that is cross-sector. Indeed, the implication in the White Paper is that there are no common frameworks in those different sectors. I do not see how, if the common frameworks are in place, there should be an impact. Therefore, there is no need for the Bill’s provisions.

The Government’s refusal to support Lords amendments on common frameworks, in particular amendments 1B, 1C and 1D, is therefore frustrating, but I am also concerned by the Minister’s response to the Committee on the role of the Office for the Internal Market, which will have huge powers. The worry is that parties involved in trade deals—the example I gave in the Committee was that of US investors—could sue the devolved Administrations or indeed the CMA. The Minister’s response to that point was:

“The CMA is therefore able to accept reporting requests from bodies and individuals with relevant concerns connected to”

the operation of the internal market,

“including those from outside of the UK.”

Although the letter then suggests that such reports would not interfere in devolved competences, can the Minister confirm that, by submitting a request to the CMA, foreign investors could potentially interfere with devolved Administrations? If the CMA refuses such a request, could those foreign investors then challenge that in the court?

The Minister has insisted that is not a political Bill, but given that the Paymaster General just this morning was unable to confirm to me whether the Government would bring forward international law-breaching clauses in future business, such as the Taxation (Post-transition Period) Bill, which the hon. Member for Bromley and Chislehurst (Sir Robert Neill) referred to, if the outcome of the EU negotiations is no deal, then it is clearly nothing but.

First, I welcome the fact that the provisions in clauses 42 and 43 safeguarding Northern Ireland’s position within the internal market and its unfettered access to that internal market, and also within the customs union, have been maintained. I am not grateful to the Lords that they have not removed them; it would have been a scandal if they had decided to abandon Northern Ireland in that way.

However, I say to the Minister that if we are maintaining those clauses to safeguard Northern Ireland’s position within the UK market, with unfettered access, and the UK customs territory, thereby ensuring no barriers to trade in the form of tariffs and so on, then the means to deliver that must be in place, because it is still under threat, regardless of the agreement reached in the Joint Committee. Some of these issues are under review. Some businesses in Northern Ireland will still be subject to EU tariffs; therefore, there is a tariff barrier between Northern Ireland and GB. The means of safeguarding and delivering on the commitments made in the Bill are therefore important. What I am surprised about, though, is that the Government have accepted the Lords’ removal of the clauses on state aid.

The Chancellor of the Duchy of Lancaster made it quite clear yesterday that the state aid rules contained in the Northern Ireland protocol will still apply to firms based in GB if, to use his words, they have a “genuine and direct link” to Northern Ireland. This applies to any firm that supplies goods to Northern Ireland, whether they be from Scotland, England or Wales, so all Members should be concerned about this. If it is deemed that any support to those firms falls foul of EU state aid rules, Brussels can challenge it and the European Court of Justice can make the final decision as to whether that intervention and support by the UK Government is appropriate. Indeed, it can impose sanctions if it is not and demand that it be stopped. That covers a whole range of fiscal support: support under the Industrial Strategy; support under infrastructure spend; support for research and development, and so on.

How does the Minister intend to safeguard UK sovereignty in that particular case now that he has accepted that the Lords amendments to have those clauses removed are appropriate? From Northern Ireland’s point of view, while we have some of the agreements through the Joint Committee and some of the protocol has been blunted, nevertheless there are still significant intrusions in Northern Ireland. We have to see how, in practice, some of the agreements that were announced yesterday will be applied, but the Minister has to deal with the issue that the EU still has a substantial foot in the door through the Northern Ireland protocol. Indeed, he has opened that door wider by accepting the Lords amendments.

We all know the Prime Minister does not believe in devolution, and neither does the Leader of the House, who made more derogatory comments about it this morning. In fact, over the years, the Prime Minister’s comments are nothing less than anti-Scottish. I accept that the Government do believe in an abstract of the Union, but more important to them is Westminster sovereignty and the fact that we in the devolved nations should do what we are told and be grateful. It is quite clear that there is a huge resentment that the people of Scotland and the people of Wales vote for Governments who are non-Tory.

If this Government have any scintilla of respect for the Union and for devolution, they would accept these regional amendments that have come back from the House of Lords. Instead, what we have heard from the Minister is platitudes about collaboration and working with the Government, but in actual fact the Government will not allow the devolved Administrations to have consent. They will ignore the legislative consent motion votes in other Parliaments, so, actually, that is Westminster imposing its will on the devolved nations yet again.

Amendment 48 seeks to ensure that any Westminster spend in devolved areas is undertaken with the consent of the devolved Governments. What is there to argue about that? If we are talking collaboration, the Government should just accept this simple, reasonable amendment. The Scottish Tories always tell us that they want both Governments of Scotland to work together—as they call it. We were promised the best of both worlds in 2014. Well, this simple amendment would make a statement about the fact that the Tory Government are willing to work in collaboration with the devolved Administrations and show them the respect that they deserve.

If the Scottish and Welsh Tory MPs vote to strike out the amendment, they should hang their heads in shame, and it would show that it is all bluff and bluster when it comes to respecting devolution. In fact, doing so is confirmation of the Lords assessment that devolution is simply an inconvenience to the Tories and they are ignoring the advice from Lord Dunlop not to use their own votes to overturn these Lords amendments. It is absolutely disgraceful that we still do not know what the shared prosperity fund will look like. Again, the word “shared” seems a bit of a misnomer, given the attitude of the Tory Government. Why are we moving into a consultation phase after all these years? It is a disgrace that they have mucked about and mucked about, and nobody knows what will replace these vital European funds—funds that have helped many regions in Scotland to make up for a lack of spending from Westminster over the years.

If the Government do not agree to the formalisation of common frameworks, once again, that shows there is no real intent to work collaboratively with the devolved Administrations. What is wrong with formalising common frameworks? The Minister saying that it will cause uncertainty beggars belief. It does the opposite of cause uncertainty—it provides a clear way forward for us to work together. It seems to me that, yet again, this is another way for Westminster to impose its will on the devolved Administrations.

We know that there are too many free marketeers in the Government, and the fact that they will not allow state aid to be devolved or to be part of common frameworks suggests to me that there will be a race to the bottom in the future, when this Tory Government pull subsidies. There is a pretence at the moment that the argument with the EU is about how the Government want to provide more state aid—who’s kidding who? We know that in the long run, free marketeer rules will win, so it has nothing to do with supporting industry.

We have had 313 years of the Union and Westminster rule. We have only had 20 years of devolution. It is now clear to more and more people what has had the biggest impact on inequality and holding Scotland back, and it is not the 20 years of devolution. We look forward to independence, because more and more people realise that it is the only way forward.

It is a pleasure to follow my hon. Friend the Member for Kilmarnock and Loudoun (Alan Brown). I rise to support the Lords amendments in respect of devolution. Northern Ireland is allegedly sorted out now, and the international lawbreaking parts of the Bill have gone, but what of Scotland? According to the Chancellor of the Duchy of Lancaster, businesses in Northern Ireland will enjoy “the best of both worlds”: access to the single market and, at the same time, unfettered access to the rest of the UK market. Presumably this means that when Scotland becomes independent and a member of the European Union, Scotland too could have the best of both worlds: access to the single market and to the rest of the UK market, with no hard border and no infrastructure on the border. We shall see, but one thing is for sure: the Conservative party can never again be allowed to get away with claiming that Scottish independence means that a hard border with England is inevitable.

Scotland has yet to vote for independence, but that is only a matter of time. In the meantime, we want to protect what we have. Scotland did not vote for Brexit, but Scotland did vote for devolution in very significant numbers in 1997. This House should not use Brexit, which Scotland did not vote for, to undermine devolution, which we did vote for. The Lords amendments are designed to protect some of the essentials of the devolved settlement. It is very telling that Lord Hope, who I count as a friend and who is a former Lord President of the Court of Session, former Deputy President of the UK Supreme Court and also a Unionist, said that initially, when he heard SNP politicians talking about a power grab, he thought it was an exaggeration, but after reading the Bill, he agreed with us. That is not a nationalist—that is a Unionist, so Government Members would be wise to listen up.

Others in the Lords did not fall for the Government’s sleight of hand in the Bill either. As my hon. Friend the Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry) said, Lord Thomas said yesterday:

“the clause without my amendments would enable the UK Government to spend in devolved fields and bypass the devolved Governments and Parliaments in Scotland, Wales and Northern Ireland who have been elected to be responsible for those fields. It would, in effect, hollow out the devolution settlements.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1294.]

Lord Adonis warned:

“This Bill is deliberately intended to cut across and undermine the devolution settlements because the Prime Minister does not agree with them”.—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1294.]

The game’s up, and Government Members should realise that the heads of voters in Scotland do not zip up the back. Devolution is very popular in Scotland across parties. It is supported by the vast majority of voters in Scotland. Even some Scottish Conservatives—some, not all—support the current devolved settlement. Donald Dewar set it out carefully, making a delineation between reserved and devolved powers, and that is what this Bill is driving a coach and horses through. We must not forget today that Scotland’s Parliament—the democratically elected voice of Scotland’s people—has voted against the Bill by a margin of 90 to 28 MSPs.

I say to the Minister that we are sick to the back teeth of the Government’s disingenuous words, saying that they listen to the Scottish Government. Listening is not enough; they have to have respect for the democratic voice of Scotland, which is expressed through our Parliament. Our Parliament has said it does not want this Bill, and if the Government do not listen, then a vote for independence is inevitable. I say, “Bring it on.”

Thank you very much, Mr Deputy Speaker. It is a pleasure to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry). The Government’s position throughout this Bill, as it is on every other piece of legislation, is directed at an audience. The audience that was listening to their intentions to break international law was an international audience. While of course it is welcome that those clauses have been withdrawn, it is ludicrous that they were ever on the table in the first place. International opinion of the United Kingdom has been measurably affected by that as a consequence.

The fact that Britain is a country that is prepared to break its word and break international law so flagrantly—for whatever purpose Government Members might think they have behind that—is heard, noticed and remembered. As a consequence, Britain’s standing in the world is reduced, Britain’s influence in the world is reduced and Britain’s sovereignty is reduced. That is why the sovereignty myth being peddled by the Government at the moment is so far off the mark of reality.

I will focus my comments in the moments ahead of me on the issues to do with mutual recognition and the differences between the four nations of the United Kingdom. Mutual recognition is embedded in this Bill and we seek to remove it, because it is about setting the United Kingdom’s formal negotiating position using the standards that are the lowest among the four nations. As we go and have a negotiation on food, farming and other trade issues with other countries, we will use the standards of whichever of the four nations has the lowest as the common standard across the United Kingdom.

That is appalling for two reasons. It is a race to the bottom when it comes to standards in agriculture and in other matters as well, and it is a threat to the integrity and the survival of the United Kingdom. Both those realities hurt my communities in Cumbria, first because of the impact on farming. The fact that the British Government continue to refuse to write into legislation minimum standards—particularly on animal welfare and environmental standards—leaves our farmers open to being undercut by cheap imports from other countries; people talk in particular about the United States, but there are other deals as well.

That is hugely damaging to our proud record of high-quality animal welfare and environmental standards and ethics in this country. Alongside that, the Government’s decision in 28 days or so to start removing a vast chunk of farm incomes in England through the basic payment scheme undermines family farming in this country to the extent that it will reduce our capacity to feed ourselves and fundamentally change the landscape of places such as the Lake District. That is wrong, and we need to ensure that those standards—our proud, high British agricultural standards—are written into statute.

However, from my perspective and that of most people here, it is also massively regrettable in how it undermines the integrity of the United Kingdom. In Cumbria, we share a border with Scotland. Animals raised in Dumfriesshire are sold at market in Cumbria, and animals raised in Cumbria are sold at market in Dumfriesshire. The border is pretty meaningless to most of us on either side of it. To undermine the integrity of the United Kingdom in this way, and to play into the hands of those who would want the United Kingdom to be split up, is utter folly from the Government. Some 95% of Cumbrian farm exports are to the single market, but the single market that matters most to us is the United Kingdom single market. My great fear is that Conservative Members increasingly know little, and care less, about what it would take to keep the United Kingdom together.

I run the risk of offending some people around me, but I say this to the English nationalists on the Government Benches whose modus operandi to win the elections of the past few years has been to blame all the ills of the country on people outside our borders: that has done you a lot of good in terms of electoral results in recent years, but it can happen to you in reverse, as nationalists north of the border point to the nationalists on your Front Bench and decide to make a call that it is time to end the Union. That is why we need to uphold the Lords amendments: because we believe in the future of the United Kingdom.

I appreciate everybody who has taken the time to speak today. My hon. Friend the Member for Stone (Sir William Cash) spoke about the “notwithstanding” paragraphs in the Bill. Clearly, we have made the arrangements. We have found an agreement with the Joint Committee, and I sincerely hope that that will continue through to the next stage, which will be getting a free trade deal, on which the Prime Minister is working very hard with Lord Frost and his counterparts in Brussels. We will always make sure that we look after unfettered access for Northern Ireland into GB, which comes to the points that my hon. Friend made.

I did ask for an assurance in general terms that the necessary measures would be taken in primary legislation if things were to go wrong for the future. That is all I am asking for. It is not very much, but it is really important in relation to the potential striking down in legislation.

I appreciate what my hon. Friend says. I think we will give the appropriate measures and protections, whatever form that comes as—if it is indeed needed; I hope that it is never needed in the first place. We will look to make sure that we protect Northern Ireland and its unfettered access.

My hon. Friend talked about state aid rules in Northern Ireland. They will apply to Northern Ireland as agreed under the withdrawal agreement and the Northern Ireland protocol, but they are not the same state aid rules that apply today, because there are new flexibilities of service providers. We welcome that agreement in principle in the Joint Committee, which was about managing the risk of reach-back into Great Britain and guards against the Commission taking an extreme or irrational interpretation of article 10 of the protocol. That means that there is no longer a need for the safety net.

The hon. Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry) talked about the common frameworks and Scotland’s involvement. I hope I was correct in saying that I believed that the Scottish Government pulled away from discussions about the internal market, not common frameworks. I hope that is clear; if I did mis-speak, that was exactly what I meant to say.

We have now had 90 hours of scrutiny on this Bill across both Houses. I reiterate that I am grateful for how right hon. and hon. Members in this place have debated, scrutinised and engaged on the Bill. I said on Monday and again emphasise that we have been and will continue to be reasonable in discussions on this Bill. Since Monday, we have had a lot of good, positive movement and agreement and we welcome that, but ultimately, Government need to balance this with the need to deliver a Bill that provides the certainty that business wants and needs to invest and create jobs.

Perhaps somebody from the SNP could inform the Chair privately who its Tellers might be, should they go afterwards.

Question put.


That this House disagrees with the Lords in their Amendments Nos. 1B, 1C and 1D.

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.

More than one hour having elapsed since the commencement of proceedings on the Lords message, the proceedings were interrupted (Programme Order, 14 September).

The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83G).

Motion made, and Question put,

That this House agrees with the Lords in their amendments 8B, 8C, 8D, 8F, 8G, 8H, 8J and 8K, but disagrees with the Lords in their amendment 8L, insists on its disagreement with the Lords in their amendments 13 and 56, and proposes amendment (a) to the Bill in lieu of Lords amendments 8L, 13 and 56.—(David Duguid.)


That this House agrees with the Lords in their amendments 8B, 8C, 8D, 8F, 8G, 8H, 8J and 8K, but disagrees with the Lords in their amendment 8L, insists on its disagreement with the Lords in their amendments 13 and 56, and proposes amendment (a) to the Bill in lieu of Lords amendments 8L, 13 and 56.

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.


That this House insists on its disagreement with the Lords in their Amendments Nos. 14 and 52 to 54 but does not insist on its disagreement with the Lords in their Amendment No. 55.—(David Duguid.)


That this House does not insist on its disagreement with the Lords in their Amendment No. 44.—(David Duguid.)


That this House does not insist on its disagreement with the Lords in their Amendment No. 45, and proposes amendment (a) instead of the words left out by the Lords Amendment.—(David Duguid.)


That this House does not insist on its disagreement with the Lords in their Amendment No. 47, and proposes Amendment (a) to the Bill consequential upon the Lords Amendment.—(David Duguid.)

Motion made, and Question put,

That this House disagrees with the Lords in their Amendments Nos. 48B and 48C.—(David Duguid.)


That this House disagrees with the Lords in their Amendments Nos. 48B and 48C.

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.


That this House agrees with the Lords in their amendment 50B, but disagrees with the Lords in their amendment 50C.—(Rebecca Harris.)

Remaining Lords amendment agreed to.

Ordered, That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments 1B, 1C and 1D; insisting on the Commons disagreement with the Lords in their amendments 14, 52, 53 and 54; and disagreeing with the Lords in their amendments 48B, 48C and 50C.

That Paul Scully, Eddie Hughes, Jo Gideon, Mark Fletcher, Jessica Morden, Gill Furniss and Drew Hendry be members of the Committee.

That Paul Scully be the Chair of the Committee.

That three be the quorum of the Committee.

That the Committee do withdraw immediately.—(Rebecca Harris.)

Committee to withdraw immediately; reasons to be reported and communicated to the Lords.

In order to observe social distancing, the Reasons Committee will meet in Committee Room 11.

We will not be suspending, because the Dispatch Boxes were sanitised during one of the Divisions.