House of Lords
Monday 14 December 2020
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Salisbury via video call.
Arrangement of Business
The following Acts were given Royal Assent:
Private International Law (Implementation of Agreements) Act 2020,
Parliamentary Constituencies Act 2020.
Arrangement of Business
My Lords, the role of the climate change committee in providing independent expert advice to government is widely accepted as global best practice. Following the committee’s advice, in June 2019 the Government set a target to achieve net zero by 2050. We are very grateful for the committee’s recently published advice on the sixth carbon budget, which we will of course consider carefully ahead of setting it in legislation next year, as required by the Climate Change Act.
My Lords, the Prime Minister’s commitment to reduce carbon emissions from 57% of 1990 levels to 32% by 2030 is the same as the target set out in the committee’s Sixth Carbon Budget report. To deliver it requires a centrally led, comprehensive strategy and timetable for the current Parliament—preferably one that accepts that it can be delivered in 10 years only with decarbonisation technologies already at maturity. Do the Government have such a strategy? Will it be published? And will the Government find time to debate the reports of the Committee on Climate Change?
Whether time will be allowed is of course not a matter for me, but I will pass that on to the Chief Whip. Strategies, or elements of them, are being published today in the energy White Paper. A hydrogen strategy and a heat and building decarbonisation strategy are to come, so we are conscious of our responsibilities in this regard.
My Lords, the Government have made a number of statements, which, with the 10-point plan and the upping of the nationally defined contributions to the Paris Agreement, are very welcome. The Government’s manifesto commits to planting 30,000 hectares of trees per year. That is a really key target to aim for in relation to the climate change committee’s report, but it is one that we have missed by 71% in the last year and consistently over previous years. I much admire the Prime Minister’s ambition, but how are the Government to ensure that performance exceeds or matches that ambition?
The right reverend Prelate is of course correct to point out that meeting these commitments will be a difficult, long-term task. It will require commitment from government and also from Parliament, local government and other stakeholders, but it is a challenge that we are rising to.
My Lords, how many meetings do my noble friend and his ministerial colleagues have with the chairman and members of the climate change committee? Is the committee monitoring trade agreements to ensure their compliance with climate change obligations?
I declare my interest as a director of Peers for the Planet. Nearly half the recommendations made by the climate change committee require some kind of behaviour change by the general public, yet a recent BEIS survey showed that only 5% of people understand in detail what net zero even means. What concrete plans do the Government have to urgently educate citizens about actions that they should take in order to reach government targets?
The noble Baroness is of course correct to highlight the importance of behavioural change. Getting to net zero will require action from everyone—as I said earlier, people, businesses and governments—across the whole of the UK. It is vital to engage the public in this debate on the challenge, and we intend to do that in the run-up to COP 26 later next year.
My Lords, I welcome the fact that the Government are ending support for fossil-fuel projects in developing countries, but here at home the Oil and Gas Authority’s remit remains to extract every last drop through its “maximising economic revenue” policy. Does the Minister agree that this is incompatible with the Climate Change Act and our leadership of COP 26 next year? Will he and the Government support my Private Member’s Bill, the Petroleum (Amendment) Bill, which seeks to rectify this?
Given the Committee on Climate Change’s recommended target of a 78% emissions cut by 2035 in its report on the sixth carbon budget, can the Minister confirm whether the Government will now raise their national determined contribution commitment to COP 26 policies to align with that?
My Lords, I want to follow up the question from the noble Baroness, Lady Lane-Fox, about behaviour change. The CCC said that the majority of the things we have to do are going to require buy-in from the public. The Minister has said to me previously that the Cabinet Office had set up a dedicated engagement team for COP 26 but I have not yet seen anything about any actions by it apart from a general endorsement for businesses to race towards zero. That is very good, but what about the public? Will the Minister update the House on the progress of this team? I am sure the noble Baroness, Lady Lane-Fox, and I would be delighted to meet him if there is more information that he could give us on its progress.
I am pleased that the noble Baroness recognises the importance of public engagement, and I totally agree with her. Obviously we have been in the middle of a global pandemic so it has been very difficult for the engagement team to do its job properly in terms of engaging with the public, but she can rely on the fact that we have some ambitious plans to engage with the public before COP next year.
My Lords, heat pumps, offshore wind and installing installation at scale are all recommendations from the Committee on Climate Change, which does excellent work. These will help to create jobs and apprenticeships as well as helping us to get to net zero. The Government have certainly adopted this agenda but now they need to consider a serious step change in order to pursue it. Will my noble friend pursue these policies with even more vigour?
My noble friend makes a very good point; we will indeed. We already have the largest offshore wind capacity in the world, I think—certainly in Europe. We are world leaders in that technology and the costs have fallen massively. We will be conducting another contracts for difference auction shortly, and I think we will see even more ambitious progress. The targets have been set out and the money provided, and we are well on the way to meeting them.
My Lords, the Committee on Climate Change must be congratulated on producing a detailed achievable road map to net zero by 2050. It is now up to the Government to put in place the right policies to give investor confidence to the private sector and get the money flowing. When will the Government deliver the investment road map?
We only received the report from the committee a few days ago and we will be studying it carefully. We are providing lots of investment in this area. We have the Prime Minister’s 10-point plan, delivering something like £12 billion of public investment and hopefully leveraging three times as much private money. We have investments in the green homes grant and a number of other schemes, so we recognise the challenge. As I am sure the noble Baroness will recognise, public finances are quite tight at the moment, but I think we have an excellent record of providing the money to meet our ambitions.
Repair and Reuse Programmes
My Lords, our resources and waste strategy for England outlines actions on reuse and repair. It will be supplemented by a new waste prevention programme to be published for consultation early next year. My department liaises regularly with the devolved Administrations on resources and waste policy. For example, in our landmark Environment Bill we are seeking powers related to making products easier to reuse, repair and recycle, which will be available to all four nations.
As the Minister is aware, Scotland is very committed in this sphere. Something like 88,000 tonnes of material have gone to repair and reuse. It is good for employment as 6,000 people are employed, and it is good for the economy in Scotland, with something like £244 million going into it. I am not convinced that England is assigning it the same priority as Scotland and Wales. Would the Government be willing to commission a feasibility study to see what might be possible by way of repair and reuse in England?
I disagree with the noble and right reverend Lord’s suggestion that the Government are not taking this issue as seriously as they should. We have made huge progress in the last few months alone. The time I have does not allow me to list all that progress but, in addition to the environmental benefits of repair and reuse, it is worth adding that reusing and repairing also saves people money, with the reuse sector estimated to have saved low-income households over £468 million in 2019. Growing the reuse and repair sector can support the revival of high streets and the levelling up of our towns and cities by providing high-quality jobs across the country. It is a priority for this Government.
My Lords, I thank the Minister, but it is now more than a decade since Scotland first introduced the Zero Waste Plan. There are reuse programmes in England, often run by local partnerships, including councils. However, at least up to this point, their size and scope varies and, crucially, they are not adequately supported by the Government. Are the Government reviewing the Scottish experience and, if so, what lessons does the Minister believe have been learned from it?
My Lords, we work very closely with all the devolved Administrations and are permanently looking for ways to improve our approach to tackling waste issues. I point the noble Lord to the Environment Bill, which will shortly be coming to this House. It includes clauses that will enable us to introduce secondary legislation on product design; for example, to support durable, repairable, recyclable products. It will also enable us to introduce extended producer-responsibility schemes for a whole range of products, which will also encourage manufacturers to ensure that the products they make are designed to be recycled, reused or repaired.
My Lords, the European Union has committed to establishing a right to repair, guaranteeing consumers the availability of spare parts or access to repair. Will the Government’s long-delayed consultation on the waste prevention programme offer English consumers the same?
The new waste prevention programme has been delayed. I simply point to the pandemic, which has delayed much of our progress on this and many other issues; in addition, the date that the waste prevention programme was due for release coincided with the last general election and purdah rules. However, we have developed a new draft waste prevention programme for consultation. It will include a range of measures, including to encourage more reuse and repair. It is due to be launched in the next few months and will reflect a very serious ambition on the part of the Government to move towards a zero-waste or circular economy.
My Lords, the older generation have always repaired and reused. It is good that the younger generation—including my grandchildren, who are now mostly in their 20s—are very keen to repair and reuse as part of their commitment to the environment. The BBC has taught many people how to do things for themselves and make things, sometimes from things that are being reused. Can the Minister assure me that the Government will encourage these activities?
I can certainly give that commitment on behalf of the Government. We are absolutely committed to providing whatever support is necessary to shift gear—to move towards a situation where we no longer live in a throwaway economy and products are designed to be reused, recycled or repaired. There is a whole range of areas where this needs to happen, whether it is microplastic or plastic pollution, single-use coffee cups, construction waste, food waste, fast fashion, or so many other areas besides, each of which is getting the attention that it merits in my department. As I said earlier, our legislative approach to tackling this issue will reflect a very serious ambition to move towards a zero-waste economy.
My Lords, the repair and reuse initiatives in Scotland and Wales are welcome but we are way behind countries such as India, where repair and reuse make an important contribution to the economy. Will the Minister consider adapting Scotland’s Revolve hubs and introduce other initiatives, such as reducing VAT on products made from recycled materials, in moving us to more responsible living?
One of the prime focuses of the waste strategy—as well as the Environment Bill, which will be coming forward shortly—is to move to a situation where we are not using materials that are not recyclable. We will be using a whole range of tools to achieve that. For example, we are introducing a landmark tax—I think it is a world first—on packaging that does not have at least 30% recycled content. We are introducing extended producer responsibility across a whole range of products which, given that they would have to take on the full cost of disposal, will strongly incentivise producers and manufacturers not to use materials that cannot be recycled. That principle applies right the way through our approach to tackling waste. Waste is increasingly becoming a direct financial liability; as a consequence, manufacturers will be more thoughtful with regard to what they produce and how they produce it.
My Lords, I want to return the Minister to the right to repair. What action do the Government propose to take in the Environment Bill against companies that deliberately design goods that cannot be repaired even when those repair facilities ought to be available? What specific proposals does the Minister have on that matter?
That is exactly the focus of the work that we are doing. The purpose of the Environment Bill and the overall waste strategy is precisely to tackle “built-in obsolescence”—the problem that products are designed and sold with the view that they can only be thrown away and end up in landfill. As I said, no single policy lever can deliver the change that we need, and a whole ecosystem of changes is reflected in the Environment Bill and in our broader waste strategy. Combined, these will have the effect that the noble Baroness is seeking.
Is the noble Lord aware of the amazing work being done by social enterprises in this field? They are not just making a huge contribution to the environment but providing jobs, often to people in very challenged circumstances. Are the Government doing anything to see how that sector can be helped to grow and develop?
That is a very important point. There are examples further afield, for example in Austria, where government subsidises the creation of repair centres, which are specifically designed to employ people defined as difficult to employ; that is something we are looking at. There are so many benefits of shifting towards a reuse, repair, recycle model—with regard not just to the environment or lessening our global environmental footprint but to the economy and job opportunities, often for people who struggle otherwise to secure employment.
My Lords, as one who has until recently, given Covid, spent a large proportion of my time split between London and Wales, the difference in the recycling level at home in Wales as compared to London has been very dramatically brought home to me. Clearly, lessons can be learned in comparing how such operations are undertaken in different places. Given that 20 years has gone by since devolution was set up, might there be a case for a systematic approach to considering the best lessons that can be learned from the devolved regimes to apply in England, and indeed vice versa?
That is absolutely right—there is much that can be learned and much information, advice and ideas that can be exchanged between the various nations. The Welsh Government are often credited with having funded reuse and repair, and rightly so, but we have done this as well. In May last year, the WRAP-administered Resource Action Fund received £18 million from the Government. It was launched to support resource efficiency projects with the goal of diverting, reducing and better managing waste. We will set up further measures to support reuse and repair in the forthcoming waste prevention programme. As I said, our ambition is very high in this regard, as it is in other parts of the United Kingdom.
Environmental Land Management Schemes
My Lords, I declare my farming interests as set out in the register. Plans for the ELM national pilot are progressing at pace. The pilot will build on the excellent work of 72 ongoing tests and trials, covering a wide range of sectors and geographies, including uplands, commons and tenant farmers. The pilot will extend over time. By 2022, it will cover all three components of the environmental land management scheme.
My Lords, I refer to the recent document, The Path to Sustainable Farming: An Agricultural Transition Plan, which sets out some of the ways in which this is going to be done. It is very welcome, although still very vague and lacking in the detail that farmers and lots of other people want. However, in all the areas—the three tiers of the sustainable farming incentive, local nature recovery and landscape recovery—certain public goods are almost completely absent. Those are the questions of public access and public education, particularly for young people. Will the Minister give a commitment that, in the national pilot that is going to be produced, building on the tests and trials, these matters will be given a prominent position in all three areas of the scheme?
My Lords, as we said in consideration of the Agriculture Bill, access will be part of the schemes, and work is under way in those areas. I look forward to working with your Lordships to ensure that there is a rollout of not only the environmental advancements but access where it will have considerable benefits for people.
Can the Minister please confirm that all the information gathered from the ELMS pilot tests and trials will in due course become available to the public? Can he also indicate when sufficient information will become available about eligibility for tree planting under the schemes, given that we are already half way through this planting season?
My Lords, on the tree policy, anyone signing up to a grant agreement to plant woodland now will not be unfairly disadvantaged when ELM is introduced. It is very important that we proceed with planting trees. I think my noble friend referred to transparency. Yes, the whole point about the pilot is to be clear about learning which areas work well and which do not. This is so that, when we roll out ELM in 2024, all of these features will mean that it will work satisfactorily and well.
My Lords, as the Minister is aware, many family farms in traditional livestock areas are going to find the transition from the current supported system to the new ELM scheme quite a challenge. Will he confirm that, in the pilots, there will be a specific targeting of livestock farms and that they will explore the challenges that these livestock farmers are likely to face?
My Lords, in brief, yes—but in the tests and trials it is very important that, for instance among tenant farmers, 62% were upland tenant farmers. We are working in areas where there is a very strong livestock farming tradition. We want that to continue, and that is why the tests and trials will be very important as we then move towards a national pilot, which will obviously include livestock farmers.
My Lords, I remind the House of my farming interests, as set out in the register. Since a high level of take-up is crucial to the success of the ELM scheme, will the Minister undertake not to repeat the errors of the countryside stewardship scheme, but make this one simple to join, flexible and, most importantly, with payment rates that are commercially attractive not just to the large-scale arable land manager but to small and medium-sized permanent pasture farms?
My Lords, I am a supporter of pastoral farming and can certainly confirm that the work we are doing, particularly the national pilot and the tests and trials, is to ensure that the payments will be fair but also attractive for farmers to take up on a wide participation. Clearly, our environmental goals cannot be achieved unless there is wide participation.
My Lords, the Government are rightly setting great store by the environmental land management scheme to protect and enhance the countryside, and to increase biodiversity. However, the NFU has begun a surreptitious campaign to relicense the use of neonicotinoids on farmland. This tactic is not likely to encourage the public to support the NFU’s “Back British Farming” campaign. Does the Minister believe that the NFU campaign is in line with the government’s ELMS biodiversity agenda?
My Lords, as to any consideration in emergency cases of neonicotinoids, we are always guided by the best scientific assessment available. We will continue to do that and if there was an emergency application, it would be considered according to the science. Obviously, integrated pest management and all those things is another area where advancing the environment is absolutely key.
My Lords, given that the rollout of the ELMS pilots is happening later than we would wish, can the Minister confirm that any money not spent in one year will be rolled over to the next, so that farmers will not be disadvantaged by any delays?
My Lords, I refer noble Lords to my entry in the register. My noble friend will be aware of the excellent work carried out by the Game & Wildlife Conservation Trust over many years and in many areas, advising on land, habitat and a wide range of other matters within the environmental umbrella. Is not that organisation the obvious choice to advise Ministers on the administration, sustainability, development and efficacy of ELMS in the future?
My Lords, does the Minister agree that some farmers, especially new entrants now receiving direct payments on arable land or pasture, could miss out after 2024? This could be if the land, as he says, is unsuitable for further stewardship, sustainable ELMS improvements or rewilding. Will they have to leave farming or will they, in that case, receive some form of compensation?
My Lords, I may need to look at Hansard to help the noble Earl. The new entrants’ support scheme, which we want to encourage, begins in 2022. The noble Earl may have been talking about retirement lump sums, but I think I had better get back to him as I was not quite sure of his question.
My Lords, what measures will the Government put in place to ensure the environmental standards that farmers receiving payment under the sustainable farming incentive scheme will have to meet will be higher than the standards already obligatory through legislation or cross-compliance, and that the scheme will be properly monitored to make sure that they are delivered? There is a slight feeling developing that there is a risk that the sustainable farming incentive will be watered down to become simply a financial support scheme for farmers—a sort of basic farm payment in disguise.
My Lords, I can confirm to the noble Baroness that, while clearly we need to safeguard public money, we also think that the bureaucracy involved in the CAP was not proportionate. We want to work collaboratively with farmers but, clearly, we also want to ensure that there is delivery of the environmental benefits that will and must be engaged by these schemes.
My Lords, in a very helpful reply to me on a recent Written Question on ELMS and advisory services, the Minister said that the Government would set up an institute for agriculture and horticulture. I welcome that, but will they locate that institute in Cornwall, which is such an excellent example of horticulture and farming?
Green Economic Recovery
My Lords, as we rebuild, we must build back greener. Last month, the Prime Minister announced our Ten Point Plan for a Green Industrial Revolution, spanning clean energy, buildings, transport, nature and innovative technologies. The plan will mobilise £12 billion of government investment to unlock three times as much private sector investment by 2030, level up regions across the UK, and support up to 90,000 highly skilled green jobs.
Further to that, could the Minister outline what consideration the Government have given to the incorporation of a national retrofit strategy as a key infrastructure priority and a core element of their industrial strategy?
The Government will publish a heat and buildings strategy in the coming months; this will set out the immediate actions that we will take to reduce emissions from buildings, including deploying energy-efficiency measures and transitioning to low-carbon heating.
Does the Minister agree that, as we come out of the pandemic, there is a real risk that we will revert to the kinds of economic practices that created the climate crisis in the first place? No economic conditions of an environmental nature seem to have been placed on the money that has been put into the economy during the pandemic, so can he give an assurance that as we approach the COP 26 climate talks in Glasgow next year we will look seriously at how we both address the economic inequalities that have been exposed by this crisis and create a green economy? Does he agree with me that that will require significant shifts in both government policy and investment strategy?
The energy White Paper published today talks about kick-starting the hydrogen economy. I warmly welcome this commitment. How will the Government ensure fair access across all parts of the United Kingdom to the net zero hydrogen fund and the other funding streams, not least research and development?
The noble Lord is quite right to point out the importance of low-carbon hydrogen, and, working with industry, we are aiming for 5 gigawatts of low-carbon hydrogen production capacity by 2030. We will try to ensure that all parts of the United Kingdom can benefit.
My Lords, I declare an interest, as I am the co-chair of the APPG on Islamic Finance. Islamic finance can play a role in the green industrial revolution. As we will issue our first sovereign green bonds in 2021, I ask my noble friend the Minister: will Her Majesty’s Government consider the issuance of green sovereign sukuks, which will help support a green economic recovery following the pandemic? I believe that our financial services sector will play a key role in the economic recovery.
As the noble Lord rightly acknowledges, next year the UK will issue its first sovereign green bonds, subject to market conditions, and it intends to follow up with a series of further issuances to meet growing investor demand. However, this is a matter for the Treasury, whose Ministers will update Parliament shortly.
My Lords, first, I draw attention to my registered interests in renewable heat and sustainable development. Will the Minister acknowledge that the present taxation system fails to reflect the shift in the carbon intensity of energy, with sustainable electricity—and, indeed, electricity in general, which is now much more low-carbon—costing four times, per kilowatt, what gas now does? Is it not time to shift the tax system to reflect the priorities the Government have in their green agenda to shift what people do?
Will my noble friend join me in congratulating farmers on both responding to the Covid epidemic and delivering a green environmental economic recovery? What could be greener than buying locally produced meat, dairy products and cheese this Christmas? Will my noble friend join me in doing so?
My Lords, I declare my interests in the register. The voice of the regions will be key to our green economic recovery. The Midlands Engine’s green growth conversation aims to bring together key players in the energy sector, including local authorities, LEPs, businesses and academics to create a regional action plan. What plans do the Government have to interact with such initiatives and support existing regional strengths to enable a clean economic recovery?
The noble Lord makes a very good point; the Midlands green growth conversation is an important piece of work, and I look forward to the Midlands Engine growth action plan, which I understand is being published in the new year. The 10-point plan sets out our intention to “reinvigorate our industrial heartlands”, such as the north and the Midlands.
My Lords, we face increasingly high levels of unemployment post-Covid-19, so does the Minister agree that retraining will be key to the green recovery? Can he explain why that is not mentioned in the 10-point plan? Can he also confirm what budget has been allocated for retraining and that it will be additional to the funding already announced?
I agree with the noble Lord that retraining will play an important part. We recently launched the Green Jobs Taskforce to support it. It will look at the key challenges faced by employers and workers in supporting a green recovery, ensuring that we have the right pipeline of talent and skills provision.
My question was about the Economic Affairs Committee report published today. It makes it clear that recovery from Covid-19 and investment in a green economy for the future are far from divergent aims; they are complementary. Does the Minister agree with the contention in that report that government spending should be on policies more tightly focused on creating job opportunities that reflect the long-term context and that the Government should prioritise green projects that can be delivered at scale and quickly and can take place across the country?
I agree with the noble Baroness that we need to generate more green jobs and to build back better—that was the aim of the 10-point plan, and it is a central aim of the Government. The noble Baroness makes an important point and we shall endeavour to do exactly that.
My Lords, on The 10-Point Plan for a Green Industrial Revolution, may I urge my noble friend to press his department to invest some of the £5.2 billion promised over six years for flood and coastal defences in creating new wetlands, which would deliver massive benefits for the environment, nature, communities and, of course, jobs?
My noble friend makes an excellent point. He will be aware that in the 10-point plan we are doubling the green recovery challenge fund with an extra £40 million. Nature recovery can indeed help us to mitigate and adapt to climate change by capturing carbon and providing other environmental benefits. My noble friend’s point is very well made.
Arrangement of Business
Business of the House
Motion on Standing Orders
That, in the event of the Taxation (Post-transition Period) Bill having been brought from the House of Commons, Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Wednesday 16 December to allow the Bill to be taken through its remaining stages that day.
Procedure and Privileges Committee
Motion to Agree
That the Report from the Select Committee Resetting the limits for Oral Questions, topical Oral Questions, balloted debates and topical Questions for Short Debate; and further temporary suspension of the Standing Orders relating to hereditary peers’ by-elections (5th Report, HL Paper 190) be agreed to.
My Lords, the report concerns two issues: the first is resetting the limits per Member for Oral Questions, topical Oral Questions, balloted debates and topical Questions for short debate; the second is a further temporary suspension of hereditary Peer by-elections. I shall deal with the issues in turn.
This Session is almost a year old, and a number of Members have reached or are about to reach the limit on the number of Oral Questions and topical Oral Questions that they may table in a Session. Previously in long Sessions, the Procedure Committee has recommended and the House has agreed that the limits should be reset after a year has elapsed. The committee’s first recommendation, therefore, is that the limits should be reset from 1 January 2021. The committee also recommends that, from now on, the limits should be reset automatically on 1 January each year, and not at the start of the Session. That limit will apply regardless of prorogation, but will be reset at the start of each Parliament and run to the end of that calendar year. I hope that this change is agreed for the convenience of the House.
I turn to the further temporary suspension of hereditary Peer by-elections. The House will recall that, on 23 March, in the light of the Covid-19 pandemic, we agreed to suspend Standing Order 10(6), which states that by-elections must
“take place within three months of a vacancy occurring.”
Then on 7 September the House agreed to further suspend by-elections until 31 December.
At its meeting on 1 December, the Procedure and Privileges Committee again considered this issue. The committee discussed the ongoing situation concerning the pandemic, the inability of some Members to attend the House and the suspension of other types of election. While it would be possible to hold a remote by-election, the committee decided, on division, that a further suspension was desirable. The committee will meet again on Wednesday 26 January and will consider this issue again and report to the House as soon as possible thereafter. The report from the committee explains this decision. Noble Lords will have noticed the second Motion in my name on today’s Order Paper, which gives effect to the committee’s decision. I beg to move.
Amendment to the Motion
My Lords, the clerks tell me that it is most unusual to table an amendment to regret the Motion in respect of business other than statutory instruments. However, as noble Lords may remember, the Convenor of the Cross Benches recently moved an amendment to regret the Motion on the Second Reading of the internal markets Bill. I hope that the House will forgive me today if I follow his lead.
My Motion draws your Lordships’ attention to the Procedure Committee’s decision last week to continue the suspension of the Standing Order that enables the by-elections of hereditary Peers to take place. As the noble Lord said, these by-elections were originally suspended in March, when the House adjourned during lockdown; everything was thrown into disarray by an unprecedented crisis, and the House and its authorities and staff responded as best they could. I fully understand that. Even when we returned, with some clerks working from home and everyone at sixes and sevens, suspending non-essential business was perfectly understandable. Since then, eight months later, the hybrid House is operating, communications have improved, Select Committees are sitting, taking evidence and reporting, and even new Select Committees have started their work.
The by-election process is a simple one, which has been done partially by postal vote for some years, and that could be extended without difficulty. The House already communicates with the electorate—your Lordships—every day, and one or two additional items would make little difference. The Clerk of the Parliaments, the in-house returning officer for these elections, already maintains a list of candidates who wish to stand, pursuant to Standing Order 10. In other words, even in these difficult times, it is well within the House’s present capabilities to conduct these by-elections. There are currently four vacancies and thus four seats in the House that are unfilled for no apparent reason.
However, with the exception of my noble friend the Leader of the House, the Government Chief Whip, the Lord Speaker and me, every other member of the committee present—one noble Lord was absent—voted to continue the suspension for another month, until January. Your Lordships would reasonably think that the committee had sound reasons for its decision but, if it did, I did not hear any, because no reason was put forward. However, the noble Lord who is the leader of the Liberal Democrats suggested that at a time when no elections were being held it would be “perverse” if the House of Lords was the only place to hold elections. Meanwhile, on the other side of the pond, the United States has held one of the biggest democratic elections in the world, and no one thought that perverse. Indeed, the newspapers were full of warnings not to try to postpone the election. So a country worse affected by Covid than we have been can hold a national election, and we cannot even elect four new Members to this House. I think that is pretty perverse.
Of course, it is true that there have not been any by-elections to the House of Commons, but that is probably because there have not been any vacancies to the House of Commons. I felt that the argument from the leader of the Liberal Democrats was a bit strange, coming from the leader of a party that does rather well in local elections rather than national ones—even more so because, on 27 November, the Liberal Democrats did actually win a by-election, in Perth City South, in Scotland, which received quite a lot of publicity. Did the noble Lord really not know that, or that by-elections have been taking place in Scotland since October? It is just a silly excuse, is it not?
We do not hold hereditary Peers by-elections because we like them, nor should we suspend them simply because we disapprove of them. We hold them because it is the law. Section 1 of the House of Lords Act 1999 abolishes the automatic right of hereditary Peers to a seat in this House, and Section 2 says that 92 people shall be excepted from Section 1 and that
“Standing Orders shall make provision for filling vacancies”.
It is not a grey area—it is the law. Nor does it say that the Procedure Committee of this House can ignore the law if it feels like it.
During the Second Reading of the internal markets Bill, I suggested to your Lordships that the rule of law is not in fact black and white and that parking on a yellow line is not the same thing, say, as murder, or another serious offence, but my view did not find favour in your Lordships’ House.
“When those responsible for making the law—that is, us the Parliament, we the lawmakers, who expect people to obey the laws we make—knowingly grant power to the Executive to break the law, that incursion is not small. The rule of law is not merely undermined, it is subverted.”—[Official Report, 19/10/20; col. 1286.]
Those are not my words; they are the words that the noble and learned Lord, Lord Judge, sadly not in his place, used so eloquently and convincingly when he moved his regret Motion during the passage of the internal markets Bill. I do not think that my colleagues on the Procedure Committee last week were intending deliberately to undermine the rule of law but, perhaps, they allowed their personal and political prejudices to overcome their judgment.
The Select Committees of this House broadly fulfil three roles: some examine general policy areas; others focus on specific Bills or subjects of current national interest and controversy; the third group is concerned with the orderly management of the House and the rules of engagement by which it operates. The Procedure and Privileges Committee falls into that latter category. Over the years, I have sat on Select Committees of all sorts—nine or 10 in total—and this is my second stint on the Procedure Committee, having previously been a member in the 1990s. Of course, everything that our committees do is to a certain extent controversial. We all have strong views on some things, less so on others. We all fight our corners, particularly on hot political issues. That is as it should be, but the committees responsible for running the House tend not to be party political and work in a more collegiate way to find the best way to operate, balancing the needs of the Government, political parties, the Front Benches and, critically, the Back Benches, to enable the whole House to do its job. That is obviously particularly difficult during this pandemic, for reasons that we all recognise. However, in all my years in this House I have never before witnessed a Select Committee treat a subject in such a cavalier and partisan way as the Procedure Committee did last week—in complete contrast to the care with which it approaches all the other difficult issues that come before it.
My final point is about timings. I recognise that the tiresome business of having speaking lists and providing sufficient time for noble Lords to put their names down for business tabled at short notice is a challenge. However, this is the third week running that a Select Committee report has been ordered to be printed on a Wednesday and a Motion to agree it has been tabled late on a Thursday, to be debated immediately after Questions the following Monday. Last week, the Conduct Committee’s report on the noble Lord, Lord Maginnis—all 103 pages of it—was debated less than two sitting days after it was published. It is my perception that many more noble Lords would have contributed to that debate if they had been able to. As a consequence, it was a deeply unsatisfactory and unhappy debate.
The latest guidance on the hybrid House and committees, agreed on 11 December and coming into force today, states:
“Where practicable, there is parity of treatment between remote and physical participants”
in the hybrid House, but that brief business after Oral Questions, such as the Motion we are debating now, is treated as physical business only and there will no remote participation. That, coupled with the habit of tabling these Motions only two days before they are due to be debated, makes it almost impossible for the House to consider them properly. Indeed, a number of noble Lords have contacted me since I tabled my amendment indicating that they wished to participate in this debate but had been unable to do so at such short notice. It cannot be right to table Motions at such short notice and, at the same time, make it mandatory for speakers to be present in person.
As a result, there is a growing feeling on all sides of the House that important matters relating to its working practices, which need to be carefully considered, are being rushed through without the opportunity for reflection and proper debate. The House has made some extraordinary changes to its procedures since March to allow it to operate at all. The Lord Speaker, in his weekly “home thoughts from abroad” has described these changes as a success. Technically speaking, they are, but none of us should kid ourselves—or, more importantly, anyone outside this House—that our current proceedings are anything more than a weak shadow of their former selves, or that this is any way to do business. These changes must be as temporary as possible and certainly not permanent. In its present state, this is not a proper, functioning House of Parliament.
The guidance further states that it is our duty to work from home if we possibly can and to take the advice of Public Health England, an organisation largely now discredited. That is wrong. It is absolutely clear that our first duty is, above all things, to be here in this House, in the words of the writ of summons that all have received and responded to, “waiving all excuses”. It is also clear and always has been, long before anyone invented codes of conduct, that our duty is to act and speak at all times on our honour: in other words, as our conscience dictates, however uncomfortable that may be.
I imagine that we would all like to go through life without regrets, but that is not realistic. What I most regret is not some of the things I have done, but rather, the things I should have done but failed to do. It is for that reason that I have tabled my amendment to the Motion today, but I very much regret the need to do so. I beg to move.
My Lords, I will call the following to speak: the noble Lord, Lord Grocott, the noble Baroness, Lady Meyer, the noble Lord, Lord Shinkwin, the noble Lord, Lord Strathclyde, the noble Lord, Lord Hunt of Kings Heath, the noble Lord, Lord Trefgarne, the noble Lord, Lord Hamilton of Epsom, and the noble Baroness, Lady McIntosh of Pickering. At that point, I will ask if there are any further speakers. I will then call the noble Lord, Lord Newby, and the noble Baroness, Lady Smith, and ask the Senior Deputy Speaker to reply to the debate.
My Lords, I would struggle to find anything that I agreed with in the speech from the noble Lord, Lord Mancroft. It was wide ranging, including a reference to Public Health England. I am not sure of the relevance of that to the continuance of these by-elections. The noble Lord managed to say, somehow or other, that this is in the law—as though the law is something on which he has never previously expressed an opinion—and that this is neutral legislation on which he has no particular opinion. Of course, he has in fact been a passionate supporter of that law and, speaking personally, a passionate opponent of every attempt to change the law concerning these particularly ridiculous by-elections.
I strongly welcome the decision of the Procedure Committee to further postpone these by-elections. As the Senior Deputy Speaker said, this is the third Motion of its type. The first, in March, was moved by the Leader of the House and the second, in September, by the Senior Deputy Speaker. The House should spend a moment or two to take stock of this issue. Both the previous Motions were moved for the screamingly obvious reason that the country was in the midst of a coronavirus crisis and the House authorities were overloaded enough already, without having to organise a clutch of hereditary Peers’ by-elections. The noble Lord, Lord Mancroft, referred to the first Motion, saying that these were early days and that he could perhaps understand why there was a postponement of further by-elections. However, he did not mention the one in September, when the House unanimously decided that the suspension should continue.
My case is very simple: all the conditions which prompted the House unanimously to suspend the by-elections, first in March and then in September, remain in abundance today. We are operating a hybrid House, which most estimates assume will remain at least until the summer. Non pass-holders are pretty well excluded from the House, unless they are here to give evidence to a Select Committee.
Of the four by-elections pending, two are whole-House elections. In one recent such election, held in January 2017, there were 27 candidates. How on earth do you arrange Covid-safe hustings with 27 candidates and a potential audience of 800? In any case, what is the rush? As the noble Lord, Lord Newby, who I am glad to see in his place, pointed out in the debate in September, if we can postpone local government elections and by-elections until May, surely the nation can cope without four more hereditary Peers’ by-elections in the next few months. I should mention at this stage that one of the by-elections is caused by the retirement of the Countess of Mar, who made an outstanding contribution to this House over many years, and whose retirement means that there are no women remaining among the 92 hereditary Peers in this House. She said to me, and in this House, that she was strongly in favour of ending these ridiculous by-elections.
I know that the House is well aware of my views on these elections. On three occasions, in three parliamentary Sessions, I have introduced a Bill to abolish them. Whenever votes have been held on the subject, the majorities for their abolition have been overwhelming in all parts of the House. Had one of my Bills become law, the by-elections would be history by now, and we would have been spared wasting time on debates like today’s. That is yet another reason for extending the suspension of these by-elections. The only mechanism, in practice, by which they could be stopped is a Private Member’s Bill, a Bill which today’s speakers opposed when they had the opportunity.
My Private Member’s Bill got its Second Reading in March, and in the normal course of events, it would be well on its passage through the House by now. Yet, as we know—and I fully accept the reasons—during the Covid crisis, all Private Members’ Bills have been suspended. I might have a justified grievance if the House, during the Covid crisis, had no time for Private Members’ Bills but enough time to organise and hold by-elections to get more hereditary Peers in.
If we do not pass the Motion today, on 31 December, in deep midwinter, the by-election’s suspension will lapse; that has not been mentioned, although it has been implied. As 2021 dawns, the House of Lords will embrace the new year by setting in motion the procedure for the election of a clutch of new hereditary Peers. Perhaps, we would hold them all on the same day. It could be a Tuesday—let us call it a “super Tuesday.” What sort of message does that send out about this House and its sense of priorities?
Of course we should support the Motion from the Procedure Committee. When it meets in January, the committee should propose a further extension, at least until the House returns to its normal practices and the worst of the Covid crisis is over. In the meantime, is it too much to expect that Private Members’ Bills will resume, that self-awareness and common sense in this House will triumph, and that the temporary suspension of these by-elections will become permanent?
My Lords, I will not speak for long, as I have no dog in this fight. However, I remind the House that under Standing Order 10, agreed by both Houses, by-elections are part of the 1999 compromise written into law and due to remain in place until the second phase of Lords reform. By-elections have been free and fair, and they have produced many worthy Members of this House, including the current Chief Whip, the noble Lord, Lord Ashton of Hyde, and a shadow Minister, the noble Lord, Lord Grantchester, to name but two.
Since I have been in this House, which is not very long, it is the hereditary Peers who have impressed me the most. A huge percentage of them work hard, sit on the Front Bench and stay late at night. I have no reason to think the by-election should be postponed yet again. As the noble Lord, Lord Mancroft, mentioned, postal voting is already used and could be extended; it would be unconstitutional for it not to be. I wonder whether this decision had something to do with dislike of hereditary Peers; surely personal bias is not an acceptable reason to delay by-elections further. Therefore, I will support the amendment in the name of my noble friend Lord Mancroft.
My Lords, I am delighted to speak in support of the amendment to the Motion in the name of my noble friend Lord Mancroft. I will make four points. First, it is a fair assumption, is it not, that a lawmaking body might just, on the balance of probabilities, have a duty to uphold the law and not continually to postpone its implementation, as we are doing in the case of hereditary Peers’ by-elections—a minor detail for some, I dare say. But I wonder whether there is an elephant in the room—in the Chamber, even—that dares not speak its name, and so large is it that it distorts all sense of perspective.
This brings me to my second point. Some say, occasionally on a Sunday, that your Lordships’ House is too large. But that disregards the fact that only about half of us attend on a regular basis. The elephant in the room, which some have a vested interest in ignoring, is that the introduction of a mandatory retirement age would address that issue overnight and to a far greater extent than yet another unjustified suspension of the hereditary Peers’ by-elections.
My third point is simply this: who among us could fail to have been impressed by the example of duty and public service to her people set by our sovereign during one of the deepest domestic crises of her long reign? So, why, closer to home, here in your Lordships' House, do we hack at the roots of such a noble tradition by denigrating, rather than celebrating, such a strong sense of duty and public service passed down from one generation to the next by some of this country’s oldest and most distinguished families?
Finally, I was born not with a silver spoon in my mouth but with a broken leg. I have no vested interest, but neither am I burdened by a boulder on my shoulder. Surely we are bigger than this. We should honour our duty and uphold the law. Hereditary Peers’ by-elections should resume without delay.
My Lords, I listened with care to what the noble Lord, Lord Grocott, said, and increasingly, I find myself deeply shocked by his whole attitude towards these elections. Every week, he is perfectly happy to vote against the Government on a whole load of extremely important issues, but when it comes to voting on something like this, he suddenly gets all coy and shy and does not think he is capable of doing so, and nor is the rest of the House. This must be complete nonsense.
The noble Lord, Lord Grocott, misrepresents the reason that I, my noble friend Lord Mancroft and others are so opposed to the Bill he has proposed many times. The reason is not to defend the continuation of hereditary Peers or the by-elections but to avoid the creation of a wholly appointed House. Many Peers have spoken on this. The noble Lord, Lord Adonis, has made several great interventions on the issue. The noble Lord, Lord Grocott, would find his Bill far easier to pass if he were to bring forward a clause for the creation of an independent, statutory appointments commission that would, at that stage, police who came into the House, but he is steadfast against that.
The reasons the Senior Deputy Speaker provides for not having these by-elections are about as thin as they could be. If they are to be further suspended at the January meeting, I hope he can come forward with considerably better reasons than these. In the footnotes of this report, I was amazed to see that there had been a by-election, as mentioned by my noble friend Lord Mancroft—and who should have voted against the suspension but the Lord Speaker, the Leader of the House and the Government Chief Whip? I really would have thought that the Procedure Committee, which exists essentially to try to help us all with procedures, would have considered this with rather more care than it obviously did before it continued the suspension.
My noble friend also raised legal advice. This House has very recently spoken at some length about and voted in favour of the rule of law. Great articles have been written and speeches have been made. Could the Senior Deputy Speaker write to me to say whether the House has taken any legal advice on whether it is in breach of the law? If it is not in breach, at what point would it be—after 12 months, after 10 years? I have no idea, but someone must know and we should be told.
I gather that there will be a further report. I have no doubt that this report will be agreed today, and there has been a request for a further one. I really hope that, when we discuss this again, we will have real answers to why we should not have these by-elections, given that the technology is now available to do so much.
My Lords, it is a great pleasure to follow the noble Lord, Lord Strathclyde, who is as earnest a reformer of your Lordships’ House as I am. Before coming on to the substantive argument, I have a couple of comments on what the noble Lord, Lord Mancroft, said.
First, I regret what he said about Public Health England. I point out to him that the people working for it have been working all hours and doing a tremendous job. They are officials; they are part of the Department of Health. We argued against this on the Health and Social Care Act 2012, but the Government insisted that they lose their independence and they were brought into the department. They are officials and cannot speak for themselves; the person accountable for their performance is none other than the Secretary of State. It is a great pity to hear such nonsense from some noble Lords opposite on the responsibilities and duties of public officials.
Secondly, the noble Lord referred to issues being rushed through this House. Of course hybrid working is not perfect and there must be some trade-offs, but this is a good opportunity to say how much I appreciate what has been done and how effective we have been. Members of the Commons tell me how they wish they could follow the way we have been able to do this.
On the substantive issue, surely the nub of my noble friend Lord Grocott’s argument is that, at the height of the many issues this country faces at the moment, the idea that we should waste time on these ludicrous by-elections is complete nonsense. Also, I would be very surprised if the Procedure Committee made any recommendation to your Lordships’ House that did not keep fully within the law. The decision to postpone these elections is very sensible.
The noble Baroness, Lady Meyer, referred to the House of Lords Act 1999, on which the noble Lord, Lord Strathclyde, was a leading actor for the Opposition and I was the Government Whip in the Lords. I think I sat through every minute of those riveting debates. The premise was very much that reform would soon follow. We saw what happened: first, my noble and learned friend Lord Irvine’s White Paper did not get very far; he and I served on a Joint Committee chaired by Jack Straw—if he remembers—which attempted to produce a consensus on a way forward, which did not make as much progress as we would have hoped; then the coalition Government attempted Lords reform. It is time to accept—I regret it as much as the noble Lord, Lord Strathclyde—that reform is some way off.
We are in the process of trying to reduce the House. There has been general agreement on all sides that we should do it. Frankly, it would be a modest contribution to suspend the by-elections a little longer. The Procedure Committee has gained a reputation over the years for taking its time on difficult matters. I suggest it take a very long time indeed before it decides to allow these ridiculous by-elections to go ahead.
My Lords, I will not detain your Lordships for more than a few moments. I very much agree with the position taken by my noble friend Lord Mancroft. These hereditary Peer by-elections should and, I hope, will remain in place until—as was said back in 1999—House of Lords reform is complete. I had the privilege the other day of having a small piece published in the New Statesman in which I described what I thought might be an appropriate form of House of Lords reform. To be honest, I would not oppose an elected House, but I do not believe the idea would ever get through the other place. I am therefore more than happy to support something rather more modest, as I said in my piece, to which my noble friend Lord Strathclyde referred. These by-elections are provided for in law. They should happen as soon as possible. I very much support my noble friend Lord Mancroft.
My Lords, I address the House from the Cross Benches, not because I have suddenly decided to join them but because there is so much enthusiasm from my Conservative colleagues to contribute to this debate that I did not have anywhere else to sit. I also have worries about trying to join the Cross Benches; I do not think I am left-wing enough.
I am still smarting under the blow of the internal market Bill, when we were told in no uncertain terms that the Government were acting illegally regarding the withdrawal agreement. I opposed the noble and learned Lord, Lord Judge, at that point, because I had been told by my noble and learned friend Lord Keen, the former Advocate-General for Scotland, that it was legal. We therefore had a disagreement between two very distinguished lawyers over what was legal and what was not in that Bill.
We are back in this situation now. Legal advice is being given that it is all right to delay these by-elections, while other legal advice would tell you that it is not all right to go against an Act of Parliament and a statute saying that these by-elections should be held. The problem with lawyers is that they are liable to back whichever side happens to suit them at the time. I would not describe the noble and learned Lord, Lord Judge, as hypocritical, but I would call him inconsistent. The House should seriously consider its different views on legality in this case.
I suppose I will be described as a “lefty lawyer”, but I would like to change the subject. I welcome the provisions in the fifth report of the Procedure Committee relating to Questions, which are eminently sensible and practical. Could it also look at Questions for Written Answer which have not been answered for 10 days or more? There are some 113 such Questions on the Order Paper today; this should be addressed as a matter of urgency.
I listened with interest to the arguments made by the noble Lord, Lord Mancroft. He made some important and salient points about the workings of this House. I hope that it returns to normal as soon as possible, as it is best that we do not make a virtue out of a grim necessity.
I know that I am new here. I am absolutely no fan of hereditary Peers, on principle, but the truth is that no one is elected here. Appointed Peers are no more democratic than hereditary, and I would like the fullest possible debate on reform, even abolition, in the future. But I find it distasteful to use this Covid crisis to push through political reform by stealth. To suspend a by-election using Covid as an excuse seems completely wrong to me, whatever the by-election is or however silly people consider it. In too many instances, I have found politicians on all sides prepared to use this pandemic to avoid proper, accountable and open debate, and to push issues that they would never get through if they had to face the electorate or even Parliament, in some instances. They are also using this pandemic to subvert laws and norms.
I do not support the amendment of the noble Lord, Lord Mancroft, because it is about hereditary Peers, but it seems right and proper that procedure is followed and that Covid is not used sordidly to avoid accountability and elections of some sort, at least.
My Lords, I am not always popular with hereditary Peers, because I think that the by-elections are ludicrous. I am with the noble Lord, Lord Grocott, on his Bill and regret that he is having such a difficult time bringing its passage forward, but I support my noble friend Lord Mancroft today, because this is the law. We should not let a procedure committee override the law, especially because there do not appear to have been any serious attempts to find a workable solution. This is just one deferral leading to another.
I suspect I know what will come back from the January meeting of the Procedure and Privileges Committee, unless a clear instruction is given to the clerks now to come up with a workable solution for that meeting. My noble friend Lord Mancroft has made it plain that this would not be difficult to organise, given the practices that we have evolved, over the last nine months, to become a hybrid House. The technology and procedures are available. It would not take the clerks very much time to devise a satisfactory procedure, and I hope that noble Lords support my noble friend Lord Mancroft.
My Lords, I apologise for detaining the House. I had not intended to speak but, as the noble Lord, Lord Mancroft, took the trouble to explain what he understood to be my views, he goaded me into speaking. I apologise for detaining other noble Lords on that basis.
The noble Lord, Lord Mancroft, said that no arguments were put in the committee and that it took a “cavalier and partisan” decision. He then explained the argument I put, so there was some inconsistency there. Actually, the committee took quite a lot of time on this issue, a number of arguments were advanced and a vote was taken. The problem for the noble Lord is not that there were no arguments; it is that he did not like them and then he lost the vote.
For the avoidance of doubt, this is the argument that I made, and other members of the committee must decide whether or not it weighed with them. At a time when all elections in England and Wales are postponed—all local elections, the mayoral election in London and all by-elections—for the House of Lords to have a by-election in those circumstances would make the place look even more ridiculous than it does whenever we have such elections.
The noble Lord mentioned that there are by-elections in Scotland, so there should be no bar to a House of Lords hereditary Peers by-election. There are by-elections in Scotland and my party was fortunate to win one. It is possible to hold by-elections in England and Wales today, but the Government decided, and this House agreed, not to do so. There are and will be none until May. It therefore seemed logical to apply the same principle to by-elections of hereditary Peers. We can revive our discussions, as we will at the end of January to see what we think then.
On behalf of the committee, I object to how, when the noble Lord loses a vote, he dresses it up as the committee not operating properly. The committee operated absolutely properly. There was a long debate with strong feelings on both sides. There was a vote and the noble Lord lost. End of.
My Lords, I totally agree with the last point made by the noble Lord, Lord Newby. This is quite extraordinary. I do not know that it has ever happened before in your Lordships’ House—that a member of a committee does not like the decision of that committee and then tables an amendment. In fact, the decision of the committee was a compromise. I could equally have tabled an amendment in the same terms as the noble Lord’s, because I did not think it was the best decision to wait until the end of January. The noble Lord, Lord Ashton, will recall that I proposed that we wait until we are not operating in a hybrid way. I will come back to something that the noble Lord, Lord Mancroft, said on that. When we are operating normally and can function properly as a House, as he put it, that would be the time to have by-elections of hereditary Peers.
I have been clear throughout, whatever my views on the by-elections—I take the same line as the noble Baroness, Lady Noakes: I do not think they are appropriate in this House; this is the next stage of reform, and I support the Grocott Bill—that is not what we are discussing today. I cannot speak for other noble Lords and I speak entirely for myself, but that did not play a part in my decision to support the suspension first proposed and that it should continue now.
This has been an extraordinary debate, but it would be wrong if we set a precedent that, when an individual does not agree with a committee’s decision, anyone can bring forward a Motion to disagree or to change it. I have no intention of doing that on this matter, which I did not fully support, but it was a compromise.
I will pick up some of the comments. First, I thank the noble Baroness, Lady McIntosh, because she addressed other parts of the report. I am not suggesting that we have a further debate on those points, but I think resetting Questions is a sensible move when parliamentary sittings are becoming uncertain. To go from January to December and have an annual allowance for Questions makes more sense. She will recall that I raised Written Questions and had discussions with the Government Chief Whip at the end of the previous Session, when we had a huge number of outstanding Questions that were not being answered.
Part of the problem is that many more Questions are being asked, partly because so many of the Answers are inadequate, so noble Lords go back two or three times to get to the bottom of what they are seeking. I propose that there should be a day’s debate when those who have Questions outstanding can hear Ministers’ Answers. The Department of Health has the greatest number of Questions and wrote to every Member to address their outstanding Questions. Unfortunately, as helpful as the letter was, it did not answer the Questions. We need to look at some way to address this, because there is a huge backlog of Written Questions and the Answers are not as adequate as they should be.
To come back to the matter at hand, the noble Lord, Lord Mancroft, raised several points that were just incorrect. First, he talked about the Conduct Committee debate on the report into the noble Lord, Lord Maginnis, who has now been suspended from your Lordships’ House. There was no debate on that report. This House decided that reports could be received and voted on, but no debate took place. It was not that scores of Members were trying to speak who were unable to, because it would not have been allowed.
Secondly, there was a point raised by the noble Lord, Lord Mancroft, and others, such as the noble Lords, Lord Hamilton and Lord Strathclyde, and the noble Baroness, Lady Noakes, about breaking the law. The noble Lord, Lord Strathclyde, is absolutely right: the committee took legal advice and it was as one would assume—that it would be wrong to use the Covid emergency. It is worth noting that it is becoming more of an emergency, with the proposal that London, Essex and Kent will probably go into tier 3 even today, rather than the decision being taken later this week, as expected. That was reported as I was driving to your Lordships’ House earlier, so this is a serious situation, but it would be wrong to use that situation to take a political view on hereditary by-elections.
The legal advice said that you could continue to suspend them but that you would have to fix a date, or have a route map or a plan to say when they were coming back; it could not be indefinite. As long as a decision is taken to show they are going to be reinstated, that is within the law. I hope that allays noble Lords who feel that the law is being broken—the law is not being broken. The noble Lord, Lord Mancroft, saw the same legal advice as I did. The law has not been broken and is not being broken; it is acting within the law to say that a further period of suspension to deal with Covid is satisfactory.
The noble Lord, Lord Mancroft, also said that there were no arguments. As the noble Lord, Lord Newby, said, there were no arguments that he liked—he disagreed with the arguments. It would not be right for me to divulge who voted how, and the vote took place—
It is public.
Oh, it is public—so noble Lords will see that it is not straight along party lines. The idea that a political decision is being taken is absolute nonsense. People made a decision on the information and the legal advice before them.
I would also like to take up the point of the noble Baroness, Lady Meyer, who spoke of this House having a dislike of hereditary Peers—absolute tosh. I have never heard anything so shocking. I have never seen anybody in this House show any less respect to, or find any less credible, a hereditary Peer than an appointed Peer. All Peers once they are here are equal, and they are treated with equal respect. I am sorry she felt she had to make that point, but she is completely wrong on that.
The noble Lord, Lord Mancroft, also said that the hybrid House is not functioning properly and talked about things being rushed through the House. I think I can look to the noble Lord, Lord Ashton, for some agreement on this: the one thing that is not happening in this place at the moment is business being rushed through. Most business takes significantly longer than it did when the House was working normally. I think the one thing everybody in this House will agree on is that the sooner we are able to get back to a functioning House, and the way we normally do our business, the better.
One of the other decisions taken at this committee, as the noble Lord, Lord Mancroft, fully knows, was that, in January, when we shall meet to consider hereditary Peer by-elections, we will also look at the route map and the stages towards this House returning to normal working. That does not mean we can say “On 1 April this will happen”, or “On 1 June that will happen”, but we can say that when social distancing reduces, and when people are vaccinated, that is all part of the route map to us getting back to our normal way of proceeding.
The amendment to the Motion is ill judged. I hope it does not set a precedent. I could have equally put down a Motion—which I think I would have had the House’s support for—to say that we park this issue while we operate in a hybrid way. It was never about the election; it was always about the hustings and how those who wanted to vote could hear the views of those who wished to stand in these elections. It would be nonsense to start them now. It is a far better decision to just hold fire and delay, wait until we are working normally and then restart those by-elections. My noble friend Lord Grocott will then have the opportunity to present his Bill again, and I will support it again. But that is not the issue before us today—it is the straightforward Procedure and Privileges Committee report and what is in the best interests of this House at this time.
My Lords, I thank the 13 Members who spoke for providing us with their very strong and varied comments on this issue. To take the prevailing views that were aired at the committee, the issues concerned were the current state of the pandemic; the difficulty of holding hustings while social distancing; the requirement for Members to take the oath in person, which is unwise for people with underlying health conditions; and the suspension of other types of elections, such as local elections. In that vein, the committee thought it was desirable to postpone by-elections for a further period.
On the issue of the law and whether the standing order could be suspended indefinitely as a way of getting rid of by-elections—as was suggested in the debate—the advice of counsel is that the House of Lords Act 1999 requires by-elections as a matter of law and that, while it may be possible to justify their temporary suspension due to a national emergency, it would be quite different to suspend by-elections indefinitely in an attempt to defeat the legal requirements of the Act of Parliament. Indeed, a new Act of Parliament would be required to secure a more permanent change to these arrangements.
The issue was about the committee dividing. I think this touches on the nature of the debate and the commitment of people during the discussions we had. Divisions in the committee are very unusual indeed; there has not been one for over a decade. We always try to achieve consensus, allowing Members to put their point of view in their time and in their way. That is the hallmark of the committee’s work. Indeed, Members have been complimentary to us on the way we have dealt with the hybrid proceedings of the House, and other issues, as we have faced the pandemic. So we look at it as a whole. Today’s debate has demonstrated that this is an issue on which there are often strong and fairly irreconcilable views. That is why the committee will be talking further and hoping to seek to agree a way forward when it meets in March.
I was asked two points by Members. One was to write on the legal issue—I think that was raised by the noble Lord, Lord Strathclyde—and I am very happy to do that. Secondly, turning to the noble Baroness, Lady McIntosh, and Written Questions, it is custom and practice that when Members contact me, I always put their issues in front of the Procedure and Privileges Committee. That is what I will do for the noble Baroness, Lady McIntosh, and others.
I would just like to finish by commending the hard work and the conscientious way that Members of the committee look to the work that they do on behalf of the House. I am sure that they will continue to do that in that vein.
My Lords, when I moved my amendment to the Motion, in what I hoped was a very measured way, I did not intend to set off a firecracker in your Lordships’ House—but I apologise, because I appear to have done so. I did not intend either to have a debate about the splendid Bill in the name of the noble Lord, Lord Grocott—which I do not agree with, of course—nor to have a wider debate on Lords reform.
What I was hoping to do was to draw your Lordships’ attention to one or two things which I felt they might benefit from having a chance to mull over. It seems to me that the one person who did focus, and did seem to identify in my obviously very badly put words what I was trying to say, was the noble Baroness, Lady Fox, whose remarks I agree with completely. What I am concerned about more than anything is that, not deliberately but incidentally, we are setting off on routes and making decisions under the difficult conditions in which the House is currently working that we would not normally make, or that we should not wisely make. That was what I wished to draw to the House’s attention. I think I succeeded in doing so—and a few other things as well—but, in the meantime, I think we had best move on. I therefore beg leave to withdraw my amendment.
Amendment to the Motion withdrawn.
Hereditary Peers: By-elections
Motion to Suspend
Unmanned Aircraft (Amendment) (EU Exit) Regulations 2020
Renewable Transport Fuel Obligations (Amendment) Order 2020
Motions to Approve
Ozone-Depleting Substances and Fluorinated Greenhouse Gases (Amendment etc.) (EU Exit) Regulations 2020
Control of Mercury (Amendment) (EU Exit) Regulations 2020
Detergents (Amendment) (EU Exit) Regulations 2020
Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020
Waste and Environmental Permitting etc. (Legislative Functions and Amendment etc.) (EU Exit) Regulations 2020
Motions to Approve
That the draft Regulations laid before the House on 13, 14, 19 and 20 October be approved.
Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the first instrument). Considered in Grand Committee on 9 December.
Chemicals (Health and Safety) and Genetically Modified Organisms (Contained Use) (Amendment etc.) (EU Exit) Regulations 2020
Motion to Approve
Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2020
Health Protection (Coronavirus, Testing Requirements and Standards) (England) Regulations 2020
Motions to Approve
That the draft Regulations laid before the House on 23 and 25 November be approved.
Relevant documents: 37th Report from the Secondary Legislation Scrutiny Committee and 34th Report from the Joint Committee on Statutory Instruments (special attention drawn to the second instrument). Considered in Grand Committee on 10 December.
Customs Safety and Security Procedures (EU Exit) Regulations 2020
Motion to Approve
Future Relationship with the EU
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Thursday 10 December.
“I am grateful for the opportunity to update the House again on the progress of our negotiations with the European Union. The Prime Minister met the Commission President yesterday evening in Brussels. They, along with the chief negotiators, Lord Frost and Michel Barnier, discussed the significant obstacles that still remain in the negotiations. It is clear that we remain far apart on the so-called level playing field, fisheries and governance. However, they agreed that talks should resume in Brussels today to see whether the gaps can be bridged. They also agreed that a decision should be taken by Sunday regarding the future of the talks.
We are working tirelessly to get a deal, but we cannot accept one at any cost. We cannot accept a deal that would compromise the control of our money, laws, borders and fish. The only deal that is possible is one that is compatible with our sovereignty and takes back control of our laws, trade and waters. As the Prime Minister said, whether we agree trading arrangements resembling those of Australia or Canada, the United Kingdom will prosper as an independent nation. We will continue to keep the House updated as we seek to secure a future relationship with our EU friends that respects our status as a sovereign, equal and independent country.”
My Lords, discussions are continuing as we are enjoying our session here.
That was rather a short answer. My Lords, Tobias Ellwood MP, the Conservative chairman of the Defence Committee, has warned that no deal will imperil Tory prospects at the next general election. Maybe that, if not the will of the country, will motivate the Prime Minister. My own priorities include security. When asked about access to EU databases, the Paymaster-General told the other place:
“We will be gaining access to new information via safety and security declarations.”—[Official Report, Commons, 10/12/20; col. 997.]
I think that is a reference to movement of goods. Can the Minister tell me what on earth those declarations have to do with cross-border policing?
My Lords, the Government say in the Statement that they
“are working tirelessly to get a deal.”
I welcome that, but at what point will people know whether there will be a deal or not? As you see when driving down the motorways, and in other government advertisements, people and companies are told to get ready for 31 December. What are they getting ready for?
The reality is that, whatever happens in these negotiations, there will be change on 31 December to 1 January. As enacted in law, the United Kingdom will leave the European Union single market and customs territory. For that reason, new customs and border arrangements will come into place. All businesses and citizens should be aware of that and make preparations for it.
My Lords, I declare my European and agricultural interests as detailed in the register. I am sure all Members of this House wish the Government well in their negotiations at this very difficult moment. Surely, whatever their party or interest, no Member of this House would have wished to see the country in the position we find ourselves in—only 17 days before the end of the transition period. Does the Minister agree that it will be absolutely necessary to negotiate a period of adjustment or implementation so that, whatever the outcome, the changes do not all come into effect on the first day?
We already have a range of agreements with the European Union over, for example, the Northern Ireland protocol, where arrangements and derogations are agreed. We have other arrangements—for example, we have already announced the phased introduction of border controls. However, the transition period will end on December 31 and that remains the position.
I call the next speaker, the right reverend Prelate the Bishop of Southwark. Bishop? We will move on to the next speaker and come back. I call the noble Baroness, Lady Symons of Vernham Dean.
My Lords, does the Minister agree that, as the Government have agreed to extend the deadline for negotiation and agreement, genuine compromise on both sides is needed? Does he also agree that there must be further genuine compromise by the European Union and, equally importantly, by Her Majesty’s Government?
My Lords, the aspiration of the Government has been and remains to get a free trade deal with our friends and former partners in Europe. As the noble Baroness said—and I agree—an enormous number of areas of ground in the negotiations have been carried positively. But specific and deep differences remain on the well-known points that have been discussed, including the so-called level playing field and fisheries. Those are matters of intensive negotiations. The chief negotiators began to negotiate again at 10 am this morning. I will not prejudge what might be going on in those negotiations, but I can assure the House that the intention of the Government is positive. As the Prime Minister said, while there is life, there is hope.
Does my noble friend the Minister agree that there is a strong element of Alice in Wonderland permeating our negotiations with the European Union? Normally, when two parties negotiate a transaction from which both sides will benefit, the side with the most to gain customarily makes the concessions and is the party making the greatest effort to achieve a satisfactory conclusion. The EU is making a £90 billion profit each year from trading with the United Kingdom. Does the Minister agree that the posturing of the EU and its treatment of the United Kingdom as a colony is out of place? An example of this is Monsieur Macron acting as if France has a God-given right of access to British fish in British waters. Does he further agree that the superb work done by the noble Lord, Lord Frost, and his assistant, Oliver Lewis, to try to make the EU understand that Great Britain is not a colony of the European Union but a free and sovereign state is to be applauded?
My Lords, I can certainly agree that my noble friend Lord Frost and his colleague, Mr Lewis, are doing their duty to the very greatest extent. Of course, that is not helped by the injection of new material into the negotiations at a late stage. As I have said before at this Dispatch Box, I do not go into criticising the Governments of other nations. All I would say is that we are going to try as hard as we can and to be as creative as we possibly can in taking this on. However, what we cannot do is compromise on the fundamental nature of what Brexit is all about. It is about being able to control all our laws and to have control of our fisheries.
I do not think that the European Union is treating us as a colony. Indeed, the Spanish Foreign Minister reminded us this morning that trade negotiations are not about asserting independence but about managing interdependence. My question is about the language in the Statement, which yet again says that any deal must be compatible with our sovereignty and must respect our new status as a sovereign, equal and independent country. Does the Minister believe that the French Republic, the Kingdom of Spain, the Federal Republic of Germany and the other 24 EU member states are neither independent nor sovereign? If he does accept that they are independent sovereign states, just like us, why do we insist on insulting them again and again by implying in public that they are not?
My Lords, the noble Lord is a masterly negotiator; I remember the Maastricht deal. However, I think he has advanced a syllogistic argument that I cannot follow. The fact is that nations may use their sovereignty in whichever way they choose, and out choice as a sovereign nation is that we wish to control our laws, our borders and our waters.
My Lords, the time allowed for this Question has elapsed.
United Kingdom Internal Market Bill
Commons Reasons and Amendments
My Lords, hybrid proceedings will now resume. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
These proceedings will follow guidance issued by the Procedure and Privileges Committee. When there are no counterpropositions, the only speakers are those listed, who may be in the Chamber or remote, and the Minister’s Motion may not be opposed. When there are counterpropositions, any Member in the Chamber may speak, subject to the usual seating arrangements and capacity of the Chamber. Any intending to do so should email the clerk or indicate when asked. Members not intending to speak on a group should make room for Members who do. All speakers will be called by the Chair. Short questions of elucidation after the Minister’s response are permitted but discouraged. A Member wishing to ask such a question, including Members in the Chamber, must email the clerk. The groupings are binding. Leave should be given to withdraw.
When putting the Question, I will collect voices in the Chamber only. Where there is no counterproposition, the Minister’s Motion may not be opposed. A participant, whether present or remote, who might wish to press a proposition other than the lead counterproposition to a Division must give notice to the Chair either in the debate or by emailing the clerk. If a Member taking part remotely wants their voice accounted for in the Question, if put, they must make this clear when speaking on the group. Lords following proceedings remotely but not speaking may submit their voice, Content or Not Content, to the collection of the voices by emailing the clerk during the debate. Members cannot vote by email—the way to vote will be via the remote voting system.
My Lords, I will address Amendments 1F, 1G, 1H, 1J, 1K and 1L. Last week, the other place was clear in its disagreement with Amendments 1B, 1C and 1D when it removed them from this Bill.
I appreciate the ongoing contributions of noble Lords to these debates on the interactions between the market access principles and common frameworks. I very much welcome the constructive engagement we have had on this issue since last Wednesday. In particular, I thank the noble and learned Lord, Lord Hope, for his continued contribution and for his willingness to engage in ongoing dialogue on his amendments, which he has tabled in lieu.
There have also been constructive conversations with the Labour Front Bench over the past week, for which I am grateful. I look forward to continuing discussions with the noble Baroness opposite and the noble Lord, Lord Stevenson of Balmacara, in seeking to bridge the gap between our two positions. I should also express my appreciation of the helpful contributions and advice from my noble and learned friend Lord Mackay of Clashfern.
As I said in the House last week, the previous amendments from the noble and learned Lord, Lord Hope, would have created a broad regime of exclusions from the market access principles, which would have denied businesses and consumers much-needed clarity regarding the terms of trade within which they operate. The Government have been clear throughout these debates that we agree on the need for an exclusions regime, but one that is carefully drafted and provides certainty for business. In drafting the Bill, specifically Clauses 10 and 17, the Government have designed an exclusions approach that achieves a careful balance.
I understand the aim of the noble and learned Lord’s revision to his amendment, which is to further specify the interaction between divergence agreed under common frameworks and exclusions to the market access principles. However, our assessment remains that the approach in these amendments goes too far in both the breadth of the exclusions it may require the Secretary of State to create and the uncertainty it could lead to. This runs counter to the certainty that the Bill is designed to provide.
To further emphasise the Government’s position, I will take the opportunity to clarify some of the points noble Lords raised during our debate last week. The noble and learned Lord, Lord Hope of Craighead, expressed concern that traders may need to consider relevant regulations in different parts of the United Kingdom. I reiterate that the mutual recognition principle provides reassurance for traders, in that as long as they comply with local relevant requirements they do not need to worry about those other parts. This is the advantage of our proposed approach: we have carefully created an architecture that means that a trader will have clarity regarding the rules they should follow. As I have said before, the uncertainty introduced by the wholesale exclusions from the market access principles afforded by the amendment should not be supported by the House.
The common frameworks process will encourage a conversation about a common approach and so provide for consensus-based decision-making in sectoral areas of the economy. However, the Government believe that common frameworks on their own cannot determine where matters should or should not be in scope of the market access principles. That is a job for the UK Parliament and for MPs from the whole of the United Kingdom.
The Government also believe that the system they have designed should create a proper balance between the independent operation of devolved powers and the automatic application of the principles that protect the market and give certainty. The Government have been clear in Parliament about our commitment to the common frameworks programme, which I repeat today, and the value we attach to the fora that common frameworks provide for collaborative working with the devolved Administrations. As noble Lords are aware, the common frameworks programme provides an avenue for discussing ways of working and as such is primarily concerned with processes rather than determining specific policy outcomes.
The programme aims to put in place durable arrangements for intergovernmental working between the Government and the devolved Administrations, and our intention remains that these mechanisms for co-operation on specific policy areas will allow for coherent policy-making between the UK Government and the devolved Administrations in those policy areas. For this reason, we think that the common frameworks programme is complementary to the mechanisms set out in the Bill, and I respectfully suggest again that the approach put forward in the amendments is contrary to the Government’s responsibility to provide businesses with the certainty they need to operate across the United Kingdom. I repeat my gratitude to other noble Lords for the constructive conversations that have been taking place.
Motion A1 (as an amendment to Motion A)
At end insert “but do propose Amendments 1F, 1G, 1H, 1J, 1K and 1L in lieu—
1F: Clause 10, page 7, line 23, at end insert—
“( ) The Secretary of State must by regulations under subsection (2) exclude the application of the United Kingdom market access principles to a statutory provision or requirement that gives effect to a decision to diverge from harmonised rules that has been agreed through the common frameworks process.”
1G: Clause 15, page 9, line 27, at end insert—
“( ) “Common frameworks process” means the process, established by the Joint Committee on European Negotiations, by which a measure of regulatory consistency to enable a functioning internal market within the United Kingdom may be mutually agreed between the United Kingdom and the devolved governments.”
1H: Clause 17, page 12, line 42, at end insert—
“( ) The Secretary of State must by regulations under subsection (2) add the services referred to in a statutory provision or requirement that gives effect to a decision to diverge from harmonised rules that has been agreed through the common frameworks process to the authorisation requirements in Part 3 of Schedule 2 or the list of regulatory requirements, as the case may be, to which section 18 (mutual recognition) or sections 19 and 20 (non-discrimination) do not apply.”
1J: Clause 21, page 14, line 35, at end insert—
“common frameworks process” means the process, established by the Joint Committee on European Negotiations, by which a measure of regulatory consistency to enable a functioning internal market within the United Kingdom may be mutually agreed between the United Kingdom and the devolved governments;”
1K: Clause 25, page 19, line 24, at end insert—
“( ) The Secretary of State must by regulations subject to the affirmative resolution procedure exclude the application of section 22(2) to a provision which has been agreed through the common frameworks process.”
1L: Clause 27, page 21, line 19, at end insert—
“common frameworks process” means the process, established by the Joint Committee on European Negotiations, by which a measure of regulatory consistency to enable a functioning internal market within the United Kingdom may be mutually agreed between the United Kingdom and the devolved governments;”
My Lords, in moving Motion A1, I shall speak to Amendments A1F to A1L in my name.
I am grateful to the Minister in the other place, Chloe Smith, and her Bill team, for taking time to discuss the common frameworks issue with me last Thursday. I am also grateful to the Minister for taking time on a busy day to attend that meeting, and for his very helpful introduction to this debate. As a result of that meeting, both sides now have a much better understanding of the issues that divide us. We are much closer to a solution, but we are not quite there yet, which is why I have tabled these amendments in lieu, and why I will be seeking the opinion of the House on them at the end of this debate, so that we can continue this discussion.
These amendments I now offer to the House contain two very significant changes from those disagreed to by the other place. First, I have removed a provision designed to protect the common frameworks process while it was in progress. It was objected to as it would have created delays and legal uncertainty. I recognise that it was not in the interests of the internal market, so it has gone. There should be absolutely no misunderstanding about that. Secondly, I have changed my approach to the way in which the common frameworks issue should be fitted in to the Bill, now seeking to use mechanisms already in the Bill to achieve that result. Their purpose is twofold: to cure the inconsistency between the Government’s support for the common frameworks on the one hand and its promotion of the market access principles on the other—which does not fit in with the Minister’s word “complementary” a moment ago—and to provide certainty so that everyone will know what the measure that needs protection is and why it is there.
One of the principles agreed between all four nations when the common frameworks process was set up in 2017 was that, as the devolution settlement required, it allowed for policy divergence where this was within devolved competence. However, a decision to diverge will be agreed under that process only if all the parties to it, including the UK Government, are satisfied after careful examination and assessment of its nature and effect that the decision will not create a barrier to trade across the UK. The Bill’s market access principles, on the other hand, operate automatically. As the Bill stands, a measure that gives effect to an agreed decision to diverge can be ignored by traders bringing goods in from other areas. This undermines the opportunity to diverge, rendering it worthless and ineffective. With reference to the Minister’s comment on what I was saying about uncertainty last time, my concern is not with traders bringing goods in across borders; they have the protection of the market access principles and their position is plain. My concern is with traders doing business within their own areas, having to decide what articles they could properly and safely put for sale on their shelves. That is no kind of answer.
The effect of the amendments is that the Secretary of State will be required by regulations to direct that the market access principles will not apply to a measure of the kind I have described. The UK Government will therefore be involved at every stage of the process. I stress that the decision cannot be put into effect unless the UK Government have agreed to it, and it is only the UK Government, through the Secretary of State, who can give it the immunity it needs.
I emphasise once again that my intention is not to create barriers. It is about allowing for policy divergence in ways found by this process to be consistent with the internal market. I hope that those noble Lords who have drawn on their long experience of what makes businesses work, which this House values so much during our debates, are reassured on that point. At heart this is an issue about devolution. It was because of devolution that the common frameworks process, and the opportunity for policy divergence, was instituted with the encouragement of the UK Government in the first place. Their support for that process must involve support for policy divergence too.
As we continue our discussions, it may be suggested that what I am looking for could be met by assurances, but we are dealing here with arrangements designed to last for a long time. They need to bind future Governments as well as this one. That is why they must be in the Bill. The process of refining my proposals has been rather like opening a Christmas present buried within layer after layer of paper. Eventually it is revealed, smaller that the wrapping led one to expect, and one wonders why it took so much paper. I am afraid it has taken me some time to reduce my proposals to their essentials, but that is where I am now. I beg to move.
My Lords, I thank the Minister for clearly setting out his objections to the last set of amendments. In his closing words he said that the Government view the common frameworks process as complementary to the market access principles. Listening to the noble and learned Lord, Lord Hope, it was very clear that there is a discontinuity—a lack of complementariness—between the two positions. As the noble and learned Lord set out, a central feature of the framework agreement is to come to an agreed process for divergence between the four nations, within which the UK has a major role. That divergence is killed off by the automatic nature of the market access principles. That is the central point that the noble and learned Lord’s amendments address. In doing so, the new versions of the amendments have taken on board the comments that have come back from the other place, having recognised the level of uncertainty that could have been injected by a previous proposed new clause, which has now been removed. The amendments adopt the regulations within the Bill to facilitate that decision, so that it is consistent with the way that the Bill seeks to operate, but also consistent with the principles of devolution that have served this country so well to date.
My Lords, perhaps we need to remember why we are here. It is really quite simple. When the case for Brexit was all about “taking back control”, we failed to understand that the Government meant taking control to themselves, even over issues that were fully devolved. However, when the Bill was published—without any involvement from the devolved authorities, remember—we soon discovered that it ran roughshod over devolved competences, as the noble Lord, Lord Fox, said, trumping the common frameworks programme.
I have often wondered whether this was deliberate or an oversight, though the lack of prior consultation suggests the former. However, that makes the statement on the publication of the Bill, on 9 September, signed by the Scottish Secretary but not the Welsh Secretary, and by Mr Sharma and Mr Gove, a bit strange in the light of this Bill. It says that the devolved Administrations will enjoy a “power surge” when the transition period ends.
Let us take that at face value. Perhaps the particular construction of the Bill was clumsy—as an oversight rather than deliberate—and perhaps it is right that the Government did not intend to bring back to themselves all the powers long devolved to the other three authorities, but in that case the amendments tabled by the noble and learned Lord, Lord Hope, would rectify the problem. They would simply restrict the market access powers in the Bill, which of course are only about devolved competences, to those where the four-party process failed to reach agreement.
As the Government are one of those four parties, they will be in a very strong position to revert to the Bill, and to Parliament, for the powers they feel are vital for an internal market on areas where disagreement cannot be overcome. That seems, to this side of the House, a simple, clean solution. It would hard-wire in a common frameworks process which the Government themselves described last week in the latest of their three-monthly reports on the frameworks—reports which, I think, we added to Schedule 3 to the EU withdrawal Bill as a requirement for the Government to publish—as
“an agreed approach to ensuring regulatory coherence”
in devolved areas. That is absolutely spot on—coherence, not uniformity—and that is probably where we are trying to get to. The problem is that, as written, the Bill adopts “uniformity”.
The same document, which has just been published, despite having talked about coherence, then asserts:
“Common Frameworks cannot guarantee the integrity of the entire UK Internal Market.”
However, the document does not provide any evidence of why the frameworks will not work. It gives no examples of where, within devolved competences, any agreements might not work. Indeed, the Minister, in introducing the debate, again asserted that it would have to be for Parliament alone to decide when the market access rules would not be used, but he did not explain why the four-party process would not be able to deal with that and why they would come to Parliament only when there was a failure to agree. The same document notes the “freezing power” contained in the withdrawal Act, and it also notes that it has never needed to be used, but it fails to suggest where it might be needed.
Therefore, in the Bill the Government are saying that on the one hand the frameworks are very good and have been able to produce coherence but, on the other hand, the Bill allows the market access principles to trump that process, even if it produces agreement.
We have it said before and I say it again: we on this side of the House want an internal market which thrives and serves the needs of business, the professions, consumers and the environment, but it has to be one that respects rather than dismantles devolution. These amendments seem to us to offer the path to achieve that, so we will support the noble and learned Lord when, as I am sure he will do, he asks the House to vote. I hope that in the light of that vote we can, as the Minister suggested, continue the dialogue so that we can reach an agreed position that would safeguard all that has been going on with the devolution settlements and the common frameworks process but, in the last analysis, would of course come back here.
My Lords, once again, I am very grateful to those who have contributed to the debate. Although the cast is smaller, I know that the interest is no less great. The sense of respect for the devolved institutions, which has gone right across your Lordships’ debates on the Bill, is important and shared by all of us, however we view the question raised in the amendments.
I also thank all those who have participated in the ongoing dialogue outside your Lordships’ House on this matter. Naturally, I will shortly seek to persuade your Lordships not to support the noble and learned Lord’s Motion for the reasons I have given, but the strength of feeling expressed in this House and in the other place is testament to the important role that common frameworks play in intergovernmental working and this country’s future outside the European Union, and indeed within the overall structure of intergovernmental relations within the United Kingdom.
The Government are committed to working with the devolved Administrations to deliver these agreements to the benefit of people from all four corners of the United Kingdom, and we welcome the strong support that has been shown for common frameworks by both Houses, not least by the noble and learned Lord, Lord Hope of Craighead, in his noble efforts to unwrap a Christmas parcel. I am sure that the jewel of mutual respect is there, whatever the outcome of the debates on this question.
Common frameworks allow the Government and the devolved Administrations to engage in meaningful dialogue about how all parts of the country can benefit from the new powers flowing from the European Union. I say to the noble Baroness opposite that they are flowing from the European Union. However, common frameworks are primarily concerned with processes rather than determining specific policy outcomes, and as such they do not obviate the need for the market access principles in these areas. I believe it is common ground across this Chamber that it is for the United Kingdom Parliament and its Members from all four nations to have a role in safeguarding a market across all parts of the United Kingdom.
Common frameworks are not intended to be an all-encompassing solution to the maintenance of that internal market. The Government’s belief is that additional legislative protection provided by this Bill will provide certainty for the status quo of internal UK trade. Broad disapplication of elements of the Bill risks removing that certainty, which is needed for business and citizens in all four parts of the United Kingdom. Again, I believe that is a common objective. For that reason, we believe both common frameworks and the market access principles—if the word “complementary” is not cared for, I will say “working in tandem”—to be necessary to guarantee the integrity of the entire United Kingdom internal market.
The security that this Bill provides is crucial for the people and businesses of England, Scotland, Wales and Northern Ireland. It is essential that we ensure that this certainty is provided in all areas, including in the devolved policy areas, where powers flow from the European Union to London, Edinburgh, Cardiff and Belfast.
Of course, I hear the arguments and representations put forward in the characteristically modest approach of the noble and learned Lord, Lord Hope of Craighead, but the Government’s belief is that we cannot afford to risk denying our citizens the ability to trade seamlessly across the United Kingdom, as they do now. I hope this is something that your Lordships’ House can agree with, and I hope that, in order to provide this certainty, the noble and learned Lord will find himself able to withdraw his Motion. In the event that he is unable to do so, the remarks that I made earlier obviously stand.
My Lords, I am grateful to those who have contributed to this short debate. I would like to pick up on some words that the Minister said in his reply. The words “mutual respect” have characterised the meetings that I have been privileged to take part in as we have moved towards the position that I am adopting. I think it is a very healthy system that allows us to conduct these discussions in such a manner as we seek out the positions that each of us is trying to adopt and possible ways of accommodating them.
At the end of the day, as I have said on a number of occasions, it really is up to the Government. I am looking to them to facilitate in some way the process by which an agreed decision to diverge, which has gone through all the processes of the common frameworks system, may be protected against the sharp edges of the internal market principles. I do not believe that that will in any way disrupt the workings of the internal market; indeed, there are benefits from allowing the devolved Administrations to develop their ideas in a way that is consistent with the internal market by the use of this process and the opportunity for divergence that it allows for.
The Minister has invited me to withdraw my Motion, but in truth I cannot properly do that, given that we are in a process of continuing discussion and we have not yet had a proposal from the Government that provides a solution to the problem that I am seeking to address in my amendments. For those reasons, I wish to test the opinion of the House.
That this House do not insist on its Amendment 8L to which the Commons have disagreed, do not insist on its insistence on its Amendments 13 and 56 to which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendment 15C.
15C: Clause 10, page 7, line 25, at end insert—
“(4) Before making regulations under subsection (2), the Secretary of State must seek the consent of the Scottish Ministers, the Welsh Ministers and the Department for the Economy in Northern Ireland.
(5) If consent to the making of the regulations is not given by any of those authorities within the period of one month beginning with the day on which it is sought from that authority, the Secretary of State may make the regulations without that consent.
(6) If regulations are made in reliance on subsection (5), the Secretary of State must publish a statement explaining why the Secretary of State decided to make the regulations without the consent of the authority or authorities concerned.”
My Lords, this group covers Amendment 8M, which relates to exclusions from the market access principles. The noble Lord, Lord Stevenson, has made changes to the amendment since the debate was last in this House. These move the proposed exclusions text from Clause 10 to Schedule 1 and narrow the list of reasons for derogating from the market access principles to two: environmental standards and protection, and the protection of public health.
While this acknowledgement of the issues created by replacing Clause 10 with a lengthy list of exclusions is appreciated by the Government, it does not address our fundamental problems with this approach. The noble Lord’s Amendment 8M would cut right across the Government’s objectives and leave businesses exposed to new burdens and barriers. Despite the reduced list of aims, vast amounts of public policy could be excluded from the market access principles.
I have previously explained that the narrow approach to exclusions that we have taken ensures that certain policy areas can work effectively within the clearly defined market access principles. Many of these, such as the exclusion relating to threats to human, animal or plant health, will ensure that necessary environmental and public health measures can continue to operate under the bespoke constraints necessary in those areas, all without the need for the wide-ranging environmental and public health derogations which the amendment, even in its revised form, would add to Schedule 1.
However, the way in which the noble Lord’s list of exclusions would work with the test in his proposed new paragraph is also problematic, as I shall explain. To be excluded, a requirement must only “make a contribution to” the achievement of one of the aims from the list, meaning that a policy need only have an extremely tangential relationship to a social policy objective to be taken out of scope.
The amendment would also lead to uncertainty as to when the market access principles applied, not least by a very unusual use of the term “proportionate”. It would fall to courts to determine the relative extents to which different policies met one of the aims, with no consideration of the burdens introduced. This would not deliver the certainty that business needs. The amendment could bring blatantly protectionist measures out of scope of the market access principles because it was unclear what “disguised restriction on trade” meant. We cannot accept protectionism within the UK.
In the previous debate, the noble Lord, Lord Stevenson, also raised the differences with the EU system. It should be quite clear that the EU system is designed for different circumstances—that is, bringing together 27 countries. Now that we are an independent trading nation, the market access principles are naturally more tailored for the UK than they were in the EU system, so it is right that the approach to exclusions in this Bill should be more narrowly focused.
However, I must stress the following point to the House: the market access principles do not prevent the devolved Administrations introducing innovative policies designed to meet their own goals and objectives, including those relating to the environment and public health. We are adamant that requirements which prohibit the sale of a particular good should generally be in scope of the mutual recognition principle; otherwise, we would see a decrease in consumer choice, increased prices and additional costs for business. This is an outcome that I do not believe your Lordships desire, nor is it a good one for the citizens of the United Kingdom.
Of course, if there are initiatives that are of serious concern to the UK Government and the devolved Administrations, we should work together as a United Kingdom to implement them. Furthermore, manner of sale policies, which have typically been the most innovative types of policy, will not be impacted by the market access principles as long as they do not discriminate and are not designed specifically to circumvent mutual recognition. This covers innovative policies such as plastic bag charges and minimum unit alcohol pricing, which many noble Lords have cited. In this respect, our system has much greater flexibility in these areas than the current EU system would allow.
For all these reasons, I strongly encourage noble Lords to reject Amendment 8M.
Motion B1 (as an amendment to Motion B)
At end insert “and do propose Amendment 8M as an amendment to the words restored to the Bill by non-insistence on Amendments 8L, 13 and 56—
8M: Schedule 1, page 48, line 47, at end insert—
“5A (1) The United Kingdom market access principles do not apply to, and sections 2(3) and 5(3) do not affect the operation of, any requirements which—
(a) make a contribution to the achievement of—
(i) environmental standards and protection, or
(ii) protection of public health,
(b) are a proportionate means of achieving that aim, and
(c) are not a disguised restriction on trade.
(2) For the purposes of subparagraph (1)(b), a requirement is considered disproportionate if the aim being pursued in the destination part of the United Kingdom is already achieved to the same or a higher extent by requirements in the originating part of the United Kingdom.””
My Lords, in moving Motion B1 in my name, I thank the Minister for his full and comprehensive introduction and make it clear that we agree with his Amendment 15C, which we think is very helpful to the overall operation of the internal market Bill. In particular, it picks up points that we have been making in relation to market access. I have just one point of correction to what he said: the changes set out in my Amendment 8M remove the amendment completely from the main part of the Bill. He said Clause 1, but I think he meant Schedule 1; in other words, even more disguised and hidden than perhaps was the impression he gave when speaking.
In opening this debate, I do not want to spend a lot of time on this issue, which is quite narrow. Indeed, the arguments are very similar to those we have already heard from the noble and learned Lord, Lord Hope. The Minister’s defence of the current drafting in the Bill depended largely on the often-used threat by Ministers that those who are preparing amendments do not understand the unintended consequences that might flow from their drafting. I suggest to the Minister with some humility that we are not the experts on drafting. If there is an issue here that we should progress a little, we would certainly be happy to work with him and the team of draftspeople in his department to try to make sure that any egregious issues are removed. He drew particular attention to a concern about the phrase used in proposed paragraph 5A(1)(c), which those who wish to bring forward changes to market access would not be permitted to do so if they were disguised restrictions on trade. As I understand it, that comes from the existing WTO regulations and is therefore relatively well understood among those involved in the operation; these are trivial points, however, compared to the main points of principle that he raised.
I want to make three main points. The noble and learned Lord, Lord Hope, has already explained in his amendment that the common frameworks issues he talked about require a market access regime as well; the two are interrelated—almost two sides of the same coin. The devolution settlement has to be observed in both the spirit and the letter of the law. We think that the Bill can both honour and enhance the devolution settlement, provided, first, that we emphasise the common frameworks and the coherence that they can bring to the whole process of a devolved settlement and, secondly, that we do not make the market access principles, which operate automatically, too narrow and too prescriptive. That would fatally undermine the opportunities for devolved Administrations to diverge—if they wish and as agreed by all concerned—in a managed and coherent way.
We have a devolved system of government. That must necessarily imply divergence, so it has to be part of the system. In some way, the argument revolves around how it is possible to frame that managed divergence in legal terms. My Amendment 8M uses derogation powers that are already in the Bill to highlight areas of public good that could benefit consumers, workers and traders. The Minister said there was already coverage on these areas within the Bill, so, in a sense, he is making my point that areas such as public health and the ability of people to work in the environmental areas will be public goods if they can be brought forward. Any sensible Government would ensure that the system made it possible for those who wish to make changes that would raise standards —managed and with agreement—to do so.
The amendment therefore enhances efforts to improve environmental standards and public health; I cannot believe that the Government would want to be against that. It amends a schedule, and does not change any of the main clauses in the Bill. We are talking about trying to find a system for allowing divergence to happen in a proportionate way, which will not in any sense damage the ability of traders to trade but will benefit consumers and workers. It is a very small change. As the Minister rightly said, it has been slimmed down in the process of arriving at this point in the Bill’s discussions, and it is very much tied to the amendment that we have just accepted by a majority of over 100 in relation to the common frameworks. I beg to move.
My Lords, I rise to speak physically in the Chamber for the first time since March, so I hope your Lordships will forgive me if I feel a little rusty. Although we refer to people taking part remotely and those in the Chamber being treated equally for many procedures in your Lordships’ House, that is unfortunately not the case with ping-pong. That is why I felt that I needed to be here.
In reflecting on that, I want to comment very briefly on the earlier discussion about procedures in your Lordships’ House, because I respectfully disagree with the many people who said that they wanted to go back to how things were before as soon as possible. I think that the remote participation that enables people to participate who, for all kinds of reasons—whether it be disability, caring responsibilities or all kinds of other reasons—may not be able to be in the Chamber is something that we should keep. Of course, remote voting allows a wider democracy, as much as we can, which would surely be a good thing.
I am in favour of Motion B1, in the name of the noble Lord, Lord Stevenson of Balmacara. I will focus in particular on the environment side of it and cite Alok Sharma, the Government’s chair of the COP 26 talks, who spoke yesterday at the climate ambition summit. He pointed out that 45 leaders had announced new climate target plans for 2030, 24 had committed to net zero and 20 had talked about strengthening adaptation. But we are still not on track for 1.5 degrees. As we start to gear up for COP 26, we are starting to see the revival of “One-point-five to stay alive”. We have a long way to go.
If we look at the situation of the nations of the UK, there is no doubt, sadly, that leadership has often not come from Westminster. On everything from home energy efficiency to plastic bag taxes and bottle deposit schemes—all kinds of environmental issues—leadership has come from the nations of the UK other than England. So, if we do not allow that to happen, we are cutting off the opportunity of progressing faster, which I suggest is not in line with the Government’s intentions.
I was speaking at the weekend at an event focusing on the beauty and diversity of the Amazon. There is an innate strength in diversity, in difference, and in different places trying different things and approaches. If you shut that off, as we will by not having this amendment or something very like it, we will actually hamper the efforts on the environment which the Government, I am pleased to say, tell us they are so keen to succeed with.
Finally, I will pick up on the words of the noble Baroness, Lady Hayter of Kentish Town, on our first group of amendments about the “Take back control” issue. When participating remotely, or in the Chamber, I often find myself shaking my head as speakers say, “We are all supporters of the union here”. I believe in subsidiarity and in local decision-making, but I will offer some free advice to those who want to keep the existing arrangements. Squeezing people tighter and taking away independence or rights that have been given is not a way for that to continue. In your Lordships’ House, we have been awaiting for quite some time the very important domestic abuse Bill, which will bring the idea of coercive control into our law. If we attempt to coerce people and take away their independence and the rights that they already have, I would suggest that it will make them seek more independence.
I regret the fact that Motion B1 has been diminished from earlier, similar versions of the amendment. I regret the loss of animal welfare and cultural expression, but it is crucial that we keep the environmental standards and protection. As the noble Lord, Lord Stevenson of Balmacara, said, how in the middle of a pandemic could we not keep the opportunity for every Government in the United Kingdom to protect the public health of their people as best they can?
My Lords, I welcome the noble Baroness, Lady Bennett, back to her seat—just in time for tier 3 to arrive. We have again had a short debate. As we have seen the evolution of this argument—in the amendment’s approach to common frameworks it is, in a sense, the yin to the yang of the noble and learned Lord, Lord Hope—we are now looking at a different way of trying to ensure that diversity can survive under the automation of the market access measures.
In the past, the Minister has brought to bear the Government’s disapproval of the breadth of the exclusions that previous versions of this amendment made. As the noble Baroness, Lady Bennett, pointed out, many of those have now dropped off. So, in a sense, the Government have already pushed this to a narrower set of exclusions. The Minister highlighted his uncertainty around the word “proportionate”. Of course, none of us would want to do something disproportionate, but I cannot help thinking that the Government, in all their wisdom and with all their clever legal people, could come up with a frame of words that will prevent hideous problems developing in the courts—so I cannot help thinking that that is something of a red herring.
As the noble Lord, Lord Stevenson, said, this is getting more modest than was previously attempted, but it still has the overriding aim of dealing with the problem which keeps coming up throughout this debate. The Minister has magnanimously said that the devolved authorities are perfectly at liberty to develop new and innovative ways of doing things—so far, so good—and then, of course, the market access principles mean that those innovations will get undercut if someone else in the British Isles is doing it differently. I do not understand how the Minister can keep linking those two sentences without seeing that the one excludes the other. If it does not do it in governmental terms, it will do it in the courts. This will be a creature of the courts, because there will be businesses that will be going at a legal opportunity to get their products into devolved authorities that have sought to raise standards, as they see it.
The issue of minimum-unit alcohol pricing often comes up, and it is quite clear that this legislation will not affect that at all. We are all in agreement there. But if we were seeking to bring that in once this legislation was in place, what chance would it have of surviving the courts? That is why we will support this amendment.
I thank everybody who has contributed to what has been a very good, albeit brief, debate. I have listened very carefully to the points that have been raised, and I will respond directly to the points of the noble Lords, Lord Stevenson and Lord Fox. Innovative policy-making relating to public health and the environment will be fully possible under the Bill, within the clearly defined market access principles. Schedule 1 sets out a clear exclusion process for:
“Threats to human, animal or plant health”.
There are also several other exclusions relating to the environment and public health: chemicals and pesticides, for example. All of these are drafted tightly to strike the right balance between these objectives and the integrity of the market.
It is also essential to remember that neither of the market access principles affects the devolved Administrations’ abilities to uphold and enforce rules governing how consumers use goods. Neither would they prevent reasonable “manner of sale” restrictions, as long as they are not discriminatory. If an Administration wanted to introduce minimum alcohol pricing or the plastic bag charges, they are fully able to do so and can use them to fulfil environmental or public health aims in future; the principles would not be an obstacle to that, as long as those rules do not discriminate. I say to the noble Baroness, Lady Bennett, that she is wrong: if a future devolved Administration wanted to introduce the plastic bag charges, they would be able to do so under these market access principles, as long as they were non-discriminatory.
We believe that the targeted list of exclusions achieves the right balance, providing certainty about the areas where market access principles would apply while still retaining the ability for the DAs and the UK Government to implement innovative new policies. I hope that all of us in this place agree that the innovation in the devolved Administrations is to be welcomed—but discrimination is not. This Bill provides a means to assure that this is reflected in the operation of our UK internal market.
With that explanation, I hope that noble Lords will be able to support the Government’s approach—the noble and learned Lord, Lord Falconer, looks sceptical—to reinstate these original clauses on exclusions in the Bill.
My Lords, this has been a very short debate, but, as the Minister has said, it has been quite interesting, and revelatory in some senses. I thank the noble Baroness, Lady Bennett, for speaking in support. I think that I thank the noble Lord, Lord Fox, for his suggestion that “yin and yang” are the words I was looking for in terms of my relationship with the noble and learned Lord, Lord Hope. We are certainly not yin and yang if you consider size or intellectual ability, but, even so, it is a nice thought.
I recognise that the Minister was not going all out to take down the arguments I was making, and I am grateful to him for that; he can sometimes be quite destructive when he does, and it is nice to have the sunny side of him on show today—he does have a sunny side.
I cannot understand why there is such a concern about divergence. For those of us who were born and brought up in Scotland, it is well known that building regulations there are substantially different for not unreasonable reasons: the weather up there is so different from that which one experiences further south. Those regulations were different in Scotland for many years before devolution took place, and have continued to be.
Of course, there are many other areas of difference, right across a range of activity in Scotland: a different legal system, a different religious environment as well as other factors. This has led to different ways in which people operate, trade is conducted, and people shop and carry out their business. The idea that divergence is not already present in the system and not respected as such seems very strange.
I know that the Minister stands by Schedule 1 because he referred to it at length, but those who have read it carefully—I suspect that not many people have read it right the way through because it is dry—will know that, basically, the only real reason for divergence is set out there very clearly. It says that there has to have been a threat to life caused by a “pest or disease”—that is a very wide-ranging thought and a way we can approach it. Nevertheless, that is really the only sure and certain basis under which divergence would be permitted, other than that which already exists.
In that sense, we are on the right track: there could be a better way of formulating that. The schedule contains many other ways of implementing curtailment and restriction that we could use if the wording currently in our amendment is not satisfactory. However, I do not think that the Minister has said anything that would negate our feeling that this amendment, in its essence, is the counterpart to the amendment that we already agreed in relation to common frameworks—and that it would play a necessary part in making sure that devolution continues. I recommend it, and I would like to test the opinion of the House.
That this House do not insist on its insistence on its Amendments 14, 52, 53 and 54 to which the Commons have insisted on their disagreement for their Reason 14C.
14C: Because the Lords Amendments (together with Lords Amendment 55 which has been agreed by both Houses) were only made in consequence of the omission of Part 5 by Lords Amendments 42 to 47 and so have become unnecessary following the Lords non-insistence on Lords Amendments 42, 43 and 46.
My Lords, I am introducing a new government amendment, containing new Clause 43A, as well as moving Motions C, D and E, which will rectify the oddities left by the removal of Clauses 44, 45 and 47. Now that we have an agreement in principle with the European Union through the joint committee, as we discussed in the last round of these discussions in your Lordships’ House, the safety net clauses are no longer required.
The EU’s declaration on Article 10 of the Northern Ireland protocol clarifies that subsidies are within scope of the state aid rules in the protocol only where there is a “genuine and direct link” to Northern Ireland and a “real and foreseeable” impact on trade between Northern Ireland and the European Union. The House has been concerned, as has the other place, about the risk of reach-back; the EU’s clarification addresses this. The concern was that a company in Great Britain with only a peripheral link to commercial operations in Northern Ireland could be caught inadvertently by the tests within the protocol’s text, which was neither acceptable nor what the protocol had envisaged.
However, public authorities giving subsidies and the beneficiaries still need guidance regarding Article 10 of the protocol. Therefore, new Clause 43A stipulates:
“The Secretary of State must publish guidance on the practical application of Article 10”.
The clause requires the Secretary of State’s guidance to reflect any relevant decision or recommendation of the joint committee or any declaration made by either party of which the other party takes note. The Secretary of State may update the guidance, for example, to reflect developments in either the joint committee or relevant EU law. Public authorities will be required to have regard to this guidance, helping to ensure a consistent and uniform application of Article 10. This approach is fully in accordance with the United Kingdom Government’s commitments under the Northern Ireland protocol and international and domestic law. The new clause is an important part of putting the protocol into effect and for the agreement in principle with the European Union to function.
I know that noble Lords have welcomed progress on this part of the Bill, and I beg to move.
My Lords, I speak to Clause 43A. Consistent with the Minister’s undertaking last week, this new clause is not tainted with the admitted unlawfulness that marked Clauses 44, 45 and 47. By way of a footnote, in view of the Minister’s observation, I will say that those clauses should never have been there in the first place. As the Minister has explained, this clause is concerned with the issuing of guidance by the Secretary of State in relation to Article 10 of the Northern Ireland protocol, and any subsequent implementation of that guidance. Either process must pay full attention to the decisions and recommendations of the joint committee, itself established under Article 164 of the withdrawal agreement. Non-compliance, if it were to arise, would, if necessary, be justiciable.
There is nothing further that I can say in relation to this clause. It seems to be a very sensible solution to a difficult problem.
My Lords, this is the last knockings on Part 5 of the Bill. It has been a sad and sorry saga from beginning to end. The Government understandably drew huge opprobrium, both domestically and internationally, for being prepared to break the law. They have now withdrawn in the best way they can, but the truth is that they have done so with their tail between their legs. I am extremely pleased that we have reached this point, but sorry that the Government ever put Part 5 in the Bill in the first place and that it needed your Lordships’ House to help kick it out.
The noble Lord, Lord True, has been true to his word. He has produced Clause 43A, which does not contain any element of illegality, as the noble and learned Lord, Lord Judge, said. I also agree with the noble and learned Lord that it is a sensible provision and we welcome it. It brings to an end a saga for which this country has plainly paid a price. Everybody commenting on the position of the European Union at the moment is saying that the reason it is currently seeking the arbitral and consultation provisions, and the threshold for the ratchet up, is that it does not trust us—and one of the reasons for that is the internal market Bill and its illegality.
My Lords, the noble and learned Lord opposite always has a delightful habit of ending his eloquent speeches with a couple of sentences that I find it hard to agree with, and I do not agree with his interpretation there. But I thank those who have contributed to this short debate. I am grateful for the welcome for the Government’s proposal—I do not talk about tails between legs—and that the other parts of Part 5, to which your Lordships objected before, have been accepted. As perceived from this side of the House, that was the correct action.
I need not repeat the essence of this. Clause 43A is required in the Bill because, as the noble and learned Lord, Lord Falconer, said, it is an important part of implementing the protocol. The clause places a duty on the Secretary of State to provide guidance. I welcome the fact that the EU has clarified that subsidies are within the scope of Article 10 only under the conditions that I described—a genuine and direct link to Northern Ireland and a real, foreseeable impact on trade between Northern Ireland and the EU. This addresses the risk of reach-back and must be reflected in the guidance that the Government will provide.
I am also, of course, grateful for the remarks of the noble and learned Lord, Lord Judge. In concluding, I will emphasise, as he did, that this approach is fully in accordance with the United Kingdom’s commitments under the Northern Ireland protocol and international and domestic law.
Motion C agreed.
That this House do agree with the Commons in their Amendment 45C.
45C: After Clause 43, insert the following new Clause—
“43A Guidance on Article 10 of the Northern Ireland Protocol
(1) The Secretary of State must publish guidance on the practical application of Article 10 of the Northern Ireland Protocol (State aid).
(2) For that purpose Article 10 is to be read in the light of—
(a) any relevant decision or recommendation of the Joint Committee, and
(b) any relevant declaration that is made in the Joint Committee by either party, of which the other party takes note.
(3) The guidance must be published before the end of the period of one month beginning with the day on which this section comes into force.
(4) A person with public functions relating to the implementation of Article 10 (including functions involving the provision of financial assistance or other subsidies) must have regard to the guidance when exercising such functions.
(5) The Secretary of State may—
(a) revise or replace the guidance;
(b) if satisfied it is no longer necessary, withdraw the guidance.
(6) In this section “Joint Committee” means the committee established by Article 164(1) of the EU withdrawal agreement.”
Motion D agreed.
Motion E agreed.
That this House do not insist on its Amendments 48B and 48C to which the Commons have disagreed for their Reason 48D.
48D: Because the Lords Amendments would alter financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.
My Lords, the other place has disagreed with Amendments 48B and 48C regarding the power to provide financial assistance which the Bill confers on the UK Government. Once again it has invoked financial privilege. I remind noble Lords that this is not a decision for the Government to make but is independently determined in the other place. It would, of course, be contrary to normal practice for the House to insist on any amendment disagreed for a financial privilege reason.
Amendments 48B and 48C, in the name of the noble and learned Lord, Lord Thomas, required the Government to have the consent of the devolved Administrations before exercising the financial assistance power in devolved areas. As I emphasised last week, this power is additional to the devolved Administrations’ existing powers, which I was glad to see noble Lords accept in the debate last Wednesday. It does not override the devolution settlements. I note that the noble and learned Lord, Lord Thomas, has tabled further amendments on this matter and I thank him for discussing these with me in advance. I also thank the noble Lord, Lord Stevenson, and the noble Baroness, Lady Hayter, for their discussions with me on these matters.
Amendments 48E and 48F would require the Government to consult on and publish the principles for investment, and to seek advice from representatives jointly appointed by the UK Government and the devolved Administrations before providing financial assistance in devolved areas. I reassure the noble and learned Lord that, when using this power, we will, of course, work with the devolved Administrations and other key stakeholders throughout the country. As I have mentioned previously, the UK shared prosperity fund provides a more detailed example of how we intend to use the power to provide financial assistance. In doing so, I hope that noble Lords recognise that the process is consistent with the intent of the amendments proposed by the noble and learned Lord, Lord Thomas.
The financial assistance power means that the UK Government can make good on our commitment to level up and create opportunities across the UK in places most in need, such as ex-industrial areas, deprived towns and rural and coastal communities, and for people who face labour-market barriers. We have discussed the UK shared prosperity fund extensively and I reiterate that, while the specific arrangements for the governance of the fund are still being developed, there will be governance structures and the devolved Administrations will have a place within those structures. I hope that noble Lords will accept that this is a clear commitment to work collaboratively and demonstrates that this is not at all “Westminster knows best” or “a Westminster power grab”. As noble Lords have mentioned, we have also worked collaboratively with the Scottish Government, the Welsh Government, and the Northern Ireland Executive for over six years on city and growth deals, and we intend to continue in that spirit of partnership and joint working.
The power in the Bill creates a unified power that operates consistently UK-wide. In exercising that power, we will work with stakeholders, including the devolved Administrations. This will help to make sure that UK Government investments and devolved UK Administration spending will deliver effective outcomes for the people of Scotland, Wales and Northern Ireland. The UK Government are best placed to identify and fund schemes that take into account all parts of the country and across administrative borders to connect all parts of the UK. Indeed, we have shown how crucial the scale and responsiveness of the UK Government support can be throughout this difficult year.
The response to Covid-19 has illustrated how the Government can work strategically and at scale to save jobs and support communities throughout the UK, working alongside the devolved Administrations to keep every citizen safe and supported, no matter where they live. I hope that this will encourage the noble and learned Lord to withdraw his amendment.
Motion F (as an amendment to Motion F)
At end insert “and do propose Amendments 48E and 48F in lieu—
48E: Clause 48, page 40, line 41, at end insert—
“(1A) The powers in subsection (1) may only be exercised—
(a) after consultation with the relevant authority on the principles under which financial assistance may be provided by a Minister of the Crown;
(b) after publication of such principles; and
(c) after considering the advice of persons jointly appointed by the Minister of the Crown and the relevant authority for each of Wales, Scotland and Northern Ireland as to the way in which, applying the principles, the allocation of financial assistance respectively to Wales, Scotland and Northern Ireland which could have been given by a relevant authority should be provided.”
48F: Page 41, line 10, at end insert—
““relevant authority” means the Welsh Ministers in respect of Wales, the Scottish Ministers in respect of Scotland, and the Northern Ireland Executive in respect of Northern Ireland.””
My Lords, I thank the Minister for the opportunity to have had discussions with her on two occasions. I am grateful indeed. There are three short reasons why I hope that the House will accept Motion F1 and Amendments 48E and 48F, which I seek to move and the compromise within that is intended. Those reasons can be explained briefly as follows.
The first is that the assertion of financial privilege is one to which there are two answers: it is not a financial issue, it is a constitutional and devolution issue. The scope of financial privilege is a question that will need to be discussed further in due course as the precedents on financial privilege need to be considered in the light of devolution. However, this is not the occasion. The issues in relation to devolution are addressed in this amendment in a way that simply seeks to clarify the need for consultation, principles and advice, all of which are so essential to the function of a union, but they do not impinge on the power of the other place.
My second reason for the amendment is that the way in which it seeks to proceed is to set out a principal reason for spending in the devolved areas. The UK Government and the devolved Governments should work together to strengthen confidence both in the Governments and in the union. The clause requires, as before, consultation in establishing the publication of principles and—this is new—the consideration of advice from the devolved Governments in the field where powers have been devolved. This goes nowhere beyond the devolved powers and it seeks simply to uphold the devolution settlement. The keys are consultation, principle and advice.
It is of course for the UK Government to decide whether they will follow that advice, but perhaps I may make three short points. If the advice were to be followed, it would stop the UK going back, as the Minister has observed, to “Westminster knows best.” If the UK Government were to follow the advice, it would say that they can work with the Governments that have been elected by the people of Northern Ireland, Scotland and Wales to spend wisely in the devolved fields by accepting the advice of those who know best in the devolved institutions. Secondly, it would also give the spending of those funds a considerable degree of democratic legitimacy by ensuring that the democratic mandate to spend in the devolved fields was heeded. Thirdly, if the advice was followed, spending would be much more efficient, as there should be co-ordination of spending. The real risk of inconsistent and, worse still, competitive spending, would be avoided.
My last main reason is, in short, is that the amendment seeks to lay part of the foundation for the exercise of statecraft, something that is so necessary to ensure the future of our union. The question may therefore be asked: why is it necessary to put this into a Bill? We simply cannot afford the failure of statecraft in relation to the union. Experience has shown that a clear mechanism is the best way of providing for co-operation between the four nations. There can be no more important area in which to do this than in relation to the working together, with a common and unified purpose, to increase the prosperity of each of the four nations, and here I refer in particular to the very deprived areas within those four nations. I beg to move.
I strongly support everything that has just been said by the noble and learned Lord, Lord Thomas, and I hope that my noble friends in the Labour Party will support him in his amendment if he presses it to a vote. The points he has raised are absolutely fundamental to the devolution settlement. The big issue here is what happens in lieu of the big decisions that used to be made about the structural funds. The noble Baroness the Minister said in our last debate that it was the European Union that would decide, which of course was technically true because these were EU funds, but the advice upon which projects are prioritised within the devolved Administrations very clearly flowed from the devolved Administrations themselves. If we do not observe that principle in respect of the Shared Prosperity Fund and whatever may replace it over time—the noble and learned Lord, Lord Thomas, has explained that we are putting in place within statute a regime that could now last for decades—what we will be doing is substantially rolling back the devolution settlement.
The noble and learned Lord used a slightly antiquated term, “statecraft”, but it is coming back into vogue, because we have so little of it. Indeed, as some noble Lords might recall, the Prime Minister told us some while ago that it would be a failure of statecraft if there was not a deal, which he very nearly railroaded the country into over the past weekend. It would be an equal failure of statecraft if the devolution settlement starts to break down because of irreconcilable differences between the devolved Administrations and the UK Government on fundamental issues relating to the allocation of structural and regional funding within the UK.
The position that we are in, which is why I think it is so important that the noble and learned Lord presses his amendment, is this: can we simply take the rather vague assurances that the Minister has given us today as being sufficient? In respect of the operation of the whole devolution settlement, which is something that one would expect to roll over from Government to Government as a part of our constitution, I do not think that the assurances which have been given as set down in Hansard are sufficient. It is important to have them in statute. Thus, I think that the arrangements that the noble and learned Lord has set out in his Amendment F1 are absolutely appropriate to what we are facing in this area.
The other reason is that in my experience, people’s past behaviour is always the best guide to their future behaviour. On the basis of the Government’s past behaviour, I do not believe that we can accept those assurances as being sufficient. This is the Government that introduced the towns fund under which Ministers themselves could decide on a wholly arbitrary basis that was not related to any objective statements of need, how they would allocated hundreds of millions of pounds—I think in the end billions of pounds under the fund; I have just been told £4 billion—based on arbitrary and essentially political criteria. How can we accept a vague assurance about consultation with the devolved Administrations when we know that that is how Ministers of the Crown have behaved?
It seems to me to be absolutely essential, not simply desirable, that we put into statute the requirements of the noble and learned Lord’s Amendment F1. They seek that the Government should make these further investments only after consultation, which is the crucial element of his proposed new wording for Clause 48
“on the principles under which financial assistance may be provided by a Minister of the Crown.”
That would set out in law the requirement that there must be consultation on principles.
If I have a concern about the noble and learned Lord’s amendment, it is that it is too weak. This is the classic problem when one starts to compromise. You end up by giving up too much ground. As I read it, I think that the wording of his amendment is too weak because it requires consultation on principles. On my reading of the amendment, it does not require the consent of the devolved Administrations to disbursements that are made in respect of additional investments like the Shared Prosperity Fund.
I will put this to the noble and learned Lord: what would happen if, having consulted, the United Kingdom Government do what they now seem to do routinely—the Prime Minister has told us that he does not believe in devolution—and simply override the view of the devolved Administrations and decide on a political basis to make what are essentially politically motivated investments anyway?
I hope the noble and learned Lord can disabuse me, but my reading of the wording of his new amendment is that the United Kingdom Government would, having consulted, none the less be able to ride roughshod over the devolved Administrations and decide what they want to do for political reasons in London and Westminster. The noble Baroness said—we liked her words—that she was seeking to give backing to the principle that it is not the case that Westminster knows best; my reading of the state of the law, which is what will matter on these things, is that it would be perfectly okay for future Governments to say not only that Westminster knows best but that the Conservative Party knows best and will distribute funding in Scotland, Wales and Northern Ireland in respect of Conservative Party priorities and not any priorities agreed with the devolved Administrations.
I strongly support the noble and learned Lord’s amendment. It goes to the heart of what will happen to devolution after Brexit. My concern is that, in the process of compromising as this Bill has gone through, the amendment is too weak to deliver the objectives which the noble and learned Lord so rightly set out.
My Lords, I have had three more requests to speak. I will take them in order: the noble Lord, Lord Liddle, the noble Baroness, Lady Bennett of Manor Castle, and then the noble Baroness, Lady Noakes. I call the noble Lord, Lord Liddle.
My Lords, the serious point here is whether responsibility for economic development measures, which are the purpose of the shared prosperity fund, will be devised, agreed and undertaken with the consent of the devolved Administrations and devolved bodies in England.
Last time I spoke on this, the Minister claimed that the distribution of EU funds was decided in Brussels. That is not the case, as she well knows. As I am sure the noble Lord, Lord Callanan, would confirm on the basis of his great experience of European matters, the EU established criteria against which funds should be spent and rules for determining the areas of greatest need, which were based on the relative GDP of an area in the European Union—which areas were Objective 1, which were Objective 2, and all the rest. It did not decide on individual projects. That was never determined in the Commission.
The way individual projects were decided under the structural funds—as I think Conservative and Labour Governments have practised since the 1990s—was on a bottom-up principle, which I think the noble Lord, Lord Heseltine, probably started off agreeing with. If we were to have effective economic development, it had to have the buy-in of local areas, and of the nations when we had devolution. The best way to do this was through mechanisms that brought together locally elected people with businesspeople in bodies at local, regional and national levels to determine which projects should be prioritised.
As I understand it, the present proposal is that, instead of this devolved system, which has worked reasonably well over the past few decades, this Government want to take power to centralise decision-making. The precedent for this—as my noble friend Lord Adonis mentioned—is the towns fund, which is a completely centralised pork barrel dished out to Members of Parliament representing constituencies that the Conservative Party has recently won. That is what the towns fund is. I know from my own county, Cumbria, that Carlisle, Workington and Barrow will be recipients of towns fund money. Why? Yes, they have great needs, but it is because they have recently elected Conservative Members of Parliament.
Now we are told that we will have a levelling-up fund as well as a towns fund, and this shared prosperity fund. These are significant amounts of money, which Ministers will decide and civil servants will implement. What will the role of local bodies be? For instance, I noticed that when the Minister was talking about her plans to consult people, there was not a single mention of the role of local enterprise partnerships in England, yet they were the great innovation of the coalition in 2010. What has happened to them?
There are also the mayoral authorities and the devolution of economic powers to mayors; many of us on the Labour side were strong supporters of this, but George Osborne also drove it very strongly with the proposals for the northern powerhouse. I heard nothing from the Minister—perhaps she will come in on this and tell me I am wrong—about the northern powerhouse, what mayors should be doing or what the role of local enterprise partnerships should be. I find all this very puzzling.
This is extremely serious when it comes to the nations of the United Kingdom. The biggest beneficiary of the proposals the Government are insisting on pushing through will be the Scottish nationalists. They will say that this is the Westminster Government taking back their spending powers and instituting a totally centralised system, when we know from experience all around the world that centralised decision-making on economic development questions simply does not work. I ask the Minister to think again.
My Lords, I will speak very briefly in favour of Motion F1 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd. I thank him for his strong and determined pursuit on this issue over the many stages of this Bill. I join the noble Lord, Lord Adonis, in hoping very much that we will see our Opposition Front Benches support this and push it forward.
I will refer to many of the same issues that I raised on Motion B; we are talking about local control and local prioritising, as the noble Lords, Lord Adonis and Lord Liddle, have said. Without this amendment, this Bill would take financial control away from the devolved Administrations—money is power, as we know. I think it was in Committee that I raised the phrase “pork barrelling”, which has reappeared again and again. This is heading towards an American-style politics, and we have many reasons why we would not wish to head in that direction.
This means in practice that if you have, as we do, an Administration in Westminster who are keen on building new roads—even though they just create more air pollution and new traffic—and airport expansion, and not on spending on nature, that priority will be forced on to local devolved Administrations.
I slightly disagree with the noble Lord, Lord Liddle, who held up as a model local enterprise partnerships and the previous model under the coalition Government; business and elected people is one partnership, but I would like to see something which is much broader and takes in all elements of the local community.
I have been seeing a great rise in enthusiasm across many parts of government for deliberative democracy, for the climate assembly and the people’s assembly approach—the chance to bring together representative groups of people to make decisions. Given that increase in enthusiasm, I would like to see it written into the Bill. Perhaps we will pursue it in the future.
I come back to my point from the debate on the previous amendment about the issue of coercive control raised by the Domestic Abuse Bill. That explicitly looks at financial control as a way in which people in households exercise unequal control. I hope that your Lordships’ House would agree that in an ideal household, everyone has a real and equal say in the spending of financial resources and a real chance to have their say. I would be interested in the noble and learned Lord’s comments on this; the noble Lord, Lord Adonis, said that this was in consultation. I agree that we should have the word “consent” in this amendment. We are talking about democracy, about people having their say and about how we would like to see our nations run.
My Lords, when the Minister introduced the Motion, she explained clearly that the other place had claimed financial privilege and that it was customary for this House to respect that decision made by the Speaker. The noble and learned Lord, Lord Thomas of Cwmgiedd, said that this was not a financial issue. I respectfully say to the noble and learned Lord that it is not for this House to determine whether or not it is a financial issue. As I understand it, it has been accepted by this House for a very long time that the final arbiter of what is or is not a financial issue for which privilege can be claimed is the other place, through its Speaker. If we continue to disregard the Commons claim of financial privilege in relation to amendments we send to the other place for consideration, we not only show a lack of respect, particularly to the Speaker, but might be starting on a route to a constitutional clash with the other place, which would be most unfortunate.
When I sat where the noble Baroness, Lady Hayter, sits, many years ago, we often faced financial privilege being invoked against amendments we were pleased with ourselves for having sent back to the other place for consideration, but we always respected that decision when it came back. I hope that the noble Baroness, Lady Hayter, will continue that tradition in this place. Does the Minister know of any precedence for this place insisting on its amendments not once but twice in the face of a financial privilege claim by the other place, and does she agree with me that this is not a path down which this House should go?
Does anyone else in the Chamber wish to speak?
There is almost no one left in the Chamber who has not spoken. This has been an interesting debate and, no doubt, the Minister is carrying away lots of advice from some of the Benches. I thank the noble Lords, Lord Adonis and Lord Liddle, for their passion. If that passion is matched by votes in the event that the noble and learned Lord, Lord Thomas, decides to ignore the advice of the noble Baroness, Lady Noakes, and press this to a vote, I will have more excitement because otherwise, it is merely a rhetorical gesture.
The noble and learned Lord set out his view on devolution. It is quite clear, as was set out a number of occasions, that in the structural fund process, which this will herald the replacement for, the devolved authorities were in the driving seat of deciding where and on what the money was spent. It is not clear from anything the Minister said today, or in answer to questions last time, that the Government will not seek to impose things on the devolved authorities. The Minister said there would be governance structures; it would be interesting to hear how those governance structures will be introduced and what the Government envisage. In other words, do central Government have the veto in deciding what goes where? In the end, that is the difference between this being genuinely consultative and, as we have heard described around the House, a Westminster-knows-best process. Consultation is fine but only if it is adhered to.
My final point on the quantum of money and its distribution comes back to a question I asked earlier. I think the Minister said that the amount of money envisaged to go into the shared prosperity fund is equivalent to that which came through the structural fund. The Minister also indicated a much broader remit for spreading that money around than was the practical reality of the structural fund. How will the Government manage the process of certain areas that have been particularly well funded through the structural fund, such as Cornwall and Wales, getting less money if there is no increase in funds and they are spread more widely? Furthermore, the European Union distributed that money using classifications of need, so how will the UK Government develop those? Do the Government envisage that they will be different, and can they undertake that they are transparent?
In conclusion, if the noble and learned Lord, Lord Thomas, decides to call a vote, we on these Benches would support it, but there are a lot of questions we would be grateful if the Minister could answer.
My Lords—[Inaudible]—on earlier discussions around this issue and the issue that will come up in the next group of amendments on state aid and spending as a result of moneys which may be available to support that. We should pause and take note of the fact that the noble and learned Lord, Lord Thomas, has engaged with this issue again despite the view taken in the other place that it is a financial privilege. The noble Baroness, Lady Noakes, is right in saying we are in a difficult area. I am not sure how the comments from the noble and learned Lord, Lord Thomas, will take him forward. He certainly has a point, but I do not think this is the right amendment or place to explore it. It needs a wider perspective. Many of these issues date from time immemorial; it is important to respect them and understand where they come from, but they should not block debate and discussion on key issues.
The issue the noble and learned Lord is raising, which has also been picked up the Minister, is how, in the future, possibly using statecraft—whatever that is—we will manage spending in the devolved areas, which are not reserved, when the funding mechanisms are different and have to be adapted to meet current arrangements. There are issues that will need to be addressed in the future, but we covered a lot of ground in earlier debates, and I thought the points made by the Minister on the shared prosperity fund were sufficient to ensure that we do not need to go back over this again. It is not our view, as Her Majesty’s loyal Opposition, that we need to divide the House on this issue again.
If the issue is common between us, we need to understand where we can get to in respect of comments made from the Dispatch Box. The noble and learned Lord, Lord Thomas, made a number of good points and asked a number of questions, and I am sure the Minister will respond to them. I do not think the points added by my noble friends Lord Adonis and Lord Liddle vitiate that approach; they made a good case that we will need more in this area in the future, but this is not the right amendment to take us down that route.
I would like to make a point about current problems I have observed from my interest in Erasmus+. I asked the Library to do a bit of work for us and it has been very revealing. We have a good example of something that is definitely going to cause difficulty. I do not expect the Minister to have all the answers, but I pose the questions because they are a good example of the issues being raised here.
Looking at the way in which Erasmus will go forward, it is quite likely that the final result of the current discussions in Brussels will be that we will no longer be able to apply to it. Or will we? Would it be possible, for example, for Scotland, Wales and Northern Ireland to be individual members of Erasmus schemes, even though the UK is not part of that? I do not think we know the answer but that would certainly be of interest.
This issue has received a lot of attention in Northern Ireland. It has not been dealt with in this Bill, but as I understand it from the Library, it looks as though students in Northern Ireland—whether from the Republic of Ireland or from the United Kingdom—will be eligible to apply for Erasmus+. Funding will come partially from the Republic of Ireland but also from the institutions themselves and the EU. That puts Northern Ireland in a different place in relation to the protocol. It is certainly going to make a difference to the education that will be provided in Scotland, Wales and England if that goes ahead and other areas do not.
It is well known that discussions are ongoing between England, Wales, Northern Ireland and Scotland, about how, if necessary, an Erasmus+ replacement can be put forward. It seems from the latest information I have that it would be done through the powers in this Bill. The complaint that I am hearing—and not just from one source—is that the arrangements for the schemes being proposed by the UK through the Department for Education and Skills will not be sufficiently recalibrated to suit Scotland and Wales. That is not a very satisfactory situation.
I am not going to make any large claims on this—it is not an issue for today—but it is a good example of the problems that will be caused if we do not have sufficient regard to issues that are not reserved and can be deployed by the devolved Administrations. Their history has involved spending in these areas, but the UK Government now think they have a right through this Bill to make decisions which may adversely—or in other ways—affect future generations of students. It is a big problem, and the Minister should reflect on that when she responds.
As the noble and learned Lord, Lord Thomas of Cwmgiedd, said, we need to think harder about how and where we operate—we should not just be thinking about a consultative, consent-seeking mode. We should be thinking harder about what works best when done from the bottom end of the prospective policy, what works best jointly through common frameworks or market access principles, and what has to be done by the UK. I am not sure we have quite got to the bottom of that in these debates.
My Lords, I thank all noble Lords for their contributions to a debate that was slightly longer than the one we had during the previous round of ping-pong. I will address the points made by the noble and learned Lord, Lord Thomas of Cwmgiedd, and in doing so I hope to address those made by other noble Lords too.
On financial privilege, I very much welcome my noble friend Lady Noakes saying that this is not a decision by the Government but one taken by the Speaker in the House of Commons. I do not have an answer for her on whether there are any precedents for twice resisting financial privilege as a reason given by the Commons, but it must be highly unusual. This is not the place to raise further constitutional questions in bringing that principle into doubt in this Bill.
The noble and learned Lord talked about a principled basis for the spending powers being taken through this Bill. I completely agree with him on that. He spoke of consultation, the establishment of principles and advice from jointly appointed advisers. We do not propose a structure involving jointly appointed advisers, but we do plan to have the devolved Administrations represented in the governance structures for the fund. I apologise to the noble Lord, Lord Fox—I cannot give further details of how that will work at this stage; we will work on that with the devolved Administrations. There are further stages to come in the development of the shared prosperity fund, its governance and the principles around it, after this debate and in future. As I have said to noble Lords before, the fund will not be introduced until the following financial year, which gives us time to work through some of these details.
I hope I have made it clear to noble Lords that the Government have already been engaging in consultations on the shared prosperity fund. To date, we have conducted 25 engagement events across the UK, attended by over 500 stakeholders, including the devolved Administrations. The noble Lord, Lord Liddle, made a good point about LEPs and mayoral authorities—of course we will want to consult and collaborate with those organisations as well as the devolved Administrations as we take these proposals further. Those mentioned at the Dispatch Box were not an exclusive list of those whom we wish to engage, but the debate has focused very much on the question of devolution.
As for the establishment of principles, raised by the noble Lords, Lord Fox and Lord Liddle, and others, there is not a huge amount of disagreement here. The EU set the terms and conditions for investment in the UK as well as other member states, with which the UK Government and the devolved Administrations alike had to comply. Devolved Administrations and other areas were then responsible for managing EU funds in those projects. The idea of setting out principles in a framework and then collaborating in local delivery is very much something we wish to take forward. We have set out some of those principles already in the heads of terms for the shared prosperity fund that we published at the spending review. We have said that a much more detailed investment framework will be published in the spring, following further discussions.
Regarding the focus of that investment, I would have thought the noble Baroness, Lady Bennett of Manor Castle, would welcome our saying at the spending review that investment should be aligned with the Government’s clean growth and net zero objectives. Those are the kinds of principles we have already set out and that we want to see in the investment from these funds.
On the establishment of principles and the conduct of consulta