Moved by Baroness Finlay of Llandaff
33: Clause 8, page 6, line 21, leave out paragraph (d) Member’s explanatory statementThis amendment is consequential on the amendment in Baroness Finlay's name which leaves out Clause 10 and inserts a new Clause. It removes the provision that a relevant requirement is indirectly discriminatory if (among other things) it cannot reasonably be considered a necessary means of achieving a legitimate aim. The issue is addressed more generally in the new Clause 10.
My amendments in this rather large group seek to achieve three different objectives which are in many ways complementary to one another, but in what is perhaps a belt-and-braces way. Amendment 54 would insert a new Schedule 1. It perhaps more properly belongs with an earlier group, because it is intimately related to Amendment 6 which we debated on Monday. Although Monday no doubt already seems a distant memory, your Lordships may recall that Amendment 6 was intended to restrict the application of the market principles to policy areas where an attempt had been made to develop a common framework but agreement had proved impossible to reach. The proposed new Schedule 1 provides a list of areas in relation to which regulations may be brought forward to apply the market access principles. It is a list of those areas where common frameworks which require legislation are currently in development.
It should be noted that this list is not intended to be unamendable. Obviously, over time, the list will need to change. Should the Government ever be able to identify an area which is not already in the common frameworks programme but where they believe there is a serious threat to the internal market, something which the Minister has so far singularly failed to point out, Ministers will be able to add to or amend the list by statutory instrument, having consulted the devolved Governments. I emphasise “having consulted”, because there is deliberately no requirement to obtain the consent of the devolved Governments in this instance.
I note that the Welsh Government, who originally drafted these amendments, have gone to great lengths to allay the potential anxieties of Ministers here. I think it is a fair-minded and sensitive strategy, in contrast to some of the things that we have seen, because neither one nor all the devolved Governments could veto the inclusion of new subjects in the list of areas to which market access principles could be applied by regulation.
I now turn to the second block of amendments in my name in this group: Amendments 33, 34, 50, 55, 56, 60, 80 and 95. They all have the same objective: to increase the scope of potential exceptions to the application of the market access principles. At Second Reading, many noble Lords pointed out that while the Government refer to the precedent of the European Union in seeking to impose the market access principles —something which one might have expected would rather stick in the throat of Ministers—the comparison is inexact. European legislation frequently gives discretion to member states, and therefore sub-state Governments, according to their powers and competence, to vary the approach to standards for goods, and indeed services and professional qualifications, where there are sound public policy reasons for doing just that.
To take an example noble Lords have used, the directive on single-use plastics allows Governments to choose whether to ban all, or only some, of the nine types of materials listed in the directive. Another example is that of genetically modified crops, where Governments can choose whether or not to ban them, and Administrations in different parts of the United Kingdom have made different choices.
Amendment 50 therefore seeks to add a much broader list of public policy exclusions from the market access principles in respect of goods in the body of the Bill, instead of in a schedule. Amendments 33, 34, 55, 56 and 60 are all consequential on this change.
Amendments 80 and 95, in similar fashion, seek to provide the devolved Governments with more scope to protect devolved competence in respect of services. The Bill as drafted would only allow direct discrimination, itself a somewhat biased terminology to use, of a decision by a legislature to exclude service providers operating at a lower standard in another part of the United Kingdom—and that is in the case of a public health emergency. Amendment 80 would extend this to include also any other overriding reason related to the public interest. Thus, for example, were the Welsh Government to decide that they wanted to introduce a national licensing system for individuals who undertook body piercing—because of the risk of health and well-being being damaged from botched operations—they would be able to ban body piercers who might legitimately be able to practice in England where there is no such requirement. Without this amendment, that would not be so.
Amendment 95 would allow a devolved Government to use the justification of a “legitimate aim” of public policy where regulation directly discriminates against service providers from the other parts of the UK. No doubt the Minister will argue that this leaves too much discretion for the courts to decide what constitutes an overriding reason related to the public interest or a legitimate aim. But I would say that we in this House believe that there is a greater threat to the constitutional order from the overreach of the ministerial powers than there is a threat from the judiciary.
I would add here that there are other amendments in this group which seek the same objective, and which I support; notably Amendment 36, from my noble and learned friend Lord Hope, and Amendments 35, 51, 57 and 58, from the noble Lord, Lord Stevenson of Balmacara.
The final amendment in this group, Amendment 174, seeks to resolve a conundrum which has occupied your Lordships’ House on other recent Bills, notably the Trade Bill and the Agriculture Bill: we have a Government that insist that the idea of deregulation in food standards or environmental standards is an anathema to them but who robustly reject any attempt to put guarantees to that effect in legislation. Amendment 174 gives the Government a light-touch way of demonstrating that this commitment is genuine and to prevent, without further primary legislation, any subsequent, less principled Government embarking without further let or hindrance on a deregulatory spree. It would require any Government, in introducing legislation relating to areas in which the market access principles might apply, to have due regard to the need to maintain high levels of protection, and to publish an analysis of whether the measure in question would maintain, increase or reduce such protection. This would not prevent a legislature moving ahead with legislation which lowered standards, but it would mean that it would do so in the full knowledge that that is what it was doing.
I said at the start of this speech that these amendments were belt and braces in approach. If the Minister were inclined to accept the approach of limiting the application of market access principles to areas where it has proved impossible to reach agreement on common frameworks, I and my colleagues might feel less determined to pursue the other amendments in this group. Conversely, only if the Government were to bring forward similar amendments to widen the public policy exceptions and increase the scrutiny of whether a Government are diluting protection would I be willing at this stage to think again on the amendments, which would make it impossible for the Government to short-circuit the patient work of agreeing common frameworks. I return again to the theme of building consensus and building agreement. That is the way for us to move forward as a single United Kingdom.
My Lords, I have put my name to Amendments 35 and 51, which have a number of near relatives in this group. The noble Baroness, Lady Noakes, reminded us earlier today that the purpose of the Bill is to facilitate trade and that different rules in different jurisdictions create costs to business and so may operate against the consumer interest. That is a highly respectable economic argument against devolution, but devolution has been implemented and the logic of devolution is diversity—including, as the noble Lord, Lord Liddle, said, the ability to experiment.
A devolved power to regulate is valuable only if it can be used to give effect to a policy objective of a devolved Administration. Its use will be pointless and damaging to businesses in the devolved territory if non-conforming goods, unencumbered by the higher local standards, have to be admitted from elsewhere. A single market that inhibited the rational, proportionate and non-protectionist use of devolved powers in pursuance of vital policy objectives would put devolution into reverse. This is shown by the fact that it was deemed necessary to exempt existing measures from the market access principles. It would also, of course, be a never-ending source of grievance for nationalists and separatists.
In connection with that, there are two puzzling features of the Bill. The first is the small number of aims that it even acknowledges as legitimate. I do not, myself, insist on all the drafting of Amendment 51—I recall that the European concept of sociocultural characteristics mystified the courts during the Sunday trading litigation—but why is there no place in the Bill for aims as basic as environmental protection save, curiously, in relation to fertilisers and pesticides, and consumer protection? If aims as important as the protection of public safety and security may justify indirect discrimination, as Clause 8(6) provides, why must those same aims, however compelling the circumstances, give way to outside business interests in every case of direct discrimination or mutual recognition of product requirements?
The noble Lord, Lord Callanan, said earlier that we need not slavishly copy the EU single market and he is right—successful, as I am sure he will acknowledge, as that single market has been. However, with respect to him, that is not a sufficient answer. The issue did not go away when we left the EU, and it needs to be addressed on its merits and with proper respect for our own devolution settlement.
The second puzzling feature is the patchy treatment of such aims as are acknowledged, particularly public health. That aim is most broadly expressed in Clause 8(6), but as a potential justification only for indirect discrimination. Paragraph 1 of Schedule 1 provides a general exclusion relating to the movement of pests and disease but paragraph 2, on the movement of unsafe food and feed, applies only to mutual recognition while paragraph 5, on public health emergency, applies only to direct discrimination. The problem with defining permitted public health derogations in such a limited and piecemeal fashion is that, outside the scope of those derogations, policies motivated by public health, however necessary and well-designed they may be, must always give way to trading interests, without any ability to balance the competing factors.
An injection of principle is needed here. That principle, I suggest, is that:
“All the exceptions should apply to the entire panoply of market access rules.”
Those are not my words but those of Dr Peter Oliver, practitioner and author of the leading academic text on the free movement of goods, commenting on the Bill on the “EU relations law” blog. The same principle infuses Amendment 52A in the name of the noble Lord, Lord Young of Cookham, and I support it for that reason. Its list of legitimate aims is disappointingly short, but since the noble Lord has also put his name to Amendment 35, perhaps there is nothing between us on that. To accept that all the exceptions should be capable of applying to all the market access rules need not cause trade to suffer, because the application of those derogations would be regulated, as it is in federal and devolved jurisdictions across the world, by strictly expressed constraints based on necessity, rationality and proportionality.
If the Government are concerned about their ability to include devolved markets in a US trade deal, I add that countries from Canada to Switzerland—and, indeed, the EU—have proved perfectly capable of entering into international trade agreements irrespective of their internal allocation of powers. Consultation, consent and co-ordination are surely the keys.
Most of the amendments in this group would function as shock-absorbers. Their purpose, as I see it, is not to wreck the Bill but to remove genuine grievances on the part of the devolved Governments, weakening the case for separatism and rendering the market access principles, in the areas where they may be necessary, operable in the long term. I hope they will be viewed as the constructive proposals that I believe them to be.
Finally, I endorse the strong comments of our committees, and of other noble Lords, as regards the excessive and extremely troubling powers given to the Secretary of State by, among others, Clause 8(7) and Clause 10(2). In this group, Amendments 39A and 47A, in the name of the noble Lord, Lord Young of Cookham, would retain those Henry VIII clauses, but restrict their use to the adding or broadening of legitimate aims and exclusions. We would be authorising King Henry to act benevolently, but not, in the phrase attributed to Sir Edward Leigh, as “a bastard”. That course, though not for the constitutional purist, has a certain pragmatic attraction, at least for me.
My Lords, I have listened to the vast majority of the debates today and I have actually been shocked by some of the speeches: they were, unusually, wonderfully tough and very critical. Therefore, I hope that Ministers are actually listening and understanding that we are trying to help. It thrills me to be speaking alongside so many incredible noble Lords; in particular, the forensically brilliant noble Baroness, Lady Finlay of Llandaff, and the amazing legal minds of the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Hope of Craighead. It is very comforting to be in agreement with them.
Noble and learned Lords will go into the intricacies of EU law, which is, of course, incredibly important, but to me there is one very simple principle, which is that the Government have taken a decision not to be part of the EU’s single market, saying that it is a bulldozer and prevents our Parliament legislating on important policy areas. However, the Government then seek to create their own bulldozer, a new single market that flattens everything and does not even have the carve-outs and reservations that EU single market laws protect, such as legitimate environmental and health policies. There are times when a bulldozer is the perfect machine, but not in this legislation. It is totally false of the Government to make any comparison of this UK internal market with existing EU arrangements without including any of these policy protections and derogations. The Bill actually represents a huge centralisation of power in the UK Government, and tramples over existing legislative rights of the devolved Parliaments, as many noble Lords have said already.
It also demonstrates what I see as the extremist view of this Government—that the free market and capitalism should override everything else, and that there is no legitimate policy that can challenge the free market. That is completely wrong and fundamentally at odds with what the majority of people in this country believe. For me, this legislation is a dangerous wolf that the Government are trying to dress in populist sheep’s clothing as somehow defending us from the hostile manoeuvres of the European Union. The truth is something else entirely: this is an important building block in the extremist ideology of a hypercapitalist future in which the market subverts and consumes everything else. Noble Lords must oppose this.
My Lords, Amendments 39A, 47A and 52A are in my name and those of the noble Baroness, Lady Northover, and the noble Lord, Lord Faulkner of Worcester. They have the support of Cancer Research UK, the Faculty of Public Health and the British Heart Foundation along with Action on Smoking and Health and the Alcohol Health Alliance UK, for whose briefing I am grateful.
The amendments address some of the concerns expressed by the Scottish and Welsh Governments over the Bill, regarding a risk of a race to the bottom in relation to public health. They also complement amendments in earlier debates that sought to restore the flexibility that exists under the common framework for legitimate variations in approach within the component parts of the UK—a common theme that has run through our debates this week—so my amendments are another pair of braces for the belt of the noble Baroness, Lady Finlay.
The noble Lord, Lord Anderson, in a remarkable speech, mentioned public health. Public health is an essential part of this debate; Covid has finally brought home to us the importance of what was previously the Cinderella service of our healthcare system. To quote the Secretary of State for Health:
“The first responsibility of any government is the protection of its citizens, and threats to public health are among the most important of all.”
So it is critical that the provision of market access is balanced against the ability of Governments to protect the health of their citizens.
With regard to goods, the Bill describes exemptions in two places: Clause 8(3) and in the list of legitimate aims, including the protection of human, plant or animal health, public safety, along with a number of other more specific exclusions in Schedule 1. In both instances the Secretary of State can amend the core principles of the Bill, which are quite rightly enshrined in primary legislation, and he can do so by regulation. Again, that has been a consistent theme throughout our debate.
The House of Lords Delegated Powers and Regulatory Reform Committee has raised serious concerns that the power included in Part 1 to amend, repeal or otherwise modify legislation by regulation is inappropriate as drafted and should be removed from the Bill. The Marshalled List is full of amendments raising objections to these powers. My amendments focus specifically on the impact on public health.
The ability to alter these regulations matters. Take, for example, minimum unit pricing for alcohol, as currently exists in Scotland and Wales. The Government have argued that new policies similar to minimum unit pricing would be possible under the Bill because they are covered by the non-discrimination principle, so there is a pathway through which they might be justified. Minimum unit pricing might be a necessary means of achieving the legitimate aim of protecting human health. In future, though, through a simple affirmative resolution procedure the Secretary of State could modify that list of legitimate aims to remove the justification of protecting human health so that that was no longer the case. That is an insufficient safeguard for future legislation to protect our health, and the amendment would prevent that. The reach of market principles is so broad that a number of other potential policies, including regulations to restrict the availability of alcohol, attempts to raise the age of purchase for cigarettes, restrictions on children buying sugary drinks and other legitimate public health measures, could all be similarly vulnerable.
I turn briefly to Amendment 52A, which aims to expand the reach of the public health exclusions listed above. The proposals contained in the initial White Paper would have posed more potential risks for public health, but the Government have listened and have put in the protection of being a
“necessary means of achieving a legitimate aim”, as I mentioned earlier. This is very welcome, but the protections are unevenly applied, allowing legislation that aims to protect our health and safety to be justified in some instances only. This is because the Bill contains two market access principles, non-discrimination on the one hand and mutual recognition on the other. Currently, only non-discrimination can be overridden by a policy that is shown to be necessary to pursue a legitimate aim. Mutual recognition contains no such clause. This is different from the status quo, where a general exclusion for the protection of human health against a broad range of other aims exists. It is in that respect a step backwards, a point made by the noble Baroness, Lady Finlay. This difference is significant, as mutual recognition covers characteristics of goods such as packaging, content and labelling, all key areas of public health.
To take one example, 40 years ago, when I was a Health Minister under Margaret Thatcher, I argued for a health warning not just on cigarette packs but on individual cigarettes. If, for example, the Welsh Government legislated to do exactly that, I would be delighted to see it implemented but, because this is subject to mutual recognition, Wales would be unable to require it for cigarettes coming into Wales from other parts of the UK, even if they were originally produced overseas. A range of similar examples includes calorie labelling on alcohol, as proposed by the Department of Health and Social Care; including information about the medical officer’s low-risk guidelines, something that Scotland has expressed some interest in legislating on; improved front-of-pack warnings on cigarettes; or even policies such as restricting the amount of sugar in goods sold in Scotland. That was an example given in the Scottish Government’s legislative consent memorandum.
Finally, this could also impact on England. Let us take, for example, the current plans of the Department of Health and Social Care to consult on requiring calorie labels on alcohol products to help reduce obesity in England. Once more, if England implemented this requirement, it would not be able to enforce it on alcohol sold in England but produced, or even first imported, into other parts of the UK.
We have made great strides forward in public health, in part because the swiftest moving parts of our union have been able to lead the others. England led the way on restricting tobacco displays in shops. Scotland and Wales are ahead on policies such as minimum unit pricing. This lack of a broad public health exclusion risks this advantage being inverted and our pace being locked into the slowest moving of our constituent parts. I know that the Minister will have taken note of the concerns raised by noble Lords in this debate and that he will endeavour to meet them, but I hope that between now and Report there will be discussions with a view to finding acceptable amendments that do not prejudice the key pursuit of legitimate public health objectives.
My Lords, I am in sympathy with the words just uttered by the noble Lord, Lord Young of Cookham, but I wish to speak to my own amendment, Amendment 36, and I am grateful to the noble Baroness, Lady Finlay, for her support.
My amendment is concerned with the meaning of words and, to some extent, achieving compatibility, as far as possible, with devolution legislation. It is directed to the definition of the expression “legitimate aim” in Clause 8(6), which sets out two aims, one of which is
“(a) the protection of the life or health of humans, animals or plants”.
If the draftsman of the Bill was to look at Part 1 of Schedule 5 to the Scotland Act 1998, under heading C5 he would find similar words set out in one of the exceptions to the reserved powers; that is, exceptions which mean that the things described are within the devolved competences of the Scottish Parliament. It refers to the
“protection of animal products, plants and plant products for the purposes of protecting human, animal or plant health, animal welfare or the environment.”
My point is that what one finds in subsection (6)(a) takes part of what is found in that provision but misses out some other important words. The phrase I quoted from the Scotland Act draws a distinction between animal health and animal welfare. There is some basis for that distinction because there are things that are designed to achieve the welfare of animals that are not directly related to their state of health. So there is some force in considering the addition of “animal welfare” to the formula in that provision. It also refers to the environment, and nowadays, thinking of all the concerns we have about the environment, I would have thought one could, without damaging the purposes of the Bill, include the words “protection of the environment” within the formula of the clause.
These are drafting points. I draw them, if the Minister will forgive me, more to the attention of the Bill team and the draftsman of the Bill to see whether he can find room for including words in my amendment. It is to make sure that they cover what I take to be the broad aim of the language; it is the kind of discussion we might have had, had we been given time, around a table, discussing how those particular provisions should be framed.
I am not trying to damage the Bill or adjust it in any more significant way; I just want to see that the language used covers the aim of the provision fully and completely. It is on that basis that I brought forward this amendment.
I am grateful for the opportunity to speak in this interesting debate on these particular amendments, many of which I support. I will limit my remarks to Amendment 37 in my name; I am grateful to the noble Baroness, Lady Bowles of Berkhamsted, for her support in co-signing.
The purpose of Amendment 37 is to bring the definition of “legitimate aim” set out in this clause in line with the source of EU law as contained in articles 34 to 36 of the Treaty on the Functioning of the European Union. In particular, I refer to article 36 of that treaty, which states:
“The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified” on the grounds I set out in my little Amendment 37. It goes on to say:
“Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”
For reasons similar to those set out by the noble and learned Lord, Lord Hope, in speaking to his Amendment 36, I think that it will be helpful to have
“public morality, public policy … the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property” brought into Clause 8. This would be a drafting improvement, so I also make a plea to the drafting team in that regard.
I listened with great interest to what the noble and learned Lord, Lord Hope, said on adding the regulation of animal welfare. It goes to his point in a debate earlier this week on the link between this Bill and the Agriculture Bill, particularly regarding the marketing standards covered by Clause 39 of the Agriculture Bill. It would help enormously if we could have some seamless references across different Bills—in this case, the Agriculture Bill and the Bill before us this evening, the UK Internal Market Bill.
With those few remarks, I am grateful to have my noble friend consider favourably Amendment 37.
My Lords, I added my name to Amendment 37, tabled by the noble Baroness, Lady McIntosh. However, there are several other amendments on the same theme, all highlighting important considerations that should be legitimate aims. The legitimate aims in Amendment 37 have been in use from the EU treaties, as the noble Baroness, Lady McIntosh, explained. That makes a starting point: they have been tried and tested as well as embodying the status quo, even though, as the noble Baroness, Lady Finlay, and the noble Lord, Lord Young, explained, in the EU, they apply in a wider context to mutual recognition as well.
I also see merit in the other amendments itemising and making certain various objectives, such as the heading of protection of public policy. I do not see the amendments as mutually exclusive, and the message is clear that Clause 8(6) is presently not wide enough. I am sure that the Minister may say that it could be amended by the Henry VIII power in Clause 8(7), but that is worrying in itself. It should be got right here, using a combination of broad categories such as protection of public policy and other fundamental ones.
I am also taken with the formulation used by the noble and learned Lord, Lord Hope. He has already explained well the basis of where he got the subject matter, but I was interested that he referenced regulation, which is rather more precise than an objective. It seems that that might tie it in to the extent of devolved powers as expressed through regulation and make it simpler to adjudicate. That is a point worth examining further to see whether it has any useful significance in a wider way.
My Lords, I wish to draw the Committee’s attention to the risk to future public health policy as a result of the inconsistent nature of this Bill and focus on the impact of artificially splitting the public health exclusion so that it applies unevenly across the market access principles.
I will concentrate on Amendments 39A, 47A and 52A —tabled by the noble Lord, Lord Young of Cookham—to which I have added my name and which are also supported by the noble Baroness, Lady Northover. As the noble Lord, Lord Young of Cookham, said, the exclusions to the market access commitment differ between mutual recognition and non-discrimination. I struggle to understand the rationale of legislation that recognises the importance of allowing policy that is necessary to protect some aspects of human health but provides no equivalent avenue for others. This is not a continuation of how our internal market is currently regulated, but a significant departure from it.
The example of minimum unit pricing for alcohol, which was mentioned by the noble Lord, Lord Young, illuminates the risk of arbitrary distinctions. Much of the discussion in the House of Commons on this Bill’s health impacts revolved around its potential effects on minimum unit pricing, which arguably was covered by the mutual recognition principle. If it were covered by mutual recognition, this could have rendered any future similar policy—possibly even modifications of the existing minimum pricing regime—largely untenable due to the lack of a public health exclusion from mutual recognition.
In responding to this, rather than applying a public health exclusion to mutual recognition, the Government instead moved minimum unit pricing and similar manner-of-sale policies from mutual recognition. When introducing these amendments, the Minister in the other place said:
“We are taking the opportunity to put it beyond any possible doubt that alcohol minimum unit pricing-type regulation and any other sales requirements are not in the scope of the mutual recognition principle, unless they amount in practice to a total ban on a good being sold.”—[Official Report, Commons 29/9/2020; col. 189.]
While your Lordships may consider that this represents an improvement at face value, on closer inspection, it is a cause for considerable concern.
First, the Government’s decision to do this indicates that a thoroughly evidenced-based policy such as minimum unit pricing, which has steadily defeated challenge in the courts, might not have been possible if it were included within mutual recognition. That illustrates just how narrow the exclusions are to this principle.
Secondly, it demonstrates the risk that this Bill poses to future public health legislation. We know about minimum unit pricing, so we can modify the Bill to attempt to protect it, but it is not hard to imagine that we might in future see innovative and effective policy based on health labelling bans or content reformulation of alcohol, tobacco or food products. All these aspects would likely be subject to the rigid mutual recognition principle.
Lastly, regarding the amendments on the powers of the Secretary of State to amend the Bill through secondary legislation, the Delegated Powers and Regulatory Reform Committee concluded that the Government’s adoption in the Bill of wide-ranging Henry VIII powers, whereby:
“Any power to make regulations under this Act is exercisable by statutory instrument” and includes the power
“to amend, repeal or otherwise modify legislation” is completely inappropriate. In effect, it allows the removal or weakening by ministerial diktat of the limited public health protections currently included in the Bill.
At Second Reading, I discussed the importance of allowing the Governments of the four nations of the United Kingdom to protect the health of their populations and how that can lead to innovative policy solutions. The UK has been a leader in the past on tackling smoking, alcohol and sugary drinks. This legislation risks us being unable to embrace, let alone lead, key public health policies in years to come. Our amendments will protect the future of public health legislation, and I commend them to the Committee.
My Lords, it is a pleasure to follow the noble Lord, Lord Faulkner of Worcester, who, along with many other noble Lords in this group, focused on public health. Covid-19 has reminded us how unhealthy our society is and how inadequate current arrangements are.
Given that my noble friend Lady Jones of Moulsecoomb has spoken with great power and eloquence in this group, I will be brief and address only Amendment 51 in the name of the noble Lord, Lord Stevenson of Balmacara, to which I attached my name. That amendment would provide public interest defences on trade restrictions; environmental standards and protection; animal welfare; consumer standards; employment rights; the health and life of humans, animals or plants; cultural expression; regional sociocultural characteristics; and equality entitlements, rights and protections. These describe what should be the goals of a decent Government aiming to deliver a healthy life for all their citizens and the sustainable development goals that they are signed up to.
The term “public interest” makes me think of public money for public goods. I am aware that “public goods” has a technical definition but the parallels with “public interest” in this amendment are obvious. I cannot, therefore, see how the Government can oppose it, given that they want to spend significant sums of public money for some of the same goals through the mechanisms of the Agriculture Bill and the Environment Bill, whereas here we are simply applying standards to deliver public goods. I am aware that some Members of your Lordships’ House believe that trade, and the greater volume of it, is a good in itself and should be our primary or sole aim, but we come back to the question: do we work for the economic system, or does it work for us?
Many of these discussions have a distinctly Groundhog Day feeling and the Government may respond by saying, “Our intentions are good and we are trying to deliver all these things”. I come back to the word “dictatorship”, my use of which the noble Lord, Lord True, objected to. I reserve my own right to judgment on that. In fact, I do not have to go that far for the purpose of arguing for this or other amendments. We know that Prime Ministers and Governments have not had a long shelf life in recent times, and who knows how long this one will last? We are creating a legal framework and the possibility for action by any future Government, whatever they might look like. Giving the right to all devolved Governments to act on behalf of their citizens to defend them against chlorinated chicken or fruits laced with dangerous pesticides can be the only basis for continuing in a democratic manner.
My Lords, I declare my interest as chair of the Cornwall and Isles of Scilly Local Nature Partnership. I wish to speak to Amendment 52, although I support a number of other amendments in this group. That amendment has been tabled by the noble Baroness, Lady Boycott, who, in a topsy-turvy way, will follow me.
We have naturally and correctly been obsessed by the Covid-19 crisis, yet we still very much have the climate change issues—the loss of nature, the biodiversity challenge and a raft of other environmental issues of great importance, such as plastics, marine pollution and so on. Those challenges are not just global; they are national, as well as being regional and subnational. In the United Kingdom devolution is a fact of life and something that I certainly welcome. Those devolution principles allow the nations that make up the United Kingdom to be able to set their own standards in a number of areas. One key area where those standards can be different and which I believe has been particularly successful is the environmental area, and there is potential in climate change as well.
The history of devolution and different decision-making within the UK in the environmental area has been very positive. There has been almost a competition, if you like, to get ahead of other nations within the UK, and that way the bar has been raised in terms of environmental legislation and what we are trying to do. In fact, the word “experimentation” has been used previously. It is important to see what works in one part of the UK, as this is sometimes copied by others. The plastic bag policy in supermarkets, cotton buds, plastic straws—all are examples of one leading and others following. Indeed, as we have heard many times, even within the EU single market, member states have been allowed to have enhanced standards and have not been challenged.
The challenge is: how do we meet the environmental and climate crises that we have and still keep our internal market? To do that, we cannot rest on the status quo. We have to move forward on all those agendas, as indeed the noble Lord, Lord Callanan, will know well, being the Government’s climate change Minister. We cannot stay where we are and have business as usual.
We therefore need to keep these positive, competitive aspects of environmental and climate change legislation within our devolution in the United Kingdom while keeping that important single market. As has been said before in this debate, no one in this Chamber is looking to restrict that single market in any way in principle. But I believe that this Bill undermines our ability to meet our environmental objectives easily and quickly.
What does the blanket—as I see it—market access principle risk here? One thing we have is offshoring. We have been very good performers in the United Kingdom on our carbon footprint, but that is because a lot of manufacturing has perhaps gone to Asia. That is not the whole story, but it is some of it.
As the Bill stands, if we have stringent rules within one part of the UK, manufacturers would just move to another part of it and effectively import into those other regions or nations. That would be extremely negative. But one key thing would happen: rather than having a “raising the bar” competition between national authorities within the UK, we would risk moving the power to the corporate sector, which is more likely to look for efficiencies or the lowest standards in order to make sure that they can remain strong within the market. That would be a very undesirable outcome of this legislation, which is not the Government’s intention. We risk, potentially, more of a commercial race to the bottom. I have nothing against industry whatever—indeed, I wish to see it promoted—but this would change the power structure within the supply chain. It is as if the legislation were applying the harshest WTO rules internally to our own internal market.
We need to have sensible derogations that can avoid these downsides and outcomes. Amendment 52, in the name of the noble Baroness, Lady Boycott, is exactly what we need for the environment and climate change agenda and for the United Kingdom to stay ahead in this area, not just globally but nationally and regionally as well. Without such derogations, other environmental legislation at a devolved level becomes almost redundant, as it cannot be enforced because goods will come from elsewhere in the United Kingdom—or else devolution will become redundant in this area because, since England is the largest part of the market, Westminster will effectively decide the rules. That is why this amendment is vital.
My Lords, it is a great pleasure to follow the noble Lord, Lord Teverson. I thank him and the noble Baroness, Lady Jones of Moulsecoomb, for supporting this amendment. I very much agree with what the noble Lord, Lord Young of Cookham, said. I also agree with the noble Baroness, Lady McIntosh, when she said that, if this internal market Bill does not align with the Agriculture Bill, then something is wrong and we are missing a trick.
I have tabled Amendment 52, which seeks to introduce a derogation from the market access principles to allow all four nations to put in place proportionate measures to protect the environment, support the progressive improvement of environmental standards and tackle climate change. My concern is that, in the absence of an agreed common framework, we will not be able to protect existing high regulatory standards in cases where one nation wants to introduce something new and higher, in the environmental sense, for a particular good or service—although not legally prohibited from doing so, it could be disincentivised from doing so. Under the market access provisions in the Bill, goods from other parts of the UK would not have to meet those requirements if standards elsewhere were lower. Other Peers have spoken about this. It is about protecting us against a race to the bottom in setting environmental standards or measures to tackle climate change.
“It will protect our common causes, such as the setting of high standards in our economy”.—[Official Report, 19/10/2020; col. 1285.]
But the Bill does not give legislative effect to these commitments. It fails to create the proper framework and fails to deliver the safeguards and assurances needed to ensure that all four nations of the UK can legislate ambitiously, progressively and effectively to protect the environment. Currently, the Bill provides for exceptions only in a limited range of circumstances, such as preventing the spread of diseases or pests. Even then, this is only under very strictly controlled conditions.
Environmental matters generally fall within devolved competence. Regulatory divergence already exists within the UK and there have been a number of examples of really innovative policies which have delivered legitimate public policy objectives—and specifically progressive environmental rules. I know that this has been mentioned before, but Wales was the first country in the UK to introduce a charge on carrier bags. It is atrocious to think that that could somehow have been denied.
Amendment 52 would allow an individual nation to refuse mutual recognition on the grounds of measures protecting the environment or tackling climate change. To give a practical example of why this is so important, there have been mounting calls to ban the sale of horticultural products that contain peat. This is obviously to protect biodiversity, but also to avoid the extraction of peat and the release of high levels of soil-based carbon. If one of our four nations’ Governments decided to ban the sale of products containing peat, this could potentially be undermined by the failure to match those efforts in other jurisdictions, where producers could continue to actively sell these products in a market where they would otherwise be banned.
My amendment would require suppliers to comply with these devolved rules where they relate to the protection of the environment or tackling climate change, meaning that even if regulation in England were to fall behind, say, that found in Wales, those supplying the Welsh market would still have to comply.
“commerce, services and professions must be enabled to operate freely across the whole United Kingdom. That is … demanded … by business”.—[
However, business coalitions such as the Aldersgate Group have commented that the objectives of frictionless trade and encouraging a race to the top for environmental standards do not contradict one another. A fully functioning and innovative internal market should strive to both reduce unnecessary costs and uncertainty and protect all four nations’ right to regulate in the public interest.
Finally, protection of our environment and tackling climate change really are not an option anymore. If you listen to Christiana Figueres, who set up the Paris Agreement, you will know that we have 10 years in which to try to get ourselves to 50% of carbon emissions. That means reducing by about 7% to 8% a year. Not to do this is a complete abdication of our rights as legislators because, if we do not put policies in place in this Government and this Parliament, then we will be left pretty legless in the fight ahead.
As the noble Lord, Lord Teverson, said, we cannot do business as usual; we have to do business in a new way. We have many excellent Bills before us that can make this happen, and I commend my amendment to the House.
My Lords, as noble Lords who have attended this Committee to date know, my role is occasionally to get up and give a minority perspective on the amendments before us. There are 20 amendments in this group and, one way or another, each of them would allow barriers to trade to be erected by one or more of the devolved nations. The effect of the amendments is to restrict the amount of trade to which the market access principles will apply and thereby reduce the extent to which barrier-free trade can take place throughout the UK’s internal market. I say to the noble Lord, Lord Anderson, that that is not an argument against devolution; it is an argument for trade and economic success, which I hope that we all want to achieve for the United Kingdom.
I will not repeat all of what I said on the earlier group, but the more that laws relating to trade in goods and services diverge between the component parts of the UK, the more likely it is that costs will rise and choice will diminish for consumers. Barriers to trade are also likely to result in lower GDP, as the impact assessment analysed, and we need all the GDP that we can get at the moment, given the impact of lockdown and similar anti-Covid measures. I am sure all those noble Lords who support and voted for devolution did not vote to become poorer through devolution.
The amendments give very considerable cover to the devolved Administrations to erect trade barriers under the guise of higher standards but, actually, on grounds of protectionism. At the very least, I predict that there will be massive scope for lawyers to argue for a very long period and to mount legal challenges. That may well be good for the fees of the legal profession—and for the noble and learned Lord, Lord Falconer of Thoroton—but the important thing I want to stress is that it will result in uncertainty for business. If there is one thing that is bad for business, it is an uncertain business trading environment.
Therefore, while I understand the desire for higher standards—and many noble Lords have spoken to this in respect of the particular varieties of relaxation that they are seeking in the Bill—at the end of the day, they can result in trade barriers. We really should be very careful not to wreck the UK’s internal market before it has even started.
My Lords, I shall address Amendment 54 in my name. As the noble Baroness, Lady Finlay, said in moving her amendment, it harks back to debates we have had on the mysterious absence of common frameworks from the Bill. As your Lordships will know, common frameworks are a way of doing business that is supported by the CBI. The amendment would insert a new schedule into the Bill. It may look arcane, or like an obscure pub quiz question, so perhaps noble Lords would like to answer the question: what unites ozone-depleting substances and Caerphilly cheese? The answer is that the list in the schedule is the list of subjects where all four Governments in this country have agreed that legislative common frameworks are necessary. However, this is not intended as an exhaustive list. It would be possible to add to this by secondary legislation if new areas emerge that require a common framework.
I concede that it would not have been necessary to have such a schedule if the dual carriageway with the brick wall in between the two approaches that the Government are taking—this Bill and the common frameworks—were guaranteed to coincide and meet. Both approaches are progressing and have the enthusiasm of the Government behind them. This amendment would be a way of ensuring that those approaches coincided and met. The amendment would help, since it identifies common frameworks without using the name.
One of the more striking aspects of the Bill, as noble Lords and Ministers keep telling us, is that common frameworks on their own cannot guarantee the integrity of the entire UK internal market. They are sector-specific and not intended to address the totality of economic regulation. In answer to every question asked, there has been a real silence from the Government, who have failed to identify any areas where the integrity of the internal market might be threatened that are not covered by common frameworks. We had reference to the threat to the sale of barley from English farmers to Scotland, which has proved an issue already resolved by the common framework. There is also the wholly hypothetical example of a devolved Government wishing to legislate for additives to flour, which is already in one of the common frameworks on nutrition.
We therefore have to manage this problem of having two-track approaches to the internal market. The amendment proposes a way of creating that gateway between the two and ensuring that there is a link between them, so that we know that we are on the same course for a functioning internal market.
My Lords, I have added my name to Amendment 174 in this group. I wish to speak to that and other amendments that I support.
Possibly the greatest asset that we gained from our decades of EU membership was the development of and assistance on the highest standards. In consumer and environmental protection, employment practices, public health standards, animal health and in the development of social policies, we have all benefited enormously and our quality of life has been greatly enhanced. Often, we as a nation were at the forefront of the development of those EU policies. On occasion, in our own legislation, we chose to adopt even higher standards, as my noble friend Lord Teverson said earlier. Those were the days when we really were world-beating. It is therefore very disappointing that the Bill contains nothing to guarantee high standards; there is no process set out to agree even minimum standards. The amendments in this group seek to rectify this, hence it is a legitimate aim to seek higher standards or to maintain existing standards.
Across the world, the experience of capitalism reveals that unfettered markets—capitalism in the raw—without a sound framework of standards often drive down standards to the lowest common denominator. For example, in the USA, hardly a country struggling for development, market access provisions unaccompanied by agreed minimum standards have led to deregulation as a way to attract business. It is well known as a ploy.
One of the notable contributions of 20 years of devolution has been an enthusiasm for new approaches—experimentation, if you like—to create higher standards. Other noble Lords have referred to this. In animal health, there was the Welsh ban on electric shock collars for dogs. On environmental standards, again in Wales, charges were introduced for single-use carrier bags. In public health, minimum unit pricing for alcohol was introduced, first in Scotland and then in Wales. Next year the Welsh Government plan to introduce further restrictions on single-use plastics. Wales is the perfect size for experiments of this type, and existing devolved powers have allowed for them. How does the Minister see the interaction between the principle of unfettered access into Great Britain for goods from Northern Ireland and EU regulations which increasingly diverge from those of the rest of the UK?
Common frameworks are designed to respect and maintain standards, and to accommodate new ones. Those that the Common Frameworks Scrutiny Committee, of which I am a member, have seen so far in draft form, illustrate that this is a viable approach, but neither standards nor common frameworks are mentioned in the Bill. Instead, there is every incentive for standards to atrophy, because the Bill recognises the status quo but penalises the devolved Administrations that seek to introduce new measures by reducing their power and freedom of movement.
The Bill freezes the existing regulatory differences at the point when this Bill comes into force. It undermines the incentive for regulatory change, improvement or experimentation. The law on the sale of air guns, for instance, is very much tighter in Northern Ireland and Scotland than in Wales and England. To buy an air gun in Scotland, you must be present in person. Would that be regarded as indirectly discriminatory against, for example, suppliers from the rest of the UK? Clearly it cannot be regarded as such at the moment because it is an existing provision. If, however, the Scottish Government introduced something like that in the future, would it be regarded as indirectly discriminatory in the terms of this Bill?
Exactly how do the Government intend to retain our reputation as a country with high standards? I remind the Minister that once we lose our reputation as a reliable partner with which to do business, we then lose our trading partners. I say to the noble Baroness, Lady Noakes, that high standards are not barriers to trade. They unlock trade. We are not the world’s shady market trader. We are an innovative trading nation known for quality and reliability. To keep that reputation through the revolution that we have wished upon ourselves, we must maintain the market mechanisms that created that reputation. We live in a rapidly changing regulatory environment, and this Bill undermines the incentive for us to be ahead of the curve.
My Lords, I wish to speak in support of Amendments 35 and 58, in the name of my noble friend Lord Stevenson of Balmacara, particularly because I am concerned about the lack of standards protections. We have been assured that the Government have repeatedly stated their commitment to high standards and that this Bill does not change that commitment, but, as the noble Baroness, Lady Randerson, has just said, it does not alter the fact that there is no evidence of that commitment on the face of the Bill.
Amendment 35 would expand the legitimate aims laid out in Clause 8 to include protection of consumers, environmental standards, social and labour standards, public health and animal health. I do not intend to rerun the various concerns raised regarding devolution, but we need to ensure that environmental protections in the UK are maintained and enhanced after our exit from the EU. Provisions in this Bill must not derail the Government’s ambition to become the first generation to leave the environment in a better state than they found it. I would like to give some examples of why that is so very important.
Since the Second World War, we have lost 97% of our meadows, 80% of our chalk grassland and more than half of our ancient woodland. The recent State of Nature report from the Royal Society for the Protection of Birds found that 41% of UK species that it studied had declined since 1970. It found that 15% were threatened with extinction and 133 species were already extinct. The Natural Capital Committee has concluded that only half of our habitats currently meet minimum quality targets, with bees, butterflies, birds and many plant species continuing to decline. The BMA has called for a commitment to non-regression on all current UK-wide and devolved nation health, well-being, animal welfare and environmental standards to be written into the Bill.
The EU has been a leader in environmental legislation over the last 40 years, and the UK has played a very important part. Now, our domestic legislation must ensure that environmental protections in the UK are maintained and enhanced after our exit from the EU, and we must not risk losing any of those key protections or allow for any regression. Amendment 35 would help to ensure that those minimum standards were met.
I turn to animal welfare and food standards. UK farmers and producers are rightly proud of their high agriculture and animal welfare standards compared with those in many other parts of the world. They have been very clear that they do not want those standards lowered and are calling on the Government not to allow low-quality products to come into the UK.
It is also worth remembering that, when we reach the end of the transition period, the UK will find itself outside the European Food Safety Authority and therefore outside the Panel on Animal Health and Welfare. Farm animal welfare standards post Brexit may well be threatened as UK farmers struggle to compete against cheap imported food from countries that produce to lower standards. UK farmers could become uncompetitive, and welfare standards could then come under pressure.
When I was in the other place working on the Agriculture Bill, I read your Lordships’ committee report Brexit: Agriculture and I am still hugely concerned about one of its conclusions. It said:
“It may be hard to reconcile the Government’s wish for the UK to become a global leader in free trade with its desire to maintain high quality standards for agri-food products within the UK”.
The legislation that is being passed in the run-up to the end of the Brexit transition period, including this Bill, will have huge impacts on the UK’s standards of animal health and welfare, food safety and environmental protection. Those ramifications could be felt for years, so we have to get it right. Farmers have told me that they are particularly concerned about transparency of provenance and traceability.
The United States is often mentioned in the debate about food standards, with chlorinated washed chicken and the use of injected growth hormones in cattle demonstrating the difference in standards between our countries. Both give rise to significant welfare concerns for the animals involved; both are banned by the EU and, until this point, have been banned by the UK. But we also know that a priority for the UK Government is securing a free trade agreement with the USA. This is also about food safety: the United States has 10 times more food poisonings than Europe, so food safety could be compromised. We could also end up with higher pesticide residues in food, if protections are negotiated away in trade deals.
Compassion in World Farming has pointed out that we should be concerned not just about the USA. It has looked at a potential deal with Australia, where hormone-treated beef and battery eggs are still common, and believes that, if concessions are made there, they could form a precedent for other talks and trade deals.
So we need to redefine unsafe food in the Bill, which is where Amendment 58 comes into play. That is why I am supporting it, recognising the impact that lower food standards can have on our safety and health. I ask the Minister to listen carefully to these arguments.
My Lords, I add my support in particular to Amendment 52, in the names of the noble Baronesses, Lady Boycott and Lady Jones, and the noble Lord, Lord Teverson. It deals specifically with environmental standards and climate protections, and has already been well explained. As so many other noble Lords have said, this amendment introduces a wider set of derogations to allow any one of our four nations to refuse mutual recognition if it believes it is justified by the legitimate public policy objective to protect the environment and tackle climate change. This is really important, to ensure that innovation is not stifled and that there is no race to the bottom, as has already been well explained.
I also support many other amendments in this group, particularly Amendments 39A, 47A and 52A, in the name of my noble friend Lord Young of Cookham, proposing similar protections for public health, safety and security. I also support my noble friend Lady McIntosh of Pickering and other noble Lords who have spoken on the protections required in the agriculture sector.
I recognise the concerns raised by my noble friend Lady Noakes that lack of uniformity could increase costs to consumers and reduce GDP. However, I do not believe that cheap goods are the be-all and end-all. Ethical production standards, safety, health concerns and environmental protections may all add costs in the short term. However, better quality and higher standards can benefit consumers and the long-term sustainability of the economy. Encouraging innovation in environmental and climate protections can and perhaps should be led by individual countries where they have specific expertise, rather than having a centralised uniform approach imposed that could reduce standards in the long term and leave us with a cheaper but less safe future.
I hope that my noble friend can confirm that the Government are in favour of building consensus and agreements across the UK, with common frameworks, while also respecting the rights of individual countries to have different policies in areas of particular importance.
My Lords, like the noble Baroness, Lady Altmann, I originally put my name down to speak on this group because I wanted to give strong support to Amendment 52 in the name of the noble Baroness, Lady Boycott. She, the noble Lord, Lord Teverson, and the noble Baroness, Lady Altmann, have made a good case; after all, climate change and the other environmental challenges are bigger issues than Brexit, Covid or even the break-up of the United Kingdom. We need to ensure that nothing we do in this Bill or in parallel Bills diminishes our commitment to meeting our international obligations under the Paris Agreement or our national obligations under the Committee on Climate Change’s proposals on carbon budgets and the commitments we make as a Government and as a Parliament to meet our targets on that front. Amendment 52 would help deliver that.
During this afternoon—I was not here on the first day of Committee—I have also become increasingly concerned that the Bill is, as the noble Lord, Lord German, called it, twin-tracking different aspects of government policy on the devolution settlements and the way they are going. The two do not meet. The principal commitment here is market access. There are government commitments to standards in the Agriculture Bill and elsewhere, and there is the whole process of common frameworks, many of which are still in very preliminary form.
With regard to the broad public debate, the Government have managed a great diversionary tactic by banging Part 5 into the Bill and causing public and international outrage. However, there are some fairly profound issues in the lack of commonality or melding in the approaches on market access, common frameworks and the long-term implications for our devolution settlement. They have not been resolved today in the subjects we have discussed. At Second Reading, I expressed some concern that the Bill was not clear in relation to state aid and the internal market, or the role of the proposed office for the internal market.
A lot of this needs to be pulled together before we complete the Bill. I have a proposition. We have as a House established a short-term Select Committee looking at common frameworks. That has called for evidence; the deadline is
My Lords, what a powerful team at the end of this very interesting debate. It was great to hear the noble Baroness, Lady Randerson, putting her case on standards so strongly; she is absolutely right. I was also delighted to hear my good neighbour and noble friend Lady Hayman—we live in the same ward in the west of Cumbria—speaking with all her authority. She will bring a very important contribution to the considerations of this House. My respect for the noble Baroness, Lady Altmann, is continuing and constant, and noble Lords hear it again tonight. What my noble friend Lord Whitty was saying about the useful contribution the Select Committee could make in getting things right should be taken very seriously. We get awfully trapped in patterns of organisation for our affairs and debates. Sometimes we do not look at our assets and the contributions they can make.
I strongly support my noble friend Lord Stevenson’s amendment and I am impressed and struck by the importance of Amendments 52, 53 and 54. They all deal with the essential quality of our existence and the action that is necessary to ensure that we have some sort of quality of existence, and ensuring that we are in a strong position to ameliorate the impact of climate change. These are absolutely fundamental issues for our future.
I sometimes look back on a long time in Parliament and politics and think that we sometimes want to fit things into organisational structures. Of course, the market is crucial and what we are debating is a reform of the market and what we are going to do, but the market is not an end in itself. We should constantly be restating the challenge: in the environment, in conditions of work and workers’ rights and employment conditions, of animal welfare, and of good husbandry of our land and care of it. There is also the whole issue of understanding that this is not just a choice of what we might do; we are dependent upon getting it right. From that standpoint, these amendments are a very important part of our proceedings, and I congratulate all those who have been involved in proposing them.
My Lords, my name is on Amendments 33, 34, 50, 55, 56, 60, 80 and 95 but, to be honest, all these amendments are trying to cover similar ground in slightly different ways. I suggest that they are trying to meet the gap that the noble Lord, Lord Anderson, in his exceptional speech, characterised —in my words, not his—as the paucity of ambition that lies within the Bill. He also effectively highlighted some of the inconsistencies that crop up throughout it.
Amendment 50 seeks to add a range of additional conditions around the aim of legislation, and Amendment 51 does much the same. The noble Lords, Lord Young and Lord Faulkner, talked specifically about public health, animal welfare came up with the noble Baroness, Lady Hayman, and my noble friend Lord Teverson and the noble Baroness, Lady Boycott, and other noble Lords, spoke very powerfully about climate change.
The last two speakers, and in particular the noble Lord, Lord Whitty, in a way characterised where I had got to; the penny had dropped. I will use slightly different language. I am slow; after 15 hours of Committee I think I am getting there. The problem is that Her Majesty’s Government may hate devolution, or they may want to grab hold of the money and spend it in Scotland—those might be by-products of the Bill. The fundamental philosophy and thinking from the Government’s position, however, is that the only way to have to have a properly ordered internal market is, essentially, for everything to be the same. With non-discrimination and mutual recognition, in the end that is what you will get.
Your Lordships’ House, with the exception of the noble Baroness, Lady Noakes— who very ably put once again the minority view, which is actually the government view—has taken a diverse approach and believes that there can be an ordered internal market that is not the same, but diverse. That is what the common frameworks are there to do. A number of noble Lords raised my noble friend Lord German’s twin highways and questioned how they will ever come together. The answer is that they do not because the Bill rides over the diversity that the common frameworks will deliver. Why are the two things happening together? One can speculate. One started three years ago with a different Government who probably had a different philosophy, and killing it is probably harder than letting it die.
I know that the Minister has been assailed with examples. He has had chlorinated chicken, whisky, all sorts of things—he even brought in hypothetical biscuits. I will give him an example that is the other way round. It is of where the devolved authorities could do things to England. England, very wisely, has banned the household burning of coal. Wales and Scotland have not. If I lived in Herefordshire all the time, I could nip over the border to Harry Tuffins, which is just the other side of Offa’s Dyke, buy a bag of coal, take it home and burn it on my fire in Leominster. So far, so good.
Within the terms of the Bill, I could—[Interruption.] Minister, you will have your chance. If I were heckling you, I suspect I would be told to sit down; I look forward to the debate. If I was a businessperson living in Leominster, I could go to Wales and import that coal. If the Minister tried to stop me, I would go to law and use this Bill to assert my right to sell that coal in England. Whether or not I won we would see, but all those things will be happening all the time. Because of the non-legislative common framework that it is covered by, where does it sit in law beside the iron-clad rules of non-discrimination and mutual recognition?
My Lords, this has been a very good and wide-ranging debate—one of the best we have had so far on the Bill. We have heard several notable speeches and some new voices. I look forward to reading their speeches in Hansard and learning from them. The main focus has been the necessary tension between the wish to have unfettered frictionless trade in our internal market and the wish to preserve our existing high standards. This was well expressed by my noble friend Lady Hayman.
My amendments cover this ground. Amendment 35, which I am delighted is also signed by the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Jones of Moulsecoomb, tries to expand the legitimate aims to include some of the standards to which I have already referred. Amendment 51 expands that and provides for a slightly wider context within which legislative aims are discussed and slightly expanded. It also comes back to the basics: standards of activity within which trading takes place and where we have rightly set high standards that are enjoyed by our consumers.
Amendment 57 deals with conditions excluded by market principles and amends the schedule only as consequential to earlier amendments, I think. Amendment 58 deals with an issue raised by the noble Lord, Lord Anderson of Ipswich, in his very good speech in which he quoted Peter Oliver, who pointed out that some of the restraints that are allowed within the Bill are very limited indeed. Our amendment tries to expand that to make sure that it is not restricted just to basic considerations.
The noble Baroness, Lady Noakes, made the point that all these amendments—not that the Government will accept them all—would erect barriers. However, as the noble Baroness, Lady Altmann, said, trade does not take place in a moral or ethical vacuum. The noble Baroness, Lady Noakes, complained that these amendments would reduce choice for consumers and increase costs, but others have pointed out, and I agree with them, that that will be worth it if these different constraints deliver a better world. I put it to the Government that these amendments are really just trying to maintain the status quo, hard fought for over a long period, in which we have arrived at a position in which we broadly balance the two issues I raised at the start of my speech.
I put it again to the Government that if there is a concern about increasing uncertainty as a result of these amendments, they should start by rethinking the Bill because, as others have said, it starts with the common frameworks and it can be added to by having effective arrangements around which the gaps in the common frameworks can be covered and a system put in place to resolve any difficulties that arise. That would give us the sort of certainty that will lead to the frictionless trade that they aspire to; it will not be a matter to do with these amendments.
I thank everyone who has spoken in what has been another excellent debate. Most of the points have been valid. I will disagree with many of them but noble Lords made their points well.
Before I start, the noble Baroness, Lady Jones of Moulsecoomb, knows that I have tremendous respect for her: we do not often agree, but I have tremendous respect for her views. However, talking about an “extremist ideology” and “hypercapitalism”—whatever hypercapitalism is—does not aid her cause; I would prefer that noble Lords address the issues in a better and more constructive manner.
The scope of the market access principles and the areas of regulation included in Schedule 1 have been carefully designed to avoid unnecessary barriers within the UK’s internal market while ensuring that the devolved Administrations and the UK Government can act to preserve the proper functioning of certain policy areas. This is where I part company with the noble Lord, Lord Fox, because when he talks about the principle of uniformity in an internal market, that is, of course, the EU system, and I do not recall the Liberal Democrats having much of a problem with that in years past. The system of mutual recognition does allow diversity, but while not discriminating against other countries’ goods. The principle of mutual recognition and market access principles allow diversity of policy. The EU system, of which the Liberal Democrats were previously particularly fond—as far as I am concerned—does not because you have common standards and common principles. I understand the argument about the so-called race to the bottom, et cetera, but that is the system that the Liberal Democrats happily signed up to and defended loyally for many years—indeed, it is still their policy that we should rejoin the EU and assume a further application of common principles. I do not agree with it, but it is a view.
I am listening carefully to what many noble Lords are saying this evening, but it is important, so I will take the time to explain why we have taken the approach we have to the application of the market access principles and the exclusions from these principles. Amendments 35, 36, 37, 39A and 95 seek to alter the list of legitimate aims for the disapplication of indirect discrimination against goods and services. The current list of legitimate aims for indirect discrimination against goods contains
“the protection of the life or health of humans, animals or plants”, which will, of course, align in many cases with the protection of the environment. It also contains
“the protection of public safety or security.”
I agree with my noble friend Lady Noakes that expanding the list of legitimate aims beyond the current list would increase the grounds on which goods from one part of the UK could face discrimination in another—maybe in small, incremental steps, but with each addition steadily eroding the benefits that we all enjoy of the UK internal market. Expanding the list would also make discrimination easier to create and implement within the internal market, which would contradict our policy objectives.
I am of course aware of the comparisons that have been made to the EU system and its list of legitimate aims. The UKIM Bill and non-discrimination principle have been designed to take account of the UK’s unique circumstances, reflecting that our market consists of four highly integrated, highly aligned parts. Conversely, EU provisions deal with 27 countries, all with diverse histories, cultures and competing market priorities. It is therefore right that the list of legitimate aims in the Bill is more narrowly focused. Should a need to amend the list be identified, the Bill allows for the Secretary of State to add, vary or remove additional legitimate aims.
Let me deal with the points raised about legitimate aims by my noble friend Lord Young and the noble Lord, Lord Faulkner, as well as, on a number of occasions, the noble Lord, Lord Purvis, with regard to minimum alcohol unit pricing. I reiterate that policies such as minimum alcohol unit pricing and other innovative pricing policies are not covered by mutual recognition, unless they result in disguised prohibition. It would also be possible to enforce them regardless of what is on the list of legitimate aims or indirectly discriminatory measures, as long as they are non-discriminatory.
The noble Baroness, Lady Randerson, mentioned air guns. All the existing requirements will be out of scope—as I have said, the Bill is forward looking—unless they are amended significantly. Other than that, the air gun restrictions would have to create a significant adverse market effect for indirect discrimination to apply. That is before any consideration of whether that meets a legitimate aim. On her point about unfettered access for Northern Ireland goods, this is an unequivocal commitment from the Government precisely to take account of the possibility of divergence. It precludes qualifying Northern Ireland goods from being subject to new checks and controls and it protects their access to the whole of the UK market, no matter what the legislative regime is in Great Britain.
Amendment 39A is a more nuanced version of Amendment 38. It aims to limit the Secretary of State’s regulation-making powers to only add or broaden a legitimate aim—the Secretary of State would not be able to vary or remove a legitimate aim. Again, I appreciate the nuance of the amendment, but I must emphasise the importance, as we see it, of ensuring that the Government have the ability to adapt and improve the list of legitimate aims to address any challenges that arise—for example, during the implementation phase. We will of course listen attentively to businesses and to consumer stakeholders and may employ the powers that the amendment seeks to remove to ensure the UK internal market’s continued smooth functioning. To clarify another matter about which some have asked, Her Majesty’s Government and the devolved Administrations are not constrained by the rules against indirect discrimination when they need to take reasonable action to protect the life or health of humans, animals or plants, or to protect public safety or security.
Amendment 95 has a dual purpose. It seeks to remove the list of legitimate aims for indirect discrimination against services in Clause 20 and, as such, it would also remove the Secretary of State’s ability to amend that list. The list of legitimate aims covers a limited range of necessary objectives for regulators, which would justify a requirement that may have a discriminatory effect. The legitimate aims are the protection of the life or health of humans, animals or plants, the protection of public safety or security and the efficient administration of justice.
The inclusion of the list of legitimate aims is in our view vital, as it clarifies whether a requirement should be considered indirectly discriminatory and thus whether it is justified to put an affected service provider at a disadvantage compared to a similar provider from another part of the United Kingdom. To allow the flexibility to adapt to potential changes in circumstance—for example, in relation to future types of services regulation—a power for the Secretary of State to add, vary or remove additional legitimate aims is crucial and has therefore been included in the Bill.
I turn now to Amendments 50, 51, 52, 52A and 56, which seek to add in new clauses before and after Clause 10 of the Bill. The proposed new clauses would introduce a new set of conditions that would need to be met in order for an exclusion to be applied. Exclusions have been tightly defined to areas where the market access principles would adversely affect, or prevent the proper functioning of, the UK internal market. For example, we have made it possible for authorities to continue to consider local environmental conditions when authorising a chemical for use in a particular part of the UK.
Turning to Amendment 52, the protection of the environment and tackling climate change are vitally important, and something that the Government are, of course, already committed to. The UK leads the world in environmental standards and tackling climate change. We were the first major economy in the world to set a legally binding target to achieve net-zero greenhouse gas emissions from across the economy by 2050. The EU is only just now catching up with us. We have also been quick to take action against single-use plastic, with our ban on the supply of plastic straws, drinks stirrers and cotton buds having come into force on
Moving on to Amendment 52A, broadening exclusions from market access principles could result in significant challenges for the UK’s internal market. These are intentionally narrowly drafted to ensure that there are no unnecessary trade barriers that would ultimately increase costs to businesses and consumers while reducing choice. These amendments also do not take into consideration the impact any exclusions might have on unfettered access and Northern Ireland’s place in the UK’s internal market.
Amendments 33 and 34 are both consequential on Amendment 50, which I addressed above. Amendments 55 and 56 are consequential on Amendment 50 as well. Taken together, these amendments would replace the existing schedule of exclusions with a significantly wider exclusion process. The proposed process is not sufficiently targeted and would increase the potential for trade barriers to emerge. For these reasons, I ask noble Lords not to press their amendments.
Amendment 47A limits the Secretary of State’s regulation-making powers to only add to or broaden the exclusions in Schedule 1. The Secretary of State would not be able to vary the meaning of the exclusions in Schedule 1, nor to remove the exclusions entirely under the amendment. This might make it impossible for the Government to respond to business and wider stakeholder feedback and to act rapidly to adjust the list of exclusions if implementation shows the need for a review. While we are committed to retaining this power in the Bill, we are also fully committed to ensuring that the use of this power is subject to effective oversight and scrutiny.
First, any use of the power would, of course, require an affirmative regulation to be made in Parliament. This would ensure that MPs from all parts of the UK would be able to scrutinise and vote on any changes, along with Members of this House. Secondly, in line with normal arrangements for secondary legislation covering devolved matters, UK Government officials will engage with the devolved Administrations in the spirit of the devolution memorandum of understanding. This is a system that has worked well for 20 years and continues to do so. I hope, therefore, that noble Lords will agree that it is not appropriate for us to accept that amendment.
Turning to Amendment 54, the proposed new schedule is related to the new clause in Amendment 6, to which I responded on Monday. These amendments would, in combination, prevent the market access principles from applying in time at the end of the transition period. The lengthy process they put in place before the principles can apply would mean a considerable delay in securing business certainty that trade can continue unhindered within the UK’s internal market. Furthermore, they would limit the areas that the market access principles could apply to. This would again unduly constrain the scope of the principles and fail to fully protect the internal market.
Amendment 57 removes the requirement that a measure meets all the conditions set out in paragraph 2 of Schedule 1 to be excluded from the mutual recognition principle. The conditions in paragraph 2 of Schedule 1 relate to the exclusion of certain food and feed measures from the mutual recognition principle, where this is required to address a serious threat to the health of humans or animals. A measure will be excluded from the mutual recognition principle if all the conditions in paragraph 2 are met. These conditions were designed to be cumulative and work as a whole, and in our view would not be effective individually. The fourth condition, for example, relates to the responsible Administration providing a risk assessment of the threat addressed by the measure in question, which is essential in situations relating to protecting human, animal and plant health, but is not a stand-alone condition for any exclusion. As this amendment weakens the ability of the Bill to ensure that we can address a serious threat to the health of humans or animals, I hope that noble Lords will agree not to move it.
Amendment 58 is related to the exclusion from the principle of mutual recognition set out in paragraph 2 of Schedule 1. It ensures that Ministers in all parts of the UK can take effective emergency action to respond to threats posed by unsafe food and feed. The amendment would alter the definition of “unsafe” in relation to food. That definition is already clearly set out in legislation and it would be inappropriate to use a definition different from that which is already in place through retained EU law and which functions effectively. Having clear conditions that must be met in order for the exclusion from mutual recognition to apply, including a clear and recognised definition of “unsafe food” is critical, in our view, to providing reassurance that the exclusions from mutual recognition will be used only where there is a genuine need to protect public health in an emergency. Altering the definition of “unsafe food” in the way proposed in the amendment would expand the scope of the exclusion from mutual recognition and thus inhibit the market access principle of mutual recognition from functioning effectively. If any food safety rules change after the end of the transition period, this will be done on the basis of independent advice based on a thorough risk analysis carried out by the Food Standards Agency, and our high standards of food safety and consumer protection will of course be maintained.
I turn to Amendment 60. Subsections (6) and (7) of Clause 11 ensure that appropriate actions can be taken to respond to threats posed by any pests and diseases associated with qualifying Northern Ireland goods. Without these two subsections, mutual recognition and non-discrimination could continue to apply in relation to certain SPS actions that are needed to protect against biosecurity threats associated with qualifying Northern Ireland goods. This would limit our ability to protect against the threats posed by pests and diseases. These subsections uphold the principle of unfettered market access for qualifying Northern Ireland goods, but will ensure that any biosecurity threats can be addressed in appropriate and specific circumstances.
In response to Amendment 80, the purpose of Clause 18 is to provide for the mutual recognition principle in relation to services. It makes sure that authorised service providers can offer their services in all four corners of our kingdom. Those who are already authorised to provide a service in one part of the UK will not be subject to authorisation requirements in other parts. Mutual recognition will not apply to an authorisation requirement to the extent that it is required to tackle a public health emergency.
This amendment seeks to significantly widen the derogation from mutual recognition. The expanded definition proposed by my noble friends is very similar to the one in the EU services directive. That derogation was formulated for very different circumstances—namely, trade between the different nations of the European Economic Area. This Bill is concerned only with the UK and there is significantly less cause for concern than there may have been when dealing with other countries in the EEA. We therefore consider that the narrower derogation contained in this Bill is completely adequate for the UK services market and the generally high standards that, I am pleased to say, are upheld throughout this country.
I can also reassure noble Lords that the Government will continue to monitor the operation of this Bill and, if it is necessary, we can add services sectors to the lists of exclusions in Schedule 2. I hope that I have offered some reassurance to the noble Baroness, Lady Finlay, and the noble Lord, Lord Fox, that their amendment is unnecessary as the Bill already contains considerable exclusions from the general rule to protect UK public interests.
Amendment 174 would place a duty on Ministers and others involved in making legislation to have regard to the need to establish and maintain a high level of protection in respect of regulatory aims. The UK Government are of course committed to maintaining high standards across the UK. However, the proposed clause as constituted would create difficulties of defining and therefore assessing what is meant by levels of protections and standards. The proposed clause also implies that there may be a compulsion on Ministers to lower standards. This would contradict the explicit commitments made in our Conservative manifesto to raise standards on workers’ rights, agriculture, animal welfare and the environment. The Government expect to use the pragmatic and productive collaboration with the devolved Administrations to continue to enable us to maintain high standards across the UK. In the light of that information, I hope that the noble Baroness will feel able to withdraw her amendment.
I sometimes wonder whether the Minister sustains himself through the long periods of Committee by imagining himself throwing off the yoke of hideous EU conformity. In fact, nothing could be further from the truth. How does the noble Lord explain all the examples of diversity across the four nations of the United Kingdom if there is this conformity? How can his comment that the market has worked very well for 20 years stand up, if this conformity was so bad? Indeed, the 2020 assessment by the Government of the frameworks says that they will maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory, as afforded by the current EU rules. The Government clearly recognise the flexibility in the current EU rules.
I commend the Minister for getting through that lengthy statement without once mentioning the words “common frameworks”. There is still no explanation of how the common frameworks inform the Government’s view today of the internal market. Will he please answer that question?
I thought my comments might provoke a reaction from the noble Lord. Of course, there are EU common standards in many areas as well as EU minimum standards in many areas, and it is possible for Administrations to go further than those minimum standards in many areas, as he will know from his knowledge of EU affairs.
I have said a number of times that we are committed to the work on frameworks and will take it forward, but we were looking for frameworks in something like 38 different areas. So far, we have managed to agree frameworks in two of them. In terms of the frameworks that have been approved by the ministerial committee, I think those numbers are correct; I will write to the noble Lord if they are not. We are committed to taking forward that work on common frameworks, but we believe that this legislation provides an underpinning to that work. We do not believe that they are mutually exclusive; indeed, we think that they complement each other.
My Lords, this has been an extraordinary debate. At this late hour I cannot possibly do credit to all the amazing speeches that we have had, but I want to highlight a few points. The noble Lord, Lord Anderson, set the scene superbly with enormous clarity and told us very clearly where the warning signs were. My noble and learned friend Lord Hope of Craighead, reinforced by the noble Baroness, Lady McIntosh of Pickering, pointed out that the meaning of words is what this is all about.
I am surprised at the Minister reinforcing to us that the environment and climate change were a manifesto commitment and then rejecting the really powerful voices from the noble Baronesses, Lady Hayman, Lady Boycott, Lady Bennett, Lady Jones and Lady Altmann, and the noble Lord, Lord Teverson, who were all talking about ways of protecting the environment and future biodiversity. It almost felt as if their amendments would solve the Government’s problem of how to meet their manifesto commitment.
As for public health and welfare, I do not believe that people in this country vote for worse health and therefore shorter lives; they do not expect their Government not to look out for their health, neither do they want to live in a worsening biodiversity that will leave an ecological desert for the next generation. The amendments that we have considered this evening are incredibly important. The noble Lords, Lord Young of Cookham and Lord Faulkner of Worcester, laid out clearly the importance of public health overall. As the noble Lord, Lord German, and the noble Baroness, Lady Randerson, pointed out very clearly, there are enormous benefits in reinforcing the current system and not trying to override it. I am surprised that in his summing up the Minister did not pick up on the suggestion of the noble Lord, Lord Whitty, of going to the committee of the noble Baroness, Lady Randerson, and talking to it about what is going forward.
Although I will obviously withdraw the amendment, I am convinced that we will return to this matter in force on Report. I am also convinced that everyone who has spoken will need to pool resources because we heard some worrying things in the Minister’s response, which blanket-rejected the fact that we are trying to solve the problem, not create difficulties. We all want the United Kingdom to prosper and do well. This is not the time to allow it to drop to the lowest common denominator, when people are striving for higher standards and to make Britain a place of excellence, not low standards. With that, I beg leave to withdraw the amendment.
Amendment 33 withdrawn.
Amendments 34 to 43 not moved.
Clause 8 agreed.
Clause 9: Exclusion of certain provision existing before commencement
Amendments 44 and 45 not moved.
Clause 9 agreed.
Clause 10: Further exclusions from market access principles
Amendments 46 to 50 not moved.
Clause 10 agreed.
Amendments 51 to 54 not moved.
Schedule 1: Exclusions from market access principles
Amendments 55 to 59 not moved.
Schedule 1 agreed.
Clause 11: Modifications in connection with the Northern Ireland Protocol
Amendments 60 and 61 not moved.
Clause 11 agreed.
Clause 12: Guidance relating to Part 1
Amendments 62 to 65 not moved.
Clause 12 agreed.
Clause 13 agreed.
We now come to the group beginning with Amendment 66. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment or anything else in the group to a Division should make that clear in the debate.