Amendment 9

United Kingdom Internal Market Bill - Report (1st Day) – in the House of Lords at 6:02 pm on 18 November 2020.

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Baroness McIntosh of Pickering:

Moved by Baroness McIntosh of Pickering

9: Clause 6, page 5, line 29, at end insert—“( ) The Secretary of State must publish the results of the consultation and give reasons for any decision reached.”Member’s explanatory statementThis amendment requires the Secretary of State to publish the results of the consultation and give reasons for any decision reached.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, I am grateful to have this opportunity to move the amendment standing in my name and that of the noble Lord, Lord Foulkes. I thank him for kindly supporting the amendments. I shall speak also to Amendments 13, 33, 44, 60 and 74.

Amendment 9 requires the Secretary of State to publish the results of the consultation referred to in Clause 6(7) and to give reasons for any decision reached. The reason for this is the history of the Bill, which we are told was drafted at pace, and had an unusually short overall consultation period of one month. I understand the responses to the consultation were published on the same day as the Bill. There was no prior consultation on drafts of the Bill, which I understand is a most unusual procedure. Once again, I am obliged to the Law Society of Scotland for its assistance in drafting these amendments.

The obligation on the Secretary of State to consult the devolved Administrations is welcome, but the clause currently lacks any obligation on the Secretary of State to report the outcome of the consultation with reasons for the decision. In the interests of transparency, the Government should make public the outcome of the consultation for that reason. I hope the Minister in winding up this debate will see fit to do that.

The other amendments in the group all relate to the super-affirmative resolution procedure. Amendment 13 adapts Clause 8 to this; Amendment 33, Clause 17; and Amendment 44, Clause 20. Amendment 60 creates a new schedule on the super-affirmative procedure and Amendment 74 creates a new clause setting out the scrutiny procedure in certain urgent cases. The reason why the amendment seeks to introduce the super-affirmative resolution procedure, the supportive schedule and the new clause, as I have mentioned, is to up the level of parliamentary scrutiny applicable to regulations under these clauses and the new schedule, which is currently by the affirmative resolution procedure. This is partly for the reason that I gave earlier: woeful time was given, in quite unusual circumstances, in which to draft the Bill. Changing the scope of the relevant clauses, in my view, that of the Law Society and of the noble Lord, Lord Foulkes, may have significant consequences. It is much more beneficial to use the super-affirmative resolution procedure, because it enables longer consultation and for the views of interested parties to be taken into account.

I mentioned Erskine May previously in Committee. Paragraph 31.14 describes the super-affirmative procedure as having

“been implemented in enactments where an exceptionally high degree of scrutiny is thought appropriate, for instance, for the scrutiny of certain items of delegated legislation made, or proposed to be made, under ‘Henry VIII’ powers… The super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form.”

In the view of the Law Society of Scotland, with which I concur, the Bill is of profound constitutional significance. As paragraph 4 of the Constitution Committee report indicates, we need as much scrutiny of the Executive as possible. Deploying the procedure that I propose, as set out in these amendments, will achieve a better outcome than simply keeping the Bill in its present form, with the usual affirmative procedure.

I was delighted by the debate that we enjoyed in Committee on the earlier manifestation of this amendment, as summed up by the noble Lord, Lord Thomas, in his objection. He said he could not “support the precise method” adopted. There may be many approaches to the super-affirmative resolution procedure, but the schedule that accompanies this amendment contains a detailed procedure. The noble Lord, Lord Thomas, also noted that:

“If a Minister wishes to exercise his powers under the Bill, there is no requirement under the noble Baroness’s proposed schedule that scrutiny of his proposed amendment to primary legislation should in any way involve the devolved Administrations; no mechanism is proposed. It is true that, in paragraph 5, the Secretary of State must have regard to ‘representations’, but there is no indication from whom the representations would or should come.”

Since the Minister’s power undoubtedly includes the possibility that the proposals will, at the very least, impinge on the devolution settlement, the noble Lord goes on to say that:

“I would be more supportive of this proposal if it required as part of the super-affirmative procedure that, in the periods of 30, 40 or 60 days during which the proposals would be looked at in Westminster, there were a requirement that the devolved Administrations should at the very least be consulted, preferably that their consent to the proposals should be a necessary prerequisite. It is not enough that the Minister should ‘have regard to representations’.”—[Official Report, 28/10/20; col. 279.]

I am delighted to say that the schedule now provides a requirement to receive representations from and to consult with the devolved Administrations. We have also proposed a new clause in Amendment 74, which will deal with cases of urgency when regulations need to be presented. I am further encouraged by the fact that I understand from private discussions that the Liberal Democrats are minded to support the super-affirmative procedure, but I have had less success with the Official Opposition. There is still time for them to change their mind. On this basis, and with these brief remarks, I beg to move.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, I am very pleased once again to support the noble Baroness, Lady McIntosh. I want to speak briefly to three of the amendments. I will say first that the regulation-making powers in this Bill cover very significant areas. They are not minor matters. They really are important and that is why they need scrutiny. As I said earlier, the House of Lords does the work that we do best in scrutinising these issues.

I will deal first with Amendment 13. In Clause 8, the Secretary of State can under subsection (7) make regulations

“to add, vary or to remove” a legitimate aim. That is key in defining a relevant requirement which indirectly discriminates. A legitimate aim is defined in subsection (6) as either

“(a) the protection of the life or health of” human animals—oh, sorry, it is

“humans, animals or plants,” not human animals; well, human animals, other animals and plants. The second legitimate aim is

“(b) the protection of public safety or security.”

Perhaps the Minister in his reply could shed light on which of these the Government would seek to amend in the future. That would be helpful.

The second amendment I want to refer to is Amendment 60. Particularly to my noble friend on the Front Bench, I commend this idea of the super-affirmative resolution. The noble Baroness, Lady McIntosh, said she has not yet got the support of the Labour Official Opposition. Once my colleagues scrutinise this in more detail, I am sure they will come round to supporting it. The super-affirmative resolution is described in Amendment 60. It provides for the laying of draft regulations and an explanatory statement by the Secretary of State to consult the devolved Administrations and to have regard to their representations and the representations of other persons, and to allow for additional time for parliamentary consideration. That is to “have regard to” these representations. The importance of the Secretary of State’s powers under the Bill requires better scrutiny than the affirmative or negative resolution procedure. We know that and know that they are not particularly helpful ways of scrutinising legislation.

The super-affirmative procedure as defined in this schedule provides better parliamentary scrutiny, allows engagement with the devolved Administrations and enables proper consultation. Holding the Government to account is important when such regulations are being made. I hope my noble friend will come round to the view that she will at least take it away and have a look and see if, at a later stage, all Labour Members can support the super-affirmative resolution.

Amendment 74 allows the scrutiny of statutory instruments containing regulations under the Bill in such a way as to allow for their urgent implementation, rather than following the super-affirmative procedure. There was concern that the super-affirmative procedure would take too much time, and this amendment provides for issues that need to be dealt with quickly. Regulations can be made under this provision only if the Secretary of State makes a declaration that he or she is

“of the opinion that, by reason of urgency, it is necessary to make the regulations without a draft being approved under” the super-affirmative resolution procedure. The regulations will be limited in time, under proposed new subsection (4), to a period of 28 days, unless

“the instrument is approved by a resolution of each House of Parliament.”

I hope that the Minister will consider the amendments carefully and I have great pleasure in supporting the noble Baroness, Lady McIntosh, in her amendments.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Conservative 6:15, 18 November 2020

My Lords, I speak to this group of amendments in the name of my noble friend Lady McIntosh of Pickering and the noble Lord, Lord Foulkes of Cumnock, applying a super-affirmative resolution procedure to changes to the reach of Clause 8 on indirect discrimination on services— the goods, equivalent and various other clauses having fallen. Amendment 9 requires publication of the results of consultation and reasons for decisions reached, and Amendment 74 tries to overcome the Minister’s objection to the super-affirmative procedure on the grounds that it could cause needless delay, by providing for rapid approval in cases of urgency.

I agree with the need for consultation and explanation, but I am not sure that this needs to be in the Bill. There should indeed be an opt-out in cases of urgency, but only if this route were to find favour with our House. However, I do not believe that the case has been made that the super-affirmative procedure is needed, certainly not on the scale proposed and in the light of the amendments already made by the Government in respect of mutual recognition of goods.

I echo what the noble Lord, Lord Foulkes, said about the Minister’s readiness to listen to the experts in this House and to make changes to make this legislation work. I was involved in securing the procedures used very selectively in the withdrawal Act, when the then Minister, my noble friend Lord Callanan, was very helpful. I am a practical person, and I have not seen any real evidence here of the need for the use of the super-affirmative procedure. We need much more specific and concrete concerns to justify my noble friend Lady McIntosh of Pickering’s amendment. If the proposers of the amendment are just fearful, that is not enough to merit the super-affirmative procedure.

Perhaps the Minister can provide examples of how the powers in the clauses will be used and, perhaps more important, why he believes that the super-affirmative procedure is over the top in this case. That would sit on the record, Pepper v Hart style, and minimise the risk from the use of the powers in the Bill.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, given my five years in the Chair in the other place, noble Lords will not be surprised that I had a closer look at the super-affirmative procedure, where it has been used and where it should be used.

First, we all acknowledge that this is a very important Bill, which is why there is an affirmative resolution procedure in various clauses. We start with that. Secondly, as noble Lords have said, the super-affirmative procedure involves an additional stage of scrutiny where Parliament considers a proposal for a statutory instrument before it is formally presented—what we call laid. This procedure is used for statutory instruments that are considered to need a particularly high level of scrutiny. That is self-evident, I think.

I then checked where they had been used. The statutory instruments used so far usually amend or repeal Acts of Parliament. Examples would include legislative reform orders, localism orders, public bodies orders, regulatory reform orders and remedial orders. Although I have had only a short time to do it, I have not found it within primary legislation—I stand to be corrected, but I have not found it myself. Indeed, listening to my noble friend proposing that this procedure should be used, it seemed to me that it was a sort of grapeshot approach, scattered throughout the Bill, suggesting that all the bits in these amendments are absolutely vital and must be taken specially. I just do not think that stacks up.

Furthermore, because this Bill is important, and because we are dealing with devolved powers who will be consulted and worked with, it will just add further delay. That is not in the interests of Parliament, business, commerce, or the people of the United Kingdom. So quite frankly, I certainly will not be supporting this at all—I think it is almost out of order.

Photo of Lord Beith Lord Beith Liberal Democrat

My Lords, in answer to the noble Lord, Lord Naseby, the fact that the super-affirmative powers have not been very widely used in the past is really no excuse for not using them where they are an appropriate way of dealing with important statutory instruments and providing a higher level of scrutiny. If the noble Baroness, Lady Neville-Rolfe, doubts the need for more use of the procedure, she should recall all those occasions when we have felt that a statutory instrument should be amended but have had no capacity to do so, and our dislike of a particular feature of it was not sufficient to justify blocking it or turning it down—something, of course, that this House very rarely does. It does address, although not by providing power of amendment, the lack of amendment power which is a characteristic of almost the whole of the statutory instrument system.

An alternative to heckling is the constructive tabling of an amendment, so we should welcome that, and I think that the noble Baroness, Lady McIntosh, and the noble Lord, Lord Foulkes—this new coalition, the Foulkes-McIntosh group—have done us a service in bringing this matter forward. If you worry, as I have done over many years, about the inadequacy of our procedures for dealing with statutory instruments, especially those which try to change primary legislation, super-affirmative procedure, as its name suggests, is better than ordinary affirmative procedure and better still than negative procedure, because it opens up fresh opportunities for how the matter can be dealt with. Because it takes more time, there should be some caution over which things we think it is right to use it for, but it could be much more usefully employed than it has been in recent years. Of course, it is not a single procedure; it is a category of procedure which is usually spelled out individually in the legislation which employs it, as in this case—and the noble Baroness, Lady McIntosh, has improved and added to the process in the version of it that is now before us.

The procedure allows for measured consideration. Sometimes measured consideration is impossible because of urgency, but things are not always as urgent as the Government say they are. Usually the urgency has arisen from the fact that the Government have taken too long dealing with it and have brought it to the House at a very late stage. Throughout the coronavirus epidemic we have had all these occasions when the House has suddenly been told that something is very urgent which the Government have been dealing with for weeks, and probably even announced many days previously, but are now giving the House minimum time to address. The Government cannot always claim that there is an inherent urgency in the situation; rather, they have created urgency by delay at their stages of the process.

Where measured consideration is appropriate, the super-affirmative procedures allow for it and allow the House to suggest amendments to a Bill, which the Government can then go back and consider. I think it has advantages and would have advantages for some of the processes in this Bill. So it is not the wild suggestion that the noble Lord, Lord Naseby, and the noble Baroness, Lady Neville-Rolfe, seem to think that it is. I think it has many advantages which ought to be deployed in circumstances such as this.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Spokesperson (Cabinet Office), Shadow Deputy Leader of the House of Lords, Shadow Minister (Business, Energy and Industrial Strategy) (Labour), Shadow Spokesperson (Digital, Culture, Media and Sport) (Charities), Shadow Spokesperson (Cabinet Office, Constitutional and Devolved issues) , Shadow Spokesperson (Wales)

My Lords, this debate raises an important and much wider issue about how statutory instruments are dealt with and how much consultation goes into them. When we discuss them in the Moses Room, the Minister often hears from all of us: “Who did you consult and can we hear the feedback?” There are some really important general lessons to take from that, because, as all of us who have dealt with statutory instruments will know, often someone gets in touch at the very last moment to say that a statutory instrument does not work for their industry or their sector. Usually it is an issue of practicality rather than the policy, but by then it is too late, which is immensely frustrating.

The problem with the Bill is that we should not have these powers when dealing with policy. It goes back to what I said in the earlier debate: statutory instruments were never meant to be about policy shifts, but about the practicalities or some adjustment. In a way these amendments, whether right or wrong, are wrongly focused. We should not be saying, “These things need lots of scrutiny because they are terribly important.” If they are terribly important they should not be using these powers.

It will not come as a surprise that I much prefer the amendments in my name that we will get to later, since Amendments 4 and 5 were pre-empted. They are also about the internal market. We are talking about regulations that affect the other parts of the United Kingdom, and very few, if any, would have no effect. Our other amendments propose that regulation-making will need the consent of the devolved Administrations unless that has not been possible within a month. In that case this Parliament will be able to put them through, but with a reason why it is doing so without the consent of the devolved Administrations. This is interesting, and in a way has a much shorter term than this amendment. It is more focused and specifically looks at this Bill, which is about producing regulations that affect the other four nations. I am sorry, but I prefer my amendments to these ones. The issue of scrutiny of statutory instruments is serious. Maybe we can get a better practice so that we do not end up with stuff that is not quite fit for purpose, and which it is then too late to do anything about.

Photo of Lord True Lord True Minister of State (Cabinet Office)

My Lords, I am grateful to those who have spoken in the debate, which I will try to sum up briefly. As the noble Baroness, Lady Hayter, indicated, because of the quite proper impact of the pre-emption rule, and of how the Bill is grouped and how we consider it, there will be further opportunities to address in a later group the points she raised and those raised my noble friend Lady Neville-Rolfe on the appropriateness of the use of powers. Obviously, most amendments in this group follow on from and, as the noble Baroness, Lady Hayter, said, precede discussion on powers that are all exercised in the Bill as drafted by the affirmative resolution procedure.

We contend that those powers are necessary to provide flexibility to respond to future developments in the provision of goods and services trade. As my noble friend Lord Callanan said, and I venture to suggest might say again, we are fully committed to ensuring that these powers are used appropriately. The powers will be subject to parliamentary oversight to give them the widest legitimacy, which means that we will consult appropriately on the use of the power, including with each of the devolved Administrations.

As my noble friend Lady McIntosh and the noble Lord, Lord Foulkes, set out, most of the amendments in this group ask for a super-affirmative procedure; indeed, as she said, equivalent amendments were tabled in Committee. Without repeating all the arguments made in Committee, I remind the House that I said that your Lordships’ Delegated Powers Committee, which considered these issues carefully, did not propose any super-affirmative power for the Bill. I explained the problems with the proposed approach, which were graphically described by my noble friend Lord Naseby, with his great experience in the other place; this would cause unnecessary delay where a change is urgently needed.

I made it clear that it is our view that the affirmative power is sufficient to ensure adequate scrutiny while enabling the Government to act in the interests of the whole United Kingdom and, as we have heard and seen, the core arguments have not changed. Today, my noble friend Lord Callanan has tabled amendments to introduce consultation with the devolved Administrations and a requirement for the Secretary of State to review and report within five years on the use of the powers. Furthermore, the Government have supported Amendment 2 to remove the power in Clause 3. I believe that, taken together, these amendments deliver the additional assurances for consultation, due consideration, transparency and scrutiny that my noble friend seeks. However, the underlying objections to the super-affirmative procedure remain.

Indeed, the objections are tacitly acknowledged in Amendment 74, which, curiously, seems to allow the Secretary of State to set aside this procedure whenever he wishes to do so by declaring that it is urgent. That would be a very novel form of parliamentary procedure. It may be that the Law Society of Scotland has the answer to this one, but to legislate for super-affirmative and then say that the Secretary of State can set it aside whenever he wants by saying that it is urgent is a funny old way of proceeding, it seems to a non-lawyer at the Dispatch Box. Therefore, I urge my noble friend not to press her amendments. I ask her to consider that they are not proportionate, as my noble friend Lord Naseby said.

Amendment 9 now refers—I always defer to the wisdom of your Lordships—to Clause 6(5) to (7), including a reference to consultations, which your Lordships have just voted to remove. So the reference to consultations in this amendment is to sections that are no longer in the Bill. Looking at the intent of the amendment, it requires publication of the results of consultation on the exercise of the powers that were in Clause 6. Well, devolved Administrations and indeed the Secretary of State are perfectly free to publish their responses if they so choose, but the Government do not believe that that choice should be made for them in the Bill. Therefore, even if the amendment still made sense in the new context, there is no need for the stipulation in it. As it no longer makes sense in context, following your Lordships’ amendment to the Bill a few minutes ago, and it does not seem to be a good way to make law to send to the other place, as it were, a floating amendment which refers to consultations which are no longer within the clause, I hope that my noble friend will withdraw her amendment.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 6:30, 18 November 2020

My Lords, I am grateful to all those who have spoken, particularly the noble Lords, Lord Foulkes and Lord Beith, for indicating in principle their support for the super-affirmative procedure. I note especially the comment by the noble Lord, Lord Beith, that just because a procedure has never been used, there is no reason not to use it in this case for the purposes of primary legislation.

I am slightly disappointed that my noble friend Lord True, in responding to this debate, does not seem to get the strength of feeling, certainly north of the border, about the rather peremptory fashion in which the Bill was introduced, with only one month for consultation to be had as opposed to the normal longer period. I hope this is something that we can discuss in connection not just with this Bill but with other Bills as well: my clear understanding is that the Government always used to publish in full the responses to their consultation procedures. I used to find it enormously helpful, as a shadow Minister in the other place, to go through and dissect comments that had been made, and I used to table amendments on the basis of those. So I can see that there might be a reason why my noble friend might not wish to publish the full responses.

I was also disappointed that my noble friend said the Government would “consult appropriately”. I am not entirely sure from this little debate, given the background, the pace at which the Bill was introduced and the shorter consultation period than one might have expected, that that has necessarily been achieved. I note his comments that there will be other opportunities at this and later stages to consider how best to achieve the aims of these amendments. With those remarks, at this stage I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Deputy Chairman of Committees

I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions or elucidations are discouraged. Anyone wishing to press this or any other amendment in the group to a Division should make that clear in the debate.

Clause 8: The non-discrimination principle: indirect discrimination