Vol. 806 Monday No. 129 19 October 2020

PARLIAMENTARYDEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDEROFBUSINESS

Introduction: Lord Dodds of Duncairn...... 1269 Questions Historic Statues ...... 1269 Project for the Registration of Children as British Citizens v Home Office...... 1272 Gender Recognition Act 2004 ...... 1275 Trains: East Midlands...... 1279 High Speed Rail (West Midlands–Crewe) Bill Order of Commitment ...... 1281 United Kingdom Internal Market Bill Second Reading...... 1282

Grand Committee Medicines and Medical Devices Bill Committee (1st Day) ...... GC 315 Lords wishing to be supplied with these Daily Reports should give notice to this effect to the Printed Paper Office. No proofs of Daily Reports are provided. Corrections for the bound volume which Lords wish to suggest to the report of their speeches should be clearly indicated in a copy of the Daily Report, which, with the column numbers concerned shown on the front cover, should be sent to the Editor of Debates, House of Lords, within 14 days of the date of the Daily Report. This issue of the Official Report is also available on the Internet at https://hansard.parliament.uk/lords/2020-10-19

In Hybrid sittings, [V] after a Member’s name indicates that they contributed by video call.

The following abbreviations are used to show a Member’s party affiliation: Abbreviation Party/Group CB Cross Bench Con Conservative DUP Democratic Unionist Party GP Green Party Ind Lab Independent Labour Ind LD Independent Liberal Democrat Ind SD Independent Social Democrat Ind UU Independent Ulster Unionist Lab Labour Lab Co-op Labour and Co-operative Party LD Liberal Democrat LD Ind Liberal Democrat Independent Non-afl Non-affiliated PC Plaid Cymru UKIP UK Independence Party UUP Ulster Unionist Party

No party affiliation is given for Members serving the House in a formal capacity, the Lords spiritual, Members on leave of absence or Members who are otherwise disqualified from sitting in the House. © Parliamentary Copyright House of Lords 2020, this publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 1269 Introduction: Lord Dodds of Duncairn [19 OCTOBER 2020] Historic Statues 1270

House of Lords with Cecil Rhodes in my home city, I maintain that he did more good than bad and should not be sacrificed Monday 19 October 2020 to current concerns, but should be joined by a statue of Mandela. Will the Minister do all she can to stop The House met in a hybrid proceeding. the destruction of important historical statues?

1 pm Baroness Barran (Con): The noble Baroness gives Prayers—read by the Lord Bishop of London. some very helpful examples. The Government share her concern, particularly at some of the scenes we have seen recently, which have been deeply troubling. Introduction: Lord Dodds of Duncairn It is very unfortunate when figures such as Churchill 1.07 pm have to be boarded up to avoid desecration. The Government continue to prioritise this. The right honourable Nigel Alexander Dodds, OBE, having been created Baron Dodds of Duncairn, of Duncairn Lord Browne of Ladyton (Lab) [V]: Webster’s in the City of Belfast, was introduced and took the oath, Dictionary’sdefinition of putting someone on a pedestal is supported by Lord Morrow and Lord Browne of Belmont, “to think of someone as a perfect person with no faults: to admire and signed an undertaking to abide by the Code of someone greatly”. Conduct. The erection of a statue is not an objective act, but a subjective judgment of an individual’s historical Arrangement of Business contribution. Does the Minister agree that just as the Announcement civic leadership of communities most often decided who should have a statue placed on a pedestal in 1.12 pm public places, their modern equivalents, not Ministers, The Lord Speaker (Lord Fowler): My Lords, the should be trusted to decide whose statues are representative Hybrid Sitting of the House will now begin. Some of a community’s current values? Members are here in the Chamber, respecting social distancing, others are participating remotely, but all Baroness Barran (Con): Obviously local authorities Members will be treated equally. Oral Questions will are primarily responsible in this area and will take the now commence. Please can those asking supplementary view of their community into consideration, but my questions keep them short and confined to two points? understanding is that for the most contested examples I ask that Ministers’ answers are also brief. there has been not a uniform community view, but a divided one.

Historic Statues Lord Oates (LD): My Lords, I declare my interest Question as an ambassador of the charitable education and arts 1.13 pm project, The World Reimagined. Does the Minister agree that people would be more likely to accept Asked by Baroness Deech existing statues if we showed greater recognition of Toask Her Majesty’sGovernment what assessment the full history of our country? In 1682, William they have made of the future of historic statues in Godwyn proposed a statue in London to prominently England. acknowledge the injustice suffered by enslaved Africans. Does the Minister not agree that, 350 years on, it is TheParliamentaryUnder-Secretaryof State,Department well past time that a national memorial should be for Digital, Culture, Media and Sport (Baroness Barran) constructed in London to commemorate the millions (Con): My Lords,there are approximately 12,000 outdoor of Africans enslaved under British rule? statues in England. In the region of 3,500 are protected as, or as part of, listed buildings; of those, 473 are of Baroness Barran (Con): The noble Lord is right historical figures. The future of the vast majority of when he talks about a full history of our country, and these historic statues is the responsibility of the owners, we hope our approach of retain and explain goes some usually local authorities. The government policy on way to addressing that, but he is also right that there is historic public statues is quite clear: they should not be a place for new statues expressing many different removed but retained, with a fuller contextualisation issues, both permanent and temporary installations, on the background and history of those commemorated such as the fourth plinth in Trafalgar Square. provided; this is summarised as “retain and explain”. Baroness Blackwood of North Oxford (Con) [V]: Baroness Deech (CB) [V]: My Lords, the wish on My Lords, while I in no way condone criminal damage, the part of some to eradicate our past, in the belief I note that our historical statues signally fail to recognise that it is evil, does not justify vandalism. I am dismayed the contribution of women to the scientific and medical to see re-evaluation, often uninformed, of the contribution advances we enjoy today. In fact, research by the of historical figures, most of whom have both good campaigner Caroline Criado-Perez suggests that there and less good elements. For example, there are strong are only 158 statues of women. Of those, 110 feature reasons to take away the prominent position enjoyed mythical or allegorical women, 46 depict royals and by Richard the Lionheart outside our own front door 14 show the Virgin Mary. Does the Minister agree but I am content to walk by him every day, knowing that, rather than myths, princesses or virgins, we should that the study of history places him in context. Likewise, invest in a few statues that commemorate some of our 1271 Historic Statues[LORDS] ChildrenasBritishCitizensVHomeOffice 1272

[BARONESS BLACKWOOD OF NORTH OXFORD] Baroness Barran (Con): It is perhaps worth separating great female innovators and role models, such as Dorothy out the different issues here. The noble Lord is right Hodgkin, Ada Lovelace and Jocelyn Bell Burnell? that many issues, as he has described, relate to and fall There are many to choose from and they would be a within the responsibility of local government. Where great addition to our landscape. central government has been clear in setting out its position is in relation to publicly funded institutions, Baroness Barran (Con): My noble friend is absolutely where we have stressed their need for impartiality. right. There is plenty of room for more women of extraordinary talent and contribution to be represented Baroness Uddin (Non-Afl): My Lords, on 17 December in that way. Indeed, more broadly, we welcome the 2015, I drew to the attention of this House the brutal recent decision by English Heritage to unveil the portrait legacy of slavery which led to the establishment of of Sara Forbes Bonetta during this Black History Buxton memorial fountain just across from the Chamber. Month. Colonisation across the globe was a trade of human misery, of men and women, families, communities and Lord Woolley of Woodford (CB) [V]: My Lords, nations, shredded, bound and pillaged, against any assessment of our statues in England is not a culture claim of decency and human dignity, rights and justice war, as some would like to say, but rather an honest that we rightly hold today. Will the Minister consider appraisal about who we put on a pedestal to be requesting the Lord Speaker and the Speaker in the revered. While we understand that no one is perfect, other place to set up a commission to examine how we and this is not an attempt to rewrite history, rather to honour and celebrate the freedom fighters and leaders better understand it, some statues would be better of the movement who stood up valiantly against the placed in a museum with their full context explained, degradation of colonisation and the inhuman slavery rather than showcased in a grandiose way. Therefore, of human people? will Her Majesty’s Government create a task force on Baroness Barran (Con): The noble Baroness raises historical statues that will assess the actions of people important points, but I feel that they are for Parliament honoured and decide what to do with their statues? to decide rather than the department.

Baroness Barran (Con): I am not aware that there Lord Lexden (Con): My Lords, I endorse the view are plans for a task force as the noble Lord suggests, that historical understanding is best assisted by the but I am happy to take that back to the department. provision of full and unbiased information about those Obviously,move versus remove versus retain and explain commemorated in statues, rather than by the removal has been carefully considered. Our view is that retain or knocking down of these memorials. As regards and explain is the best approach. My right honourable Sir Robert Peel, who was mentioned by the noble friend the Secretary of State will shortly have an Lord, Lord Wallace of Saltaire, should we not note online round table to discuss many of these issues with that he was a life-long opponent of slavery and the key stakeholders and arm’s-length bodies. slave trade and sent the British Navy to the coast of west Africa to help suppress it? Lord Stevenson of Balmacara (Lab): My Lords, we welcome the Government’s suggestion that the policy Baroness Barran (Con): I am happy to note that and should be retain and explain. I think that gets across to note that all of us as human beings are complicated, the point very well. Does the Minister agree that and our history reflects that complexity. resolving this issue might be an opportunity for collaborative work with schools? What would children The Lord Speaker (Lord Fowler): My Lords, the make of the way our local communities currently view time for this Question has now elapsed. We now come local history through their statues? Will she pursue to the second Oral Question. this with her colleagues? Project for the Registration of Children as Baroness Barran (Con): The noble Lord’s suggestion British Citizens v Home Office chimes very well with our approach. It would be enlightening to hear what children think: they normally Question tell us the truth. I am happy to pick that up with 1.24 pm colleagues. Asked by Lord Alton of Liverpool Lord Wallace of Saltaire (LD) [V]: My Lords, is this To ask Her Majesty’s Government what estimate not exactly an area where national government should they have made of the costs of their decision to appeal resist interfering too strongly? Most of the statues in the decision of the High Court on 19 December 2019 Bradford are of local people—Samuel Lister, Titus Salt, in Project for the Registration of Children as British WE Forster, JB Priestley—and we are having a local Citizens versus Home Office. discussion about the appropriateness of the statute of Sir Robert Peel, with petition and counterpetition. The Minister of State, Home Office (Baroness Williams That is encouraging local debate about our history. of Trafford) (Con): My Lords, we do not comment on Should this not be left to local communities and local ongoing litigation. Administrative costs are not recorded authorities? Central government, which already tells against particular legal cases, and as the litigation is local government far too much about what it should ongoing we are not able to provide an accurate assessment do, should leave well alone. of the legal costs at this time. 1273 ChildrenasBritishCitizensVHomeOffice[19 OCTOBER 2020] ChildrenasBritishCitizensVHomeOffice 1274

Lord Alton of Liverpool (CB): My Lords, is it not Baroness Williams of Trafford (Con): It is quite all passing strange that the Home Office can calculate the right. Destitution and the inability to pay a fee—I difference between the £640 that it costs to administer have mentioned children in care—would not be a the citizenship fee and the £1,012 that it actually preventative factor for people gaining leave to remain charges, even to children in care, but cannot assess the in this country. Where an applicant can pay the whole legal costs of contesting the High Court’s judgment? immigration fee but none or only part of the immigration Instead of racking up lawyers’ fees and subsidising the health surcharge, the immigration fee will be required immigration system with what Sajid Javid rightly called and an exemption will be applied to the immigration huge citizenship fees, should it not be reviewing this health surcharge. As the noble and learned Baroness policy as noble Lords from right across your Lordships’ can see, there are a number of areas in which fees can Chamber have argued? be waived.

Baroness Williams of Trafford (Con): My Lords, the Baroness Primarolo (Lab) [V]: My Lords, will the Immigration Act 2014 allowed for the review of fees. I Minister tell the House whether the Home Office can give the noble Lord a general figure, which is that carried out a children’s best interest assessment of the just over £2 billion was generated from visa, immigration Government’s policy on fees in light of the original and nationality income and passport fees in 2019-20. judgment? If it did not, can she explain to the House The cost of BICS,the borders,immigration and citizenship why it was not conducted? system, was £3.18 billion. Baroness Williams of Trafford (Con): The noble The Lord Bishop of London: My Lords, the judgment Baroness will forgive me if I do not talk about the case in December 2019 highlighted that the Home Office in point, because there is ongoing litigation. We will application fee to register a British citizen was £1,012 look at the judgment with interest and see what is to for children, even though the Home Office estimated be done from there. the cost of processing applications for registration as £372. Putting a financial barrier on being able to Lord Paddick (LD): My Lords, can the Minister access one’s rights is a clear barrier to one’s access to explain whythe Government want the immigration system justice. What assessment have Her Majesty’sGovernment to be self-funding in a way that no other government made of the number of people whose rights are limited department is? Controlling immigration is of benefit by the level of the fee that has been set? to all citizens and should therefore be paid for by all citizens. Baroness Williams of Trafford (Con): There are areas for fee waivers, and children in care may well Baroness Williams of Trafford (Con): The whole have their citizenship fees paid for them. I reiterate my rationale behind the fee is to pay for the costs of the previous point that just over £2.9 billion is generated border, and not everyone goes through the border. I in fees, whereas the cost of BICS is over £3 billion. take the noble Lord’s point, of course, that maintaining a strong border is a cost to everyone.

Baroness Altmann (Con): My Lords, I am delighted Baroness Gardner of Parkes (Con) [V]: My Lords, that there are some exemptions for children, both can the Minister tell me whether the Government have those born before 2006 and those born after. Does my assessed how many people forgo registering for British noble friend agree that this is not about immigration citizenship for themselves and their families as they but about children with the right to register as citizens cannot afford it? How this might contribute to their and potentially denying them their right to register if sense of belonging and well-being is important. It is they cannot fund more than £1,000? I encourage my over £1,000 per person, and £4,000 for two adults and noble friend, who I know is compassionate about this two children. What can be done to help with that issue and about children in general, to urge the department finance? to perhaps consider again. Baroness Williams of Trafford (Con): As I mentioned Baroness Williams of Trafford (Con): I agree with earlier, there are waivers for certain groups of people, my noble friend that we do not underestimate the particularly children in care. I cannot tell my noble significance of the issue of fees for child citizenship friend how many people did not apply or register last and registration as a British citizen to both Members year, but I can say how many did. There were 49,000 of the House and to those affected. As I said earlier, applications for registration in 2019, and nearly 46,000 we keep those fees under review. of those were granted, of which over 34,000 were for minors. Baroness Butler-Sloss (CB): Are those children whose families do not have enough money to pay for British Lord Kennedy of Southwark (Lab Co-op): My Lords, citizenship to which they are entitled liable to be I entirely agree with the comments of the noble Baroness, deported when they become 18? Lady Altmann. Can the Minister tell the House whether she believes it is right that the immigration system is Baroness Williams of Trafford (Con): The noble subsidised by children who are born in Britain and and learned Baroness is so fixated on what I was going have lived their entire life in Britain and have the right to reply that she is stuck to the spot. to be British? I think it is wrong, grossly unfair and risks pricing children out of their legitimate rights. Baroness Butler-Sloss (CB): I am so sorry. There are numerous examples of when the Government 1275 ChildrenasBritishCitizensVHomeOffice[LORDS] Gender Recognition Act 2004 1276

[LORD KENNEDY OF SOUTHWARK] Lord Hunt of Kings Heath (Lab) [V]: My Lords, have refused to let other bodies recover their costs. I does the Minister accept that in sensitive discussions have asked many times here why local bodies cannot about the interaction between the Gender Recognition recover their planning costs—but the Government Act and the Equality Act, those most affected, namely constantly refuse to do that. women and transgender people, should have freedom to speak, and that intimidation and no-platforming Baroness Williams of Trafford (Con): As I said to are not acceptable? Will the Government reiterate their my noble friend, and say to the noble Lord now, we do belief in the importance of single-sex places provided not underestimate the significance of that cost, to either by the Equality Act, and make it clear to public bodies an individual or a family. We keep the fees under that it is not acceptable to insist on gender-neutral review, and, for children and their well-being, there are services at the expense of providing women-only safe a number of exceptions to fees for applications for spaces in refuges and rape crisis centres? leave to remain. Lord Roberts of Llandudno (LD) [V]: My Lords, is Baroness Berridge (Con): My Lords, I agree with this not just one other example of the feeling of the noble Lord that freedom of speech in this area, on hostility: that the Government, the Home Office and all sides, needs to be conducted in a manner that is the immigration system are against us? Not only that, respectful of people with very differing views. Yes, the but imagine how full of worry and anxiety somebody Equality Act has an exemption, so that single-sex facing deportation or tribunal is. This makes us one of spaces can be provided and, where justified, somebody the most inhospitable of countries. Is it not time to can be refused access to that space. revise again the British Nationality Act 1981? Lord Triesman (Lab) [V]: My Lords, I am sure that, Baroness Williams of Trafford (Con): My Lords, I today,the Minister will explicitly commit the Government refer the noble Lord to when the fees were last agreed. to sticking to the statutory definitions required for They were set out in Section 68(9) of the Immigration collecting data on sex discrimination and will guide Act 2014, during the coalition Government. ACAS to do so. Since gender identification would not Baroness Lister of Burtersett (Lab) [V]: My Lords, provide reliable data for the statistical analysis needed could the Minister confirm that the “task and finish” to understand historical patterns, what advice will the exercise which she promised at Report stage of the Government give to ensure complete clarity in the immigration Bill will address the barriers to children data required to comply with the legislation? Given registering their citizenship, as covered in my amendment, the comparable difficulty in defining gender if it relies and that the outcome will be reported to your Lordships’ solely on self-identity, will the Government commit to House? advising the NHS on the specific rights of women who do not have male bodies to access single-sex wards and Baroness Williams of Trafford (Con): On Report, I medical facilities? promised to meet with noble Lords. I called it “task and finish”, but I am still thinking of the best way to Baroness Berridge (Con): My Lords, as I have outlined, set that up. And yes, I would like to report some of the the NHS, as a public body, knows that it is the Equality findings of that discussion to your Lordships’ House. Act that outlines its provision of services, and so The Lord Speaker (Lord Fowler): My Lords, the single-sex wards can be provided. There is specific time allowed for this Question has elapsed. We now NHS guidance that, at present, states that transgender come to the third Oral Question. people should be accommodated according to their presentation but that decisions need to be made in the Gender Recognition Act 2004 best interests of patients. We leave it to front-line Question clinicians, who are aware of the circumstances on their wards and in their hospitals, to make those decisions. 1.34 pm Asked by Lord Hunt of Kings Heath Lord Cashman (Non-Afl) [V]: My Lords, I welcome the statement by the Minister, particularly on freedom To ask Her Majesty’s Government, further to the of information. Trans women and men have found Written Ministerial Statement by Baroness Berridge themselves vilified, deeply misrepresented and defamed, on 22 September (HLWS457), what further advice and seen, in total, as a threat, when all they want to do they intend to give to public bodies following the is get on with their lives, harming no one. Great harm conclusion of the review of the Gender Recognition has been done to them and their families—and, sadly, Act 2004. by some Members of your Lordships’ House. Therefore, TheParliamentaryUnder-Secretaryof State,Department I ask the Minister this: given that many trans people for Education and Department for International Trade face routine discrimination in public services, what (Baroness Berridge) (Con): My Lords, the Government steps will she take to ensure that public services are recently announced our response to and the results of equipped to support trans people, including through the consultation on the Gender Recognition Act. We staff training? are now focusing on digitising and streamlining the process, and reducing the fee. We hope these changes Baroness Berridge (Con): My Lords, it is deeply will make the process less bureaucratic for transgender regretful that there has been vilification on both sides people. At this stage, we are not proposing further of this debate. Wehope to move on from this consultation legislative guidance, but we will keep this under review. and that both sides can respect the differing views. 1277 Gender Recognition Act 2004[19 OCTOBER 2020] Gender Recognition Act 2004 1278

The consultation made it clear that health service Baroness Berridge (Con): My Lords, I can only provision was a concern; there is specific training now agree with my noble friend and thank him that he is to through the Royal College of Physicians to ensure that chair the international conference for LGBT, which medical practitioners are more alert to the issues of was in the manifesto. I hope that we can exhibit at that transgender people. conference a manner of disagreeing respectfully with one another when views differ on each side. Baroness Nicholson of Winterbourne (Con): My Lords, I thank the Minister for the excellent educational Baroness Grey-Thompson (CB) [V]: What advice material on sexual education for children in schools, will Her Majesty’s Government give to sports bodies, which her department recently published. En passant, when national policies differ from those of international I congratulate the noble Baroness, Lady Falkner, on her federations? nomination as the next chair of the Equal Opportunities Commission. This material brings into sharp relief the Baroness Berridge (Con): My Lords, the Equality previous advice that the Government seem to have Act made a specific exemption, as I am sure the noble been given by the Equal Opportunities Commission, Baroness is aware, so national sporting bodies could which led the Department for Education to publish a set their own criteria for participation in sport. We are decade-long sequence of materials, which vary greatly not currently aware of any disparity between national from the current new guidance. Is the Minister willing and international guidance and governing bodies, but to have a meeting with me to discuss the detailed if the noble Baroness knows of specific examples, can points of issue that I have raised? she please write to me? I will then endeavour to see Baroness Berridge (Con): My Lords,I, too, congratulate whether the UK Government have a role in that. the noble Baroness, Lady Falkner, on her appointment. I would be happy to meet with the noble Baroness. It is Baroness Wilcox of Newport (Lab) [V]: My Lords, key to remember that the relationships and health the consultation strongly favoured legislative reform education guidance that the department has put out of the Gender Recognition Act 2004, yet the Government was put out partly in response to the IICSA inquiry, have failed to take steps towards a process of gender which recommended that relationships education was recognition for trans people that is straightforward, a way to protect children so they would know what accessible and de-medicalised. What assurance can the was a healthy relationship and when someone was Minister give that, in digitising the gender recognition perhaps approaching them for ulterior motives. application process, the Government can ensure that the medical component of the process is streamlined and Baroness Barker (LD): My Lords, the Question focuses on the legal requirements of the Act, removing asked by the noble Lord, Lord Hunt of Kings Heath, the need for intrusive, degrading and unnecessarily and the terms in which it was asked, emanates directly detailed medical reports that are so distressing to the from a campaign supported by, among others, the trans community? Heritage Foundation in America, which intends to deny trans women in particular the equality and dignity Baroness Berridge (Con): My Lords, the Government that they deserve. Can the Minister tell the House are keen to streamline this process and make it as kind whether there is any evidence—as opposed to assertion— and fair as possible. I hear the comments made by the that public services are in any doubt about how to noble Baroness regarding medical evidence; that is a ensure the safety of women and trans women in public matter for clinicians. But she is correct that we do not services under the terms of the Equality Act as it exists want an overly complex paper system to become an now? overly complex digital system, so part of this is ensuring that the process is simplified before it is digitised. Baroness Berridge (Con): My Lords, the data is not collected centrally. A number of providers, including Baroness Grender (LD) [V]: Is the Minister aware public providers, are making use of the single-sex that some local authorities have withdrawn trans-inclusive space exemption. It must not be forgotten that people guidance to schools because of threats of judicial are electing a gender-specific service—a single-sex toilet, reviews? Does she agree that the safety and welfare of for example—each and every day,and in the overwhelming schoolchildren should never be used as a political majority of situations there is not a problem. The football by campaigns, and is she concerned that some Government do not want to interfere with that. such campaigns do just that and do not declare their Lord Herbert of South Downs (Con): My Lords, I sources of support and funding? draw attention to my interests as set out in the register. I welcome the Government’s improvements to the Baroness Berridge (Con): My Lords, the department healthcare of trans people. In drawing up policy in has put out comprehensive resources for health education relation to this sensitive issue, can the Minister ensure in primary schools and health and sex education at that the Government will always be guided by a careful secondary schools, has resourced teachers, and had a assessment of the evidence, including the global evidence commitment in the manifesto in relation to avoiding of best practice in this area and a proper regard to the bullying. We hope that as a result of this consultation, human rights and dignities of every individual, and both sides can live in peace with one another and will always reject any invitation to fight or join in a disagree properly without undue recourse to the courts. culture war on this issue from whichever side, such as we have seen far too often in debate over the last few The Lord Speaker (Lord Fowler): My Lords, the months? time allowed for this Question has elapsed. 1279 Trains: East Midlands [LORDS] Trains: East Midlands 1280

Trains: East Midlands developments. A dedicated ministerial champion to Question drive this key programme forward within government would be hugely beneficial. Is that something that the 1.46 pm Government will consider? Asked by Lord Bradshaw Baroness Vere of Norbiton (Con): The Government To ask Her Majesty’s Government what plans take their relationship with Midlands Engine and they have to decrease journey times for trains that Midlands Connect extremely seriously, and I have had use the Nottingham to Lincoln corridor to connect a number of meetings with them. On transport for the with other cities in the East Midlands. east Midlands, the Transport Secretary, Grant Shapps, announced on 3 September a new collaborative agreement TheParliamentaryUnder-Secretaryof State,Department between local leaders in the east Midlands and the for Transport (Baroness Vere of Norbiton) (Con): My department. We have created two new posts within the Lords, Midlands Connect is working with Network department specifically for the east Midlands to provide Rail to develop two line-speed improvement proposals a more influential role when it comes to rail service between Lincoln and Nottingham, as part of its role in enhancement decisions. promoting strategic transport investment across the Midlands region. One proposal is to reduce journey Baroness Randerson (LD) [V]: My Lords, 79% of timesforpassengerservicesbetweenLincolnandNewark. workers in the East Midlands travel to work by car, An investment decision will be made on the proposal and only 1% by rail. Contrast this with London where following completion of its business case. 27% go by car and 46% by rail and Tube. London shows that that revolution is achievable. Does the Lord Bradshaw (LD) [V]: I wish to widen the scope Minister accept that to cope with road congestion, of that. I am very pleased to hear of the improvements pollution, climate change and ill health the Government between Newark and Lincoln, but my Question was must prioritise investment now for much-improved concerned with the overall journey times between commuter train services in the East Midlands? It Lincoln, Nottingham, Derby,Leicester and Birmingham. needs a lot more than a three-minute time improvement; The average journey by train being at about 30 miles it needs a massive change of approach from the per hour.What further improvements do the Government Government. envisage? Baroness Vere of Norbiton (Con): The Government Baroness Vere of Norbiton (Con): My Lords, the are committed to making improvements to East Midlands Government envisage a number of further improvements commuter travel. The noble Baroness is absolutely across the wider area that the noble Lord mentions, right: if we are to get people out of their cars, we need particularly on the Newark to Nottingham stretch. them on the trains. Of course one of our priorities is Midlands Connect and Network Rail are looking at a improving the safety of staff and passengers on trains. feasibility study which may see an improvement in We have extra staff to manage flows, extra signage and times by three minutes. As the noble Lord will know, extra cleaning. I hope that she will agree that if people the issue there is the flat crossing at Newark, where it want to travel to work in the East Midlands by train, crosses the east coast main line. More broadly, the they should do so. Government are doing an awful lot of work in the Midlands as they develop HS2. Lord Rosser (Lab) [V]: First, what is government Lord Berkeley (Lab) [V]: My Lords, I thank the spending on transport overall in the East Midlands Minister for the interesting answers that she gave region per head of population, compared with the the noble Lord, Lord Bradshaw. Do the Government national average on transport per head of population? intend that the upgrades in timing, which will need Secondly, what specific progress has been made over infrastructure improvements between Birmingham, the last five months towards reopening the line from Nottingham, Newark and the flat junction for freight, Leicester to Burton to passengers, following the and beyond, will be part of the integrated rail plan government announcement last May of a fund for recently announced by the Government? They would feasibility studies on the reopening of lines? bring local and regional benefits much sooner than the construction of HS2 East, which apparently has Baroness Vere of Norbiton (Con): The last figures now been paused. that I have for investment in transport are £268 per head in the East Midlands compared to £474 per head Baroness Vere of Norbiton (Con): The integrated across England, so there is much more to be done. The rail plan announced in February 2020 will look at the steps that the Department for Transport has taken delivery of high-speed rail alongside all the other rail recently will aim to level up the East Midlands in the enhancements across the Midlands, including the amount of investment in infrastructure. The line between Midlands rail hub. Network Rail is already developing Leicester and Burton—I believe it is known as the work in this area, including connectivity improvements Ivanhoe line—is part of the Restoring Your Railway between Birmingham and Nottingham. programme, so the reintroduction of passenger services is being considered. Development of these plans has Lord Ravensdale (CB): My Lords, I declare my been funded, and the Department for Transport and interest as co-chair of the Midlands Engine All-Party Network Rail are working on it with the promoters of Parliamentary Group. Rail is playing a vital role in the scheme to provide the guidance and support that levelling up the Midlands and capitalising regional they need to get a strategic outline business case. 1281 Trains: East Midlands[19 OCTOBER 2020] United Kingdom Internal Market Bill 1282

Lord Loomba (CB) [V]: My Lords, ensuring better United Kingdom Internal Market Bill train services is key to achieving the levelling-up agenda Second Reading across the whole country. It is paramount for jobs and growth that passengers and businesses using train networks have good, reliable and fast services. Also, 2.47 pm part of tackling climate change is encouraging greater Moved by Lord Callanan use of public transport, given that the road networks linking cities in the area are congested and polluted. That the Bill be now read a second time. What assessment have the Government taken on increasing train timetable options for passengers from Lincoln, with a view to ensuring greater usage? TheParliamentaryUnder-Secretaryof State,Department forBusiness,EnergyandIndustrialStrategy(LordCallanan) (Con): My Lords, I beg to move that the Bill be now Baroness Vere of Norbiton (Con): I believe I have read a second time. The United Kingdom’s internal been able to explain that between Lincoln and Nottingham market has been the bedrock of our shared prosperity an awful lot of work is going on—to improve not only for centuries. Since the Acts of Union, the UK internal the time taken to travel between those two places but market has been the source of unhindered and open the frequency of the trains. For example, I reassure the trade across the entire United Kingdom. It has enabled noble Lord that, in addition to the measures I have businesses and individuals to thrive and has been the already spoken about, there are plans to see two new source of unhindered and open trade across our country. services in each direction from May 2021, and then It has helped to demonstrate that, as a union, our three more services after that each way from 2022. country is greater than the sum of all our parts. Around 60% of Scottish and Welsh exports are to Lord Scriven (LD): My Lords, my noble friend the rest of the UK, which is around three times as Lord Bradshaw pointed out that on the wider regional much as exports to the whole of the rest of the network the average speed is 30 mph, which is not European Union. About 50% of Northern Ireland’s competitive for freight and businesses, and not good sales are to Great Britain. When we leave the transition for the environment. The Minister pointed out that period at the end of this year, an unprecedented number there will be a three-minute improvement, but can we of powers will flow from the EU to the devolved come back to speed? In five years’ time, when the nations and the UK Government. As this happens, arrangements that she mentioned will have been made, and as we recover from Covid, we must ensure that what will be the average speed on this line per journey? our economy is stronger than ever. The Bill will guarantee If she does not have those figures to hand, could she the continued functioning of our internal market to please write to me with them? ensure that trade remains unhindered in the UK and businesses can continue to operate with certainty.Without the Bill a Welsh lamb producer, for whom almost 60% Baroness Vere of Norbiton (Con): The noble Lord of the market is the rest of the UK, could end up will not be surprised to know that I do not have the unable to sell their lamb as easily as before. Scotch average speed figures to hand, but one look at that line whisky producers could lose access to supply from tells you that there are quite a number of stations, and English barley farmers, unnecessarily putting at risk they bring down the overall average speed. For example, Scotland’s own whisky industry. on the Newark to Nottingham section, the new signalling This package guarantees a continuation of our system will allow speeds of up to 90 mph. It is key to centuries-old position that there should be no economic get the trains moving much faster between the stations, barriers to trading within the United Kingdom. To although I accept that the average speed will be achieve this, the Bill will do the following. First, it will significantly below that. introduce a market access commitment for goods, services and professional qualifications respectively. The Deputy Speaker (Baroness Henig) (Lab): My This will ensure that the UK can continue to operate Lords, all supplementary questions have been asked. as a coherent internal market and maintain the deep integration and strong economic ties that bind the UK together. Secondly, it provides a statutory underpinning High Speed Rail for a new office for the internal market, within the (West Midlands-Crewe) Bill Competition and Markets Authority. This office will Order of Commitment independently monitor the health of the UK internal market and provide technical advice on issues that 1.55 pm may impact it, reporting to the devolved legislatures and to this Parliament itself. Moved by Baroness Vere of Norbiton Thirdly, it introduces provisions to ensure that there is a safety net in domestic law to prevent new checks That the Bill be recommitted to a Grand Committee. and controls on goods going from Northern Ireland to Great Britain, in line with the Government’scommitment Motion agreed. to unfettered access for qualifying Northern Ireland goods. Fourthly, it enables strategic investment in all 1.56 pm four corners of the United Kingdom, giving the UK Government a power to provide financial assistance Sitting suspended. for the purposes of economic development, culture, 1283 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1284

[LORD CALLANAN] across the UK, and so it is right that we have a sporting activities and infrastructure, as well as both UK-wide approach to subsidy control. As we take international and domestic educational and training back control of this policy from the EU, the UK will activities and exchanges. have its own domestic subsidy control regime. From Finally, it reserves to the UK Parliament the exclusive 1 January, the Government will follow the World ability to legislate for a UK subsidy control regime Trade Organization rules for subsidy control, and any once this country ceases to follow EU state aid rules at related commitments the Government have agreed in the end of the transition period. This is to ensure that free trade agreements. subsidies do not unduly distort competition within the We will consult on whether to go further than those UK’s internal market. Let there be no doubt: this Bill existing commitments, including whether legislation is is crucial in providing certainty to businesses, and we necessary to achieve a system that promotes a competitive must give them that certainty. and dynamic economy throughout the United Kingdom. My department and I, along with colleagues across We appreciate that our longer-term approach will have government, spoke to hundreds of businesses and implications for business and all public authorities business representative organisations from across the that grant subsidies with taxpayers’ money, including UK to gather views and feedback on our original the devolved Administrations. So we will take the time White Paper proposals. Over 270 businesses and to listen closely to those voices and design a system organisations responded to a public consultation on that promotes a competitive and dynamic economy the proposals, and businesses overwhelmingly supported throughout the whole of the United Kingdom. However, our approach. I record my thanks for the engagement we will not return to the 1970s approach of bailing out we have had from all aspects of business on this. unsustainable companies, be they in Scotland, England, The Bill will put in law a market access commitment Wales or Northern Ireland. by enshrining mutual recognition and non-discrimination: As we leave the EU and take back control of our mutual recognition to ensure that goods and services money, we will require new powers to continue to from one part of the UK will be recognised across the invest across the United Kingdom. Therefore, this Bill country, and non-discrimination to guarantee that will confer a power to make sure that the UK Government there is equal opportunity for companies trading in can invest UK taxpayers’ money nationwide, including the UK regardless of where in the country that business on the UK Government’s priorities, supporting people is based. The same principles of mutual recognition and businesses across the UK and delivering on our and non-discrimination will also be applied to services commitment to level up all parts of our country. and will introduce a process for the recognition of Currently,unelected EU bodies spend billions of pounds professional qualifications across the whole UK internal that we provided as a net contributor, on our behalf. market. This will allow professionals such as doctors They spend our money, with very little say from elected and nurses, qualified in one of the UK nations, to politicians in the UK. This will, rightly, change as we work in any other part, as I am sure Members would leave the transition period. expect. Furthermore, the Government are inviting views on the regulatory framework for professional The UK Government intend to take a much more qualifications, to ensure that our approach remains collaborative approach in delivering programmes that world leading. We have, of course, listened to those in replace EU funds. This includes engaging heavily with the devolved Administrations and business, and have local authorities as well as wider public and private made some exemptions, for example to respect the sector organisations. And, of course, it means working divergence that exists between the legal professions in closely with the devolved Administrations to make England, Wales and Scotland. sure that investments complement their existing—and The Bill will also ensure that Northern Ireland continuing—powers used to support citizens in Scotland, qualifying goods benefit from the market access Wales and Northern Ireland. This power to provide commitment and receive mutual recognition in the financial assistance will cover infrastructure, economic rest of the UK, guaranteeing a continuation of our development, culture and sport. It will also support centuries-old position that there should be no economic educational and training activities and exchanges both barriers to trading within the United Kingdom. within the UK and internationally, much of which of We consulted on how to ensure an independent course was previously done at EU level. monitoring and advice function to uphold the UK These powers are not designed to take powers from internal market. In response, and to oversee the the devolved Administrations, but to add powers to direct functioning of the internal market, the Bill will set up investment in a similar fashion to the EU Commission, an office for the internal market within the CMA. This while reforming programmes and empowering MPs office will monitor and report on the internal market from Wales, Scotland, Northern Ireland and England to the UK Government, devolved Administrations, to design and scrutinise funds in a way that was never the legislatures, and external stakeholders, ensuring possible within the EU. This will also allow the UK the continued smooth operation of that market that Government to meet their commitments to replicating businesses so desperately desire. and matching EU structural funds within the shared Subsidy control has never been devolved. It is crucial prosperity fund. This is in line with the Government’s to continue to have a UK-wide approach, to protect manifesto commitments to strengthen the union and our internal market and prevent harmful and distortive level up the country. This power to provide financial practices arising. The purpose of the Bill is to ensure assistance is one of the mechanisms by which the that we continue to have fair and open competition Government hope to achieve these ambitions. 1285 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1286

We will also be introducing limited and reasonable 3 pm steps to provide a safety net to ensure that peace can always be preserved in Northern Ireland. In the event Lord Judge (CB): My Lords, I beg to move the that we do not reach an agreement with the EU on amendment in my name on the Order Paper. If I believed how to implement the Northern Ireland protocol, we in compulsion, and executive compulsion in particular, must be able to deliver on promises in our manifesto I would make an order that every member of the and in the Command Paper. This is a legal safety net Cabinet should read the report from the Constitution which clarifies our position on the Northern Ireland Committee and the report from the Delegated Powers protocol, protecting our union and ensuring that and Regulatory Reform Committee and understand businesses based in Northern Ireland have true “unfettered what they mean. What I read in those reports we have access” to the rest of the United Kingdom, without read time and time again, and, so far, nobody has paid paperwork. The Bill will also provide certainty on much attention to them. I can sit down now, can I not? state aid, ensuring that there is no legal confusion and Perhaps not. that, while Northern Ireland will remain subject to the I do not want to grandstand, but the rule of law is a EU’s state aid regime for the duration of the protocol, bulwark against authoritarian incursion, and even the Great Britain will not be subject to EU rules in this smallest incursion threatens it. When those responsible area. for making the law—that is, us the Parliament, we the This Bill, and our wider approach to protecting our lawmakers, who expect people to obey the laws we internal market, is designed for co-operation between make—knowingly grant power to the Executive to the four parts of the United Kingdom. It will protect break the law, that incursion is not small. The rule of our common causes, such as the setting of high standards law is not merely undermined, it is subverted. There is in our economy, and will work in concert with the one consequence, and the damage is to our standing in common frameworks programme and the IGR, which the world. We have no real power now, except soft is due to conclude shortly. After all, the UK has some power—the English language and an understanding of the highest standards in the world. It is worth that we in this country have a traditional belief in the reminding noble Lords that we go beyond EU rules rule of law and we respect it. We hope that, one day, all in many areas, including health and safety in the the countries in the world that do not have respect for workplace, workers’ rights, food, health and animal the rule of law will have it. Yet here we are, about to welfare, consumer protections, household goods, net tear it into tatters. Our contribution to happier days zero and the environment. We will maintain that around the world will be diminished. commitment to high standards, including as we negotiate I want to make it clear that I passionately believe in trade agreements that will provide jobs and growth in the sovereignty of Parliament. I extol it, I discuss it the UK. We have been driving this forward through abroad, I explain its advantages over a written constitution, our common frameworks programme, to drive which includes the flexibility that we now have. I also collaboration and a coherent approach to policy across accept that Parliament can make any law it likes; it can the UK now that we have left the European Union. I criminalise anything it wants to. Let me give you a silly therefore want to reiterate the Government’s invitation example, which is not that far removed from what has to all devolved Administrations to work together on been going on through Covid. I happen to support this Bill, with the common frameworks process and Leicester City FC. Parliament could make it an offence with the internal market as a whole. to be a supporter of Leicester City FC. They could This Bill is crucial to ensuring that we continue to make it an offence for 10 Leicester City FC supporters work together as one United Kingdom to support to gather together to support the club. It obviously jobs and livelihoods across our entire country. As we will not do that, but in theory it can do exactly what rebuild and recover from Covid-19 and look ahead to it likes. opportunities following the end of the transition period, The rule of law requires properly enacted laws. I this Bill will provide the certainty that businesses need accept that; rule by properly enacted laws is one of the to invest and create jobs. It will accompany one of the ingredients, but it is not definitive. When the sovereignty biggest transfers of powers in the history of devolution, of Parliament is tossed against us—fair enough, it is with hundreds of powers flowing from the EU to the important, it is crucial, it is our constitution—let us devolved Administrations at the end of the transition remember that every country in the world has a law- period. This Bill will do all this and preserve the making body.Think of one that has not. It will produce internal market, which has been an engine of growth the laws by which that country is ruled. Of course, it and prosperity since the Acts of Union. That is why will. But some constitutionally, properly enacted laws we need this Bill. I beg to move. are the antithesis of the rule of law. There are so many examples, but here is one that leaps to mind. Apartheid Amendment to the Motion South Africa, where everything about you as a human being and the way you were treated by the law depended Moved by Lord Judge on the accident of birth: the colour of your skin. Depending on the colour of your skin, your rights were “As an amendment to the motion that the bill be more or less; they were certainly different. We tend to now read a second time, at end to insert “but that forget—we should not—that apartheid South Africa’s this House regrets that Part 5 of the bill contains abhorrent laws were the result of a perfectly clearly provisions which, if enacted, would undermine the understood constitutional enactment. In law, they were rule of law and damage the reputation of the United utterly justified in making any law they liked, just as Kingdom.” we are. But somebody tell me that apartheid South Africa, 1287 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1288

[LORD JUDGE] power to use secondary legislation in effect to repeal with its properly enacted laws, was a place where the an Act of Parliament that Parliament has only just rule of law could be found. It was miles away, the enacted, almost before the ink on it is dry. That is not furthest constellation in the stars you can imagine. how the sovereign Parliament should be treated by the We need to be careful to distinguish between the Executive. We do not have executive sovereignty. rule of law and rule by laws. It is the rule of law that But this is worse than the standard Henry VIII carries us and gives us the protection that we need clause. To talk about a standard Henry VIII clause is from the abuse or misuse of the constitutional power itself a shameful thing to have to do, but we are faced that is enjoyed by Parliament. It is our safest shield with them in every piece of legislation, like blossom in against authoritarianism. It is a phrase that was conjured spring when the wind blows. And, despite the recent up by the Commons for the first time in 1610 to tell an arguments by the Lord Chancellor, Part 5 as a whole overweening king that he was seeking to exercise overmuch was obviously intended to prevent any legal challenge power. It is a phrase we should use to remind an to ministerial decree—and the Lord Chancellor himself overweening Executive that they are going too far. accepts that such rights will be reduced. I know that I am not alone in finding it offensive This is not an attempt to limit the court’s jurisdiction that we are asked by a Minister in Parliament to seek over primary legislation: it is now being extended to Parliament’s authorisation to allow him to break the secondary legislation. The House has heard me speak law deliberately and knowingly.Saying that it will be done before on the subject of the inadequacy of parliamentary only in a very specific and limited way is a total control of secondary legislation but, if Parliament will obfuscation. A thief who steals only a tin of tuna is not exercise control, and the courts cannot do it, still a thief. Over the years, Parliament has heard many where then are the controls on the Executive? They are strange words, it has heard some very surprising words, vanishing into the air. So now we are being asked to it has heard some inspirational words. It is part of the give a Minister of the Crown, on behalf of the Executive, history of our country. But I have not yet found an the lawful authority knowingly and deliberately to occasion—I have tried, and if the Minister can find repeal recent domestic legislation and to break one no doubt he will tell me—when Parliament was international treaties, all through secondary legislation invited to agree that a Minister should be entitled to over which parliamentary control has crumbled through break the law. disuse and the normal scrutiny of which by the courts We must look on the impact of Part 5 as a totality. has been reduced to a whimper. It is not just Clause 47 that is pernicious. Let us go I am nearly done. The rule of law has served us back. We became party to a new agreement with the well. It has not made a perfect society—nor could it. EU, which provided sensible get-out clauses for both But we all know that without it our society would have sides and which either side could use, and re-enacted been, and would still be, catastrophically worse. We the withdrawal Act this year, just before Covid hit us. must defend that bulwark, and I hope that I shall be The Northern Ireland protocol was integral to it, with supported, because I intend to take this issue to a its own get-out clauses. I recognise, if I may say so, the Division, so that the House can give its own opinion distaste and hostility with which some people in Northern on this dangerous legislation. I say, “Not in my name.” Ireland regard what happened then. I suggest to them that this debate is not about the protocol; it is about 3.12 pm the rule of law. Baroness Hayter of Kentish Town (Lab): My Lords, The Act gave legal effect to the withdrawal agreement while thanking the Minister for opening the debate, we and the protocol, and thus it became domestic legislation concur totally with the regret expressed by the noble and implementing an international agreement. Of course I learned Lord, Lord Judge. I will, however, leave it to my accept that international agreements and treaties occupy noble and learned friend, Lord Falconer, to set out our a separate star in the firmament, but breaking international case on this, having allocated some of my speaking time law is not different, in principle, from breaking domestic to him, while my noble friend Lord Stevenson will cover law. The rule of law is no less an ingredient of the legal the state aid and competition parts of the Bill, as well as relationship between nations as it is domestically. Let the governance, independence and powers of the OIM. us get ourselves rid of the myth, the spin, that when Today will be a notable one for your Lordships’House, the rule of law internationally is damaged, the rule of given the expertise that we will hear, and we look law domestically is nevertheless quite unscathed. It is forward to the maiden speeches of my noble friend absurd. The rule of law is indivisible. And let us disabuse LadyHaymanof UllockandthenobleLord,LordSarfraz, ourselves of a further myth or spin that actions already as well as those of my noble friend Lady Andrews, taken have not diminished virtually to extinction the chair of the Common Frameworks Committee, my assertion by the Minister in the other place that we are noble friend Lady Taylor, chair of our Constitution a beacon around the world for the rule of law and Committee, and the noble Earl, Lord Kinnoull, chair international law. The light given by that beacon is of the EU Committee, whose reports the noble and being extinguished. learned Lord, Lord Judge, has already referred to. Finally,we must not be beguiled by the recent argument I also look forward to hearing the speech of the that the legislation would be used only if necessary, in most reverend Primate the Archbishop of Canterbury, an emergency. It does not cure the fault, does it? What who, with church leaders from across the four nations, is not a myth is that not a shred of evidence has been writes in today’s FT of the grave responsibility of produced that would justify the use of the get-out Peers, given that the Bill clauses; hence this proposed legislation. Part 5 provides “will profoundly affect the future of our countries and the relationships that a Minister of the Crown shall be vested with the between them”. 1289 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1290

It is hard to understand how the Government have chlorine-washed chicken, consumers in Aberdeen and got so much wrong in a Bill that was long expected as Aberystwyth could find it on their supermarket shelves a result of our exit from the EU.Perhaps it is symptomatic without any say by their elected Governments. Similarly, of their genetic inability to work with those whose the Bill’s lack of a public health exclusion from market interests are affected by legislation—hence their access principles makes it difficult for all parts of the undermining of the protocol without a word to Irish UK to implement policies to reduce harms from alcohol politicians, and their willingness to break international and tobacco, for example, or to tackle environmental law, and renounce a treaty, with nary a word to the harms. judiciary or the co-signatories, which led to the EU Meanwhile, this House’sDelegated Powers Committee taking legal action, via a letter of formal notice, for a describes the Bill as a constitutional power grab,apparently breach of the good-faith terms of the withdrawal horrified by its “extraordinary, unprecedented powers”, agreement. which allow Ministers to amend or repeal parts of this Moreover, despite claims that it would strengthen Bill—or indeed any Act of Parliament or statutory the integrity of the union while upholding the devolution instrument. settlements, the Bill actually, Wedo not concur with the Government’sassertion that “risks de-stabilising an integral part of the UK’s constitutional “the Bill ... is not constitutional but economic”. significance”, in the words of our Constitution Committee. Rather, we agree with the Archbishops that In a letter to the Lord Speaker, Jeremy Miles, the “the effect on devolved policymaking is of constitutional significance”. relevant Welsh Minister, describes the Bill as The Delegated Powers Committee calls on us to ensure “an unprecedented attack on the devolution settlement”, that major decisions are taken by primary,not secondary legislation, noting that much of the Bill’s reliance on arguing that it would undermine the Senedd’s right to statutory instruments has no relation to any need for regulate in devolved areas of competence and would urgency. explicitly amend the Government of Wales Act. Unsurprisingly, the Senedd’s legislative consent I turn to the CMA. Its present structure is inadequate, memorandum concludes that, unless the Bill is not simply by failing to represent all four nations, but substantially amended, the Welsh Government would by lacking a clear duty to place consumers at the heart not be able to recommend consent. of its work. It is notable that nowhere in the Minister’s letter to your Lordships of 1 October does the word A similar reaction led the Scottish Parliament to “consumer” even appear. You have to get to Clause 32 vote by 90 to 28 against granting legislative consent, before you find a welcome mention of with the Scottish Government stating that they could not recommend consent to a Bill that, “impacts on prices, the quality of goods and services or choice for consumers”. “undermines devolution and breaches international law”— Competition is not an end in itself; it is to serve and it looks as if that response has led to a third of consumers, prevent rip-offs and promote fair trading Scottish voters being more likely to back independence. and growth. Intervention exists to get a market working There has been a real issue to resolve, because when for consumers, so that objective must be hard-wired we entered the EU in 1973, there was no devolution. into the CMA’s DNA. The noble Lord, Lord Tyrie, as But we thought we had achieved a solution with the chair, produced an excellent suite of suggestions to common frameworks in the Withdrawal Act. Within make the CMA consumer-focused and fleet of foot. the EU,common standards, mutual recognition, labelling, We will seek to write these into the Bill, as well as to testing, professional recognition—or whatever—were reflect all four nations. decided by consensus across the 28, with MEPs from In this Bill, the Prime Minister has managed to our four nations signing off the various measures. Our anger lawyers, devolved authorities, the EU,the churches, exit repatriated powers to the UK, but they included his own Back Benches and the majority of your Lordships. powers in some devolved competencies. He is really like a bar-room brawler,taking on all comers. So how did the Government react? Did they set up Is it possible that they are right and he is wrong? a mechanism akin to EU co-determination, designed Perhaps it is worth reminding Mr Johnson on the with the devolved Administrations? Did they build on oft-quoted words that Barack Obama left in the Oval the common framework efforts already in play? No, Office for President Trump: they took to themselves significant repatriated powers, “We are just temporary occupants of this office. That makes annulling elements of the devolved settlement, to replace us guardians of those democratic instructions and traditions—like a system that had evolved slowly and by careful negotiation rule of law ... it’s up to us to leave those instruments of our over decades by government edict. They published democracy at least as strong as we found them”. their plans with statements from Messrs Gove, Sharma Something is needed to replace the EU’s competition- and Jack, from a Scottish businessman and from the based open market, such that consumers do not lose Scottish Retail Consortium, but with no word from out, so that public health, the environment and the Welsh Secretary of State and no involvement of food standards are protected and that the union is devolved Governments.They sweep state aid to themselves strengthened, but it is not this Bill. This must be and give a role to the CMA, which is unrepresentative amended to be workable, legal, democratic and respectful of the devolved nations. of the devolution settlements. For that reason, we The Bill grants UK Ministers powers on mutual share the regret expressed in the amendments of the recognition without any input from the devolved noble and learned Lord, Lord Judge, and the noble Administrations. So if England, for example, imports Lord, Lord Cormack, that the Bill undermines the 1291 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1292

[BARONESS HAYTER OF KENTISH TOWN] reputation as an honest partner and an advocate of rule of law and reneges on a treaty, reducing our the universal application of the rule of law. So, what standing on the world stage. That is regrettable indeed, should your Lordships’ House do? We must ensure and completely avoidable. that the law-breaking clauses do not enter the statute book. I have considerable sympathy with those who 3.23 pm argue that we should vote against the Bill today, at Second Reading, because that is the cleanest way of Lord Newby (LD): My Lords, this Bill is, on a getting rid of the offending clauses, and because, for number of grounds, the most dangerous and baffling reasons I will explain, I do not believe that the remainder piece of legislation to come before your Lordships’ of the Bill is necessary at all. However, I understand House in the 23 years since I became a Member. It is that this is not the view of others across the House, so dangerous because, for the first time in that period, a we will work with them to excise the specific offending British Government are explicitly legislating to break clauses when we get to them. My only plea, though, is their word in a treaty recently entered into and in that when it comes to ping-pong, the many noble breach of international law. It is baffling because none Lords who, over the next few hours, will express their of its other provisions are necessary at all to meet its abhorrence of what the Bill contains, will be willing to ostensible policy goals. gird up their loins for the repeated ping-pong which I shall take the dangerous part first—the provisions will surely be necessary if our common views are in Clauses 44, 45 and 47 to allow the Government to eventually to prevail. override the provisions of the Northern Ireland protocol that could impede unfettered access to Great Britain’s If the Northern Ireland protocol clauses are dangerous, markets for Northern Ireland goods. I pass over the the remainder of the Bill succeeds in being completely provision in Clause 43(2), which allows a whole raft of unnecessary, while at the same time undermining some new checks, controls and administrative procedures on of the basic principles of the devolution settlement. such trade,which the Government now accept is necessary, Veterans of the EU withdrawal Bill will remember and in doing so makes a mockery of the whole concept grappling with how to manage the repatriation of of unfettered access in the first place. On the offensive measures that underpin the single market: which should provisions themselves, let us be clear on three questions. be retained at UK level, which should be devolved and First, do they indeed break international law? Secondly, which should be jointly determined? With the help of in these particular circumstances, is such a breach the noble and learned Lord, Lord Mackay of Clashfern, justified? Thirdly, if not, what should now be done? we arrived at a system of common frameworks that would, between them, deal with all aspects of the On the first question, the answer is clear. The single market. There are some 40 of them, and they Government have themselves accepted that the provisions have either been fully negotiated or are in the process “break international law in a limited and specific way”.—[Official of being negotiated. When finalised, they will render Report, Commons, 8/9/20; col. 509.] the ostensible purpose of the Bill—to ensure the smooth Touse a slightly different example from that of the noble operation of the UK’s internal market—completely and learned Lord, Lord Judge, if I go into a shop and unnecessary. steal a specific and limited number of Rolex watches, I have still committed a theft. Government amendments However,the Bill does not simply provide overarching to the Bill in the Commons would require Parliament UK-wide market access provisions; it takes away power to vote before any provisions could be introduced from the devolved Administrations and reserves it to under the offending clauses, but as the Bingham Centre London at the same time. There are several ways in for the Rule of Law puts it, such a vote which it does so. It undermines the devolved institutions’ “does not alter the fact that Parliament is still being asked by the right to regulate in devolved areas of competence. It Government to legislate in deliberate breach of its treaty obligations.” gives wholly new powers to UK Ministers to spend So, the provisions without doubt break the law, but public money on devolved issues in Scotland, Wales are they still justified, as the Government contend? and Northern Ireland, without necessarily involving They have argued that they are, on a number of grounds. them in deciding on priorities. And it seeks to amend They have produced the lamentable excuse that, because the state aid legislation, so that the UK Government they signed the withdrawal agreement in a rush, they could impose a new state aid regime without the did not realise what it meant. They have resorted to agreement of the devolved Administrations. Over the scaremongering, saying that the EU was planning course of the debate, my noble friends and other noble to impose a “blockade”—their word—on agricultural Lords will set out in detail why this legislation is so goods moving across the Irish Sea, a suggestion the very damaging to the devolution settlement. Irish Foreign Minister has described as “totally bogus”. To seek to undermine devolution in these ways, They have argued that the UK Government have under the innocuous cloak of maintaining market broken international law on numerous occasions in access for goods and services across the UK, is not the past to justify doing so again. However, the briefing simply disingenuous; it is dangerous, because it can to your Lordships’ House by the Law Society and the only give succour to those who want to break up the Bar Council knocks that on the head when it states: United Kingdom. Amendments will be laid on a cross- “We are unaware of a precedent for such an approach in UK party basis at Committee stage, supported by the legislation or administrative process.” Welsh and Scottish Governments, which will seek to The truth is that there is not a shred of justification reverse the worst aspects of what the Government are for breaking international law, as provided for in this proposing in respect of the devolution settlement. I Bill. Its effect will simply be to diminish our international hope they will be supported across the House. 1293 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1294

As we face the ravages of Covid-19 and the impending the world, will suffer great harm if law-breaking is costs and disruptions of Brexit, to have to spend weeks pursued—greater harm than this Bill seeks to prevent. of legislative time, as we now are, trying to stop the In the Church of England, we are all too clearly aware Government breaking international lawand undermining of the shame that comes with failing morally. Let us the devolution settlement is both depressing and not make the same mistake at national level. This infuriating. But if this House of Lords has any purpose, House exists to amend and improve legislation, not to it is to protect the rule of law and the constitution, and derail it, and that must be our urgent aim now. it is up to us now to rise to that challenge. 3.31 pm 3.35 pm The Archbishop of Canterbury: My Lords, I look The Earl of Kinnoull (Non-Afl): My Lords, it is a forward to hearing, here and online, the contributions great pleasure to follow the most reverend Primate, to come, especially the maiden speeches of the noble and I congratulate him and his most reverend colleagues Baroness, Lady Hayman of Ullock, and the noble on their very welcome letter today, with which I, too, Lord, Lord Sarfraz. wholeheartedly agree. I also concur totally with the powerful and remarkable The European Union Committee published our speech by the noble and learned Lord, Lord Judge. report on the internal market Bill last Friday. It was What we are called to do above all in this country, the 74th Brexit-related report that we have made since deeply embedded in our Christian culture and history, the referendum in 2016. It was unanimous, as all the is to act justly and honestly. We cannot do so if we previous reports have been. Once again, I pay tribute openly speak of breaking a treaty under international to the outstanding committee staff, working all hours law, reached properly, on which peace in part of the as they do, to such a very high standard over such a UK relies. My distinguished former colleague Sentamu, long period. The report is short. It deals only with who paid with beatings for his defence of law and Part 5 of the Bill and its interaction with the Government’s justice in Uganda would have spoken trenchantly. I implementation of the withdrawal agreement. It was regret his absence. designed to fit together with the excellent report of the There are some who claim that I and my colleagues Constitution Committee and its wider analysis of the who wrote in the FT this morning are misinformed. rule of law issues. But the letter—and this intervention—followed the I have said before in this Chamber that there is an lead of those who have spent their lives seeking peace inherent tension at the heart of the Ireland/Northern in Ireland. Peace is surely something of which religious Ireland protocol, essentially in marrying up the aspirations leaders should speak. We also listened to the Select of the recitals with the hard legal texts of the articles Committee on the Constitution, to all five living former that follow. The committee reported in June that there Prime Ministers, two former Conservative leaders, was not enough urgency among the parties in the and distinguished judges, including former Presidents negotiations, who in a pragmatic way need to seek the of the Supreme Court and the former Lord Chief compromises to sort this out, protecting, first and Justice of England and Wales, to name but a few. most importantly, the Belfast/Good Friday agreement This country has different characteristics and needs and, secondly, the two mighty single markets involved— in its regions and nations. They must be reflected in all those of the EU and the UK. That report also dwelt our relationships if the union is to survive. There is no on the multilayered dispute resolution mechanisms watertight door in relationships between economics contained within the withdrawal agreement. The Bill and constitutional issues. They overflow from one into before us supplants those mechanisms without their the other.The timing of anything that the UK Parliament ever having been tried out. We have heard already of or Government do in Northern Ireland is always the Secretary of State’s clear and repeated statement especially significant to relationships. It is particularly that, in doing so, the Bill breaches international law. so at present. The revived Assembly is scarcely a year The result, as we report, strikes at the heart of the old; 2021 is the centenary of the establishment of withdrawal agreement and hence poses a threat to the Stormont and the creation of the border. Much progress maintenance of the Belfast/Good Friday agreement has been made since the 1990s in building confidence itself. It is corrosive, too, to the future relationship and peace, yet it is clear from many visits in the last discussions, as trust has become a casualty of the few years, and clear to anyone who listens, that the arrival of Part 5 of the Bill. tensions continue.Peace and reconciliation need continual We wrote to the Chancellor of the Duchy of reinforcement and continual progress. I will therefore Lancaster on 18 September, with nine questions on be seeking to work with others for amendments which the situation. To date, we have had no response to that ensure that the process of peace and reconciliation is letter and the letter is set out as Appendix 2 of our pursued and that powers exercised under this Bill, report. I very much hope that the Minister will carefully when it becomes law, involve consultation amidst the cover these nine questions in his response tomorrow. immense complexities of Northern Ireland. I hope we In the absence of convincing answers to these nine may act on a cross-party basis. questions, the committee recommends removing Part 5 Politics, if it is to draw out the best of us, must be of the Bill. more than just the exercise of binaries, of raw majority In closing, I note that the amendment proposed by power unleashed; it exists to seek truth, to bring diverse the noble and learned Lord, Lord Judge, is entirely in peoples together in healthy relationships. Our reputation keeping with our report. I therefore strongly support as a nation, our profoundly good and powerful influence it, and for once, and after advice, can follow him into and example, which I know from experience around the virtual voting Lobby when he divides the House. 1295 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1296

3.38 pm 3.43 pm Lord Howard of Lympne (Con): My Lords, it is a Lord Falconer of Thoroton (Lab): It is a real pleasure pleasure to follow the noble Earl, Lord Kinnoull, and to follow the noble Lord, Lord Howard of Lympne, I congratulate him on his committee’s report. Like the and to have heard the speech of the noble and learned noble and learned Lord, Lord Judge, with whose every Lord, Lord Judge. They were two incredibly powerful word I agree, I entirely accept that the sovereign speeches, and I agree with every single word of them— Parliament of the United Kingdom has the power to except the bit where the noble Lord, Lord Howard, legislate in breach of international law. That is not the said that he had voted for Brexit, because I did not. issue that this Bill presents. The question is not whether I very much look forward to hearing the maiden we can so legislate; the question is whether we should speeches of the noble Baroness, Lady Hayman of Ullock, so legislate. I do not often quote the President of the and the noble Lord, Lord Sarfraz, which I know will European Commission, but then the President of the be incredibly good. My noble friend Lady Hayter has European Commission does not often quote Margaret given me five minutes of her speech, and it has been agreed Thatcher. What Mrs Thatcher said was this: with usual channels that I may exceed the advisory limit “Britain does not break Treaties. It would be bad for Britain, a bit because I am speaking from the Front Bench. bad for our relations with the rest of the world and bad for any The Northern Ireland protocol ensures an open future treaty on trade”. border in Ireland to preserve the Good Friday agreement. That says it all. It does this by creating a regime, legally binding on the I was surprised, nay astonished, that my noble United Kingdom as a matter both of domestic law friend the Minister did not deal with nor even mention— and of international law, whereby goods in or entering unless my hearing has totally failed me—that Part 5 is Northern Ireland will be compliant with single market in breach of international law. The admission by the rules. On that basis, the border remains open and the Secretary of State for Northern Ireland in another integrity of the single market is protected. The protocol place that it is in breach was not, as was suggested by also provides that Northern Ireland remains within one of my noble friends in the recent debate in Grand the customs territory of the United Kingdom and there Committee, merely a “clumsy” form of words: those is unfettered access for goods between Great Britain words were read from a brief; they were prepared; they and Northern Ireland. On 8 September this Bill, including were premeditated; they were deliberate; they represented Part 5, was published, giving the United Kingdom the Government’s clear intention, and, as far as I am Government the express power to break the terms of aware, the Government have not sought to resile from the protocol. The key foundation of an open border— them. namely, the legally binding commitment freely entered into by the United Kingdom Government—was It was suggested that the dispute resolution provisions fundamentally undermined when the UK explicitly in the withdrawal agreement would be activated in stated that it no longer regarded itself as bound by all parallel with the activation of the provisions in the the protocol. Law is not a protection when those to Bill, but I draw your Lordships’ attention to Article 168 whom it applies can choose which particular laws to of the withdrawal agreement. It is short, so I shall read accept. it in full: Closing the border is ultimately the only way to “For any dispute between the Union and the United Kingdom protect the single market’s integrity if the United arising under this Agreement, the Union and the United Kingdom Kingdom will not accept its legal obligations, destroying shall only have recourse to the procedures provided for in this Agreement.” our reputation as a country that abides by the law and depriving the European Union of confidence that the The Government may have second thoughts about border can remain open. Why? The Prime Minister that article; they may regret that they have signed up says that the European Union is negotiating in bad to it, but it is too late: they did sign up to it. They are faith. He produces no evidence of bad faith. He says bound by it and they should honour it. that it is to protect the union and to ensure unfettered Together with the majority of those who voted in access for goods between Great Britain and Northern the 2016 referendum, I voted for Brexit. I do not for Ireland. The powers being taken in Part 5 give the lie one moment regret or resile from that vote; I want the to that defence. It creates a power to break the protocol United Kingdom to be an independent sovereign state. only in two specific respects,the first being the requirement However, I want it to be an independent sovereign which the UK signed up to in the protocol that exit state that holds its head up high in the world, that declarations be submitted to the UK Government for keeps its word, that upholds the rule of law and that goods leaving Northern Ireland. I am in favour of honours its treaty obligations. I want it to be an reducing unnecessary paperwork, but to suggest that a independent sovereign state that is a beacon unto the requirement for a short summary of goods leaving nations. I do not want it to be an independent sovereign Northern Ireland is breaking up the union is beyond state that chooses as one of the first assertions of that reason. Secondly, the Bill gives the Government the sovereignty to break its word, to break the law and to power to break the protocol by giving the United renege on a treaty that it signed barely a year ago. I Kingdom power to identify which state aids apply to shall vote for the amendment in the name of the noble Northern Irish-Great British trade, in breach of the and learned Lord, Lord Judge, and, if it is put to a protocol. This, I was told by Northern Ireland Office vote, that in the name of my noble friend Lord Cormack. officials, is for clarity. I asked for one actual example I shall vote against the clauses in Part 5 which are in of where there was a problem; I was not given one. breach of international law, and I urge your Lordships Those are the only areas where the Government can to do likewise. break the terms of the protocol under Part 5. 1297 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1298

There is a third issue, not covered by the Bill, Advocate-General for Scotland, the noble and learned arising out of the protocol, which is what goods are to Lord, Lord Keen of Elie. I have known the noble and be regarded as at risk of moving from Great Britain to learned Lord for over 40 years, and he is undoubtedly Northern Ireland and then on to the south. It is about one of the best advocates of our generation. When trying to avoid some people paying the tariff and then a lawyer of his calibre and experience says that he found getting a rebate because in fact the goods did not go it difficult to reconcile what he considered to be his into the single market. It is an operational issue. I am obligations as a law officer with the Prime Minister’s in favour of as few people as possible paying a tariff policy intentions with respect to this Bill, noble Lords when not due and having to get a rebate, but is it the should sit up and take note. In an age when resignation stuff of law-breaking and threatening the union? on a matter of principle seems to have gone out of fashion, Absolutely not. The power to break the protocol in surely we must commend the personal and professional respect of the “at risk” issue is not even included in integrity shown by the noble and learned Lord. Part 5. There was a reference in a government statement As someone who has seen devolution work in practice of 17 September to bringing in further law-breaking from within both the Scottish and United Kingdom measures in the Finance Bill. There will be no Finance Governments, I express real concern about the potential Bill this year, so that is no longer in play. for this Bill to do untold damage to the delicately There we have it. Our Government have signalled crafted architecture of the devolution settlements. I their willingness to break the law and walk away from seriously question whether this Bill is necessary. As the the legally binding agreement that guaranteed an open White Paper itself acknowledges, the UK internal border and peace, to reduce some red tape and resolve market is already strong, with overwhelmingly frictionless two issues that half-decent diplomats could resolve in trade. By contrast, the evidential base for needing an hour. It makes no rational sense. When they say that legislative requirements for mutual recognition or non- they are not walking away, ignore it. Which party will discrimination between the different political units of trust their counterparty who says, “I will pick the terms the UK is wholly underwhelming. of the legally binding agreement that I am bound by”? Divergences already exist. More than 30 years before I have no doubt that this comes from No. 10. It is devolution, different building standards were adopted the product of a Prime Minister clueless about detail, in Scotland, but now the White Paper flags up differential so lacking in grip that he cannot or will not see beyond building standards as a threat to the internal market. I looking tough toward the European Union, who is certainly believe that the United Kingdom Governments flailing around trying to deliver on the false promises of the 1960s had a better understanding than the he made to Northern Ireland businesses that there authors of this Bill and the White Paper that differences would be no additional checks between Northern in climate and the built environment between the Ireland and Great Britain and to the hard-line Brexiteers Home Counties and Orkney merit different standards. that he would do something about the Northern Ireland Even within the EU regulatory framework, devolution protocol. He is a Prime Minister with advisers out of has led to some divergences to reflect local needs and control, looking for political stunts to reinforce the political priorities.That surely is the essence of devolution. insurgent nature of Brexit, happy to sacrifice the rule Indeed, the United Kingdom Government supported of law in the hope of a good culture wars row with the Scottish Government in the European Court of remainers and some screeching headlines, and oblivious Justice when the Scottish Government sought to bring to the consequences to the standing of the UK, its in minimum unit alcohol pricing in Scotland. But this long-term relationship with the EU countries and the Bill does not replicate the limited grounds set out as security and safety of those who live in Ireland. The legitimate aims, which are provided for under Article 36 defenders of the rule of law in Government have been of the TFEU, where a legislature seeks to diverge from forced out, or are too desperate to hold on to the internal market principles. Nor, indeed, is there any offices into which they have been over-promoted to reference in this Bill to the principles of subsidiarity speak out as they should. and proportionality, which also underpin the current I congratulate Keith Stewart QC on his appointment EU framework. As a result, the scope of devolution is as Advocate-General, and on the peerage which restricted, unprecedentedly without the consent of the accompanied it. His predecessor, the noble and learned devolved legislatures. In replying, can the Minister Lord, Lord Keen, resigned on the basis that he could explain why these differences are allowed to arise? not square his obligation to protect the rule of law One further compelling reason to put this Bill aside, with the policy of this Bill. The Bill has got no better as referred to by the noble Baroness, Lady Hayter, is since his resignation. This is not about Brexit—that its curious silence in its provisions on common frameworks, must happen; it is about destroying one of the foundational heralded as a way forward three years ago. In spite of values of our country.Without a Government committed difficulties, efforts to achieve common frameworks have to obeying the law, everything is at risk. The law is the enjoyed buy-in from all the devolved administrations. ultimate protector. We will invite this House, at the On 15 September in another place,Cabinet Office Minister appropriate time, to remove Part 5 of the Bill neck and Chloe Smith said that the five frameworks would be crop. I hope thereafter that this House will do everything delivered by the end of this year. In seeking to commend it legitimately can to ensure that it does not return. to the House the whole of the 17th report of the Constitution Committee, on which I had the privilege 3.51 pm of serving, I particularly refer to our comments on Lord Wallace of Tankerness (LD) [V]: My Lords, I common frameworks,and our conclusion at paragraph 57: follow on from the noble and learned Lord, Lord Falconer “Weconsider that adhering to the principles agreed for formulating of Thoroton, by paying tribute to my successor as common frameworks would improve the likelihood of reaching 1299 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1300

[LORD WALLACE OF TANKERNESS] should stay in the customs union and single market, agreement on how to progress the Bill. We are not convinced that and Great Britain should leave, which means that we opportunities for managing the UK internal market through the have a customs frontier down the Irish Sea. common frameworks process have been exhausted. This contributes to our doubts about the necessity for the Bill.” This was not a sudden or ill-considered thought; it I do not underestimate the challenges, but surely if was argued about vigorously. The Democratic Unionist there is a way forward which promotes and facilitates Party, otherwise firm Brexiteers, opposed the whole co-operation over the conflict and mistrust which this agreement on that basis but the fact remains that we Bill has come to symbolise, it is in the best interests of have committed ourselves to having a frontier. The all parts of our United Kingdom that we vigorously proper thing to do now is not to go back on our word pursue it. with no solution—it is quite unclear what the Government really propose by way of essential customs controls that are still compatible with the agreement—but to 3.56 pm minimise the necessary delays, as I hope we are doing Lord Clarke of Nottingham (Con): My Lords, I find in the negotiations with the EU. If we insist on changing it difficult to express how strongly I am amazed and standards, we should have equivalence of standards deeply dismayed that any British Government of any and arbitration procedures to settle disputes, and we complexion should produce before Parliament a Bill should make sure that there are as few disruptions to which contains the provisions of Part 5 of this Bill. I trade, delays to the border and costs as possible. As I never expected in my parliamentary career, which has said, it is not quite clear what would happen if you just not been a short one, to find myself reading a Bill of left a hole in the controls between Ireland and GB. this kind presented for parliamentary approval. It has already been said, and will be said many times in this Baroness Scott of Bybrook (Con): My noble friend debate, that it appears to give the Government unfettered has reached his time limit. power to break, in any way they find necessary,particular provisions of a treaty upon which the ink is barely dry. Lord Clarke of Nottingham (Con): I realise that I I will not attempt—I do not have the time—to compete have only four minutes to talk on this matter. That is with the undoubted eloquence of the noble and learned one of the bizarre arrangements in this Chamber that Lord, Lord Judge, and my noble friend Lord Howard, I am getting used to. No other parliament in the world who have expressed the shock which everybody who would think that people could do justice to the contents has any regard for the rule of law in this country of this Bill with people having four minutes to speak undoubtedly feels. in the way that we are doing. However, I have added I move on to my more familiar field, though I am a my voice and will oppose Part 5, in particular, in every long practiced and experienced lawyer, and shall talk way in which my membership of this House permits. about the politics which underlines this, which I also find quite bizarre and completely inept. The origins of 4.01 pm the need for this Bill are quite extraordinary. It all arises from the decision taken shortly after the referendum Lord Pannick (CB) [V]: My Lords, what an that Brexit would involve leaving the single market and extraordinary series of speeches so far. The Minister’s the customs union. I strongly disagreed with that, speech was itself extraordinary because he ignored the and think that we could have left the European Union and elephant in the Chamber—that is, the elephant which remained. I actually moved a Motion in the House of is trampling through Part 5 on the rule of law. Commons and got within six votes of a majority for The noble and learned lord, Lord Judge, in his staying in the customs union, which, unfortunately, is powerful speech, referred to the report of your Lordships’ nearer than the then Prime Minister, Theresa May, got Constitution Committee. I am a member of that to achieving anything. But that is not the issue today. I committee. We unanimously concluded that for this accept that we are committed to leaving the single Bill to set out to break international law is without market and the customs union, and I accept the judgment precedent. We described Part 5 as “constitutionally of Parliament and the population, but it does give rise dangerous” . We said that the Bill is to all the problems that the Government do not know “fundamentally at odds with the rule of law.” how to solve. Wereached those conclusions not just because Ministers Once you leave the customs union and the single want to give themselves this unprecedented power to market, you need a customs frontier between your own breach international law—as the noble Lord, internal market and the rest. That is wholly in accordance Lord Howard, said in his eloquent remarks, this country with all the ordinary practices of international trade is looked at by other nations as a beacon of legality in modern times, WTO rules and all. Everybody knows and it is therefore extraordinary that Ministers should that at Dover this could create a very considerable want such a power—but because Ministers are seeking problem, and we are preparing to recruit the people, to immunise the regulations that they make from get the lorry parks, handle the traffic, and get people challenge in the courts on any ground “whatsoever”, to prepare for the paperwork that is involved. The problem the word used in Clause 47(8). of course arose in Ireland, which no one seemed to The Constitution Committee is not a group of “lefty have thought about very clearly, until they realised lawyers”—the Prime Minister’s term of abuse in his that to do the same in Ireland would totally undermine recent speech to the Conservative Party conference. that extremely important agreement for the security of Nobody, I think, has ever described my esteemed the United Kingdom and the Republic, the Anglo-Irish colleague, the noble Baroness, Lady Fookes, in that way. agreement. The solution was determined that Ulster There are some lawyers on the Constitution Committee, 1301 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1302 but most of the members are politicians and political commitment would not be prevented from having a observers from across the House with decades of Second Reading or getting on to the statute book. As I political experience. The Government should be ashamed said earlier, this was part of a manifesto commitment, to be responsible for producing and pursuing a Bill so we would be upholding and not contradicting that that attracts such condemnation from such a committee convention. of your Lordships’ House. As we sit in this Chamber, we look up and see the Like those unfortunate people who do not feel pain, barons of Runnymede—of Magna Carta, from which and who are therefore at grave risk of injuring themselves the rule of law developed over 800 years ago. We in and those around them, this Government do not feel this House have a great duty to ensure that the rule of shame. It is therefore the responsibility of this House law is maintained. As my noble and learned friend to shout out a warning to the Government that Part 5 Lord Judge spoke—he made a marvellous speech—I of the Bill will, if enacted, endanger the rule of law. I thought of Tom Bingham, whom I was privileged to am grateful to the noble and learned Lord, Lord Judge, count as a friend. He wrote the most wonderful little because his amendment gives us the means by which book called The Rule of Law. Every one of your that warning can, tomorrow, be communicated loudly Lordships should buy some copies and distribute them and clearly. at Christmas time, particularly to Members of the other place. 4.05 pm The Bingham Centre for the Rule of Law has Lord Cormack (Con): My Lords, I cannot forbear produced a paper, which I think we have all received. from saying to my noble friend the Whip on the Front It is very well worded and forcefully argued. We cannot Bench that time limits at Second Readings are advisory. allow those chilling words uttered in the other place a I was sorry that she felt it necessary to interrupt my few weeks ago—“specific and limited” breaking of the noble and learned friend Lord Clarke of Nottingham. law—to be the final say. How can we lecture China, or This is a particularly sad day for me because, like exhort our fellow citizens to obey the draconian laws my noble and learned friend Lord Clarke of we are currently thrusting upon them if we take this Nottingham—we entered Parliament on the same day, line? We must not and I hope that we will not. although he has had a much more illustrious career than me—I never thought that I would see the day 4.11 pm when any British Government produced legislation Baroness Hayman of Ullock (Lab) (Maiden Speech): that would take out a significant part of a treaty that My Lords, it is a great pleasure and honour to make was entered into by this Government following a my maiden speech today, and to follow the noble manifesto commitment and commended to, and endorsed Lord, Lord Cormack. I first thank the staff for their by, both Houses of Parliament less than a year ago. support and hard work. Black Rod and her team, the For anyone who aspires to be a parliamentarian, this Clerk of the Parliaments, the doorkeepers, attendants is shameful; there is no other word for it. I am deeply and police officers have been helpful, patient and truly ashamed that a Conservative Government should have welcoming. I am also indebted to my supporters—my embarked on this course. I like to think that it is the noble friends Lady Jones of Whitchurch and Lady Smith result of Barnard Castle but, at the end of the day, the of Basildon—for introducing me to the House, and to buck stops where the buck stops and it is the Government my mentor, my noble friend Lady Lister, for her advice who have done this. and guidance. I have an amendment expressing regret on the I was delighted to be able to take the geographic Order Paper. It is similar in intent to, although differently title of Baroness Hayman of Ullock, a village in west phrased from, that of my noble and learned friend—I Cumbria, where I live on a smallholding beside the River call him that deliberately—Lord Judge. I do not intend Marron, with my husband and a collection of animals. to exhaust your Lordships electronically tomorrow. It is a beautiful place, nestled between the majestic As long as he presses his amendment—I cannot think fells of the Lake District National Park and the mountains that he would ever change his mind on a subject like of Scotland across the Solway Firth. I am passionate this—I will certainly not move mine. However, I tabled about nature, and we manage the land to enhance the my amendment because I was so saddened and disturbed. environment and to encourage biodiversity. So I was My feelings have been entirely reinforced by the three very proud when I was elected to the other place as reports that have been referred to in your Lordships’ Member of Parliament for Workington—Cumbria’s House this afternoon: that of the committee chaired first woman MP—and then given the responsibility of by the noble Earl, Lord Kinnoull, and those of our Shadow Secretary of State for Environment, Food and Constitution Committee and the Regulatory Reform Rural Affairs, a role I carried out for nearly three years. Committee. I have never seen three reports so uniformly To be able to develop policy not just on environment, damning as those. We in this House have a duty to food, farming and rural issues but on another of my ensure that the Bill does not go on the statute book in passions, animal welfare, was a huge privilege—and it anything like the form it is in at the moment. really is a privilege to have joined your Lordships’House. Part 5 has to be removed. Some people might talk I am aware of the many differences between here about the Salisbury/Addison convention, but we would and the other place, so I ask noble Lords to please be be upholding it by taking that course of action. That patient with me if I fall into old habits. I am looking convention came about when the Labour Party had a forward to getting stuck in, and also to getting back to tiny number of people in your Lordships’ House and singing with the Parliament choir. It was a great the Conservatives had an overwhelming majority, but honour to be chair of the choir until last year and I it was agreed that any legislation based on a manifesto made many friends, a number of whom sit in this House. 1303 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1304

[BARONESS HAYMAN OF ULLOCK] deeply about the issues. In a Labour Party that was Having listened to the speeches today, it is clear that going through a very difficult patch—to put it mildly—she there is a huge amount of knowledge and expertise in was a voice of quiet calm and reason. It is great—my your Lordships’ House—although, as a long-standing wife, for one, will be pleased—that she is going to take Leicester City supporter, I was somewhat taken aback up again her involvement in the parliamentary choir. by the earlier suggestion from the noble and learned Lord, In last December’s general election, so-called Lord Judge. But I am pleased to be able to participate. Workington Man assumed a mythological status as I have already talked of my passion for the driving a huge breach in what used to be Labour’s environment, but I am also half-Welsh. My mother’s “Red Wall”. I see my noble friend Lady Hayman as a family farmed in the south Wales valleys. The Minister fine and, I believe, more lasting example of Workington will need to address the concerns that the Bill risks Woman, with an instinctive feel for progressive values, destabilising devolution arrangements and hampering a deep concern for the underdog, and a practical environmental legislation. I have no problem with the passion to secure reform and change. What is more, objective of ensuring that the UK internal market can she is a very decent human being, so I congratulate work smoothly after the Brexit transition, but it must and welcome her. protect high environmental standards and encourage improvement, and these matters generally fall under I will speed up, I hope, on today’s issue. We are not devolved responsibility. supposed to be talking about Brexit. People say Brexit is all over. Well, it is, sort of—and of course I accept The Government have said that our existing high the result of where we are. But it is because of the standards for the environment Brexit we have chosen, as the noble Lord, Lord Clarke “will underpin the functioning of the internal market”. of Nottingham, pointed out, that the Government However, the Bill does not give legislative effect to this have got themselves into this very considerable difficulty. commitment; on the contrary, in its current form it Although you can say that the debate about Brexit is could make it harder for the devolved nations to over, the consequences of Brexit—not just the economic achieve their ambitions. So it is vital that our devolved consequences, which I think are going to be bad; Administrations can introduce and implement their worse than Covid, according to most independent own environmental laws. I ask the Minister to clarify assessments—are going to affect our politics and dominate how the Government intend to ensure that current it, perhaps for years to come. environmental standards are not weakened, and that the Bill will not prevent or deter any part of the UK This Bill is a dramatic blow to Britain’s standing in from introducing or implementing measures that are the world. The very act of tabling it has done incalculable designed to protect and enhance the environment and damage to our international reputation, and, as the mitigate climate change. noble and learned Lord, Lord Judge, said, we are now dependent on our soft power for influence. Why has it Climate change has not stopped because of the global been done? The proposal for a revised Northern Ireland pandemic, yet it seems to have become the forgotten protocol was put to Brussels by Boris Johnson himself crisis. We should be increasing our ambitions in the after his walk in the park on Merseyside with Leo fight against climate change, and for every new piece Varadkar last autumn. It was the key to having a of legislation we should consider the potential negative different withdrawal agreement that he could then get impact on the environment. I hope the Minister can through Parliament. Are we to assume that he never reassure me that this will be the case with the Bill we read the provisions of the protocol that he signed or are debating today, and that our environment will that Michael Gove did not read them on his behalf? continue to be both protected and enhanced. I have chosen to make my maiden speech today I believe that, by the time we get to Report, these because this issue is of such fundamental importance provisions may have been dropped. That is what I very to our future, and I look forward to fully engaging much hope. I think the Government will use the excuse with the work of your Lordships’ House. of a skinny trade deal to drop them. However, my fear is that this will not resolve the problem. Trade across the Irish Sea will muddle on for now, but that is only 4.16 pm because our rules and standards are presently fully Lord Liddle (Lab): My Lords, it is an inestimable convergent with the EU’s. However,for this Government, pleasure to congratulate my noble friend Lady Hayman the whole point of Brexit is to diverge from EU rules. on her maiden speech. We go back a bit of a way. We That will cause great difficulty as time goes on and it were both freshers—if that is the right term—in the has dangerous potential to undermine the Good Friday Cumbria Labour group when it was first elected in agreement. May 2013. That is a forum of plain-speaking common As my noble friend has said, this puts into question sense which I would recommend to some of our national the future of the United Kingdom. Furthermore, if I politicians. Together, as we are now in this place, were a Scottish MSP, I would vote to refuse legislative I hope that we will speak up for the north and for Cumbria consent to this measure on the grounds that they and its very special concerns—alongside, of course, override the devolution settlement. What we are looking many other Peers in this place, including my noble at today is a profoundly dangerous Bill, and this friend Lady Hayman’s predecessor-but-one as MP for House has constitutional responsibilities to reject the Workington, my noble friend Lord Campbell-Savours. parts of the measure that contradict the manifesto on My noble friend Lady Hayman—Sue—made a which the Government were elected and that breach distinctive mark in the Commons. She led the Opposition international law. I hope the Lords will neuter it and on environmental and rural affairs, and she thought then stand their ground. 1305 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1306

4.23 pm I am ashamed that the Government are even considering empowering Ministers to derogate from the Lord Carlile of Berriew (CB): My Lords, I, too, obligations of the United Kingdom under international congratulate the noble Baroness,Lady Hayman of Ullock, law. I am dread-dazed that breaching international on her excellent maiden speech. As a former Welsh rural law is being contemplated in a way that could undermine Member of another place, I welcome her commitment the extraordinary achievements of courageous people to the integrity of rural life and rural communities, on all sides in Northern Ireland. I am also appalled by and I look forward to her many further contributions the suggestion that we should be in breach of Article 26 to your Lordships’ House. She should not be unduly of the Vienna convention, and I hope that the Government sensitive about the habits of this place. We all get used will listen to these debates, particularly today’s debate to being shouted at when we break order by standing on my noble and learned friend’s amendment to the up at the wrong moment or in the wrong gangway, but Motion, and change their mind. it is never really meant; it is just one of those things. I suggest that the very fact that so many speakers 4.27 pm are expressing their concern about Part 5 of the Bill, combined with their range of expertise and experience, Lord Lilley (Con): My Lords, I congratulate the should give Ministers serious pause for thought before noble Baroness on her excellent maiden speech and this bent-barrelled blunderbuss is fired into the rule of look forward to hearing both her spoken and her musical law. This is legislation by offensive weapon rather than words in future. As a non-lawyer, I enter this arena like logic. a Christian facing a pride of angry legal lions. This is made worse by the fact that they have already captured Like many others, I support the amendment to the my own archbishop. I am armed only with a simple Motion in the name of my noble and learned friend question: what should a state do if it finds that its Lord Judge and moved by him with such clarity. As a obligations under one treaty conflict with those under former Lord Chief Justice, he speaks with authority, another treaty or its own constitutional law? The only the contradiction of which—on this issue, at least—would reply I have received so far is: “You shouldn’t have amount to brazen and wilful ignorance, in my view. signed the withdrawal treaty”. For those who are interested in his support for Leicester That might work in a student debate, but it fails to City, I remind others who are listening that, at the address my question, so let me answer it myself, not in moment, Leicester City are winning 14:1, as it were. my own words but in those of the European Court of This is a fairly rare experience, and I suspect that it will Justice. In the Kadi case, the court affirmed that, be a much larger lead by the end of this debate, which although the EU seeks to comply with its international is something that Ministers should not overlook. legal obligations, I urge your Lordships and others outside to beware “it would be wrong to conclude that, once the Community is of thinking that this debate is a lawyers’ wordfest. This bound by a rule of international law, the Community Courts is not an issue on which any special knowledge of the must bow to that rule with complete acquiescence and apply it law is required at all. Surely,it is a matter of constitutional unconditionally”. instinct, international expectation and mutual respect Likewise, the German constitutional court has ruled between the United Kingdom and the rest of the that if treaties, even EU treaties, conflict with German world. I remind your Lordships that this Government constitutional law, the latter prevails. Of course, British are the first to resort to the rule of law when it suits Governments have disapplied aspects of international them. If you look at the way they have made their law, the most famous example being the United Nations submissions in cases concerning foreign terrorism fighters Convention on the Law of the Sea, 15 days after it came seeking to return to the United Kingdom, however into effect, when the future Lord Diplock ruled that unruly in law those applicants’ other countries of “the Crown has a sovereign right, which the court cannot question”, potential citizenship are, they are the first to say, “We to do so. Moreover, in Section 38 of the withdrawal rely on the rule of law. We may not like those countries, Act, Parliament explicitly foresaw that it might need but they’re entitled to go back there, so there they shall to set aside the direct application of the withdrawal go”. So there is a degree of hypocrisy, on the evidence, treaty, as this Bill permits. in what is happening today. However, no one ever suggested when they disapplied My parents escaped from the basest of persecutions. parts of the conflicting laws that the European Court After my father, who was a deep-rooted Anglophile, of Justice, the German court or previous UK got over my decision not to follow him into the medical Governments had broken the law—until Brandon Lewis profession—a decision about which he expressed deep uttered those fatal words. These have been seized on as disappointment, although it was probably to the benefit a weapon by some, and proved a stumbling block for of my potential patients—taught me politics and history some of my closest friends, but I believe they should in an international context. He told me of his pride in be disavowed. This raises the question: are there potential living in a legal system that would make my qualifications conflicts between obligations under the withdrawal respected throughout the world. I and many others in treaty and our fundamental constitutional laws? There our current professional lives deal with businesspeople are certainly many internal contradictions within the in many countries. One of the beacons that attracts withdrawal Act, but we ratified it because it contains a them to making contracts with UK-based entities is mechanism—the joint committee—in which both sides their belief that, once a contract and agreement are are committed to resolve outstanding issues in good reached, nothing will be changed in this country arbitrarily, faith and respecting each other’s legal order. So, given gratuitously or for oblique motives. Some of those good faith and mutual respect, there should be no dealings are with the British Government. conflict with our legal order, the pillar of which is the 1307 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1308

[LORD LILLEY] The committee took a great deal of evidence on the Act of Union between Great Britain and Ireland, which rule of law and has said very clearly that it applies to pledges that “all prohibitions and bounties”—that is, everyone, from government Ministers to the person in tariffs— the street. Weare all bound by and entitled to the benefit “on the export of articles … of either country to the other shall cease.” of the law; indeed, it is an essential characteristic of a This is buttressed by the Belfast agreement, which democratic society and a fundamental principle of promises no change in that union without the consent our constitution. The rule of lawalso includes compliance of both communities. with international law—yet this Bill provides the However, the EU has been showing little evidence Government with extraordinary delegated powers, which of good faith, insisting on applying the entire EU the Government themselves acknowledge are for the customs code, which would mean that no goods could purpose of breaking international law. We believe that move from Northern Ireland to Great Britain without taking powers in this way to explicitly break international an EU export declaration—something my noble and law is without precedent, and that for the Government learned friend Lord Clarke used to say was one of the to put such powers beyond the reach of judicial oversight disadvantages we would face in all our trade once we is a step fundamentally at odds with the rule of law. left the customs union. That is contrary to both the Act For these reasons, I will support the amendment in the of Union and Article 6 of the protocol, which says: name of the noble and learned Lord, Lord Judge. “Nothing in this protocol shall prevent the United Kingdom from There are other concerns; that is obvious. There are ensuring unfettered market access for goods moving from Northern implications for the Ministerial Code, on which we raise Ireland to other parts of the United Kingdom’s internal market.” the question of the need for clarification of Ministers’ In the other direction, the withdrawal treaty commits duties to comply with the rule of law; there is also the both sides to agree before the end of the transition question of the scope of delegated powers, as addressed period the definition of goods which are at risk of by the DPRRC; and, of course, the European Union crossing into the Republic. The EU has implied that, if Committee has outlined issues in relation to the it declines to agree, the UK will have to levy EU tariffs Northern Ireland protocol, about which the noble Earl, on all goods going from Great Britain to Northern Lord Kinnoull, and my noble and learned friend Ireland. Both these results would conflict with the Act Lord Falconer have spoken. A cynic might say that the of Union and the Belfast agreement. Happily, because rumpus around this Bill aids the Government by drawing of this Bill, the EU seems to be pulling back from both attention away from the basic ambiguity in their original these positions. I hope that good faith will prevail and approach. we will not need to implement the clauses in this Bill, Finally, I reiterate my view about the lack of necessity but it would be irresponsible to leave this country for this Bill. There is general agreement that we need a unprepared by rejecting them. thriving internal market. No one has argued against it and existing arrangements can deliver this. On EU 4.32 pm relations, I do not know whether the Bill is part of the Baroness Taylor of Bolton (Lab) [V]: My Lords, I Government’s brinksmanship but, even if that were its welcome my noble friend Lady Hayman and congratulate purpose, it would be no justification for legislation to her on her speech. I am absolutely sure that she will break the rule of law. I do know that this legislation is make many positive contributions to the work of this damaging to the UK’s international position, and that House, and it is good to see her here today. this can be in no one’s interests at all. I regret that the Government have introduced the Bill. I ask them to There is no way that I can do justice within four rethink their approach and, particularly, to accept minutes to the report of the Constitution Committee, amendments to Part 5. which I have the privilege of chairing; I will restrict myself to remarking on some major points. When we first heard about this Bill, we were sceptical about the 4.37 pm need for legislation, and particularly concerned about Lord Bruce of Bennachie (LD) [V]: My Lords, I join the impact on relations with the devolved institutions. in congratulating the noble Baroness, Lady Hayman I will come later to the rule of law issue, which is now of Ullock, on her maiden speech. Like others, I look receiving greater attention, but I emphasise the impact forward to hearing her contributions, whether about in terms of the unity of the United Kingdom. The Bill Cumbria or the environment, which I think the House remains a major concern in respect of this. will anticipate. The committee believes that there is no reason why I deplore that a government Bill should contain the principles for the successful operation of the UK Clause 45(2)(a), which trashes the UK’s reputation for internal market cannot be arrived at consensually.There upholding its treaties and honouring its obligations is, after all, broad agreement on the need to avoid erecting and seriously undermines our ability to negotiate effective new barriers to trade. There are existing mechanisms to agreements. I believe it reveals that the Government are achieve this, including, of course, the common framework under the stranglehold of anarchists and disrupters. arrangements, which we are sometimes told are working Indeed, I have no doubt that it suits the dark forces in well; the Government have never explained why these the Government that this part of the Bill has diverted mechanisms are inadequate. Moreover, the devolved attention from the other deeply damaging proposals Administrations are required by law to adhere to that cut across the devolution settlements, to which I international obligations such as trade treaties. If the now turn. Government are committed to the union, an internal I was closely involved with the Scottish Constitutional market is needed that all parts of the union have Convention, which laid the basis of the Scotland Act bought into. and the subsequent further extension of powers. I am 1309 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1310 a passionate home ruler but deeply inimical to the Centre on Constitutional Change. When five archbishops break-up of the UK, which I believe will cause are motivated to put their anxieties into print, it is fundamental and lasting economic—and, indeed, time for the Government to recognise that this hastily emotional—division and hardship. In typically British concocted and ill thought-out Bill is not fit for purpose, fashion, devolution has evolved differently in each whatever the purpose is meant to be. devolved Administration and is not written into a basic law, but it has become accepted and it works. 4.41 pm One of the reasons for this has been the overarching umbrella of the European Union, now being removed. Baroness Noakes (Con): My Lords, I support the Bill because it is an essential element of our preparations Awareness of the implications of this was raised by to be an independent nation again. Before we joined the Joint Ministerial Committee on EU Negotiations the EU we did not need special internal market in October 2017, with a joint communique setting out arrangements for trade in goods and services within principles behind the common frameworks to which the UK, but devolution has changed that. We need the many noble Lords referred. As a member of the newly Bill to ensure that the different parts of the UK can established Common Frameworks Scrutiny Committee continue to trade with each other as at present without of this House, I am now aware that this work has incurring costs or negotiating regulatory hurdles. been progressing slowly but constructively. A dispute The beating heart of the Bill is about protecting the mechanism is envisaged but has not yet been required, devolved nations. The Government’s UK Internal Market and it is the view of the devolved Administrations that White Paper of last summer showed that Scotland, this process is both fit for purpose and practical. Northern Ireland and Wales export more to other parts of the United Kingdom than to outside the UK. As the Constitution Committee stated, it appears There are similar patterns for imports. Keeping the that this Bill is anticipating problems that may never ability to trade within the UK on a barrier-free basis arise but seeking powers that prejudice the effective should be at the core of the belief set of each of the and consensual working of devolution. By contrast, devolved nations. I have been surprised that they have the devolved Administrations can identify how the not grasped this basic economic fact but have instead powers in the Bill would allow the UK Government to been focused on working up grievances about the Bill. block or disrupt the working of devolution. This The economic imperative is not the same for England, could affect building regulations, where, as has been which trades goods and services outside the UK more pointed out, in Scotland we want higher insulation extensively,but nevertheless, intra-UK trade is important standards or we might want lower carbon specs. It for England too. could affect single-use plastics, where Wales and Scotland want tighter restrictions than England. The The Bill is also strongly pro-business. The plain fact mutual recognition and non-discrimination rules could is that most businesses in the UK do not export goods nullify such divergence, which is why the devolved or services outside the UK. Roughly 90% of SMEs Administrations argue that it could be an England-led trade only within the UK. Keeping that intra-UK race to the bottom. trade going without friction is of massive importance for the health of the UK economy and for the devolved Clauses 46 and 47 give the UK Government powers nations. to initiate spending in devolved Administration areas Other sensible provisions in the Bill include ensuring without requiring the engagement or consent of the that any subsidy control regime is UK-wide in order to respective Governments. The motivation behind this avoid distortions in intra-UK trade. We simply cannot seems blatantly disruptive. No doubt the people of have an efficient and fair UK internal market unless Scotland, Wales and Northern Ireland may welcome subsidy control is exercised on behalf of the whole of extra cash from the Treasury over and above their own the UK. I also welcome the new role for the Competition sources of revenue—city deals are an example of and Markets Authority. that—but for such a measure to be pursued without I know that most of today’s debate will be taken up the participation or consent of the parliaments or with the provisions of Part 5 of the Bill and the power Governments is the total negation of devolution. What that it creates to modify the European Union (Withdrawal) is more, to be pursuing this only months before crucial Act. The Government have been clear that they would elections in Scotland and Wales is a monumental use such a power only if it really were necessary to misjudgment by a Government who care nothing for protect the position of Northern Ireland within the devolution and talk unionism while trampling all over UK, that they would use it only as a last resort having the settlements that are essential to holding it together. exhausted all other routes, and, of course, that they The Bill is not just unnecessary; it is downright would not put the issue of peace in the island of provocative. It shows utter contempt for the hard-won Ireland at risk. I am also clear that the other place measures that are essential to holding the United would not let the Government do otherwise. Kingdom together. Ideally the Bill will not proceed. If I hope that it is not necessary to breach international it does, it must be with the removal of lawbreaking law, but we should remember that such breaches are and with the requirement of consent from the devolved not without precedent. Sometimes countries, and different Administrations, which currently seems unlikely to be Governments in our own country, have concluded forthcoming or even sought. What is missing from the that, faced with competing evils, the least harm is done Government’s approach is any concern, consideration by taking that decision. I hope noble Lords who have or comprehension of the delicate balance of devolution. concerns about this part of the Bill will see that it has This is well summarised in the report published by the the best interests of the UK at its heart. 1311 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1312

[BARONESS NOAKES] Those are the reasons why I believe the principled Lastly, I regret the highly political intervention course of action is to remove those parts that I have today by the most reverend Primate the Archbishop referred to from the Bill. There is just one word that I of Canterbury and his fellow Anglican primates. can find to describe them: an aberration. That is why I Disestablishment is starting to look rather attractive. shall vote with the Motion in the name of my noble and learned friend Lord Judge. 4.46 pm Lord Hannay of Chiswick (CB) [V]: My Lords, I 4.50 pm regret that our virtual proceedings mean that one can no longer welcome maiden speeches across the Chamber The Lord Bishop of Leeds [V]: My Lords, I add my but has to do so remotely. I do that now, both to the congratulations to the noble Baroness, Lady Hayman one already made and to those that are coming. of Ullock, and look forward to her future contributions to this House. I fully endorse the arguments set out by I make no apologies for concentrating my remarks the noble and learned Lord, Lord Judge. I concur with in this Second Reading exclusively on Part 5 of the Bill the concerns set out in the report cited by other and its Clauses 44, 45 and 47. Other parts of the Bill noble Lords earlier. I even welcome the commitments certainly require the customary careful scrutiny, and articulated by the Minister, but I question how they very possibly the amendment, that we normally give to can be trusted, given the underlying ethic of the Bill—and legislation, but this section is unprecedented—indeed, it is absolutely right for archbishops to ask questions unique—and requires more drastic treatment. Why of such matters. so? Because never before in Britain’s modern history have a Government brought forward a Bill giving Relations with potential partners usually depend them the authority to unilaterally break international on integrity. Trade, security, migration and so on all law and override our treaty obligations—in this case, rest on fundamental trust. Trust cannot be one-sided, obligations entered into less than a year ago and or it is not trust at all. Respecting one’s interlocutors is legitimised by legislation passed by this Parliament essential. This is inevitably evidenced in language. The following last December’s election. There is no doubt Bill before us assumes that our interlocutors cannot be about that, because the Secretary of State for Northern trusted and will behave in bad faith, and that we need Ireland stood at the Dispatch Box in the other place to be protected from them. If they do not give us what and told us quite explicitly that it was so. we demand, we are free to do our own thing, including breaking the law and reneging on agreements made Does that have implications going far beyond the less than a year ago that were said at the time to be subject matter covered by this Bill? Indeed it does. “oven ready”—a good arrangement that required “no This country has prided itself that its word was its more negotiations”. What the Bill does not ask is why deed. In the 20th century, we twice went to war—to our word should be trusted by others. world war—in 1914 and 1939, to uphold our treaty obligations, but apparently our word will no longer be Integrity and morality matter at the level of our deed if these provisions become law. Moreover, it international relations and agreements—unless, of course, is the Government’s view—which I happen to share— we are now agreeing to reduce all our relations and frequently put forward at our own Dispatch Box, that transactions to some sort of utilitarian pragmatism. it is in Britain’snational interest to sustain and strengthen Morality also applies to how we remember history the rules-based international order. That order is and establish what will shape the national mythologies currently under severe strain. How much credibility that future generations will inherit. What story will be will our advocacy of that order have if we start picking celebrated or commemorated next year, the centenary and choosing which bits of it we intend to apply and of partition on the island of Ireland: one that chose to which ones we intend to ride roughshod over? Very end violence and respect difference, including different little, I suggest. I can just visualise the justifications perspectives on identity, justice and unity, or one of a that the representatives of Presidents Putin and Xi will conscious abrogation of agreements built from bloodshed put forward next time they wish to break international and courageous willingness to stem the wounds of law and their international obligations; they will grievance? Ireland, both the Province and the Republic, be identical to the arguments being used by the needs some certainty and shape in the future narrative, Government to defend the measures brought forward but what sort of certainty is built on a broken word, to us today. the negation of trust or the arrogance of exceptionalism? I insist that this is not a matter of which side of the Irish church leaders are surely right to be concerned Brexit argument you are on. That matter was settled about what the Bill implies for relations between the last January when this House endorsed the deal that devolved institutions and with the UK Government. the Prime Minister struck with the EU—the very same These leaders are not talking into fresh air; they deal that we are now being invited to override—and it straddle the border in Ireland and their deep concerns was settled when we left the EU at the end of January. about a breach of the Good Friday agreement need to That is demonstrated by the fact that critics of these be listened to, not simply dismissed with a wave of measures are drawn from both sides of that Brexit boosterish optimism from Westminster. argument. What really is relevant is the risk to the Others will speak about the implications of closing Northern Ireland peace process if the Government an illegal route to challenge the Government’s persist in the course that they have set out on. The implementation of the protocol, but let us be clear: Government’s protests to the contrary ring quite hollow parliamentary sovereignty does not translate easily to me. The balance of analyses points to a real, into executive sovereignty.A decision to prefer short-term genuine, serious risk to that process. pragmatism over long-term ethics will lead to a future 1313 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1314 in which a question mark will hang over any statement 4.58 pm by those whose word and adherence to the rule of law Lord Whitty (Lab) [V]: My Lords, most contributions cannot be trusted. More is at stake here than economics. so far have related to Part 5 and the Government’s somewhat ham-fisted attempt to unilaterally disavow 4.54 pm an undertaking made only a few months ago. I agree Lord Hunt of Wirral (Con): My Lords, I drawattention with those sentiments. and with the reports of the to my outside interests as set out in the register. In this Constitution Committee and the EU Select Committee important debate, it is vital that we do not lose sight of and the contributions by their chairs, the noble Baroness, the bigger picture in two important respects. First, our Lady Taylor, and the noble Earl, Lord Kinnoull. I will society and our economy have been and continue to be also support the Motion in the name of the noble and battered this year by the effects of the global pandemic. learned Lord, Lord Judge, at the end of the debate. All the Government’s deeply held fiscal aspirations have However, this is quite a big Bill, and I want to talk necessarily and rightly been jettisoned, as the Chancellor about something else. Before doing so, I welcome my has done everything in his power to protect jobs, economic noble friend Lady Hayman to the Chamber. I commend activity and the National Health Service. Our society her speech, including the importance that she stressed and our economy are one and the same thing. of environmental standards, which relate to this Bill as In 2016, the British people voted to leave the European much as they do to much of the legislation we will face Union and last December the Government won a over the coming months. clear mandate to see that policy through. In so doing, I want to talk about state aid, which is in the Bill they are inevitably involved in complex negotiations, but is dealt with rather superficially. It needs to be both with the European Union and, in practice, with clearer before the Bill finishes its passage through this individual member states, each with their own particular House. In a sense, the noble Baroness, Lady Noakes, interests. Defending our economic interests is, and referred to this in her contribution. She and I were must always be, the paramount concern for Ministers, members of an EU Select Committee that produced a and that priority has never been more important. report on state aid about two years ago. Werarely agreed A satisfactory trade deal with the EU was never on anything fully, but we do agree on the importance going to be easy to achieve, with so many competing of this issue. interests at play. Of course, there must be give and take on all sides. I have stated on many occasions that At its most acute, the issue of state aid could be I believe a constructive and comprehensive post-Brexit epitomised by the issue in Northern Ireland. As a trade deal between the UK and the EU is not only the result of the agreement and the way the Government best outcome but an outcome we must all avidly support. are now pursuing the matter, through the Northern I think we all also agree that any repudiation of a treaty, Ireland protocol Northern Ireland is to be part of the or any action that might be seen as a breach of customs union and, to a large extent, the single market. international public law,must be avoided if at all possible So if the Stormont Government gave a subsidy or and used only as a last possible recourse in the most preferential public procurement arrangement to, say, a extreme situations. I strongly support the tribute paid Northern Ireland textile company, the main exports of by the noble and learned Lord, Lord Wallace of which are to the Republic, and if its Irish competitors Tankerness, to my noble and learned friend Lord Keen objected, would EU state aid rules prevail or would of Elie. We certainly miss him in this debate. However, the UK internal market rule prevail? It is clear that we after the damage inflicted by Covid-19, we surely cannot need a UK state aid regime and it is fairly clear how afford to allow anyone, internally or externally, to that will relate to our international obligations under jeopardise the integrity or efficiency of our internal the WTO and, I hope, to future bilateral free trade market in the United Kingdom. That seems to be the agreements. But it is not at all clear how it will operate actuating principle behind the Bill. Of course, in a in relation to the internal market, which is the focus Second Reading debate, it is the principle that we are of the Bill. If that same Northern Irish company’s considering. main export were to Scotland, what then would the arrangements be? If it were to England, would it be There is a second point, which is the role of this different again, because there would be an equivalent House. I never cease to be impressed by the exceptionally objection from England-based competitors? erudite and public-spirited contributions we hear, week in, week out, from these Benches, especially today The fact is that industrial, employment and consumer with the brilliant maiden speech of the noble Baroness, policy—all of which are relevant to state aid considerations Lady Hayman of Ullock. None the less, we must not —are differentially devolved between the three lose sight of where we stand in the delicate constitutional Administration and centralised in England but not in settlement of this land. It is our obligation fairly to the UK. Of course, even in England there is the consider propositions sent to us by the House of expected intention to devolve more industrial and Commons and, where possible, to improve them. On employment policy to the English regions, so the the assumption that that convention is honoured and question could, at some stage in the future, apply to the Bill progresses, there will be bountiful opportunities Greater Manchester,which may have a different industrial to return to the details of this legislation. For now, and employment support system from that in the West however, with Her Majesty’s Ministers engaged in Midlands. How does that play out in the new state aid highly technical and demanding negotiations,the outcome framework? of which is of the utmost importance to us all, I hope The central question is whether there is yet a draft we will find ways of strengthening the hands of those framework for all of this in relation to state aid, at who represent us, rather than seeking to tie them. least between the UK Government and the Scottish, 1315 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1316

[LORD WHITTY] not want the Government to break international law Welsh and Northern Irish Governments. If not, what on their behalf. Businesses need economic certainty do the Government think it should look like and, and the people of Northern Ireland deserve much above all, how should it be enforced? Is the office for better than being used as a political football in the the internal market, due to be established within the Brexit talks. The solution is clearly to negotiate a CMA, wholly a creature of the UK Government or better, closer deal between the EU and the UK, and will the devolved Administrations have a say in its then to use agreed mechanisms to protect trade between governance and decision-making? During the EU regime, Great Britain and Northern Ireland. If the Bill is the Commission’s state aid arm had authority over intended to strengthen the mechanisms that hold together member states, with prohibitions and fines at its disposal. the United Kingdom, it is clearly not succeeding. If That could be the case for the CMA. the Bill is a short-term tactic to strengthen the Government’snegotiating hand, it is hard not to conclude Baroness Bloomfield of Hinton Waldrist (Con): I that the loss of trust that it has generated will do remind noble Lords of the speaking limit. long-term harm to our international reputation.

Lord Whitty (Lab) [V]: Before the passage of the 5.06 pm Bill, we need to clarify these issues. Lord Howard of Rising (Con): My Lords, comments 5.03 pm of genuine legal concern criticising Part 5 must be respected, however disproportionate. However, most Baroness Suttie (LD) [V]: I also add my congratulations of the adverse comments are, frankly, sour grapes to the noble Baroness, Lady Hayman, on her excellent from remainers. That Britain would lose its reputation maiden speech. I look forward to hearing her speeches by passing the Bill is nonsense. There are endless in the future. examples of EU bad behaviour: the French shepherding What is perhaps remarkable about the speeches we illegal immigrants into British waters, or the EU wilfully have heard is that the overwhelming majority, on all breaking international law as with Airbus, et cetera, et sides of the House, agree that the Bill is both unnecessary cetera. The EU ignores the law with complete abandon. and deeply damaging. As has been pointed out, we To quote the EU Advocate-General, have only four minutes, and so I will make three “it would be wrong to conclude that, once the Community is points. bound by a rule of international law, the Community Courts The first is simply to recall, as other noble Lords must bow to that rule with complete acquiescence and apply it have, that this is a problem of the Government’s own unconditionally”. making. The fact is that the Prime Minister insisted There is a very strong argument that Part 5 would that it was possible to do three incompatible things. As not be in breach of international law. There is not time the noble and learned Lord, Lord Clarke, so eloquently to discuss detail, but the EU’s behaviour means explained, the Government insisted that the whole of that various articles of the Vienna convention give the the United Kingdom could leave both the customs UK the freedom to implement Part 5, if required. If union and the single market while simultaneously anyone is in doubt, let me quote the noble Lord, avoiding a hard border on the island of Ireland, as well Lord Pannick—one of this country’s most distinguished as down the Irish Sea. Their solution was the Northern advocates: Ireland protocol. Just 10 months ago, the Prime Minister “If, therefore, the UK and the EU were unable to reach an referred to the withdrawal agreement with the protocol agreementonNorthernIreland/Ireland,despitegoodfaithnegotiations attached as “fantastic” and “historic”. The Northern and despite the arbitration procedures, and if the UK were therefore to be faced (against its will) with a permanent backstop Ireland protocol, which is far from perfect, is none the arrangement, the UK would be entitled to terminate the withdrawal less a carefully constructed compromise to try to agreement under Article 62 of the Vienna convention on the Law maintain peace and stability on the island of Ireland of Treaties.” and to protect the Good Friday/Belfast agreement. Furthermore, Section 38 of the withdrawal agreement My second point is that the Bill in reality does little Act, passed by your Lordships, fairly and squarely to address the actual problem about which Ministers confirms the supremacy of Parliament. The Bill gives claim to be concerned. It does nothing about checks the power to act if Parliament so agrees. The Bill itself on goods crossing from Great Britain to Northern does not initiate anything, so whatever view you take, Ireland, only theoretically providing a power to avoid the passing of the Bill is not an illegal act. checks in the other direction. If the UK Government The withdrawal agreement was signed in expectation are concerned to ensure that everything possible is of reaching a reasonable agreement. For the EU to done within the protocol to facilitate GB-NI trade, threaten to withhold third-country status or use the they have the legal means at their disposal through the Northern Ireland protocol to try and gain advantage joint committee. in discussions is not acting in good faith. Monsieur My third and final point is this: the people in Barnier saying that not even a pat of butter may go Northern Ireland, from all communities, have been let between England and Northern Ireland demonstrates down too often already by this Government. It is just this attitude. It is an example of the view expounded less than a year since the Executive in Stormont were by Verhofstadt’s team that Great Britain will become restored. The progress made in the last 20 years is not the EU’s first colony. It is how Britain has been treated something that can, or should, ever be taken for throughout negotiations. Last Thursday it’s the EU granted. Repeated polling makes it very clear that a Council arrogantly restated that the its opening position majority of people in Northern Ireland recognise the was its continuing position. This is not negotiation but need for the protocol, despite its challenges. They do dictation. 1317 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1318

With no clear argument against Part 5, we must put every other part. Forget chlorinated chicken; Wales the interests of our country first and foremost. We could not even require different labelling to show the must do our best to achieve what the people of Great higher levels of fats in a food product. If England were Britain have consistently voted for and rid ourselves of to allow hormones in beef cattle, Scotland could not EU control. Including Part 5 will show the EU that we prevent the import and sale of such cattle. Unlike the are not a colony and are not prepared to be treated European precedent, the only goal is to remove potential as one. barriers to trade at all expense. All other public policy goals are abandoned. 5.11 pm The restraints on devolution set out in these Baroness Andrews (Lab) [V]: My Lords, it is with extraordinary and unprecedented delegated powers great pleasure that I join with others in welcoming my came as a shock to the devolved Governments. Far noble friend Lady Hayman to this House and congratulate from the powers being designed for co-operation, the her on her speech. I am sure we will hear many devolved Governments were not even consulted. They marvellous speeches from her, and it has been good to see this as creating new risks, as well as being an hear her in this remarkable debate this afternoon. attempt to reduce their powers. So my fundamental In respect of Part 5 of the Bill, I would simply say question to the Minister, once again, is: why is this Bill that the recent amendment in the name of the noble necessary? What is there to gain from it that cannot be and learned Lord, Lord Judge, speaks entirely for me. achieved by the common framework principles and The changes that are made in this Bill in another process? Why take these risks? It cannot be because place—which simply make Parliament an accomplice the Bill will provide a dispute mechanism, because in breaking the rule of law—are totally unacceptable. each framework already has that to resolve differences. I want to focus on the risks in the Bill, and particularly Today the Government received a unique and stern on the way it threatens to restrict the existing powers warning from church leaders across the UK not to risk of the devolved Administrations by imposing overriding destroying the trust that binds the four countries. I constraints on the scope of the common frameworks. I hope that the Minister will not only listen to what the declare my interest as chair of the Common Frameworks House is saying but will have the wisdom and grace to Scrutiny Committee. For the past three years, and in change the Government’s mind. the context of the incorporation of European law, the four countries of the UK have worked hard to create 5.15 pm new consensual common frameworks specifically in Lord Bridges of Headley (Con): My Lords, I support order to secure a well-functioning internal market. Of almost everything in this Bill, although I do regret that the 40 or so frameworks in progress, some will carry Part 5 is in there. I regret that the Prime Minister told their own legislative competence, but they will all, as Members of Parliament last October that the treaty is appropriate, have their own dispute mechanisms in a great deal for the entire country and place. This has been done on a collaborative basis, by agreeing common standards across agriculture, the “a great success for Northern Ireland”—[Official Report, Commons, 19/10/19; col. 581.] environment, health and safety—all balanced by respect for the devolved Administrations, in the future as in and that the protocol is the past, to diverge in detail, as they see fit. “an ingenious scheme”.—[Official Report, Commons, 19/10/19; col. 594.] This managed divergence has led, and will lead in the future, to welcome innovations: not least, for example, But now he wants to rip it all up. I regret, therefore, for Scotland to introduce minimum alcohol pricing, that the Government either did not understand the or Wales a more rigorous approach to single plastics implications of the treaty and the protocol, or that or to refusing GM products—so far, so good. The they did understand its consequences but, privately, genius of the process is that co-operation and flexibility always intended to breach the treaty. have built a stronger foundation of trust between the The issues that the Government see as a pretext for four nations, just at a time when intergovernmental breaking their word at some future date have existed arrangements have been at their most challenging. and been debated at length for the past few years. This Despite the brake on progress caused by the no-deal is precisely why the treaty contains processes to deal preparations and now the pandemic, we expect five with them. Consequently, I regret that the Government frameworks to be agreed in the next few months, and have decided to call into question the treaty before more to follow shortly. exhausting the dispute resolution process that the This Bill, according to the chairs of both the treaty contains. Yes, Parliament will be given a vote Constitution Committee and the European Union before these powers can be used—but let us not forget Committee, threatens to frustrate and disrupt progress that the Government’soriginal plan was no Parliamentary made so far and undermine future co-operation, because vote, which I regret says a lot about the Government’s it does indeed—despite what the Minister has said— intent. Furthermore, I regret that it appears that the provide the Government with powers to alter the very introduction and enactment of the Bill are in competences of the devolved Administrations. Scotland breach of the UK’s international obligations, even has already withheld consent; Wales and Northern before these clauses are brought into force or used to Ireland are deeply provoked. Specifically, the provisions make regulations. I would ask my noble friend Lord True for mutual recognition and non-discrimination would to confirm whether this is so when he winds up. generally require that goods and services that could be More broadly, I regret that we are being told by legally sold or provided in one part of the UK would some that, just because other nations may disregard have the same legal right to be put on the market in treaties they have entered into, somehow this justifies 1319 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1320

[LORD BRIDGES OF HEADLEY] We regularly recognise the legacy of John Major us breaching a treaty we have entered into in good faith. and Tony Blair in the production and continued Two wrongs do not make a right. The Prime Minister observance of the Good Friday agreement. No one in once said that government, however,paused to reflect on the importance “the rules-based international order which we uphold in global of the Good Friday agreement in the domestic politics Britain is an overwhelming benefit for the world as a whole.”—[Official of the United States. Noble Lords had better believe Report, Commons, 13/3/17; col. 89.] the words of Speaker Pelosi: there will be no trade I agree. I just regret that Part 5 is now calling this into deal for Britain with the USA if there is any adverse question. Above all, I regret that Conservatives who impact on that agreement. The fact is that whether or want to support the Government but believe in upholding not in the end the Government exercise the power to the rule of law, are being asked to choose between party commit the illegality, the damage is done: our reputation and principle. What is at stake here is not “leave” or is besmirched and the credibility of the United Kingdom “remain”; it is our approach to public life, how we think undermined. This is shabby business and we should about our place in the world, whether we think it still have none of it. matters that Britain’s word is its bond and, of course, underlying all of that, our belief in the rule of law. 5.23 pm My noble friends Lord Callanan and Lord True are Lord Empey (UUP): My Lords, I congratulate the men of integrity.I have known my noble friend Lord True noble Baroness on her maiden speech and I look for decades and I will always see him as a good friend, forward to many more on a variety of subjects. but on this we differ. Principle comes before party and so, with regret, I will be voting for the amendment This Bill illustrates how our constitution has been tabled by the noble and learned Lord, Lord Judge. evolving in such a haphazard way over the last two decades, with ill-thought-through lurches into 5.19 pm various forms of devolution without a comprehensive plan to co-ordinate them. We have succeeded in falling Lord Campbell of Pittenweem (LD): My Lords, I, out with the devolved Administrations and have the too, congratulate the noble Baroness, Lady Hayman consent of none. of Ullock, on an outstanding maiden speech. However, I wish to speak to Clauses 44, 45 and 47, but there is little time for niceties, because I believe that the reason why they exist at all has its roots back in this is a contemptible Bill, in turn contemptuous of decisions taken one year ago. On 2 October 2019, law and contemptuous of Parliament. We must, I Her Majesty’s Government produced a proposal for suppose, thank the Secretary of State for Northern an amended protocol on Northern Ireland entitled Ireland for his frankness—it may yet cause him to lose Explanatory Note. This note said that the protocol was his Cabinet place—in admitting at the outset the illegality based first and foremost on our commitment to finding inherent in the Bill. The noble Lord, Lord Lilley, solutions compatible with the Belfast/Good Friday suggested that that should now be disavowed. The agreement, but if that was the commitment it has not noble Lord, Lord Callanan, had that opportunity been met. when he opened the debate, but far from disavowing it he chose not to mention in any detail whatever the The Explanatory Note did the following: it proposed particular clauses that are the most controversial. to establish a regulatory border in the Irish Sea requiring Following the admission of the Secretary of State checks on goods and produce moving between Great for Northern Ireland, an amendment was passed in Britain and Northern Ireland; it required the establishment the House of Commons. There are those who argue of border inspection posts as required by EU law, and that that amendment somehow cures illegality, but an traders moving goods from Great Britain to Northern illegality, whether authorised by Cabinet or by the Ireland to notify the authorities in advance. Her Majesty’s Commons, is still an illegality, and it is misleading to Government proposed the establishment of a regulatory claim otherwise. I would go further: it is an abuse of border in the Irish Sea with border control posts and this House to invite us, when we are encouraged at this the ongoing involvement of the EU courts in Northern stage to accept the principles contained in the Bill, to Ireland. How on earth is this compatible with unionism? accept the principle of illegality. For some inexplicable reason, the Explanatory Note Like several noble Lords who have spoken, I have of 2 October was endorsed by the Democratic Unionist the privilege of holding the commission of Her Majesty Party. Arlene Foster issued a statement describing it as as one of her counsel learned in the law. Will those “a serious and sensible way forward.” who support the Government please tell me how I can This opened the floodgates for Brussels and Dublin, fulfil the obligations and responsibilities of that privilege and two weeks later the deal was done. How any by endorsing the illegality contained in this Bill? If unionists can support any kind of border in the Irish anyone is still in doubt about the illegality, they should Sea escapes me. The establishment of this border and read the analysis of Clauses 42 to 45 produced by the the arrangements contained in the subsequent withdrawal Bingham Centre. They should tell us which parts of agreement are a clear breach of the Belfast agreement. that analysis they disagree with. They should go further: These proposals change the status of Northern Ireland they should tell us which conclusions of the Constitution and have the same negative effect as having a land Committee of this House they regard as not being well border, which everybody has sought to avoid. Her founded. Generally, they should tell us how we can Majesty’s Government now see Clauses 44, 45 and 47 discharge the obligations and responsibilities of as essential to keeping some semblance of cohesion in membership of this House by endorsing illegality at the United Kingdom, illustrating the shoddy nature of the whim of a Government. the negotiations conducted last year. I have little doubt 1321 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1322 that some EU negotiator did threaten to prevent food trade is he talking about? Those whom I know who coming from Great Britain to Northern Ireland. That are working in business and commerce would certainly individual must have very little knowledge of Irish love to know. history. I ask the Government: can we break future terms, Nevertheless, to plunge ourselves into a legal quagmire as easily as we appear intent on breaking the Northern and various constitutional contortions is not the answer. Ireland protocol, if we do not like the way they work There is another way: instead of blathering on about after January? The low regard shown by the noble the Belfast agreement, which has been used as a political Lord, Lord Agnew, for British industry and commerce football by Brussels, we should use it as part of the went even further. He was reported to have said that answer. It never ceases to amaze me that those of us our traders have their heads in the sand as they approach who negotiated the agreement are never consulted January’s deadline. I am sorry that he did not heed about its intentions or how some legislative proposals Denis Healey’s advice: might affect it, even though there are many of us in “When you’re in a hole, stop digging.” your Lordships’ House. The blame game has evidently begun, and the PM The UK could legislate to prevent our territory being started it. He dictates a strategy and blames others if it used for the export of non-compliant products into does not work. the EU market. We could also indemnify the EU if No sooner had the Prime Minister finished his non-compliant products succeeded in getting through. sunshine forecast on Friday, of the prosperity he claims We could, by treaty, establish another cross-border body will surely follow there being no trade agreement with for educating businesses and preventing any single the EU, than a New York analyst made a withering market contamination, and join the EU to that treaty comment that took my breath away. Our credit rating if some additional devolution to Stormont was initiated. had just fallen dramatically but he did not write us off. How are we in such a mess because of trade flows He did not spare us either. He said: across the land border that accounts for 1.6% of Ireland’s “the quality of the UK’s legislative and executive institutions has total imports, or, to put in another way, 0.1% of EU diminished in recent years.” trade flows? If we can break a protocol that we ourselves Who can deny it? The Prime Minister’s claim that we proposed a year ago, even though I continue to oppose shall survive no deal because we have it, all bets are off with regard to Scotland, Gibraltar “high hearts and complete confidence” and the Belfast agreement itself. Precedent, dear boy, in the future will be exposed as what it is: a sham. precedent. The latest line from Downing Street is that we shall insist on legal texts in future negotiations. If the 5.27 pm Government had paid close attention to Article 10 of Baroness Boothroyd (CB): My Lords, I was elected the Northern Ireland protocol before signing it, they to Parliament some 47 years ago and have witnessed would not need to override it in this Bill. Trust in this nine Prime Ministers tread the steps of No. 10 Downing Government, both nationally and internationally, is in Street. However, never in my parliamentary experience short supply but our parliamentary democracy has have I witnessed such a collapse of the people’s trust in deep roots and I trust that this House will defend our a Government who promised so much and so quickly laws and traditions. Who knows? There is still time for and who are now groping for desperate solutions to yet another U-turn. One thing I am certain of, we shall problems that they said would not arise or, if they did, not deserve our reputation and regain our self-respect could easily be resolved. until once again the world knows that our word is our deed and that we are committed to the rule of law. It has been a privilege to listen to such fine speeches this afternoon. Perhaps I thought they were fine because I agreed with most of them. However, let us not beat 5.31 pm about the Euro-bush: the Prime Minister set the course Lord Forsyth of Drumlean (Con) [V]: My Lords, as that we are on and shows no remorse for steering us president of the Steam Boat Association I know a bit off it. The claim continues to be made that a no-deal about boilers. They are potential bombs and have the end to our membership of the European Union is capacity to blow a vessel to smithereens. By law, they nothing to worry about and that we have every right to must be tested annually and have two safety valves to break a clause in an international agreement because release steam if the pressure exceeds a safe level. The we do not trust our European partners, but it was our second valve is there to deal with the unlikely failure of European partners who joined us in signing that very the first. In the words of the noble and learned Lord, agreement. Lord Judge, it does not cure the fault but it prevents Future historians will not need a test-and-trace the destruction of the ship. This Bill provides for that operation to find those responsible if we end up in a second safety valve in the event that the EU does not legal battle in the Supreme Court and an economic respect the disputes procedures under the withdrawal crisis that rivals the 1930s depression. I was a young agreement, does not comply with its duties of sincere girl in the 1930s and I saw the poverty and misery it co-operation and threatens the very integrity of our caused at close quarters, so of course I was alarmed United Kingdom. when I read that the noble Lord, Lord Agnew, a After all, the withdrawal agreement was signed on Cabinet Office and Treasury Minister, was reported to the basis that a trade deal would be implemented in have said that British businesses and commerce were 2020. The Canada-style free trade deal was offered by not as ready as they should be for the start of our new Mr Barnier but now we are told is no longer available. terms of trade with Europe in January. What terms of It is easy to make a case now that the EU is negotiating 1323 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1324

[LORD FORSYTH OF DRUMLEAN] 5.36 pm in bad faith, a point made by my noble friends Lord Lord Haskel (Lab) [V]: My Lords, I too welcome Howard and Lord Lilley. I have some experience of my noble friend Lady Hayman and congratulate her this kind of duplicity on the part of the EU, which I on her maiden speech. I serve on your Lordships’ share with the noble Lord, Lord Kerr. I go back to Delegated Powers and Regulatory Reform Committee. John Major’s opt-out from the social chapter. We This committee was formed in 1992 to deal with the thought that that meant that employment policies growing tendency of Governments to seek wide order- were subject to a veto by us but, hey-ho, the EU decided making powers which give Ministers unlimited discretion. that working time was a health and safety measure The Bill is a prime example of why that committee is and therefore subject to qualified majority. As I recall, needed. Wedrawyour Lordships’attention to 11 delegated the advice from the noble Lord, Lord Kerr, and others powers in the Bill, which include seven Henry VIII at the time was that there was no point in us going to powers, to which the noble and learned Lord, Lord Judge, the court to argue on a point of law because the referred. These powers allow Ministers to amend, European court would always advance the acquis and repeal or modify an Act of Parliament or a statutory was a political court. Let us not be starry-eyed about instrument. Under Clauses 42, 43 and 45, Ministers how the European Union acts in the interests of the are able to disregard any international or domestic law rule of law. which they consider to be incompatible or inconsistent I very much regret that my noble and learned friend with the Northern Ireland protocol. That is why in Lord Keen is no longer on the Front Bench and that paragraph 2 of our report we say that he was forced to resign even though he launched “Some of these powers are extraordinary; others are a lifeboat for the Government. He suggested that the unprecedented.” Northern Ireland Secretary had answered the wrong As the Minister explained, the stated purpose of question in the Commons when asked if the Bill breached the Bill is to allow free trade within the United Kingdom. or potentially breached the law. He was making the Clause 3 states that any item permitted to be sold in point that “potentially” was the right answer. As one part of the United Kingdom under devolved Advocate-General he told the House, legislation is automatically available for sale in other devolved areas on the principle of mutual recognition “in my opinion, the present Bill does not of itself constitute a of goods. This means that the lowest standard becomes breach of international law or of the rule of law.”—[Official acceptable. What is more, this requirement applies not Report, 15/9/20; col. 1129.] only to the goods themselves but to their packaging, That is good enough for me to support this Bill being labelling, assessment, registration and documentation, given a Second Reading. It is for the Committee stage as my noble friend Lady Andrews explained. This is to consider this further, and I ask my noble friend despite government assurances that our standards will Lord True to make it crystal clear in his wind-up not fall when we leave the EU. Standards become a tomorrow that these provisions in Part 5 would be race to the bottom, as the noble Lord, Lord Bruce, used only in extreme circumstances and be subject to explained. parliamentary approval. The committee’s view is that Clause 3 should be deleted. I understand that amendments will be brought I have enormous respect for the noble and learned forward to do this. There are further clauses in the Bill Lord, Lord Judge, although comparing this to the which override powers granted to the devolved abuses of apartheid seemed a little over the top. My Administrations regarding such things as consumer noble friend Lord Cormack is assiduous in his work in protection, financial aid and social welfare; indeed, this House but I cannot vote for the amendment, powers are granted to UK Ministers to spend money which is nothing more than parliamentary graffiti. over the heads of devolved Administrations, even on The Bill was passed by a huge majority in the House devolved matters. of Commons and, despite the amendment before us and more than 100 speeches, it will be given a Second Clauses 42 and 43 allow Ministers to disregard Reading in the House tomorrow. Only the Liberals provisions of international or domestic law for technical with their miserable mandate at the general election reasons; this is one of the unprecedented powers to have contemplated throwing the Bill out. Rightly so, which our report refers. When your Lordships reported for this Bill protects, enhances and strengthens the in September, the Bill was in the other place, and, as union. More than half a million jobs in Scotland we say in our note dated 13 October, the Government depend on the integrity of the internal market, and did not take the opportunity to address the points scores of powers are being returned from a supranational which we raised. It seems to me that this disregard for bureaucracy to our elected representatives. The very the arguments of your Lordships’ committee is yet Act of Union itself was about creating a barrier-free another example of this Government seeking to impose internal market and it has brought about more than their will rather than seeking parliamentary approval. 300 years of prosperity. In doing so, they ignore the public interest in matters of law, diplomacy and the nation’s integrity. This I cannot tell the House how disappointed I was to undermines the integrity of public life and allows see the most reverend Primate the Archbishop of Ministers to break the Ministerial Code. The only Canterbury putting his name, together with other senior justification seems to be that Ministers need these Anglican bishops, to a letter in today’s FT headlined powers to act quickly, especially in an emergency. “Internal market bill undermines the strength of our Well, Parliament can act quickly and in an emergency. union”. Those who wish to break up Britain will be Speed is no reason for imposing the will of Ministers much encouraged by their efforts. on the devolved Administrations in this divisive manner. 1325 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1326

5.41 pm 5.45 pm Baroness Humphreys (LD) [V]: My Lords, it has been a great privilege to listen to the speeches of noble Lord Lamont of Lerwick (Con) [V]: My Lords, I Lords today, especially those who have voiced the want to concentrate on Part 5 and the amendment in concerns of so many of us about this Bill and the the name of the noble and learned Lord, Lord Judge. I impact its invitation to collude in the breaching of have already publicly criticised the statement by Brandon international law has already had on the UK’s standing Lewis that the Bill breaches international law. Since on the international stage. the Government have not withdrawn that statement, I Politicians in Wales are equally deeply concerned have no choice but to vote for this amendment. However, by the contents of this Bill and the implications it has for I confess that I am in a dilemma. What the Government Welsh devolution, and none more so than David Melding, are doing certainly is wrong, but on the other hand, the highly respected and long-serving Conservative the provisions of the Northern Ireland protocol are Senedd Member, who resigned his position as shadow potentially disastrous. It is a choice of two evils. How Counsel General last month. He cited the need to be can we break international law, and, on the other able to speak out against what he considers to be, hand, how could we ever accept tariffs being levied on goods going from one part of our country to another—a “a lack of statecraft at this crucial time for the UK’s very survival as a multi-national state.” border in the Irish Sea? That is not the trivial matter that the noble and learned Lord, Lord Falconer,suggested; Those three words, “lack of statecraft”, are the most it is a threat to the Good Friday agreement. I am also telling; a stinging criticism from one of the Senedd’s sensitive to the danger of undermining at this moment most loyal Conservatives, and three words that sum up the Government’sposition in negotiations, if they resume. what is so wrong with this Bill. Statecraft involves diplomacy, co-operation, consultation and consensus, Many eminent lawyers have spoken in this debate but these are words no longer associated with the and their verdict has left nothing for the day of judgment, delivery of the UK’s internal market, and despite the but is this just a legal matter? The Northern Ireland Minister’s conciliatory words and tone when introducing protocol is not a black and white,unambiguous document. this debate, the words on the face of this Bill tell It is full of contradictions and matters to be resolved another story. later. There are plenty of examples internationally of It is clear that the UK Government’s response to politics trumping law. One thinks of the Maastricht dealing with devolved governance issues that arise will treaty and the ignoring of all its provisions on deficits be to resort to government by diktat. For example, the and debt. The disputes between the German constitutional principles of mutual recognition and non-discrimination court and the EU have some parallels with our present are, according to this Bill, to be applied to all goods stand-off, as my noble friend Lord Lilley suggested. and most services, with a highly limited list of exceptions Then there is the case of the United States tearing up which can be changed by UK Ministers through secondary the Iran nuclear deal; that was an agreement, like the legislation without consultation with the devolved withdrawal agreement, which was lodged at the UN Administrations. In Wales, this is seen as a fundamental and then simply torn up because the new President assault on devolution, preventing the Senedd carrying took a different view. One may regret these things, but out its duty of protecting the citizens of Wales from it is fanciful to suggest that the provisions in this Bill substandard goods and services. would prevent us criticising human rights in China. The proposal that UK Ministers should take new The House must bear in mind one important point funding powers to enable them to fund hospitals and when considering this Bill. Even if the Commons votes schools in Wales without consultation with the Welsh to commence taking the powers in Part 5, the House Ministers who have the devolved responsibility for of Lords would still be able to overturn the policy by these areas is provocative, as is the threat to build the voting against the statutory instruments that would M4 relief road against the decision of the Welsh negate the protocol. I ask my noble friend Lord True— Government, a decision endorsed by the Senedd on who knows a huge amount about procedure, perhaps cost and environmental grounds. This attempt to chip more than anyone else in the House—to confirm that away at the powers of the Senedd is an example of this interpretation is correct, and that even after enactment Westminster colonialism at its worst. I understand the there will still be opportunities for the Lords to vote Government’s dislike of the EU flags seen on Objective against the Government if they choose to activate the 1 projects in west Wales and the valleys, and their need policy? to see the union flag on new projects, but far better to make an investment in areas which are not devolved The Government should never have got into this and for which the UK Government have actually been position. I am not convinced by their protests that the responsible for years and neglected. EU is not negotiating in good faith; if you lose a As many noble Lords have already said, the irony negotiation, it is easy to accuse the other side of acting is that this Bill is mostly unnecessary.Continued work on in bad faith. However, the problem we have has been common frameworks with the devolved Administrations staring us in the face ever since the protocol was would ameliorate its impact. The work already carried agreed in October 2019. That very month, the then out by the devolved Administrations, your Lordships’ Brexit secretary told the Lords EU Select Committee committee and the UK Government until now has that there would be no export certificates between been an example of statecraft at its best. Most worryingly, Northern Ireland and GB. A few hours later,he withdrew the imposition of decision-making by Whitehall in that and admitted that there would, but the PM continued areas of devolved responsibility will do nothing to aid in denial and said—including during the election—that the UK’s survival as a multinational state. if anyone got such a document, they should tear it up. 1327 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1328

[LORD LAMONT OF LERWICK] 5.53 pm Today, the Government are trying at the last minute Lord Wigley (PC) [V]: My Lords, I warmly agree to strengthen their negotiating position by rescinding with the words of the noble Lord, Lord Rooker. I what they had previously, foolishly accepted. I believe congratulate the noble Baroness, Lady Hayman, on that they have made a mistake in trying to take her fine maiden speech. I particularly welcome her these powers. The amendment in the name of the Welsh half and her comments on devolution, rural noble and learned Lord, Lord Judge, regrets the Part 5 affairs and the environment. provisions. If the amendment is agreed, what follows is for us to decide later, but since I certainly regret I oppose the Bill, which goes way beyond the policy what the Government have done, I shall vote for the proposed by the Government at the general election. amendment. This House would be totally justified in refusing to give it a Second Reading, as the Government have no mandate for it. I salute the fine speech by the noble 5.50 pm and learned Lord, Lord Judge, and unite with him in Lord Rooker (Lab) [V]: My Lords, I welcome my saying: “Not in my name either”. noble friend’s maiden speech and look forward to The Bill gives draconian powers to UK Ministers hearing others.In its summary of the Bill, the Constitution over matters which have been long-standing devolved Committee mentioned, among others, the following responsibilities.Those powers,which return from Brussels, words: does not justify; it is regrettable; engagement should automatically come to the devolved Governments. has been poor, limited and unsatisfactory; consultation If there is a need to establish an all-UK position on is problematic; the Bill does not mention common some such powers, that should be negotiated between frameworks; there is no time for adequate reflection; the four Governments and implemented when there delegated powers are extraordinary and unprecedented; is consensus. I will not repeat the points made so many are constitutionally unacceptable; and the effectively by the noble Baronesses, Lady Hayman and Government should explain whether clause 6 seeks to Lady Andrews. There is a real belief across party constrain Parliament’slaw-making power. It is, therefore, divides in Wales, and expressed by Labour, Plaid Cymru legitimate to ask about the drafting of the Bill. and Liberal Democrat Senedd Members—and, yes, When I was a Minister in the other place, 20 years even by some Conservatives—that the Bill, in its present ago, there was an occasion when I had to call a halt to form, is just not acceptable. a Standing Committee where I was in charge of a Bill. The Welsh Government have lobbied Members of The details are unimportant, but it was only then this House, begging us to reject the Bill as it stands. that I discovered that policy officials do not talk to They make three salient central points, which were parliamentary counsel who draft the Bill. They highlighted by the noble Lord, Lord Newby. First, the commission the department’s lawyers, who then brief Bill would destroy the hard work undertaken by the Welsh parliamentary counsel. I presume that this is to lock in Government, in co-operation with other Governments the client legal privilege rules.So it is clear that government in these islands, to establish common frameworks. It policy officials have briefed departmental lawyers to would emasculate the Welsh Government’s regulatory request parliamentary counsel to draft a Bill which, powers, ranging from the food sold in Wales to the among other things, appears to “constrain Parliament’s qualifications of teachers in our schools. law-making powers” and constrain the judicial review Secondly,the spending powers arrogated to themselves function so as to put ministerial regulation-making by Westminster Ministers would undermine expenditure powers above the law in an unprecedented manner. policies currently pursued by the Welsh Government, Parliamentary counsel have carried out that instruction— such as free school meals or the funding of road schemes and that I think is worrying. such as the M4 relief road. If the UK Government The role of the House of Lords is to protect the assert that such funds are additional to the Barnett parliamentary process. It should be a red line for this block, let them write that on to the face of the Bill and House. This Bill has the seeds of undermining the it might well be considered. Otherwise, it is a case of primacy of the House of Commons. I will repeat that. Westminster telling Wales how money within the devolved This Bill has the seeds of undermining the primacy of Welsh block should be spent—and that is just not on. the House of Commons. Are there any limits to what Thirdly, the intention to make state aid and subsidy can be put in legislation, or will parliamentary counsel policies reserved matters gives Westminster Ministers simply use the Nuremberg defence? control over economic development throughout the As the Joint Committee on Conventions of the UK UK when their actual powers in that regard are currently Parliament made clear in its report in October 2006, applicable only to England. Such steps would demolish quoting the noble Lord, Lord Wakeham, the Lords should the successful “buy local” policy applied by successive be very careful about challenging the views of the, Welsh Governments in procuring products and services—a “House of Commons on any issue of public policy.” policy which helped bring Welsh unemployment levels It is not an issue of public policy to agree legislation down to the UK average. The Bill gives powers to UK that neuters the parliamentary process, and neither Ministers to intervene in Wales over water infrastructure, the Government nor the Commons can claim it is. As sending a shiver of dismay that we are about to see such, this Bill, which is in no way a manifesto Bill, another Tryweryn foisted on us. requires substantial amendments and deletions. Our experience of Tory government promises of Afterwards, we should hear from parliamentary counsel major capital expenditure schemes in Wales over the as to whether they operate within any boundaries with past decade has been disastrous. They have promised: respect to defending the parliamentary process. to electrify railways; to facilitate electricity generation 1329 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1330 projects; a new Wylfa in Anglesey; and tidal lagoons for that is what they are, not handled in the joint around the Welsh coast. They insisted on keeping committee for settling disputes, which the withdrawal power in Westminster; they just have not delivered. treaty set up? What happened in that committee? Was Every such election pledge has been broken, so why on there a deadlock? Did the EU side make threats which earth should we trust them now? In terms of breaking were, in the Prime Minister’s words, “extreme and solemn commitments, the Bill surely goes way beyond unreasonable” and undermined the withdrawal treaty? what is acceptable in its unilateral abandonment of Were these clauses put into this Bill in fact justified as international treaty commitments. It establishes beyond a response on that account? When it comes to would-be doubt that the Government’s word is not worth the violations of the treaty spirit, are the critics, of which paper on which it is written, and the challenge to this we have heard so many this afternoon, quite sure that House is to insist that we will not pass any such they are looking entirely and solely in the right place? legislation in our name. We have asked these questions, but we have got no clear answers so far. Can we please have them now? 5.57 pm Can we have a bit of chapter and verse about what Lord Howell of Guildford (Con) [V]: My Lords, I actually went on the disputes committee? I know that join in congratulating and welcoming the noble Baroness, this will not assuage my distinguished legal friends, Lady Hayman. I am sure that most of your Lordships nor the Church leaders, but it would at least explain will agree that—after defeating Covid-19—the highest more fully why the clauses got into the Bill and why priority for our country, if we are to face the challenges they were felt to be necessary.Perhaps it would persuade of the next 10 years, is to hold this United Kingdom of me to oppose the two amendments, even though they ours together. The problem is that devolution has have been spoken to by your Lordships at your most created a whole world of delicate compromises and eloquent, and by people I most admire. unfinished constitutional business. Then on to the scene comes the Bill, which I am afraid is a bit like a 6.01 pm bull in a china shop. Lord Butler of Brockwell (CB): My Lords, I My question on the devolution side of the Bill is congratulate the noble Baroness, Lady Hayman of this: I admit that the timing may be unavoidable but, Ullock, on her maiden speech, which I heard with as the chairman of the Constitution Committee, the great pleasure from the Strangers’ Gallery. noble Baroness, Lady Taylor, asked, why on earth could In the limited time available, I will not dwell on the not these issues between the different parts of the kingdom anxiety and shame I feel about Part 5 of this Bill, be handled mostly within the common framework which others have expressed so eloquently. I hope and procedure or consensually? Why was it decided to try believe that your Lordships will assent to the amendment to codify, in law, the thousand and one different complex in the name of my noble and learned friend Lord Judge. and ever-shifting connections between all the myriad I also hope that, in the next few weeks, agreements will businesses across the devolved regions,rather than address be reached with the EU which enable the Government them as they come along, which they will unceasingly, to assent to removing these clauses from the Bill. In by ongoing practical co-operation—or maybe just by passing, I agree with the noble Lord, Lord Campbell, setting up the new internal market office? and others, that the amendment passed in another As to the rule of law clauses which have so greatly place—that these clauses would not be brought into disturbed your Lordships, and disturbed the legal effect without a positive vote in the Commons—is not profession, and indeed many of my good friends, sufficient to remove the mischief. These clauses contain including my noble friend Lord Howard, and now the a threat which should never have been made, and Archbishops as well, I am a little less worried than some which must have no place in the United Kingdom of my colleagues. It is quite correct, as the Constitution statute book. I invite the noble Lord, Lord Forsyth, to Committee’s report pointed, that the late Lord Bingham consider the precedents that they would provide for an warned against a Government which “routinely”—and unscrupulous Government in the future. I emphasise that word—disregard their international I shall address my remarks to the situation that will law obligations, and I would not wish to live for one arise if the Government seek to maintain the clauses moment under such an Administration. But the reason and can get a majority in the House of Commons to I am not so worked up as some are in this instance, is that end. Your Lordships will then have to decide that I believe we may be overlooking the degree to which whether we maintain our opposition to them in the the whole spirit of the withdrawal treaty and the Northern face of a majority in the elected House. I have argued Ireland protocol was and already being undermined, in the past, and continue to believe, that this House and is now being undermined, by the other party, must recognise the constitutional limitations on our namely the Brussels negotiators and their legal advisers. power and must ultimately defer to elected House. But I believe that this is just what the Lord Chancellor the issues on this occasion are of a different order. The meant when he rightly advised the Constitution Northern Ireland clauses in this Bill go to the root of Committee to consider the context behind the need for our constitution. On this occasion, the power is in this Bill. Here, too, we are in an area of delicate your Lordships’ hands, and we may not be used to ambiguity and compromise, as Northern Irish affairs that. The Government need the internal market provisions always have been—as the Good Friday agreement was in this Bill by 31 December. They cannot, therefore, as well, and as I know full well from my years of use the Parliament Acts to get the Bill through. If this working there at the height of the time of violence. House is resolute in rejecting the unacceptable Northern So my question here, before rushing to judgment, is: Ireland clauses, the Government will have to agree to why were these tangled problems of treaty interpretation, remove them if they are to get the Bill passed. 1331 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1332

[LORD BUTLER OF BROCKWELL] we both come from the north-east of England—given The issues here are the rule of lawand our constitution, that the head of Nissan has said that Nissan Europe as well as our national reputation. I believe that it is would be “unsustainable” if there is no deal and tariffs the role and duty of your Lordships’ House to defend are imposed, are the Government prepared to see that these things, even in the face of an overweening Executive outcome? How could such an outcome help their with a majority in another place, and I urge your stated policy of levelling up the regions across the Lordships to be resolute in doing so. We can prevent UK? It is against this background and the end of the this disaster. transition period that we have to consider this Bill. Given that there is almost total support in support 6.05 pm in Parliament and outside for ensuring that the UK’s Lord Mackay of Clashfern (Con) [V]: My Lords, I internal market works properly and effectively after congratulate the noble Baroness, Lady Hayman, on an the Brexit transition, it is actually incredible that the excellent maiden speech and I look forward to many Government have managed to produce a Bill that has others. been so roundly and universally condemned, both in I regard a Bill dealing with this subject as highly Parliament and outside. Inside Parliament and this desirable, as the present law is principally contained in House, we have had powerful reports—which I hope will EU retained law not easily accessible to our citizens. get much publicity—from the Constitution Committee, During the discussion on the 2018 withdrawal Bill, the from the EU Select Committee and from the Delegated question arose of where powers released by the EU Powers and Regulatory Reform Committee. Both inside went in the level of our constitution. I took the view and outside Parliament, we have had concerns expressed that the internal market powers went to the UK by eminent lawyers, by the noble and learned Lord, Parliament, as legislative authority for them had to go Lord Neuberger, by the report of the Bingham Centre, beyond the geographical limitations of the authority and indeed in the letter—with which I strongly agree—that of the devolved legislatures, but that it was highly the Archbishops have published in today’s Financial Times. desirable that any exercise of them be the subject of The worries about the Bill are focused on the fact discussion, and if possible agreement, between all four that it breaks international law, and not just once; it Administrations. The Scottish Minister with whom I provides for future breaks of the law. In some clauses, was very happy to work closely at that time was it exempts the Government from judicial challenge, optimistic that agreement would be reached. The Joint which is a dangerous principle. It also seems to break Ministerial Committee on EU Negotiations was already the Ministerial Code—perhaps the Minister can confirm in place, and intensive work on securing common whether that is true or not—it adds a lot of extra frameworks as the robust foundation for continuing Henry VIII powers, and it elicits opposition from the co-operation has gone well. The Scottish Government Scottish Parliament, the Welsh Senate and the Northern have taken a constructive role in that work. Although Ireland Assembly. they have formally taken up a distinct position, their Others have made this point, but I would like to support for independence has not prevented them agreeing reinforce it: I do not understand why the Government to these matters and participating fully in them. did not decide to build on the common framework I suggest that this Bill would be greatly improved by approach rather than coming forward with the provisions providing that any issue to be the subject of a statutory in the Bill. The situation in Northern Ireland is very instrument should be discussed in such a committee, serious, and became serious the minute the Government and implemented only if it is agreed, or otherwise agreed to establish an effective border in the Irish Sea. after a full debate in both Houses of Parliament, and I hope the comments that were made by the noble that the Competition and Markets Authority should Lord, Lord Empey, which I am sure will be reinforced report to this committee as a matter of course. by my noble friend Lady Ritchie of Downpatrick, will be taken on board and dealt with properly by the 6.07 pm Government. Baroness Quin (Lab) [V]: My Lords, it is a pleasure In conclusion, opposition to this Bill is strong, and to follow the noble and learned Lord, Lord Mackay of it is not a question, as has been alleged, of moaning Clashfern, and to recognise the work that he did in remainers. It is strong, because there is a strong feeling trying to make sure that we have a good system of that the Bill is not in our national domestic interest common frameworks across the United Kingdom. I and does huge damage to our international standing. also add my warm congratulations on the splendid For that reason, I shall vote for the amendment of the first contribution to this House by my noble friend noble Lord, Lord Judge, and I hope, too, that the Lady Hayman. House of Lords, on this occasion, will be prepared to The context of today’s debate is of course the use the powers that have been given to it in our ending of the EU transition period, and indeed the constitution and stand resolute—in the words the ever closer threat of ending that transition without a noble Lord, Lord Butler, a few minutes ago. deal. Last week, the Prime Minister sent to all of us what I thought was an extraordinary letter, which not 6.12 pm only repeated the usual misleading claims about the Lord Purvis of Tweed (LD): My Lords, having spent pro-Brexit referendum result but also airily proclaimed six days in Committee on the Trade Bill debating how that we would prosper mightily, completely ignoring we make treaties, and listening to the Minister say the practical concerns and worries that businesses continuously how we will be a trusted partner around across the country and our own internal market have the world, I, too, regret that we are having to debate about the prospect of no deal. I ask the Minister—as how the Government have breached one and intend to 1333 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1334 breach more. Alas, I had hoped to hear from the introduced an agreement on internal trade that came Minister, in opening, why and when agreed processes into effect on 1 July 1995. After a premiers’ conference, in the joint committee with the EU, and in joint Australia, which the Prime Minister wishes to quote a ministerial committees with our nations, broke down, lot, reached an agreement on principles for a mutual and why those agreements could not be reached, recognition scheme. An MoU was signed and, very necessitating this Bill. symbolically, has the signatures of all the premiers I want to address Parts 1 to 4, and I do so as and the Prime Minister. someone who was born and lived on the border between The border area is one area where we will be living England and Scotland and represented a border with the consequences of this, and we have seen nearly constituency all my life. Therefore, in my personal, a decade of significant division and polarisation. Please, professional and political life, I have seen at close hand Minister, do not force a Bill against the spirit of what the daily interaction between laws, systems, standards, has been developed over the last three years, which is approaches, and regulations—everything from licensing, consensus and agreement. Do not herald a bad omen trade and speed limits to Covid-19 regulations, building for a decade of danger for our beloved union. regulations and others, many of which predate the European Union and that approach. 6.17 pm I have also seen at close hand the work within the Lord Skidelsky (CB) [V]: My Lords, I join others in framework agreements. I recognise that there are powers congratulating the noble Baroness, Lady Hayman of that are being repatriated. The 2020 framework analysis Ullock, on her excellent maiden speech. by the Government showed that of 154 policy areas where EU law interacts with devolved competences I want to confine my remarks to Part 5 of the Bill. I that are being repatriated, 115 require no framework find myself swayed by twocompletely opposite accusations at all, 22 require a non-legislative framework, and just of bad faith. The Government accuse EU negotiators 18 require a legislative framework. of bad faith in seeking to erect unreasonable customs barriers between Northern Ireland and the rest of the UK. The Minister did not refer to a defence of Part 5, Opponents of the Bill say that the bad faith is our own but I was curious that he referenced whisky and the Government’s. The withdrawal agreement set up a odd situation, which will be news to English barley joint committee to resolve trade issues. The Government providers, in which they cannot sell to Scottish distilleries. have chosen not to use it. So, as Ed Miliband argued They have not been barred from doing so since 1933 in in his powerful philippic in the other place, the the first legislation, and there are no restrictions. It Government were proposing to breach international will be news to the distilleries, which buy their malted law for bogus reasons. barley from Simpsons Malt in my hometown in Berwick, However, having reflected on all this, I cannot in England, that there is somehow some threat to this. support the amendment to the Motion and would like I hope the Minister can clarify that point. Under to explain why. To my mind, international law is not labelling, composition and standards, that will be covered the main issue. Never before, many noble Lords have by the common framework. In fact, that framework said, have a British Government sought to break was published on 9 October, so where is the necessity international law, but never before has Britain faced a for these elements in the example the Minister gave? problem of extricating itself from as complex a political, The joint ministerial council approach on the economic and legal structure as the European Union. frameworks was outlined in a joint communiqué with Law, as the noble Lord, Lord Howell, explained, has Ministers on 16 October 2017, in which it outlined the to take account of political context, and as my hero, definition and principles of enabling John Maynard Keynes, once said in answer to legal “the functioning of the UK internal market, while acknowledging fundamentalists of his day: … policy divergence Frameworks will respect the devolution “I want”— settlements and the democratic accountability of the devolved legislatures … based on established conventions and practices.” lawyers— Subsequently, last year, in the Cabinet Office update, “to devise means by which it will be lawful for me to go on being sensible in unforeseen conditions.” which the Minister responding to this debate is responsible for, the government frameworks said that a dispute Noble Lords know very well that not every contingency resolution mechanism was progressing: can be foreseen. “The UK Government continues to seek development of a So I ask noble Lords to judge the legislation before shared approach to the UK Internal Market” the House on three different grounds: sufficient reason, and motive, and consequences. On the first, I agree with the argument that sufficient reason has not been “we are considering how to manage … framework areas” established for the override of Part 5 at the Government’s going forward. However, this Bill, as the Constitution discretion. However,by Amendment 66, the Government Committee reported, gave two days’ notice to the have agreed to obtain parliamentary approval before devolved Administrations of the text and has a litany activating Part 5, and I think that is a reasonable of over 30 areas in which there will be no consultation compromise between those who think that Part 5 is or limited consultation, which will be overlooked, and unnecessary and those who think it is essential. in which England will be treated differently from the Secondly, I sympathise with the argument that the other nations. Government signed the agreement in bad faith in It does not have to be this way. Both Canada and order to meet the Prime Minister’spolitical requirements. Australia, which the Prime Minister is very keen to However, most noble Lords have ignored the argument quote, introduced internal markets in the 1990s. Canada that it was always going to require some bad faith and 1335 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1336

[LORD SKIDELSKY] territories should there be any disintegration of the legal creativity—to coin a phrase—to make the Brexit UK market, so there are strong incentives for all those decision consistent with the Good Friday agreement. involved to agree common frameworks. When Ed Miliband said On the second question, by bringing forward a Bill “A competent Government would never have entered into a in this form, the Government have reached for the binding agreement with provisions they could not live with”,—[Official proverbial sledge-hammer to crack a nut. For example, Report, Commons, 14/9/20; col. 52.] the UK Government previously agreed with the devolved I am afraid that he set the bar of competence much Administrations a set of principles for common too high. Contrary to the view of the noble Baroness, frameworks. One of these is to Lady Humphreys, deliberate ambiguity has always “maintain, as a minimum, equivalent flexibility for tailoring been the hallmark of statecraft. policies to the specific needs of each territory as is afforded by Finally, what will the consequences be? The legal current EU rules”. fundamentalists say it will damage our ability to get However,the regime created by the Bill is more restrictive, an agreement, because it will damage trust in the with fewer public policy exclusions, than the EU Government’s word—a powerful argument. The framework it replaces. Whereas common frameworks pragmatists believe it will force the EU negotiators to are subject to joint decision-making involving the UK come up with a workable exit formula. Time will tell Government and the devolved Administrations, the whether the Government have calculated the balance Bill confers on UK Ministers extensive delegated powers of risks properly. My own feeling, contrary to much to alter devolved competence and in places to exercise noble rhetoric, is that we are still largely in the world them without even the modest requirement to consult of posturing. That is the way the EU and many other the devolved Administrations. international negotiations work: public posturing followed All this strikes me—and the Constitution Committee by a last-minute outbreak of common sense. I think —as an unnecessarily heavy-handed approach to that is the way it will turn out, and I do not want to do balancing the demands of free trade within the UK or say anything that will weaken the hands of our own with respect for the roles and responsibilities of devolved negotiators. institutions. Devolution is now integral to the UK’s 6.21 pm constitutional arrangements. At a time of national crisis, when it has never been more important for Lord Dunlop (Con) [V]: My Lords, I declare my central and devolved Governments to work together interests as independent reviewer of the UK Government’s effectively, to risk destabilising those arrangements union capability and as a member of your Lordships’ seems careless, to say the least. Constitution Committee, whose detailed report on the The broader question for the House and for this Bill I commend, like others, to the House. union Parliament is: do we want our country’s future I doubt there is anyone in this House who does not to be all about endless intergovernmental competition support the goal of ensuring our UK domestic market and conflict or about co-operation and confidence? I continues to work seamlessly at the end of the EU am in no doubt that a modern, thriving, forward-thinking transition period. This market, and the trade it generates, and inclusive UK union needs to look and feel like a is, as the Minister said, an engine for providing jobs joint endeavour, a union less preoccupied with battling and prosperity in all parts of our country. The UK over competences and more concerned with winning domestic market is an essential feature and asset of over hearts and minds.That is whyI hope the Government the union, so the Government are right to want to will demonstrate enlightened and imaginative leadership protect frictionless trade within the UK once we leave by working constructively to amend the Bill. the EU’s legal orbit. They are right also to want to be able to guarantee to international partners that the 6.25 pm terms of new trade agreements will be implemented throughout the UK. Today, the assurance regime is Lord Hain (Lab) [V]: My Lords, I was delighted to provided by an EU single market framework, and I listen to my noble friend Lady Hayman, who will add agree with the Government that, going forward, we high-quality, youthful value to our Labour Benches. need an equivalent UK framework. This Bill will breach the European Union withdrawal There are, however, two questions that need to be treaty, freely entered into by the Prime Minister less asked, and have been asked during the debate. Is this than a year ago, and the rule of law, as the noble and Bill necessary to achieve the Government’s stated aims? learned Lord, Lord Judge, and my noble and learned If the Bill is necessary, perhaps as a belt and braces friend Lord Falconer so eloquently argued, significantly insurance policy, is this the right way to legislate? backed, among others, by a very recent Conservative On the first question, I am doubtful. The European Europe Minister,the noble Lord, Lord Bridges.It has also Union (Withdrawal) Act 2018 already provides a further damaged British-Irish relations by undermining mechanism for constraining the ability of the devolved the Ireland-Northern Ireland protocol, necessary to Administrations to diverge, while a common frameworks avoid a hard Irish border. As with the Trade Bill, there process is taken forward to agree UK-wide approaches is an urgent need to insert clear protections for two for the powers flowing back from Brussels—a process international agreements the United Kingdom has that has been yielding results. As we have heard, the entered into and ratified recently: namely,the Belfast/Good devolved Administrations are also already required by Friday agreement and that very protocol. law to adhere to international obligations, including As the Bill undermines the Good Friday agreement trade treaties. Moreover, the Government’s own analysis of 1998, US leaders have stated bluntly that it could makes clear the considerable economic costs for devolved jeopardise any chance of a UK-US trade deal. Without 1337 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1338 the unifying framework provided by the EU, responsible of red tape as we leave the European Union would be for policies including state aid, the environment, required to endure extra layers of it. I welcome the agriculture, food manufacturing and animal welfare, Government’s assurance to the contrary, but we must the Bill represents a clear power grab by London from continue to do all we can to ensure that there are no the devolved Governments. The Prime Minister has long-term, damaging barriers between different parts suddenly discovered the benefits of having a single of our nation. market—the UK internal market of 66 million people, The withdrawal agreement and the political declaration, rather than the much larger and richer EU single although in parts unsatisfactory,recognise the autonomy market we have been a member of, of over 500 million. of the EU and the UK. However, a unique difference Under the Bill, not only is state aid policy to be remains between the two parties: while the United returned from the EU to Westminster but the UK Kingdom is a legally defined and globally recognised Government also get new financial powers.Both proposals sovereign nation-state, the EU is simply an international will further weaken the current intergovernmental body. During its history, and at the outset of the arrangements, whose fragility has been exposed by withdrawalnegotiations,theEUrecognisedthesovereignty Covid-19. Perhaps we should not be surprised that the of the United Kingdom. Since then, regrettably, Government adopt the posture of a public schoolyard negotiators and some spokespersons appeared to disregard bully when it comes to the devolved nations of these this sovereignty by ignoring the settled status of Northern islands, where No. 10 seems to believe it holds all the Ireland, thereby interfering in internal matters and cards and has nothing to lose—apart from perhaps potentially undermining the defined constitutional status destroying the United Kingdom. of Northern Ireland. Comments from officials in Brussels For more than three years, the Governments of have been unhelpful and have shown a disregard for Wales, Scotland and Northern Ireland have sunk their Northern Ireland’s unique and deeply troubled past, very large political differences with the UK Government our shared future and the UK’s legal status as a over Brexit in order to address its fallout in terms of sovereign nation. managing the UK internal market. This led to the Though I welcome the Bill, it remains true that common frameworks programme, which was intended businesses in Northern Ireland are confused. They to take the areas of the economy where—and I stress may still have to adhere to conflicting regulations. this—the UK Government believed there to be a risk There may still be divergence and associated costs. A to the integrity of the UK’s internal market from the scenario is still possible whereby a firm located in removal of the constraints to regulate in accordance Belfast is unable to benefit from financial assistance with EU rules. This Bill brushes all those common that is available to one in Birmingham or Swansea, frameworks arrogantly aside. and therefore finds it advantageous to relocate. Can Whether or not there is an orderly end to the the Minister specify whether the Government plan to transitionperiodinDecember,Brexitwillhaveimplications include Northern Ireland in the provisions outlined in for the totality of the relationships between Westminster Clauses 42 and 43? and the nations and regions of the UK, and for those In the other place, my party sought to allay fears by on the island of Ireland, with the financial provisions ensuring, through amendments, that the Government of the Bill tightening Westminster control over economic, carried out impact assessments. Our purpose was to industrial and regional development policy throughout bring some reassurances to businesses that are potentially the UK. This is likely to fuel calls for indyref2 in unfairly disadvantaged compared to their counterparts Scotland and, eventually, a unification referendum in in mainland Britain. It is essential that we ensure the Northern Ireland. It may be that this Bill serves to long-term prosperity of Britain and the viability of hasten the break-up of the UK, which is another businesses. One part of our nation should not be left strong reason to oppose it. behind simply because of the proximity of a land border. I firmly believe that there is widespread support 6.29 pm for a sensible free trade agreement with the EU that Lord Browne of Belmont (DUP) [V]: My Lords, allows the UK to establish itself as a strong. outward- when we, as one nation, fully transition out of the EU, looking trading nation. A free, independent and United we must face the new reality and its challenges together Kingdom can, and should, be a major global force on and continue to work to maintain and grow the links the world stage once more. I support the Bill. and ties between all four corners of this country. That means building on the work to date and improving 6.33 pm relations throughout the United Kingdom. For the Lord Cavendish of Furness (Con) [V]: My Lords, it avoidance of doubt, I emphasise that my party, the is a pleasure to follow the noble Lord, Lord Browne. I Democratic Unionist Party, believes that the progression have heard it suggested that there is no need for this of the Bill is of the utmost importance. Bill. Indeed, such doubts are rehearsed by the distinguished Vast swathes of the withdrawal agreement were Select Committee on the Constitution in its 17th report. wholly unsatisfactory, as in essence they created an This may be technically and legalistically correct. However, unthinkable scenario for anyone who values the United I would contend that such a view overlooks a significant Kingdom: a virtual border in the Irish Sea. Strands of historical consideration. Before we joined what was to the withdrawal agreement also made provision for a become the EU, a single unified internal market was series of potentially complicated and burdensome checks for 300 years the constitutional bedrock of Great Britain, on food and agricultural products entering Northern extended to Ireland 100 years later. The absence of the Ireland from mainland Britain. As a result, some in taxes, custom duties and other restrictions that were Northern Ireland, instead of benefiting from the removal so crippling to much of mainland Europe created the 1339 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1340

[LORD CAVENDISH OF FURNESS] might alter its tone. I reflect that on the great issues of conditions to usher in the industrial revolution. Now, the time, and many others, this House has put itself at as we prepare to leave the EU, it is imperative that we odds with the Government, with the other place and, legislate to restore the conditions of a single UK market, to judge by the general election, the people of this tailored to the 21st century. Yes, the Bill is necessary. country. It bodes ill for an institution to persist in There can be no doubt that the Government find saying that it knows better than the people it is supposed themselves in a bind, one that is to a large extent of to serve. their own making. Furthermore, the European Union Select Committee, of which I have the privilege of 6.38 pm being a member, has long warned of the problems that Lord Howarth of Newport (Lab) [V]: My Lords, I have now become so critical. I was also deeply saddened add my warm welcome and congratulations to my that a Minister of the Crown should speak in the other noble friend Lady Hayman of Ullock. Despite the place as he did. As my noble friend Lord Bridges said, case just made by the noble Lord, Lord Cavendish of it is no mitigation to say that others, including the EU, Furness, it is a puzzle to me that the Government have breach international law. However, there appears to be introduced this Bill, given the commitment agreed in no agreement among senior lawyers as to the legitimacy the Joint Ministerial Committee—of Ministers of the of the proposed measures that have given rise to such UK and the devolved Governments—to develop by controversy. I cannot agree with the Constitution consensus common frameworks for the UK internal Committee’s witness who said: market. We are told that good progress has been made “Let us accept that the Bill breaks the law.” on that yet, with perfunctory consultation, the Bill has The Bill does not break the law, nor does it threaten to been brought in. do so. According to Mr Martin Howe QC, no breach The Bill contains no mention of common frameworks. of international law could possibly occur until regulations It takes powers to override devolved legislation by under the clauses in question were actually brought means of regulations passed at Westminster and to into force; even then, whether or not making such spend money in areas of devolved competence.It contains regulations would amount to a breach would depend only patchy and vague provisions for future consultation on the circumstances then prevailing and the reasons on the exercise of the powers that it creates.It has provoked for making those regulations. indignation in Wales, Scotland and Northern Ireland, I have heard it said that the inclusion of the and legislative consent is highly unlikely to be forthcoming. controversial clause is part of a negotiating tactic. The Bill is disrespectful to the devolved Administrations. There are further suggestions that the tactic has worked, When the union is under great stress from Brexit and to the extent that the EU withdrew from its indefensible Covid, it is also reckless. position of threatening to withhold third-country listing. The Bill is disrespectful towards this Parliament. It The problems that could arise from the failure to contains egregious Henry VIII clauses, most notably address the nightmare so-called direct effect could Clause 53(2), which says: have catastrophic consequences, something that has “Any power to make regulations under this Act includes been largely ignored by the media and, sadly, has power … to amend, repeal or otherwise modify legislation.” earned scarcely a mention in contributions today. The Bill is disrespectful towards our treaty partners. Scandalously, the Opposition Front Bench was entirely It authorises breaches of the Northern Ireland protocol silent on the matter. and the withdrawal agreement. The Government offer I support a Government who uphold and defend as justification that the EU may intend to interpret the country’s vital interests. I sometimes gain the ambiguities in the withdrawal agreement—ambiguities impression that I am in a minority in your Lordships’ that the Government were happy to write in a year House. I hear it claimed that objections to the Bill are ago—to the detriment of the UK’s internal market unrelated to Brexit. It is certainly the case that many and the Good Friday agreement. Ministers may see noble Lords, much to their credit, have buried their this as a suitable tactic in the Brexit negotiations. It pain and sadness occasioned by our leaving the EU may also be a reckless reminder to other countries not and chosen to move on. However,this House is essentially to trust perfidious Albion. a remainer House and its committees are remainer The brutal declaration in the House of Commons committees. There is nothing dishonourable in that by the Northern Ireland Secretary that the Government but it seems to have led your Lordships’ House to are deliberately taking power to break international move from acting as a revising Chamber to being one law sounds a loud alarm. The Bill is disrespectful to of opposition, a position apparently supported by the the rule of law and the judiciary. In this regard it noble Lord, Lord Butler of Brockwell. echoes thinly veiled threats to the judiciary in the I have been a Member of this House for 30 years Conservative manifesto, the notorious remarks in and I remember being on the Opposition Benches Conservative Home by Suella Braverman shortly before with a built-in majority. I recall how we acted with she was appointed Attorney-General, and attacks on considerable restraint, as we certainly should have lawyers by the Home Secretary and the Prime Minister done. In those far-off days, Cross-Bench Peers tended at the Conservative Party conference. to vote only on matters of their field of expertise while The Government make the case in self-exculpation the Lords Spiritual were reticent in displaying their that their defiance of international law is legal under partisanship. It all seems such a long time ago. I domestic law.They also insist that they are not precluding mention this because it occurs to me that if this House judicial review, although in Clause 47 they go to extreme is serious about trying to influence the Government, it lengths to insulate regulations made under the Bill 1341 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1342 from challenge. The Government cannot justify what breach of the law at all. If I give a knife to a person of they are doing by quibbling. Constitutionality entails unstable temperament with the foresight that he will acting in a spirit of respect towards the rule of law, use it to stab somebody, I break the law. It is no defence including both international law and, in our domestic to say that I thought that he would only use my knife jurisdiction, the effective ability for persons to have “potentially”. These clauses are an instrument positively redress in court for the misuse of executive power. designed to empower Ministers, first, to act illegally It consists in respecting conventions which, though and, secondly, to ensure that the powers of the court uncodified, ought to be binding on Ministers and on to stop them by judicial review are removed. It is as Parliament. These conventions include respect for the though I told the potential murderer, “Look, here’s a role of other institutions which form part of the knife and I guarantee that you will not be prosecuted constitution, among them the devolved Administrations if you use it”. The noble Lord, Lord Lamont, said, as well as the judiciary, and therefore acting with “Well, all they’re doing is threatening to rescind an restraint towards them. Proper government keeps the agreement they should never have made, to strengthen convoy moving along together. It shows itself to be their negotiating position”. Well, it has not worked, trustworthy. The doctrine of the omnicompetence of has it? As the noble Lord, Lord Butler, said, it is a statute, undoubtedly valid, is gratifying to the vanity threat which should never have been made. of parliamentarians and convenient to Governments, It would have been 1945, with Christmas approaching, but such ill-judged deployment of statutory power as when my father decided to make me a toy gun. He we see in this Bill risks imposing intolerable stresses on carved and varnished a wooden stock and added black the cohesion of the constitution and of the United piping to look like a barrel. On Boxing Day, I proudly Kingdom. took this toy gun out to play, but it was quite a tough The Bill is an expression of a loutishness that area. It is in my mind’s eye now. I was approached by characterises this Government’spolitical dealings. Where two youths who were four or five years older than me. will this debasement of our democracy take us if we They threatened to bash my face in if I did not hand collude in it? the gun over to them. I did so, and you can see that it rankles after 75 years. A threat is not in the long run a Baroness Bloomfield of Hinton Waldrist (Con): I good negotiating tactic. You may succeed for the remind the noble Lord of the advisory speaking time. immediate moment, but the resentment lasts for years; We cannot go beyond midnight, and if everybody goes the reputation is damaged beyond repair. Why should over, some Lords will have to wait until tomorrow to the European Union believe any compromise the Prime speak. Minister puts forward this coming week on state aid, fisheries or the like? He has weakened his bargaining Lord Howarth of Newport (Lab) [V]: In this House position. we must do all we can to limit the damage that the Bill The Lord Chancellor justifies taking these powers causes, starting by supporting the amendment of the on the basis that there noble and learned Lord, Lord Judge. “could be a material breach by one of the parties”— he does not say which party or what breach—of the 6.43 pm withdrawal agreement. Do you have a better point, Lord Thomas of Gresford (LD) [V]: My Lords, since Mr Buckland? Robert Buckland comes from Llanelli. I am speaking from Hayman House, my home in When the noble Lord, Lord Campbell of Pittenweem, Gresford, it would be churlish of me not to welcome referred earlier to the oath of Queen’s Counsel, I the noble Baroness, Lady Hayman, and congratulate remembered that it was another Llanelli boy and Lord her on her excellent maiden speech. Chancellor, Lord Elwyn-Jones, who took my oath of On 2 October 2019 the Brexit Secretary, Stephen office in the Moses Room some 46 years ago. What, I Barclay, told the EU Committee of this House that wonder, would he have thought of such a manifest Northern Ireland businesses would have to complete breach of his oath of office, which commences: “I export declarations for goods moving from Northern swear by Almighty God to uphold the rule of law”? Ireland to the rest of the UK. Shortly afterwards, on 7 November, the Prime Minister told exporters in 6.48 pm Northern Ireland, in answer to a question, that if any The Duke of Wellington (CB) [V]: My Lords, it is a business was asked to fill in customs declarations, he privilege to speak in this debate, but I notice that only would direct them to throw the forms in the bin. That a handful of noble Lords appear to support the Bill as is his typical jocularity. He said: presently drafted. I want to put on record that I very “There will be no forms, no checks, no barriers of any kind. much welcome the intervention of the most reverend You will have unfettered access.” Primate and the letter signed today by the Archbishops. That is what the provisions in Clauses 44 to 47 of this This Bill has a significance for this House considerably Bill are all about: to save face. The Prime Minister cannot greater than almost any other Bill that we have been admit that he told off-the-cuff porkies—or more likely asked to consider. Having over the weekend read the that he did not understand the written agreement he excellent report by the Select Committee on the had signed. Constitution, I am even more concerned as a layman The Government say that the Bill does not in itself by certain clauses in it, particularly Clauses 44, 45 and, breach the written agreement: only potentially, as the especially, 47. In a single piece of proposed legislation, noble Lord, Lord Forsyth of Drumlean, argued earlier. the Government have managed to antagonise almost The noble Lord, Lord Cavendish of Furness, went everyone, including a multitude of counterparties and further a moment ago and asserted that there was no international public opinion. 1343 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1344

[THE DUKE OF WELLINGTON] about the legality of the invasion of Iraq from that First, many members of the United States House of reached by the Labour Government. To them, it was Representatives are concerned about any move that not black and white; it was a matter of opinion. could undermine the Good Friday agreement, and they have made it clear that this legislation puts at risk In terms of degree, my belief in the rule of law, the future approval by Congress of a US-UK free trade which I consider to be probably the most important agreement. Secondly, the Government have antagonised principle that we espouse, has not stopped me from the European Union, which sees the legislation as time to time—I hang my head in shame today—parking abrogating parts of the withdrawal agreement signed on a double yellow line. I do not suppose that I am the only 10 months ago. Thirdly, they have antagonised only noble Lord to have broken the law at some time the devolved Administrations, who feel that they have or another. It would be hypocritical of us not to admit not been properly consulted and that the legislation goes that we can all be flexible when it suits us. against certain parts of the various devolution settlements. I share with others regret that my right honourable The Government have in fact admitted that in certain friend the Secretary of State made the statement in the respects the Bill breaks international law. other place that set this hare running. I do not know It is therefore difficult to believe that government whether it has been suggested that the Government Ministers and their political advisers have really given felt that that declaration from the Dispatch Box would sufficient thought to the consequences of this proposed provide some form of legal cover in the event that legislation. Clearly, legislation is required to ensure some remainer obsessive decided to run another case that an internal market can operate in these islands, to the Supreme Court in the hope that that court but it was always inevitable, in Mr Johnson’s withdrawal would be prepared to compromise its reputation by agreement, that there would have to be some sort of indulging in another political judgment. documentary border in the Irish Sea. That was not true of Mrs May’s deal, which unfortunately the other It is primarily a political and not a legal matter place repeatedly rejected. However,the Northern Ireland when a foreign power seeks in negotiating an agreement, arrangements can still be negotiated in the joint committee, supposedly entered into in good faith, to use that and as for the arrangements with the devolved negotiation deliberately to interfere with the delicate Administrations, these can surely be negotiated within relationship between the component parts of an the common framework process. So parts of this Bill independent nation state, such as those of Great Britain would seem unnecessary—a word so liked and used by and Northern Ireland. It is perfectly obvious that the Ministers when rejecting other Lords amendments to European Commission very early on worked out that other Bills. this was our Achilles heel, and has done its level best to exploit this for its own ends. That is not the conduct The most effective way in which this House performs of a good neighbour and trading partner acting in its duty is to ask the Government and the other place good faith; that is the behaviour of someone who does to think again. Surely there could be no more important not wish us well. It is in effect a trap, deliberately Bill than this one on which to perform that duty. placed where it would do the most harm. But what Having read the various reports from the committees Government, having spotted this trap, would continue of this House, we must ask the other place to think to blunder on, rather than take whatever measures again, particularly about Part 5. Should the Bill return they could to avoid it? It is the Government’s duty to to us unamended, it may well be necessary, as the avoid a trap, almost at any cost, which is precisely noble Lord, Lord Butler, suggested, to do so a second what the Bill seeks to do. time. In the meantime, I will vote tomorrow for the amendment in the name of the noble and learned A final point on the issue of national reputation: Lord, Lord Judge, when it is put to a vote. who is it, I wonder, who will think so much less of us for having ducked this punch, aimed as it was below 6.52 pm our belt? For example, I am not very interested in Lord Mancroft (Con): My Lords, I would not dream China’s view of our trade arrangements with Northern of questioning the judgment of the noble and learned Ireland, particularly in comparison with their behaviour Lord, Lord Judge, in matters of the law—of course I towards Hong Kong. Nor will I take any lectures from would not—but I would say that the rule of law, as a Mr Putin about the rule of law. President Trump matter of principle, is as important to me as it is to any thinks we are mad not to have walked away from the noble Lord, however learned. However, like many legal EU years ago, and Mr Biden has already made his matters, it is a question of fact and degree. I am not a views—firmly in line with those of his Irish republican lawyer but I have been involved in enough litigation to voters—clear, and there is no changing that. The know that two Silks of equal distinction can produce current members of the EU obviously think the worst very different and equally persuasive arguments for or of us, and they always have done. But who cares? against almost anylegal question that anyof us could pose. I do business in South America and Africa, and no These things are not, as some would like to have us one I have ever met in either of those continents has believe, black and white. Like everything in life, they come the remotest interest in this squabble, but they would in shades of grey. To my father, as a newly qualified all love to do business with us. Our Commonwealth barrister in 1938, the invasion of Poland in 1939 was friends are not fooled by this stuff. Saudi Arabia and not grey; it was completely black and white. However, our allies in the Gulf share the same view as their new having sat through the debates in your Lordships’ Israeli friends—that business is business, a view shared House in 2003, to me it was clear that many of the by our Pacific trading partners. If our reputation is lawyers in this House came to a very different conclusion harmed, I am struggling to see with whom. 1345 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1346

6.56 pm 7.01 pm Lord Morris of Aberavon (Lab) [V]: My Lords, Lord Garnier (Con): My Lords, I begin by as the Attorney-General, I had a duty to advise Ministers congratulating the noble Baroness, Lady Hayman of of their legal obligations. This was not always Ullock, on her excellent maiden speech and by saying straightforward, and I am particularly aware of how I how much I look forward to hearing from my noble strove to achieve and advise compliance with the law, friend Lord Sarfraz very shortly. particularly in Kosovo and the rules of engagement in Because of Part 5, very few are prepared to give the Sierra Leone. Parliament and Ministers accepted my Bill their wholehearted support. I am not one of them, advice, though as a leading counsel I had to defend the and, in the event of a Division tomorrow, I will without United Kingdom before the international court in The hesitation support the regret Motion moved by the Hague. noble and learned Lord, Lord Judge. To do otherwise As the greatly admired Lord Bingham wrote in his would be wrong as a matter of principle, but as a book The Rule of Law: former law officer, like the noble and learned Lord, “The rule of law requires compliance by the state with … Lord Morris, and as a Member of the other place and international law” of this House since 1992, it would also be a matter of and national law. Ministers, civil servants and our personal shame to agree to such flagrant abuse of the Armed Forces are bound by the need to observe rule of law and our international treaty obligations. international law. The rule of law is not negotiable; to defer breaches does not alter the fact that Parliament Set against last year’s unlawful Prorogation and the is being asked now to legislate in breach of its obligations. fact that Mr Dominic Cummings is the instigator of It is similar to blessing a potential burglar or murderer Part 5 and is the latest person to have been found in for any future wrongdoing. contempt of Parliament, I am not surprised, although We have already lost one esteemed and distinguished I ought to be shocked, that, first, a Cabinet Minister law officer. Is it not the time that we have a clear could say that the Government intended to break statement on where they stand from the Lord Chancellor, international law,and, secondly,that the Attorney-General who has a statutory duty to maintain the rule of law, could apparently advise the Government that what as well as the remaining law officers, who are clinging was proposed was defensible as a matter of law. It to office? plainly is not, even if some may think it has political advantages. I turn now to devolution legislation. As one of the architects of Welsh devolution, which I began as a I have heard excuses for Part 5, which contains graduate student in Cambridge in 1953 and culminated provisions that unquestionably breach international in 1999, I regard it as my duty to safeguard the law or authorise such breaches, from Members of settlement. Once powers are devolved, they cannot be Parliament not previously noted for their interest in withdrawn. The Bill drives a coach and four horses questions of international law and from government through the devolved settlement. The Welsh Government Ministers. They appear to confuse the sovereignty of tell me that the United Kingdom Governments have Parliament with the Government’s treaty obligations. worked collaboratively on the common parliamentary If sophistry is an unparliamentary description of what programme for three years; this Bill neuters it and we have been asked to believe, let me say instead that hollows out the powers of the devolved legislatures to the explanations for Part 5 are risible. They amount to regulate policy areas. There is no time to give examples. bad law, poor diplomacy and inept politics. In the memorandum from the Welsh Parliament, it Let us be clear: the European Union withdrawal spells out its grievances. agreement is not some ancient treaty entered into by I will make two points. First, the Bill contains, for two medieval monarchs when our customs and usages the first time, powers for the UK Government to spend were very different, nor is it as difficult to understand money over the heads of devolved Ministers—[Inaudible.] as the Schleswig-Holstein question. It is only a year I ask the Minister to confirm whether that interpretation since the Prime Minister agreed to it—not just bits of by the Welsh Government is right. Secondly, the Bill it, but all of it, including the Northern Ireland protocol, seeks explicitly to amend the Government of Wales the clauses referring to EU law, and the trading Act to add the design and operation of state aid policy arrangements between Great Britain and Northern to the list of reserved powers. Again, examples have been Ireland, and Northern Ireland and the Republic of given. Could we have a statement on that issue and on Ireland. It is barely six months since Mr Johnson, in whether the Welsh Government are right? Again, I would the triumphant afterglow of the general election, like the Minister to confirm what the position is. recommended it to Parliament for translation into The brief for the Bill states that the devolved United Kingdom law. Administrations will see their powers increase significantly Wehave not heard publicly from the Attorney-General. following the transition period and the transfer of EU It is entirely normal for the lawofficers to keep confidential powers, and will be able to use new and existing powers their advice to the Government, albeit that the Attorney- within the internal market system. Who is right: the General has published a digest of the opinion of the Welsh Government or the Minister, as he set out in his three lawyers she selected to advise her. Its conclusions speech? Is that factual brief correct? are not convincing, save perhaps as a political manifesto. I will ask one further question: is it the Government’s Certainly they did not impress the Treasury Solicitor, wish and intention to go back on the settlement of Sir Jonathan Jones, who resigned rather than be party devolution over 20 years, or is the Bill an inadvertence to this unlawful policy. Nor did they impress my noble that will undermine the unity of the United Kingdom? and learned friend Lord Keen of Elie, who, despite Is that what they want? valiantly trying to bring the Government to a proper 1347 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1348

[LORD GARNIER] whether they would be prepared to buy a used car from understanding of the rule of law and their obligations us. Even when we seek to compel rather than convince, freely entered into as parties to international treaties, both our hard and soft power are most effective when resigned as well. arrayed alongside that of our partners, who know the However, it is not just a breach of international law; quality of our contribution, who know that we can be Part 5 also undermines our domestic law. Clause 47 is relied upon to fulfil our undertakings and who trust us. breath-taking. It will give Ministers the power to make It is clear that certain clauses within Part 5 of this regulations and renders those regulations unassailable, Bill have already undermined international trust in the even if they break the law. Thomas Cromwell would United Kingdom. EU leaders are looking for harder be proud of this clause. It prevents legal challenge so and more specific conditions in any new agreement that no court can rule against them. Government by with the UK because they now view us as untrustworthy. ministerial decree is certainly not what we should see Our power in the world has been diminished by this in a parliamentary democracy. Bill and will be diminished further if it is passed Under Section 25 of the Theft Act 1968, “Going unamended. This seems a strange way to advance the equipped” is a crime. It is an offence, when not at cause of global Britain. home, to be in possession of an Therefore, there are very clear practical reasons for “article made or adapted for use in committing a burglary or theft”. doing something about Part 5, but, above all, there is Part 5 is the equivalent of the burglar’s jemmy. the fundamental issue of principle. The Government Government and law officers should not advocate exercise authority through the law; if they undermine their use and expect to retain the respect of Parliament respect for the law, they undermine both themselves or the legal profession. and the stability of our society. This is surely not the path we,as a nation, wish to follow.I urge the Government to think again, and I shall certainly support the 7.05 pm amendment of my noble and learned friend Lord Judge. Lord Stirrup (CB): Like other noble Lords, I wish to focus today not on the broader provisions of this 7.10 pm Bill but on Part 5. Giving Ministers the power to break Lord Sarfraz (Con) (Maiden Speech): My Lords, it the law seems to me an astonishing thing for Parliament is with great pleasure that I stand to give my first even to contemplate, let alone agree to. I quite understand contribution in your Lordships’ House. I congratulate that there are situations where there may be argument the noble Baroness,Lady Hayman, on her very thoughtful about what the law is or whether particular matters maiden speech. fall within the provisions of a given law, but that does I have not been a Member long, but I have learned not appear to be the case here. The Government have that this House is full of very kind and generous people acknowledged that they wish Ministers to be able to who have been incredibly welcoming to me. I would break a law. The fact that it would be in a “limited and like to thank the wonderful doorkeepers, Black Rod, specific way” seems to me to be irrelevant. Why should the Clerk of the Parliaments and all the staff for their the residents of Greater Manchester not now feel that warm welcome. I am very grateful to them, as well as they can break the law in a “limited and specific way”? to my supporters, my noble friends Lord Goldsmith of The Government have advanced the argument that Richmond Park and Lord Choudrey. I am particularly this is a provision that would only be applied if the EU grateful to the Prime Minister for giving me an opportunity had previously acted in an “unreasonable” way in to be part of your Lordships’ House. I have learned implementing the withdrawal agreement. However, as about the procedures of this House from my Whip, my we have heard many times, there is already a dispute noble friend Lord Borwick, and my mentor, my noble resolution mechanism in place to deal with this situation, friend, Lord Leigh of Hurley. There is a tremendous and, if this is deemed insufficient and the Government amount I hope to learn from Members of this House see the need for new primary legislation, why not enact across all parties, who have had such distinguished it once the other party has patently broken faith? and diverse careers. Emergency legislation could then be made specific and I grew up in Pakistan in a family with a tradition of passed swiftly, and the UK would be reacting to a military service. Both my grandfathers were officers in breach of trust rather than creating one. the British Indian Army and my father was commissioned However, I wish to make another, broader point as a naval officer at the Britannia Royal Naval College. about power this evening. In setting and carrying out I could not serve in the military because I have asthma, its foreign policy, the UK is essentially seeking to but I now have the opportunity to serve in a different persuade countries to do things they would otherwise way from the floor of this House. I understand that not do or to dissuade them from doing what they maiden speeches are meant to be uncontroversial, so I otherwise would. Such persuasion rests upon the ability will keep my contribution short and sweet. to convince or to compel, which, in turn, is based In global Britain, entrepreneurs in the technology upon the power that we wield in the international industry will play a huge role. I am a proud member of arena. The underlying foundation of that power is the ethnic-minority community of the United Kingdom undoubtedly our economic strength, but it also depends and I would like to work with my own community so upon a degree of moral authority. that we can continue to make important contributions If we are to convince others of the force of our in the global economy. For example, the CEOs of arguments, they need to know whether they can rely Google,Microsoft, IBM, Mastercard and Adobe—among upon what we say,whether we deliver on our obligations, many others—are all from ethnic minorities. I refer to whether we are steadfast or blown by the latest wind— my interest in technology venture capital as set out in 1349 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1350 the register. We in the United Kingdom have been at sold in part of the UK must be available for sale in the the forefront of innovation for centuries. Many people rest of the country—the Scottish government said it believe that venture capital was invented in Silicon would, Valley but it was actually invented in Birmingham. In “effectively be limiting standards across the country to the lowest the 18th century, members of the Lunar Society would of the four nations.” meet monthly to discuss, demo and fund the greatest I just cannot understand their pessimism. As for it technology innovations of their time. being a power grab, it was no surprise that MSPs In my career, I had the privilege of observing that voted 90 to 28 to reject a legislative consent Motion. It one of the determining factors of success and failure is is clear that the SNP would really like to hand back powers entrepreneurs having access to a strong domestic market. to the EU and/or keep most of them for themselves as As global as technology markets are, entrepreneurs an independent country. I joined the Conservative and who can quickly and easily build a foundation in Unionist Party, and I support this Bill’s intention to domestic markets are often the ones who have the maintain high standards across the whole of the UK. necessary platform to then scale internationally. The Like the noble Lord behind me, I am not a lawyer, history of virtually every successful technology company nor are most of the people in our country. They want started with early commercial wins in a sizeable domestic clarity. I was a reluctant remainer back in 2016 but I market. We are fortunate that the United Kingdom is am not today: I am neither reluctant nor a remainer. a strong domestic market, especially for entrepreneurs. Permit me to put these last few words simply—the sort We must make sure that our start-ups—whether in of words that would be uttered in a pub, if we could space technology in Glasgow, cybersecurity in Belfast, get to one. We were a member of a club of 28, where, digital health in Cardiff, artificial intelligence in Oxford, throughout, there was a rocky relationship. We voted life sciences in Cambridge, the internet of things in to leave and tried to negotiate a mutual and sensible Manchester or virtual reality in Liverpool—all have exit in good faith, but it seems that the good faith has access to a strong, stable UK internal market with not been reciprocated. There is still time for the EU to certainty of rules and regulations. I am therefore act in good faith, and there would be no need to break pleased to support this Bill in your Lordships’ House. any laws at all. But, ultimately, we can create our own Finally, I would like to thank my family, my parents, rules for our own club: the club of the United Kingdom. my wife and my beautiful daughters for their long-standing love and support, and I thank noble Lords for giving 7.17 pm me an opportunity to participate in this important Second Reading. Baroness Bryan of Partick (Lab) [V]: My Lords, I congratulate my noble friend Lady Hayman of Ullock 7.14 pm and the noble Lord, Lord Sarfraz, on their maiden speeches of excellent quality. It is really good to have Lord Polak (Con): My Lords, I am delighted to two younger Members join us. I must also congratulate follow my noble friend Lord Sarfraz and congratulate the Government on doing so much to bring about him on his excellent speech. I also congratulate the harmony.They have managed to unite so many speakers noble Baroness, Lady Hayman of Ullock. in this Chamber and all but one of the parties in the As my noble friend rightly said, maiden speeches Scottish Parliament, to name just two groups. are meant to be uncontroversial. His contribution was One of the purposes of this Bill is to enact the in no way controversial; in fact, it was deeply encouraging political ideology of the ruling faction of the Conservative and seriously important for the House as a whole. The Party, which demands that unfettered access of business Governor of Punjab, among many political and business across the UK should be able to overrule any leaders in Pakistan, paid tribute to my noble friend democratically decided public policy goals. BEIS’s Lord Sarfraz on his elevation, saying that Aamer own impact assessment makes it clear that market Sarfraz has helped to build a bright image of Pakistan access principles will reduce the ability to pursue targeted in the international community. He said: social and environmental policy objectives. We were “You made Pakistan and British Pakistanis proud.” told that Brexit would result in the return of powers to At such a young age my noble friend Lord Sarfraz the devolved Administrations, but instead significant brings enormous experience as an entrepreneur and powers have been retained by Westminster. This Bill venture capital investor. He has also initiated many goes even further, as it will take away existing powers. socialprojects,includingtrainingthousandsof smallholder The noble Lord, Lord Callanan, as I understood farmers in the Punjab, and has supported many charitable him, said that industry subsidies had never been devolved, endeavours, including horse-riding therapy for children but Part 7 of the Bill amends Schedule 5 of the Scotland with special needs. I have no doubt that my noble Act 1998 to eliminate state aid from the devolved friend will make many important contributions going powers that have rested with the Scottish Parliament forward. From a proud British Jew to a proud British for over 20 years. This happened without negotiation Muslim, I say that I look forward to continuing to and with only the most cursory consultation. work closely with my noble friend for the benefit of The so-called level playing field is far from fair. British society from within our House of Lords. How can it be when the players on the field are of My noble friend Lord Sarfraz made a strong point massively different size and strength? It would be the about the need to have access to a strong and stable equivalent of a football match between Chelsea and internal market, with certainty of rules and regulations. Partick Thistle. The big firms in the large countries I note that the Scottish Government called this Bill a flourish; small firms in small countries struggle. The “power grab”. On that point—that goods and services Bill does not establish independent arbitration or dispute 1351 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1352

[BARONESS BRYAN OF PARTICK] when the joint briefing on it from the Law Society and resolution. Once again, the UK Government will act the Bar Council calls for the removal of the offending as both participant and final arbiter and will, as usual, clauses; when the Bingham Centre for the Rule of Law find in their own favour. says that these clauses are in fundamental opposition This legislation confirms what many of us already to the rule of lawand damage our standing internationally; know: the current system of joint working between the and when our own Select Committee on the Constitution UK Government and devolved Administrations is not calls in aid the late Lord Bingham and states: fit for purpose. It does nothing to guarantee high “We agree with Lord Bingham that respect for the rule of law regulatory standards. Instead, it creates incentives to requires respect for international law”, lower standards. It prioritises the removal of potential one is bound to ask whether this House could ever barriers to trade at the expense of other public policy have before it legislation which better fits the term goals, such as health or the environment, regardless of “exceptional circumstances” than that before us today. the democratic decisions of the electorate in the devolved I will vote for the amendment tabled by the noble Administrations. and learned Lord, Lord Judge, and it will undoubtedly Andrew Bowie, Conservative MP for West be carried tomorrow. It does not, however, use the Aberdeenshire and Kincardine, gave a stark warning power of this House to remove the offending clauses— in a recent newspaper article. He said, Clauses 44, 45 and 47—from the Bill. In that respect, “this Internal Market Bill, is just the start. The UK Government it will allow us to go home feeling good but without is back in Scotland. Get used to it.” having changed the mischief in the Bill. If ever a wedge would serve to divide the United I am clear that we should refuse this Bill a Second Kingdom, this is it. We cannot in all conscience allow Reading, but am told by my more herbivorous colleagues this dreadful legislation to be rushed through Parliament. that the Bill should go to Committee. I hope that We must ask the Government to think again. during its passage through Committee and Report we will see an amendment to remove the offending clauses, 7.21 pm and that, however many times it is brought back, this House will say no. If this is not an “exceptional Lord McNally (LD): My Lords, my first duty is to circumstance” as set out in the 2006 report, I fail to see congratulate the noble Lord, Lord Sarfraz, and the when this House will ever summon up the courage to noble Baroness, Lady Hayman, on two excellent maiden use that power. Those who have a contempt for our speeches. It is not always like this, by the way. In his parliamentary democracy and the rule of law will be speech today, the most reverend Primate the Archbishop emboldened by our failure, and this House will be of Canterbury made it clear that we are an unelected diminished in the process. second Chamber with a mainly advisory and revisory role, but along with those responsibilities is another 7.26 pm power, rarely used but very important. Baroness Jones of Moulsecoomb (GP) [V]: My Lords, In 2006, along with my noble friend Lord Tyler, I I too welcome the noble Lord, Lord Sarfraz, whom I sat on a Joint Committee of both Houses set up to have had the pleasure of meeting already, and the examine the conventions that govern the relations noble Baroness, Lady Hayman of Ullock. I hope to between both Houses, and between Parliament and work with her on the environment and animal welfare; Government. The report and recommendations of that that would be fantastic. committee chaired by the noble Lord, Lord Cunningham, were adopted by overwhelming votes of both Houses My noble friend Lady Bennett cannot be here this and stand as the basic rules of the conventions between evening. She would like me to explain that we are them—not Salisbury/Addison, but the Cunningham dividing this Bill between us and she will speak on the conventions. Paragraph 281 of that report said about internal and devolution issues. She abhors the destruction the powers of the House of Lords: by this Bill of the rights of democratic devolution that have been embraced and exercised by the people of “Nothing in these recommendations would alter the … right of the House … in exceptional circumstances, to vote against the Scotland, Wales and Northern Ireland. Scotland has Second Reading or passing of any Bill”. long had a distinct education system with higher qualification standards for teachers. The Senedd too It is that right to say no that stops this House being has plans for better control of single-use plastics than simply a debating society. In the 110 years since the we have managed here in England. first major reform of this House, its most passionate defenders have argued that the Lords was the safety I, therefore, will focus on international and rule of catch to prevent an abuse of power by a temporary lawissues in the Bill. First, I congratulate the Constitution majority in the other place. A constant in all our Committee on its wonderful report on this Bill. I read deliberations has been the special responsibility of this it through and laughed with pleasure. I thank the House to uphold the rule of law. committee for that. This debate has been extremely interesting because I did not think that anyone would Over the next two days we are considering a Bill on have the audacity to defend this Bill, apart from the which a Minister of the Crown in the other place Minister. The Constitution Committee expressed the admitted a proposed breach of the UK’s international problem in relation to the law very well when it said: obligations, and where the Government’s senior law “Society cannot afford to take this principle for granted or officer in this House, the noble and learned Lord, acquiesce in its violation. The rule of law is essential to an open Lord Keen, has resigned rather than be at the Dispatch and democratic society and the institutions which embody and Box today to try to defend it. When all five living protect it. Any Government that seeks to secure widespread ex-Prime Ministers express concerns about the Bill; compliance with the law must itself adhere to it”. 1353 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1354

It is indicative that there are two amendments. One legal or illegal. The noble and learned Lord, Lord Morris of them is from the Convenor of the Cross Benches, of Aberavon, made reference to this, with respect to who is a former Lord Chief Justice of England and his time as Attorney-General under a Labour Wales,and the other is from a Peer who was a Conservative Government. MP for 40 years. These are hardly rebels of the usual My noble and learned friend Lord Keen, on kind. The Government have some cheek to introduce 15 September, made it absolutely clear that he thought the Bill now, because it is less than a year since they the Internal Market Bill, which we are now considering, campaigned on Boris’s deal as their main election was within our obligations under the withdrawal gambit. This House passed that deal in recognition of agreement and was legal. A number of noble Lords the fact that the Government had won the election and have chosen during this debate to try to obscure that it was a quasi-referendum on the deal itself. Now the fact and say that somehow my noble and learned Government come to Parliament to try to unpick key friend Lord Keen was conflicted. He was not. He said provisions of the deal that they themselves negotiated. on that occasion that It is too easy to get bogged down in seeing this as “the EU has materially breached its treaty obligations and … we the narrow political issue around Brexit and Boris’s find that it may have acted in such a way as to fundamentally alter deal; it is much deeper than that. I say to those few our obligations under the treaties.”—[Official Report, 15/9/20; noble Lords who have talked about remoaners that I col. 1131.] voted for Brexit yet I am deeply unhappy with the Bill. So he was quite unequivocal on the fact that the The Government are trying to use the principle of Government were acting completely legally over this, parliamentary sovereignty to justify this course of and he was the law officer. action. That is wrong. A classic example of parliamentary In my opinion, what he was referring to—these are sovereignty is that nothing stops Parliament from my words—was the fact that the EU had decided to passing a law to ban Frenchmen from smoking in the say that the border in the Irish Sea should remain even streets of Paris, but it would have no effect. Parliament if we left the EU with no deal. That, of course, would has the power to pass legislation that violates international have undermined completely the single market of the laws and agreements, but that does not mean that it is United Kingdom and was totally unacceptable to this justified in doing so. There is, therefore, scope for your country. So it seems quite straightforward that my Lordships’ House to amend the Bill to remove the noble and learned friend Lord Keen considered the offending provisions. If, however, this Bill cannot be actions of the Government to be legal. sufficiently amended, our role as guardians of the Therefore, we have to ask what on earth my right constitution will require us to reject the Bill in its honourable friend the Secretary of State for Northern entirety. I will of course support the amendment. Ireland was doing when he said that in some way this was a minor infringement or a technical matter that 7.31 pm was only slightly illegal. I do not think that things can be slightly illegal—they are either legal or illegal—and Sitting suspended. I do not really know what Brandon Lewis was doing. He was actually called to the Bar himself in his youth. 8 pm Why did he not question what he was doing by getting up and saying that this was only slightly illegal? That is Lord Hamilton of Epsom (Con): My Lords, I join in rather like the curate’s egg—excellent in parts—or a the congratulations to the noble Baroness, Lady Hayman woman saying that she is only half-pregnant. of Ullock, and my noble friend Lord Sarfraz on their At the end of the day, the advice that should have maiden speeches, which I much enjoyed. I hope they been taken by this Government was from its law enjoy this House as much as I have. I also hope they officers. There may be many noble Lords in your listened to my noble friend Lord Cavendish of Furness, Lordships’ House who do not agree with the judgment who gave a slight word of warning that we have lost of my noble and learned friend Lord Keen, but he said many of our friends in the other place, and we have that this was legal, I believe it to be legal, and for that not made any new ones, so our future is not quite as reason I shall be voting against the amendment moved straightforward as we might all hope. by the noble and learned Lord, Lord Judge, and I want to talk about the extremely shabby way in supporting the Bill. which my noble and learned friend Lord Keen of Elie was treated by this House and by others in the 8.05 pm Government. He was a very fine lawyer, and probably one of the best Advocates-General for Scotland that Baroness Kennedy of The Shaws (Lab) [V]: Let me we have ever seen. Those are not my words; they were join with others in welcoming new Members to this the words of the noble and learned Lord, Lord Wallace House. I hope that they will have as happy and fulfilling of Tankerness, earlier today. We have lost an extremely a time as I have had. able man, and the contributions of rather lesser men I wanted to express my respect and admiration for in your Lordships’ House have contributed to him the noble and learned Lord, Lord Judge, and other being removed from office. I do not think that that has noble Lords who have spoken up for the rule of law done any great favours to our House, or to Scotland. and our obligations under international law. In previous Administrations in which I served, in a very junior capacity, we always had problems of how Baroness Scott of Bybrook (Con): We cannot hear you interpret legal situations. A tremendous onus is you. Can somebody please try to change the sound for put on our law officers to decide whether things are you, and we will come back to you? 1355 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1356

The Deputy Speaker (Baroness McIntosh of Hudnall) It would not be possible to use the Parliament Acts in (Lab): In view of the difficulties experienced by the the time available, so the Government would have to noble Baroness, Lady Kennedy, we will move on to the rethink their approach. noble Lord, Lord Lisvane. Please let us have no chuntering about the Salisbury/ Addison convention. In 2006, the Joint Committee on 8.06 pm Conventions of the UK Parliament acknowledged the Lord Lisvane (CB) [V]: There is so much wrong with change in the nature of the convention over time—hardly this Bill that it is hard to know where to start—apart from, surprising as it arose from very specific circumstances of course, warmly congratulating and welcoming today’s 75 years ago—but it still linked the convention only to maiden speakers, the noble Baroness, Lady Hayman manifesto commitments, with a reserve responsibility of Ullock, and the noble Lord, Lord Sarfraz. of this House in exceptional circumstances, as the I will make three points. First, on the use—or, I noble Lord, Lord McNally, reminded us. No one should say, abuse—of delegated powers, the Delegated could seriously suggest that departing from the rule of Powers Committee has done its usual excellent job. It law has received electoral approval. I suggest that your notes that this Bill contains 11 delegated powers and Lordships should not be deterred by any assertions of describes some as “extraordinary” and others as unconstitutionality. If there is unconstitutionality “unprecedented”. There are seven Henry VIII powers, anywhere, it is in this Bill. allowing Ministers simply to rewrite primary legislation, with a much lower level of parliamentary scrutiny and The Deputy Speaker (Baroness McIntosh of Hudnall) public exposure. Overall, the Bill exemplifies the decline (Lab): My Lords, I believe we can now hear from the in the legislative process that I have observed for noble Baroness, Lady Kennedy of The Shaws. nearly half a century. Now it is, I fear, a disaster area, which the promised Constitution, Democracy and 8.10 pm Rights Commission should examine as a high priority— although I have little hope that it will do so, or will be Baroness Kennedy of The Shaws (Lab): I am very allowed to do so. sorry if people could not hear me. I hope noble Lords can hear me now. Secondly, on the Bill’s effect on the devolution settlement, it has successfully united three of the I start by welcoming our new Members to the constituent parts of the—presently—United Kingdom House. I also add my respect and admiration for the in a chorus of execration at what they see as an noble and learned Lord, Lord Judge, and all noble attempt to undermine the devolution settlements and Lords who have spoken in support of the rule of law. I change the nature and scope of reserved powers. Noble would have thought that all of us would be committed Lords are expressing strong views on this aspect, but I to it. simply draw your Lordships’ attention to the Act of Some of our colleagues have mentioned our role as Union Bill that I introduced towards the end of the a revising and scrutinising House, but our role goes last Parliament, in which the Constitution Reform beyond that. Those of us who have the fortune to be in Group chaired by Lord Salisbury seeks a more effective this House are stewards of the constitution. We are and equitable settlement between the constituent parts also the protectors of the rule of law. We are the of the United Kingdom. A moment ago, I described it people who guard rights and preserve for future as the “presently” United Kingdom. I do not think generations the things that really sustain this society. that history will deal kindly with an Administration We are also the people who are supposed to look at the who contrive to take us out of not one union but two. long term when government may be pressed into or I conclude with the rule of law issues. Yes, Parliament encouraged to think short term. can legislate in the way proposed—of course it can—but I urge this House to support the amendment from it should not and, I suggest, must not. The rule of law the noble and learned Lord, Lord Judge. I am a is not something just for lawyers and academics; it is director of the International Bar Association as well for us all. As my noble and gallant friend Lord Stirrup as a practitioner at the English Bar, and I recently said, if I break the Covid-19 restrictions, will the hosted two webinars on this very Bill. Thousands of Government come to my aid when I say, “Yes, I was lawyers attended not just from the United Kingdom breaking the law, but only in a specific and limited but from around the world. One of the webinars was way”? The attempt to present the law-breaking powers on the impact on international law, and another on the in the Bill as more acceptable by making them subject effects here in the United Kingdom. to approval by the House of Commons is naive. It is as The legal profession in this country is united in its though I were to say to your Lordships, “I have a opposition to the Bill—the Bar Council, the Law Society, revolver—but don’t worry, it’s empty. I’ve given the the lawyers and judges. Let me tell you, it is a very ammunition to a friend of mine. But when I ask, he’ll small club indeed who think that this Bill does not give it back and I’ll put the rounds into the weapon.” contravene the rule of law. It seems to me to be The answer is, of course, that I should not have the following a regrettable trend of undermining law more revolver in the first place. generally. We are seeing attacks on lawyers and the I shall certainly vote for my noble and learned judiciary, and an effort to undermine the judiciary and friend Lord Judge’s amendment, and when the Bill its discretion. We are also seeing attacks on judicial goes back to the Commons it should do so without at review and other aspects of law. least Part 5. What happens then? I agree with my When the webinars took place, international lawyers, noble friend Lord Butler that this is an issue on which much to my surprise, engaged from all over the world, your Lordships should be prepared for a bumpy ride. shocked at the fact that Britain was doing this. They said, 1357 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1358

“It’s to you that we look when we are having difficulties The Conservative Party won the December 2019 with our own Governments. It’s to you in the United general election, its manifesto based on the “great new Kingdom that we look as the standard bearer for the deal” that the Prime Minister said he had done. Now, rule of law.” One of our distinguished commercial in presenting this Bill for the approval of your Lordships’ judges, recently retired, said that the City’s position as House, he has abandoned the commitment to the British a world-leading financial services centre is underpinned people on which he was elected and seeks to break not by our reputation in law. That is not something to play only his manifesto commitment but international law. around with, even if you are doing it for a pragmatic We should not be surprised; the Prime Minister has reason rather than out of principle. As one or two been entirely consistent—he has never felt the need to other noble Lords have said, this is a matter of principle, be bound by any commitments that he makes to and I believe that principle at times has to take precedence people, nor by any rules or law. He was even prepared over party loyalty. to mislead Her Majesty the Queen into approving a In one of the webinars, the noble and learned Lord, prorogation of Parliament, advice ruled to be unlawful. Lord Neuberger, reminded us that we are asking a lot Now he wants the rest of us in Parliament to of our citizens in the United Kingdom at this time collude with him in a flagrant breach of international because of the pandemic. We are asking them to abide law. That creates a constitutional crisis. While this by certain rules that constrict their lives. We are asking House should generally restrict itself to giving advice them to obey the law. That our Government should be to the Government of the day, I believe it has a dismissive of law and be prepared to break the law at responsibility of constitutional guardianship that is this time sends a very bad message. The Government now being called into play by the Government’s should listen and remove the offending clauses and the premeditated breach of international law. Even the whole of Part 5. I am afraid that to disregard the law is tabling of the Bill is a breach. really a very poor prospect for this country. It is possible in the short term to toss facts, truth and the law to the side, but as this Government are 8.15 pm beginning to discover, truth, facts, the law and broken relationships have a way of coming back to bite. Lord Alderdice (LD) [V]: My Lords, my perspectives Bluster, hyperbole and waving one’s arms around do are shaped by my Northern Ireland roots and the not impress the Covid-19 virus; nor, increasingly, do implications that I draw from Part 5 of this dangerous they convince ordinary people in this country. Bill. When one manifestly does the wrong thing—not The inevitable consequence of Brexit was a series of making a mistake, but doing what is morally wrong difficulties with the Belfast Good Friday agreement, and unjustifiable—history will find you out. Members which had brought to an end not only 30 years of of your Lordships’House who support this Government’s terrorism but a disturbed historical relationship with disregard for the law should reflect on how past leaders Ireland that went back many centuries. Those of us have been hauled before the bar of history and their who spent many years of our lives negotiating and reputations irreparably shredded. Today’s remarkable implementing that agreement had assumed that if we debate in your Lordships’ House may even be the could find a new future for the people of our islands, beginning of the end of this Government, for this is we could find a way of maintaining our relationships not a mistake or a misjudgment but a consistent with the rest of the European Union. However, when pattern of behaviour that must be stopped before it it became apparent that Brexit was the will of a destroys our United Kingdom. majority of people in England and Wales, the challenge was to negotiate arrangements that would maintain the Good Friday agreement while taking the UK out 8.19 pm of the European Union and at the same time hold Lord Barwell (Con): My Lords, I congratulate the together the constitutional union of England, Scotland, noble Baroness, Lady Hayman, and the noble Lord, Wales and Northern Ireland. Lord Sarfraz, on their maiden speeches and for their Since Northern Ireland’s relationship with the rest extreme skill in staying uncontroversial on this most of the UK and Ireland was already a singular one, it controversial of topics. was clear that there would be significant challenges, I find myself in a curious position today, wanting to especially if the British Government chose to leave the defend a withdrawal agreement, parts of which I strongly customs union and the single market. This was widely disagree with. Those of your Lordships who know my discussed in Northern Ireland during the referendum background will know that I preferred a different campaign and was probably the chief reason why the withdrawal agreement, negotiated by the former Prime Ulster Unionist Party became pro-remain. Minister.The current Prime Minister,and many members When Mr Johnson became Prime Minister, he and of the Government, opposed that withdrawal agreement his party, including the members of the European and the backstop within it because, they argued, there Research Group, abandoned their Democratic Unionist was no way out of it and it would be unthinkable for allies and, last October, signed up for the revised the United Kingdom to break international law. What protocol for Northern Ireland that Mr Johnson had was once unthinkable is now government policy. As negotiated. The DUP was betrayed, but Mr Johnson the noble and learned Lord, Lord Judge, said, we are went on to fight the election on what he called being asked in Part 5 to give Ministers powers to break “a good arrangement, reconciling the special circumstances in the law—powers to override an agreement that was Northern Ireland with the minimum possible bureaucratic agreed not in some dim and distant past but just a few consequences at a few points of arrival in Northern Ireland.” months ago. 1359 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1360

[LORD BARWELL] that we reach a deal, that the Government can withdraw What justification are we offered for that course of these clauses and that we can find a satisfactory way action? We have had two. The Prime Minister, in an out of this situation in which we now find ourselves. article, said that these were incredibly turbulent times; it was all done in a bit of a rush and now some problems have come to light. It is also being suggested 8.23 pm to us that the EU has been unreasonable. I will leave it Lord Hope of Craighead (CB) [V]: My Lords, it is a to your Lordships to decide whether you believe that real pleasure to follow such an impressive speech by the EU’s approach is unreasonable—I doubt I will the noble Lord, Lord Barwell. For myself, I wish to convince anybody on that point—but I will say that it concentrate on the consequences of this Bill for the has been entirely consistent from the word go. The EU devolution settlement. I am aware that this issue might has argued that there could be no free trade agreement seem to be a sideshow compared with Part 5 of the without a resolution of the issues in Ireland and Bill—perhaps a moment, especially for those of your Northern Ireland and that the UK could never have a Lordships who, like me, are participating virtually, to Canada-style agreement because of our geographical go away and do something else. However, like so many proximity. The issues that have come to light, and others, I urge your Lordships to take notice of it and which this Bill seeks to address in relation to customs take it very seriously. or exit declarations for goods coming from Northern Frictionless trade across all parts of the United Ireland to Great Britain, or to state aid, have not Kingdom is, of course, what we all wish and must aim materialised overnight: they are in the withdrawal for, but this depends on the principles of co-operation agreement. The Explanatory Notes of the Bill say that and on mutual trust between all four nations. As they are in the withdrawal agreement, so these are presently drafted, the Bill and the way it has been consequences of the agreement that the Prime Minister introduced is deeply damaging to those principles. signed. They are consequences that were pointed out Mutual trust between the nations has never been lower by those of us who had reservations about that agreement than it is now: Scotland has refused to give legislative at the point at which it was agreed. consent to the Bill and Wales, as we have heard, has As has been made very clear, there was no need to indicated that it cannot give consent to the Bill in its take the course that the Government have taken in this present form. Of course, this Parliament can do what Bill. Article 16 of the withdrawal agreement provides it likes, but a different approach is essential if the a procedure to use if the agreement leads to economical, union is to hold together against a growing trend societal or environmental difficulties, where parties towards fragmentation that will—if this Government can take unilateral action. are not very careful—bring our precious union to None of these things is the real reason for what has an end. happened here. The real reason is that David Frost, The devolution settlements were guided by the market the Prime Minister’s chief negotiator, asked No. 10 to access principles of proportionality and subsidiarity come up with something that would shift the EU in its that operate under EU law. There was room for a negotiating position. My noble friend Lord Hamilton carefully worked out devolution of legislative power asked why the Secretary of State for Northern Ireland which enabled the devolved authorities to pursue their said what he said. He said those words because he was own legitimate policy aims as to the sale of goods told to say them. The opposition of this House, of five where, in their judgment, this was in the public interest. former Prime Ministers and of the most reverend Nobody doubts that the way this freedom has been Primate the Archbishop of Canterbury is what Number 10 handled works well at present. It is not in any way a wanted: it wanted to demonstrate to the European barrier to trade between our nations; on the contrary, Union the extent to which it was prepared to take a it has real benefits. It enables new trading policies to different approach from all previous Governments. be tried out in one area before the rest. The Bill itself I will end by making two very brief points. First, I accepts that such divergences as exist at present can am not a lawyer, but you do not have to be a lawyer to remain. think that the rule of law matters. This is not some However, the Bill seeks to replace the freedom to abstract concept: it has real world consequences. On develop local standards or separate policy aims in the Friday, Moody’s downgraded the UK’s credit rating; it future with centrally driven, overriding market principles. referred to the weakening of the UK’s institutions of It does not seek to repeal the various exceptions to the governance in recent years. list of reserved powers that are set out in the statutes, Finally, the tragedy of this Bill and the situation but its effect would be the same, as there would be no that we find ourselves in as a country is that the reason stopping traders bringing goods in from other areas why the Brexit negotiations have proved so difficult is that do not conform to the home area’s rules. The that the EU believed all along that the UK might end devolved powers are rendered worthless by this new up breaching faith. I well recall a meeting with EU system. UK Ministers are given powers to do things officials that I attended with Theresa May, where she which contravene the devolution settlements without asked why the backstop had to be set out in all that consultation, let alone consent. The opportunity to operational difficulty. She was told, “Because, bluntly, create an internal market by agreement through the we do not think you will be there for much longer and continued development of common frameworks—about we do not trust what is going to follow in terms of which the noble Baroness, Lady Andrews, spoke so living up to any commitments.” That is the tragedy of well earlier today—is being undermined because it is this Bill. This behaviour was predicted and is one of being ignored. The common frameworks are not even the reasons why we confront this problem. Let us hope mentioned in the Bill. 1361 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1362

The effect of the Bill has been described as a “power regards the coherence of its own internal market. If grab” by the Scottish National Party. I am not given to that came to pass, we would be presented with a very hyperbole—which I thought this was—but now, having unpleasant choice. I am sorry to say this, but the real read the Bill and the well-founded and withering report problem stems from the nature of the withdrawal of the Constitution Committee, I can see why this agreement which the present Prime Minister inherited expression is being used by them and now in Wales too. in an extremely unsatisfactory state from the previous There is something very far wrong here; that is the Administration. As my noble friend Lord Howell hinted, challenge that we face. We do not need this Bill, but if the UK-EU joint committee has not stepped up to the we have to have it, it must be put right. mark in resolving the issues for whatever reason, as it would have done had everybody acted in good faith. 8.27 pm So having a safety-net provision in the Bill for use Baroness Neville-Rolfe (Con): My Lords, I congratulate in extremis, and only after a special parliamentary my noble friend Lord Sarfraz, a dynamic entrepreneur, vote, is probably the least damaging way forward. The on a very fine maiden speech, and also the noble fact is that treaty requirements sometimes conflict Baroness, Lady Hayman of Ullock. I look forward to with each other and some member states fail to observe the noble Baroness boosting the parliamentary choir important treaty provisions, such as the Maastricht and hearing a bit more about that Welsh farm. criteria, as my noble friend Lord Lamont reminded us I rise to pursue two points. First, I want to address so eloquently earlier today. the operation of the internal market provisions. Secondly, I will comment on the great issue of the day and 8.31 pm provide some much-needed support for the Government’s position. Lord Hendy (Lab) [V]: My Lords, it is a pleasure to The Bill makes a great deal of sense. We need the follow the noble Baroness, Lady Neville-Rolfe. I too internal market to function smoothly. As we leave the welcome my noble friend Lady Hayman and the noble EU single market, our own UK single market will be Lord, Lord Sarfraz, to the House, and I compliment even more important. As an economist by training, I them on their excellent speeches. believe in the theory of comparative advantage, and Like so many other noble Lords, I share the view that applies across the UK. Weneed to avoid protectionist that the Bill would cause this country to be in breach measures so, for example, the Scots and English can of the rule of law. Having spent over 40 years in exchange Scotch whisky and London gin without practice at the Bar, over 30 of them in silk, I consider hindrance or charge. I apologise for resorting to GCSE myself, like other Queen’s Counsel in this House, to be economics, but the point is a very important one, and under a duty to oppose the Bill on that ground. I it is equally valid for services—80% of the economy. I support the noble and learned Lord, Lord Judge, in declare my interests in the register. his amendment but shall not weary the House by That does not mean small variations in law need to repeating in a pedestrian way the arguments so elegantly be prevented. The Scots have different rules on minimum and powerfully put by him and others. alcohol pricing and the Welsh were early regulators on I wish to raise another, different point. The Bill plastic bags—both areas in which I am interested—and seeks to create a uniform internal market for goods that has worked fine. However, devolution can only go and services, but it says nothing about the protection so far,or it will harm the common interest immeasurably. of those who actually make or provide the goods and I congratulate my noble friend the Minister on services—the workers of the United Kingdom and producing an impact assessment, and his help with beyond. I use the term “worker” as a lawyer, meaning getting the promoters of the agriculture and fisheries someone who works for a living whether under a Bills to do the same. However, it is disappointingly contract of service or a contract for services. The EU light on numbers. I think a better effort could have single market, from which this Bill takes inspiration, been made at economic assessment and the dynamics had much in the way of protection of affected workers; of growth—or lack of it, without a proper free market— the Bill has nothing. and that this would have shown how vital the UK I accept that labour law—the law of the workplace—is internal market measures in the Bill in fact are. not a devolved matter and therefore applies across the I also have a question for my noble friend. Why has UK, with minor variations in Scotland and Northern the Competition and Markets Authority been chosen Ireland, but that does not avoid the issue of social to gather information and monitor the new arrangements dumping. It is entirely foreseeable that measures are in a fancy new Office for the Internal Market? I can taken in Wales, Scotland and Northern Ireland to see the advantage in terms of recruitment and retention protect workers in those countries from being undercut at the CMA. However, the CMA is much more focused in England or abroad. on the consumer than on business success and, at a Let us take, for example, agriculture. In 2013, the time when we face grave economic difficulties, I find coalition Government abolished the Agricultural Wages this worrying. It is also a politically charged area, so Board for England and Wales—a negotiating body does it really make sense to delegate these vital powers representing employers and workers—the agreements to a supposedly independent body? PHE and Ofqual of which on wages, housing costs, and, of course, dog spring to mind as not wholly satisfactory analogies. allowances, became binding on every farmer and farm Much has been said about Part 5 of the Bill. I agree worker in England and Wales. The board was originally that in principle this approach is undesirable. However, set up in 1924, a daughter of the Trade Boards Act 1909. there is at least a theoretical possibility that EU action Scotland retained its AWB. The Welsh Government, could place the UK in an impossible position as having lost the AWB for England and Wales, set up 1363 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1364

[LORD HENDY] or, if necessary, the decision of the joint committee their own under their devolved power over agriculture. under Article 16 on, for example, what are reasonably The UK Government considered it intolerable that to be regarded as “goods at risk”. Wales should exercise this kind of sovereignty to maintain However—and this is really the crunch point—if higher pay rates for its farm workers and therefore the Government say they truly fear the EU playing challenged the Welsh Government in the courts, a case hardball on the wider negotiations, threatening to act they ultimately lost in the Supreme Court. Wales quite unreasonably or acting in bad faith in its therefore now retains its own AWB. interpretation and application of the protocol, then, In consequence of the Covid catastrophe, there will instead of our pre-emptively breaking, as these clauses be more such differential measures of worker protection. do, the agreement ourselves, we would be able to treat Even before Covid, the Welsh and Scottish Governments them as being in breach. This would entitle us not considered the use of conditions attached to public merely to invoke, as we would, the dispute resolution procurement contracts in order to enhance worker mechanism provided for but, in the meantime,temporarily protection and develop social dialogue with trade unions and pending the eventual outcome of any arbitration, —a concept alien to the Government in Westminster. to take all necessary and proportionate measures to This Bill should make provision to permit national protect our fundamental interests, which obviously Governments to discriminate on goods and services in include the Belfast agreement. order to maintain labour standards, as well as on the That is it: both parties owe the “good faith”obligations grounds set out in Schedule 1. I propose to move an and that is plain under Article 5 of the Vienna convention. amendment to this effect in Committee, should the Neither side is entitled to act unreasonably, such as to Bill proceed. frustrate the essential object of the agreement. With those thoughts in mind, it seems not merely outrageous 8.35 pm in principle but, in fact, ultimately absurd to include Lord Brown of Eaton-under-Heywood (CB) [V]: My provisions that could never be properly required given Lords, it is always good to follow the noble Lord, that there is, as the Government fear, bad faith on the Lord Hendy. I start by welcoming and congratulating EU side. the two excellent maiden speakers. I doubt they were as nervous as I am making my maiden remote Zoom 8.40 pm speech. I shall vote for the amendment to the Motion Lord Vaizey of Didcot (Con): My Lords, I begin by moved by the noble and learned Lord, Lord Judge. congratulating the noble Baroness, Lady Hayman, Like him and so many others who have spoken in this and the noble Lord, Lord Sarfraz, on their excellent remarkable debate, I deplore Clauses 42 to 47 in Part maiden speeches in this Second Reading debate. 5, and I express my deep regret that our great country, This is the first debate I have taken part in where I champion for centuries of the rule of law, domestically have had the opportunity for a dinner break and the and internationally,has reached the point of prospectively chance to discuss with colleagues how the Bill is repudiating binding treaty obligations entered into progressing. One remarked, interestingly, that you know less than a year ago. The damage to our international the Government are in trouble when they are condemned reputation and standing needs no additional emphasis by a former Lord Chief Justice and the Archbishop of from me. Similarly, I note the damage to our prospects Canterbury before the debate has barely got going. of finding—as we now need to—trusting new treaty However, maybe something can be salvaged in this partners and, as mentioned by the noble Baroness, debate. Lady Kennedy of The Shaws, to London’s standing as The first point that all noble Lords must remember the economically very valuable centre of international is that, leaving aside the controversial Part 5 and legal practice and dispute resolution by both litigation Clause 47, the Bill is still important and necessary. We and arbitration. need an internal market Bill after Brexit. As the noble I now turn to a rather different aspect of Part 5. It is Lord, Lord Cavendish, remarked earlier, we had an my contention that these clauses are not merely unlawful internal market in this country for 300 years, and it and, therefore, intrinsically objectionable in principle; was effectively taken over when we joined the European they are quite unnecessary—unless, quite outrageously, Economic Community. Now, as we leave the European they are in the Bill merely to shift the dial to try to Union, the Government must make provision to restore bully the EU into a more helpful stance, as the noble the union and the internal market that existed before Lord, Lord Barwell, suggested. Assuming that they we became members of that community. It is my are in the Bill for “good faith” reasons, I strongly agree impression that although there is a lot of politics with the noble and gallant Lord, Lord Stirrup, that, surrounding some of the provisions for replacing the were it ever to be necessary to legislate to breach internal market, none of the devolved Assemblies will international law, that should follow—not, as here, lose powers that they already have. They will have the precede—that need. same powers when the Bill is passed. In that sense, the However, I would go further and say it never would glass is half full. be necessary. I will explain why. Naturally, I recognise There are, of course, some very controversial measures the imperative under the protocol that it applies to in the Bill and they are entirely of the Government’s honour and not imperil the Belfast agreement and own making. We face a conundrum which has been that it does not destroy the essential unity and integrity present ever since the country voted for Brexit and we of the United Kingdom internal market. This requires started looking at how to implement the referendum reaching a sensible, workable agreement by negotiation result: either to have a border between Ireland and 1365 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1366

Northern Ireland, or a border between Northern Ireland There is no imminent threat which renders this and the rest of the United Kingdom. The then Prime measure necessary. For the past three years, all four Minister, Theresa May, tried to find a way out of that Governments have worked to create common frameworks conundrum, and did so very elegantly by seeking to in those areas which the Government here in Westminster keep us within the customs union. When I was in the identified as requiring limits on the extent to which other place, I voted for her withdrawal agreement—I any one part of the UK could diverge from the standards was fond of remarking to some of my more ideological that we will inherit through retained EU laws. Quietly, colleagues that I had voted for Brexit more times than and without any publicity in this House, good progress they had. The Government then decided to return to a has been made on developing these voluntary frameworks, form of Brexit which brings us to where we are today: which will bind all Governments by each forswearing potentially having to choose, inevitably, between a the right to diverge too greatly. A great deal of work border between Northern Ireland and the rest of the has been undertaken by the committee chaired by the United Kingdom and a border between Ireland and noble Baroness, Lady Andrews, and was reported to Northern Ireland. the House on 24 September. Now, this Bill renders all Again, however, my glass gets slightly fuller, because that work superfluous. I think that there may be a way out of this impasse. We The Government, representing the overwhelming share know that, despite the confrontational attitude that of the UK economy, are reneging on their commitment seems to be adopted now by both sides, who are to the agreed frameworks. They can do whatever they negotiating the future of millions of people in this want and whatever they agree in a trade deal without country and the rest of the European Union, there is a consulting the devolved Administrations. The Bill stops potential way forward and we may have a free trade the devolved Governments adopting more progressive agreement. The European Union has said that it will policies. It suddenly changes the rules of the game hold a special Council in order to achieve that. I very from those agreed and seems to tear up the common much hope that that will come about. If it does not, and frameworks approach that the devolved Administrations the provisions in the Bill reach a conclusion without a have supported. Amendments in my name would protect free trade agreement, we will face some very serious these negotiated common frameworks and ensure that consequences. If, as I hope, we are able to preserve the market access principles were used only when all efforts internal market in the United Kingdom, but we do so to agree a common framework had failed. under the provisions of the Bill without a free trade agreement, it is inevitable that we will get a hard The Deputy Speaker (Baroness McIntosh of Hudnall) border between Ireland and Northern Ireland, either (Lab): My Lords, the noble Baroness, Lady Gardner one that Ireland itself feels it has to impose or one that of Parkes, has withdrawn from the debate, so I call the the European Union chooses to impose on its behalf. next speaker, the noble Baroness, Lady Crawley. That will be extremely damaging for everyone in this country. 8.48 pm Baroness Crawley (Lab) [V]: My Lords, I welcome 8.45 pm the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz, and commend their excellent Baroness Finlay of Llandaff (CB) [V]: My Lords, contributions today. among the historic speeches today, including superb maiden speeches, I venture to address Part 1, on the This Bill comes to us with a reputation rather like application of market access principles to goods and that of the Vikings: dangerous, unloved, little respect public health. The Government say that this part of for the law and disrespect for the kingdoms of Great the Bill is necessary to ensure that no new barriers to Britain—it obviously leaves out pillaging, for which trade arise after the end of EU transition, but how much thanks. might such barriers arise given that, on 1 January, the First, I add my voice to the rising chorus against whole UK will be governed by retained EU law? The Part 5 of the Bill, which as we know allows parts of current legal frameworks which limit but do not eliminate the Ireland/Northern Ireland protocol to be disapplied. the rights of the devolved institutions to implement The protocol, being part of the withdrawal agreement, progressive policies in areas such as food safety or is an international treaty and trumps—if noble Lords labelling will still be in place, but I expect that the will excuse the expression—domestic law. The noble Government will warn that barriers could arise from and learned Lord, Lord Judge, is right: Part 5 must go. new policy initiatives from the devolved Governments. But, reply the Government, the EU is acting in bad faith. That is why they propose automatic application of However, there is no evidence. Show us the evidence. market access, meaning that any goods which can be There is no evidence at all for that, states the House of legally sold in one nation must automatically be offered Lords European Union Committee. Are we really no for sale across the whole UK. What does this mean in longer a member of the international rules-based order— practice? If, for example, the Welsh Government wish because I did not get the memo? Perhaps the Bill is the to change food labelling to improve warnings on sugar memo. or fat content, or want to ban sugary fizzy drinks, they The Bill allows Ministers to make regulations that could in theory still do so, but the law would be wholly are inconsistent with the UK’sobligations under Article 4 ineffective because products legally made in, or imported of the withdrawal agreement. But, say the Government, into, England and which did not comply could be freely we may never use these powers. We will just threaten to sold in Cardiff and Caernarfon. This would neuter the break the glass and pull the emergency cord, meanwhile ability of the elected legislatures in Cardiff, Edinburgh not actually being in breach of the state aid and and Belfast to act within their devolved competences. customs provisions of the Northern Ireland protocol. 1367 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1368

[BARONESS CRAWLEY] trying to trigger Article 50 without parliamentary Ireland, our nearest and most important trading approval; illegal Prorogation; and launching attacks partner, does not agree. On the Government’s claims on lawyers as “lefty human rights lawyers”, “activists” that these disapplying provisions are needed as a safety and “do-gooders”. Was it a coincidence that a knifeman net against the possibility of a no-deal Brexit, the Irish threatened to kill a solicitor last month? Government have been very clear that the protocol is Then they are grossly under-resourcing the justice designed and empowered to operate in all circumstances, system; and “taking back control” not for Parliament including the absence of an agreement on the future but for themselves, through an accumulation of executive relationship between the EU and the UK. The UK power and overuse of statutory instruments, to the Government may disregard the views of the Irish extent that the legal commentator for the Financial Times, Government, but they may wish to take notice of the David Allen Green, called it “government by decree”. House of Lords Constitution and European Union He quoted Lord Hewart, a Liberal politician and Committees. Their recommendations on this sorry Bill judge who became Lord Chief Justice and who said, in are damning—to say nothing of the views of the his 1929 book The New Despotism: Anglican Church. “The strategy is different”— I make my second and final point as a member of from the “old despotism” of Charles I— the new House of Lords Common Frameworks Scrutiny “but the goal is the same. It is to subordinate Parliament, to evade Committee. My noble friend Lady Andrews and many the Courts, and to render the will or the caprice of the Executive other noble Lords made strong arguments that common unfettered and supreme.” frameworks are better instruments for creating the It sounds very modern. new internal market than is the Bill. Indeed, the The Government’s claim that the Bill is simply an Government themselves said that common frameworks, insurance policy or safety net has spectacularly backfired. and the programme that they imply, would in fact map As our EU Committee observed, it has out the area of the UK internal market. These frameworks, whether on food safety, emissions trading, company “in effect, placed the United Kingdom in the wrong”. law or whatever, have been worked up in partnership The EU responded accordingly by insisting on tougher with the devolved Administrations. Although they are enforcement provisions and sending a letter of formal based on regulatory consistency,they respect the flexibility notice—the first step in infringement proceedings. The of the devolved settlements, as did the EU. Could the Irish equality and human rights commissions from Minister say why the Government are not putting north and south, as well as the Anglican Primates, their energy into these consensual frameworks, rather have expressed deep concern that the Irish protocol to than this divisive Bill? the withdrawal agreement might be breached, and the human rights and equality provisions of the Good 8.53 pm Friday agreement overridden. Baroness Ludford (LD): My Lords, I add my The Bingham Centre for the Rule of Law notes: congratulations and welcome to the maiden speakers, “The ideal of Magna Carta—that no one is above the law—is whom I look forward to getting to know. I sincerely a source of global inspiration”, thank our committees, on the constitution, EU affairs and the Bar Council and the Law Society highlight the and delegated powers, for their expert and powerful prejudice to the position of London as a centre for reports. Part 5 of the Bill, with its attempt to override international practice and dispute resolution, and to an international law commitment, in an agreement the our attempt to accede to the Lugano Convention. Government themselves signed and then enshrined in The 20th anniversary of Human Rights Act has domestic law less than a year ago, is breath-taking. just passed, and it is the 70th anniversary of European The comment by the Secretary of State for Northern Convention on Human Rights in a few weeks. It was a Ireland that the Bill breaks international law Conservative lawyer and politician, Sir David Maxwell “in a specific and limited way” Fyfe, as he then was, who was largely instrumental in is destined to go down in history alongside “economical drafting the ECHR. It is shameful not only that the with the truth”. modern Conservative Party is weakening its commitment It was commendable, if regrettable, that the noble to the convention and the HRA, but that our Prime and learned Lord, Lord Keen of Elie, felt compelled Minister had to be forced by the EU, in order to to resign, as did the Treasury Solicitor Sir Jonathan protect security ties, to pledge not to “materially alter Jones. I regret that this means we do not have a law the spirit”—whatever that means—of the Human Rights officer here to answer the debate. The noble Lord, Act. This was billed as a “compromise”by Mr Johnson. Lord Wilson of Dinton, pithily summed up the situation Part 5 of this Bill is a disgrace. The noble Lord, in testimony to the Constitution Committee when he Lord Howard, was quite right to say that Parliament said of the Bill that should fix this Bill and not leave it to the courts; hence “the constitutional position is that it is an outrage, and the the amendment in the name of the noble and learned political position is that it is hugely damaging to our reputation Lord, Lord Judge, should be supported. internationally.” The Constitution Committee concluded that Part 5 8.57 pm clauses Lord Jay of Ewelme (CB) [V]: My Lords, there is “represent a disregard for the rule of law”. much in the Internal Market Bill that I am happy to The Bill is only one aspect of the cavalier attitude of support, but I have two reservations.The first is devolution. Conservative Governments in the last few years to the Bringing back for settlement within the United Kingdom law and constitutional convention. Examples include: questions which have for a generation been settled at 1369 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1370 the level of the EU was always going to be difficult. member states, there was no need, during our EU This is particularly so if, as I suspect, the United Kingdom membership, for specific UK-based rules maintaining is moving in the direction of a federal state—one of the UK internal market against fragmentation. Now the great ironies of Brexit. The right way forward must that we are approaching the end of the transition surely depend on genuine consultation and negotiation period, a vehicle is needed to maintain the free flow of among all four countries of the union, as has been trade across the nation in the post-Brexit world. happening over common frameworks. The Bill seems As we are all aware, though, there are two clauses in to be putting all this unnecessarily—and, indeed, particular that will be subject to much debate and have dangerously—at risk, for reasons I simply do not already been subject to much debate during the passage understand. So I look forward to the noble Lord, of this Bill. These would allow the Government to Lord True, explaining why tomorrow. restrict the so-called direct effect of two parts of the My second reservation relates to Part 5 of the Bill. I Northern Ireland protocol, which is part of the EU have read the reports of the EU Committee and the withdrawal agreement. These clauses have the goals of Constitution Committee, and the Bingham Centre’s protecting the basic functioning of the United Kingdom’s analysis of the Bill, and I agree with every word of the internal market, as it operates between Great Britain letter from the most reverend Primate the Archbishop and Northern Ireland in the event that it is not possible of Canterbury and his colleagues. It is clear that to reach an agreement with the EU on the UK’s future Clauses 44, 45 and 47 would constitute a breach of relationship with it; and allowing state aid in Great international law and, as the Bingham Centre’s report Britain to be dispensed under a framework of rules makes clear: devised in this country, rather than being subject to “A breach of the rule of international law is still a breach of European Commission control and European Court the Rule of Law.” of Justice jurisdiction. These clauses go against all that the United Kingdom During the passage of this Bill, it is my intention to has stood for, nationally and internationally, for as focus on and scrutinise, first, the degree to which, long as I can remember. How can we persuade other under the UK’s constitutional law, international treaties countries to observe the rule of law if we are willing to in general do not form part of the law. It is my break it ourselves? These clauses not only contribute understanding that, when an international treaty has nothing to the Brexit negotiations—indeed, it seems to made it necessary to make changes to the UK’s internal me, rather the reverse—but reduce the future effectiveness law in order to comply with it, the general practice has of global Britain. They must be removed from the draft been for Parliament to pass legislation to make any Bill; meanwhile, I will be glad to support the Motion necessary changes to the law. Secondly, I want to focus in the name of my noble and learned friend Lord Judge on the degree to which the jurisdiction clauses represent tomorrow. a gross departure from normal international treaty practice, under which sovereign states simply do not 9 pm accept binding rulings by the courts of the other treaty Baroness Stroud (Con): My Lords, I begin by adding party and agree only to subject themselves to mutual my congratulations to the noble Baroness, Lady Hayman, international courts or tribunals. Thirdly, I shall look and the noble Lord, Lord Sarfraz, on their maiden at the degree to which, as a matter of UK constitutional speeches. I look forward to hearing further contributions law, the UK Parliament is entitled to legislate to from them both over many years. remove direct effect from part of, or, if it so chose, the The Bill, as we have heard, makes provision for the whole of, an international treaty. continuation of the UK’s single market when the I look forward to engaging in the debate on this Bill transition period ends on 31 December. This single, and hope that, in doing so, we can find a way through unified, internal market is a key block in the constitutional that addresses the challenge this Bill seeks to address foundations of the United Kingdom. It is my and remember that having UK law subordinated to understanding that the 1707 Articles of Union between EU law and ECJ rulings was one of the main drivers England and Scotland, and those between Great Britain leading to the British people’s decision to leave the EU. and Ireland in 1800, abolished all customs duties between the different parts of the United Kingdom. Lord Trevethin and Oaksey (CB) [V]: My Lords, Accordingly, free and uninterrupted commerce across while listening to the many powerful speeches condemning all parts of the newly united kingdom were seen as one part 5 of this Bill, I have wondered how the arguments of the most important advantages of the Act of Union, in favour of these controversial provisions might be particularly in Scotland and Ireland, the citizens of best presented. First, the phrase “breach of international which could freely trade into and out of the larger law” is a loose expression, and the Minister in the English market. Commons might well wish now that he had not used When Ireland was partitioned and the separate it. What is being contemplated here is better defined as Parliament of Northern Ireland was established, the a breach of an obligation arising under an international Westminster Parliament was careful to ensure Northern treaty, which is a better way in which to define the Ireland and Great Britain should continue to remain matter. This is a familiar contractual problem of quite a single, integrated, internal market. The devolved a familiar sort: one party to the agreement wants to legislatures in Scotland and Wales were created after tear up certain provisions that it does not like. the UK had joined the European community. Because Secondly, it is probably accurate to say that the the EU single market rules on state aid and free movement contemplated breach is potential, not actual. The of goods and services apply to regional governments Constitution Committee concluded in paragraph 152 and legislatures as well as the central governments of of its report that this is an open question. The actual 1371 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1372

[LORD TREVETHIN AND OAKSEY] counterparty is acting in bad faith. In the absence of breach may occur only if the power to disapply parts such a case, there is no legal justification for threatening of the Northern Ireland protocol is exercised. Therefore, to tear up part of the agreement. Accordingly, I regret it can be argued that there is no current breach of a Part 5 of the Bill, and add that, while this House must treaty obligation, only something rather less objectionable: act in accordance with its perception of what the rule the equivalent of a solicitor’s letter saying: “We intend of lawrequires, it should also bear in mind the admonition to continue negotiating in good faith, but you need to of the noble Lord, Lord Skidelsky,that we risk weakening know that we reserve all rights and, in particular, the the hand of our negotiators. right—if we have it—to tear up parts of the present agreement that we do not like, if it seems to us necessary 9.09 pm to do so”. This is close to being what English lawyers Viscount Trenchard (Con) [V]: My Lords, I too call a “repudiatory and anticipatory breach of contract”, would like to congratulate the noble Baroness, but it is probably on just the right side of the line. Lady Hayman of Ullock, and my noble friend Lord Thirdly, Article 184 of the agreement requires both Sarfraz on their excellent maiden speeches. I congratulate parties to use their best endeavours, acting in good my noble friend the Minister on introducing this Bill faith, to negotiate the agreements referred to in the under fire, so to speak. It builds upon the common political declaration. That obligation should be read frameworks approach to which the UK Government as being informed by the recitals to the Irish protocol. and the devolved authorities are sensibly committed in These repay careful reading. In particular, the parties order to preserve the status quo of intra-UK free affirm that the Good Friday agreement trade. “should be protected in all its parts”. At the time of devolution for Scotland in 1997 and Wales in 1999, the United Kingdom Parliament was There is ample scope for argument on what may free only to devolve those parts of legislative competence follow from that. It may be argued, as the Government that it, as a member state, still retained. High-level have already argued, albeit faintly and without particulars, principles and frameworks in many areas had already that the EU has in various ways itself been in breach been transferred by the member states to the union. of this good faith obligation. Reserving the right to The Scottish and Welsh Governments are now disapply certain provisions of the agreement at some disingenuously arguing that responsibility for these future point is not properly characterised as an outrageous high-level principles and frameworks should be transferred and unlawful threat to renege. It is something different— from Brussels to Edinburgh and Cardiff. Does my namely, making it clear that, if the EU persists in noble friend agree with the arguments advanced by conduct which the UK regards as a breach of Article 184, Nick Timothy in his article in today’s Daily Telegraph the UK reserves its right to treat the agreement, or part entitled “Devolution is a Mess That Fails the Public of it, as terminated or suspended. That, it may be argued, and Endangers the Union”? is a right that exists under Article 60 of the Vienna convention, which provides that a material breach of a As I am not a lawyer, I should not presume to enter bilateral treaty entitles the innocent party to terminate into discussion of the finer legal points. However, I the treaty or treat it as suspended, in whole or in part. would ask my noble friend if he agrees that the EU and the UK had already broken international law when Fourthly, to move away from the law of contract, it they signed the withdrawal agreement in October 2019 might be said that dealings between the EU and the because it was a breach of the conditions of the UK over the last four years have shown very clearly, Lisbon treaty.According to the website of the European that in zero-sum adversarial contractual negotiations, Union, Article 50 provides for the negotiation of a it is sometimes necessary to play with a hard ball. The withdrawal agreement between the EU and the speech made by the noble Lord, Lord Skidelsky,displayed withdrawing state, defining in particular the latter’s hard-headed pragmatism which Mr Keynes surely would future relationship with the union. The wording of the have admired. The noble Lord correctly observed that article itself refers to negotiation with the withdrawing the most complex treaties involve constructive ambiguity state, taking account of the framework for its future and, often, a degree of what might be called “covert relationship with the union. However, that did not bad faith”. happen. Those are the arguments. I do not suppose that I I do not think for one moment that the UK’s have persuaded the noble and learned Lords, Lord Judge international reputation as a country that upholds the and Lord Brown of Eaton-under-Heywood, with whose rule of law is placed at risk by this Bill. I believe the speeches I agree, and I have not come close even to conclusion of the Bingham Centre—that this Bill has persuading myself that Part 5 of the Bill is defensible. serious implications for the rule of law—is based on a Clause 47 is an astonishing provision. In that respect, I narrow legal interpretation of the facts, ignoring the listened with dismay to the Lord Chancellor’s recent refusal of the EU to negotiate Article 50 and our answers to questions put to him by the noble Lord, withdrawal in accordance with the treaty provisions. Lord Pannick. The Government seem to be largely Our acquiescence to the EU’s demands for the two-stage ignoring the details of exhaustive dispute resolution negotiation was surely predictably going to lead to the provisions in the agreement—in particular,in Article 168 present impasse. The world knows that the UK is still —which makes it mandatory to use them. Theyhave negotiating to leave the EU. To suggest that our trade not done much more than faintly to sketch a case that partners will be shocked or surprised by this turn of the EU has acted in bad faith; if they want to rely on events is not true. Indeed, the Prime Minister has that, they should set it out in detail. This is a very always been clear and consistent that we want a Canada- wobbly position from which to launch a case that the style trade agreement and that we will not agree to an 1373 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1374 internal border between Great Britain and Northern doubt about that, one need listen only to the powerful Ireland, dividing the United Kingdom customs territory speech by the noble Lord, Lord Howard of Lympne, in two. earlier today. And this is despite the intemperate attack I have the highest regard for the noble and learned by some Conservative MPs on the most reverend Lord, Lord Judge, but I would ask him if he knows Primate and his fellow archbishops for daring to have why the EU and the learned lawyers of the Bingham a letter published in the Financial Times today. Centre have remained silent and expressed no outrage The second point concerns the role of your Lordships’ at the finding of the German constitutional court that House. The work of our committees—the Constitution the ECJ exceeded its powers in its recent approval of Committee, the European Union Select Committee and the ECB’s public sector purchasing programme. I would the Delegated Powers Committee—has been outstanding also ask him if he thinks that Lord Diplock was right and has hugely informed today’sdebate.If your Lordships in 1964 in defending the sovereign right of the Crown believe that Part 5 should not be included in the Bill, to change its policy. The Crown needs the flexibility to we should not be afraid to say so when we vote on the use its sovereign rights as much as ever today, which amendment of the noble and learned Lord, Lord Judge, should help it reach an 11th-hour agreement with the tomorrow, and when we consider the Bill line by line in EU in the interests of all our citizens. Committee. However, if Part 5 survives, I hope your Lordships will look closely at new Clause 56. It provides 9.14 pm for the House of Commons to have to approve a resolution before Ministers can use the powers in Lord Faulkner of Worcester (Lab) [V]: My Lords, Part 5 but it is silent about any role in your Lordships’ this has been a fascinating debate, with many important House. That is something I hope we can address as issues raised with skill and eloquence in all parts of the well. Chamber,and enhanced by two excellent maiden speeches. I am a member of the EU Select Committee. The 9.18 pm views I express in this debate are of course my own, Lord Hay of Ballyore (DUP) [V]: My Lords, as a though I should make it clear that I agree with every proud advocate for our great union of nations, I will conclusion contained in the report which we published never shy from expounding the benefits of belonging last week on Part 5 of the internal market Bill. The to, and strengthening, the deep ties and bonds across report was agreed unanimously, and I pay tribute to the United Kingdom. In an Ulster-specific context, we the noble Earl, Lord Kinnoull, who chaired our must continue to do all we can to work across all proceedings with skill, distinction and humour. sectors to ensure that Northern Ireland plays its full I also congratulate my noble friend Lady Taylor of part in the long-term future growth of these islands. Bolton and her colleagues on the Constitution Committee Working together does not always mean agreeing on on their report which focuses on devolution arrangements every issue; focusing on the general work in hand means in the UK and the rule of law. Other speakers have working together even if you disagree on certain issues. dealt with the devastating nature of those issues: the As we look to the matter before us this evening, we consequences for Britain’s reputation abroad if we should remember how far Northern Ireland has come appear prepared to ignore the rule of law, the threats and should be reminded of the lives lost and of families to the 1998 Belfast/Good Friday agreement, and the who have fewer seats at their tables today. As we aggravation of the risk that Scotland will leave the acknowledge this, and reflect on historical differences, United Kingdom. we should let the reign of peace and prosperity over One concern which has not received much attention the last two decades be an important guide looking in this debate, except, I think, from the noble Baroness, forward. Lady Finlay of Llandaff, is the threat posed to public Turning to the specifics before us, the Bill allows the health. Public health is a devolved responsibility, and United Kingdom to prosper together, and importantly the individual nations of the UK have different goes some way toward protecting businesses in Northern populations and different priorities.Scotland, for example, Ireland in all eventualities. The Bill makes certain pioneered minimum unit pricing for alcohol and England provisions for the regrettable flawed scenario in which led the way on prohibiting tobacco displays in shops. parts of the withdrawal agreement would create potential However, the narrow drafting of this Bill substantially barriers to internal trade. It is for that reason, above undermines the ability of all parts of the UK to all else, that I support the Bill before your Lordships’ innovate and improve public health policy. This is House today. because of the very limited exceptions for public health. Presently, the EU can inflict significant economic Furthermore, the current exclusions, including the list damage on the people of Northern Ireland if a deal is of legitimate aims that override non-discrimination, not achieved. My party colleagues in the other place can be removed or weakened by statutory regulation. tabled amendments that sought to protect Northern In my view, the Bill must be amended to allow the Ireland still further. This Bill is therefore a necessary Governments of the four UK nations to protect the insurance policy at this stage, although it perhaps does health of their populations. Protecting human health not yet go far enough. Concern still exists for example must be included as a legitimate aim for overriding all about the Bill’s exclusion of Northern Ireland from market access rules. I shall be supporting amendments protection against EU interference in state aid. It to this effect in Committee. would be wholly unfair if business owners in Northern In my last few moments, I want to make a couple of Ireland were unable to avail themselves of the same other points. First, I want to emphasise that this is not assistance available to similar companies elsewhere in a rerun of earlier Brexit debates. If anyone is in any Britain. 1375 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1376

[LORD HAY OF BALLYORE] and where does the Bill leave the common frameworks? I support the general principles of the Bill, as it is Is it intended that work will continue to proceed on aimed at preventing any fundamental undercutting of the achievements that have been made to date on those the union, which would damage business, create frameworks? uncertainty, and dampen prosperity. There should be I really have no quarrel with what the noble and no question of further hurdles being introduced that learned Lord, Lord Judge, set out in moving his would be barriers between parts of the United Kingdom. amendment, nor with my noble friend Lord Cormack. Regardless of the eventual free trade deal with the EU, I also found myself in absolute agreement with my there is a need for a sensible and mature approach to noble friends Lord Howard and Lord Lamont. What I Northern Ireland. Regrettably, in some respects, that regret most about the Bill in its present form—not just approach has been missing to date. Part 5, to which many have referred, but Parts 1 to 4, Key to all this is Northern Ireland’s economic reliance although Part 5 in particular—is the fact that on the United Kingdom market, as total trade to the Government are increasingly standing alone Great Britain is significantly greater than trade to the internationally and domestically, claiming that they EU. It is the duty of government and political alone are right and everyone else is wrong. There are representatives to put the interests of the people of the 27 member states in the EU and they have reached, United Kingdom first. That means leaving the EU and maintain, a common negotiating position. It is a fully, securing our sovereignty, controlling our borders, matter of note, and it is to be welcomed, that there is a and protecting the integrity of the United Kingdom change in that negotiating position announced by the internal market and our union. EU today. In conclusion, we need to work collaboratively to The Bill in its present form shows how we risk ensure that the whole of the United Kingdom benefits forming barriers and disagreements with the devolved equally from the various trade deals, economic Assemblies, which will be hoping to work as closely as opportunities and further prosperity that will come possible with the Parliament at Westminster. As my from being a free and independent nation state. We noble friend Lord Vaizey has said, there is time, and have to remain focused on ensuring that our exit from hopefully scope, to retrieve this situation. I wish the the European Union is a launchpad for a stronger, passage of the Bill well, but in heavily amended form more determined and more united Britain. before its adoption.

9.22 pm 9.27 pm Baroness McIntosh of Pickering (Con) [V]: My Lords, Baroness Bowles of Berkhamsted (LD) [V]: My Lords, I am delighted to have the opportunity to participate I, too, welcome our maiden speakers. in this debate. I warmly congratulate the noble Baroness, Like many noble Lords, I find that the conclusions Lady Hayman of Ullock, and my noble friend of the Constitution Committee, the European Union Lord Sarfraz, on their excellent maiden speeches, and Committee and the DPRRC chime with my own I bid them a very warm welcome to the House. concerns about the Bill. I concur with the many My noble friend Lord Callanan set out the reasons magnificent speeches today, led by the noble and why, in his view, the Bill is necessary, in particular to learned Lord, Lord Judge, about the rule of law. My extend market access of goods, services, professional humble offering is that the Government have made qualifications and other aspects, and to create a coherent their bed, must lie in it and must use internationally internal market now that we have left the European respected ways to work with it to best advantage. Union. There were always going to be complex questions Regrettably, the theme throughout the Bill seems arising following Brexit, including what happens to not to be about working with things but a rush to the powers that are returned to the United Kingdom, legislate around primitive principles, lacking the and how those powers are exercised by the Parliament refinements of consultation, consent or even continuity at Westminster and by the devolved Administrations. I concerning devolution. Really, the question is why. pay tribute to the work of both the Government and The Bill seems designed to upset. Is it part of the the devolved Administrations through the common “revolution by disruption” plan, or was it thought that frameworks. This has been an example of excellent boxes needed ticking right now? co-operation and achievement in reducing to just 16 The UK internal market must be taken seriously, or 18 issues that will require further legislation. but why is there not time to stand still and work One area that has not been referred to a great deal intergovernmentally and then legislate where needed, during this debate is how agriculture will be dealt with without recourse to Henry VIII clauses to make up for following the adoption of the Bill in its present form. not yet really knowing what to do? The powers in the Scotland has a separate agricultural policy that is much Bill are a land grab, taking the soul, if not the territory, the envy of North Yorkshire, Cumbria, Northumberland of the devolved nations as well as sidelining Parliament, and other farmers in the border regions. It gives rise to allowing anything to be changed by regulation. the question of how those policies will be administered I want to make points about the CMA and whether now through the common frameworks. it is the right body and construction to be the embryonic I follow what a number of other noble Lords said unelected guardian of the single market. Paragraph 35 earlier,particularly the noble Baronesses, Lady Andrews of the Constitution Committee’s report says it all. and Lady Finlay of Llandaff, and the noble and Why choose the CMA? Why not establish a properly learned Lord, Lord Hope of Craighead, in asking the independent body representing all four nations? Further, Minister specific questions. What is the situation now, the input tenets in the EU lookalike texts of mutual 1377 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1378 recognition and non-discrimination have neither been The Secretary of State for Northern Ireland and a agreed by all nations, via the frameworks or otherwise, unanimous Constitution Committee have expressed nor maintain the degree of flexibility and subsidiarity the view that the Bill itself is in breach of the withdrawal that already exists in the UK. agreement, or will be by the time it is entered into The CMA itself is sponsored by a Government force. I agree, although perhaps it matters little since ministry and all the appointments are still governed by whether it is unlawful itself, the whole point of Part 5 the Secretary of State—despite, for the OIM side, is, on any view, to enable unlawfulness. after consulting the devolved authorities. But this is a Then there are the judges: Francis Bacon’s “lions serious question: whythe hermetically sealed and secretive under the throne”. Here too, the Bill is deeply troubling. CMA inquiry panel process? I understand it for matters It not only authorises the Government to act unlawfully of competition where commercially confidential but deems such unlawful actions to be lawful. The information is considered and policy is well developed, lions are still on show, but they are comprehensively but for the internal market it will be a matter of public defanged by successive subsections of Clause 47. Deprived interest and constitutional development. That surely of their usual power to strike down unlawful regulations, should not be secretive. It will not be simply technical they might as well be mounted on the wall. analysis. That leads to overbearing harmonisation; Imagine, if we can, that the EU were to renege how often have we fought the EU over that? on the guarantees that it gave to British citizens in Analysing the UK internal market must encompass the withdrawal agreement. There would be justified subsidiarity and degree, at least once that has been accusations of perfidy and duplicity, yet it is, I am properly agreed. Does the CMA have that expertise? afraid, precisely such duplicity that we are asked to Surely the evidence, procedures and reasoning need to facilitate today.Can the strategic damage to our reputation be seen and, if I may say so, be robust enough to as a trustworthy international partner be mitigated by withstand public scrutiny. The Minister has already any tactical advantage in the negotiations? Rather the twice referenced the support of what are, in the end, reverse, I suspect, as the noble Lord, Lord Jay, suggested relatively few of the total of UK businesses. Even with all his diplomatic experience. Showing contempt within the unsuitable structure, unsuitably appointed, for our existing agreement with the EU will hardly a minimum task group of three is too small and encourage it to sign a new one. More likely it will exclusive. Why should it be potentially smaller than enhance the unity of the 27, at just the time when we the minimum number of judges sitting in the Supreme should be testing it, and its determination not to give Court? Are panellists so superior? For such a us the benefit of any doubt. constitutionally important matter, this all needs a The Bill seeks to make Parliament complicit in a rework. scheme that openly flouts two foundational principles: that agreements, once made, should be kept, and that Baroness Scott of Bybrook (Con): I remind everybody government is not above the law.How could we possibly that there is a four-minute advisory time. We are go along with that? getting quite late and there are still rather a lot of This is not a House of opposition, as the noble speakers to come. Lord, Lord Cavendish, rightly reminded us; but it is a 9.31 pm guardian of constitutional principle and, as such, it needs to send a strong and clear signal. For my part, I Lord Anderson of Ipswich (CB) [V]: My Lords, look forward to supporting the amendment of the noble shortly after the Singing Revolution restored democracy and learned Lord, Lord Judge, to voting at the earliest to Estonia, its legal profession welcomed a British feasible opportunity not for some messy compromise delegation to Tallinn’s largest law firm. At the centre but for the simple removal of Clauses 44, 45 and 47, of its new partners’ table was a brass disc, proudly and, like my noble friends Lord Butler and Lord Lisvane, engraved with the words “pacta sunt servanda”. As a to strapping in, if necessary, for a bumpy ride. newly independent nation, our hosts knew the importance of ensuring that promises are honoured, whether in 9.36 pm commercial agreements or international treaties. The precise meaning of such promises is often Lord Bowness (Con) [V]: My Lords, it is a little disputed, but Part 5 of this Bill is no inadvertent or daunting to follow the learned speech of the noble merely arguable breach of some vague or trivial Lord, Lord Anderson of Ipswich, and the excellent international undertaking. Its whole purpose is to maiden speeches that we have heard this evening. signal to our negotiating partners a kind of anarchic However, Brexit is a phantom that still haunts and disdain: disdain for this Government’s recent, specific divides us, and the major issues in the Bill, whether the and binding commitments on export declarations and stated intention to flout a freely entered-into withdrawal state aid, and disdain for the very principle—fundamental agreement or the potential disputes around the devolution to our status in the world—that treaties must be settlements as affected by the Bill, are a manifestation observed. With respect to the noble Lord, Lord Lilley, of that divide. the Kadi case in which I appeared against the EU is no I put it to your Lordships, with some regret, that sort of precedent for a similar attitude on the part of the fault for that rests fairly and squarely on the Prime the EU or its court. In that very case, the Court of Minister and his cohorts of hard-line Brexiteers. He Justice of the European Union affirmed its long-standing said that the divide should be healed, but nothing has insistence that been done to bring those of a different point of view “the European Community must respect international law in the close. Most of those who voted remain are ready to exercise of its powers.” accept the realities of leaving the European Union but 1379 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1380

[LORD BOWNESS] 9.40 pm wanted a closer collaborative settlement. There has been no attempt to accommodate those views. We Baroness Clark of Kilwinning (Lab): I am pleased rejected the single market, the customs union, the to join others in welcoming the noble Baroness, Norway option, membership of agencies such as the Lady Hayman of Ullock, whom I have known for a European Aviation Safety Agency, and all the matters number of years, and the noble Lord, Lord Sarfraz, that benefit citizens—mutual recognition of drivers’ whom I met this evening, on their maiden speeches. I licences, blue badges and the European health insurance hope they enjoy their time in this place. card, which are currently in limbo. But fear not: we We have had a number of powerful speeches focusing have a blue passport. on various technical features of the devolution aspects The Prime Minister told us that he had achieved an of this legislation, but I am not going to focus on oven-ready deal. He crowed about it and fought an specific provisions on whether it will still be possible election on its basis. The electorate were, it seems, sold for the devolved institutions to regulate on issues such a gold brick because, as it turns out, much of the as single-use plastic, or indeed on the state aid provisions. political declaration that accompanied the oven-ready I am going to focus on the politics of the situation, agreement has been abandoned, if not rejected. There and I do that as a former Labour MP in Scotland and is no more talk of the as someone who was heavily involved in the independence issue in the lead-up to the 2014 referendum. The “ambitious, broad, deep and flexible partnership” constitutional debate in Scotland completely dominated and more, or of the level playing field. Scottish politics, both during the lead-up to that two- Now, the famous agreement—signed by the Prime and-a-half-year-long referendum and increasingly as Minister and approved by this Parliament—is considered the referendum went on. Indeed, the issue has not gone defective, and this Bill seeks power to flout international away, and it is still centre stage in Scottish politics. law and amend the agreement to make it acceptable to As the House is aware, the Scottish Parliament the leader of the Brexit legion. The enormity of what voted 90 to 28 against giving legislative consent to this the Government want to do has been more than Bill, and it was suggested earlier on that that was the adequately expressed by other noble Lords of both SNP. I want to make it absolutely clear to this House remainer and Brexit tendencies. To produce a measure that the only Members of the Scottish Parliament who considered constitutionally and legally appalling certainly voted in favour of giving legislative consent were the unites both sides, but not in a way that one would have Conservative Members. Every other political party hoped. and every other MSP voted against giving legislative It is convenient to blame the European Union for consent. the current situation but whatever difficulties we face The Government will no doubt say again when they in the negotiations, we are the ones who decided to leave. sum up—as they did at the beginning of this debate—that We have a very integrated market with the European further powers are being devolved as part of the Union, we are 22 miles from mainland Europe and we changes taking place, and that some of the powers have been part of the system for more than 40 years. It coming back from Europe will be devolved to the is unrealistic to expect that the European Union will devolved institutions. I respectfully say that that is not treat us as just another third country. Now, we have really the point; the issue is that certain powers are the spectacle of the Government almost rejoicing at being eroded without consent, and certain powers of the prospect of no deal. We shall be like Australia, the devolved institutions are being eroded when the which has such good arrangements that it is seeking a direction of travel should be transferring powers to free trade agreement with the European Union. We those institutions. I was really interested in listening to want a Canada free trade agreement, but not just the the speech of the noble and learned Lord, Lord Hope Canada deal—we want Canada-plus, because we believe of Craighead, who considered whether it was a power that we are in some way entitled. grab or not. We refused an extension of the transition—pointless It is absolutely clear that in Scotland in particular—and bravado. Now we do not want to continue talking, I will focus on Scotland, because that is my background— even when the EU negotiators are ready to come there is a genuine view that this legislation undermines here—more bravado. Small wonder that the EU has the devolution settlement. The backdrop is that, since reacted to the Bill with a determination to stand by the 1950s, a significant divergence has taken place what has been freely agreed and signed by this Prime in the political views and voting of people in Scotland Minister. We should drop the provisions in the Bill from those south of the border. To put it simply, which seek to undermine and change the withdrawal Scotland has tended to vote for social democratic-type agreement. politics, while nationally we have had few Labour I will vote for the amendment of the noble and Governments elected in that period. Those political learned Lord, Lord Judge, and vote for any amendments differences, and the differences in voting habits, have presented during the passage of the Bill which seek to had a major impact in Scotland over many decades. amend the offending provisions. In considering how It has thrust the constitutional debate into the centre far we should press our objections, we need to revisit stage of Scottish politics. Most people in Scotland the Prevention of Terrorism Act 2005, when Conservatives simply believe that decisions affecting Scottish and others maintained our objections for five rounds people should be made in Scotland, and they do not of ping-pong. We must not acquiesce in recreating our think it is fair if they get policies they feel they have reputation as perfidious Albion. not voted for. 1381 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1382

It is often said that it was Margaret Thatcher’s expressed here. I also offer my congratulations and Government who delivered devolution. The behaviour best wishes to the noble Baroness, Lady Hayman, and of this Government is again having a big impact the noble Lord, Lord Sarfraz, on making their maiden on the constitutional debate, so I very much hope that speeches. I look forward to working with them. I will they think again. concentrate on Part 5 of the Bill, because I believe that it is totally unnecessary and very damaging. I refer to 9.45 pm the bits that deal with trade between Britain and Baroness D’Souza (CB) [V]: My Lords, the Bill is Northern Ireland and the Northern Ireland protocol. littered with Henry VIII powers, the Government’s When the Conservative Party jettisoned Theresa justification being that it allows for speed in decision- May’s proposals and decided that “getting Brexit done” making and safeguards trade within the UK, meant leaving the EU customs union, a formal border notwithstanding that Parliament has already shown between the EU and the UK became inevitable. As itself to be adept at speed in dealing with the current regards Ireland, this interface could be located only Covid crisis. The tendency on the part of a Government along the north-south border on the island of Ireland to extend their powers is a slippery slope; and power, or at UK ports, effectively a border in the Irish Sea. In once conceded, cannot easily be won back. It is therefore signing the withdrawal agreement and the Northern of great significance that relevant committees—the Ireland protocol, the Government chose the Irish Sea, House of Lords European Union Committee, Delegated despite much rhetoric to the contrary. The noble and Powers and Regulatory Reform Committee and learned Lord, Lord Clarke of Nottingham, made this Constitution Committee—have questioned and even point earlier in this debate.In the process, the Government strongly advised the deletion of such clauses that managed to set the nationalist and unionist communities empower the Government through secondary legislation. against each other and undermine relations with Dublin The Bill goes beyond what is needed to ensure by leaving the possibility of a hard border on the economic and regulatory coherence between the four island of Ireland on the table for so long—the very UK nations, and undermines the purpose of the common issue which the Northern Ireland protocol sought to frameworks programme, as well as the principles of provide for and ensure did not happen. mutual recognition. The Bill challenges the Sewel Let me be clear that while all Irish nationalists—I convention, as evidenced by the Motion agreed in the am one myself—as well as the EU and others, opposed Northern Ireland Assembly on 22 September, and the customs infrastructure on the north-south border and Scottish and Welsh Governments’ stated intentions to were concerned about the damage it would do to our withhold consent for the Bill. historic settlement, no nationalists want a hard border The powers that the Government afford themselves in the Irish Sea. I share many of the concerns of my are breath-takingly wide, including the non-recognition unionist colleagues in Northern Ireland and want to or enforcement of rights, powers, obligations, restrictions see minimal friction on goods travelling from Britain and remedies contained in the withdrawal Act. The Bill to Northern Ireland. I also want to see unfettered allows Ministers to interpret, modify or disapply any access to the GB market for Northern Ireland businesses. of the provisions set out in international and domestic This should not be a cause of division. No one on the law, defined as any provisions of the European island of Ireland, north or south, wants heavy bureaucracy Communities Act, any other EU or retained EU law and around trade with Great Britain. “any other legislation, convention or rule of international or The way to maximise the possibility of this highly domestic law whatsoever, including any order, judgment or decision desirable outcome is to sign a zero-tariff, comprehensive of the European Court or of any other court or tribunal”. trade agreement with the EU. This is achievable, and I The concession to parliamentary approval for the would like the Minister to comment on it in his winding- implementation of derogation clauses allowed the Bill up. Instead, we have the internal market Bill, which, to pass in the other place, but the Government have under Clauses 44, 45 and 47, proposes to empower UK shown their willingness to ride roughshod over an Ministers to breach their legal obligations under the international treaty. Can they therefore not also do the protocol and which reopens, dangerously, the whole same with this commitment citing, for example, bad political argument. I am totally opposed to this and I faith on the part of the EU to gain parliamentary will vote tomorrow for the amendment to the Motion consent? Legislation, once on the statute book, has a in the name of the noble and learned Lord, Lord Judge. habit of being resuscitated for a purpose other than that originally intended; as such, this so-called safeguard amendment could well become a hostage to fortune. 9.52 pm Meanwhile, statutory instruments are increasingly Baroness Altmann (Con) [V]: I join other noble Lords bolstering skeleton Bills, and both recourse to judicial in congratulating the noble Baroness, Lady Hayman reviewandmechanismstocounteractsecondarylegislation of Ullock, and my noble friend Lord Sarfraz on their are severely limited. A precedent is being set that maiden speeches, and I warmly welcome them to this challenges the rule of law. Clauses 44, 45 and 47 of the House. Bill must not reach the statute book. I too will support On the Bill before the House, I wholeheartedly the amendment in the name of the noble and learned support the amendment to the Motion in the name of Lord, Lord Judge. the noble and learned Lord, Lord Judge, for all the reasons that he so admirably and eloquently laid out, 9.48 pm and that in the name of my noble friend Lord Cormack. Baroness Ritchie of Downpatrick (Non-Afl) [V]: My I share the deep regrets expressed by my noble friend Lords, it is a pleasure to follow the noble Baroness, Lord Bridges and agree with all the remarks of my Lady D’Souza, as I concur with a lot of her views noble and learned friend Lord Clarke. 1383 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1384

[BARONESS ALTMANN] The Bill should include derogations that limit the The damning reports of three House of Lords Select primacy of mutual recognition for matters of Committees, and the exceptionally clear explanation environmental protection. In 2011, Wales led the way presented to the House by my noble friend Lord Barwell, in introducing a charge on plastic carrier bags. It are clear indications of why it is our duty to ensure worked so well that the other parts of the UK followed, that the Bill, particularly Part 5, does not pass through and the outcome today is a higher standard of this House. I cannot, in all good conscience, support environmental protection for us all. Public health is the measures in the Bill, particularly Part 5 but much another area where devolved powers really matter, else, too. I am afraid that I will have to vote, on every because they can help to effect positive changes more occasion, against the Government’s intention to break quickly than centralised structures.Wehave seen devolved international law. I congratulate the most reverend Administrations give the rest of the UK a sense of Primate the Archbishop of Canterbury on his brave direction with policies that improve public health. One intervention, and I join other noble Lords in warning example is Scotland’s minimum unit pricing for alcohol, about the potential of the Bill, as presented to this as the noble Lord, Lord Faulkner of Worcester, has House, to pave the way to authoritarian rule. mentioned. There are other examples. As it stands, Principle must come before party, and this is the however, the Bill could lead to poorer public health moment of truth when we must face up to the outcomes in one country because of the right of consequences of seeking to have the same rules within market access from others. the four countries of the UK while pretending that There is a solution: the Government could set out a these rules can somehow differ from those of the EU, general public health exception to the mutual recognition particularly Ireland, without erecting borders either in principle, along with the necessary derogations on the Irish Sea or on the island of Ireland. Should those matters of environmental protection. However, as the mythical alternative arrangements to do away with the noble Baroness, Lady Finlay of Llandaff, pointed out, need for such borders materialise—arrangements that these are matters, first, for common frameworks. Market were promised to us a year or two ago—that would access principles should be considered only when have been fine, but in their absence we must ensure discussions on common frameworks have failed. Even that the Bill does not pass through this House as then, the power to introduce derogations would remain presented to us today. essential.

9.59 pm 9.55 pm Lord Vaux of Harrowden (CB) [V]: My Lords, I will Lord Shipley (LD) [V]: My Lords, the Bill will leave detailed discussion of Part 5 to colleagues, but I represent a further stage in the eventual break-up of will just say that I find the idea of a UK Government the United Kingdom should it proceed unamended. It knowingly and deliberately breaking the law—to wriggle centralises power awayfrom the devolved Administrations, out of a deal signed less than a year ago—repugnant. gives excessive powers to Ministers, and undermines It is not something that this House should accept. In the rule of law. the justifiable outrage over Part 5, however, there is a In the Minister’s opening address, in which he risk that the other flaws of the Bill get lost. As the justified the Bill, he said that the Government wanted Constitution Committee has explained so well, it has a coherent internal market in the UK, with control of significant implications for the UK’s devolved structure. subsidies and fair competition. This approach sits There are three elements that are necessary for the oddly with this Government’s negotiating position efficient operation of an internal market: rules for with the EU, where we are leaving a coherent internal market access, a framework for agreeing minimum market seemingly to do the opposite with regard to standards, and a mechanism for resolving disputes. subsidies and fair competition, and, in the process, to This Bill provides only the first element, the market override the devolution settlement. access rules. If the EU’s single market had worked The Minister referred to a huge transfer of powers with only market access rules, it would have allowed, from the EU to the devolved nations following Brexit. say,Romania to reduce its standards so that its businesses He neglected to say that under this Bill the devolved could produce, for export, substandard goods that nations would lose some crucial powers. It is little could be sold freely here. We would not have accepted surprise that the devolved nations have reacted as they that as part of the EU, so why would we think it have. appropriate for our own internal market? I do not In the face of the coronavirus pandemic it has been often say this, but the Scottish Government are right: beneficial to have the devolved Administrations devising this Bill undermines their devolved competencies. This and piloting different approaches. Weneed to encourage works both ways, and the UK Government should be new thinking that tests potential solutions, not stifle it just as worried about, say,Scotland reducing its standards on the basis that Whitehall knows best. As an example, and selling substandard goods into the rest of the UK. the Welsh Government are proposing a ban on the As the Welsh Government pointed out, it incentivises sale of nine single-use plastic products, while the UK a race to the bottom. Government are proposing to ban only three. This Bill Toavoid this, a system for agreeing minimum common would mean that in Wales the six other products could standards is essential. We have heard that good progress still be sold, because they have been made in England, has been made towards agreeing common frameworks, Scotland or Northern Ireland. We would therefore but the Bill completely ignores them. Indeed, it would have lower environmental standards—levelling down, undermine them. I would go as far as to say that, if the not up. Bill is not amended to take account of the common 1385 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1386 frameworks, including the necessary flexibility described reasons for it, but he is a lawyer of considerable ability by my noble and learned friend Lord Hope of Craighead, and integrity, and of course he went on a point of it will be more damaging to the UK’s internal market principle. We should not lose sight of that. than no Bill. Like the Constitution Committee, I question The breaking of international law quite openly whether this Bill is really necessary.Perhaps the Minister and, even when challenged, confirming the breach, is could explain why the common frameworks have not a pretty sight. It represents a move against a treaty been ignored and how a race to the bottom will be and a protocol that were only recently concluded and, avoided. indeed, hailed as a triumph. This Bill goes against a The third element required for an internal market fundamental principle of our law, national character, to work is a mechanism for dispute resolution. To be constitution, history and deeply held principles as a acceptable to all parties, any mechanism needs a high country, taken on with mother’s milk: the upholding degree of independence, all parties should be represented, of the law. There can be no excuse for it. It is no excuse and it must have the ability to resolve disputes. The that we may not use it, that it needs a vote in Parliament Bill creates the Office for the Internal Market, but that or that other countries may breach international law. is neither independent nor representative. And it cannot It is, quite frankly, inexcusable, and our Ministers actually resolve a dispute: all it can do is issue advice must in their hearts know that. and reports. Does the Minister not see a contradiction Openly breaking international law is not the British in being ready to die in a ditch to prevent the European way. From Magna Carta onwards, this country has Court being the arbiter of a trade deal, but not allowing stood for the rule of law, and this Bill should alarm us an independent arbiter in our own internal market? all greatly. It is not in our national interest for it to There is general agreement throughout the UK—and pass, as we see the tearing up of this deeply held I agree with it—on the need for an efficient internal principle sending a shudder through the reeds at market, but this Bill does not achieve that. We must Runnymede. I will certainly be supporting the noble adopt a more consensual approach between the UK’s and learned Lord, Lord Judge, and seeking to improve constituent parts. After all, there is one overriding this legislation, which is deeply flawed. requirement for an internal market: the parties must want to be part of it. This Government in particular The Deputy Speaker (Baroness Morris of Bolton) must know that the heavy-handed imposition of rules (Con): The noble Lord, Lord Berkeley, and the noble from the centre can lead to countries wanting to “take Baroness, Lady Bennett of Manor Castle, have both back control”. If the Government want to keep this withdrawn, so I now call the noble Lord, Lord Arbuthnot kingdom of ours united, they would do well to remember of Edrom. that. 10.06 pm 10.03 pm Lord Arbuthnot of Edrom (Con): My Lords, it is a Lord Bourne of Aberystwyth (Con) [V]: My Lords, pleasure to follow my noble friend Lord Bourne, with it is an immense pleasure to follow the noble Lord, whose words I agree entirely. We have four minutes; I Lord Vaux, who made some very powerful points. I shall try to take no more than one. too pay tribute to the maiden speeches of both the In this Bill, the Government invite us to pass a law noble Baroness, Lady Hayman, who made some very to break a law. That is not only wrong but patently valuable points on the environment, and my noble absurd. If we believe in law, we should not break it. If friend Lord Sarfraz, who spoke powerfully about we do not believe in law, then we should not be passing entrepreneurship. I also pay tribute to the report of it. If the Government can break the law, why should the Constitution Committee, which I found very the people obey it? If the UK can break the law, why compelling. should other countries obey it? So the damage of this This Bill presents two very real concerns for me. Bill will last for the long term. In signing the protocol, The first relates to the relationship with the devolved we gave our word. Nothing has changed since then Administrations. Over the years, we have made progress and we should keep our word. I shall support the in handling devolved relationships. Naturally, it was a amendment of the noble and learned Lord, Lord Judge, little bit raw in the early years, but it has improved because this Bill brings shame on this country. noticeably. There is a carefully constructed balancing of interests in the devolved world and we have seen 10.07 pm that with the common framework: it exemplified that. Lord Brooke of Alverthorpe (Lab) [V]: My Lords, I I had the opportunity—indeed, the privilege—to see congratulate my noble friend Lady Hayman of Ullock that at first hand: discussion, consultation, and often and the noble Lord, Lord Sarfraz, on their great agreement. This Bill throws all that over, and that is maiden speeches and look forward to hearing them in regrettable. It is heavy-handed and pulls rank, and the future. This has been an extraordinarily long Second that is unwise. Acting like Goliath with the flexing of Reading and an exceptional one in many respects. muscles is not an approach with much to commend it, However, I think it is worth reflecting on the fact that particularly given the outcome of that particular some of the topics on which there have been the engagement. We need consultation and real engagement strongest feelings and arguments—for example, Part 5 if we are going to keep our union united. of the Bill, the opposition to which I fully support—are My second real concern relates, of course, to Part 5. not actually the topic that is foremost in the minds of I very much regret the resignation of my noble and the public at the moment. That, of course, is Covid-19 learned friend Lord Keen of Elie. I understand the and their health and well-being. 1387 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1388

[LORD BROOKE OF ALVERTHORPE] problematic in practice, but Mr Johnson said that we So, like the noble Baroness, Lady Finlay of Llandaff, were wrong; it was fine; indeed, it was fantastic—his my noble friend Lord Faulkner of Worcester, and the triumph. He won his majority and he used it to ensure noble Lord, Lord Shipley—who spoke just a few that this Parliament ratified his treaty. It thus became moments ago—I will focus on what might seem to be a binding on the country and on all of us, whatever fairly narrow area: protecting the UK’s public health, reservations we may have had about it: binding in law in so far as this Bill will do so. Will the Bill improve it and binding in honour—I repeat, honour. That is or not after we leave the EU internal market? Does it what this is all about; that is what makes it so shocking provide the framework, to which the noble Lord, that Mr Johnson now asks us to empower him to Lord Shipley, referred, that will raise standards, or override his treaty—not to seek to change it, just to might the existing ones possibly be at risk? choose to break it—and require the courts to ignore it The devolved Administrations’ views are very clear whenever he decides they should. indeed: they fear the balance between market interests It is no wonder the head of the Government Legal and the public health policies they have been pursuing Service, Sir Jonathan Jones, resigned—I pay tribute to will be at risk and that the Bill could undermine and him for doing so. I cannot see how this House could in diminish their ability to enact essential public health honour collude in legislating to break a treaty. This is legislation for their countries. For example, on alcohol not about frontier checks; it is not about Brexit; it is labelling, they pointed out to me that, currently, alcohol about honour and reputation. For what purpose are labels lack basic information, such as how many calories we going to throw all that away? The noble and are in the product or the Chief Medical Officer’s learned Lord, Lord Clarke of Nottingham, pointed low-risk drinking guidelines—they are not there. In out that Mr Johnson has not told us what arrangements recent years, both the Scottish and Welsh Governments he envisages for the border between the EU single have worked hard at moving forward with significant market and our single market. If he overrides the changes there. The English lead is well behind; we are protocol, what will replace it? What will sustain the looking to consult, but we are well behind on most of Good Friday agreement? Why, if Mr Johnson believes these issues. that he has grounds for complaint against the EU, The devolved Administrations say that the drafting does he not use the dispute resolution procedures in of the mutual recognition principle in the Bill, which the treaty he signed? I refer the House to the nine unlike the current rules allows no general exemption questions in the letter that the noble Earl, Lord Kinnoull, for protecting health, means that Governments within as chairman of the EU Committee, sent to Mr Gove a the UK may set higher labelling standards for products month ago—they are at the back of the committee’s originating in their own nations but these standards report. They remain unanswered; I think that they are will not apply to products sold within their borders unanswerable. that come from other parts of the UK or from overseas It is hard to avoid the conclusion that what we have via another UK nation. Instead, those products must here is a simple case of buyer’s remorse. Mr Johnson only meet the standard required in the part of the UK now dislikes what his treaty said. Just as he chose in in which they originated. the current negotiation to tear up the political declaration This is just one of the many key public health that he agreed on this day last year, so he proposes to policies that will be hampered by the Bill. Although tear out bits of the treaty. What price honour? He gave the Government have included a public health exemption his word. Moreover, worse, he gave our word when, at from non-discrimination, there is no corresponding his urging, we ratified his treaty.Ours is the responsibility exemption for the mutual recognition principle. Others for saving the national reputation, and in honour we have raised this point and I again ask the Minister to must. explain why it is necessary to water down the public I will vote for the amendment in the name of the health protections that have existed in our markets up noble and learned Lord, Lord Judge, and I trust that to this point. we will then move on to remove Part 5 and, if necessary, insist with the noble Lord, Lord Butler, and persevere. 10.10 pm “Perseverance, dear my lord, Keeps honour bright.” Lord Kerr of Kinlochard (CB) [V]: I should say that it is a pleasure to take part in a debate with so many 10.15 pm distinguished speakers, such excellent maiden speeches Lord Wallace of Saltaire (LD) [V]: My Lords, some and one informed by three such good reports, but it of the language of the Bill brings back distant memories is not a pleasure because, like the noble Lord, from over 35 years ago. Proponents of free trade and Lord Arbuthnot, I feel that we should not be here open markets, including Margaret Thatcher as Prime debating this Bill; it is a bad Bill. Like the Constitution Minister, argued then that the absence of a common Committee, I cannot see the need for it, and I cannot framework for regulation across the European Community support the reopening of the devolution settlement, disadvantaged UK exports to our neighbours. It also putting new limits on devolved competence or binning meant that British standards usually copied US standards; the common frameworks. However, for me, the central American regulators exercised what lawyers termed issue is stark and shockingly simple: a treaty is a “extraterritorial jurisdiction”over foreign markets such contract binding on the states party to it. as the UK. For Mrs Thatcher, a European single Exactly 12 months ago today, Mr Johnson concluded market would mean that British Ministers could take a treaty. Some of us here said that we found its Irish an active part in negotiating international standards protocol offensive in principle and likely to prove rather than swallowing American ones. 1389 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1390

A generation later, in a far more integrated global situation where the EU is able to tell us what we can economy, it has become clear that standards and and cannot do throughout the United Kingdom by regulations will emerge from one of three major global way of state aid. That would be to continue to submit players: the United States, China or the European to the authority of the European Union and the Union. However, our Government are pursuing an European Court of Justice. How on earth is that antique and absolutist version of Westminster sovereignty, compatible with the decision taken by the British breaking free of the EU. In practice, that means we people in 2016, which politicians across the spectrum will end up following either American or European committed to honour? It would also be in breach of standards on food safety, financial regulation and the the Act of Union 1800 and the Good Friday agreement. internet without much influence on either—losing control, Our American friends must understand that any not taking back control. threat to the agreement comes not from London but The doctrine of sovereignty that underlies the Bill from Brussels. The EU has for four years sought to was set out by Albert Venn Dicey in his 1885 Introduction exploit the Good Friday agreement to its negotiating to the Study of the Law of the Constitution. Dicey advantage. To change the terms of trade between insisted that Westminster sovereignty was supreme Great Britain and Northern Ireland without the explicit and indivisible, internally and externally. Sir William consent of the people of Northern Ireland is to violate Cash frequently quotes him and the noble and learned the Good Friday agreement. Those in Washington Lord, Lord Keen, cited Dicey in this House when and Brussels who profess concern for peace in Northern challenged about the subject. However, Dicey was Ireland would do well to also consider that, without a writing at the high point of British imperialism when UK-EU agreement, the only authority that could English politicians could assume that Britain shaped conceivably want a hard border between the north and international law and other countries had to follow. the south is the European Commission—to protect The Empire has gone, but the mixture of imperial what Brussels calls the integrity of the single market. nostalgia and English nationalism that motivates hard- The UK has no intention of erecting a hard border. right Conservatives resists negotiating international The withdrawal agreement and its Northern Ireland law with other states. That is disastrous for Britain’s protocol do not stand in isolation. They are organically reputation, for London as a global centre for litigation linked to the intended agreement on the future relationship and legal expertise and for our ability to negotiate through Article 184 of the withdrawal agreement and future trade deals with others, as the noble Lord, the political declaration. As was confirmed by the Lord Carlile, and others have noted. noble Lord, Lord Pannick, in his letter to the Times of Dicey’s approach to domestic sovereignty was shaped 15 March last year, without such an agreement we by his bitter opposition to Irish home rule. He refused would be entitled, under Article 62 of the Vienna to accept that powers could be shared with a parliament convention, to terminate the withdrawal agreement. in Dublin. Conservative unionists follow Dicey, insisting Article 184 obliges the signatories to negotiate the that all authority in the UK rests in Westminster. That future relationship in good faith. The EU has failed to absolutist view,through opposition to successive proposals show good faith and thus is itself in breach of the for home rule, led to Ireland breaking away from the withdrawal agreement. There is no other way to describe United Kingdom. a negotiating position which, to take one example, This is a constitutional Bill. It goes to the heart of insists on the historic pattern of fishing quotas—the the rule of law within the UK as well as in relation to common fisheries policy by any other name. other states, and it threatens the further disintegration There are two falsehoods here: that the UK is in of our state, with Scotland leaving and Ulster moving breach of international law and that the British towards reunification to leave England diminished Government would violate the Good Friday agreement. and internally divided. The reality is precisely the opposite. The internal We are now watching right-wing Republicans bend market Bill seeks to remedy a situation where, thanks America’swritten constitution until it is close to breaking. to the EU’s bad faith and intransigence, the Good We have even seen the embittered partisanship of Friday agreement and the British constitution are American politics spilling over into this debate in the imperilled. Can the Minister reassure the House that attack by the noble Baroness, Lady Noakes, on the the Government are making an intensive effort to Bishops who are addressing the moral dimensions explain to our friends and allies around the world, of the Bill. We should not allow our increasingly including and especially the United States, the true authoritarian Government to bend the conventions of state of affairs? our own unwritten constitution any further. 10.23 pm 10.19 pm Baroness Greengross (CB) [V]: My Lords, like many Baroness Meyer (Con): My Lords, of course the of the previous speakers I am genuinely concerned Government’s Bill has my support. It is sheer common about what is being proposed in this Bill. My main sense. If the EU continues its obstinacy over fisheries concern—the one I will address—is that the Bill could and the level playing field, we are unlikely to have in well undermine areas of medical research and access place by the end of the year an agreement on the to new medicines. The Bill might also do considerable future relationship. It would be the height of folly not harm to the economic prosperity of the country, and it to have an insurance policy against that possibility. would breach international law—something I never That is what the Bill provides—no more, no less. expected to see a UK Government try to do, particularly Without such insurance, we could find ourselves in a through legislation. 1391 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1392

[BARONESS GREENGROSS] remain rooted in a refusal to reconcile themselves with I am the co-chair of the All-Party Parliamentary the reality of the referendum result to leave the EU. Group on Dementia. According to NHS figures, there Nothing, it seems, will extinguish the Euro-federalist are 850,000 people living with dementia in the UK, dream. But at a time when coronavirus casts such and this figure is set to rise to 1.6 million people by a dark shadow over so much of our lives, neither 2040. The Bill increases the likelihood of a no-deal should we extinguish hope for a better future beyond Brexit. In that scenario, access to new drugs and coronavirus: hope for a return to the growth that will medicines could be delayed by 12 to 24 months, as the underpin our economic recovery and, with it, the UK would no longer be covered by the European security of the NHS and all that we hold dear. Medicines Agency regulations, and instead by a separate Weshould not underestimate how much the Eurocrats UK regulatory system. Also, dementia research that stand to lose if the British people are allowed to make up until now has been carried out collaboratively with a success of their lives after Brexit. Their empire will researchers and academics in the UK and across Europe implode. Brussels can go for broke if it wants to; the could be delayed or undermined if we fail to negotiate United Kingdom must go for growth. Pre-empting a a deal with the EU. foreign power’s threat to the integrity and viability of I did not support Brexit, but I accept the referendum our internal market is essential if we want all parts of result. What I cannot accept, however, is that the the UK to benefit from that growth. People will not Government now seek to breach the terms of the understand if we fail now to protect them from the withdrawal agreement with the EU only months after very real threat posed to their future well-being and they voluntarily agreed to its terms. Britain is a trading prosperity from a foreign power, the EU, which above nation. One of the things that makes us so successful all else needs Brexit to be seen to fail. That means at this is that we are a nation with a long-standing poverty, not prosperity. No Government could wish reputation for respecting the rule of law, including that on their own people. That is why, for the people’s international law. The reputational damage to the UK sake, this Bill deserves our support. that Part 5 of the Bill will cause cannot be overstated. A no-deal Brexit, and Britain gaining a global reputation 10.31 pm as a nation that does not stick to international agreements, Lord Desai (Lab) [V]: My Lords, I will not speak to will harm us for many years to come. From an the legal aspects of the Bill, as I am not a lawyer, and intergenerational fairness perspective, we lawmakers that topic has been well covered. I will simply share have a duty to do all we can to stop such an outcome, with your Lordships my curiosity as to what made the otherwise, we risk reducing the prosperity and well-being Government try to enact this piece of legislation, of those who will live in this country when we are which, as many have said, is totally outside the normal gone. character of the constitutional behaviour of the United There are many who are critical of the House of Kingdom. Some noble Lords have referred to this, but Lords and do not believe it makes a useful or important this arises out of historical and contemporary amnesia, contribution to our democracy. With this legislation, which have struck the party in power. we have an opportunity to show the nation the value First, let me say that I was a remainer, but I have of the second Chamber. Further, by opposing Part 5 always respected the decision of the people. However, of the Bill, the House of Lords has the opportunity to we should notice one thing, which not many people show the world that the UK is a country that does have realised: that the decision in the referendum was indeed respect the rule of law. more or less a decision by England, not by the United Kingdom. Of the 34 million votes cast, 18 million were 10.27 pm for exit, and 16 million against, and 32 million were Lord Shinkwin (Con): My Lords, imagine this: a cast were cast by the English electorate. The difference foreign power—a trading bloc—is desperate to make in the English electorate, 17 million to 15 million, was an example of a former member state to discourage exactly the final result margin of 2 million. So Brexit any others tempted to follow them to freedom. So has always been an English decision, not that of the desperate is this foreign power to protect its empire UK. Because the party in power has always been that since a withdrawal agreement was signed with the predominately an English party, it has begun to renege former member state, it has issued new threats to the on devolution, in which it had no part. It was my party very viability of the former member state’s internal which initiated devolution, during the great Blair market, and therefore to its future prosperity and Government, and that is now being undermined. security. In short, the empire cannot afford for the The present party in power,100 years ago, partitioned break-away member state to succeed. It must be seen Ireland, creating Northern Ireland. At that time, as to fail. That is the reality this country faces; a reality people may remember,the behaviour of the Conservatives that I am amazed so many still choose to ignore. when in opposition against the Liberals, and later Surely when any UK Government realise that the UK when in coalition, almost amounted to subversion of is in great danger of being put in a headlock by new the law, encouraging people in Northern Ireland to threats made since the withdrawal agreement was signed, defy all manner of laws. Now we have come to a stage it is that Government’s duty to counter the new threats when the party in power has almost forgotten Northern through legislation empowering them to act if necessary. Ireland. Boris Johnson inherited this proposition of I hear what some of my noble friends have said Brexit, although of course he supported it. But I do about Part 5 of the Bill, and I hope they know that, not remember anybody at the time of the referendum while I may beg to differ, I have the utmost respect for discussion realising that the geography of the United them. However, I fear that other noble Lords’ views Kingdom is not just England, Scotland and Wales. 1393 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1394

There is a region out there, Northern Ireland, which that money would be controlled by the Welsh Government. everybody forgot—that because Northern Ireland shares The question that the Bill documentation does not a border with the Republic and because we have signed address is whether the Government still intend to an international treaty to keep that border open all the follow the pound-for-pound statement they previously time, it was logically and legislatively impossible for made, and that any money proposed to be spent in Northern Ireland to leave the European Union and devolved areas by this UK Government is in addition also have a free border. The logical and legal impossibility to the former EU funds replacement. I must say that of the separation of Northern Ireland from the Republic the reference to “EU programmes” in the impact of Ireland, while the Republic stayed within the European assessment says to me that the Welsh Government are Union, was not, to my memory, ever discussed. set to lose control over these funds. As it stands, it is very unlikely, almost impossible, Baroness Scott of Bybrook (Con): My Lord, I remind to see this Bill having the support of all three devolved you of the time, please. Administrations. However, with amendment, there is Lord Desai (Lab) [V]: I will stop. a very slim chance that it could meet with the agreement of the Welsh Government. I ask the Government to 10.36 pm live up to the agreement they made in July 2017 that a Lord German (LD): My Lords, it is a pleasure to UK internal state aid framework needs to be drawn up follow the noble Lord, Lord Desai, because I want to co-operatively and consensually between the UK talk about the union—the union of which we are all Government and the devolved Administrations as equal members. I remind the Government that the union partners. The Government must avoid actions that that we now call our United Kingdom is very different could lead to the breakup of this union, but to defend from the union that existed prior to our membership the union, you have to have respect for it, you have to of the European Economic Community. We have now have regard for it, and that is simply not apparent from had more than 20 years of devolution, and the Bill the way this Government are proceeding at this time. threatens the union as we know it. Many noble Lords have given examples of how it threatens devolution, 10.41 pm and I pay tribute to my noble friend Lord Shipley, who Baroness Meacher (CB) [V]: My Lords, I will keep talked about the health implications, and to the noble my remarks brief and try to avoid duplication—difficult Baroness, Lady Finlay, who also spoke on this matter. at this time of night. As a member of the Delegated So there are big questions about the union, and they Powers and Regulatory Reform Committee, I must are what I want to address. put on record, along with the great majority of the 100 First, do we need the Bill now? I do not think we or so speakers today, my deep disquiet that, in proposing do, because there is no threat to the internal market at the Bill, our Government have shown such disregard the moment. The common frameworks, which are both for the international reputation of this country close to agreement, could be used in their draft form, and for one of the most fundamental principles of our if they are not finally detailed and ready. Common democracy: the supremacy of Parliament. frameworks do not even get a mention in the Bill, yet I applaud my noble and learned friend Lord Judge that work has been going on for two years. on his very powerful speech. I agree with every word Have the Government put in place appropriate of it and will certainly be supporting his Motion. For dispute procedures? No, they have not. The Government’s the sake of Britain’s standing in the world, I implore engagement with the devolved Governments has not the Government to ensure that the Bill never reaches the given an inch on their involvement. Will the Bill weaken statute book unless Clauses 44, 45 and 47 are removed, devolution in our country? Yes, it will, because it produces along with most, I would say, of the Henry VIII override and bypass mechanisms that have the effect clauses, which have absolutely not been adequately of reducing devolved powers. Will the Bill guarantee justified by the Government’s memorandum to Parliament high regulatory standards? No, it will not, by creating on the Bill. a system that places you at a competitive disadvantage For the sake of the health of our democracy, I trust if you follow high standards. Will the Bill promote that the Government will respond positively to the co-operation and trust between the Governments of appeal, in a letter to Michael Gove and Jacob Rees-Mogg, the UK? That is an easy one: no, it will not. It will from the chairs of the Constitution Committee, the self-evidently not, because of the approach to devolution Delegated Powers and Regulatory Reform Committee that the Government have shown. The evidence is that and the Secondary Legislation Committee. The letter it has managed to bring together three very different sets out the considerable concerns of the members of democratically elected Governments in their view that all three committees about the truly extraordinary it is not the right thing to do. delegation of powers to Ministers in recent Bills, not I will mention a few words on Part 6 of the Bill. just this one—although this one, the internal market That is the add-on part, related to spending. It is not Bill, is undoubtedly the most extreme and troubling clear how that links to the proposed regulatory structure example of this trend. for the UK internal market, which is the intention of Finally, I call on the Government to respect the the Bill. Perhaps, in reply, the Minister can say why conclusion of the Strathclyde review of the role of the this section is there at all. House of Lords in relation to statutory instruments. In answer to an Oral Question of mine in your The review made clear that, Lordships’ House earlier this year, the Government “it would be appropriate for the Government to take steps to stated that Wales would receive, pound for pound, ensure that Bills contain an appropriate level of detail and that what it had previously received from the EU, and that too much is not left for implementation by statutory instrument.” 1395 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1396

[BARONESS MEACHER] 10.48 pm Do the Government really want to completely disregard Lord Flight (Con): My Lords, the justification for this a report commissioned by a recent Conservative Bill is to support and advance trade, and, as pointed Government? I believe that the noble Lord, Lord out, to provide insurance against present negotiations Strathclyde, would want your Lordships’ House to breaking down. The existing internal market is supported challenge the exceptionally pervasive use of Henry VIII by EU law until the end of the year, where this Bill clauses in the Bill and, indeed, the terrible Clauses 44, provides for UK law to take over. This is a detailed 45 and 47, and I very much hope that we can do this Bill, which provides for what I call single market on a cross-party basis. membership in respect of our trade with the rest of the EU, if we reach agreement with the EU to this end. 10.43 pm The question is raised; what happens if trade negotiations break down and the UK opts for the Lord Lea of Crondall (Non-Afl) [V]: My Lords, like WTO? This looks unfortunately likely, from the Prime many Members I was horrified when I saw this Bill. I Minister’s comments yesterday, to be the case. It is was, for many years, on an EU committee on clear, I am afraid, that the EU has been acting in bad benchmarking, and in those days people had to get faith in the trade negotiations, which the PM has used to the idea that if we get best practice in Europe, pointed out involved a requirement to lead, and not a it is for the good of us all. The slogan we in the trade requirement to lead to a breakdown. unions worked out in those days—Jacques Delors and Presumably we could amend and use the Bill as we all that—was something like “Europe is the league we saw fit. We would, however, have a self-interest to are in”. Britain will go nowhere but backwards if we make the Bill as helpful as possible to European get out, and although we have accepted that there has importers and exporters to help optimise our trade. As been a referendum result, we are now going to make we are leading historic free trade supporters, I am sure the situation far more adverse for our employment we will be happy to be driven by the free trade principles and investment prospects. Multinationals said, in a of mutual recognition and non-discrimination. The meeting I went to a couple of years ago, that their Bill will become an Act as of 31 December, assuming investment forecasts for Britain were going down even it passes both Chambers. Whether or not we do a then, and now it is going down very much more than trade formula deal with the EU, this trade legislation 50% for many industries. will be on the statute book and operative to ensure the It is so unrealistic to have the idea that we can smooth functioning of trade. complain about the 26 countries together wanting to I turn now to the controversy. It was the UK stick with their standards, rather than them saying Government who found out that the EU was seeking “Britain wants to change, in a negotiation between to misuse aspects of the Northern Ireland protocol in equals, so we will change all our standards”. I hear a way that was not intended and in order to gain colleagues in this House suggest there is some rational advantage in future relationship negotiations. I am motivation for this Bill, when I can only imagine it was somewhat disappointed that no one seems to have from some late-night conversation in No. 10 Downing made this point, and the whole problem with Clause 5 Street. That Conservative Party element wants to return arises from that. It was for this reason that the UK to the heyday of Boris Johnson by doing something a Government created the safety net of Clauses 44 bit more dashing, such as tearing up this aspect of the and 45, to give British Ministers the power to unilaterally Good Friday agreement because some people have interpret, modify or disapply parts of the Northern never liked it. Where the Irish question is concerned, Ireland protocol. the Good Friday agreement has of course been a great The UK has agreed to require parliamentary approval contributor to peace. It implies a certain degree of of any government initiatives involved here—I think condominium between aspects of life in Northern that this is Clause 56. I was always told as a student Ireland and—with dotted lines to them—London and that there was really no such thing as international Dublin. If that is the issue lurking behind this it is, law, as there was no agreed single court of law to historically, such a ludicrous way for the tail to wag monitor it. But, in this situation, I am inclined to the the dog. view that it may be better to get rid of Clauses 5 and 6 If we go down this track now, there is a big question and to address the issues raised in another way. about whether we could have third-nation status within I remain a staunch supporter of free trade and the WTO because part of the United Kingdom— appreciate the major contribution to upholding free Northern Ireland—would need to have one foot in the trade afforded by the Internal Market Bill, but it has joint arrangements with Dublin, under the Good Friday the weakness of underpinning oligopoly. Most of the agreement, and another foot in the United Kingdom. trading requirements as witnessed by this legislation Therefore, it is hard to think that we would be a are too detailed, too difficult, too expensive and too normal third nation. Before the lorries queue up at demanding of businesses— Dover on 31 December, we should start to think how we are going to get away from this ridiculous apotheosis Baroness Scott of Bybrook (Con): Will the noble of Boris Johnson’s idea of the world and see what we Lord wind up, please? can do. We need a framework agreement not just for the British Isles but one such as Switzerland has with The Deputy Speaker (Baroness Morris of Bolton) the European Union, at the least. That is not my ideal, (Con): My Lords, the noble Baroness, Lady Goudie, but we cannot simply commit hari-kari in the way we has withdrawn from the debate, so I now call the noble are going. Lord, Lord Palmer of Childs Hill. 1397 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1398

10.52 pm when a decision went against the Government on the Lord Palmer of Childs Hill (LD) [V]: My Lords, it autumn adjournment, which seemed to me to be perfectly appears that Brexit will not only have queues of trucks in order in parliamentary terms, and when we normally on roads leading to the Channel ports but will lead to adjourn for party conferences. an expected plethora of disputes in the internal market Having said that, three aspects do concern me. between parts of the UK. The Bill, by its very existence, First, obviously I am concerned about the amendment acknowledges the divisive self-harm being inflicted on to the Motion, and I recognise that the noble and our nations by this clueless Government. We already learned Lord, Lord Judge, is sitting here in the Chamber. have a common frameworks programme, so well detailed I am concerned if, as he says, we are undermining an by my noble friend Lord German, and a commitment international agreement, particularly by Part 5, and it to collaboration in a regulatory manner. So I do not appears that we are repudiating part of an international see how this Bill in any way helps or adds to the treaty which we have negotiated and which we in this resolution of disputes in the functioning of the single House have signed up to. market. However, I then listened to my noble friend The latest proposed quango is the Office for the Lord Howard of Rising. I had a copy of the statement Internal Market. Its role will be purely to provide of the noble Lord, Lord Pannick, and as I understand it: independent advice on dispute resolution. Well, we “If, therefore, the UK and the EU were unable to reach an already have the Competition and Markets Authority, agreementonNorthernIreland/Ireland,despitegoodfaithnegotiations which has become a very large body in its own right. It and despite the arbitration procedures, and if the UK were therefore to be faced (against its will) with a permanent backstop will now also include the Office for the Internal arrangement, the UK would be entitled to terminate the withdrawal Market—an added and expensive creation. It appears agreement under Article 62 of the Vienna convention on the Law that in the current crisis in health, business and of Treaties.” employment, the only growth industry is an expanding Therein may be where the answer lies. Civil Service. Sir Humphrey Appleby of “Yes Minister” Secondly, I am concerned about the union with the would have been proud of it. An article in The Times devolved Assemblies of Wales, Scotland and Northern today suggests that there is one civil servant for every Ireland, and I have a particular concern about Scotland. 152 citizens, not counting employees of arm’s-length There must be nothing in the Bill that makes it easier bodies. This Bill moves us nearer to the doubtful for Scotland to be difficult. Sadly, there is, and I am utopia of a civil servant for each and every citizen. indebted to the Delegated Powers and Regulatory We can see at this very moment in the Covid Reform Committee, which highlights the problems of pandemic how there are divergent policies between how the consultation and the dispute processes would Scotland, Wales, Northern Ireland and England. Can actually work. the Minister state clearly whether, in the case of a Thirdly—I am not sure that anybody has actually dispute not being solved after the valued advice of the mentioned this—there is the Office for the Internal Market, latest quango, the UK Minister will make the decision? which will be part of the Competition and Markets If so, that is a sure way to build up resentment in the Authority.Even here the portents are not good, because devolved Administrations. Surely a more collaborative the CMA is regularly criticised for its poor performance, arrangement is required between the devolved parts of recently over bank reforms and sport monopolies. the United Kingdom. This is a Bill fraught with difficulty, not least the This brings us back to the common frameworks reputation of the UK internationally, which is so vital programme, detailed, as I said, by my noble friend for our future international trade. I shall listen with Lord German. There is no doubt that the advanced particular care to my noble friend on the Front Bench, development of common frameworks has been in whom I have great faith, and I hope that he will be complicated by the Bill before us today. The Bill aims able to address the legal point. I hope that the noble for a draconian, even dictatorial, power to ensure that Lord, Lord Pannick, is correct, and, if he is, it will be sales in one part of the UK will be acceptable in all with my support for the Government that I will be other parts. This may be the desired result for some voting in the Lobby. people under any arrangement, but it may not be the desired result in one of the devolved nations. 10.59 pm I require the Minister to explain how the Bill and Lord Judd (Lab) [V]: My Lords, we have heard two the common frameworks are to function at the same interesting maiden speeches today. I warmly welcome time. The Bill is unnecessary and could well be very my Cumbrian neighbour,my noble friend Lady Hayman harmful. We should do all in our power to defeat the of Ullock. What she said about the environment was Bill in its current form. not only right but very important. We look forward to hearing much more from her in the years ahead. The Deputy Speaker (Baroness Morris of Bolton) I put on record my appreciation for the forthright (Con): The noble Lord, Lord Woolley of Woodford, clarity of the reports of the Delegated Powers and has withdrawn from the debate, so I now call the noble Regulatory Reform Committee, the Constitution Lord, Lord Naseby. Committee, jointly the chairs of the Constitution Committee and the European Union Committee, and 10.56 pm of the brief from the greatly respected Bingham Centre. Lord Naseby (Con): My Lords, I am no lawyer, but Just what are the principal, inescapable mega-issues after 46 years in Parliament, and five as Deputy Speaker, confronting us all in the UK? Climate change, migration, frankly my faith was somewhat shattered in the law pandemics, conflict, limited natural resources, the 1399 United Kingdom Internal Market Bill[LORDS] United Kingdom Internal Market Bill 1400

[LORD JUDD] 1 January 2021. This commitment was made in January biodiversity crisis, pollution, destruction of the natural 2020 to restore devolved government in Northern Ireland environment, terrorism and international crime—they in 2020. We cannot break this commitment. If we do, all require multinational co-operation. Not one of the UK’s reputation will be severely damaged. We are them can be dealt with effectively by the UK on its respected internationally for not breaking commitments own. They require trust and discipline, hence the that we have made in law. indispensability of the rule of law to underpin that essential co-operation. The UK has in the past been The Deputy Speaker (Baroness Garden of Frognal) respected as a pioneer in the rule of law. What will the (LD): The noble Lord, Lord James of Blackheath, has ideological, blinkered and visionless proposals in this withdrawn, so I now call the noble Lord, Lord Bilimoria. Bill do to the respect and esteem which has been won for the UK by its principled leadership? What signals 11.05 pm will they send to Russia, China, Belarus, Burma and Latin America? Lord Bilimoria (CB) [V]: My Lords, the UK internal This Bill is indeed a disaster. More immediately in market operates across England, Scotland, Wales and the UK, the stability and trust that has been central to Northern Ireland, and it is the economic glue that the cause of peacebuilding in Ireland is potentially binds our four nations. It is key to helping increase jeopardised. The Good Friday agreement and the prosperity and raise living standards and opportunities protocol are not just words to be cynically played for people and businesses across all parts of the UK. with. They are crucial. What is proposed in this Bill The internal market is critical for the UK to remain could threaten that peace and stability which has been attractive to foreign investors and to maximise so painstakingly and imaginatively built. It is time to opportunities from new trade deals. say enough. Security demands a more principled and Firms across the UK have operated with the devolution enlightened commitment. How I welcome the reasoned settlement for more than 20 years. The United Kingdom amendment by the noble and learned Lord, Lord Judge. Internal Market Bill must provide certainty that products I also totally endorse the arguments of the noble Lord, made in one part of the UK will not face additional Lord Butler, on any forthcoming ping-pong experience. barriers to the market in another part of the UK and, Regarding devolution, the same ideological zeal to with this, ensure that consumers in one part of the UK recentre control in No. 10 crudely challenges all the are not disadvantaged by having access to goods and progress and success so far in constructively building services limited. towards the new constitutional settlement achievements The UK is a highly integrated market. For the for Scotland, Wales and Northern Ireland. We must internal market to continue to operate effectively, firms beware, for the future peaceful stability of the UK across the UK have been clear that three principles itself. The lowest common denominator becomes the must guide its implementation: first, that there should reality. On a practical level, what of the lead given by be no new barriers to trade; secondly, that there should England in the provision to help curb deaths from be collaboration across the UK; and, thirdly, that cigarettes and other tobacco? What of the legislation there should be fair,independent and trusted adjudication. in Scotland on alcohol pricing? What of the spring The CBI, of which I am president, welcomes the water and bottled water standards established in Wales? Government’s plans to give powers to the Competition What prospects now of their being part of a firm base and Markets Authority to establish the Office for the from which to develop civilised policy for the future? Internal Market, which will also have the responsibility We can now see starkly what “take back control” to report to the devolved Parliaments and Administrations. really meant: control for an ideologically ruthless No. 10. Where Northern Ireland is concerned, a free trade It is high time for us to make a firm stand. deal with the EU would minimise the need for strict controls on a range of goods entering Northern Ireland 11.04 pm from the rest of the UK, bolstering the Northern Ireland protocol, maintaining the integrity of the UK Lord Bhatia (Non-Afl) [V]: My Lords, there is a internal market and respecting the all-island Irish definite need to give Northern Ireland goods unfettered economy. access to the UK internal market. The Northern Ireland The United Kingdom Internal Market Bill must protocol, as part of the withdrawal agreement, creates work in lock-step with the implementation and operation a unique status for Northern Ireland to remain part of of the Northern Ireland protocol. England, Scotland the UK’s customs territory. The EU’s customs code, and Wales—that is,Great Britain—are Northern Ireland’s Community rules and single market rules will continue biggest market for external sales, being larger than all to apply to goods after the transition period ends on export sales combined. Over 7,000 businesses in Northern 31 December 2020. Ireland rely on the GB market, which is worth over After the transition period, these provisions can £11 billion annually. For this to work effectively, the rightly continue to apply, with the consent of the Bill must work in lock-step with the Northern Ireland Northern Ireland Assembly. Nothing in this protocol protocol and respect the all-island economy between should prevent the UK ensuring unfettered market Northern Ireland and the Republic of Ireland. Firms access for goods moving from Northern Ireland to in Northern Ireland have always been clear that they other parts of the UK’s internal market. want to see the protocol work. In respect of trade The UK Government are committed to having flows from Northern Ireland to Great Britain, the legislation to guarantee unfettered access for Northern protocol provides that nothing in it shall prevent unfettered Ireland businesses to all of the UK market in place by access to the GB market for trade in goods. 1401 United Kingdom Internal Market Bill[19 OCTOBER 2020] United Kingdom Internal Market Bill 1402

On 16 October, the noble Earl, Lord Kinnoull, the and 7 million employees, called for politicians on both chair of the EU Select Committee, and the noble sides to carve a path towards a deal. The automotive, Baroness, Lady Taylor of Bolton, the chair of the aviation, chemicals, creative industries, farming, food Constitution Committee, wrote in the Times: and pharmaceuticals sectors are united: securing a “It is clear that the Internal Market Bill authorises violations quick agreement matters greatly for jobs and livelihoods. of the UK’s obligations in international law. Setting out explicitly Clarity on an ambitious deal would turbocharge business to break international law in this way is unprecedented and preparations, increase confidence in the UK as a place undermines the rule of law. The bill also risks destabilising to invest and help to ease the sustainable implementation devolution arrangements when it has never been more important of the Northern Ireland protocol. This follows an for central and devolved governments to work together effectively.” intervention earlier this week by leading European Today, the UK’s five most senior Anglican churchmen businesses from France, Germany and Italy calling for joined forces to denounce the Government’s new a solution. Now is the time for historic political leadership. legislation, claiming that the internal market Bill could After four years of debate, there must be resolution; set a “disastrous precedent”. 2021 can then be a year to rebuild rather than regret. Across the UK, firms are clear that the UK internal market is an essential aspect of how they operate their Debate adjourned until tomorrow. businesses. Yesterday, the CBI and 71 trade associations and professional bodies, representing 190,000 businesses House adjourned at 11.10 pm.

GC 315 Arrangement of Business[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 316

Grand Committee Although we have been keen to make progress with the MMD Bill, if I might call it that, it is not at the Monday 19 October 2020 expense of proper debate, and I am afraid we feel that some of the amendments before us today will not The Grand Committee met in a hybrid proceeding. benefit from the contributions they deserve because of the clash with the Second Reading of the Internal Arrangement of Business Market Bill and the rules of the hybrid House, which seem to mean we lose the contributions of at least Announcement four, five or possibly six noble Lords who have either 2.30 pm put their names to amendments or are keen to take part in our discussions today. The Deputy Chairman of Committees (Lord Lexden) (Con): My Lords, the hybrid Grand Committee will The procedure, if the House were sitting normally, now begin. Some Members are here in person, respecting is that noble Lords would “Box and Cox” between the social distancing, others are participating remotely, Chamber and the Grand Committee. As it is, they are but all Members will be treated equally. I ask Members not allowed to do so and I put on record that either in the Room to wear a face covering except when scheduling or rules need to ensure this does not happen seated at their desk, to speak sitting down and to wipe again. I would be very grateful if the Minister and his down their desk, chair and any other surfaces they colleagues ensured that the usual channels are aware may touch before and after use. If the capacity of the of this. This clash will not deter those who are absent, Committee Room is exceeded, or other safety requirements I am sure, from making their contribution either later are breached, I will immediately adjourn the Committee. in Committee or on Report. A participants’ list for today’s proceedings has been The group of amendments right at the beginning of published by the Government Whips’ Office, as have this Bill concerns sunset provision, a time limit on lists of Members who have put down their names to delegated powers and draft consolidated legislation. the amendments or expressed an interest in speaking As my honourable friend Alex Norris MP said at the on each group. I will call Members to speak in the beginning of the Committee session in the Commons, order listed. Members are not permitted to intervene “we should not just wave … off to secondary legislation without spontaneously.The Chair calls each speaker.Interventions understanding what that might mean and whether there might be during speeches or “before the noble Lord sits down” a better way to do it … The proposed arrangements allow the are not permitted. During the debate on each group, I Secretary of State and his successors to make hundreds or more will invite Members, including Members in the Grand individual decisions to change our current regulatory regime into Committee Room, to email the clerk if they wish to a markedly different one, one statutory instrument at a time, which I do not think is desirable.”—[Official Report, Commons, speak after the Minister, using the Grand Committee Medicines and Medical Devices Bill Committee, 8/6/20; col. 4.] address. I will call Members to speak in order of request and will call the Minister to reply each time. I agree with my honourable friend. The groupings are binding; it will not be possible to This is a skeleton Bill. Its aim is to provide the degroup an amendment for separate debate. A Member Government with powers to regulate on critical, life- intending to move formally an amendment already and-death matters involving medicines, devices, humans debated should have given notice in the debate. Leave and animals. It is at risk of inadequate scrutiny; it has should be given to withdraw amendments. If a Member an overreliance on delegated powers; it gives rise to taking part remotely intends to oppose an amendment potential regulatory divergence in Northern Ireland; it expected to be agreed to, they should make this clear has a need for streamlined primary legislation, not when speaking in the group. statutory instruments; and it gives rise to concerns regarding patient and user safety. Medicines and Medical Devices Bill It has to be said that the Delegated Powers and Committee (1st Day) Regulatory Reform Committee and the Constitution Committee agreed with my honourable friend and us 2.32 pm at Second Reading, and were particularly unimpressed Relevant documents: 19th Report from the Delegated by the delegated powers memorandum the department Powers Committee, 10th Report from the Constitution produced. It said: Committee “This is a skeleton bill containing extensive delegated powers, covering a range of significant policy matters, with few constraints Clause 1: Power to make regulations about human on the extent of the regulatory changes that could be made using medicines the powers. The Government has not provided the exceptional justification required for this skeleton approach. We accept that regulatory regimes in policy areas such as these require frequent Amendment 1 adjustment, and so need to be flexible, but the Government has not Moved by Baroness Thornton made a persuasive case for conferring largely unrestricted delegated powers that can be used to rewrite the existing regulatory framework. 1: Page 1, line 6, at end insert “for a period of three years We recognise that the existing powers to amend these complex beginning with the day on which this Act is passed.” regulatory regimes will cease to have effect on 31 December 2020 Member’s explanatory statement and that alternative arrangements are required. If the Government This amendment provides a sunset provision for Part 1 of the is unable to specify the principles according to which it intends to Bill requiring the Government to return with primary legislation. amend and supplement the existing law, the delegated powers in the Bill should be subject to sunset clauses. This would allow Baroness Thornton (Lab): My Lords, at last we Parliament to scrutinise a new bill which provides sufficient detail begin the scrutiny of this important Bill. on the policy it is being asked to approve.” GC 317 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 318

[BARONESS THORNTON] parliamentary scrutiny to set up the regime that we all This Bill gives Ministers very broad powers indeed. want—a safe one, an effective one and a world-class We acknowledge this and are seeking full justification one. It would also give us two years of life outside the for them. Those are just the opening remarks from both European Union and would really help us to land in those committees, which agreed that Clauses 1, 8 and 12 that place and find out how different we intend to be, contain inappropriate delegations of power and that certainly in this sector. I beg to move. the Government have failed to provide sufficient justification for this part of the Bill, adopting a skeleton Lord Patel (CB) [V]: My Lords, as I had four Bill approach, with Ministers given very wide powers minutes to speak on Second Reading, it is inevitable indeed. that it will take me longer to speak to my amendments Instead of seeking to justify such powers, the in Committee. I refer to Amendments 50, 67 and 115 Government have downplayed them by suggesting in my name, and am grateful to the noble Lord, that they are like-for-like replacements for the existing Lord Kakkar, for his support. powers in Section 2(2) of the 1972 Act. The delegated Amendment 50 requires consolidated legislation legislation committee found this not to be the case. for medicines, veterinary medicines and medical devices. The Section 2(2) power is subject to a very significant Together with Amendments 67 and 115, it creates the built-in constraint; it is a mechanism for transposing same obligation in respect of veterinary medicine and into UK law EU rules on medicines and medical medical devices and intends to complement a later devices that the UK is required to follow. The new amendment calling for the powers of this Bill to be powers are subject to no such constraint; they would time-limited to three years. The Bill confers an extensive give Ministers free rein to legislate in those areas. The range of delegated powers in relation to medicines, Government claim that the new powers are constrained veterinary medicines and medical devices. The in significant ways, but the reasons found for those Government state that they intend the Bill to be the constraints were described as “more apparent than real”. primary legislation in this area while providing no substantive content to the law. I suggest that over the next few weeks we need to make those constraints real, democratic and accountable, The powers granted in this Bill go far beyond what and at the same time support medicine and devices is necessary or prudent. The existing regulatory regime safety and supply, and promote and protect innovation for medicines is complex and unwieldy, running to and research. Given the threatening no-deal scenario more than four pieces of primary and secondary legislation which seems to be looming, it becomes even more implementing several EU directives in preparing for urgent that the issues dealt with in this legislation are Brexit. This complexity is mirrored in respect of medical clear and that the routes to ensuring medicine supply, devices as the Bill merely grants powers to create safety, research and innovation are also clear and future regulation through such statutory instruments. protected, in the interests of the NHS and patients, It does not provide a clear picture of the future shape through parliamentary accountability. of regulations that can be scrutinised. This adds to the existing regulatory complexity. This suite of amendments aims to open that discussion. The lack of detail in the Bill in its current form Amendment 1 in my name and that of my noble friend could lead to uncertainty among stakeholders as to Lord Hunt provides a sunset clause for Part 1 of the their obligations. There is a need for clarity,for regulatory Bill, requiring the Government to return with primary bodies, manufacturers, patients and other end-users, legislation. We need this to happen because it is not which makes the case for more streamlined primary satisfactory or democratic to run such an important legislation. The lack of detail in the current Bill, the part of public policy through regulation alone. We feel broad delegation of powers with no indication of the that three years is a generous, sensible and reasonable substantive content of future regulation created by amount of time. It allows for a settling in of the new them provides no clear or certain path ahead for regime following Brexit and time for new legislation to medicines and medical devices that can be scrutinised be framed. or relied on by stakeholders. For this reason, this Our Amendment 140 follows the advice of the two amendment, together with similar amendments for committees and ensures that there is a time limit on veterinary medicines and medical devices, requires delegated powers. that the Government return with consolidated legislation in due course. My Amendment 116 inserts a new clause which requires the Secretary of State to publish draft I refer briefly to Amendment 115, which relates to consolidated legislation within two years to streamline medical devices. As with medicines, the regulation the existing regulatory framework. It offers the Secretary relating to medical devices is complex and unwieldy. of State two years of that considerable power, but asks Currently,it consists of the Medical Devices Regulations him—it might be “her” at some point—to return in 2002, which implement three different EU directives two years’ time with a comprehensive set of regulations and the Medical Devices (Amendment etc) (EU Exit) across medicines for humans and animals, medical Regulations) 2019, which came into force at the end of devices and, critically, the proposed new regime the EU exit implementation period and runs to over surrounding the Medicines and Healthcare products 200 pages of detailed amendments. The 2019 regulations Regulatory Agency. were intended to ensure that the existing medical devices regulations continue to operate correctly, once This would provide a chance for proper consultation we had left the EU, but they also mirror and implement across the sector, including with patient groups, industry key aspects of EU regulation on medical devices, bodies and interested companies, as well as more Regulation (EU) 2017/745 MDR. GC 319 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 320

The regulations were due to be implemented this year, and the amendment of enforcement powers, can but following the European Union withdrawal agreement, appropriately be scrutinised in the present. These they will come into effect at the end of the transition provisions set out substantive lawand do not grant further period. The MDR was also due to be implemented delegated powers in and of themselves and as such are during the transition period. Had it done so, it would the proper subject of parliamentary scrutiny now. have automatically become part of UK law. However, If, as was agreed earlier, the Government return due to the disruptions of Covid-19, the implementation with streamlined and consolidated legislation for medicines date of MDR was postponed by a year. The situation and medical devices, those provisions might be subsumed is complicated further by the ambiguous operation of within such legislation anyway.This amendment instead the 2019 regulations in light of the postponement sets out a sunset clause on Clauses 1, 8 and 12, which until the end of the transition period, much like the grant the broad delegated powers and essentially serve MDR. The 2019 regulations contain clauses which set to circumvent proper parliamentary scrutiny. specific dates and periods of transition between the The noble Lord, Lord Pannick, wants me to say that, implementation of different provisions and considerations. had he been here, he would go back to the report of I hope I have made the point that there is a need to the Constitution Committee of 29 July. At paragraph 9 have consolidated legislation. The current Bill will the report concluded: simply add to the existing body of regulations without “This is a skeleton bill containing extensive delegated powers, consolidating or clarifying any of these issues. This covering a range of significant policy matters, with few constraints demonstrates the need to time-limit these delegated on the extent of the regulatory changes that could be made using powers and ensure that consolidation primary legislation these powers. Government has not provided any justification is introduced to Parliament after three years, in order required for this skeleton approach”. to subject any policy changes to adequate scrutiny. Concerns about the Government’s use of skeleton Bills, including this Bill, were expressed in a long letter 2.45 pm to the Cabinet Secretary from the chairs of the House I turn to my Amendment 141, also in this group, of Lords Secondary Legislation Scrutiny Committee, which I am obliged to speak to now, as I am allowed to the Constitution Committee and the Delegated Powers speak only once. It is supported by the noble Lord, and Regulatory Reform Committee. They have found Lord Pannick, and the noble and learned Lord, the Government’s use of skeleton Bills containing Lord Mackay of Clashfern. I am sorry that they are broad delegated powers to be inappropriate. unable to speak today, as they may have made more The Government’s amendments, referred to in a important legal points. letter dated 13 October from the Minister, do not in As touched on in previous statements, these delegated my view address the substance of the concerns. It is all powers conferred on the Secretary of State make very well to alter the safeguards that apply to the provisions amending or supplementing the existing making of delegated legislation, moving away from law on medicines and medical devices, in effect to grant the negative resolution procedure, defining the purpose powers to amend substantive areas of public policy of regulations, requiring consultations and imposing a and law without the scrutiny afforded by primary reporting requirement, as the Minister set out in his legislation. Delegated powers may be needed to enable letter,but none of this addresses a fundamental concern, responsiveness through the uncertainty caused by Brexit which is that Ministers should not have the discretion and potentially rapid technological changes, but they to decide on primary policy choices. That should be a should not be used indefinitely or relied on to implement matter for full parliamentary debate. Regulations that matters of policy. might be debated for 90 minutes, where there is no Previously, the power to create relevant secondary power to amend, are a totally inadequate substitute. legislation in the UK derived from the European The powers granted in this Bill will be a gross act of Communities Act 1972. Those delegated powers were legislative and executive overreach, hence the need for simply to allow the implementation of law in the UK a time limit on certain parts of the Bill through a that had already been consulted on, debated and sunset clause. scrutinised at both EU level and by our committees. The powers in the current Bill are such that areas of Baroness Jolly (LD) [V]: My Lords, given that we policy that would previously be subject to greater scrutiny are in Committee, I will not be making lengthy speeches, at EU level may now be amended without similar but I will raise what I think are the key issues in each layers of scrutiny by the United Kingdom Parliament. of the groups. The amendments to the Bill relate to They do not represent, as the Government have argued, some of the constitutional issues. As a general rule, an equivalent conferring of power to the legislature, noble Lords do not much care for delegated powers seen under the previous regulatory arrangement, as I because it is not considered good practice or procedure have just pointed out. to give a Secretary of State carte blanche in any area. This point was highlighted by the House of Lords There are some areas in this Bill where the Secretary of Select Committee on the Constitution in the delegated State is being given powers that we would rather that powers report. It recommended that while delegated he or she did not have. powers are appropriate to make provision for minor As the Bill is skeletal and consists mostly of delegated and technical matters,it is essential that primary legislation powers, it is important and a good idea to ensure that is used to legislate for policy and other major objectives. appropriate steps are taken to set an end date on these, This amendment does not set out to sunset the so sunset powers are being proposed. The noble Lords, entire Bill. While this might make some sense, a number Lord Lansley and Lord Kakkar,and the noble Baroness, of provisions, including those relating to consolidation Lady Thornton, have requested the Secretary of State GC 321 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 322

[BARONESS JOLLY] At Second Reading, the Minister suggested that the to publish draft legislation to consolidate the legislation sunset clause as proposed by my noble friend would relating to human and veterinary medicine within emasculate legislation three years of the Bill being enacted. “meant to give regulators the powers to be effective and to My noble friend Lord Sharkey and I have put our future-proof medical regulation in a fast-changing industry for names to several amendments in this group. My noble many years to come. We must understand the impact on an friend calls for the super-affirmative procedure so that industry that needs regulatory certainty or else, as many noble Lords have noted, will move elsewhere.”—[Official Report, 2/9/20; all powers given in the Bill will elapse after three years. col. 433.] I confess that this is the first time that I have seen that being used. The super-affirmative procedure involves an I have to say to the Minister that most of the regulatory additional stage of scrutiny where Parliament considers uncertainty has been caused by the Government’s failure a proposal for a statutory instrument before it is formally to be clear about what regulatory regime they want for laid. This procedure is used for those instruments that medicines and medical devices. They have now had are considered to need a particularly high level of scrutiny, four years to think about this and we are still nowhere which I think is certainly the case with this Bill. near knowing what regulatory system they want to put in place. Are they going to go for alignment with the Some of the amendments call for consolidation European Medicines Agency or do they want to strike within three years, but in general what we are saying to out on their own? Do they want to ally with the US the Minister is that there are not enough checks and FDA? What on earth are the Government’s aims? The balances. Please use the time between now and Report industry is at risk because of this huge uncertainty. stage to look again, speak to Members of the Committee The idea that we should allow the Government willy-nilly and bring forward government amendments—otherwise, to get this Bill through and make whatever changes I suspect that we may be voting on Report. they want without the House treating it as primary legislation simply will not wash. I am absolutely convinced Lord Hunt of Kings Heath (Lab): My Lords, I have that the long-term regulatory system must be subject added my name to Amendments 1 and 140 tabled in to detailed primary legislation. As far as I can see, the the name of my noble friend Lady Thornton. As we amendment to bring in a sunset clause is probably the are at the start of the Committee stage, perhaps I may most appropriate vehicle to ensure that that happens. remind the House of my membership of the board of the General Medical Council and my role as president of GS1 and the Health Care Supply Association. Lord Kakkar (CB) [V]: My Lords, in contributing to the first day in Committee on this Bill, I draw the I agree with my noble friend Lady Thornton about attention of noble Lords to my registered interests, in the clash between the first day of the Committee stage particular to those as a professor of surgery at University of this Bill and the Second Reading of the United College London and as the chairman of UCLPartners. Kingdom Internal Market Bill in the main Chamber. Today we are dealing with some of the most important I support Amendments 50, 67 and 115 tabled in the debates in the whole Bill and when we come back on name of my noble friend Lord Patel, to which I have Report there will be a need to give more time to allow added my name. The point has been well made by those people who could not be present today to make my noble friend that the ecosystem for the delivery a full contribution to these debates. I hope that the of healthcare in our country and therefore the use of usual channels will take that away. I am not quite sure medicinal products, medical devices and veterinary about the procedure in these unusual circumstances, medicines is a complex one that is attended by substantial but in normal times I would have asked that the legislation, much of which has been brought into force Committee stage procedure be used for these introductory as a result of the European Communities Act 1972. It debates on Report in order to allow for interventions. is therefore absolutely right, to echo a point made However, since interventions are now limited, that previously by the Minister, that there is a need for this may not run well, although I think that noble Lords Bill to ensure that such regulation can continue, so will understand what I am getting at. that we can continue to have a safe and effective healthcare system and take advantage of the essential This is an important Bill on patient safety and the requirement to avail ourselves of medicinal products health of our life sciences sector. It is striking in its and medical devices. brevity and in the extensive powers to be given to Ministers. The noble Lord, Lord Patel, has spelled out There is surely also an absolute obligation to ensure the wide range of delegated powers contained in the that regulation should avoid adding to the complexity Bill, while a pungent analysis by my local university, that already exists. For those who have to labour the University of Birmingham, points out that, while under these regulations and ensure that they can present delegated powers may be needed to ensure responsiveness innovation and advances to benefit our fellow citizens in the EU exit transition period and to meet the within the context of the regulations, we should always challenges of technological change, they should not be be working to simplify them. used indefinitely or relied on to implement matters of In this regard, we are all conscious of the fact that policy. I am not going to repeat what the Delegated manydifferent types of regulations touch on the healthcare Powers Committee or the House of Lords Select system. There are those that pertain to ethics, and Committee on the Constitution have said, but it is rare those that deal with the function and delivery of ethics for two Select Committees to comment at the same committees and the evaluation of intervention at a time and in such a critical way about the skeletal local and national level. We have regulations that deal nature of a Bill. It is to be hoped that the Government with the adoption and evaluation of innovation within will listen carefully to what is being said. the context of the MHRA, and with the evaluation of GC 323 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 324 intervention and innovation pertaining to NICE. We I could stop now, but I will be quick and refer to have heard from the noble Lord, Lord Patel, about the just two things. First, as a former Leader of the House medical device regulations enacted in 2002, which of Commons, responsible for the legislative programme, codify and implement various EU directives in this I view with deep unhappiness the idea of attaching matter,and the substantial amendment attending medical three-year sunset clauses to all the legislation we put device regulations in terms of the legislation passed as through the House. If we start down that path, we will part of EU exit regulations in 2019. never introduce new legislation but will constantly be revisiting old legislation and trying to renew it. There 3 pm is an argument about the nature of this Bill but it is an The reality is that these complex regulations are argument I am proposing to have when we debate the dependent upon each other. For any individual wishing next group of amendments. It is skeletal, and there are to course this landscape, they will have to be able to things we can do to make the power not only clearer in read different regulations with regard to each other its purposes but much more accountable if used. So, I because each ultimately relies upon and refers to other am against the sunset clause. elements of the regulatory framework. Therefore, it My other point relates to Amendments 50, 67 and 115 seems intuitive that at this time, when we are forced to in the names of the noble Lords, Lord Patel and Lord look at the landscape of regulation for medicinal Kakkar. I have great sympathy with these. I think it products for human use, for medical devices and for was the noble Lord, Lord Patel, who referred to the veterinary medicinal products, we take the opportunity consolidation of human medicines regulations in 2011 to properly consolidate regulation. In that way, we can or 2012. There is a great deal to be said for the regular have a contemporary, well-designed framework of consolidation of legislation to make it more accessible. regulation for medicines and medical devices which is I do not regard consolidation as a purely technical thought through, builds upon what we have established legal exercise; it should always be used as an opportunity over the past 40 years, deals with inconsistencies and to simplify and clarify. It is not, in my view, sufficient allows us to come together with a framework that is to say, as I think Ministers might well reasonably do, meaningful and protective of public health and the “We consolidated human medicines legislation and we safety of patients—providing the opportunity for those will continue to keep the regulations in as clear a form wishing to bring innovation to our country to do so as we can”. From time to time, there is a purpose in understanding the regulatory obligations clearly—and coming back to primary legislation and looking for that ensures that members of the public can understand clarity and consolidation. That is often what we use the the legislation that is in place to protect them and their LawCommission to do, because it has particular expertise interests. in this area. It may be inappropriate to do so at this Therefore, I strongly urge Her Majesty’s Government stage for human medicines because of the necessity of to consider these amendments seriously. A three-year making the regulations and of transposing former EU timeframe seems a perfectly reasonable one in which regulations and directives into UK law. It is perfectly to move towards consolidated legislation. In addition reasonable for that to happen over some period of to all the benefits that I have already laid out, there is time, but I hope that Ministers will consider that. an additional benefit: ultimately, this Parliament should Where medical devices are concerned, there may be be working towards improving legislation and the a better argument. The noble Lord, Lord Patel, was quite context in which it is presented to our fellow citizens. right—navigating medical devices legislation is,if anything, This is an ideal opportunity to address a vital area that harder than navigating human or veterinary medicines touches on the lives of every citizen and to deal legislation. There is a lot to be said for finding the effectively with matters that have built up over a long consolidation instrument for medical devices regulation, period and do not necessarily sit well together, through once we know what it looks like and we have brought the opportunities presented to us by coming out of the it into force. My friends the noble Lords, Lord Patel European Union and, therefore, the terms of the and Kakkar, are on to something; I just do not think European Communities Act and all that has been that new primary legislation within three years is the enacted and codified as a result. route. However, for Ministers to recognise the value of consolidating instruments including, from time to time, Lord Lansley (Con): My Lords, I am grateful for the consolidating primary legislation is certainly desirable. opportunity to speak on this group of amendments. May I, however, begin by seeking clarity about the grouping of the amendments? Amendment 116 is also Baroness Walmsley (LD) [V]: My Lords, I support to be found in the eighth group and is more appropriately the attempts in this group to put a sunset clause into to be found there. It is my amendment; I know where the Bill. I have a great deal of sympathy with the it should sit properly. It does not belong in this group demands of the noble Lord, Lord Patel, for consolidation. and is not relevant to this subject. However, I think the It is vital that through these amendments and others Marshalled List should list Amendment 116 in the to later clauses, we are able to review the use of the name of the noble Baroness, Lady Thornton, who raises Bill’s powers by this failed Government, who have what is effectively the sunset issue in that amendment. made so many mistakes. A Government who cannot The noble Lord, Lord Patel, who I always think of as even secure the free trade agreement that was supposed a friend, referred to his Amendment 141, which is not to be the easiest thing ever, who disastrously and listed in the grouping but should be here; Amendment expensively have not produced the promised world-beating 142 is listed in group five and also should be here. test and trace system and who have presided over one With those two changes, I think that we are talking of the worst rate of Covid-19 deaths in Europe due to about the right group. their dithering and failure to put health first, must GC 325 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 326

[BARONESS WALMSLEY] and carte-blanche nature of the delegated powers. I have their powers fettered. But, as has been said, this is am also persuaded that a sunset provision is absolutely a skeleton Bill and gives the Government extensive necessary. powers with little ability for Parliament to intervene. As many noble Lords noted on Second Reading, A lot is changing. The Brexit transition phase is this is a skeleton Bill. It contains no, or very little, policy, coming to an end in a couple of months. We have and allows policy to be made by secondary legislation. learned many lessons from Covid-19, which should be This clearly avoids meaningful parliamentary scrutiny, implemented. The NICE review is coming up, and and is a direct and flagrant abuse of the delegated every month new medicines and therapies are coming powers system. on to the market. It would be folly not to have a sunset In its 16th report of the 2017-19 Session, The clause in the Bill. I therefore support what was said by Legislative Process: The Delegation of Powers, our my noble friends Lady Jolly and Lady Thornton, and Constitution Committee noted that the Government urge the Government to consider, in all humility, that had designated in two or three years’ time they may not be in power, “functions for which delegated powers may be appropriate”. and the whole landscape will have changed. It is These included therefore essential that we have an opportunity to “providing for the technical implementation of a policy; filling in review how the powers in the Bill have been used to detail that may need to be updated frequently or is otherwise change things, especially if all has not gone well. subject to change; and accommodating cases where the detailed policy has to work differently in different circumstances. Such purposes constitute reasonable uses of delegated powers.” Lord O’Shaughnessy (Con): My Lords, I point out The Constitution Committee’s view of all this was to noble Lords my interests as set out in the register. clear. It considered the use of delegated legislation to On Second Reading, when taking a somewhat formulate policy, or to create new criminal offences or unfashionable stance in defence of the delegated powers, public bodies, to be “constitutionally unacceptable.” I said that I was not going to die on that hill again—but, to mix my metaphors, I have been drawn, like a moth The Delegated Powers and Regulatory Reform to a flame, back into this argument. Committee, in its recent report on the Bill, points out that the Government say nothing about why it would I want to make two brief points. The first has been not be appropriate to have aspects of the regulatory perfectly well made already by my noble friend regimes which are not detailed or technical on the face Lord Lansley, and is about the sheer impracticality of of the Bill, combined with more focused delegated sunsetting legislation. Committing to an arbitrary deadline powers to fill in the detail. This is still the case. of that kind is not something that any Government could responsibly do, particularly at this time, and given the uncertainty that has already been discussed. 3.15 pm The second point is that many of the criticisms I raised this issue in meetings and in correspondence raised by the Delegated Powers and Regulatory Reform with the Minister, looking to draw a distinction between Committee and by the Constitution Committee have policy changes and technical or detailed amendments been dealt with, to some extent, by changes that the or updates. In his letter to me of 2 August, the Minister Minister, my noble friend Lord Bethell, has proposed said: to the affirmative procedure, which we are not discussing “You expressed some concern that this way of regulating the today. It is therefore worth recognising the progress sector meant that Parliament would not be able to scrutinise the that the Government have already made to try to meet powers in the Bill if we did not provide further clarity about the policy changes we intended to make through the delegated powers. I those concerns, which were set out so well by the noble have asked my officials to think further about the extent to which Baroness, Lady Thornton, and others, about the powers we can provide Parliament greater information to aid its scrutiny.” being given to the Government. A month or so later, on Second Reading, I asked Again echoing my noble friend Lord Lansley, I whether there had been any progress in this further would say that if we were to go down that route, the thinking. The Minister did not respond then, and he amendments tabled by the noble Lord, Lord Patel, has not responded directly since. I note that the proposals represent the right approach, which is to commit not contained in his recent amendments and outlined in to a sunset clause, with all the cliff edges that that his letter to us of last week allow for Parliament to would involve, but to providing draft consolidated receive information about, for example, the outcomes legislation. There is a good case in its own right for of the consultations. That may be an aid to discussion, doing that, particularly in the circumstances. Like my but it is not an aid to scrutiny. Parliament will still be noble friend Lord Lansley, I encourage my noble unable to make changes. friend the Minister to look seriously at that idea. It is bad enough that the Government should completely ignore the real functions and purpose of Lord Sharkey (LD) [V]: My Lords, we have secondary legislation and effectively put policy beyond Amendment 139 in this group. It would require all the parliamentary scrutiny.It is worse when those delegated delegated powers in the Bill to expire on the third powers endure, so that the Executive may change, anniversary of its passing. We chose the three-year time without real scrutiny, the regimes that govern our limit because that had been discussed in the Commons. human and veterinary medicines and medical devices, But, having heard what other noble Lords have said without limit in time. on the issue of expiry, I am persuaded that two years It is bad enough that this is a skeleton Bill. The root may be more appropriate, as the noble Baroness, of the problem is the Government’s desire to take Lady Thornton, has argued, given the wide-ranging powers to make policy before they have decided what GC 327 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 328 that policy is. We should make sure that the powers in thought, and give further thought to how we might go the Bill to act without proper parliamentary scrutiny further. It is hard to see how sunsetting the whole Bill expire as soon as enough time has passed to allow would bring additional clarity to the situation. them to be replaced by primary legislation, subject to Returning to first principles, particularly patient proper parliamentary scrutiny. I hope the Minister can safety, we need to react quickly and effectively to agree. If not, I expect us to return to the issue on harm. Taking swift action, such as making changes to Report. how medicines can be administered in the community—as we are doing in relation to the Covid vaccine—is TheParliamentaryUnder-Secretaryof State,Department absolutely necessary when the situation requires it. So of Health and Social Care (Lord Bethell) (Con): My sunsetting Clauses 1 and 12 would mean also sunsetting Lords, I thank all those involved in this first group; Clauses 6 and 15. Wewould have no emergency provision indeed, they are the team who, I feel, are likely to be at all until that could be replaced—a regulatory cliff walkingwithusthroughagreatmanygroupsof amendments. edge that I would find difficult to explain to patients I enormously regret the fact that some noble Lords are who needed that flexibility to get the necessary treatment. unable to make this session, but I thank the usual Harm can be also significant and require more channels for their efforts in the challenging process of fundamental regulatory change. The report of the trying to programme the hybrid House, and for finding noble Baroness, Lady Cumberlege, suggests that the time for this session, and for the Bill, in a packed system has been slow to move and respond, and that programme. patients have not been heard. We cannot predict or Weare starting with one of the most important groups pre-empt every risk of patient harm that will emerge. of amendments, which address the principles behind Patient safety cannot wait for primary legislation. the Bill. I believe that is the purpose of Amendment 1, When new measures have been introduced—such as in the name of the noble Baroness, Lady Thornton, databases of medical devices under Clause 16—I cannot and also her Amendment 140, Amendment 139, in the think why we would want to go backwards. Saying names of the noble Lord, Lord Sharkey, and the that we should no longer be able to track and trace noble Baroness, Lady Jolly, and Amendments 50, 67, patients, nor be able to update the data types that 115 and 141, in the name of the noble Lord, Lord Patel. should be recorded to protect patients, does not make Although there is some variation in the specific sense. Using measures in the Bill such as the information effects of the amendments—such as which clauses system in Clause 16, we will do better for UK patients. they amend and which clauses come under their scope— This is not only what the Government want but what they all look ahead towards drawing a line under the patients want. I hope that such a system will mean that Bill, whether that be through a sunset clause or by the Government will know which patients have been asking the Government to return with consolidated affected by which specific device so that they can avert legislation. problems in future. I emphatically believe in the Bill. I have listened to Secondly,the changes range on a scale from significant the criticisms of the Delegated Powers and Regulatory to relatively minor, for which primary legislation would Reform Committee, and noted the comments of the be inappropriate. For instance, changing labelling to noble Baroness, Lady Thornton, and the noble Lord, include pictograms is not a matter that needs to wait Lord Patel. Those points have been powerfully made for a future Bill. in the report, on Second Reading and here today. Thirdly, this is a modern and fast-changing industry, I know that the report may have inspired some of as the noble Lords, Lord Hunt and Lord Kakkar, put these amendments, because the committee considered it so well. In two or three years’ time, we may still need sunsetting the Bill to be an appropriate response—but to preserve our ability to amend and update regulations. only if the Bill had remained as previously drafted. We will need to provide confidence to businesses, However, as your Lordships know, I have engaged patients and other parties that the statute book will extensively with noble Lords on these matters, and keep pace with change. While much will be said on the have tabled many amendments to address the specific attractiveness of the UK, this is a very real issue. concerns that we are debating today. In response to the comments of the noble Baroness, A sunset clause, reviewing these matters again in Lady Thornton, on the benefits of a new round of two or three years’ time, will not change the very good consultation, perhaps even more serious is the fact reasons why delegated powers are necessary. It would that two or three years is simply not enough time for be an unhelpful precedent, which could lead to a all the regulatory changes to take place—especially rolling review of all legislation. My noble friend when we are obligated to consult all the people that Lord Lansley,a former Leader of the House of Commons, noble Lords will identify when we come to that debate. and my predecessor,my noble friend Lord O’Shaughnessy, Bills take time. This Bill was announced last year and both made that point very powerfully. was introduced in February. We are not there yet. We The noble Lord, Lord Patel, is right to say that simply did not have enough time to judge its efficacy clarity is important, but that will come through before we had to write it again. consultation. As I respond to this point, and to my On noble Lords’ amendments seeking to consolidate noble friend Lord O’Shaughnessy and to the noble the legislation made in under three years, I say this: the Lord, Lord Sharkey, it is worth remembering that we Human Medicines Regulations were the consequence have published six illustrative SIs—so it is not true of a consolidation exercise. The Medicines Act 1968 that we have provided no examples of how the powers was originally the method for regulating the way in could be used. I want to ponder on this well-made which medicines were licensed for use in the UK. GC 329 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 330

[LORD BETHELL] Lord Patel (CB) [V]: My Lords, I am grateful to the However, a number of changes were made over the Minister for his response and, to a degree, his assurance years through regulations, which Parliament approved, that he is at least prepared to look at ways to consolidate to regulate medicines under that Act better. As such, the legislation. I do not accept his point about time. the Human Medicines Regulations were meant to We are not asking that this Bill be held up; we are provide exactly what the noble Lord, Lord Patel, asked asking that the Government consider over the next for: streamlined legislation that places regulatory matters three years bringing in legislation to consolidate the in a single set of regulations. current legislation. Nor was there a lack of consultation on this approach. I am also grateful to the noble Lords, Lord Lansley At the time, the MHRA took action to draw on and Lord O’Shaughnessy—both of whom are experienced stakeholder views and a formal consultation was run in dealing with matters related to medicine in their in late 2010. Parliament considered it appropriate to own right—for their comments and support. I hope redirect into secondary legislation regulatory matters that, in the debate on the next group of amendments, that required frequent changes to respond to potential the Minister will confirm in a more tangible way how safety concerns or changes in how medicines might be he will address this issue because when we discuss produced. The MHRA indicated that, should further those amendments, we will have an opportunity to consolidation be needed, this could be revisited. The come back to what he has said about the government noble Lord asked me whether there are ways of amendments. considering consolidation in the future. I must listen to him but, again, I say that three years is not a very Lord Bethell (Con): My Lords, I hear the noble long time at all for regulatory changes. Lord, Lord Patel, very clearly. The arguments that he We recently published guidance for businesses that made during our conversations and engagement earlier sets out the expected arrangements for the end of the were powerful. The comments made by my noble transition period, in order to provide enough time to friends Lord Lansley and Lord O’Shaughnessy, one of bring forward a standalone regulatory system and give whom is my predecessor and one of whom is a former businesses time to comply. That period of standstill Health Secretary, were also extremely persuasive. will run for two and a half years; in that context, it is The Government do not think that putting unlikely that, in the space of two years, there will be consolidation in the Bill is wise, but we hear the points regulatory change that is so significant that it requires made by the noble Lord, Lord Patel, loud and clear. consolidation. We would definitely consider this matter at a future If your Lordships seek assurance on the visibility of date if the arguments made were persuasive and agreeable. how the Government will make regulations, or if your Lordships are asking me to specify our plans for how Baroness Thornton (Lab): My Lords, I thank all quickly we might move to the current regulations noble Lords who took part in this preliminary and inherited from the EU, let me say this: we do not important debate on the Bill. intend to make changes for the sake of it. We will do The noble Lord, Lord Patel, made an important what is in the UK’s best interests. Whether our choices point concerning primary legislation after three years. mean that our regulatory framework is similar to or The Minister seemed to suggest that three years is not different from regulations made by the EU does not long enough. That cannot be right; three years is change that approach. Regulations, rather than primary certainly long enough. Without the principles and legislation, are the appropriate vehicle to protect patients policy that my noble friend Lord Hunt spoke about, best. Changes will be made subject to public consultation, rule by regulation is not only inadequate but probably and the amendment that I have tabled—on reporting quite dangerous. That lies at the heart of this group of obligations—will enable Parliament to consider and amendments. reflect on the Government’s use of powers in plans. The noble Lord, Lord Kakkar, made the important I am listening. I have proposed changes to improve point that we have a well-designed regulatory framework the Bill—we will come to those later, having reflected in the UK; this amendment is not about disrupting on the debate—but I will face a real challenge in the that. He also said that the Bill should be about improving new year as a result of the gap that will open up at the the framework; that is exactly right. beginning of January if this Bill is not finished by 3.30 pm then. I would not want to put in my place another Minister for Innovation who might also need swift I thank the noble Lord, Lord Lansley, for ordering regulatory change for UK patients, whether that is the amendments in the correct way. I think he is getting medicines approved quickly or changing who right—it is a case of us not looking carefully enough. I can administer them. say to him and the Minister that they seem to disregard the fact that we have had two very pungent reports I hope that the noble Baroness has heard enough to from our two committees that look at legislation and reassure her and that she feels able to withdraw upon which we depend. They have been very clear Amendment 1. I hope that other noble Lords with about the things they thought needed to be improved amendments in this group do not feel the need to in this legislation. move them. This is a preliminary skirmish around this issue. I am very grateful for the support of the noble Lord, The Deputy Chairman of Committees (Lord Lexden) Lord O’Shaughnessy, who probably bears the scars of (Con): I have received a request to speak after the ignoring these committees most recently. It is very nice Minister from the noble Lord, Lord Patel. to see him realise that parliamentary scrutiny is important. GC 331 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 332

I am slightly disconcerted by the Minister saying Lady Barker, Lady Andrews and Lady Walmsley, and that he has engaged extensively on this issue because I by the noble and learned Lord, Lord Woolf.Their remarks do not feel convinced by that; however, I am very on how the Government could improve the nature of happy that we will engage extensively because we will the framework Bill were ones that I paid particularly need to. We certainly welcome any discussions that the close attention to. In making legislation, there is a Minister and Bill team wish to have with us. delicate balance between making it absolutely clear I would like the Minister to think carefully about that regulatory change will not be made that is contrary the lack of policy in this area. What is going to happen to promoting the health of the public and not binding at the end of this month is not news to anybody—we the Government so completely that necessary regulatory have known about it for a very long time. In return, I change that is not explicitly for the purpose of promoting will certainly look more carefully at the Bill and see the health of the public is not possible. This amendment whether we need to be more pointed about which seeks to provide that comfort: that the Government’s areas we particularly want to sunset, if that is possible. making of regulations must satisfy that obligation. I think we have made some progress with this Amendment 51, on veterinary medicines, is drafted debate. We have certainly laid out the landscape which differently to reflect the specific circumstances of how we have to navigate over the next few weeks, and on veterinary medicines are made. For example, a medicine that basis I beg leave to withdraw the amendment. that might be suited to the health of an animal might unhelpfully contribute to antimicrobial resistance in Amendment 1 withdrawn. humans. An overarching requirement to be satisfied that regulatory change promotes the safety of animals, The Deputy Chairman of Committees (Lord Lexden) without reflecting that we must also consider the (Con): My Lords, a short adjournment has been requested safety of animals as food products in the food chain, by the Government. The Committee will adjourn for would have inadvertent consequences. Amendments 7, 15 minutes. 54, 56 and 72 are consequential to these. I have considered carefully the alternative constructions 3.32 pm tabled by your Lordships. I wanted to demonstrate Sitting suspended. our absolute commitment to patients’ health and safety that is at the heart of this Bill. My noble friend 3.47 pm Lady Cumberlege’sreport has highlighted the importance The Deputy Chairman of Committees (Lord Lexden) of this. (Con): My Lords, we now come to the group beginning My amendments do not fetter our ability to with Amendment 2. I remind noble Lords that anyone make good regulations that will enable the development wishing to speak after the Minister should email the of new medicines and devices in the UK and ensure clerk during debate. the availability of those medicines. But, in doing so, the requirement to be satisfied will protect against the inadvertent impact on the health of the public. This will Amendment 2 answer the requirement to make it clear how the Bill is Moved by Lord Bethell a framework Bill, as opposed to a skeleton Bill, providing 2: Page 1, line 6, at end insert— that test against which regulations can be measured. “(1A) The appropriate authority may only make regulations I hope that these amendments provide assurance under subsection (1) if satisfied that they would promote the not only to those in this House who sit on the Delegated health and safety of the public.” Powers and Regulatory Reform Committee and the Member’s explanatory statement Constitution Committee but to others who are keen This amendment provides that the appropriate authority may to see the Government reflect my noble friend’s only make regulations under subsection (1) of Clause 1 if satisfied that they would promote the health and safety of the public. recommendation that patient safety be put first. I beg to move. Lord Bethell (Con): My Lords, Amendments 2, 7, 51, 54, 56, 68 and 72 are a package intended to Lord Lansley (Con): My Lords, I am glad to have respond to the comments made at Second Reading this opportunity to speak to my Amendment 5 and to and the consideration of the Bill by your Lordships’ Amendments 70 and 76 in this group. I am particularly Delegated Powers and Regulatory Reform Committee grateful to the noble and learned Lord, Lord Woolf, and the Constitution Committee. and the noble Baroness, Lady Jolly, for putting their I have said at both the Dispatch Box on Second names to Amendment 5. As the Minister rightly said, Reading and in meetings with a number of noble he set out to respond in government Amendment 2 to Lords that I am listening and ready to make improvements the remarks of the Delegated Powers and Regulatory to the Bill where they are necessary. I am ready to Reform Committee and the Constitution Committee. provide reassurance about how the powers are intended We discussed this a lot at Second Reading. The essence to be exercised. Amendments 2 and 68 would require of the argument that I among other noble Lords made that regulations may be made only if the appropriate was that the Bill was a skeleton, the skeleton approach authority is satisfied that the regulations promote the was criticised by the Delegated Powers Committee health and safety of the public. A number of noble and we needed to move it from a skeleton to a framework Lords spoke in favour of clarity regarding how the by making it clear that the power to make regulations considerations applied in making regulations and whether is for a purpose. The noble and learned Lord, Lord Woolf, the first consideration—that of safety—had primacy. and I set out to do that in our amendment: to express a This was a point made by the noble Baronesses, purpose rather than have a power that essentially had GC 333 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 334

[LORD LANSLEY] is not simply through its approval processes but through no test other than whether the Secretary of State had understanding in the approval process how it will be had regard to certain factors—there was no objective used in therapeutic practice. test that could be examined, because it is very easy for In conclusion, from what I have said we do not think Ministers to say that they have had regard to something. that government Amendment 2 is better than our Why did we have the objective of safeguarding Amendment 5. However, government Amendment 2 is public health? The relevant EU regulation, which is clearly better than what is in the Bill at the moment, the EU human medicines directive 2001/83/EC, as because it gives us a purpose for which the regulation- amended, says at what is essentially its first article: making power is to be used. I make a plea to noble “The essential aim of any rules governing the production, Lords. At this stage, in Committee, I would far rather distribution and use of medicinal products must be to safeguard change the Bill by accepting the government amendment public health.” and its sequelae, as we would say, and therefore send Therefore,rather than invent our own purpose,we thought the Bill to Report in at least a form that one Front that the starting point for the legislation should be to Bench agrees with than not change the Bill and have to reflect the same objective as incorporated into the have this same debate all over again on Report. We regulation-making power up to now. The Minister might have the same debate, but it would clarify for may well say, “But the EU regulation is not only based the benefit of noble Lords on Report if at least the Bill on the public health treaty objective but on the internal has moved from where it has been to show how the market objective”. However, Article 3 of the EU Government are seeking to meet the objectives set out regulation, which follows that, is quite clear: at Second Reading and by the Delegated Powers “However, this objective must be attained by means which will Committee so that we can look at it again properly on not hinder the development of the pharmaceutical industry or Report. I of course reserve my position and that of my trade in medicinal products within the Community.” noble friends whose names are attached to this Therefore, the other legal bases, if anything, tend to amendment, as we might well want to come back to act alongside and be balanced with the original treaty the issue on Report and say that our formulation with objective, which is to safeguard public health. It seems an objective test is better than the subjective test that that there is therefore nothing inherently wrong in our government Amendment 2 implies. own power to set out the objective, which is to safeguard public health, and then to set alongside it in the 4 pm subsequent subsection the other considerations to which Lord Woolf (CB) [V]: I am most grateful to the the Secretary of State must have regard. We will go on noble Lord, Lord Lansley, for setting out the position to discuss those, but they include the safety of human we are in with such clarity. I will add just a few words medicines, the attractiveness of the UK as a place to to explain my involvement. It has already been pointed conduct clinical trials, and so on. out that not many of my legal friends who I would This is the test: why are we moving from the current expect to be concerned about this are present in Committee legislative basis to a new one? What is inherently better today. I am sure that the ones who one thinks of are in saying that Ministers must be satisfied that they will busily engaged in the Chamber over a different piece promote the health and safety of the people and in of legislation which is causing them greater concern what sense is that different from safeguarding public than the proposal here, although I believe that they health? Noble Lords might well say,“You have won—you would not disagree with my comments. put your amendment down and the Minister has put In this House, we naturally think as parliamentarians government Amendment 2 down, and they say more and are concerned about our process of scrutinising or less the same thing”. Wesubmit that they do not quite legislation, but bad legislation all too frequently ends say the same thing, since the government amendment’s up not being disputed in this House. That is not the construction is that the Secretary of State “must be end of the matter, however: the difficulties it creates satisfied that”. Our construction is that it then have subsequently to be sorted out, which is “must have the objective of”. frequently done by judicial review in the courts. What I am not qualified to say any more about this matter; I the noble Lord, Lord Lansley, has said so well is very will leave that to my noble friend in this regard, the relevant to judicial review, and that is an area where I noble and learned Lord, Lord Woolf. An objective test feel that, just as the doctors can comment about this should be expressed in the legislation in objective terms, Bill with a certain background of knowledge, I should not in subjective terms of whether the Secretary of refer to my entries in the register, which, at least with State is satisfied. regard to judicial review, are quite important. Amendment 70 does a similar thing in relation to If the courts are to provide scrutiny at a later stage, medical devices. Amendment 76 begs the question: is they must know the purpose of the legislation. That is the safety of a medical device to be assessed in the why what the noble Lord, Lord Lansley, has already absence of knowing its therapeutic use? It may well be said is so important. With blank cheques, the danger is that the answer is that assessing the safety of a medical that they can be used for all sorts of purposes. I have device must necessarily consist not only of the approval been trying, under the leadership of the noble Lord, to process but of understanding its use in therapeutic ensure that the blank cheques given by this legislation settings. If the answer is that that will necessarily be are as restricted as they can practically be, bearing in the case and if Clause 12 of the Bill means that mind the situation in which we find ourselves. anyway, I am perfectly happy to accept that. However, I agree with what the noble Lord said about the I am looking for an assurance from the Minister that amendments with regard to the present proposals. On that is what Clause 7 means: safety of a medical device the one hand, there is the proposal put forward by the GC 335 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 336

Government; on the other is the proposal that the in this country. We do so in the knowledge that we noble Lord, Lord Lansley, and I have suggested might have had a perhaps pre-eminent role in the world in be appropriate. My view, for the reason he indicated, is pharmaceutical development because of the coming that our proposal is better, but, above all, I am attracted together of a number of factors—the European medicines by the fact that what the Government are proposing is regulations and all the conventions to which we are much better than what was there before. On that basis, party, plus the existence of the NHS and the potential with a degree of reluctance, I would be capable of it offers for clinical research and our long tradition of being persuaded that we should accept what the working in the life sciences and biosciences sector. Government offer, whereas I am quite satisfied that we The Minister definitely listened at Second Reading should not have accepted what was there before. to the many voices of concern that perceived the Bill Leaving the matter in that way, I hope that the further as it came to us as a weakening of the many factors discussion which will no doubt take place will enable that underpin our success in this area. He understood agreement to be reached on an amendment which entirely, I think, that if we were to take away the achieves what is needed for the purposes I have indicated. pre-eminence of the health and safety of the industry, we would fatally undermine the whole basis of the Lord Hunt of Kings Heath (Lab): My Lords, I am construction of this very important sector for our glad that the Minister said that he was listening, and economy. his amendments are important, particularly the one that makes the principle of the health and safety of The Minister has listened but not quite hard enough. the public the key consideration when making regulations I agree with the noble Lord, Lord Lansley, that under the parts of the Bill relating to human medicines Amendment 2 is an improvement, but it still leaves the and medical devices. He will be aware that concern decision-making on whether something promotes health was expressed by patient groups, in particular, about and safety to the Secretary of State. I much prefer the the Bill as originally drafted and the implication of the construction in Amendment 5, to which my noble attractiveness provision. That concern takes us back friend Lady Jolly has added her name. to our first debate on “whither regulation in future”. My main concern in this group is with Amendment 51 If we are not going to be aligned to the European on regulation for veterinary medicines.In his introduction, Medicines Agency and are to plough it alone, the UK the Minister pointed to the fact that medicines for animals pharma industry will be at a huge disadvantage unless can work back into the food chain and to humans. I the Government offer an incentive. It may be a bung—the understand the interplay between taking into account debate about state aid is very relevant to that—or things that are done to improve human well-being, much faster regulation. Otherwise, it is very difficult to animal well-being and the environment, but he will see why the industry would continue to invest in R&D understand that, when people see the amendments, it in this country. Its position could be as vulnerable as is will not be immediately apparent to them that human the motor car industry as a result of the bumbling welfare is pre-eminent in the list. It says that the ineptitude of the Government in their Brexit so-called regulations must promote “one or more” of the three. negotiation. I agree that the Minister has moved on the first set of It is not far-fetched, it is a legitimate question amendments, but he has not gone anywhere near far to ask what on earth the Government really want from enough on the regulations on veterinary medicines, so medicines and medical devices regulation. They may we may well need to come back to that at a later stage. have issued all sorts of draft regulations, but we are clueless about what they are actually seeking to do. Lord Patel (CB) [V]: My Lords, before I start, I The MHRA is clearly not allowed to talk to anybody should point out that someone is typing with their about this. I remember when the MHRA would talk to microphone on, which interferes with the sound, so politicians and debate these things. It has clearly been would they mind turning it off? given an instruction not to talk to anyone. We are The noble and learned Lord, Lord Woolf, said that absolutely clueless about the future direction of regulation. other legal Members of your Lordships’ House were None the less, the amendments are clearly helpful, and not able to be present today. That is a pity, because I no doubt we will consider them between Committee thought that I had amassed a good legal team in the and Report. noble Lord, Lord Pannick, and the noble and learned I would, however, like to ask the Minister about Lords, Lord Mackay of Clashfern and Lord Judge, to Amendment 2 and its relevance to Northern Ireland. I support some of my amendments. I wonder what understand that, exceptionally, it will be moved in comments they might have made on what the noble Grand Committee because legislative consent takes and learned Lord, Lord Woolf, said. three months to get through, which impacts on the Bill’s process. I understand that, but, as Parts 1 and 2 I find myself in support of what the noble Lord, of the Bill affect Northern Ireland, does that similarly Lord Lansley, said. I would be interested to hear the affect any amendment to Part 1 or 2 passed on Report? Minister’s response to the question whether market What is then the impact on Northern Ireland legislation? approval of a device also means that it has therapeutic approval. I know that the noble Lord, Lord Kakkar, Overall, however, most of the amendments are a has an amendment on the therapeutic values of devices. constructive improvement, but we will obviously consider them further between now and Report. I do not find myself in total agreement with what the Government have produced and I do not think Baroness Barker (LD): My Lords, we must consider that Amendment 2 is satisfactory. Let me try to explain the whole Bill as building the foundations for the and we will see what the comments are. The amendments future of the medicines and pharmaceutical industry are about promoting public safety and insert into GC 337 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 338

[LORD PATEL] welcome it as giving more than one opportunity to Clauses 1, 8 and 12 a new subsection (1A), so that the improve legislation, on Report. I hope that we can Secretary of State may only make regulations under agree the government amendments because, as everyone those clauses where has said, they are an improvement on where we were “satisfied that they would promote the health and safety of the and we would have another opportunity, if the House public.” felt it necessary, to improve them further on Report. However, this is coupled with the insertion of the words “considering whether they would” to replace the start of subsection (2) in each clause. That means Baroness Walmsley (LD) [V]: My Lords, I support that, in the decision on whether the regulations would Amendment 5, which would insert the words promote the health and safety of the public, the “objective of safeguarding public health by promoting the availability appropriate authority must have regard to the safety and supply of human medicines”. of medicines—or veterinary medicines or medical While the purpose of the Bill is to bring some sort of devices—their availability and the order out of the chaos of Brexit, it is vital that we put “attractiveness of the relevant part of the UK as a place” those words up front. In the first words on page 1, to conduct clinical trials or supply medicines, or develop before Clause 1, the purpose of the Bill is described as or supply veterinary medicines or medical devices. “the protection of health and safety, in relation to medical devices”. That would be the effect of the amendments. That Why does it not say, “in relation to medicines and construction is open to the interpretation that the medical devices”? That is why we need Amendment 5. “attractiveness” of the UK is to be treated as part of Government Amendments 2 and 7 are weak, in my what promotes public safety; the Minister might want view.For example, the words “promote health and safety” to comment on that. If so, the amendment would not in Amendment 2 and “considering whether they would” address the concern—indeed, it would appear to prevent in Amendments 7 and 72 are well meaning and better the argument being made—that attractiveness and the than the original but, I dare to say, legally useless. safety of medicines and medical devices can sometimes The word “promote” also appears in government be in conflict and that considerations of attractiveness Amendment 68. In contrast, the noble Lord, Lord Lansley, undermine considerations of safety. This is in line with and the noble and learned Lord, Lord Woolf, use the the Government’s repeated assertion that attractiveness much stronger word “safeguard”in their Amendment 70, cannot be in conflict with safety. In essence, the which I support. I also support their probing amendment amendment appears to make little substantive change. for clarification in Amendment 76 that therapeutic practice is also included. I will be interested to hear 4.15 pm whether the Minister can explain whether this is needed Lord O’Shaughnessy (Con): My Lords, my only or, perhaps, not. intention in speaking on this group is to ask a question. Given the flag raised by my noble friend Lord Lansley in his Amendment 76, I am glad that I am not the only Lord Kakkar (CB) [V]: My Lords, I support one with the question, which is whether the concept of Amendments 5 and 70 in the names of the noble Lord, medical devices inherently includes their therapeutic Lord Lansley, and the noble and learned Lord, usage. My understanding is that they are regulated as Lord Woolf. I seek further clarification on the medical devices, not simply devices, and therefore the Government’s purpose regarding the amendments way in which we regulate and risk-stratify them as we proposed by the Minister. regulate them inherently includes therapeutic use. The First, what is the rationale for moving away from fact that my noble friend raised the question in his the current basis on which regulations in this regard amendment made me slightly worried, so I seek the exist, which states the purpose of safeguarding public Minister’s reassurance on that point. health? Why do the Government not think that I have also become aware during this discussion of appropriate as the basis for legislation for medicines another issue worth considering. There has been some and medical devices? It has been the basis on which debate about the appropriateness of government regulations have previously existed in domestic legislation amendments being approved in Committee. I concur and it seems counterintuitive to move away from that with the view of my noble friend Lord Lansley that a purpose, as so clearly explained by the noble Lord, Bill on which only half the Front Benchers agree is Lord Lansley. better than one on which none agree. I have been in my Secondly, there is this question of whether there noble friend’s shoes and have been frustrated, as I should be an objective or a subjective test attending know noble Lords opposite have been, by the need to the purpose of legislation, all parties having agreed stick to concession strategies, holding back concessions that it is of benefit to move away from simply having a and amendments until Report. I do not agree with power to clearly defining a purpose. There has been that approach. My noble friend has done absolutely considerable debate and discussion about what is the right thing in bringing forward amendments at the considered the frequent use of judicial review now and earliest possible opportunity, however imperfect they how in some way it undermines the position of Parliament are. The problem with leaving everything to Report is and is less than helpful more generally in our country. that it is an all-or-nothing approach, as we do not tend It seems therefore intuitive for a Government who to amend at Third Reading, whereas this potentially have concerns about what is sometimes considered leaves open the iterative approach that I would like to excessive use of judicial review to try to provide legislation see more of. Maybe my noble friend has even set a that would make it less necessary and less frequently precedent, heaven forbid, in doing this. We would all turned to. GC 339 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 340

The noble and learned Lord, Lord Woolf, made the is becoming much more sophisticated and slightly less point that clarity is essential. Surely an element of agricultural—that is not the right way to describe it, clarity would be to have in place an objective test—to but it is now very high-tech in certain areas. Could the safeguard public health—rather than, as currently, Minister outline the legal situation here, as, when we merely being “satisfied”. The need that the Secretary are discussing medical devices, veterinary devices are of State can make regulations if he is satisfied, as we not included? Clearly this should fall within the scope have heard in this debate, is much more subjective and of the Bill but, as I see it, there are no amendments therefore must be open to much more frequent challenge. covering that. Moving to the amendments from the noble Lord, Lord Sharkey (LD) [V]: My Lords, I have only just Lord Lansley, and the noble and learned Lord, learned that if we do not pass the government amendments Lord Woolf, I supported Amendment 5. We have left in this group, we put at risk the required legislative the EU, but I see no reason why we cannot use its consent order for Northern Ireland. I had intended to regulation if we think it cannot be improved on. I was oppose Amendments 2, 7 and 14; I did not understand happy to put my name to this amendment and agree why Amendment 2 was necessary or had any real force that subjective measures are nowhere near as effective or meaning—in any case, I much preferred Amendment 5 as objective ones. This is an area where objectivity is —and Amendment 7 seemed downright confusing, much more important than subjectivity. since its net effect is to impose an obligation on the The amendment elegantly reflects the objective of Minister to have regard to certain things when considering safeguarding the public health element in EU regulations. making regulations but no obligation to consider the A Secretary of State has a duty to maximise the public specified things when actually making these regulations. health of our English population. I am sure it is not I have spoken to the Minister and will now not written down anywhere, but that is absolutely what he oppose the government amendments. However, I feel or she is responsible for doing. As such, I firmly that we have been bounced. I first realised the believe that this amendment belongs in the Bill. My Government’s intention to move when I read today’s noble friend Lady Walmsley spoke powerfully about Chair’s guidance and I understood that there was a Amendment 5; we should really consider her arguments Northern Ireland problem when I was given, about when we determine what we will do on Report. 40 minutes ago, a copy of the note from the noble My final point is on the objective of Amendment 70 to Lord, Lord Bethell, to the noble Lord, Lord Lansley, “safeguard public health through the supply of medical devices.” from yesterday. We were not copied in on that note. I This amendment elegantly reflects the objective of strongly feel that this is all very unsatisfactory. safeguarding public health in EU regulations. There is The Minister has not really answered the question much to look at in this group. I am sure that we will that I asked him in our impromptu interval of why we determine what comes back on Report later in the day. need to rush. Could he explain why delaying the start of the legislative consent order process until Report 4.30 pm would be a problem? It is still not clear to me. I trust Baroness Thornton (Lab): Like the noble Lord, the Minister’s assessment but I do not understand how Lord Sharkey, I shall have a minor moan. It is normal he arrived at it. In his note to the noble Lord, Lord Lansley, practice to give fellow Peers sight of government he says, for example, that the delay would mean that amendments at least on the day are put down, so even we could not meet some unspecified timing objective though the Bill team had not managed to discuss their but he prays in aid the notion that the minimum intention with Opposition parties and other noble interval between Committee and Report is a contributing Lords involved in Committee, we received the letter factor. We can change that interval; we could choose. from the Minister explaining the amendments on Could the Minister explain again why it is necessary to Thursday. I hope the Minister and the Bill team will do this today? not continue to leave things so late. I remind the Minister that he has a whole Bill team and a department Baroness Jolly (LD) [V]: My Lords, this has been a at his disposal. Other noble Lords write their own useful debate on health and safety when making regs. speeches, do their own research and need more time to The Government have tried to strengthen this with give amendments due consideration. I am fortunate to their amendments in this group. My noble friend have some excellent support and we work very hard on Lord Sharkey just spoke about that; I too will look at our side to get our amendments down as early as them in the light of Committee and determine what to possible to give other noble Lords the opportunity to come back with on Report. consider them and discuss them with us.The Government On government Amendments 2, 7 and 68, we should should always bear in mind the unequal nature of have these regulations only if we are absolutely satisfied resourcing in this place. that they would promote health and safety.Government We need to see these amendments for what they are. amendments 51, 54 and 56 are all about the promotion Of course, they are mostly worthy and we welcome the of one or more of health and welfare of animals, improvement, but essentially, to echo the words of the health and safety of the public, and the environment. noble Lord, Lord Patel, they are there to placate and There is a clear connection with animals and the circumvent. We are late in the day in beginning to environment; has the Minister spoken to Defra and understand the nature of these amendments and we BEIS about these amendments? now understand the urgency of them as a result of our I also wonder that we are not discussing those earlier discussions, for which I thank the Minister and medical devices that are joint veterinary and medical his team. We are waiting for reassurance from the devices. As I said at Second Reading, veterinary medicine Minister about what happens at the next stage. GC 341 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 342

[BARONESS THORNTON] To explain to the noble Lord, Lord Sharkey, we need The noble Lord, Lord Lansley, made some very to start the consent process now in order to make important and pertinent points, particularly about the further changes. The Government need to demonstrate difference between the objective test and the subjective that this is a policy they wish to make in order for test. It is clever and very important. He is on the side Northern Ireland to get that process properly under of objectivity and the Government’s amendments are way. We have written to Northern Ireland seeking definitely on the side of subjectivity. I agree with him consent to make changes. Parts 1 and 2 of the Bill are that Amendment 2 is not as good as his Amendment 5. transferred to Northern Ireland. I sought consent The noble and learned Lord, Lord Woolf, also said from Northern Ireland on the Bill as a whole when the something very pertinent and quite correct about not Bill was introduced, and again after the change made giving blank cheques. He accepts what the Government on Report to Clause 16. are offering, but made the point that further discussions We sought to make government amendments at the are needed and an amendment might be needed as we earliest opportunity to respond to the DPRRC, partly move forward. to demonstrate how significantly we take that report I say to the noble Lord, Lord O’Shaughnessy, that I and partly to start this process. That process has now do not have a principled objection to government started, but it has not concluded. It does not preclude amendments coming forward; it is just that we need to noble Lords from further consideration and, as my know the context for them. The noble Lords,Lord Lansley noble friend Lord Lansley, indicated, the Bill has moved. and Lord Kakkar, and others, including the noble The process of consent is unavoidably three months Baroness, Lady Jolly, made a very important point long in order for the Northern Ireland Assembly to about safeguarding public health, and I hope the conduct its work. That is why we have had to start now. Minister will be able to address it. I can probably feel In reply to the noble Lord, Lord Hunt, I can supplement an amendment coming on on that one. the legislative consent Motion at a later date. I will listen. I understand and acknowledge that the Lord Bethell (Con): My Lords, I am enormously noble Baroness sees this as the beginning, not the end, grateful to my noble friend Lord Lansley and the noble and I acknowledge that she will return to the issue on and learned Lord, Lord Woolf, for Amendments 5 Report. Accepting these amendments today does not and 70. I greatly appreciate their scrutiny and contribution prevent her doing so, and I will continue to listen. on the way in which regulations under the Bill might I completely hear what the noble Lord, Lord Hunt, be made. I am grateful to my noble friend for his says about engagement with the MHRA. I would be constructive dialogue with my officials. His experience glad to arrange a suitable engagement with June Raine and expertise in making legislation on health matters from the MHRA and parliamentarians to discuss is a real benefit to all of us. these points. My noble friend and the noble and learned Lord, To the noble Lord, Lord Patel, I confirm that the Lord Woolf, have drawn on the framework of legislation efficacy of a medical device is assessed as part of the in the EU context. I am grateful for their explanatory process of obtaining a CE certificate. The therapeutic statement on the basis of the amendment. My noble value of a device is not part of the CE certificate friend knows that I pressed very hard to see whether assessment; that is a function carried out by NICE. On this is something we could accept. The challenge your the point made by the noble Baroness, Lady Barker, Lordships have set me is why, if this framework exists on the food chain, I would be glad to arrange a follow-up in EU legislation, is it too constricting for the Bill? The discussion on the veterinary medicines directorate with answer is that examples of significant recent EU legislation the relevant Defra Minister. To the noble Baroness, in relation to human medicines, clinical trials and Lady Jolly, Defra and BEIS are content with this medical devices include: directive 2001/83/EC, regulation amendment. To the noble Baroness, Lady Walmsley, 726/2004, regulation 536/2014, and regulation 2017/745. the medical devices section of the overarching bit at In other words, while citing the aim of safeguarding the beginning of the Bill is a carry-on from the sentencing public health in Article 168, on public health, of the enforcement, and in Part 3 enforcement is in relation Treaty on the Functioning of the European Union, to medical devices only. I do not think these are these pieces of legislation were also made in reliance reasons to rewrite the purpose. upon Article 114 of the treaty, being measures for the I obviously hope to win the argument on some of approximation of laws which have as their objective this, but that will come from extensive engagement the establishment and functioning of the internal market. and thorough communication going forward, for which To make that point again, safeguarding public health I thank noble Lords. I therefore hope that the noble is not the only objective of the EU legislation in Baroness feels able to accept these reassurances, and I relation to medicinal products and medical devices. am grateful that my noble friend considers this sufficient That is why we have a challenge in this area and why reassurance not to move his amendments. we have posited our amendment. I shall say something about the other government The Deputy Chairman of Committees (Baroness amendments, specifically replying to the noble Lords, McIntosh of Hudnall) (Lab): I have received a request Lord Hunt and Lord Sharkey, and other noble Lords to speak after the Minister from the noble Lord, who commented on them. The overall timing of the Lord O’Shaughnessy. Bill means that currently, it cannot reach Report any earlier than mid-November. If we start the consent Lord O’Shaughnessy (Con): I thank my noble friend process with Northern Ireland then, it will add a minimum for addressing the point about therapeutic use, but I of two months past the end of the Bill’s timeline. think I am slightly more confused now than I was before. GC 343 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 344

He talked about NICE, but of course, NICE does not UK remains a competitive and attractive destination assess every medical device and assesses from a health for clinical trials, it thinks the Medicines and Medical economics perspective, as opposed to a purely regulatory, Devices Bill should provide for continuing alignment safety and efficacy perspective. It is not something with EU clinical trials regulations—the UK was involved that need detain us, but perhaps he could follow up in the development of that—and, in the immediate afterwards with a bit more detail. term, ensure harmonisation of clinical trial and medicines regulatory processes, while enabling international Lord Bethell (Con): I would be happy to conduct collaboration for the benefit of patients, at the end of that follow-up. the transition period. It also thinks the Bill should adopt an approach to clinical trials that will allow the Amendment 2 agreed. UK to lead the world in innovation while assuring patient safety standards. These seem to me to be Amendment 3 reasonable tests of this legislation and indicate the challenge it faces. Moved by Baroness Thornton The danger is that the European Medicines Agency 3: Page 1, line 6, at end insert— covers 25% of global pharmaceutical sales and the “( ) In making regulations under subsection (1), the appropriate authority must have regard to the desirability of— UK on its own makes up only 3%. The odds are that (a) regulatory alignment with the European Medicines Agency’s companies will want to submit applications for new medicines regulation; drugs to the EMA before the MHRA, meaning that (b) regulatory alignment with EU clinical trials regulations; the UK will lose its advantage and UK patients will risk (c) recognition of and participation in the European Medicines getting slower access to the latest medicines. While the Agency’s medicines licensing processes.” Bill could help maintain patient access to new medicines Member’s explanatory statement and UK access to pan-European clinical trials, its This amendment requires the appropriate authority to have capacity to achieve this will be subject to the shape of regard to the desirability of regulatory alignment with EU regulations. the future relationship between the UK and the EU. On medicine access, will the Bill allow the Government Baroness Thornton (Lab): My Lords, in many ways to establish new regulations on marketing authorisations this group of amendments is at the heart of the Bill. for new medicines? If so, how and when? Does a The Minister will know that there is real anxiety no-deal outcome mean an independent UK marketing among stakeholders, be they large or small pharma, authorisation process, along the lines set out in the researchers or patient groups, particularly now that we Medicine and Healthcare products Regulatory Agency’s might face a no-deal exit at the end of this year. Life plans for a no-deal outcome which came out in 2018 sciences companies have concerns about the administrative and 2019 and which some of us lived through. Is this and cost implications of having to file for marketing what might be used? Alternatively, could the UK authorisation with a separate national licensing authority choose unilaterally to continue to recognise a new after Brexit. It will be important to consult closely European marketing authorisation as valid? Has that with the industry—industry groups, but also individual been considered? Depending on the outcome of UK-EU companies that have specific expertise in high tech negotiations, what will happen if the MHRA is unable areas—to ensure that the regulatory regime is robust, to participate and contribute its expertise in the European internationally competitive and fit for future scientific Medicines Agency’s marketing authorisation process? breakthroughs. On clinical trials, will the Government replicate the The amendments in my name and that of my noble EU’s clinical trial application system, thereby reducing friend Lord Hunt require the appropriate authority to the administrative burden on UK-EU collaboration? have regard to the desirability and necessity of regulatory This would be necessary if the MHRA had to develop alignment with EU regulations. The amendments in a separate clinical trial application system that would the name of the noble Lord, Lord Patel, the noble and operate in parallel to the EU’s. Is this the case? learned Lord, Lord Mackay of Clashfern, the noble Baroness, Lady Finlay, the noble Lord, Lord Lansley, Given the influence that the UK-EU future relationship the noble Baroness, Lady Jolly and the noble Lord, will have on how the Bill’s powers can be used, will the Lord Kakkar, in this group have similar objectives. Minister guarantee to encourage, update and consult The UK via the MHRA plays a leading role in the medical research sector as negotiations progress? developing the clinical trials regulation, which came Are the Government doing so already? Perhaps the into force in 2014. Due to the length of the implementation Minister can give some positive reassurance by describing period of the regulation, the UK is not currently some of the recent discussions and negotiations. I am committed to implementing it in full following the end aware that this is in line with the ethos of Clause 40, of the transition period. Failing to implement this which requires the Government to consult relevant longstanding legislative proposal would create significant people and organisations when proposing regulatory uncertainty for life science companies. changes. I am grateful for all the briefing we have received Treatments that utilise innovative techniques such over the last few months from organisations and as gene silencing are often used to treat rare diseases. companies which have a great deal of interest at stake These affect limited numbers of people and are often in the Bill. For example, Silence Therapeutics wants to used in areas of unmet need, where no effective treatment make ground-breaking treatments available to patients options are available. The number of patients with a in the UK as quickly as possible and to conduct rare disease in an individual country, such as the UK, clinical trials in the UK. In order to ensure that the is likely to be low by definition, but for clinical trials to GC 345 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 346

[BARONESS THORNTON] problems of dealing with Europe? Countries will clearly work—the House has discussed this many times—they not come to the UK first when they have the EMA require a large number of patients to take part. As a next door, unless we offer fast-track licensing, which result, these trials are conducted across multiple countries. brings us back to patient safety, which is why the two Unified and streamlined international processes are link so much together. essential to ensure that the application and authorisation I hope that this time the Minister will give us some processes for these clinical trials can continue to work idea of what the Government are aiming for. The effectively and at pace. By implementing the clinical same applies to medical devices, although there are trials regulation, the UK can remain eligible for access some specific opportunities, because at the moment to the central EU portals and processes for clinical the MHRA has no involvement in the pre-market trials, which ensure that they can recruit enough patients phase of medical device development. Is the intention from different countries to be successful. These processes that the UK develops a proactive regulatory role for include clinical trial submissions, reporting and devices that is more akin to the licensing of medicines? authorisation requirements and, particularly importantly, If so, what will be the implications for industry and inclusion in patient registries. patient safety? Clearly, there have been many issues about medical devices in the past which have not gone 4.45 pm through such a robust regulatory regime. Is it the The UK should also seek to maintain alignment intention that the UK goes through a more extensive with patient safety and pharmacovigilance standards, regime in the future under its own steam? What will to give patients and clinicians confidence in trials that the general implications be? are conducted in the UK and to help support the UK’s Again, we know that Covid-19 is having an impact ability to host trials that need to take place in multiple on clinical trials, a significant number of which have countries. Without this level of alignment, it is likely been paused. It is my understanding that only 45% of that clinical trials, particularly for innovative treatments studies are currently open to recruitment and only such as gene silencing, will not be able to go ahead in 36% of them have successfully recruited patients since the UK, denying UK patients access to new treatment 1 June. The ABHI has highlighted the need for a options at an early stage. sustainable plan and aims to return clinical research to The stakes are very high. Innovation will demonstrate pre-pandemic levels by spring next year. the UK’s leadership role. The MHRA is a world-leading This is important because, despite the size and national regulatory body. While it will no longer have growth of the global market for clinical research, the a seat at the table within the EU after the end of the UK’s share of clinical trial applications and patient transition period, introducing innovative ways of working recruits has fallen since 2016. The UK is now falling behind to enhance our existing risk-based approach to trials the US, Germany and Spain for phase 3 commercial regulation will allow the MHRA to continue to be clinical trials. What is to be done about that? What is influential in the development of regulatory policy around the Government’s approach? Again, how does this the world. Maintaining alignment with pharmacovigilance relate to the future regulation of clinical trials? standards will also help the UK to maintain influence I hope that the Government’s intention is to stimulate at an international level. I beg to move. the UK’s clinical research environment, but part of that must be enabling multi-state UK-EU trials to Lord Hunt of Kings Heath (Lab): My Lords, I continue. The idea that we can have multi-state trials support the two amendments in the name of my noble that do not involve some agreement with the EU friend Lady Thornton. I have also put my name to seems fanciful in the extreme. Again, at this stage, we Amendment 22 from the noble Baroness, Lady Finlay— are entitled to know from the Government exactly she is currently in the internal markets Bill Second what they intend. Reading debate—which links this to a definition of attractiveness, and to Amendment 39 in the name of TheDeputyChairmanof Committees(BaronessMcIntosh the noble Lord, Lord Patel, which focuses on clinical of Hudnall) (Lab): I call the noble Lord, Lord Sharkey. trials for rare diseases and the importance of alignment with the European Medicines Agency. Lord Sharkey (LD) [V]: [Inaudible.] At the end of this debate, I hope we will have a better idea of the Government’sapproach to the regulation TheDeputyChairmanof Committees(BaronessMcIntosh of medicines and medical devices. I do not want to of Hudnall) (Lab): Could the noble Lord please unmute repeat myself, but, as my noble friend said, the big question his microphone? seems to be that at the moment the EMA covers 25% of global pharmaceutical sales and the UK on its Lord Sharkey (LD) [V]: Can you hear me now? Yes? own makes up 3%. We know that the NHS is a very Good. Noble Lords will be relieved to hear that I will poor customer in terms of adopting new medicines. not start again. I will speak to Amendments 34, 36 and 37. The UK market is pretty hopeless for pharma. If we Clause 4 deals with clinical trials, which delivered are not going to be aligned to the EMA, what will this £1.5 billion in GVA and £335 million to the NHS in mean for UK pharma in terms of future investment? 2018-19. They are an absolutely critical part of UK My guess is that it will snap off that investment. life sciences and part of what makes the UK a global This is the big issue, which we do not yet understand. leader in medical research. Anything that reduces the What is the Government’s aim? Is it the idea that a number or share of clinical trials in the UK weakens no-deal Brexit is a good thing and UK pharma will that leadership and could delay access to new drugs or survive with a hopeless home market and all the treatments. GC 347 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 348

In its briefing, the APBI points out that our share CRUK regards this as a very positive move, allowing of clinical trial applications and patient recruits has for more flexibility in trial set-up and helping to foster fallen since 2016. As the noble Lord, Lord Hunt, said, collaboration. We helped to design both these new we now rank behind the US, Germany and Spain for features. We should ensure that they are incorporated phase 3 trials—and Covid has had a dramatic effect. into our new regulatory regime. The University of Southampton has published research showing that 1,500 clinical trials of new drugs and Lord Lansley (Con): My Lords, I am glad to follow treatments for cancers, heart disease and other serious the noble Lord, Lord Sharkey, because he made some illnesses have been permanently closed down in Britain, important points and it saves me having to make the with a further 9,000 suspended. same points less well. The Government know all this and acknowledge The purpose of Amendment 35—in my name and the importance of clinical trials. Given that, Clause 4 that of the noble Lord, Lord Kakkar—is precisely to is a surprisingly weak response. It does not require the explore the issues that the noble Lords, Lord Sharkey Government to do anything at all. It simply says that and Lord Hunt, raised. I am concerned that, as it they may regulate—it does not say how they may stands, the provision may mean that we do not align regulate—and lists the areas in which they may regulate. sufficiently with the clinical trials regulations as they This is another example of the abuse of secondary exist in the European Union. That is a great pity because legislation. It gives unspecified policy-changing powers we have gone to an enormous amount of trouble to to Ministers without saying what these policies might try to improve the clinical trials regulations in the be, except that they should do no harm—not a very European Union; indeed, we arrived at a point where demanding qualification. they were significantly better than the previous regulations. When questioned about this and asked which bits To depart from them now seems a retrograde step. of the CTR they will carry across, the Government’s We cannot be sure that we will stay aligned with response is, “The elements that are in the UK’s best those regulations for ever but having the objective of interests.” These best interests are to be identified after seeking to have our clinical trials regulations correspond consultation with interested parties. This all seems to those in the European Union opens the option for unnecessarily feeble. Researchers, commercial and us to be in the clinical trials information system. If we academic, need certainty and stability as soon as possible. start to diverge from the EU clinical trials regulations, Ideally, they would like the provisions of the new UK I am not sure how we can then be incorporated into regime to incorporate all possible provisions of the that system. That automatically means significant CTR as they come into force. We know what these difficulties in trying to manage multi-state clinical provisions are. We know all the thinking behind them. trials in Europe with a view to an authorisation process The UK played a central part in their construction in through the European Medicines Agency because the the first place. Our amendments try to give some information system will, I think, be an essential pre- clarity and certainty to the situation. condition for marketing authorisation applications to Amendment 34 would replace “may” with “must”. the EMA. The purpose of Amendment 35 is precisely It would oblige the Government to do something and to explore this issue. What do the Government mean does not just give them the power to do something if by “or similar”? Do they intend to diverge or not? If they feel like it. Substituting “must” for “may” would they intend not to diverge and to retain corresponding mean that the Government must make provision regulations, that is excellent. If they intend to do corresponding or similar to provision in the CTR. otherwise, that is not so good. Amendment 36 would modify this requirement slightly I do not intend to enter into the argument about to acknowledge that we cannot adopt certain provisions aligning with the European Medicines Agency for the of the CTR. These are the provisions that relate to the simple reason that we have been here before. We EU clinical trials information system and the assessment legislated in the Trade Bill in the last Session to align model involving co-ordinated decision-making on multi- ourselves with the agency and to participate in its state trials. Amendment 36 would add “where possible” processes. Unfortunately, I do not think that that is to the requirement to make provision corresponding going to be available to us, so legislating for it in the to or similar to provision in the CTR to allow for this. United Kingdom will be, I am afraid, without effect. I will focus on the Clinical Trials Information System Amendment 37 specifies two features of the CTR that because there is likely to be a willingness and interest the Government must incorporate. These are specified on the part of our European partners to retain the because they are new and very important, and for the United Kingdom in this process. I hope that is so, that avoidance of doubt about the meaning of “corresponding we might be able to attain that, and that that will be to” or “similar”. The two new features are the new the Government’s objective. definition of clinical trials and the allowing of co-sponsorship. In its briefing, CRUK notes that the 5 pm MHRA has had considerable input in the new definition of clinical trials. It notes in particular that the new Lord Kakkar (CB) [V]: My Lords, I shall speak in definition expands the scope of low-risk trials and excludes support of the amendment in the name of the noble altogether some studies, such as pure pharmacology Lord, Lord Lansley, to which I have added my name. studies that are focused on how medicines work rather than Important arguments have been made with regard to on the extent to which they do. The CTR also defines the need to ensure that we can move away from the and allows co-sponsorship, where two or more sponsors clinical trials directive which is currently the basis for across multiple countries may share responsibilities. such legislation in our country, and to adopt the GC 349 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 350

[LORD KAKKAR] support what has been said about the issues raised, clinical trials regulation to which our regulatory authorities particularly about whether we remain aligned with the have made such an important contribution over recent EU trials mechanism or whether we are to be part of years. that mechanism. On previous occasions Her Majesty’s Government, During the EU withdrawal debate this issue was with specific regard to the 2018 EU withdrawal agreement discussed at length. In fact, there was an earlier Bill and the 2018 Trade Bill, made clear commitments opportunity for the amendment to be put—as noble that we should implement the clinical trials regulation Lords may remember, it was widely supported—but I in full as part of a negotiated agreement incorporating withdrew it, because the then Minister, the noble its legislative and non-legislative provisions; or, in the Lord, Lord Callanan, said that at an appropriate time, event that no agreement can be reached, that an element when legislation was brought in, the Government would of the regulation would be adopted to the greatest address the issue. By that I supposed he meant that extent possible on a unilateral basis in domestic legislation. they would address the issue of remaining part of the We have received further reassurances in terms of the EU clinical trials regime—but this Bill does not do withdrawal agreement Act that the Government would that. give priority to taking the necessary steps to bring into What options are available to the United Kingdom? UK law without delay all the relevant parts of the EU One of them, of course, is to remain and participate in clinical trials regulation that were within the control of the EU clinical trials regime, if that is possible. An the United Kingdom. With regard to the Trade Bill, in alternative is silent participation, as in the EEA model. September 2018, the House was reassured in the strongest That would mean that we could not vote, we could not possible terms by Her Majesty’s Government that a lead projects and we could not raise objections. The commitment was being made to implementing the third option is to be independent and aligned. The regulation. However, when the Bill before us was noble Lord, Lord Lansley, referred to that, and I agree considered in the other place, no such commitment with him that the important part of the EU clinical was made and therefore, this probing amendment is trials regime is its portal—a portal that the UK played vital. a major part in developing—through which companies I know that arguments have been made that not all can apply for clinical trials. the elements of the regulation are within the power of The fourth option is to be independent and divergent: Her Majesty’s Government to implement, but as we the UK would create a new clinical trials system. have heard from the noble Lord, Lord Lansley, there is There is no time to do that by the end of 2020, but the opportunity to deal with the clinical trials portal over time the UK could create a new system and build and information system in a different way and to alliances.However,the risks need to be clearly understood, design, as other amendments propose, a system that and balanced. Where will the companies go? Will they might be agreeable. Arguments have also been made go where they have a bigger market, and a bigger that the clinical trials regulation itself, although a opportunity, with larger numbers of patients for the substantial improvement on the current directive, is trials, or will they conduct their trials in the United not perfect, and that the GCP and ICH guidance to Kingdom? which the clinical trials regulation makes reference need themselves to be advanced. Work is being undertaken There might be novel ways to approach this, and I in that regard. understand that the MRHA is discussing and trying The European clinical trials regulation provides for to develop a novel way of conducting clinical trials, referring to guidance on the operational delivery of which might be more attractive to companies. But of clinical trials or other guidance, so that should not be course, as we do not know what those are and we are seen as an impediment. The real concern here is that not being told what they are, we cannot comment on while, unfortunately, impediments and hurdles to the them. adoption of the clinical trials regulation may be identified, Currently, what looks like the best option is to be that would be the wrong thing to do. The regulation is part of the EU clinical trials mechanism. With clinical important. The current clinical research legislation trials for rare diseases, it is even more important for under which we labour in our country is not ideal, the UK to remain aligned with, or to be part of, the which is why we have this regulation. On many occasions, EU processes for rare diseases in relation to trials, to Her Majesty’s Government have committed to the the data that will be available, and to medicines—for adoption of the regulation, so can the Minister indicate example, treatments developed for muscular dystrophy why the opportunity provided by this Bill should not and metabolic disorders. be taken to fulfil those undertakings and thus provide About 3.5 million people in the UK suffer at some us with the greatest possible certainty regarding the point from one of the 7,000 or so rare diseases. The conduct of clinical research in our country? This is number for which treatment is available is small; hence vitally important to patients, to the economy and to the great need for collaborative research, data collection sustaining a viable life sciences ecosystem. and the development of medicines, because a larger population is needed for clinical trials. Companies Lord Patel (CB) [V]: My Lords, I support such as Silence Therapeutics, which the noble Baroness, Amendment 38, in the name of the noble Baroness, Lady Thornton, mentioned, use gene silencing Lady Thornton, to which I have added my name. I technologies for developing novel therapies for rare shall also speak to Amendment 39. I am grateful to diseases. Others, such as Sarepta, use gene therapy for the noble Lord, Lord Hunt, who has already spoken, developing medicines.Companies such as Gilead Sciences for lending his support. I have listened carefully, and I are developing CAR T therapy; it was the first to GC 351 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 352 introduce CAR T therapy for cancers in the United fast-tracking cancer treatments, with players from the Kingdom. All those companies have said that they US, Canada and Australia. I still think that, given the would wish to remain in the United Kingdom to do history of this country as a leading player in the life their trials, if the environment was right. sciences and biosciences fields, and given the amount The treatments that will utilise innovative techniques, of investment in research that we have traditionally such as gene silencing, are often used to treat rare diseases had and which we must seek to maintain in the NHS and that affect a limited number of people, as I said. The within our universities, if we do not signal at this stage number of patients with a rare disease in an individual a willingness to keep the regulations in place and ensure country such as the UK is likely to be low by definition. that we remain aligned with the European system, we However, for clinical trials to work, they require large stand to lose a great deal—not least involvement in the numbers.Unified and streamlined international processes clinical trials information system. The Government are essential to ensure that the application authorisation would be well advised to take some, if not all, of these processes of these clinical trials can continue to work amendments, which all seek to do the same thing. both effectively and at pace. 5.15 pm By implementing the clinical trials regulation, the UK can remain eligible for access to the central EU Lord O’Shaughnessy (Con): The noble Baroness, portals and processes for clinical trials, which ensure Lady Thornton, got to the heart of this when she said that clinical trials can recruit enough patients for rare that these discussions are central to our debate on the diseases and include submissions, reporting and Bill and its purpose. authorisation requirements and, particularly importantly, I preface my comments on the amendments by inclusion in patient registries. Those were developed as drawing on my experience as a Minister with responsibility part of the EU-wide MHRA initiative to develop for preparing the health and social care sector for registries for rare diseases. Brexit and for medicine regulation. During that time, I The UK should also seek to maintain alignment spent hours and hours—days and days—of time with with patient safety and pharmacovigilance standards, pharma and medical device companies, patients and as mentioned by the noble Baroness, Lady Thornton, others. There was a consistent message from almost all to give patients and clinicians confidence in trials that of them about the desirability of remaining part of the are conducted in the UK and to support the UK’s EU family if possible and the importance of the ability to host trials that need to take place in multiple MHRA and our notified bodies as regulators within countries. Without this level of alignment, it is likely that regime. I, together with others, worked extremely that clinical trials, particularly for innovative treatments hard to make sure that that was recognised in the such as gene silencing, will not be able to go ahead in withdrawal agreement that was agreed at the time. We the United Kingdom, denying UK patients access to managed to create a special category of safety products. new treatment options at an early stage. For those who remember back two or three years, I will end by saying a few words in support of there were chemicals, pharmaceuticals and medical Amendment 125 in the name of the noble Baroness, devices in the withdrawal agreement and, indeed, the Lady Jolly. Given the global nature of the Human political declaration. I worked very hard to achieve Medicines Regulations, the UK should be a member that position and supported it. of the ICH—the International Council for Harmonisation It might also be worth reminding noble Lords that of Technical Requirements for Pharmaceuticals for Parliament passed up the opportunity to agree that Human Use. Having recently joined as an observer on withdrawal agreement. It did not succeed. That has Project Orbis and the Access Consortium, the UK can led to a different Government with a different agenda work towards providing a leadership role on global and with a majority, which might be something for us regulatory standards, and it is more likely to do that if all to reflect on. it is part of the EU clinical trials mechanism. I make those points only so that noble Lords will understand that my concerns with the amendments on Baroness Barker (LD): My Lords, the noble Lord, aligning with the EMA and European regulation in Lord Hunt of Kings Heath, succinctly set out what we general are not ideological but practical. Actually, this all know: post Brexit, the UK as a market will be is a very heterogenous group of amendments: it ranges significantly less attractive than it was as part of a from alignment through to collaboration to similarity single regulatory system for the development of medicines where possible. When considering the issues around and clinical trials. The economics of that are inescapable. this, we need to tread very carefully as to what we However, it is also true, as the noble Lord, Lord Lansley, commit ourselves to. The fact is that, as negotiations said, that however much some of us may wish that we have progressed, it has become completely clear that continued to be aligned with what will inevitably be a the European Commission will not tolerate any developing clinical trials basis in Europe, it may not be meaningful associate membership: you are either in or within our gift to do so. However, what we can do, and you are out, and there is no possibility of the UK what all the amendments in this group attempt to do, participating in making the rules that bind it. Clearly, is encourage the Government to come clean about the being in is not compatible with leaving the European extent to which they will seek in future to maintain an Union, so the question that falls to us is what we do ongoing alignment with those clinical trials regulations when we are out. What should we do as a sovereign in Europe. regulator that is not part of the EMA? The noble Lord, Lord Patel, mentioned—as I intend This is where I disagree with those amendments to—the announcement last week of the UK participation that seek to align us with the EMA. The truth is that in the Orbis trials, which are the new mechanism for we cannot have the best of both worlds; we cannot—as GC 353 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 354

[LORD O’SHAUGHNESSY] I know that that is not the only position and that the Prime Minister might put it—have our cake and people take a different view, but as we move forward, eat it. We cannot be in and take advantage of the we will want to tread carefully over which regulators opportunities that being out gives us. Tying ourselves we seek to collaborate with, emulate and draw on, in advance and in perpetuity to EU regulation over rather than tying ourselves to an in-perpetuity relationship which we have no control or, critically, judgment of that we may come to regret on occasion. quality, would be a big mistake. It is quite right that we should seek to mitigate the Baroness Walmsley (LD) [V]: My Lords, Amendment 3 negative impacts of leaving the EMA family. I have makes clear the desirability of alignment with the never sought to sugar-coat those—I do not take a EMA and the EU clinical trials regulations. It sets out Panglossianviewof theconsequences—buttyingourselves early in the Bill the store for those of us who feel that in such a way is not the way to do it. Multiple stringent the advantages we have gained from such alignment regulators in the world do just as good a job, if not must not be sacrificed on the altar of some mistaken better, as our MHRA—in Japan, Switzerland, Canada, ideology of this failed Government. I point out to the Singapore and bits of the EFTA. We should as a noble Lord, Lord O’Shaughnessy, that we managed to nation be seeking to accept licensing applications and introduce the HPV vaccine before we left the European modelling our regulatory structures on all and any of Union. those that we think are the best. That is the way to take Amendment 22 attempts to define the rather vague advantage of our freedoms and give us the best possible expression “attractiveness”. We have other definitions opportunity of getting innovative medicines and products in later clauses; we certainly need to choose one of as they come on to market in any market in the world. them but I will leave my preference for a later debate. I support Amendments 34 to 39 to Clause 4 on We do not need, as the noble Lord, Lord Hunt, and clinical trials. As my noble friend Lord Sharkey pointed others, said, to create our own bespoke, novel, difficult out, they tighten up the wording in the Bill to emphasise regulatory system that puts up more barriers to innovation; the benefits and avoid the damage of diversion from nor should we tie ourselves to one other regulatory EU clinical trials regulations. British patients benefit regime. I use just one example to exemplify why I think from alignment, British bioscience research and that is true. It is a well-worn example but is worth development benefits, and the whole system is worth rehearsing: the introduction of the HPV vaccine. That millions of pounds to the Exchequer. I and other was something that most regulators in the EMA family noble Lords have received briefings from a number of did not want to proceed with. The MHRA provided a organisations working on behalf of patients, such as very compelling case for us to do so. European countries the British Heart Foundation, emphasising that any did so. The effect of that in England alone has been to diversion from these regulations will affect the rapid reduce HPV infections among 16 to 21 year-old women— availability of new medicines and treatments to British the figures are a couple of years out of date but are patients. They are also concerned to protect the large probably still accurate—by 86%. Bear in mind that amount of EU research funding that they currently HPV causes 80% of cervical cancers among women. receive. Diversion could also affect, to use the We might be tying ourselves to things that we regret Government’s favourite word, the attractiveness of the and which cause harm; I know that that is not something UK as a place to conduct clinical trials. The problem that anyone would want to do. is that the Government have not told us what they I note from the ABPI’s briefing—obviously, I have might want to change unilaterally in future, as a worked closely with it—that it does not call for alignment number of noble Lords have pointed out. I invite the with the EMA. It calls for making sure that Minister to tell us now. “the information or data required by the EU regulator is consistent Amendment 39 asks the Government to establish a with other leading regulators around the world and benchmarked clinical trials portal that aligns us with the EMA against them for speed and approval.” regulations for medicines for rare diseases. This is particularly important if we are independent from the It also calls for the UK to apply for full membership of EU as our population of 68 million is so much smaller the ICH, as the amendment in the name of the noble than the EU population of more than 400 million, Baroness, Lady Jolly, calls for—I quite agree with which would make it harder to find a big enough that—and generally to look to provide leadership on cohort of people with rare diseases for a clinical trial. developing global regulatory standards in human The noble Lord, Lord Patel, pointed that out. medicines. The EU clinical trials portal, which will come into I utterly understand the impulse. The Government play with the new and improved EU clinical trials have partly got themselves into this difficult situation regulations in 2022, was to a great extent designed by by creating a vacuum into which people are seeking to British participants. This shows how important it is put policy. That is completely understandable but it considered to be by British scientists because it makes would be a mistake to tie ourselves to one particular applications for clinical trials so much easier and less regulator. It may not be quite as true of clinical time-consuming. In its previous inquiry, the Science trials—I defer to the expertise of others—although I and Technology Committee heard from a number of note that the ABPI briefing paper does not talk about witnesses about the issues with the current system, the clinical trials directive; instead, it uses a much which wastes a lot of their time. So, like the noble broader palette and says that future clinical trials and Lord, Lord Lansley, I feel sad to know that we will be regulations in the UK should both support and enable out of the system by the time the improvements are international collaboration. put in place. GC 355 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 356

Our current alignment also encourages British scientists to medicines, should the UK develop a significantly to go abroad to broaden their expertise and EU scientists different regulatory process to the EMA for medicines to come here and become part of our very successful regulation, the increased regulatory burden on research teams. I know the Government are in favour pharmaceutical companies could lead them to prioritise of that because I heard Amanda Solloway, the Science the much larger EEA market over the UK’s. This Minister in BEIS, say so last week to your Lordships’ could cause delays in new drugs being made available Science and Technology Select Committee. I hope, for patients in the UK and vice versa. What is the therefore, the Minister will be minded to accept the Government’s analysis of potential delays? Is it in the amendment. order of 12 to 24 months, as some have said?

Baroness Masham of Ilton (CB) [V]: My Lords, 5.30 pm I support this group of amendments, especially Amendment 22, but I first congratulate the Minister Turning to medical devices, establishing a separate on his stamina and enthusiasm at this incredibly difficult system for their accreditation in the UK would be time. I hope he will be able to answer some of our likely to lead to delays in devices developed in other questions. countries reaching the UK market and vice versa. In I spoke at Second Reading of the need to provide the case of medical devices, this would be particularly an attractive life science environment for researchers detrimental to the UK as most are imported. The coming from abroad. If we are to recruit the brightest Government have not been clear about their position and the best to work in research and clinical trials with on the regulatory alignment between the UK and the the highest standards, we must improve. How will this EU. Given the huge implications for patients in diverging be achieved? Should they not feel welcome and needed? from the EMA, it is vital to get a commitment to ensuring patient safety. I hope that the Minister will Can the Minister assure your Lordships that there give us a clearer indication of which direction the will be no barriers to access to medicines for UK Government aim to go there. citizens? As a number of noble Lords have mentioned, a How can we still have a regulatory leadership role number of international organisations are key to ensuring following the UK’s exit from the European Union and harmonisation and regulatory alignment. It is important the European Medicines Agency? We must not become that we seek full membership of these organisations isolated. I hope we will still collaborate with the EMA post Brexit. Have the Government considered that and other international regulators. We desperately need point? The ABPI has recommended that we seek full new medicines for the very rare diseases. There is membership of, for example, the International Council nothing more frustrating than other countries having for Harmonisation of Technical Requirements for medicines which are denied to people living in England. Pharmaceuticals for Human Use and the International I hope the Government will accept the need to Organization for Standardization, although the latter incorporate these points, which have been expressed is outside the scope of the Bill. I hope to hear from the today, to make the Bill clearer and more positive and Minister in some detail. will put their own amendments down on Report to further improve it. Baroness Jolly (LD) [V]: It was almost inevitable, Baroness Sheehan (LD) [V]: My Lords, I will speak looking at the amendments that were coming up and to Amendment 125 in the name of my noble friend knowing the people who would be discussing them in Lady Jolly. Like other amendments, it aims to probe Committee, that this was going to be one of the most the Government on their plans for future regulatory interesting debates. It has been fascinating and well alignment with the European Union following Brexit. informed. The amendments relate to our future It also seeks to ensure that we seek full membership of relationship with the EMA and other international any bodies or agencies that help safeguard regulatory organisations after Brexit. My Amendment 125 in this alignment and standards in medicines and medical group is on future regulatory alignment; I am grateful devices. to my noble friend Lady Sheehan for her contribution. The EU and UK markets for medicines and medical The Government have not been forthcoming on devices are closely linked. According to the Association whether they will pursue regulatory alignment and, of the British Pharmaceutical Industry,at least 45 million more importantly, what the implications of not doing packs of medicines are exported monthly from the so would be. I would be grateful if the Minister UK to the EU, and 37 million packs come the other clarified that second point. Our clinical trials are way. The UK also relies heavily on the EU for its hugely important and widely respected. The clinical supply of medical devices, with more than half of its trials information system is critically important; the 5 billion imported medical technology originating in noble Lord, Lord Lansley, made that vital point. the EU. What aspect of the role of the EMA are we trying to The European Medicines Agency provides a centralised replace? It has four parts: to facilitate development approval procedure for licensing to allow pharmaceutical and access to medicines; to evaluate applications for companies to submit a single marketing authorisation marketing authorisations; to monitor the safety of which, once granted, is valid across the EU and EEA. medicines across their life cycle; and to provide information Given its role in harmonising the regulation of clinical to healthcare professionals and patients. We need urgent trials, about which we have heard much during this clarification on how the future information system debate, it is clear that divergence would have a major will work, who will host it, how it will be staffed and impact on people in the UK and the EU. With respect how we will share our research. GC 357 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 358

[BARONESS JOLLY] However, I do not agree that our future relationships As the noble Lord, Lord Patel, said, we do not have will be furthered by mandating the consideration of a large enough population for significant research without alignment with EU regulations and the European partners. Are we clear that we could work with the Medicines Agency. The UK has a long track record of FDA in the US—or, indeed, with the TGA in Australia? jointly tackling global challenges with strong international Would that give us a sufficient body of people from links already in place between research and innovation which to take on our research? Perhaps. Are there any communities. The UK works closely with many other moves to seek full membership of the International regulators; those relationships are underpinned by Council for Harmonisation of Technical Requirements many shared international standards. The EU bases for Pharmaceuticals for Human Use? I am sure that its regulations on exactly those standards, as do we, the Minister will have the answers but the regulations and we will continue to do this going forward. must have regard to the desirability of alignment, somehow or other, with the rest of the world. We cannot work as As a number of noble Lords have noted, we have a small unit—perfectly formed, maybe, but we are the opportunity to create a better regulatory framework. small compared with the US, Europe and other groupings. The feedback from the industry is that an agile, How is this going to be measured and monitored? proportionate UK system with familiar data submission The noble Lord, Lord Hunt, spoke about the fast-track requirements would increase the UK’s attractiveness licensing of medicines and devices. The point he made as a place to conduct multinational studies, even if we so clearly is that public safety has to be paramount so are operating outside the EU’s network. My noble we cannot rush this sort of thing. We have to get it friend Lord O’Shaughnessy’s quote from the ABPI right; if people have to wait, so be it. It has been made this point. The powers in the Bill as it stands will interesting to hear the reflections of the noble Lord, allow us to develop exactly that kind of system. Lord O’Shaughnessy, because he was sitting in the hot Progress is already happening. The MHRA and the seat of the department. I wonder whether he is glad Health Research Authority are already taking steps to that he is not there now. streamline the approvals process for UK clinical trials The other interesting amendment concerns the and are currently piloting a new process that has been definition of attractiveness, which included collaboration shown to reduce overall approval times by more than with the EMA. The noble Lord, Lord Hunt of Kings 30%. I say to the noble Lord, Lord Sharkey, that this Heath, and the noble Baroness, Lady Finlay of Llandaff, change does not rule out co-operation. Data generated attempted a definition. I am sure that if we were all in a UK clinical trial will continue to be admissible to given a piece of paper and asked to write down our support regulatory activity in the EU—and, indeed, definition of attractiveness, there would probably be globally. We can also look at how we can go further in as many answers as there are people in the debate making clinical trials and their results transparent and today. I would like a definition from the Minister: how visible to the public. Co-operation does not require is this to be measured and by which body? alignment. Without a doubt, under the provisions of Amendment 34, regulations must be made, while under Amendment 3 in the name of the noble Baroness, Amendments 35 and 36, they should correspond with Lady Thornton, also suggests considering alignment the EU clinical trials regulations.Amendment 38 provides with EU licensing processes. In the short term, the that we must continue our collaboration with the EU MHRA has already taken steps to recognise for two in whatever form we can manage between us. We also years future EMA decisions for medicine licences approved need to look hard at clinical trials portals, not only through the centralised authorisation procedure from with the EU but with our other partners in future. January 2021. In the long term, there are opportunities to establish new UK routes to market, such as a new expedited pathway for innovative products, and to Lord Bethell (Con): My Lords, as the Minister for establish shorter assessment timeframes. Innovation, I am very keen on the UK’s continued leadership in this area; I have made it something of a We have the ability to make corresponding or similar personal cause. I am very proud of the fact that the provisions to the EU CTR, but Amendment 38 would MHRA approves around 950 medicinal trials a year, oblige us to align. Amendment 35, in the name of my over half of which are multinational. noble friend Lord Lansley, does something similar. We know that once an early phase trial is established My noble friend makes the point that we have the in this country, the industry is more likely to keep its opportunity to do better than the EU CTR, and that later phase multi-country trials here. I would say to the is very much our intention. That regulation replaces noble Lord, Lord Hunt, and others who have questioned current separate regulatory authority and ethics approvals this point, that I can confirm that the purpose of the with a single national decision for a trial. The UK measures in this Bill are absolutely to build on our could adopt a similar methodology and associated data established strengths so that the UK has the opportunity requirements for approvals, but in a much quicker to anchor international drug development in this country timeframe. We have already introduced the combined and grow that capability.I am committed to international ways for a working pilot to streamline approvals by standards, international partnerships and multi-country the MHRA and ethics committees, and industry has clinical trials. It is of course important that we work told us that our scheme is one of the most appealing with our international partners both within the EU among the various pilot schemes in the EU, leading to and globally to the benefit of patients. I assure noble a reported 30% reduction in timelines. The UK may Lords emphatically that we are committed to international wish to go further and develop our existing national co-operation. system to further adapt requirements according to GC 359 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 360 risk so as to reduce unnecessary burdens, such as application following the ICH assembly’s meeting in academic trials involving a marketed product already November. The MHRA has a longstanding history of in common usage. demonstrated commitment to the ICH as part of the In his Amendment 49, the noble Lord, Lord Sharkey, EU’s delegation and we remain committed to making suggests that there would be benefits in adopting a significant contribution in the future as a stand-alone certain definitions in the EU CTR. These include the regulator. However, there are other partnerships in the EU’s revised definition of a clinical trial and future. From 2021, the MHRA will take part in Project co-sponsorship set out in the EU clinical trials regulations. Orbis, an international consortium led by the US Under the EU CTR, this new definition of clinical FDA, with regulators working together on the review trials is an attempt to avoid current variation in and authorisation of cancer medicines. interpretations in different member states. Whether The amendment in the name of the noble Lord, this will have the intended effect remains to be seen. Lord Hunt, also touches on the importance of getting EU legislation already includes a definition of a clinical medicines when they are developed by referring both trial, and the MHRA offers trial sponsors free advice to the importance of reimbursement in parallel with on whether their study meets that definition, to ensure the granting of marketing authorisations and facilitating a consistent interpretation. If we wished to amend our prompt access through new approaches to reinvestment. definition of a clinical trial corresponding to that in I reassure the noble Lord that NICE and the MHRA the EU CTR, the Bill as drafted would enable that. are already working to ensure that marketing authorisation My noble friend Lord Lansley is right that the EU procedures in health technology assessment timings CTR introduces a single submission portal and are aligned as much as possible to ensure that new co-assessment model, but I confirm that member states medicines are available to patients earlier. However, involved still have to individually authorise the trial, the subject of reimbursement is outside the scope of and therefore one or more member states could refuse the Bill’s remit. authorisation. The portal is an IT system, the method Excellent clinical trials are run here now, and that of delivery.This does not mean centralised EU approval will continue in the future. While we make changes of a trial. Where a member state has national restrictions where they are seen to be needed or helpful to facilitate that require separate approvals outside the scope of clinical trials, we will work with partners, establish the EU CTR, the sponsor would still have to seek the relationships, and continue to set international standards approval separately of the individual member state, in as part of the framework for clinical trials. addition to the processes for seeking authorisation for I hope that the noble Baroness has heard enough to the trial through the EU portal under the EU CTR. feel able to withdraw Amendment 3 and that other Industry has told us that if the UK has a rapid approval noble Lords with amendments in the group will not system, the lack of access to the EU portal is not a press theirs. particular issue. Amendment 52 introduced by the noble Lord, The Deputy Chairman of Committees (Lord Bates) Lord Patel, suggests provision to develop a clinical (Con): I have received a request to speak after the trials portal that aligns with the European Medicines Minister from the noble Lord, Lord Patel. Agency for medicines for rare diseases. The EMA’s IT system does not address complex trial designs, such as Lord Patel (CB) [V]: My Lords, the Minister referred umbrella, basket and platform trials that involve the to the large number of trials that are started in the use of master protocols. These are the very trial designs United Kingdom. Can he say how many phase 3 trials that have delivered the UK’s successes in Covid-19 have been started here? He also referred to the platform research. On the EU portal, it is also extremely unlikely that the MHRA has developed with regard to Covid that the EU would agree to UK involvement, even if that accelerated the delivery of drugs, which is correct. one were to request it, given that it is for EU member However, that is not the same as a platform for rare states and EEA countries. There are many other reasons diseases. why the UK is such an attractive place to run global I agree that the licensing that was done at speed, rare disease trials: our world-class research infrastructure within six months, would normally have taken two years: and centres for excellence, and so on and so forth. for instance, the licensing of the use of Remdesivir, produced by Gilead Sciences for the treatment of 5.45 pm Covid-19. However, that is not the same as the noble Amendment 22, in the name of the noble Lord, Lord’s implication that it could be used for rare diseases. Lord Hunt of Kings Heath, specifies a number of Those require a larger database, which Covid had, components that the term is to cover, including the because there is no shortage of Covid data. Furthermore, way in which we work internationally for the future, he said that the EU portal means that individual such as establishing and forging international regulatory countries have to approve. That is correct, but the standards. Noble Lords touched on a number of points. approval is a speedier process because it has gone We intend to have international relations in our own through the portal, unlike before. right going forward, as in Amendment 125 in the name of the noble Baroness, Lady Jolly, which requires Lord Bethell (Con): My Lords, I will be happy to the Government to seek full membership of the write to the noble Lord with the precise figures for International Council for Harmonisation of Technical phase 3 trials. However, he is right that they are Requirements for Pharmaceuticals for Human Use. incredibly important. The Bill must defend our position The MHRA has already submitted its application to on phase 3 trials, which are very much the sharp end of the ICH, and we expect to hear the outcome of the the clinical trials process. GC 361 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 362

[LORD BETHELL] risks and opportunities. My final request to the Minister The learning from RECOVERY is that it is not a is that we will need a cross-party meeting of some direct read-across to rare diseases. The noble Lord is depth—possibly more than one—to discuss this matter right that in rare disease trials, we are often trying to with his Bill team and the MHRA. We had such a drill down into very small communities, whereas 113,000 meeting. It feels as if it was aeons ago, but I think that signed up for RECOVERY,and tens of thousands took it was in February, perhaps March. Anyway, it was some of the drugs that went through the trial process. before we went into lockdown. We absolutely will need However, it is the general capability of being able to meetings and discussions before we move on to the run significant platforms, manage ethics at speed, get next stage of the Bill. On that basis, I beg leave to regulatory sign-off for these trials, and have a clinical withdraw the amendment. trials regime which suits many different purposes. That is our objective, that is why we are putting through Amendment 3 withdrawn. these reforms, and that is why we believe that the Bill The Deputy Chairman of Committees (Lord Bates) can support a modernisation of our clinical trials (Con): We now come to the group beginning with regime. Amendment 4. I remind noble Lords that anyone On the European trials process, the noble Lord is wishing to speak after the Minister should email the entirely right that the portal contributes to speedy clerk during the course of the debate. processes. However, it is not the only way of having a speedy sign-off of trials through Europe; we believe Amendment 4 there are other ways of doing that. Moved by Lord Hunt of Kings Heath 4: Page 1, line 6, at end insert— Baroness Thornton (Lab): Responding to the very “( ) The power under subsection (1) may not be exercised to— last thing that the Minister said, he will have to tell us (a) create a criminal offence of failing to comply with a what those other ways are during the course of this provision made in regulations; or discussion. (b) modify penalties for existing criminal offences.” This has been a well-informed debate, as I assumed Member’s explanatory statement it would be. I think I was right in saying that this issue This probing amendment would remove provisions is at the heart of the Bill and how we move forward. for criminal offences to be created by delegated legislation. My noble friend Lord Hunt—I thank him for his support The DPRRCconsidered this an inappropriate delegation —was quite right that this is the big issue. As the of power. noble Lord, Lord Sharkey, said, this is the start of the Lord Hunt of Kings Heath (Lab): I have added my discussion that we are going to have about attractiveness name to Amendments 4, 52 and 69, which would and where that lies and how it can express itself. remove the provision for criminal offences to be created The noble Lord, Lord Lansley, put his finger on by delegated legislation. various important issues to do with clinical trials. He The Government are developing a reputation for asked the key question, which I do not think the riding roughshod over the law, personal liberties and Minister answered. It is: if we diverge, what will that the role of lawyers. Indeed, the Internal Market Bill, mean and how will it happen? I did not hear an answer debate on which is taking place in the Chamber today, to that question. The answer will determine what some is a reflection of that. of us do next as we move forward with this Bill. The I am afraid that this Bill continues that trend, as noble Lord, Lord Kakkar, was completely correct indicated by the Delegated Powers and Regulatory when he said that it is vital that we get this right for the Reform Committee in its very direct criticism of the future of life sciences in the UK. criminal offence provisions.The committee drew attention I am grateful to the noble Lord, Lord Patel, for his to provisions in the Bill which give Ministers powers support for our amendments. He reminded us that we to create and modify imprisonable offences by statutory had this discussion during the passage of the main instrument. Thus regulations under Clauses 1 and 8 Brexit legislation, when we were told that it was not may create a criminal offence of failing to comply with the appropriate place to such a discussion so the provision made in such regulations that is punishable amendment was withdrawn. Now, at the last minute, by imprisonment up to two years. Regulations under this must be the place where we have these discussions Clauses 1 and 8 may also amend the dozens of offence- and come to some conclusion on them. creating provisions in the existing regulations.Regulations The noble Lord, Lord O’Shaughnessy, is right. As under Clause 12 may create new criminal offences we strike out on our own as a country, we will need relating to medical devices that are punishable by new relationships and we will need to take advantage imprisonment for up to one year. Schedule 2 inserts a of what is on offer in the rest of the world. The new regulation 60A and a new schedule into the 2002 transition will be very important because what happens regulations which make it a criminal offence, punishable in the meantime is vital. We will also need to ensure by imprisonment for up to one year, to breach any of patient safety in this laissez-faire world, as the noble the provisions in the 2002 regulations that are listed in Lord explained, for example, if we decide to ignore the the new schedule. It goes on: Clause 14(1)(d) provides portal and strike out without it. that regulations under Clause 12 may amend the new I do not doubt for a moment the Minister’s emphatic Schedule 30. commitment to making this a success, but as we move The powers conferred in all these provisions give forward, this Committee will need to understand much rise to two concerns. As the Select Committee reported, more than what the Minister has told us so far on the it has previously expressed the view that it expects a GC 363 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 364 compelling justification for the ingredients of a criminal more than two years is not satisfactory. A sentence of offence to be set by delegated legislation. The powers imprisonment of up to two years is a very serious in Clauses 1, 8 and 12 would allow Ministers to create matter. Parliament, not Ministers, should decide when completely new criminal offences and make changes such a potential sentence should be available to the to the ingredients of existing offences, yet the courts. memorandum does not appear to contain any justification at all for this. The committee also points out that it has 6 pm also said that where the penalty for a criminal offence may be set by delegated legislation, it would expect the Lord Sharkey (LD) [V]: My Lords, we strongly maximum penalty to be included in the Bill, save in support Amendments 4, 42, 52 and 92 in this group. exceptional circumstances. The proposal in the Bill to create new criminal While the Bill limits the maximum penalty for offences by statutory instrument is completely offences created by regulations under Clauses 1 and 8, unacceptable. It is a matter of basic principle that the it is unclear whether this limit also applies to the many creation of new criminal offences requires proper existing medicines offences which could be modified parliamentary scrutiny.The delegated powers affirmative by regulations under Clause 1 or Clause 8. Again, the procedure does not provide this or anything like it. memorandum does not appear to shed any light on This ought not to be controversial. The Government’s this. The Minister in his Amendments 43, 44, 64 and 65 own list of the areas in which it is appropriate to use has attempted to soften the pill by ensuring that delegated legislation does not include the creation of regulations under Clause 1 (1) and Clause 8 (1) may criminal offences. not provide for an offence to be punishable with a Our Constitution Committee has made its position sentence of more than two years. That is obviously very clear. It considers the use of delegated legislation welcome, but I do not think it goes far enough. From to formulate policy or create new criminal offences my reading of the amendments—no doubt we will or public bodies constitutionally unacceptable. The hear about them later—they do not deal with the Government propose to do the first two of those other substantial concern of the committee that the things in this Bill; it is dismaying that they should so powers in Clauses 1, 8 and 12 would allow Ministers directly and bluntly ignore the conclusion of the to create completely new criminal offences and make Constitution Committee. changes to the ingredients of existing offences. Given The Government appear, however, to have felt the that, I do not think we can allow these delegated need to modify their initial position somewhat. Their powers to be retained in the Bill. I beg to move. amendments in this group preserve the power to create new criminal offences by statutory instrument, but now cap any sentence for breach at two years. That is a Lord Patel (CB) [V]: My Lords, I shall speak to category error. Our objection is to the creation of Amendments 42 and 63, in the name of the noble criminal offences by delegated powers. The length of Baroness, Lady Thornton, to which I added my name the sentence attached is completely irrelevant and I am and to which the noble Lord, Lord Hunt of Kings amazed that the Government think that capping the Heath, has just alluded. I also have my name to sentence might make the creation of criminal offences Amendment 92 in the name of the noble Lord, proposal more acceptable. Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Judge. Noble There is an obvious and fundamental principle at Lords can immediately tell that I must be the tenth stake here. Criminal offences, no matter what penalties reserve speaking on this important amendment, but are attached, should not be created without full the noble Lord, Lord Hunt of Kings Heath, has laid parliamentary scrutiny. They should not be created by out very clearly the problems with the government the use of delegated powers. I urge the Minister to amendments that were brought in and the powers think again and to remove the offending provisions they seek. from the Bill. If he is disinclined to do that, I hope that the House will insist on Report. I shall be brief on this as the Constitution Committee report spelled it out in its last line: “The delegated powers to create and adjust criminal offences Lord Kakkar (CB) [V]: My Lords, I very much in this Bill are constitutionally unacceptable.” support what the noble Lord, Lord Sharkey, has just It was making a constitutional point. said. In so doing, I support Amendments 4, 42, 52, 63, As the noble Lord, Lord Pannick, who is a member 69 and 92 in this group. of the Constitution Committee, cannot be here, I shall It seems counterintuitive at the very least for a speak on his behalf. Paragraph 21 of the Constitution Government to come forward with proposals to give a Committee’s report states: Minister powers using a delegated provision to create “We have concluded previously that ‘the creation of criminal new criminal offences and, when challenged, to justify offences through delegated powers is constitutionally unacceptable’, the position by saying, “Well, we will limit the sanction save for exceptional circumstances. The delegated powers to create to two years’ imprisonment.” This completely misses and adjust criminal offences in this Bill are constitutionally the point, as we heard from the noble Lord, Lord Sharkey. unacceptable.” There is a clear principle at stake here, which has been The noble Lord, Lord Pannick, went on to say that the well described by the Constitution Committee in its response of the Minister, the noble Lord, Lord Bethel, report on this legislation. Very simply, it offends liberty that regulations cannot be used to provide for an offence and the functioning of our democracy that a Government to be punishable with a sentence of imprisonment of can propose to create criminal offences that would GC 365 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 366

[LORD KAKKAR] offences could be amended when there was no maximum deny a citizen their liberty for one day, let alone a specified in the Bill. I want to be clear that we do not maximum of two years, and feel that there should not intend to increase the penalties for existing offences. be proper parliamentary scrutiny in the accepted fashion Amendments 43 and 44 would work together to for the creation of criminal offences. Her Majesty’s amend Clause 5. They make it clear that, under Clause 1, Government should think very carefully about what we may not make regulations that provide for a criminal they propose to do here and bring their own amendments offence to be punishable by more than two years’ beyond the government amendments suggested in this imprisonment. This will apply to both new and group. existing criminal offences. For veterinary medicines, Baroness Barker (LD): My Lords, I just want to add Amendments 64 and 65 seek to achieve the same by to what my noble friend Lord Sharkey said. This is a amending Clause 10. matter of principle; from the two reports by the two The government amendments will, I hope, remove committees that have been cited and from the Second any concern that powers in Clauses 1 or 8 could be Reading debate, the Government can be in no doubt used to make regulations extending sentences for existing about the strength of feeling on it. In the light of offences beyond two years’ imprisonment. those, the Government’s response in the government amendments in this group is, frankly, rather pathetic I now turn to Amendment 4 and the other amendments and not at all acceptable. in this group to which noble Lords have spoken. The ability to enforce breaches of the regime governing The Bill represents an enormous upheaval for one medicines is a power originally conferred on the Secretary of the critical areas of our industry.The pharmaceutical of State in the interest of protecting public health. industry is of immense importance to this country. This was introduced by the Medicines Act 1968 and Apart from anything else, to add criminal offences provisions around offences are found throughout the created through delegated powers by means of a Bill Human Medicines Regulations 2012. They are also that is so spare and lacking in detail does a huge contained in the Veterinary Medicines Regulations 2013. disservice to people who want to continue to pursue not just high-quality but ethical production of badly Offences deter potentially harmful activity and make needed medicines in this country and within international it possible to take punitive measures against those frameworks. If the best the Government can do is to whose actions put people, animals and the environment table the amendments in this group, they do the industry at risk. As we make necessary updates to the regulatory a great disservice. requirements, we must be able to remain consistent with the current enforcement regime, which already Baroness Thornton (Lab): I do not think that I need imposes criminal sanctions. It would not be right that to say much in response to the remarks that were, I a person may face a criminal sanction for breaching think, unanimous in their support for my amendment current requirements but not for breaching new regulatory and the other amendments in the group. The cap on requirements, for example relating to novel technologies the sentence is not a good enough response by the and medicines. As with other changes to provisions, Government. Earlier in our debates, I made a remark making changes to offences will be subject to the draft about amendments designed to circumvent; I am afraid affirmative procedure, and we will make offences that the government amendments before us are exactly proportionate and necessary. It is imperative that we that kind of amendment. They will not serve, I am are able to balance novel regulation with enforcement afraid. of that regulation. Unless the Government are prepared, as I hope It cannot be ignored that crime involving medicines they are, to table amendments that actually solve the is increasing. Furthermore, criminal activities adapt to problems and address the issues raised by the Constitution new environments and technology. In recent months Committee and the Delegated Powers and Regulatory we have seen opportunistic criminals selling online Reform Committee—they could not have been clearer unauthorised and unapproved medicines and devices on this issue: in this country, we do not set up criminal for the treatment, prevention or diagnosis of Covid-19, offences and their sentences by delegated legislation—there including antimalarials, self-testing kits, “miracle cures” is nothing more for me to say, other than that I hope and “antiviral misting sprays”, which could cause harm the Government will think again. andunnecessarystresstopatients.Enforcementcapabilities Baroness Penn (Con): My Lords, it is perhaps must be able to keep pace with criminal exploitation. appropriate if I begin by speaking to the government Delegated powers afford us our continued ability to amendments—Amendments 43, 44, 64 and 65 in the enforce the regulatory requirements for medicines and name of my noble friend Lord Bethell —in this group. devices for public protection. To be effective, they In doing so, I thank my noble friend Lord Blencathra must be enforceable. for his committee’s report. As previously noted, we The Veterinary Medicines Regulations 2013 contain have listened to that report, and the changes that we numerous criminal offences for breaches of the regulations; propose through these amendments are intended to again, this is for the purposes of enforcement. The address the specific concern in that report regarding Veterinary Medicines Directorate’s enforcement strategy penalties for existing criminal offences. is risk-based; it focuses on proportionality, consistency, As drafted, Clause 5(1)(b) already provides a restriction transparency and targeting. The VMD works with limiting the maximum penalty to imprisonment for businesses and individuals to assist them in complying two years when creating a criminal offence. The DPRRC with the legislation through the provision of advice and asked us to explain whether the penalties for existing guidance. However, where necessary the VMD will use GC 367 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 368 more formal means of enforcement to secure compliance. where the Government can make major changes in a It is critical that we have the delegated powers to regulatory regime simply through regulation that enforce this. Parliament has no ability to do anything about in We have always been clear that we are trying to practice. The Government add to the problem by then provide greater clarity on how to enforce the regulations saying, “And we can make changes to the offences as on medical devices. The regulator’s ability to have well, subject to the provisions about the cap the teeth when we are looking to raise medical device Government have brought in”. That is why this is so safety standards in future is essential. The report from important. We have had a short debate. It would have my noble friend Lady Cumberlege tells us that. been longer. I think it will be on Report. The Government should be in no doubt that this causes a great deal of The Bill is also clear on the maximum time limit for anxiety and that ultimately, I do not think we accept imprisonment, which applies to any new criminal offence the basic premise on which the Bill is being brought introduced. This limit matches the current system for forward. Having said that, I beg leave to withdraw the devices, where criminal offences for medical devices amendment. are already punishable for up to six months. The devices regulations are in place to protect public health; Amendment 4 withdrawn. breaches of those regulations put people at risk and can cause significant harm. It is only appropriate that Amendment 5 not moved. there is a clear consequence for any such actions, including potential criminal prosecutions. We will of 6.17 pm course have regulations subject to the duty to consult at Clause 41, which will mean the public have the Sitting suspended. opportunity to comment on the necessity and 6.31 pm proportionality of the approach. The Deputy Chairman of Committees (Lord Bates) I hope the necessity of enforcing the new regulations, (Con): We now come to the group beginning with and the safeguards the government amendments have Amendment 6. I remind noble Lords that anyone provided, persuade the noble Lord to withdraw his wishing to speak after the Minister should email the Amendment 4 and others not to move theirs. clerk during the debate.

The Deputy Chairman of Committees (Lord Bates) Amendment 6 (Con): I have received no requests to speak after the Minister, so I call the noble Lord, Lord Hunt of Kings Moved by Lord Sharkey Heath, to respond to the debate on his amendment. 6: Page 1, line 6, at end insert— “( ) Regulations made under subsection (1) are subject, in relation to regulations made by the Secretary of State, to the Lord Hunt of Kings Heath (Lab): I first thank my super-affirmative procedure set out in section (Super-affirmative noble friend Lady Thornton for her words in support procedure), in relation to regulations made by a Northern Ireland of the amendment and the noble Lord, Lord Patel, department, to section (Super-affirmative procedure: Northern who was hoping to field an impressive cast list in this Ireland), and, in relation to regulations of the Secretary of State debate. I thought he did very well; I have always and a Northern Ireland department acting jointly, to both.” thought he would make a first-class lawyer—he should Member’s explanatory statement take that as a compliment. This amendment, and the amendments to page 5 line 12, page 7 line 22 and page 9 line 27 in the name of Lord Sharkey, At the heart of it, as he and the noble Lord, replace the existing affirmative procedure with a super-affirmative Lord Sharkey, said, this is a constitutional point: the procedure in order to increase parliamentary scrutiny. advice we have had from a House of Lords Select Committee is that what the Government are proposing Lord Sharkey (LD) [V]: My Lords, Amendment 6 is constitutionally unacceptable. While the Minister’s deals with human medicines. Amendments 53, 71 and 98 amendments are always welcome, the fact remains in the group make the same provisions as Amendment 6 that the Bill, after the Government’s amendments, but for veterinary medicines, medical devices and would allow Ministers to create completely new criminal information systems.I will also speak to Amendments 143 offences and make changes to existing offences. The and 144, which deal with the mechanisms that make Minister kindly explained this, but here we get to the Amendments 6, 53, 71 and 98 work. Our Amendments heart of this Bill and the problem that many of us have 135, 136 and 142 would replace the negative procedure with it. She talked about novel regulation and the need in cases of urgency with the “made affirmative”procedure. to keep pace with developments. I understand that. I shall not speak to these because the Minister has more or less conceded the point in his new amendments. 6.15 pm Amendment 6 is in my name and those of the noble The problem is that what the Government want is Lord, Lord Forsyth of Drumlean, the noble and learned carte blanche to change regulation in this field via the Lord, Lord Judge,and the noble Baroness,Lady Andrews. use of regulation. In effect it is Executive diktat. They I am immensely grateful for their support and regret can at any time come along and change the regulatory that they cannot be present today because they are all framework through regulations, and they want the speaking at the internal market Bill Second Reading offences regime to match it. I understand that, and it in the Chamber. It is extremely unhelpful that the brings us back to our fundamental objection to the Government have scheduled two significant Bills for Bill and why we will come back to the sunset clause. the same time slots. They should be decoupled to This is not acceptable. We cannot have a situation prevent future clashes. GC 369 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 370

[LORD SHARKEY] Our amendments follow this pattern and are more Amendment 6 and its equivalents deal with the generally based on the variant of the procedure used non-urgent scrutiny procedures currently set out in the in the Public Bodies Act 2011. Amendments 143 and 144 Bill. They replace, in Parts 1, 2 and 3, the affirmative set out the details and the stages. First, the Secretary procedure for delegated powers with the super-affirmative of State must lay before Parliament a draft of the procedure set out in Amendments 143 and 144 later in proposed regulations and a document explaining them; the Bill. The purpose of these amendments, taken as a secondly, he or she must request a committee of either whole, is to restore an element of parliamentary scrutiny House whose remit includes health, science or technology to a Bill which so conspicuously lacks it. to report on the draft regulations within 30 days; and This is a skeleton Bill. Parts 1, 2 and 3 contain no thirdly, in proposing a draft statutory instrument policy detail but give the Minister effective carte blanche. containing the regulations, the Secretary of State must The Minister is given almost unfettered power to take account of any representations, any resolution of remake our human medicines, our veterinary medicines either House and any recommendations of the committee and our medical devices regimes. The reports of the to which the draft was referred. After the expiry of the DPRR Committee and the Constitution Committee 30-day period, the Secretary of State may lay before were highly critical of this approach. At Second Reading, Parliament regulations in terms of the original or a the noble Lord, Lord Blencathra, chair of the DPRRC revised draft. The Secretary of State must also state and speaking for it, said that what representations, recommendations or resolutions were made in the 30-day period and give details of any “the structure of the Bill is absolutely atrocious and an affront to such. He or she must also explain any changes made in parliamentary democracy.” a revised draft. After that, the normal affirmative He went on to say that his committee was procedure continues. “deeply concerned not only by the Government’s failure to provide The Library records that the last insertion in a Bill sufficient justification for the adoption of a ‘skeleton bill’approach— of the super-affirmative procedure was by the Government which would give Ministers sweeping powers to almost completely themselves in October 2017 in the Financial Claims re-write the existing regulatory regimes … but also by their failure to acknowledge the breadth of the powers that the Bill would and Guidance Bill. When they are not doing it themselves, confer.” the Government traditionally put forward any of or all three routine objections to the use of super-affirmatives. He concluded: The first is that it is unnecessary because the use of the “Parliament is effectively bypassed; that is a sick joke of good affirmative procedure provides sufficient parliamentary law.”—[Official Report, 2/9/20; cols. 415-16.] scrutiny. Sometimes, this objection is elaborated by Despite all this, it is likely that the Minister will praying in aid extensive consultation. I remind the choose to represent the proposed use of the affirmative Minister of the DPRRC’s remarks in paragraph 45 of procedure in this Bill as meaningful parliamentary its report on the Bill where it says that scrutiny, but it is emphatically not that. Parliament “we are concerned at consultation being presented as a substitute cannot amend SIs and this House has voted down for Parliamentary scrutiny.” affirmative SIs just four times in the past 70 years. The It is quite obviously untrue that the affirmative procedure Constitution Committee in its 2018 report The Legislative allows any kind of effective scrutiny. Process: the Delegation of Powers noted: The second routine objection is that the super- “Without a genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s affirmative procedure is cumbersome. I take this to secondary legislation. This is constitutionally unacceptable.” mean only that this procedure is more elaborate than the affirmative procedure, which is, of course, the Affirmative SIs do not constitute meaningful whole point. It is necessarily more elaborate because it parliamentary scrutiny, and the Government’s promise provides for actual scrutiny where the affirmative of wide, but unspecified, consultation on the powers procedure does not. The third routine objection is that in the Bill does not somehow magically restore it all takes too long. This has force only if there is parliamentary scrutiny. Parliament is still bypassed. some imminent deadline. The Minister may argue that There is a delegated legislation procedure that allows there is such a deadline at midnight on 31 December. for significant parliamentary scrutiny. This procedure, At this point, the Government lose the powers conferred which comes in several flavours, is known to the by Section 2(2) of the European Communities Act to Government as “exceptional procedures”and to Erskine modify the regimes, but does this really present a May, in Part 4 Chapter 31.14, as the “super-affirmative deadline? I leave aside here the issue of whether this procedure”. This is what our amendments propose Bill will have been passed by then, given its very slow should replace the existing affirmative procedures written progress and the sparse future scheduling. into Parts 1, 2 and 3. Erskine May characterises the The impact assessment helpfully sets out, in Annexe B, super-affirmative procedure as follows: the number of times the Section 2(2) powers have been “The super affirmative procedure provides both Houses with used. Between 2013 and 2019 they generated a total of opportunities to comment on proposals for secondary legislation 11 SIs. In each of the last four years they have generated and to recommend amendments before orders for affirmative just one SI. This is not an avalanche. Nothing in these approval are brought forward in their final form.” figures shows urgency. Nothing suggests we need to It notes that rush regime changes by excluding scrutiny provisions “the power to amend the proposed instrument remains with the from the Bill. Nothing suggests that using the super- Minister: the two Houses and their committees can only recommend affirmative procedure would cause significant delay or changes, not make them.” disadvantage. GC 371 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 372

The impact assessment notes explicitly, on page 5: instead many new subsections, including a table detailing “policy development is at an early stage”. which specific provisions will be subject to the negative This was in June.If policy development has made progress procedure, the “made affirmative” procedure and the since then, perhaps the Minister can now tell the draft affirmative procedure. Committee what policy changes he intends to propose, 6.45 pm using the delegated powers in Parts 1, 2 and 3. This accomplishes, in my view, mainly what the If policy development has not made progress, it is Minister set out in his letter,saving the negative procedure vital that when it does, and sees daylight in SIs, those for the setting of fees and “supplementary” regulation SIs are scrutinised as fully as possible, as the super- relating to the new civil sanctions regime for medical affirmative procedure permits. In the event that a devices. It also provides that the “made affirmative” policy or technical change is required urgently, the procedure will be used for the disapplication of provisions provisions of this Bill, with the latest Government under Clause 6 in cases of emergency. However, the amendment, should allow the use of the “made wording of the table regarding Clause 6 is very specific affirmative” procedure. and states that the “made affirmative” procedure will This is a skeleton Bill. It is an attempt to bypass be used only where the relevant regulations Parliamentary scrutiny. It contains no policy details “contain a declaration that the person making them considers and has no special claim to urgency as a reason for that they need to be made urgently to protect the public from an limiting scrutiny. The affirmative procedure is not imminent risk of serious harm to health”. meaningful scrutiny, as our Constitution Committee Clause 6 itself already sets out that regulations made has pointed out—but the super-affirmative procedure under it may be made where there is is. That is what these amendments propose. Parliament “a risk of serious harm to health”. should not be bypassed. I beg to move. The issue is that it is not clear how risk is being interpreted, and the judgment of what constitutes an Lord Kakkar (CB) [V]: My Lords, I support the urgent and noble Lord, Lord Sharkey, and everything he has said “imminent risk of serious harm to health” in moving Amendment 6. These are clear matters of is being left entirely to the person drafting the regulations. principle, and although one must accept that government Further, the amendment is not accompanied by Amendment 133 is an attempt to provide concessions amendments to Clause 6, which itself provides that on them, the noble Lord has set out clearly why regulations disapplying certain provisions of medicine adoption of even the affirmative procedure will not and medical devices regulations can be subject to provide sufficient scope for appropriate scrutiny of conditions to be set out in protocols. In my view, this what mayturn out to be exceedingly important regulations. circumvents parliamentary scrutiny. Overall, the The argument for adoption of the super-affirmative amendment seems at least to address concerns relating procedure has been well made, and I shall not repeat to legislative procedure.However,none of the amendments all the noble Lord’s arguments, save to say that in includes a sunset clause, so they do not address the moving his amendment he also dealt with all the overarching concern that this skeleton Bill circumvents potential arguments that could be put against what is parliamentary scrutiny and adds to the complexity of proposed in the amendments. In those circumstances, existing regulations. bearing in mind the importance of the issues that the legislation will cover, and the deep anxieties already Baroness Jolly (LD) [V]: I speak in support of these expressed in Committee about the nature of the Bill, amendments in the names of my noble friend both in practical terms and in terms of its constitutional Lord Sharkey and other eminent noble Lords. I confess implications, Her Majesty’sGovernment should seriously that I had not heard of the super-affirmative procedure consider accepting these important amendments. until my noble friend sat me down and talked me through it, and it struck me as being eminently sensible and doable, and this is exactly the right sort of Bill—or Lord Patel (CB) [V]: My Lords, Amendments 137 the regulations contained herein are exactly the right and 138 in this group are in my name. They have sort—for the super-affirmative procedure. I ask all partly been answered by government Amendment 133, noble Lords to support this amendment and those and I shall speak about all three. My amendments are who support it. probing amendments, which would prevent regulation exercise in respect of Clauses 6 and 15 in relation to Baroness Thornton (Lab): My Lords, I thank the the disapplication of certain provisions in the medicines noble Lord, Lord Sharkey, for his comprehensive and medical devices regulations where there is a serious introduction to this group of amendments, particularly risk to public health. The reasons for this are the same those that he is supporting. as those set out earlier on the amendment tabled by We are minus at least four noble Lords from this the noble Baroness, Lady Thornton, and the noble debate because of the clash with the other Bill. I have Lord, Lord Hunt of Kings Heath. certainly made my view known to the usual channels The Government do not require the negative procedure in the next booth that we cannot continue to discuss to intervene swiftly in emergency scenarios, as the this Bill in those circumstances because we will be affirmative procedure is available, and safeguards missing too many people who have a stake in the Bill parliamentary scrutiny. That is what the amendment is and amendments down. I cannot imagine what the about. The Government have tried to respond to it, to noble Lord, Lord Forsyth, is saying to his own Benches some extent, through their Amendment 133, which about this—actually, I probably can, and it will not be removes subsections (3) to (9) of Clause 42 and inserts polite,I suspect. He put his name down to this amendment GC 373 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 374

[BARONESS THORNTON] My amendment also addressed the egregious provisions and, presumably, found out that he was not allowed to of Clause 42 that provide that where any such regulation speak in both the Second Reading debate and in this needs to be made urgently to protect the public from Committee at the same time. I can see why that rule is imminent risk of serious harm to health, the negative there, but we are finding that this really does not work. procedure applies instead. The Government’sjustification While the affirmative procedure offers nothing like for departing from the affirmative procedure was that: the scrutiny given to a Bill, which typically goes through “It is appropriate for regulations made in these circumstances several substantive stages in each House and can be to be subject to the negative resolution so that they can come into amended, we agree wholeheartedly with the DPRRC’s force immediately and provide an efficient means of addressing view that Clauses 1, 8 and 12 contain inappropriate an imminent serious public health risk. We expect that such delegations of power. We are where we are, and we regulations would only need to be in place for a very short period of time, potentially shorter than it would take to schedule and therefore take the view that the affirmative procedure hold debates”. should apply.Amendment 134 provides for all regulations to be made subject to the draft affirmative procedure This is wholly inadequate. rather than the negative procedure and for urgent The DPRRC stated: regulations to be subject to the made affirmative procedure “We are wholly dissatisfied by departments repeatedly arguing rather than negative procedure. for powers otherwise subject to the affirmative procedure to be Both the DPRR Committee and the Constitution subject to the negative procedure where there is a need to act quickly, and seeking to justify this without acknowledging the existence of Committee have expressed considerable concern at the the made affirmative procedure … Even accepting the appropriateness inappropriate use of the negative procedure in this of the delegation of powers in clauses 1 and 12, if the affirmative Bill. For example, Clause 2(1)(n) provides that regulations procedure provides the appropriate level of Parliamentary scrutiny under Clause 1 may make provision about prohibitions for regulations made in reliance on clauses 6 or 15 in non-urgent relating to the supply of human medicines. Clause 42(9) cases then, in the absence of cogent reasons for the negative provides for such regulations to be subject to the procedure to apply in urgent cases, we take the view that the made negative procedure. The explanation given for this in affirmative procedure should apply in urgent cases.” the memorandum, which I think I referred to in the The Constitution Committee concurred, recommending very first debate in this Committee, is as follows: that “proposals to make changes to existing provisions, or to introduce “the emergency powers in this Bill are subject to the made new provisions enabling the supply, administration or prescribing affirmative procedure, rather than the negative procedure, such of medicines are made to reflect shifts in best practice following that Parliament is required actively to approve them.” extensive consideration and scrutiny by the relevant professional bodies.” The Minister will be well aware that regulations The DPRRCfound this an unconvincing explanation. under the “made affirmative” procedure can be made I probably do as well. It noted: and laid as expeditiously as can regulations subject to the negative procedure. They can also be laid during a “It isn’t clear why consultation with relevant professional bodies lessens the requirement for scrutiny in Parliament. Indeed, parliamentary recess, unlike draft affirmative instruments. if proposed changes are sufficiently important for there to be extensive Quite frankly, it is insulting that the Government have consideration and scrutiny by professional bodies, this supports the gall to argue for emergency powers to be subject to requiring the higher level of scrutiny in Parliament that the less scrutiny under the negative procedure, especially affirmative procedure affords. Furthermore, the prohibitions to in the current climate when hundreds of emergency which clause 2(1)(n) applies are sufficiently important that breach regulations have been introduced with considerable of them is a criminal offence (punishable, in the case of 4 of the 5 prohibitions, by imprisonment for up to two years). haste using the “made affirmative” procedure. Can the Even accepting the appropriateness of the delegation of powers in Minister say how this dereliction ever made it into the clause 1, we take the view that the affirmative procedure should Bill, never mind through the Commons? I imagine apply. The consultation requirement imposed by clause 41 of the that the Minister might be quite embarrassed to put Bill is to be welcomed but we are concerned at consultation being her name to the Bill, which is perhaps whythe Government presented as a substitute for Parliamentary scrutiny.On the contrary, have introduced Amendment 133 at the 11th hour. if the exercise of the power is of sufficient importance to merit extensive consultation, it is of sufficient importance to warrant I also speak in support of the super-affirmative the higher level of Parliamentary scrutiny which the affirmative amendments in the name of the Lord, Lord Sharkey. procedure affords.” They are supported by Members across the House— The committee also highlighted and raised concerns including my noble friend Lady Andrews who is not about Clause 9(1)(f), which provides that regulations here to give her support although she is extremely under Clause 8 may make provision about the categories enthusiastic about this amendment. of person who may apply for veterinary medicines. Given that this is a skeleton Bill, the use of the The EM states: super-affirmative procedure seems a sensible and “any proposals to make changes to existing powers or to introduce proportionate mechanism. In this case, it would allow new powers for veterinary professionals to supply, administer or prescribe medicines will be subject to extensive consideration and relevant parliamentary committees, in consultation scrutiny by professional bodies”. with stakeholders,opportunities to comment on proposals Again, the committee found this unconvincing for the for secondary legislation and to recommend amendments same reason, and took the view that the affirmative before orders for affirmative approval are brought procedure still applies. I must say, I wholeheartedly forward in their final form. It has been used effectively agree with its assessment. As it says, by Governments of all colours, who recognise that it “if the exercise of the power is of sufficient importance to merit allows them flexibility when they need to bring forward extensive consultation, it is of sufficient importance to warrant regulations, while consultation and scrutiny happen the higher level of Parliamentary scrutiny which the affirmative before any amendments come to the House by affirmative procedure affords.” resolution. GC 375 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 376

That is particularly important given that many Amendment 133 provides a significant lift in areas in which we expect regulations to be laid, ranging parliamentary scrutiny of the regulations made in from life sciences and clinical trials to hub and spoke relation to human and veterinary medicines in particular. pharmaceutical models, could make the contents of Taken in conjunction with the other government the SIs—and, in the absence of policy details in the amendments, the Government’s accountability to Bill, even examples of draft regulation that have been Parliament and the public in making regulatory change published in respect of other Brexit legislation— is very strong. Coupled with Amendment 131, controversial. I hope that the Minister recognises the Amendment 133 means that Parliament will have early merit of this proposal. sight of the Government’s thinking on future regulation, we will have public consultations to inform regulation, Baroness Penn (Con): My Lords, I will begin by and will have the opportunity to scrutinise regulation speaking to government Amendment 133 on behalf of under the draft or “made affirmative” procedures. my noble friend Lord Bethell. It provides significant This is a large package of reassurances. I therefore changes that I know many will welcome. Wehave listened hope that government Amendment 133, which is tabled to the concerns raised about parliamentary scrutiny in the name of my noble friend Lord Bethell, satisfies on emergency powers. I assure noble Lords that we the Committee that we have carefully considered the have carefully considered their views and the different DPRRCreport and taken onboard its views in considering amendments that have been put forward on this topic. which procedure should apply to the different regulation- As a result, government Amendment 133 would making powers in the Bill. change applicable parliamentary procedure for reactive Against that background, let me explain why I do emergency regulations to the “made affirmative” not feel it appropriate to accept Amendments 6, 53, procedure. It also provides that regulations about 71 and 98, tabled by the noble Lord, Lord Sharkey. prescribing, advertising, packaging and labelling in When taken with Amendments 143 and 144, they relation to human and veterinary medicines will no would provide that regulations made under these powers longer be subject to the negative resolution procedure, are subject to the super-affirmative procedure, which but instead to the draft affirmative procedure. Using is a novel procedure for even some members of this the “made affirmative” procedure when making Committee. As the noble Lord said, that procedure regulations reactively in emergency situations affords would require an initial draft of the regulations to be the Government the required speed and flexibility to laid before Parliament alongside an explanatory statement react to emergencies while providing that Parliament and that a committee must be convened to report on can scrutinise what has been done and why. When we those draft regulations within 30 days of publication. make the regulations proactively, we must demonstrate Only after a minimum of 30 days following the publication the need to protect the public from the risk of serious of the initial draft regulations may the Secretary of harm; these regulations will be subject to the draft State lay regulations, accompanied by a further published affirmative procedure. statement on any changes to the regulations. They It is important to acknowledge that the emergency must then be debated as normal in both Houses and powers are not intended to be used. However, as the approved by resolution. noble Baroness, Lady Thornton, said, we are in a I recognise the importance of parliamentary debate; situation where we are currently using emergency powers, it is already provided for in government Amendments 131 so she is correct that the “made affirmative” procedure and 133. Alongside any draft regulatory changes laid has been put to good effect during the current pandemic. before Parliament we would expect to publish an None the less, these powers are a measure of last impact assessment, an Explanatory Memorandum and resort to protect the public from the risk of serious a statement on why there are good reasons for amending harm to health. secondary legislation made under Section 2(2) of the We want to avoid using the powers reactively where European Communities Act 1972. This would, of possible. It is already a condition in the regulations course, follow a period of consultation. Not only that, that the situation must be accompanied by a declaration we would be obliged to lay a report before Parliament of the urgent need to protect against the imminent risk on regulations within a specified period and on the of serious harm to health. I note the questions asked consultation that took place. As drafted, the amendments by the noble Lord, Lord Patel, about the definition of in the name of the noble Lord, Lord Sharkey, would that statement. I will write to him further on that apply to the regulations needed reactively in emergencies. matter. This would evidently impose a dangerous delay in our ability to act rapidly to keep people safe. 7 pm Of course we must be cognisant of the demands Coupled with the amendment that these regulations that the super-affirmative procedure would place are now to be subject to the “made affirmative”procedure, on parliamentary time. There will undoubtedly be I believe that we have achieved the correct balance. circumstances where the 30-day minimum period and Other provisions in Parts 1, 2 and 3 that are not the requirement for a committee report would place a already subject to the draft affirmative procedure will disproportionate demand on parliamentary time. For now be. This means that going forward, provisions instance, a small change to the Human Medicines around prescribing, advertising, labelling and packaging Regulation 2012, such as updating the list of medicines human and veterinary medicines will be subject to the which can be administered by these professionals by draft affirmative procedure. There are exceptions to removing medicines which have become obsolete, would this in relation to fees and supplementary regulations not warrant the quantity of parliamentary time which in the new devices civil sanctions regime. the super-affirmative procedure would require. GC 377 Medicines and Medical Devices Bill[LORDS] Medicines and Medical Devices Bill GC 378

[BARONESS PENN] The Deputy Chairman of Committees (Lord Bates) Amendment 134 deals with further changes to the (Con): My Lords, I have received one request to speak negative procedure and provides for reactive regulations after the Minister. I call the noble Lord, Lord Patel. under Clauses 6 and 15 to be subject to the “made affirmative” procedure. Amendments 135, 136 and 142 Lord Patel (CB) [V]: I thank the Minister most in the name of the noble Lord, Lord Sharkey, would sincerely for her extensive response. I understand some include Clauses 6 and 15 within the change to the of the points she made. I am also grateful that she is “made affirmative” procedure. Amendments 137 and going to write to me and other noble Lords about the 138 in the name of the noble Lords, Lord Pannick, definitions that I questioned in my speech. Lord Patel, and the noble and learned Lord, Lord Mackay, I accept that at times the Government will need to would apply the draft affirmative procedure instead to have powers in emergencies, but some of the examples those clauses. the Minister gave were not really emergencies. I made We have made clear our commitment to ensuring the point that in such situations government that the regulations made under the Bill are subject to Amendment 133 and the table do not allow for the appropriate levels of parliamentary scrutiny. I am parliamentary scrutiny. The fact that there is no sunset pleased to see that we are at least partially aligned in clause means that the Government will have power to our thinking with regard to the made affirmative make regulations under both the negative and the procedure. It is right that in an emergency regulations affirmative procedure for evermore. That cannot be can be made quickly, but, as I have explained, I believe right. Yes, there will be a learning process, but there there are still matters where it is not necessary for should be more ability for Parliament to scrutinise. changes in regulations to be subject to the draft affirmative procedure. The Deputy Chairman of Committees (Lord Bates) The noble Lord, Lord Patel, has sought to make (Con): I call the Minister to respond to the point made changes to Clauses 6 and 15 to apply the draft affirmative by the noble Lord, Lord Patel. procedure to reactive emergencies as well as proactive emergency regulations. I believe that he explained that Baroness Penn (Con): My Lords, I believe that the they were probing amendments.In respect of emergencies, noble Lord’s comments reflect the themes that we are the global risk landscape is perpetually changing, and discussing throughout our scrutiny of the Bill. I certainly having flexible response arrangements provides some take them on board with regard to this group of degree of preparedness against unforeseen risk. We amendments, I believe that we have discussed them therefore need to be able to make changes to the before and will discuss them again on other groups of regulatory regime in an emergency, both proactively amendments. and reactively. An illustration of how our existing emergency powers The Deputy Chairman of Committees (Lord Bates) can be used proactively is seen in the changes we made (Con): Finally, I call the noble Lord, Lord Sharkey, to last week to the Human Medicines Regulations. That respond to the debate on his amendment. change, using Section 2(2) of the European Communities Act, allowed for preparations we can foresee being Lord Sharkey (LD) [V]: I am grateful for the support needed for the distribution of a Covid vaccine. It of the noble Lord, Lord Kakkar, and the noble would enable a wider range of healthcare providers to Baronesses, Lady Jolly and Lady Thornton, but I am deliver a vaccine. That is a change we can foresee, and disappointed that the Minister still seems to regard the it has been subject to the negative procedure as a affirmative procedure as constituting effective scrutiny. consequence of the current primary legislative basis. Let me briefly quote again the Constitution Committee, In the new year, we may need to make further changes which says: to respond to unforeseen and newly identified “Without a genuine risk of defeat, and no amendment possible, requirements. They may need to happen quickly, and Parliament is doing little more than rubber-stamping the Government’s that is also when reactive changes might be required, secondary legislation. This is constitutionally unacceptable.” but the parliamentary scrutiny would be greater than Neither the DPRRC nor the Constitution Committee that currently applied. agrees with the Government’s position on this, I think Unfortunately, the Government cannot plan for largely because it is obviously wrong. I am also every possibility and laythis out in pre-emptive regulations. disappointed that the Government seem to continue However, if reactive emergency regulations are needed, to believe that extensive consultation is equivalent to they must be accompanied by a declaration of why or a substitute for parliamentary scrutiny—another they are required. Any decision to relax a requirement obviously wrong position, as the DPRRC makes clear. would not be taken lightly and, although that may As to the objection that the super-affirmative procedure need to be implemented at pace, consideration would is too cumbersome or lengthy,neither of these objections be given to the promotion of the health and safety of could have any weight unless there were some urgency. the public. As I have explained, there is not; even if there were to We have moved very close together in the changes be, the “made affirmative” procedure would kick in the Government have made and those proposed here. I and take care of it. hope that that, in conjunction with the amendments As I remarked in the opening group this afternoon, about laying reports before Parliament, will enable the at the root of all this is a desire by the Government to noble Lord to see his path open to withdraw Amendment take powers to make policy before they have decided 6, and that others will not wish to move their amendments. what that policy is. This is not only perverse but GC 379 Medicines and Medical Devices Bill[19 OCTOBER 2020] Medicines and Medical Devices Bill GC 380 evades parliamentary scrutiny and bypasses Parliament. The Deputy Chairman of Committees (Lord Bates) We will return to this issue on Report. In the meantime, (Con): Weighty matters of this nature are dealt with by I beg leave to withdraw my amendment. the usual channels; the Government Whip will respond.

Amendment 6 withdrawn. Baroness Penn (Con): My Lords, I understand that the need to rise at a set time is part of the needs of the hybrid House. With other Grand Committees that Amendment 7 have taken place in this circumstance, we have made Moved by Lord Bethell progress on groups and had to adjourn mid-group. That is incredibly important in order to make progress 7: Page 1, line 7, leave out “making regulations under subsection on legislation when we are operating to time-constrained (1)” and insert “considering whether they would” sessions. Member’s explanatory statement This amendment requires the appropriate authority to have Baroness Thornton (Lab): I have to register my regard to the factors mentioned in subsection (2)(a), (b) and (c) of objection to that. If we want a proper debate, this is Clause 1 in considering whether regulations made under subsection (1) not just about people making timed speeches; it is would promote the health and safety of the public. about a debate. A debate should be a coherent whole, not one or two speeches and then continuing after Amendment 7 agreed. maybe a week’s break. Would I be allowed to make my opening speech again when we go back on the second The Deputy Chairman of Committees (Lord Bates) day of Committee? (Con): We now come to the group beginning with Amendment 8. I remind noble Lords that anyone Baroness Penn (Con): My Lords, we would not have wishing to speak after the Minister should email the a second opening speech. If the noble Baroness has clerk during the debate. I call the noble Baroness, strong objections, we can adjourn. Lady Thornton. Baroness Thornton (Lab): I think we should. This is an important debate and we need it as a whole debate. Baroness Thornton (Lab): May I ask for some I would be very grateful if that could be considered. I clarification? Normally in Committee—under normal promise to make a small speech when we restart. life, as it were—we would not start another group that would take at least three-quarters of an hour or so if The Deputy Chairman of Committees (Lord Bates) we knew we were going to rise at a set time. I want (Con): That concludes the work of the Committee this some guidance as to why we will start this group now, afternoon. The Committee stands adjourned. I remind when we know that we will not finish it within the time Members to sanitise their desks and chairs before allowed. We might get through my speech and the next leaving the Room. one, but that will be it. I am looking for guidance, Lord Chair. Committee adjourned at 7.13 pm.