Retained EU Law (Revocation and Reform) Bill

Baroness Humphreys Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Baroness Humphreys (LD)]

My Lords, I am grateful to the Delegated Powers and Regulatory Reform Committee, of which I am a very new member, for its report on this Bill and to Senedd Research for its informative legislative consent memoranda and other documents.

As the report from the Delegated Powers and Regulatory Reform Committee highlights, in 2018 the European Union (Withdrawal) Act promised that Parliament and the devolved legislatures would be able to decide which elements of some 3,000 or 4,000 pieces of retained EU law to keep, amend or repeal once the UK had left the EU. This retained EU law Bill cuts across that pledge and makes a mockery of the supposed argument for Brexit that the UK Parliament would be supreme and would be responsible for making our laws once we had left the EU.

The Bill, however, gives unfettered authority to Ministers through secondary legislation, bypassing both the UK Parliament and the Senedd in Wales. Such a blatant attack on the powers of the UK Parliament might be unusual but in Wales we have become rather used to this type of treatment, especially since 2019. Giving evidence to the Welsh Affairs Committee in November, the Welsh First Minister, Mark Drakeford, reflecting on the relationship between the two Governments and the increasing problems around the Sewel convention, said:

“We had engaged relationships with Conservative Governments from 2010 to 2019. We did not agree on many things, of course, but we were always around the table together talking. The exception in this … rule is the period from 2019 to earlier this year.”


The retained EU law Bill is a child of the Brexit Government who came to power in 2019. Since then, emboldened by their majority in the other place and fuelled by a unionism sometimes described as “aggressive”, they have ridden roughshod over the Sewel convention, they have usurped the powers of the Senedd and, in the Bill, they will also blatantly usurp the powers of the UK Parliament.

The Delegated Powers Committee’s report concludes:

“We have recommended that, of the six most important provisions containing delegated powers in this Bill, five should be removed from the Bill altogether. The shortcomings of this hyper-skeletal Bill justify our approach.”


The Welsh Government go further: I believe they have now recommended that the Senedd withholds consent for the Bill. The Welsh Counsel General and the Scottish Government’s Cabinet Secretary for the Constitution, External Affairs and Culture have published a joint letter in the Financial Times, calling for the Bill to be withdrawn. The devolved Administrations are preparing lists, reviewing thousands of pieces of retained EU law and seeking the Government’s help in ascertaining whether some laws are devolved or reserved, all in what appears to be a state of uncertainty, confusion and chaos.

The Bill allows an extension, to 2026, for the UK Ministers to complete their work, but Ministers in the devolved Administrations are restricted to the 2023 deadline. Welsh Ministers have requested an amendment to address this anomaly, but we still await a response. Will the Minister explain why there has been no response, address the anomaly and assure me that an amendment will be tabled by the Government? If he cannot do the latter, I will happily do so.

Renewable Energy: Generation Licences

Baroness Humphreys Excerpts

Tuesday 13th December 2022 Lords Chamber

[Lord Callanan (Con)]

My noble friend makes an important point. I suspect that he knows the answer to his own question: because it has been relatively still, there have been relatively small amounts of wind in the power sector, so the other sources of power—nuclear, imports, gas, et cetera—have moved in to fill the gap. That is how a diverse system should work.

[Baroness Humphreys (LD)]

My Lords, getting a grid connection, never mind a generation licence, for any kind of generation is increasingly difficult, and indeed is even beginning to restrict housing developments. Will the Government instruct Ofgem to increase the pace of grid investment to avoid a literal energy gridlock?

[Lord Callanan (Con)]

The noble Baroness raises a good point. We are seeing a total reconfiguration of the grid away from large nodes, such as coal-fired power stations, to a much more diversified system of generators. That requires massive configuration of the grid, which is extremely expensive and, I might add, politically controversial. Many people do not want new pylons, et cetera, going through their neighbourhoods. Nevertheless, work is ongoing to reconfigure it. Considerable sums are being invested, but clearly we need to do more in that area.

Subsidy Control Bill

Baroness Humphreys Excerpts

Committee stage
Monday 7th February 2022 Grand Committee

[Baroness Humphreys (LD)]

My Lords, I wish to speak to Amendments 39, 47 and 48 in the name of the noble Lord, Lord McNicol of West Kilbride, to which I have added my name; I also support the other amendments in this group. Taken together, these amendments would improve transparency in the awarding of subsidies and help to spot harmful ones. They would show where the new subsidy spending is working and give businesses the information they need to challenge potentially unlawful subsidies.

As the Bill stands, individual subsidies of less than £500,000 will be excluded from transparency in the subsidy database. As I said at Second Reading, if these rules continue to exist, they will allow for the possibility of multiple subsidies of less than £500,000 to be received by an enterprise. None of that would be published and there would be little other scrutiny.

Amendment 39 would reduce the threshold for entering subsidies into the database to £500 and would bring the subsidy scheme into line with transparency thresholds elsewhere in the public sector. Local authorities, for example, must publish all expenditure over £500, and grants by all government departments and arm’s-length bodies are now published annually by the Cabinet Office.

It has been argued that, in the case of these subsidies, a threshold of £500 is low—perhaps too low—but it is vital that the threshold is set at this level. According to the Centre for Public Data,

“a threshold of, for example, £100,000 would still create distortive incentives for authorities to cluster awards just below the threshold, still allow authorities to make unpublished multiple awards just below the threshold, and would exclude useful evidence for no reason.”

Sometimes, it seems that Governments believe that they own the funds they spend but, in reality, it is the taxpayer who will fund these subsidies. Lowering the transparency threshold will demonstrate to the UK taxpayer that harmful and wasteful subsidies will be identified.

Crucially, it would allow public bodies to answer this important question: how many subsidies of less than £500,000 have they awarded? They could answer the question openly and honestly, with facts and figures. Under the Government’s proposed system, the same question could be met with a vacant stare, as the figures will not be readily available or will not exist. The total of funds awarded would also be unclear.

As the noble Baroness, Lady Blake, said, the Government estimated in their impact assessment that operating the lower threshold would come with a cost of about £20,000—a small price to pay for transparency. However, savings would also be made in the reduction in the number of FoI requests, for example, and fraud risk and fraud recovery costs would be reduced as transparency enables public scrutiny. A transparency database already exists within BEIS for public authorities to report their subsidies, so merely uploading another few rows on to each spreadsheet could provide the transparency that this amendment seeks. All these reasons for this call for transparency also apply to Amendment 48.

I appreciate that Amendment 47 will probably be viewed as problematic by the Minister’s department because, in seeking to introduce transparency into the SPEI financial assistance process, it could create new burdens on authorities. I have no wish to do that. I will listen with interest to the Minister’s response, and reserve the right to bring back on Report an amendment that would deal with the transparency issue alone but would still deliver the flexibility that the Government wish to see.

The 2018 figures show that some £8 billion was allocated to government subsidies in the UK. With levelling up on the agenda along with net-zero targets and R&D, it is very likely that this figure will increase—substantially, we hope. Using the £8 billion as a basis, it is estimated that if the Government’s proposals in this this Bill were enacted, about 50% of the subsidies would not be transparent, so how would the Government be able to account for at least £4 billion-worth of spending of public money?

With transparency comes accountability. In an era of accusations of cronyism and corruption, our ratepayers demand both. I hope that the Minister will understand their demands and be prepared to accept these amendments.

Subsidy Control Bill

Baroness Humphreys Excerpts

Committee stage
Monday 31st January 2022 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I have added my name to the amendment of the noble Lord, Lord Wigley, and I agree with what he has just said in support of it. As he mentioned, it will be apparent from the many amendments on the Marshalled List that mention the devolved Administrations that there are real concerns that the provisions of the Bill as they stand will have an adverse effect on the relationship between those Administrations and the UK Government.

I recognise that subsidy control was made a reserved matter by Part 7 of the United Kingdom Internal Market Act, but that does not mean that the UK Government should shut their eyes and ears to the views of competent authorities throughout the UK, and of the devolved Administrations themselves, as to the way that subsidies are distributed and controlled. After all, while we were in the EU the Commission had a very robust evidence-based consultation procedure which ensured that other voices were heard, and that should continue to be the position.

“Respect” and “co-operation” were the key words in the recent report by the Constitution Committee, of which I am a member, about building a stronger union in the 21st century, but I am afraid that those virtues were absent when the internal market Bill was being designed and debated in this House and the other place. As a result, relations with the devolved Administrations became very strained. We do not want to go back to that, but the way in which the Bill has been drafted appears to pay very little attention to the concerns and needs of the devolved Administrations.

I am sure that the Minister will remember, very well, the conversations we had with regard to the amendments I tabled to the internal market Bill to enable exemptions from market access principles to be given to agreed common frameworks. They did not seem to get us very far, until, at the very last moment, there was a change of mind in the Government and an appropriate amendment was put through. Of course, I understand that the Minister’s hands were tied, but I hope there may be a little more flexibility this time.

I respectfully ask the Minister to say something about the legislative consent procedure in relation to the Bill. The Constitution Committee said:

“For the Sewel convention to operate well, constructive relationships and good faith is required between the UK Government and the devolved administrations.”


I hope that that is how things are being handled this time and that the Minister will keep the Committee updated as discussions continue, with a view to settling the devolved Administrations’ concerns, which I believe are still there; as I understand it, a consent Motion has not been achieved in either case.

[Baroness Humphreys (LD)]

My Lords, I have added my name to Amendment 1 in the name of the noble Lord, Lord Wigley, and support Amendments 13, 16 and 17 in the name of the noble Lord, Lord McNicol of West Kilbride, to which I have also added my name. Clause 1 provides an overview to the contents of the Bill. Amendment 1, in a few words, points out exactly what is wrong with the clause and the Bill itself, which is that, by their very omission from the Bill, there is no role to be played by the devolved Ministers or the devolved Administrations in the subsidy control scheme, even in areas where they have devolved competence.

All noble Lords agree and accept that the regulation of subsidies is a reserved matter, as do I and my colleagues from the devolved nations, but no consideration is given in the Bill to the sensitive issue of the UK Government acting in the areas of economic development, agriculture and fisheries—areas which, until now, have been overseen by the devolved Administration under powers given to them under the Government of Wales Act 2006. I understand the Minister’s desire to create a UK-wide scheme for the regulation of subsidies, and I know that he sees it as a way to strengthen the union, but I must respectfully disagree with him. Strengthening the union is a political concept and should have no place in underpinning a practical scheme such as this.

I refer the Minister to this document: the supplementary legislative consent memorandum agreed by the Senedd to the Building Safety Bill, which will have its Second Reading in this House tomorrow. I must admit that it gladdened my heart to read it. In that Bill, the Government place a requirement on developers across the UK to belong to a single, independent new homes ombudsman scheme. Paragraph 4 of the Welsh Government LCM reads:

“As housing is a devolved matter, the UK Government has worked with devolved governments to seek agreement for the new arrangements under the NHO to be UK-wide for home owners and developers.”


Amendments were tabled by the UK Government at both Commons Committee and Report stages, one of which provided for consultation with Welsh Ministers before the Secretary of State makes arrangements for an NHO scheme. The list includes amendments made at the request of the Welsh Government that recognise their devolved competence.

So we have another Bill seeking to create a UK-wide scheme, just as the Subsidy Control Bill does, but what a difference in approach between the two government departments. The Department for Levelling Up, Housing and Communities has been constructive, co-operative and willing to recognise the powers of the devolved Governments. Because the housing department has chosen to collaborate with the devolved Governments, one must ask the Business Minister: does he believe that this has really resulted in a weakening of the union? I would argue that the union is at its strongest when each component part is strong and using its powers, experience and knowledge to contribute positively to the proper functioning of the whole. The acceptance of Amendment 1 would begin to achieve that.

The amendments to Clause 10 to which I have added my name follow a similar theme and would clarify the role of devolved Ministers in making a streamlined subsidy scheme. They clarify that those schemes must be laid before the relevant devolved legislature and, if modified, the modified terms must be laid before the relevant devolved legislature too. I fully support those amendments. If both noble Lords wish to table their amendments again on Report, they will have my full support.

Finally, I am aware that the Under-Secretary of State, Paul Scully, was scheduled to meet the Welsh Finance Minister on Thursday last week. Can the Minister confirm that the meeting took place and when, and tell us what was discussed and the outcome?

Trade Bill

Baroness Humphreys Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Wednesday 6th January 2021 Lords Chamber

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a great pleasure to follow the noble Lord, Lord Stevenson of Balmacara, and to back his amendment. As the noble Lord said, this is territory that we have covered over and over again, so I will not take a great deal of time. The sections of this amendment say that the devolved Scottish Government should not be overruled on matters within their purview; that the Welsh Ministers should not be overruled on matters devolved to them; and that the Northern Ireland Government should not be overruled on matters devolved to them.

We have here something of a reflection of what happened on 30 December, when many noble Lords participated, in one way or another, and in one day both Houses passed a Bill to which we had no consent from the devolved Administrations—indeed, there was opposition from two of them. This amendment aims to create, as the noble Lord, Lord Stevenson of Balmacara, said, a blueprint for the way forward. It is a balanced amendment. Clause 5 says that if the Westminster Government seeks to overrule the devolved Administrations, that has to be explained to both Houses of Parliament.

We hear an enormous amount about sovereignty and taking back control. This Bill seeks to ensure that the nations of the UK are in control of their own destiny in the areas where they have been given powers. I very much hope that your Lordships’ House will back this amendment.

[Baroness Humphreys (LD) [V]]

My Lords, I am grateful to the noble Lord, Lord Stevenson of Balmacara, for tabling this important amendment and presenting us with the opportunity to debate, yet again, the issue of powers and responsibilities in areas of devolved competence being overlooked or ignored—in this Bill and, as we have seen, in other Brexit Bills that have recently come before Parliament.

I acknowledge, as does the Senedd’s External Affairs and Additional Legislation Committee, that the regulation of international trade is a matter reserved to the UK Government, and that on the other hand the implementation obligations arising from international agreements are primarily the responsibility of the devolved Governments and legislatures. Another of the Senedd’s committees—the Legislation, Justice and Constitution Committee—agrees with this analysis, pointing out that the international trade agreements covered by this provision will encompass a wide range of policy areas that fall within the legislative competence of the Senedd, including agriculture and fisheries.

It is of some comfort that Clause 2 of this Bill confirms the respective responsibilities of the two Parliaments by confirming that non-tariff regulations can be made by UK and Welsh Ministers, alone or concurrently, and are then subject to the affirmative procedure in the appropriate Parliament. Nowhere in this clause, however, is there a recognition of the role of the Welsh Government in trade agreements in their areas of devolved competence. I accept that the agreements themselves are a reserved matter, but omitting the devolved Administrations from playing any part in the process indicates the desire of the UK Government to control and create trading agreements in their favour—agreements that might not meet the needs of the devolved nations.

Sadly, we are faced once again with an example of the UK Government ignoring the powers and responsibilities of the Senedd and the other devolved Administrations, and the lack of a reference to them in Clause 2 makes their omission obvious to all. It is another example from this Government of what I have referred to before as “attempted constitutional change by stealth”.

Actions such as these are perceived in Wales as making a mockery of the promise of taking back control. Control is now seen as being consolidated in Westminster, and evidence is mounting that these omissions act merely as a recruiting sergeant for those who wish to promote an independence agenda.

This amendment seeks to provide that, if trade agreements contain provisions relating to the devolved competences of Scottish, Welsh or Northern Ireland Ministers, the consent of those Ministers is required to authenticate that agreement, and it has my full support.

[Viscount Trenchard (Con)]

My Lords, I regret that I cannot support Amendment 24 in the names of the noble Lord, Lord Stevenson of Balmacara, and the noble Baroness, Lady Bennett of Manor Castle. It would weaken the authority of our negotiators in agreeing the best possible terms in an international trade agreement for the whole United Kingdom.

In an earlier debate, on Amendment 6, my noble friend Lord Lansley explained that although the noble Lord, Lord Purvis of Tweed, maintained that that amendment did not restrict the prerogative powers of the Government, it did in fact do so by placing limits on the prerogative powers to proceed with negotiations. The arrangements in the CRaG Act, together with the further measures that the Government have taken to increase parliamentary involvement, are sufficient.

Noble Lords will be aware that the negotiation and entering into of international treaties are a function of the Executive exercising their prerogative powers and are a reserved matter for the United Kingdom Parliament.

We should also remember that international trade is an exclusive competence of the European Union, and that member states have the power to block ratification only in the case of trade agreements that include matters other than trade matters and which are shared competences. It seems to me that this amendment would further weaken the prerogative powers and would be likely to give rise to arguments about the extent of the devolved competences described and contained in Schedule 1, which could be exploited by a Government with whom we were negotiating a free trade agreement. Can my noble friend confirm that the Government are already taking the views of the devolved Administrations fully into account? Subject to this assurance, I believe that the amendment would create more uncertainty and should not be accepted.

United Kingdom Internal Market Bill

Baroness Humphreys Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th November 2020 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I preface my remarks by saying that what will replace the European structural funds is a matter of interest not only to the devolved Administrations but to the regions, such as Yorkshire, as well. I was fairly agnostic about this group of amendments before the debate commenced but now I think that the noble and learned Lord, Lord Thomas of Cwmgiedd, and the other noble Lords who tabled these amendments have done the House a great service.

In the briefing on the spending review, the emphasis now appears to be much more on UK-wide spending. It states:

“The Spending Review takes advantages of our departure from the EU to benefit the union. We will ramp up funding, so that total domestic UK-wide funding will at least match EU receipts … for the introduction of the UK Shared Prosperity Fund, we will provide additional UK funding to support our communities to pilot programmes and new approaches. We will also deliver £1.1 billion to support farmers in Scotland, Wales and Northern Ireland, £20 million to support fisheries—and we will build one freeport in each part of the UK.”


It goes on to say that the spending review is UK-wide and refers to the UK shared prosperity fund and the shared rural network. Although I welcome the funding that has been announced, it is incumbent on us today to find out whether, in the words of the noble Baroness, Lady Finlay, the Government are now working around the devolved Administrations rather than with them.

I am particularly concerned with one aspect relating to economic development, which I hope is relevant to this group of amendments. England and Defra have clearly stated that they are committed to phasing out direct payments to farmers from 2021, but the new system involving an environmental land management scheme will not be in place until 2024. As I understand it, however, the Scottish Minister has announced that direct payments to farmers will be retained for the foreseeable future. That begs the question of what the impact on economic development will be for English farmers as opposed to Scottish farmers and whether that will potentially distort the market between England and Scotland. That would seem to flout the principles of mutual recognition and non-discrimination, which we have heard so much about during the Bill’s passage.

I welcome this debate. I am particularly supportive of Amendments 64 and 67, both of which have been spoken to so eloquently by their authors. I urge my noble friend the Minister to say how the payments under the shared prosperity fund will be distributed. Obviously, I would add a rider that Yorkshire would like to have its fair share of that fund, but it is incumbent on my noble friend to state whether we are departing from what we have become accustomed to under devolution or whether this is simply a red herring.

[Baroness Humphreys (LD) [V]]

My Lords, I support Amendment 64, which seeks to remove Clause 42 from the Bill. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for tabling such an important amendment and for his excellent explanation and analysis of its intent.

Clause 42 empowers the UK Government to provide financial assistance for economic development in any area of the UK. At the outset, I want to make it clear that I have absolutely no objection to the UK Government making investments for economic development in Wales—nor, I believe, would anyone else in Wales. It is the intrusion into devolved powers that is so offensive. Those of us who live in the Objective 1 area of West Wales and the Valleys understand that our economy is weaker than those in other areas of the UK and that we live in one of the poorer regions of Europe. We have appreciated the EU’s investment in the past 20 years; for example, the investment in the A55, which provides such a vital transport link across north Wales, and the projects that we have seen come to fruition under the rural development fund.

In my contributions on Second Reading and in Committee, I said that investment in our region is desperately needed—it was before we received Objective 1 funding and it will be when it ends—but this clause gives the Government extraordinary powers to act in areas of devolved competence and in areas where the EU structural funds have never operated. It is extremely disappointing that, throughout this clause, there is no mention of consultation, joint planning of schemes, joint programmes of work or joint management of projects—all examples of the collaborative approach to investment programmes initiated by the EU that we have become used to. There appears to be no clear setting of objectives, other than, I suspect, that the Government’s prime objective is to see projects in the UK—in the Prime Minister’s words—emblazoned with the union flag. I have no problem with that either. In West Wales and the Valleys we are used to seeing EU blue flags or plaques on projects. They are an indication that the needs of our area have been recognised, and so it would be with the union flag.

There is, however, still no clarity on how needs will be determined and recognised in the UK under the shared prosperity fund, whether projects will be imposed or applications sought and, crucially for us in Wales, what impact there would be on our financial settlement. We still do not know whether a UK Government investment in a road-building programme, for example, would lead to a reduction in the Barnett allocation, or whether projects imposed on us would be financed by loans that require repayment by the Welsh Government. All this curtails the Senedd’s ability to deliver on its objectives and will have an impact on its ability to deliver on its manifesto commitments.

Of all the attacks on the devolution settlements in this Bill, this is probably the most blatant—so much so that the powers and responsibilities of our Parliaments do not even merit a mention. It is another example of the introduction of a new constitutional settlement by stealth, as I referred to in my speech on Monday. It is another item to add to the list of examples fuelling the interest in independence, which, under this UK Government, is reaching a level never seen before in Wales. People are witnessing the performance of an almost colonial Government emanating from Whitehall and comparing it with the more progressive Government and Senedd we see in Wales—a progressive Senedd that voted last week to allow councils to change the electoral system for local elections by introducing the STV system and open up the franchise for local elections to 16 and 17 year-olds in addition to their existing rights to vote in Senedd elections; importantly, it supported voter participation by paving the way for automatic voter registration.

I must admit, I am surprised that, after listening to concerns expressed by the noble and learned Lord in Committee and hearing the support for his stance from other noble Lords, the Government have not come back on Report with an amendment of their own that recognises and ameliorates the impact of this clause on the devolved Parliaments.

In a Bill about the regulation of the UK internal market, this clause and its assault on the devolution settlements has no place, and I support Amendment 64 to remove it. I hope that the noble and learned Lord will be minded to call a Division on the amendment. If he does, he will have the support of these Liberal Democrat Benches.

[Lord Naseby (Con)]

My Lords, I will speak first to government Amendment 66, on how the power in Section 42 will be used. There is a very welcome statement that there is to be an annual report, which can be fully debated in Parliament. We had some discussions about this in Committee, and this amendment is very welcome.

Turning to Amendment 64, I hope that the noble and learned Lord, Lord Thomas, will not find it offensive if I allude to the fact that I used to own ferrets. Ferrets are beautiful animals, very ingenious and very inquisitive—but of course they have one failing. Sometimes they succeed in catching or flushing out rabbits, but quite often they turn around, get distracted and think of something far less important. Listening to the noble and learned Lord’s introduction to his amendment, it was based, according to him, on finding in paragraph 3.1 of the Red Book something that he thought was relevant to this debate on Clause 42.

I am sufficiently brave to suggest that he has perhaps forgotten what the basic elements of this Bill are. On the front page, it says:

“To make provision in connection with the internal market for goods and services in the United Kingdom … to authorise the provision of financial assistance by Ministers of the Crown in connection with economic development, infrastructure, culture, sport and educational or training activities and exchanges”.


This is what the whole Bill is about. So here we have before us an amendment which is a pretty wide-sweeping reversal of that primary purpose of the Bill. A whole new concept is being proposed in this new clause, at a time when the whole country faces massive challenges arising from Brexit.

After five days looking exhaustively at the Bill in Committee, lo and behold, here we are on Report, and this pretty revolutionary amendment is put forward. For me it is basically pre-empting the role of the Chancellor of the Exchequer and the Government of the day. It does not matter what the colour of the Government is: in structural terms it pre-empts the Westminster Government, setting up a whole new semi-department, with little oversight and, frankly, huge costs. There does not seem to be any constraint on it at all. In my judgment it is way outside the scope of the Bill and should be rejected.

United Kingdom Internal Market Bill

Baroness Humphreys Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Monday 23rd November 2020 Lords Chamber

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I also welcome the Government’s amendments in this group and the speech of the Minister. If I may, I will try to answer the concern just expressed by the noble Baroness, Lady McIntosh of Pickering. I think it is fair to say that some of us fear that the Government might be tempted to try to overturn the amendments of the noble Baroness, Lady Andrews, in the other place, and so we would like the House to fully consider all the amendments in this group that have been tabled by the noble Baroness, Lady Hayter, and myself.

I would like to speak in favour of Amendments 15, 20, 27, 34 and 46. All of these amendments are based on the same principle: that, when issuing guidance as to the implementation of market access principles, or when seeking to extend or further limit the exceptions to the application of the market access principles, the Government must obtain the consent of the devolved Governments to doing so.

However, we are sensitive to the nervousness of the Government and wish to be helpful by providing clear reassurance in statute of coupling a consent requirement with a limited-time proviso. This states that, should consent not be forthcoming from one or more devolved Governments within a month, the Government may proceed to make the changes or issue the guidance, subject only to the need to make a statement to Parliament as to why this is necessary.

This is not an onerous requirement, and I know that what we have proposed is less than the unqualified requirement for consent that the devolved Governments in both Wales and Scotland would have preferred. But this amendment is a healthy, open compromise which can comprehensively allay the fears of the Government Front Bench as to the risk of the process somehow grinding to a halt should a Scottish or Welsh Minister try to delay. Indeed, our approach, advocated in the slightly different context of appointments to the office for the internal market by the Welsh Government, has been adopted by the Minister in government Amendments 56 and 57, so it seems difficult to see how the Government could object to this.

I therefore hope that the Minister will think again and accept these helpful amendments, rather than put us in a situation where we need to go to a vote.

[Baroness Humphreys (LD) [V]]

My Lords, I rise to speak to Amendments 26, 27 and 28 in this group, and in so doing I would like to thank noble Lords who tabled the amendments in this group and introduced them so clearly today.

Clause 12 of the Bill provides the Secretary of State with a power to issue statutory guidance about the practical operation and effect of the market access principles for goods. These amendments to the clause highlight what is, of course, a recurring theme in this Bill: the assumption that such decisions will be made by the UK Government, in the guise of the Secretary of State, without any input from the devolved Administrations, dismissing any attempt at building on intergovernmental relationships to come to consensus. It is this assumption and its consequences that I wish to address quite quickly today.

In a recent article published by the Centre on Constitutional Change, Greg Davies of Cardiff University argues that this Bill—and, I would contend, particularly clauses such as Clause 12 and others in this group—represents a failure of soft law and amounts to the introduction of

“a new constitutional settlement by stealth.”

Since the creation of the National Assembly in 1999, our two Governments have used soft-law techniques of intergovernmental political agreements and memoranda of understanding to form and guide the relationship between them. Because soft law relies on mutual trust, good will and co-operation rather than legal enforcement, it can, this article argues,

“be exploited to sidestep more fundamental reform”.

The introduction of this internal market Bill has, I believe, opened the Welsh Government’s eyes to the reality of the weakness of a system that relies on soft law; they themselves have described the Bill as a “new low”. So, in a Bill which will curtail the ability of devolved Governments to regulate products and services within their territories that originate from elsewhere in the UK, Clause 12, and the additional powers it gives the Secretary of State to act in areas of devolved competence, adds insult to injury.

The Welsh Government have no official voice in this Chamber, but they have the voice of many Members who value the devolution settlements and are determined to see the devolved Parliaments flourish and grow. So I am extremely grateful to the noble Lords who have given us the opportunity to debate these three important amendments today, together with other amendments in this group. In these amendments, this House is being asked to reaffirm Parliament’s support for the devolved settlements, to confirm its continued confidence in the soft-law process of building intergovernmental relationships, and to reject the attempts to introduce—and reject being complicit in—what is, in effect, a new constitutional settlement by stealth.

Of course, I welcome Amendments 26 and 28 in the name of the noble Baroness, Lady McIntosh, which call for consultation with Ministers in the devolved Governments when issuing guidance relating to Part 1 of the Bill, and Amendment 27, in the name of the noble Baroness, Lady Hayter of Kentish Town, which calls for the Secretary of State to obtain the consent of Ministers in the devolved Governments to such guidance. My preference is, of course, for Amendment 27, as it places this Parliament’s commitment to the soft-law process on the face of the Bill and provides for a meaningful outcome to consultation.

I also support Amendments 15, 20, 34 and 46 in this group, which also call for the consent of the devolved Parliaments. In addition, I do welcome the Government’s conversion to consultation in their amendments, but I regret that they really do not go far enough. If the noble Baroness is minded to put any of her amendments, particularly Amendment 15, to the vote, I and my colleagues on these Benches will support it.

United Kingdom Internal Market Bill

Baroness Humphreys Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 2nd November 2020 Lords Chamber

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The noble Lord, Lord Liddle, has withdrawn so I call the noble Baroness, Lady Humphreys.

[Baroness Humphreys (LD) [V]]

My Lords, I thank the noble and learned Lord, Lord Mackey of Clashfern, for tabling the amendments in this group.

In what is becoming an extremely welcome defence of the devolved Administrations and their devolution settlements in debates on this Bill, these amendments point the way to involving a forum that already exists when discussing and agreeing to regulations under the Bill: the Joint Ministerial Committee on EU Negotiations. The amendments would require the Competition and Markets Authority to consult the JMC on EU negotiations; they would also ensure that regulations are brought before the committee and discussed by it before being laid before Parliament.

The amendments are entirely sensible. The JMC on EU Negotiations appears to be the ideal vehicle for such oversight and deliberations. The amendments also open up the opportunity to discuss the way in which the JMC operates, to examine whether it is fit for purpose and to envisage its future role. Of course, the Joint Ministerial Committee on European Negotiations is a sub-committee of the Joint Ministerial Committee—a committee made up of Ministers from all four national Governments. On looking at the memorandum of understanding that underpins the JMC’s operations, it seems an ideal candidate for this oversight role. It is worth examining its wording. According to the memorandum, the JMC should provide

“central co-ordination of the overall relationship”

between the UK and the devolved nations and, among other things,

“consider devolved matters if it is beneficial to discuss their respective treatment in the different parts of the United Kingdom”

and

“consider disputes between the administrations.”

It seems an ideal candidate indeed, as I am sure we all would agree. This is exactly the sort of forum that we need, not just to have oversight of regulations brought forward by the CMA but to consider all issues arising from the relationship between the four nations. But the reality is slightly different. The JMC has the potential to be a forum to guide devolution issues and resolve them, but the committee itself seems to operate on an almost ad hoc basis.

My noble friend has already pointed out the difficulties with the Joint Ministerial Committee (Plenary), which is supposed to meet at least once every year. Like him, I look forward to hearing when the Prime Minister will be willing to chair another of its meetings. The Joint Ministerial Committee on EU Negotiations, to which these amendments refer, was initially expected to meet monthly. It did so until February 2017 but then ceased to operate for eight months, and its meetings have been held on an irregular basis since then. It met five times in 2019 and, I believe, has met three times so far in 2020. I would be delighted if the Minister could prove me wrong and tell me that it has met more often.

Despite the obvious drawbacks in the way that the JMC and its sub-committees operate, I am extremely grateful to the noble and learned Lord for tabling these amendments, because they point a way forward. The JMC and its sub-committees, actual and potential, could have a vital role to play in resolving issues that arise in and around the operation of the UK internal market, but first we need to resolve the long-standing issues surrounding its constitution. The frequency of meetings and the question of who controls the agenda, for example, all have to be placed on a statutory footing. The JMC and its sub-committees, operating efficiently, regularly and fairly, have the potential to allay the fears of the devolved Administrations and allow for the consensual and co-operative government they seek. I support these amendments.

[Lord Naseby (Con)]

My Lords, when I read the Bill and the amendments to it that have been tabled, I asked myself, “Why?” Of course, my noble and learned friend Lord Mackay is a very experienced attorney and parliamentarian, but the whole purpose of the CMA is to be independent of government. It is not there to be dictated to because one of the devolved Administrations does not like the look of what the task group is going to be doing. That would be absolutely wrong. The whole basis of the CMA and OIM is that they are independent of government. They publish their results, monitor properly and advise, but the amendment would seem to put in another tier of management, like Europe in reverse. That is very wrong, and it would find no favour with me at all.

--- Later in debate ---

[Baroness Hayman of Ullock (Lab)]

My Lords, I speak in support of Amendment 166, in the name of the noble Baroness, Lady Boycott. It is an honour to follow her, along with the noble Baroness, Lady Jones, and my noble friend Lord Whitty. I also support Amendment 167, in the name of my noble friend Lord Stevenson of Balmacara, and its inclusion of the impact of climate change—particularly flooding. That is an issue close to my heart, living as I do near Cockermouth in Cumbria, which has suffered such devastating flooding over the past 10 years.

As we heard today, and in last week’s debate, Part 6 does not rule out working through the devolved Administrations, but—and this needs repeating—sets no requirements to do so, and enables Ministers to spend money directly in otherwise devolved policy areas.

Right across the world it has been recognised that we have to combat global warming and restore biodiversity. It has been agreed that the next round of European structural funds will have tackling climate change and addressing the just transition as a major theme. In May of last year, Parliament recognised, on the Floor of the other place, that we are in a climate and environment emergency. Last week, in his response to Amendment 52, the Minister said that

“the protection of the environment and tackling climate change are vitally important, and something that the Government are, of course, already committed to.”—[Official Report, 28/10/20; col. 339.]

If the Government are serious about achieving this aim, they need to ensure that where direct financial assistance is given it is consistent with these climate and environmental goals. We need to commit to environmentally sustainable, transparent legislation and policies, and apply them to any future trade deals and relationships, if we are to have any hope of tackling climate change. Whatever the formal future relationship between the UK, its constituent nations and the EU, it is vital that we maintain close environmental co-operation and do not risk undermining it through poorly thought-out legislation. As the noble Baroness, Lady Boycott, explained, Amendment 166 could avoid funding being provided for projects that are not compatible with climate and environmental targets and could undermine these goals.

Funding to support the environment needs to be secure as we leave the EU, because we will lose access to so much. I will give a couple of examples that have not yet been mentioned. The EU LIFE programme for environment and climate action has €3.4 billion to support, among other policies, the special conservation areas in the Natura network. The EU maritime and fisheries fund is a €6.4 billion programme, more than a quarter of which supports projects protecting marine environments, developing sustainable fisheries, and supporting the scientific and data-collection aspects of fisheries management. The concept of sustainability involves operating in a way that takes full account of an organisation’s impacts on the planet, its people and its future. That includes how Government operate and the decisions they take. Amendment 166 will help us to secure this for the future.

[Baroness Humphreys (LD) [V]]

My Lords, I oppose the Question that Clause 48 stand part of the Bill. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for introducing this part of the debate so clearly. We have heard assurance after assurance from Ministers that the Bill does nothing to take powers away from the devolved Parliaments, but the inclusion of Clause 48 certainly belies their assertions.

This clause, were it to stand, would mean that powers would be returned from the EU to the UK Government to spend on areas such as economic development, infrastructure, sport and education, and will therefore give Whitehall the powers to fund projects to replace EU funding programmes in areas that are devolved to the Welsh Government. But these powers are wider than those in the EU funding programme. The EU structural funds have never funded health, housing or education, and the inclusion of this clause on financial assistance has given cause for concern. It gives rise to a number of questions, to which I hope the Minister will respond.

Our building regulations, and fire and energy safety standards are different in Wales. If the UK Government choose to fund our housing associations to build more social housing, which regulations and standards would apply? As the noble Baroness, Lady Finlay, has said, there are no academies or free schools in Wales; the Welsh Government have rejected their implementation. Clause 48 would allow the UK Government to fund education projects in Wales. Does this mean that the UK Government would march in, with no consultation, and build these schools in Wales?

The intention of the UK Government to implement the M4 relief road scheme is provocative, to say the least. It is an issue the Senedd has examined and debated in detail. It made the decision to reject the scheme on the grounds of cost and impact on the environment, and to develop plans for another route. It is an arrogance that the UK Government feel they can overthrow its decision.

The UK Government fail to understand that they have no mandate to operate in these areas in Wales. In this House, we are expected to honour the manifesto commitments made by the Government in a general election and not to vote against them. In Wales, at the last Assembly elections, the people of Wales gave the Welsh Government a mandate based on their manifesto commitments. What right do the UK Government have to act against the expressed wishes of the people of Wales? For years, we have been clamouring in Wales for the UK Government to invest in projects that they have responsibility for—in our railways and the development of tidal energy, for example. I suggest that that would be a good starting point.

Wales has been eligible for £375 million a year from EU funds for almost 20 years. The management of these schemes has always been shared between the EU and the Welsh Government. The guidelines and parameters have always been clear, and the principles of co-operation and consensus have always been evident.

Now that EU funding is coming to an end, we need clarity on its replacement. The time has come for this Minister to give this House details of the proposed replacement through the shared prosperity fund. Up until now, the UK Government have failed to explain how that fund would operate and what role the devolved Governments would have in spending decisions made under it. Will the Minister do that today?

Many speakers, from all four nations of the UK, have spoken against this Bill’s attempts to undermine our devolution settlements. At Second Reading and in debates on this and other amendments, we have heard the same calls. I hope that the Minister and, through her, the Government, are beginning to understand that, after 20 years, the devolution genie cannot be put back in the bottle. I know that to this Prime Minister and his Government a bullish determination to win at all costs is important, but we have to find ways of working with and not against each other and to find solutions to our problems together. Clause 48 is a perfect example of the Government attempting to grab the devolution genie and force it, feet first, back into the bottle. Sadly, such an attitude does nothing but provide further ammunition to those who would favour the break-up of the United Kingdom.

United Kingdom Internal Market Bill

Baroness Humphreys Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 26th October 2020 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, it is always somewhat intimidating to follow an introduction such as the one we have just heard from the noble and learned Lord, Lord Hope. I think I heard him correctly when he said at one point that he did not have a monopoly of wisdom. That was the only bit of his speech that I really disagreed with.

As we heard from the noble and learned Lord and from the noble Baroness, Lady Finlay, we need a mechanism to ensure that the common frameworks are at the start of the process before market access principles are applied. How exactly that can be finessed between the menu of options we have in front of us, with these and other amendments today, can be a question for discussion—as indeed the noble and learned Lord, Lord Hope, indicated. But, essentially, the role of the common frameworks undoubtedly needs a statutory basis. The consensual mode of working that we have seen via the common frameworks surely has to take priority over other modes of rule setting, and a failure-to-agree process—which must be exhausted before other action is taken—needs to be in the Bill, as it is in the common frameworks mechanism.

Like other Members of your Lordships’ House, I was involved in the work of the European Parliament. I was a party functionary rather than an elected Member. Through that I witnessed the discussions, arguments, concessions, joint working, co-determination, consultation, redrafting and mutual respect that went into the emergence of EU regulations. There was no simple imposition by one all-powerful body. Negotiation and agreement were needed between the European Council, the Commission and the European Parliament for action to be taken. As the noble Lord, Lord Inglewood, mentioned, some really big decisions were referred to the IGC—the Intergovernmental Conference. It was a way of working that produced outcomes to which everyone could sign up. Now, consensus building might have taken time; there was the odd time when clocks were stopped at midnight, which we may have to do again today, but the position reached each time meant that all the parties involved could live with the resulting decision.

My view—and I think the view of all of us—is that the internal market process ought to be replicating, albeit on a smaller and much easier scale, those sorts of international and intranational methods that allow for joint working and consensus building as the prime route for decision-making. Of course, some issues will prove not to be amenable to consensus—this too was mentioned earlier—in which case there has to be an agreed adjudication and decision-making mechanism in place, but with the common frameworks procedures exhausted before any of that has to be set in train.

I turn to Clause 51, which has just been mentioned by the noble Baroness, Lady Finlay. This is understandably of major concern to the devolved legislatures and their Governments. In three quite simple, short subsections it amends the Scotland Act 1988, the Government of Wales Act 2006 and the Northern Ireland Act 1998—and all without a word of warning, far less the agreement of any of those elected authorities whose established settlements it undermines. Few of us expected to read a clause like that, dropped into a Bill on a quite different subject, which would blatantly amend these long-developed settlements.

We heard from the noble Lord, Lord Dunlop, in the previous group and we will hear from him shortly in this group. I hope he will not mind if I quote from what he said at Second Reading. He said:

“Devolution is now integral to the UK’s constitutional arrangements. At a time … when it has never been more important for central and devolved Governments to work together … to risk destabilising those arrangements seems careless, to say the least.”


He went on to ask whether

“we want our country’s future to be all about endless intergovernmental competition and conflict or about co-operation and confidence”.

His preference, of course, was for

“a modern, thriving, forward-thinking and inclusive UK union … to look and feel like a joint endeavour”.—[Official Report, 19/10/20; col. 1336.]

That is what this group of amendments is seeking to achieve, but it is not where the Government are going at present. They seem to be thinking of asking us to pass this Bill without legislative consent from the very authorities whose powers are being diminished. I cannot believe that the Minister wants such an outcome, but how seriously does he take this? Is he really happy to completely override the Sewel convention, set aside the success of the common frameworks process and challenge the devolution settlements that have served us so well for so long?

[Baroness Humphreys (LD) [V]]

My Lords, I will speak to the amendment to Clause 51 in the name of the noble Baroness, Lady Finlay of Llandaff, to which I have added my name. The amendment opposes this clause standing part of the Bill. In a Bill that stands accused of breaching international law and impacting on devolution settlements, this clause is probably one of the most harmful, in the power that it hands to Ministers, and through them the Executive, to make regulations.

As the Explanatory Memorandum explains, regulations made by Ministers under these powers are to be made by statutory instrument and may be used to amend, repeal or modify the effect of legislation, including Acts of Parliament, which of course include the Government of Wales Act 2006—and, as the noble Baroness, Lady Hayter, has just pointed out, all without consultation with the devolved Administrations.

However, the prime function of this clause, and the whole of Part 7, is to ensure that all clauses of this Bill become protected enactments. It neuters the powers of the devolved legislatures, ensuring that they are unable to put forward Acts in their own Parliaments, in their own areas of devolved competence, to modify this Bill if or when it becomes an Act. This is almost unprecedented. The noble Baroness, Lady Finlay, has already told us that, since devolution, the only other examples of protected enactments covering all sections of an Act are the Human Rights Act and the Civil Contingencies Act.

Even in the case of the withdrawal agreement Bill, which was initially intended as a protected enactment, the UK Government produced a clause-by-clause analysis justifying protected enactment status, which eventually resulted in only a few clauses being protected. Why is this approach not applicable to this Bill? The Welsh Government have asked for a clause-by-clause discussion of why each clause should be protected. I would be grateful if the Minister could outline the Government’s response to this request.

Up to now, the Government have not produced any detailed justification of why protected enactment status is necessary, which exemplifies their cavalier attitude to devolution in general. In Wales this is seen as an assault on our devolution settlement, heralding the return of direct rule from England.

We are faced here with another example, as with the Covid-19 response in England, of Whitehall insisting on managing from the centre rather than understanding and empowering local decision-making. The powers of our devolved legislatures and regional mayors, although limited, seem to be resented and distrusted by the Government, and the automatic response seems to be to claw back control to the centre. My fear is that this Government’s unthinking, knee-jerk reactions all add to the perception that the union is not working for the devolved nations and, as I have said in previous contributions, this is encouraging an increasing percentage of people in Wales to conclude that the future lies in independence.

My colleagues and I on these Liberal Democrat Benches want to see true devolution of power to all four nations, including England, in a federal UK where each nation is equal to the other and treated with equal respect. For our party, the union is important because, as federalists we know, that without a union, federalism cannot exist, but we also know, that without federalism, this union will not exist into the future.

Clause 51 is truly indicative of the UK Government’s attitude towards the devolved parliaments and their powers and the desperate need they seem to have to curtail those powers by a show of strength. It is vital to the devolved nations that this clause does not stand part of this Bill, and if the noble Baroness is minded to reintroduce a similar amendment on Report, she will again have my support.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I am a very strong supporter of the common framework system, explained so well by my noble and learned friend Lord Hope. One of the defects I find in this successful system, which I think was a very good invention at the conclusion of the withdrawal agreement Bill when it was set up, is that it is without formal parliamentary recognition. I do not know with any degree of completeness what sort of results it already has, except in the reports produced in accordance with the statutory requirement. One does not know the exact detail of the decisions made. I hoped that as the principles went along in the common frameworks procedure, the principles to be set up in the Bill for the internal market in the UK would become evident. However, so far, that has not been fully revealed in Parliament. I am very anxious that some form of recognition in Parliament of decisions taken and agreed should be set up. This is the purpose of the new clause that I propose in Amendment 170. I do not stand closely on the wording, but some recognition of what is happening in Parliament and ensuring that it is regarded as part of the law would be a useful addition to the present procedure.

The situation between the devolved Administrations and an internal market was regulated by the European Union, therefore some form of renewal of that may be required. I notice that the Scottish Government have said they would not introduce any changes that would damage the internal market, pending legislation. Of course, that is only on the basis that legislation would be something to which they were able to agree. I am very anxious that the results of what we do now should not damage the arrangements for devolution in a way that would point towards independence.

United Kingdom Internal Market Bill

Baroness Humphreys Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[Baroness Humphreys (LD) [V]]

My Lords, it has been a great privilege to listen to the speeches of noble Lords today, especially those who have voiced the concerns of so many of us about this Bill and the impact its invitation to collude in the breaching of international law has already had on the UK’s standing on the international stage.

Politicians in Wales are equally deeply concerned by the contents of this Bill and the implications it has for Welsh devolution, and none more so than David Melding, the highly respected and long-serving Conservative Senedd Member, who resigned his position as shadow Counsel General last month. He cited the need to be able to speak out against what he considers to be,

“a lack of statecraft at this crucial time for the UK’s very survival as a multi-national state.”

Those three words, “lack of statecraft”, are the most telling; a stinging criticism from one of the Senedd’s most loyal Conservatives, and three words that sum up what is so wrong with this Bill. Statecraft involves diplomacy, co-operation, consultation and consensus, but these are words no longer associated with the delivery of the UK’s internal market, and despite the Minister’s conciliatory words and tone when introducing this debate, the words on the face of this Bill tell another story.

It is clear that the UK Government’s response to dealing with devolved governance issues that arise will be to resort to government by diktat. For example, the principles of mutual recognition and non-discrimination are, according to this Bill, to be applied to all goods and most services, with a highly limited list of exceptions which can be changed by UK Ministers through secondary legislation without consultation with the devolved Administrations. In Wales, this is seen as a fundamental assault on devolution, preventing the Senedd carrying out its duty of protecting the citizens of Wales from substandard goods and services.

The proposal that UK Ministers should take new funding powers to enable them to fund hospitals and schools in Wales without consultation with the Welsh Ministers who have the devolved responsibility for these areas is provocative, as is the threat to build the M4 relief road against the decision of the Welsh Government, a decision endorsed by the Senedd on cost and environmental grounds. This attempt to chip away at the powers of the Senedd is an example of Westminster colonialism at its worst. I understand the Government’s dislike of the EU flags seen on Objective 1 projects in west Wales and the valleys, and their need to see the union flag on new projects, but far better to make an investment in areas which are not devolved and for which the UK Government have actually been responsible for years and neglected.

As many noble Lords have already said, the irony is that this Bill is mostly unnecessary. Continued work on common frameworks with the devolved Administrations would ameliorate its impact. The work already carried out by the devolved Administrations, your Lordships’ committee and the UK Government until now has been an example of statecraft at its best. Most worryingly, the imposition of decision-making by Whitehall in areas of devolved responsibility will do nothing to aid the UK’s survival as a multinational state.